Lords Sitting of 8 February 1988

Preamble
The House met at half-past two of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Carlisle.

Military Doctrines: NATO/Warsaw Pact
Lord Kennet: My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government what response NATO has made to the Warsaw Pact proposal of May 1987 that member states should meet "with the aim of comparing the military doctrines of both alliances".
The Minister of State, Foreign and Commonwealth Office (Lord Glenarthur): My Lords, NATO last week concluded its consideration of the proposal. The alliance would be ready under certain conditions to address the question of military doctrine in discussions with the Warsaw Pact.
Lord Kennet: My Lords, what are those conditions and who will conduct the discussions?
Lord Glenarthur: My Lords, we do not see any purpose in discussion of military doctrine in the abstract divorced from military capabilities on which any doctrine must necessarily depend. However, we see some value in it on the basis of concrete information about the size of each other's forces.
Lord Cledwyn of Penrhos: My Lords, we are grateful to the Minister for that reply which indicates a constructive reaction from NATO and Her Majesty's Government. Will he indicate the attitude of Her Majesty's Government towards the Warsaw Pact proposal? To what extent do Her Majesty's Government believe that the doctrine of flexible response would be affected by such discussions?
Lord Glenarthur: My Lords, it is not the practice of NATO as an organisation to respond formally to declarations, such as that on military doctrine, from the Warsaw Pact. This is a matter for individual members to decide for themselves but, as I said, the alliance stands ready on certain conditions to address the question in discussions. I do not think that I can go any further than that.
As to flexible response, given the massive superiority of the Warsaw Pact, mobility is obviously essential to alliance defensive capabilities as is the ability to counterattack from the air as a means of neutralising Warsaw Pact reserve forces.
Lord Stewart of Fulham: My Lords, could one begin by discussing the fact that membership of NATO is voluntary and membership of the Warsaw Pact is not?
Lord Glenarthur: My Lords, the noble Lord is quite right. NATO is a voluntary organisation of independent democratic nations grouped together for collective self-defence. The Warsaw Pact is none of those things.
Lord Molloy: My Lords, does the Minister nevertheless agree, despite all the stuff we have just heard, that the Warsaw Pact happens to exist and that many people believe it could still constitute a threat to this country? What is wrong with that? Does the Minister not agree that the NATO countries may want to discuss this proposition in view of the remarkable change in atmosphere in the Soviet Union? Does he not think that something could be gained, even though at all times we must insist on completely acceptable verification under any new agreement or proposed agreement?
Lord Glenarthur: My Lords, I think that it would be a mistake to equate the two organisations. As for the point about verification which the noble Lord mentioned, that of course goes rather wider than this Question.
Lord Hatch of Lusby: My Lords, is it not the case that there is no channel of communication at present

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between NATO and the Warsaw Pact? In the light of the first Answer that the Minister gave, will the Government not consider trying to establish a regular means of communication between the two organisations so that these matters can be discussed regularly and frequently?
Lord Glenarthur: My Lords, I do not think that that is a realistic proposition. In any consideration of a matter such as this, it is important that we be sure that discussion of doctrines does not merely provide a propaganda vehicle for the East to hammer away at Western nuclear policies and to criticise flexible response. We must guard against that. It is only prudent to establish a sound basis on which the discussions that I have mentioned could take place.
Lord Mellish: My Lords, is the Minister aware that some of us believe that the words "military doctrines" are quite ridiculous? What is really meant is "military intentions". Is there not all the difference in the world between NATO and the Warsaw Pact on that?
Lord Glenarthur: My Lords, the noble Lord makes a very valid point.
Lord Jenkins of Putney: My Lords, will the noble Lord agree that the question of short-range nuclear missiles is bound to come up in any such discussions and that there seems to be some uncertainty as to the policy of NATO concerning such missiles? Can he help us on that?
Lord Glenarthur: My Lords, I should have thought that all sorts of things would crop up in the discussions.
Lord Kennet: My Lords, will the noble Lord accept that the whole House is aware that Question Time sometimes proceeds rather quickly, even when one is not intending that? After he has had a moment to consider, will he tell us the conditions under which NATO would be willing to accept this invitation to discuss military doctrine with the Warsaw Pact? Will he also tell us who will conduct the discussions on behalf of NATO? If the answer to either of, or both, those questions is classified, will he say why?
Lord Glenarthur: My Lords, any discussion of doctrine must take second place to the overriding need to launch a new round of conventional stability negotiations currently the subject of informal Warsaw Pact-NATO discussions in Vienna as well as further talks on confidence-building. That is a very important feature. I do not have information on those who might take part under any circumstances.
Lord Jenkins of Putney: My Lords, will the noble Lord try a little harder to answer the question I put to him?
Lord Glenarthur: My Lords, the noble Lord's question went considerably wider than the Question on the Order Paper, which is concerned specifically
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with military doctrine as brought forward by the Warsaw Pact in May last year.
Lord Irving of Dartford: My Lords, are we not getting into an entirely untenable position? If we can have discussions between America and the evil empire which result in an agreement, why cannot we have discussions between the Warsaw Pact and NATO?
Lord Glenarthur: My Lords, it is not the practice of NATO as an organisation to respond formally to declarations from the Warsaw Pact.

Armed Forces: Alcohol/Drug Abuse
2.44 p.m.
Lord Blyth: My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government what steps they are taking to treat armed forces personnel who are dependent on alcohol and other addictive drugs.
The Minister of State for Defence Procurement (Lord Trefgarne): My Lords, I can assure the noble Lord that satisfactory procedures do exist in the armed forces for the control of alcohol and drug abuse. I refer your Lordships to the evidence given to the Armed Forces Bill Committee in February 1986, a copy of which is in the Library.
Lord Blyth: My Lords, I thank the Minister for that excellent reply. Can he say whether the forces use private treatment centres, and, if not, why not? If they do, who pays for that treatment? Can he also assure the House, bearing in mind that this is an extremely sensitive and rather secretive problem, that adequate channels are available for close relatives of people who may have this problem—perhaps the wives—to receive adequate, sympathetic advice and help?
Lord Trefgarne: My Lords, as I said in the earlier Answer, I believe that we have the facilities in place for the purposes which the noble Lord has rightly described. Perhaps the most important are those at the three main service hospitals in the United Kingdom. They are the Royal Naval Hospital at Haslar; the Royal Air Force Hospital at Wroughton; and the army hospital at Woolwich. There are also units in Hong Kong and Germany. All those hospitals have an appropriate range of staff to deal with these problems. There are also other arrangements relating to the more informal purposes to which the noble Lord referred.
Lord Irving of Dartford: My Lords, in any of the hundred cases of alleged bullying, intimidation or ill-treatment that have been investigated since 1986, can the Minister say whether alcohol or drug abuse was in any sense judged to be a contributory factor?
Lord Trefgarne: My Lords, I do not think that I can claim that there was no question of any

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drunkenness in the cases to which the noble Lord has referred. The fact of the matter is, I fear, that for generations soldiers have been involved in drinking to a greater or lesser extent, and I dare say there was some evidence of that in the cases to which the noble Lord has drawn attention. However, that is perhaps another question.
Baroness Masham of Ilton: My Lords, what education is given to the armed forces on the problems of drug or alcohol addiction?
Lord Trefgarne: My Lords, we conducted a major study into these matters two or three years ago with particular reference to the possibility of drug abuse in the armed forces. Following that study, a range of new educational facilities have been put in place including lectures to those going abroad on exercise to countries where this may be a problem, the issue of leaflets and posters, and other forms of personal education.
Lord Leatherland: My Lords, is the Minister aware that in the front line on the Somme in 1915 we were given a tot of rum at daybreak and that this did a great deal to keep up our spirits when we were standing up to our waists in water?
Lord Trefgarne: My Lords, that only goes to show that there are two sides to any question.

NHS: Ward Closures
2.47 p.m.
The Countess of Mar: My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government how many hospital wards have been closed during 1987 in order to effect financial savings, and whether they intend to take steps to bring them back into use as soon as possible.
The Parliamentary Under-Secretary of State, Department of Health and Social Security (Lord Skelmersdale): My Lords, temporary closures may be made for a number of reasons; for example, staff shortages, damage to buildings and to prevent the spread of infection. It is for health authorities to decide when such measures are necessary, and information is not collected centrally on such closures or the reasons for them. Where such closures have been made to avoid overspending, the extra £75 million funding announced by my right honourable friend the Minister for Health in another place on 16th December has already enabled some re-openings.
The Countess of Mar: My Lords, I thank the noble Lord for that not very satisfactory reply. In view of the number of closures that have been reported over the past 12 months, can he tell the House what has happened to the DHSS guidelines of 1975, which stated that no patient requiring urgent hospital
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treatment should have to wait more than one month, and no patient requiring any hospital treatment should have to wait more than 12 months?
Lord Skelmersdale: My Lords, every endeavour is made by health authorities to meet those guidelines. Indeed, we are constantly looking at them to see whether such matters can be improved. However, it should be pointed out that demand for health care is totally uncontrolled. It is true that a number of districts are having difficulty remaining within their budgets this year. It should be remembered that managers are responsible for health authorities keeping within the law and, although they plan their district finances very carefully, they do not control the clinical decisions which determine the level of expenditure.
Lord Molloy: My Lords, is the noble Lord prepared to examine the situation which has occurred in one or two London hospitals where the staff have endeavoured to the best of their ability to reduce waiting lists but, on accomplishing that, have been punished by having wards closed? Does the Minister not consider that such instances at St. Bartholomew's and one or two other London hospitals ought to be examined so as to keep up the morale of the staff—if achieving nothing else— whose endeavours during the past few months have been wonderful?
Lord Skelmersdale: My Lords, I certainly agree with the second half of the noble Lord's supplementary question. The endeavours of the staff have been very praiseworthy indeed. I do not believe that anyone is being punished in the way that the noble Lord suggests. What has happened is that staff, particularly in London, have not been available for extra beds made available at the beginning of the financial year. That is why we have reached the present position.
Lord Molloy: My Lords, the word "punishment" was that used when I spoke to senior surgeons, senior physicians and specialists, and senior midwives and nursing sisters. They said to me, "For our endeavours we are being punished"—
Lord Denham: Question!
Lord Molloy: Will the noble Lord not examine the situation?
Lord Skelmersdale: My Lords, that may or may not be true; but I still do not believe that it is an appropriate word.
Lord Ennals: My Lords, whether or not the word "punishment" is right, is it not true that temporary closures are still taking place? In view of what the Minister said about health districts overspending, is not the message to the Government from doctors, nurses, patients and, overwhelmingly from taxpayers, quite clear—that the Chancellor really must use some of his surpluses to make a significant and major infusion of funds into the National Health Service to stop the bleeding that is now going on?
Lord Skelmersdale: My Lords, if the noble Lord is referring to the Budget, he knows as well as I do that this is not an appropriate moment to comment on what may or may not be contained in my right honourable friend's Budget Statement. Having said that, the decisions on what to pay for have already been made. The Budget tells us how to pay for them.
Lord Campbell of Alloway: My Lords, does the Minister agree that it is not so much a question of consideration by the Chancellor but that of a fundamental review of the service which I understand my right honourable friend the Prime Minister proposes to undertake? Is it not the case that all these questions on specific issues are very valuable and constructive but that they merge into a greater question for fundamental review?
Noble Lords: Question.
Lord Boyd-Carpenter: My noble friend did ask a question.
Lord Skelmersdale: My Lords, I certainly accept that there are many differing aspects to what is widely described as the health service problem, which principally exists within the acute services. It is because there are so many different aspects to it that an inquisition is being undertaken.
Lord Ennals: My Lords, is it not true that this very last-minute "inquisition" by the Prime Minister is one conducted by Ministers and civil servants and includes no independent people from the medical or nursing professions? It is a political exercise, does the Minister not agree?
Lord Skelmersdale: Most certainly not, my Lords. As I said in the House, I believe in answer to a supplementary question asked by the noble Lord, Lord Ennals, the other day, any thoughts that can be given by your Lordships, the professional bodies or anyone else will be well received by my right honourable friend the Secretary of State for Social Services.
Lord Hayter: My Lords, does the Minister really imply from his reply to the Question that the department does not know the number of wards that have been affected by financial savings?
Lord Skelmersdale: My Lords, what I said was that there are no centrally collected facts and figures for such closures or the reasons for them. I pointed out that financial reasons are not the only criteria for temporary closures.
Lord Ennals: Should the information not be available, my Lords?
Lord Skelmersdale: My Lords, it never has been, and the arrangements within the NHS currently—and during the time of the noble Lord, Lord Ennals—do not enable such figures to be collected.
The Countess of Mar: My Lords, will the noble Lord and his right honourable and honourable friends get right away from the misconception that the demands on National Health Service facilities are infinite? Everyone knows the average time people are going to live and the incidence of disease in the population. Therefore, there is some means of calculating what the requirements of the National Health Service will be.
Lord Skelmersdale: My Lords, if that were so, I wish the noble Countess would tell me.

Hospital Proposals for Westminster
2.55 p.m.
Lord Ennals: My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether they will make a statement on the futures of the Westminster Hospital and the Westminster Children's Hospital in the light of proposals made by the Riverside Health Authority.
Lord Skelmersdale: My Lords, Riverside Health Authority is consulting formally on a proposal to build a new Westminster and Chelsea Hospital on the site of St. Stephen's Hospital, Fulham. The consultation paper shows that if a new hospital were to be built as is proposed, other hospitals in the district, including the Westminster on its present site and Westminster Children's Hospital, would close. A decision on such a project would be taken only after thorough consideration of the implications for patients, and assessment of the financial and other aspects of the proposal.
Lord Ennals: My Lords, in view of the drastic proposals by the Riverside Health Authority to reshape the hospital provision in the district—which involves, as the Minister said, the closure of four major and well-renowned hospitals, leaving no hospital provision whatever in the Westminster area and the demolition of St. Stephen's Hospital to make room for a new 680-bed hospital—is it not imperative that the Secretary of State should call in that proposal to satisfy himself that if carried through it will provide an effective and adequate service for the people of the whole of Riverside and not just one end of it?
Lord Skelmersdale: My Lords, clearly, as I have said, Ministers have to approve the financial aspects of the scheme as a whole. It would be impossible—in fact, it would not be impossible but improper—to do that without recognising the considerations such as the effect on patients, the cost and benefits, how the scheme would be funded and whether it would give good value for money. Those are the kinds of issues that the noble Lord, Lord Ennals, is interested in.
Baroness Faithfull: My Lords, is it right that the review will cover not only costs but the terms of reference for work done by different bands of nurses

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thereby possibly negating the Salmon Committee report? If the review considers the roles of different types of nurses that will take time. Will it be part of the review? Am I correct in that?
Lord Skelmersdale: My Lords, I am slightly confused, but I believe my noble friend is talking about the clinical grading review of trained or untrained nurses in our hospitals. So far as I know, that is not directly related to the Question on the Order Paper.
Lord Grimond: My Lords, will the Minister confirm that the Government are convinced of the necessity for a major hospital to serve Westminster? Will he also confirm that, in the current state of knowledge, there is no better alternative available than the present Westminster Hospital?
Lord Skelmersdale: My Lords, if by "Westminster" the noble Lord means the Houses of Parliament, quite clearly arrangements both for emergency and primary health care treatment of Members of your Lordships' House and those of another place would be a most important factor in reaching any decision in the matter.
Lord Grimond: My Lords, I do not mean only Members of this House— important as they are—but also the denizens of Westminster.
Lord Skelmersdale: My Lords, if the noble Lord means more widely, then clearly it is necessary to consider the effect on patients, as I have said. By that I mean all patients in the Riverside Health Authority area.
Lord Wallace of Coslany: My Lords, is the Minister aware that the Westminster Hospital site is very valuable from the point of view of development? Will he give an assurance that the development value of the site will have nothing whatever to do with the hospital's continuance or closure?
Lord Skelmersdale: My Lords, any of the sites mentioned in the scheme have quite a high potential cash value. It will be necessary to consider the whole scheme and the financial aspects of it all at the same time. I am afraid I cannot give the kind of guarantee for which the noble Lord is asking.
Lord Wallace of Coslany: My Lords, I find it astonishing that the Minister will not give an assurance on the financial implications of developing the site for other purposes than a hospital. Surely an assurance can be given that the only decision that can be made is for the benefit of the health service.
Lord Skelmersdale: My Lords, I thought that I had already clarified that matter. However, it is equally obvious to me that financial considerations will have to be taken into account.
Lord Ennals: My Lords, is the Minister aware that those involved in the AIDS unit, which is an extremely important unit at St. Stephen's Hospital,
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are gravely concerned about the effects of this plan on their ability to fulfil their AIDS responsibilities, which are so important at this time?
Lord Skelmersdale: My Lords, yes, of course I am aware of that, but I find this a difficult issue and I must be careful not to pre-judge this particular investigation. I find it difficult to believe that work must be carried out in a particular geographical area.
Lord Peyton of Yeovil: My Lords, I should like to ask my noble friend whether the forthcoming review will consider the work of boards, councils and committees within the health service and attempt to reach a conclusion as regards their usefulness?
Lord Skelmersdale: My Lords, although that question does not have a great deal to do with the Question on the Order Paper, I think that the official answer to my noble friend is that nothing is sacred.
Baroness Masham of Ilton: My Lords, is the Minister aware that the Westminster Hospital is a designated rehabilitation centre and that many disabled people attend? Is he also aware that St. Stephen's site presents difficulties as regards transport and, with an ageing population, patients would have extreme difficulty in reaching a large hospital in Fulham?
Lord Skelmersdale: My Lords, I was aware of that matter. Transport is one of the issues at which my right honourable friends look with particular interest when deciding whether to approve or disapprove potential closures.
Baroness Macleod of Borve: My Lords, I should like to ask the Minister whether the relevant community health council has so far made representations to him about this matter.
Lord Skelmersdale: My Lords, the district health authority has issued a consultation paper to the community health council which is still deliberating on it.
Lord Underhill: My Lords, in addition to the question asked by the noble Baroness, Lady Masham, about transport for the disabled, is the Minister aware that people travel to Westminster Hospital from various areas of London? It is in a convenient area for them to use their own personal transport, and patients need to attend that hospital in order to see consultants and visit special surgeries.
Lord Skelmersdale: My Lords, having lived and worked in the area for some time, I suggest that if patients are using their personal transport, the car parking facilities, where they now exist, are far from adequate.
Lord Underhill: My Lords, of course I meant public transport, in addition to personal transport, which many people use, as do I, when attending Westminster Hospital.
Lord Skelmersdale: My Lords, I thought that I had already dealt with public transport in answer to the supplementary question asked by the noble Baroness, Lady Masham.

Business
3.3 p.m.
Lord Denham: My Lords, at a convenient moment after 3.30 this afternoon my noble friend Lord Ferrers will, with the leave of the House, repeat a Statement that is to be made in another place on war crimes.
It may be for the convenience of the House if I announce that the Report stage of the Legal Aid Bill will be adjourned at approximately 7 p.m., for approximately one hour and that during this adjournment the Industrial Training Levy (Engineering Board) Order 1988 will be taken.

Hastings Borough Council Bill
3.4 p.m.
Read a second time, and committed to an Unopposed Bill Committee.

Social Security Bill
Lord Skelmersdale: My Lords, I beg to move the Motion standing in my name on the Order Paper.
Moved, That it be an instruction to the Committee of the Whole House to whom the Social Security Bill has been committed that they consider the Bill in the following order—

Clauses 1–2,

Schedule 1,

Clauses 3–8,

Schedule 2,

Clauses 9–10,

Schedule 3,

Clauses 11–15,

Schedules 4–5,

Clauses 16–19.—(Lord Skelmersdale.)

On Question, Motion agreed to.

Arms Control and Disarmament (Privileges and Immunities) Bill
Read a third time, and passed.

Legal Aid Bill [H.L.]
3.6 p.m.
The Lord Chancellor (Lord Mackay of Clashfern): My Lords, I beg to move that the Bill be now further considered on Report.
Moved, That the Bill be further considered on Report.—(The Lord Chancellor.)
On Question, Motion agreed to.
Clause 32 [Regulation]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 45:
Page 27, line 27, leave out ("be entitled to").
The noble and learned Lord said: My Lords, I beg to move Amendment No. 45. We have moved on to Clause 32 and the Marshalled List promises an interesting diet of further debate in relation to this clause. I should like to deal with a matter which was first specifically raised by my noble and learned friend Lord Griffiths at Second Reading, and it was also referred to in our debates during Committee. In relation to remuneration provisions, as presently drafted Clause 32(6) provides that:
"The Lord Chancellor, in making regulations for the purposes mentioned in subsection (2)(e) above"—
that is in respect of remuneration:
"as respects any description of legal aid work, shall be entitled to have regard, among the matters he considers appropriate, to—".
There then follows a list of factors. The question was raised as to whether the words "be entitled to" were appropriate. I pointed out my concern that an annual full and detailed consideration of all aspects of remuneration may prove to be an impossible task to perform. I suggested that it may well be unnecessary to look at every aspect of each fee in relation to particular reviews.
I have taken further advice upon the matter and I am told that, subject to proper safeguards, the idea of a general uprating would not be prejudiced if the words "be entitled to" were left out. In the spirit of the considerations during the Committee stage, I accordingly beg to move Amendment No. 45.
Lord Elwyn-Jones: My Lords, on behalf of the Opposition I welcome the decision taken by the noble and learned Lord the Lord Chancellor to move this amendment. Indeed, it augurs well for the debate to follow. Clearly, it is necessary that it should be mandatory upon the Lord Chancellor to have regard to the matters which are listed from (a) to (g) in subsection (6) and that it should not be a mere permissive power. We welcome the willingness of the noble and learned Lord to make this concession at such an early stage in our proceedings today.
Lord Wigoder: My Lords, my colleagues on these Benches would also like me to welcome this amendment.
The Lord Chancellor: My Lords, I am grateful for this promising start and I hope that it augurs well for my securing the agreement of your Lordships to the rest of the amendments that I shall be proposing. I should like to mention that this point was raised in particular by the noble Baroness, Lady Seear, in Committee. I am grateful to the noble Lord, Lord Wigoder, for signifying his position with regard to it.
It will be obvious to your Lordships that the agreement of this amendment will have a small effect on Amendment No. 46 because in this amendment I follow the words of Amendment No. 46 only to a limited extent.
On Question, amendment agreed to.
Lord Ackner Lord Ackner moved Amendment No. 46:
Page 27, line 27, leave out ("be entitled to have regard, among the matters he considers appropriate") and insert ("have regard to the principle of allowing fair and reasonable remuneration according to the work actually and reasonably done or to be done and shall in particular have regard").
The noble and learned Lord said: My Lords, this is a very modest little amendment but at the same time is immensely important and I hope to satisfy your Lordships that it is an irresistible one. Perhaps I may deal with the amendment under those three headings. First of all, I deal with its modesty. This amendment seeks to do no more than to continue the statutory obligation which exists at the moment and was imposed by Parliament some 14 years ago in the Legal Aid Act 1974, Section 39(3), which so far as material, reads as follows. The Lord Chancellor:
"In making regulations … as to the amounts payable to counsel or a solicitor assigned to give legal aid … and any person by whom such amount falls to be assessed, taxed or reviewed under the regulations, shall have regard to the principle of allowing fair remuneration according to the work actually and reasonably done".
It thus imposes an important dual obligation first upon the Lord Chancellor making the regulations and secondly, upon those obliged to carry them out.
The reason for the special provision was referred to by my noble and learned friend Lord Hailsham in Committee on 19th January when he pointed out that lawyers are in a separate position from nurses, doctors and others paid by the public because they are an independent profession paid by the piece, paid by fees; they are not paid by salary. The need for such a statutory obligation is quite simple. Some four years ago in Cmnd. Paper 9077 the Government were committed to the following view:
"The Government believes that legal aid should be available to assist those of small or moderate means, by giving them the same chance to pursue or defend their legal rights as those in a position to instruct lawyers privately."
My noble and learned friend the Lord Chancellor confirmed in Committee on 19th January that the Government's position is:
"still as stated in the Cmnd. Paper".
I do not need to spend time—certainly not at Report stage—to emphasise before your Lordships that you cannot achieve the same chance to pursue or defend legal rights as those in a position to instruct lawyers, unless there is an ability to pay a reasonable remuneration for those services.
Indeed, that was expressly accepted again by the Government in the same Cmnd. Paper in these terms:
"The Government accepts that legally aided work should be reasonably remunerated";
hence the absence of any novelty and the total modesty of the amendment proposed.
Now I turn to the importance of the amendment. A very large number of litigants are legally assisted; virtually all defendants in criminal cases; some 70 per cent. of litigants in matrimonial cases; no doubt a very high proportion in personal injury cases; in cases in which there is judicial review sought by the subject; and, in landlord and tenant litigation. Everybody agrees that it is essential that the legal aid service should not degenerate into a second-class or second-rate service. There are already strong warning signs that that is happening at the moment.
However, at present there are the following safeguards: first, the existing statutory obligation of fairness; and secondly, the assessment of proper remuneration done initially or by way of appeal by taxing masters who are qualified judicial officers with a right of appeal from them to a judge in chambers. The Lord Chancellor has fully acknowledged—and the White Paper and the scrutineer's report makes this clear—that in order to reduce expenditure there is a move towards establishing fixed or prescribed rates for work which is done.
As matters stand, prescribed rates have been agreed for a large amount of the criminal work because units of work—to use current jargon—can be easily identified. This process is occurring in relation to matrimonial work and the Lord Chancellor clearly hopes to spread that across the whole range of litigation.
In Committee I gave an indication of one prescribed rate which was £33 for all paperwork in matrimonial cases, whether it was a long opinion which took a week to write or a long affidavit which took 20 hours to draft. That prescribed rate of £33 is scarcely enough to induce a self-respecting plumber to cross the threshold. It means that in virtually every case that prescribed rate has to be looked at and inevitably up-rated. However, it is proposed that gradually the judicial process of taxing or assessing fees shall be moved over to the administrative process. The judicial officer is to be replaced in due course by a member of the Executive, a civil servant without qualifications called a taxation co-ordinator. Therefore, the whole assessment will leave the realm of the judicial process and become part of the administrative process.
The dangers are further mirrored by Clause 32. Other amendments will highlight them. However, I shall just give your Lordships an immediate indication. There is introduced for the first time in this sort of legislation Section 32(6)(f):
"the cost to the public fund of any provision made by the regulations:"
is to be considered when considering what the lawyer should receive.
I find paragraph (g) unintelligible, but it is the subject matter of an amendment and subsection (11) brings in another indication of Treasury control not to be found in Section 39(3), and we know from Committee that the noble and learned Lord the Lord Chancellor is resisting—and will continue to resist—that which is the subject matter of another amendment; namely an independent fees advisory committee. That is the importance of this amendment.
I come now to its irresistibility. In recent litigation by both branches of the legal profession for judicial review in 1986 of the Lord Chancellor's exercise of his statutory obligation under that same section, in long affidavits read out to the Divisional Court there was not the slightest suggestion that the obligation to pay fair remuneration was causing anyone the slightest problem or trouble. However, better still in a debate on 4th June 1986 (at col. 1008 of Hansard) the then

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Lord Chancellor (my noble and learned friend Lord Hailsham) used these clear terms:
"I am, of course, wholly wedded to an independent and vigorous legal profession, fairly remunerated. Secondly, I wholeheartedly accept the principle of fair remuneration according to work reasonably and actually performed. I should be wedded to that principle whether or not the words were embedded in statute. Otherwise I should be guilty of trying to defend work not reasonably remunerated in that manner."
The White Paper issued on 26th March 1987 said in terms that the Government will continue to have regard to the principle of fair remuneration. That statement was repeated by the noble and learned Lord the Lord Chancellor at Second Reading. He confirmed in that debate on 19th January (at col. 177 of Hansard):
"there is no question of my trying to depart from the basis on which we have worked."
One therefore asks the question: why is the statutory obligation to be suppressed? Why is it no longer to continue in the legislation?
I ventured a view which has been the view of many; namely, that it was designed to prevent access to the courts for judicial review, as occurred successfully two years ago. However, that was repulsed by the Lord Chancellor as being an unworthy suggestion, and of course I accept that that cannot be what is behind it.
The only two other grounds suggested by the Lord Chancellor were these. He suggested that the word "fair" was too vague and that it was difficult to apply—a problem which none of his predecessors had voiced. I have sought to alter that by adding the word "reasonable" after the word "fair" because there can be no suggestion that "reasonable" has any difficulty in its application, as it is the very word found in Order 62, which obliges the taxing master to operate in these terms—and I give your Lordships the exact words to indicate that those responsible for the drafting did not foresee any difficulty:
"On a taxation of costs on the standard basis there should be allowed a reasonable amount in respect of all costs reasonably incurred."
So much for that criticism. The second criticism, which is understandable, is this. The Lord Chancellor, as I have indicated, is anxious to lay down prescribed rates; a rate for the job before it is carried out. Accordingly, he said, fair remuneration for work actually and reasonably done did not appear to him to make very much sense when contemplating making regulations to provide rates for work before it is done. That is readily catered for and I have sought to do so by adding the words "to be done" so that the formula reads:
"Fair and reasonable remuneration according to the work actually and reasonably done"—
the past tense—
"or to be done"—
the future tense.
The Lord Chancellor has drawn attention to the small amendment that he has agreed to, which he has just moved, and the next amendment which follows. One should never be ungrateful for the cart even though it comes before the horse. One should not be ungrateful for the cart even if there is no horse at all,
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but that is exactly the position here. You have to define the obligation before using such terms or other circumstances that are relevant. You cannot determine relevance until you know to what obligation the relevance is directed.
I end by saying that, in my submission, the inevitable consequences of removing from this legislation the existing statutory obligation of fairness and reasonableness in relation to payment will, in the short or the long term, be simply that it will seriously undermine the strength, vitality and independence of the legal profession and public confidence in it. In the Command Paper to which I have referred the Government accepted that a legal profession having those qualities which I have spelt out is of fundamental importance to our freedom under the law. Therefore, I beg to move.
Lord Benson: My Lords, I support this amendment. The whole thrust of the debate in Committee on this topic was that the words "fair remuneration" should be included in the Bill so that the legal profession is properly paid. In his answer the Lord Chancellor said:
"As I have explained, the reason I have not put in the phrase 'fair remuneration' in that context is that it is meaningless as an addition to the factors. What does it mean?"
Many of us in this House listened to those words with incredulity, but having seen them in cold print they are no less astonishing. Every enterprise, large or small, must have an objective. Unless the objective is fairly stated there will be muddle and confusion. The objective to be stated in this case is extremely simple. It is that fair remuneration shall be paid out of the public purse for legal work properly done. That, in effect, is what is in the existing Act and that, in effect, is what this amendment seeks to do.
There are a great many factors which have to be taken into account in arriving at fair remuneration. Those factors are the nuts and bolts and they have to be put together to make the finished article and to arrive at the objective. When all of them have been considered they have to be weighed up and in the mind of an honest and independent person fair remuneration has to be fixed for payment out of the public purse. I make the comment for the removal of doubt that the Treasury is not honest and independent for this purpose because it is not independent. The Bill rather strangely goes out of its way to refer to the Treasury to make it clear that the Treasury is fighting a corner.
The Lord Chancellor asks what "fair remuneration" means. We should give some attention to those words, starting with the word "fair". Every single set of accounts for the past 40 years that has been submitted to the public or to taxing authorities has to be, by statute, fair. Fair is the cardinal principle in every arbitration and other tribunal proceedings. Fair is the very basis of the administration of justice in this country. Our taxing statutes are riddled with the word "fair".
Let us now look at the words "fair remuneration" together. Every employer in this country knows what fair remuneration involves. Every housewife who employs a daily lady or mother's help for an hour or two a week knows what fair remuneration is. Every

17
teenager who gets his first job knows what those words mean.
Seventeen years ago the Top Salaries Review Body made its first report and laid down the principles on which all its subsequent reports should be written. The body made it absolutely clear in the text that it knew what fair remuneration meant. The whole of the legal profession, from Law Lords to the humblest practitioner, is asking for these words to be restored because the profession knows what fair remuneration means. Against that galaxy of talent, legislation, case law, experience and opinion the Lord Chancellor stands alone. He does not know what those words mean. All of us in this Chamber and the whole of the legal profession outside it will be distressed to know that the head of the judiciary in this country is in that predicament.
There has never been any difficulty in the past in knowing what "fair remuneration" means. The words have been on the statute book for 14 years. At this moment in time the Lord Chancellor of the day has, by statute, to know what the phrase means because he has to administer the existing Act as part of his responsibility. In the debate on 4th June 1986 the then Lord Chancellor the noble and learned Lord, Lord Hailsham, said that he was compelled by statute—the one to which I have just referred—
"to make regulations which have regard to the principle of fair remuneration for work actually and reasonably done".
He added,
"I have already said that I wholeheartedly embrace that principle".—[Official Report, 4/6/86; col. 1011.]
The noble and learned Lord Chancellor now in office, in the Second Reading debate reaffirmed that principle. He also drew attention to the White Paper in which the Government have committed themselves to that principle. In the face of those facts, how is it possible for this blanket of incomprehension suddenly to have enveloped the Woolsack and the Treasury; how is it possible for two well-known English words suddenly to have lost their meaning; how is it possible, when two Lord Chancellors and the Government have stated that they are irrevocably committed to a principle, it should now be discarded from this Bill?
In the light of those facts, it is difficult to speak in moderate terms. The gentlest language that I can use is to say that if these words are omitted it will be a shameful injustice deliberately imposed upon the legal profession. It will leave a stain that will last for many years to come. The only chemistry that will remove that stain—indeed the only chemistry which in this context will restore the credibility of the Government—is to transpose the words from the existing Act into this Bill.
3.30 p.m.
Lord Hailsham of Saint Marylebone: My Lords, I hope that there is no fundamental difference of philosophy between either of the two noble Lords who have just spoken and myself. My noble and learned friend Lord Ackner twice quoted me, once when I was explaining something to my noble friend Lord Trafford. I do not think he is here but I cannot quite see behind me. I was explaining about the
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particular nature of the problem with which we were confronted. I pointed out that what gives difficulty to this problem is the fact that virtually all lawyers are paid by the piece and by fee whereas most other publicly-remunerated persons are paid by salary or by time. That is much more easily defined and much more easily arrived at.
I did not mean thereby to rebuke my noble friend, Lord Trafford, for having expressed some anxiety as to whether lawyers were not perhaps overstating the case in relation to their remuneration. He meant to say that because he has since told me so. I expressly told him that I was not creating any kind of rebuke to him; I was explaining something which I thought he had not taken into account.
I remain, as I was when occupying the place of my noble and learned friend, entirely wedded to an independent legal profession and a vigorously independent legal profession. No civilised society can get on without one. In spite of the fact that we are not always popular, as one can see by reading the speech of Jack Cade in the second part of "King Henry VI", we perform indispensable functions in a free society. I am entirely wedded to a legal profession, as I was in 1986 in the passage now twice referred to, paid what is fair in the circumstances.
I view with rather less than enchantment the terms of the amendment moved by my noble and learned friend which, as the noble Lord, Lord Benson, candidly conceded, transposes the existing legislation framework with some alterations into the proposed statute we are now discussing. The first matter I wish to point out to both my noble and learned friend Lord Ackner and to the noble Lord, Lord Benson, is the phrase "have regard to". In the form which the Bill now takes, supported in Committee by my noble and learned friend on the Woolsack, the words "have regard to" have a fairly intelligible meaning. I should like to say to my noble and learned friend Lord Ackner that I was responsible for having to use these words and applying them before this Bill came for discussion in this House. In 1986, I said—unless I am vastly mistaken because I have not looked it up—that I wanted to pay remuneration which was fair. What is meant by "have regard to"? I have great regard for my noble and learned friend Lord Ackner and the noble Lord, Lord Benson, but I do not have to do exactly what they say. What does "having regard to" the principle of fair remuneration mean except that one does not always have to pay?
That is an insuperable objection to the wording of the existing legislation and therefore to the wording of the proposed "modest, irresistible and important amendment". If it had said that fair remuneration must be paid I could have understood at once what was meant although I should require—as did my noble and learned friend on the Woolsack when the matter was discussed in Committee—a little more indication of what other people thought were relevant considerations in assessing what is fair. If I may use the word again, I believe that the noble Lord, Lord Benson, was a little less than fair to my noble and learned friend on the Woolsack in the speech which fell from him a few moments ago. I assure him that I speak now from experience and not from prejudice. It is difficult to be told to be fair when

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different people hold different views as to what factors ought to be taken into account in estimating fairness. I ask my noble and learned friend Lord Ackner why he has added the words "and reasonable"? What is the difference between what is fair and what is reasonable?
Lord Ackner: My Lords, if that is intended as a question, then I can answer it. I thought that I had. I added the word "reasonable" because my noble and learned friend the Lord Chancellor had difficulty in understanding how it worked. I added the word "reasonable" because it is used by taxing masters as the basis for assessing fair remuneration, and I read out the terms of Order 62.
Lord Hailsham of Saint Marylebone: My Lords, with great respect to my noble and learned friend, he has jumped the gun because he has not met the point I was about to make. If you use the word "fair", subject to what I have said and what I am about to say, I understand that is what has to be paid; that is, if one can make out what is meant by "have regard to". If you say "fair and reasonable" one must either contemplate that what is fair may still not be reasonable or that what is reasonable may not be fair. To add "fair and reasonable" together must involve a conflict in the mind of any person seeking to interpret the amendment as to what kind of remuneration would be fair but not reasonable and what kind of remuneration would be reasonable and not fair. It makes the task of the Lord Chancellor more and not less difficult. If it means the same thing in both cases, then the addition of the words is undesirable. If you mean one thing, you should say one thing. Do I see the noble Lord rising?
Lord Somers: My Lords, I hesitate to interrupt the noble and learned Lord, but am I right or wrong in thinking that there is a difference between "having regard to" and "having regard for"?
Lord Hailsham of Saint Marylebone: My Lords, I do not believe I can answer that question offhand although I will contemplate it in the dark watches of tonight. If I can think of a solution I will try to communicate with the noble Lord.
One now comes to a point which needs to be discussed with a considerable degree of frankness. The legal profession is entitled to fair remuneration. Because the profession is remunerated by fee, remuneration has to be calculated in a different way as compared with those who are remunerated by salary. I should not like to be in the position of a Minister at the Home Office, the Ministry of Defence or the Department of Health and Social Security, who had to say that those who come under his statutory jurisdiction should have a remuneration which was not fair. I think that everybody in the public service should have fair remuneration, but in all cases it must be subject to negotiation and to some kind of common argument as to what factors enter into the conception of fairness.
In Clause 39 of the Bill the Lord Chancellor is bound to pay monies voted by Parliament. If the
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monies voted by Parliament are not sufficient to pay what is regarded under this clause as fair remuneration, the Lord Chancellor is in an impossible position. Therefore, I think he is entitled to be told in this clause what factors he should take into account.
Among those factors is one which my noble and learned friend Lord Ackner referred to in his criticism of the existing Bill. Apart from other things, it is the cost to public funds of any provision. If the Lord Chancellor is not entitled to take into account the cost of the provision, as he is entitled to do under the clause as it stands, how does he stand if Parliament under Section 39, when it is law, does not vote the funds which he has got to pay? We all know that the Lord Chancellor's department is a spending department just as much as the Department of Health and Social Security, the Home Office or the Ministry of Defence. His is a spending department and he has to negotiate with the Treasury.
I am not at all content with the kind of oblique and hostile references to the Treasury which were made by the two previous speakers. The Treasury is always the fall-guy in these debates, but the Treasury has two other factors to take into account. In the first place every penny that is paid under this Bill by way of remuneration to the legal profession will come out of something else. Secondly, the Treasury has to take into account the totality of public expenditure. It is an unpleasant fact of life, but one which should be taken into account, that everything we spend in Parliament on public services of any kind is made out of the product of either manufacturing industries or service industries which we provide for ourselves and other people.
You can kill the goose which lays the golden egg. The Treasury is given the unpleasant and unpopular task of keeping the goose alive because, if she is killed, there will not be any money for anybody to be paid anything. When one is making a fall-guy of the Treasury and putting it up as an Aunt Sally, one is neglecting the fact that, in spending money on the legal profession, the enemy of the Lord Chancellor's Department is just as likely to be the nurses or the defence forces and the generals as the Treasury. The fact is that one has to take into account what other people are getting.
My noble friend Lord Trafford was quite right when he made what I thought was not a particularly well-informed interruption the other day. He said that, like everybody else, the lawyers must stand with the other spending industries and see what can be done. I am wholly of the opinion that lawyers are entitled to fair remuneration, but I think the same about nurses, private soldiers or seamen. There is nothing special about this. However, to tell the Lord Chancellor that he must have regard to a principle—not that he must perform the principle—taken out of context of the total economic situation seems to me to put him in an impossible position. The Treasury has a legitimate part to play in this discussion and one should not try to make an Aunt Sally of it.
I have listened in this Parliament and in the previous Parliament to a very large number of these

21
discussions. We hear people who want money from public funds; they are always the people who are interested in the particular service. It would not be in order for me to talk about the needs of the health service in this debate, and quite rightly nobody has spoken either in Committee or so far on Report about the health service. However, they are there, spectrally making equal demands on the public service. The Lord Chancellor is in an unenviable position. I think that the noble Lord, Lord Benson, was very much less than fair to him when he said that everyone, including nurses, doctors and air marshals, understands what fair remuneration means.
3.45 p.m.
Lord Benson: My Lords, I did point out that everybody knew except the noble and learned Lord Chancellor.
Lord Hailsham of Saint Marylebone: My Lords, that was precisely why I said that the noble Lord was being unfair to the Lord Chancellor, and I say so again. We do not know what it means in each of these cases, and our assessment of what is fair in relation to the armed services, the health service or the legal service, differs according to who we are. The lawyers have a different idea from air marshals as to what would be fair in the circumstances. It is the poor old Treasury that has to take the knock.
That brings me back to this "modest, irresistible and important" amendment moved by my noble and learned friend Lord Ackner with his persuasive advocacy, before which I have trembled on more than one occasion. I wonder why he thinks that it is necessary to put the hands of the clock back on this occasion in order to preserve the independence of the legal profession?
My noble and learned friend made a brief reference to the judicial review last year or the year before. A great deal of what went on during the course of those proceedings I am bound to keep in confidence. The case was settled on terms which I found perfectly agreeable. The legal profession, although perhaps less enthusiastic than I, certainly accepted them as fair. However, there is something that I must now say which is irrefutably true. If those proceedings had not been launched by the legal profession, I could have obtained exactly the same terms two months earlier, but because I was unable to negotiate either with the legal profession or with the Treasury during the currency of those proceedings, my hands were tied behind my back. All they did was to shoot themselves in the foot to the extent to getting what they wanted two months later.
I am standing by my noble and learned friend on the Woolsack. I have also had to sit there, and he has been given a very raw deal so far in this debate.
Lord Ackner: My Lords, the noble and learned Lord has justified his action in regard to the judicial proceedings. I do not want to turn the sword in the wound, but he said that the case was settled on terms agreeable to him. I wonder whether he will confirm that, despite strong resistance, an order was made by the Divisional Court for his department to pay the entire costs.
Lord Hailsham of Saint Marylebone: My Lords, I confirm it but withhold any comment in view of what I happen to know took place. I do not think that it would be proper to draw the attention of the House to exactly what happened, but I could tell noble Lords a tale whose merest word would make the hair of my noble and learned friend stand on end.
Baroness Faithfull: My Lords, as one who is not trained in the law but a lay person who has had to work with the law perhaps I may ask two questions on matters which puzzle me very much. What other profession has written into a Bill its terms of payment? If those are written into a Bill for the legal profession, then all the other professions—architects and so on—will take this as a precedent and will want their terms of payment written into an Act of Parliament. Where would we be? It would be a most awkward situation.
My second worry concerns a fair and reasonable service. Do I understand correctly that if the legal profession does not have its terms of payment written into an Act of Parliament, those who are in need of help will not receive a reasonable service? I should be grateful to have answers to those questions.
Lord Renton: My Lords, the greatest help we can give to my noble and learned friend the Lord Chancellor is to try to arrive at a scheme which will ensure the full co-operation of both branches of the legal profession. Without their full co-operation this new scheme, with its many fundamental changes, will fail to give that public service which all your Lordships hope that it will provide.
Until I heard my noble and learned friend Lord Hailsham just now I was quite convinced that an acceptance of the amendment of the noble and learned Lord, Lord Ackner, would be in the interests of all concerned. It would give confidence to the legal profession that it will be treated fairly and reasonably in this matter of fees. It would give confidence to the profession because when it sees the Bill it will not only try to understand it and its implications but it will be sensitive to changes which are to be made to the present law.
I do not think that either branch of the legal profession should be over-sensitive but we have to be realistic. We have to avoid the possibility that a number of the best and ablest members of the profession will say, "We have a duty to perform if we can but we in our turn have a right to be treated fairly and reasonably". My noble and learned friend Lord Hailsham said that the Bar is entitled to fair remuneration. My noble and learned friend is one of my oldest and best friends. I have heard him speak on, I suppose, a hundred occasions, from the days when we were at university together until he retired as Lord Chancellor and since. However, I must confess that, I think for the very first time, I was mystified by one of his speeches.
I do not share his difficulty about the use of the words "have regard to", because we must consider the context in which those words will be used. The context arises, first, in subsection (2)(e) of Clause 32, and, secondly, in Clause 6, which is the clause that the noble and learned Lord, Lord Ackner, seeks to

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amend. It is not unusual when a power or an obligation is placed upon a Minister of the Crown to make regulations that Parliament should give guidance or directions in the making of those regulations and in doing so shall use the words, which in any event we are going to have in the subsection, "have regard to". The Lord Chancellor will have to have regard anyway. One cannot get away from that. The question is whether:
"among the matters he considers appropriate"—
I quote again from the subsection—there shall, in addition to the seven factors specifically mentioned, be this broad general principle.
We can argue endlessly about the subtle use of words. Goodness knows, in our statute law we can argue a great deal. If we are not careful we shall find that the words we use or fail to use will give rise to difficulties in the courts which in turn will make more money for the profession. Are we not making heavy weather about a phrase which has been used before and has not, as I understand it, given rise to any specific difficulty and which in the opinion of noble and learned Lords, and I am sure of other Members of your Lordships' House, will be applied by the Lord Chancellor in the sense in which it is intended and if necessary interpreted by the courts and by the taxing masters? I do not wish to labour these arguments, but if we are to have both branches of the profession united within themselves and doing their best to make the new scheme work in order to maintain the degree of continuity which it has been suggested should be maintained, it would be wise to establish the principle of fair and reasonable remuneration, and it is not something that we should ignore.
Lord Hailsham of Saint Marylebone: My Lords, before my noble friend sits down perhaps I may ask for his comment on this statement. He said that the phrase "have regard to" has never caused difficulty. I can assure him that not only did it cause me great difficulty, but I took counsel's lengthy opinion on it and I still did not understand it at the end. I want to ask him this brief question. Does "have regard to" mean "perform" or "pay", or does it mean something else; and if so, what?
Lord Renton: My Lords, with respect to my noble and learned friend, I think that that is a point which my noble and learned friend the Lord Chancellor would wish to argue. Those words are in the Bill whether or not the amendment is accepted, and we just have to take them as being there.
Lord Griffiths: My Lords, I support the amendment. The regulations under discussion are the regulations by which the Lord Chancellor will lay down the scale of fees which are to remunerate virtually the whole of the criminal Bar and that large portion of the solicitors' profession which conducts civil work and a great many of those who practise in the civil field at the Bar.
The Bill provides by subsection (7) that before making those regulations the noble and learned Lord the Lord Chancellor shall consult with the Law Society and the Bar. What is the purpose of those
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consultations? The purpose is that they should sit down as employers sit down with trade unions and try to arrive at a wage structure. But what sort of wage structure are they trying to arrive at? The answer must surely be a fair wage structure: fair on the one side to us in our capacity as taxpayers, who have to pay the bill for legal aid, and fair on the other side to those who have to work in the profession and whose livelihoods, for the most part, depend upon it.
The noble and learned Lord the Lord Chancellor has said that it is his intention that the result of the negotiations shall be "fair remuneration". His predecessor said likewise and the Government asserted that fact in their White Paper. When the matter was first raised I was sympathetic, and still am, to the view held by the noble and learned Lord the Lord Chancellor that it was preferable to spell out the content of what was considered fair insofar as it was possible. I accepted the fact, and still believe it to be right, that in Clause 6 he has attempted to spell out those factors which contribute towards fair remuneration. My initial objection to the way he did it was that he said that he was "entitled" to take into account fair remuneration. I do not much fancy negotiating with someone who is entitled to be fair; I would rather negotiate with someone who had to be fair. Therefore, I welcomed the amendment tabled by the noble and learned Lord the Lord Chancellor to correct that matter.
Ever since we have had legal aid, the overriding obligation to provide fair remuneration has been spelt out in the statute. The intention has been repeated over and over again. The noble Lord, Lord Benson, has pointed out the interpretation that removing that intention from the Bill may bear. Such delicate negotiations will be successful only if they are conducted in a spirit of complete mutual trust. If it is the intention to pay fair remuneration, for goodness sake, let us say so. The provision has been on the statute book since 1974. I do not accept that the presence of those words has given any trouble in the past. Let us have them again, filled out in the way that the noble and learned Lord the Lord Chancellor has proposed to give guidance on some of the ingredients that they embrace.
4 p.m.
Lord Wigoder: My Lords, I, too, support the amendment. I must make it clear that I have no interest to declare. I mention that fact simply because the last time I made a similar observation during the Bill's progress, it was inadvertently transposed in the Official Report that I did have such an interest to declare. I have no such interest.
What is in issue here is a point of principle and not a question of semantics. We are not concerned with the difference between "having regard to" and "having regard for". We are not concerned as to whether fair means reasonable or whether reasonable means fair and what each adjective may, or may not, add to the other. We are concerned with an elementary situation which I can put forward in this way: if I were to say point blank to the noble and learned Lord the Lord Chancellor, "Do you favour paying the legal profession for legally aided work fair

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and reasonable remuneration?", he would say, "Yes, of course". There is no other answer he could give or could possibly wish to give.
Let us start with that simple proposition. Let us go on to say that it is an obligation accepted by previous noble and learned Lords who have occupied the Woolsack for some 14 years. Let us realise that after those 14 years the principle has suddenly been abandoned in the Bill. The noble and learned Lord the Lord Chancellor must know the deep unhappiness that has spread throughout the whole of the legal profession—the Bar and the solicitors—as a result of its sudden and totally unexpected omission. Various reasons have been given for the omission. Conjecture has run rife, but no explanation has so far been given that has satisfied the legal profession.
The principle has been accepted for 14 years. I have no doubt that the noble and learned Lord the Lord Chancellor would accede to it at once and without any hesitation. I ask the noble and learned Lord what purpose is served by his beginning what we all know will be a distinguished tenure of office as Lord Chancellor at odds with a united legal profession on a principle which has existed for all that time? No purpose is achieved and nothing will be gained by such an omission.
I suspect that eventually there will be arguments about particular words in the Bill. If that is the view that the noble and learned Lord the Lord Chancellor takes, and it may well be, and if he were to indicate that he is willing to come back on Third Reading with an amendment that accepts the principle, but with the wording modified slightly to meet some of the points that have been made, I have no doubt that the noble and learned Lord, Lord Ackner, would accept that situation. That a widely accepted principle should disappear, causing such dissatisfaction among the whole profession, is something I am sure the noble and learned Lord the Lord Chancellor does not desire. Therefore I ask him to accept the amendment or to recognise, in principle at any rate, that the provision is acceptable and should be brought back at a later stage.
Lord Mishcon: My Lords, I rise briefly to emphasise one aspect possibly lost sight of during what the House may feel has been an argument on words. The noble and learned Lord, Lord Hailsham, to whom we always listen with delight—sometimes also with approval—said that he could not see the difference between the words "fair" and "reasonable". Much of the time of the House was taken in listening with enjoyment to that part of his speech on semantics. I would most respectfully say to the noble and learned Lord that although I thought his speech was fair, in that not one remark was aimed below the solar plexus, I did not think it was reasonable. Therefore, from my remarks, he may possibly detect that there is a slight difference between the meaning of those words.
Lord Hailsham of Saint Marylebone: My Lords, what I said was said in this context and not in some other context.
Lord Mishcon: My Lords, so be it. I should have thought that there was also some slight differentiation in this context. However, I hope that the House will not be misled into thinking about words and will return to thinking about principles. It is in that connection that I said that I wanted to emphasise something. The one result that the House would not want to see as a consequence of the Bill's passage is two classes of lawyers—first, the good and experienced ones who receive the type of fee mentioned in subsection (6)(a),
"the time and skill which it requires"
followed by subsection (6)(b),
"the general level of fee income arising from it".
The second category would be those lawyers who do not have the experience and skill of the first class of lawyers, and who are prepared to accept (because they are not professionally busy) a lower standard of fee for the work which they do. It will mean not only two classes of lawyers but two classes of justice.
In those circumstances, I go back to the principle which has been emphasised and underlined by those who are much more eloquent and persuasive than I can be. Up till now, as has been said, we have been content with this standard. It was a standard which was dealt with by the noble and learned Lord, Lord Hailsham, in his own view about the proceedings which took place last year. I do not intend to comment on those proceedings. I was not privileged to be behind this curtain of mystery which appears to have overlaid the negotiations, nor the order for costs or whatever it was. I hope the House will not be beguiled into trying to peep behind that curtain.
If this amendment is passed, it is mandatory that fair and reasonable remuneration should be one of the factors which the noble and learned Lord the Lord Chancellor must take into account. The message to my profession is that if this amendment is passed, we shall, I hope, be a united profession in trying to make the legal aid system work with the best possible members of our professions dealing with it. If the amendment is not passed, another message goes out to my profession which I think would be deplorable.
4.15 p.m.
The Lord Chancellor: My Lords, in seeking to deal with this amendment as fairly as I can, I should like to make it abundantly plain that in my opinion a proper basis for negotiation with the legal profession on the remuneration to be paid to the profession for publicly-funded work under the legal aid fund is that the formula should be clear, should be plain and should be capable of application to the problems in hand.
Until now, first in relation to criminal legal aid (I think in 1967) and then in a consolidating statute in 1974 the phrase "fair remuneration for work actually and reasonably done" was used. It is immediately apparent to your Lordships that that formulation was in reference to work already done. The question had to be asked: first of all, had it actually been done? Strange that the legal profession should require a formula of that kind that remuneration might be demanded for work which had not been done. But

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that is in the formula; the work must actually be done first of all.
Then it must be reasonably done. Somebody must have thought that there was a possibility that the lawyer might do work which was not reasonably required. Why should the taxpayer pay for that? Therefore it said, "fair remuneration for work actually and reasonably done". That is in the nature of a formula which would be applied once the work was finished.
Of course, much depended on who was paying for the work. The question in issue in the particular decision was whether the client was paying for the work. It might be fair for the client to pay more than it would be fair to charge the opposing party. That is why there is a distinction between taxation determination as between party and party on the one hand, and as between solicitor and client on the other hand, the first of these now being replaced by the standard basis to which my noble and learned friend, Lord Ackner, referred. So this arises out of ex post facto judgment on fees actually charged in relation to work which was done. These questions arose in connection with it. These were matters for professional people to submit for judgment.
The noble Lord, Lord Benson, in his remarks (to which I listened with interest) was surprised that anyone should occupy the Woolsack who did not understand what was meant by "fair". In Committee I certainly asked the question: what is meant by "fair" in this context? I believe that I have some understanding—not as much as I should like —of what is meant by fairness in relation to judicial proceedings. I have endeavoured to act in accordance with that understanding and sought to improve it as years have gone on. But it is very important in this situation to have matters upon which we may be agreed as the foundation of successful negotiations. I believe there is nothing better as a foundation for successful negotiations with the Bar and the solicitors' branch of the legal profession than clear and precise formulation by Parliament of what should be in mind.
When I came into office I reviewed the situation which had existed in the years before I came about this matter. I discovered that before any progress could be made in these negotiations in the past, what had to be done was to identify factors to be taken into account for identification as the basis of progress. It was when these factors were isolated and determined as between the parties that progress in the negotiations started.
Perhaps I may put it in a simple example. Supposing the question is: what is fair remuneration for an hour of paperwork? The Bar, let us say, might suggest £40. I might think: Well, what about £30? What is the next step? The test is fairness. Is £30 or £40 the fair figure? We could argue about that for quite some time. But what we want to do is to make progress, therefore we see what it costs the person in question to give this service. He has to make arrangements to do the paperwork; he has to get some type of assistance; for example, in typing and that sort of thing. He has outlays. He has a cost which
28
he must bear. When that is isolated, we have to think what is left for him. Has he anything left? Is there something left which can be identified in relation to that item? Then we say, "But there is more to it than that. How much paperwork can he be expected to get through? What will this give him in respect of his professional qualifications and the like?" These factors which I have set out fully in this Bill are derived from what took place in the past by way of negotiation.
I certainly intend that these regulations should, among other things, fix rates in advance of the work being done so that the profession will know plainly and clearly what the rates are to be in the vast majority of cases or at least in a sufficient amount of cases to make it worthwhile to proceed in this way. This I believe is very important: that the legal profession, like so many others, should know in advance what the rates are to be, and that the public purse paying for them, just as the private client, should know in advance at least to some extent what will be involved in instructing this work and in taking on this responsibility. Why should it all have to be left to be determined after the work is done, after the work is finished? Then and only then can we reach a figure for remuneration.
So the purposes for which this is applied are not only as a basis of taxation, ex post facto, for work done, but also in determining the rate for work to be done. My noble and learned friend Lord Ackner, with his customary courtesy, has recognised this point and has put it into his amendment, although I am not absolutely clear whether the words "actually and reasonably" apply for the future as well as the past. That must be a matter for clarification. It may be my fault, but it is a little difficult to apply that to the future, at least to be clear in relation to its future application as stated.
However, there is another point. I believe that it is an advance if we can move to standard fees, fees which are to comprehend a particular type of case, not necessarily by reference to the precise work done in each case: for example a standard fee for a criminal case in the Crown Court lasting not more than three days. We should be able to arrange a basic standard rate for the brief fee and for refreshers in such a case.
Now of course two cases in the Crown Court which are covered by that standard fee might in the nature of things involve different amounts of work but yet that would be reasonable because otherwise one has to have detailed examination of the fees in every case, and the result of that is that money which might otherwise go to the legal profession for maintenance of the service will be taken up in finding out whether the fees are right. Surely there is an advantage from the point of view of the profession in that. In so far as we have introduced this measure already under the initiative of my noble and learned friend Lord Hailsham of Saint Marylebone it has worked very satisfactorily.
The standard fee system in criminal trials is something like 18 months old. It is a little early to say exactly how it will work but it is necessary to maintain that kind of flexibility. The words:
"work actually and reasonably done".

29
refer to actual detailed provision and specification of work. I doubt very much whether that formula is particularly apt for this particular situation. However the essential matter that I am putting forward to your Lordships and to which I attach a good deal of importance is that we want a clear formulation of the test to be applied to the remuneration.
My noble and learned friend Lord Ackner seeks to add to what I have done in the way of putting out factors. Those factors are open for consideration. There has not been a lot of criticism of them to date, with the exception of one to which I should like to draw particular attention. I shall do that in a moment. To those factors are to be added the words, shall:
"have regard to the principle of … fair … remuneration [for] work actually and reasonably done or to be done and shall in particular have regard".
I was interested that the noble Lord. Lord Mishcon, interpreted that amendment in his remarks to your Lordships as meaning that the principle of fair remuneration is one of the factors which must be taken into account in the consideration of reasonable remuneration under these regulations. I think that I noted him correctly in that. That just goes to show how inappropriate it is to try to go back, as my noble and learned friend Lord Hailsham said, and put the clock back instead of trying to express in detail and analyse what is meant by "fair remuneration". One should not try to go back to adopting this very general expression which in a sense means all things to all men depending on which side of the negotiations one happens to be. That is the last thing that one wants if one wants a basis for negotiations which is likely to be successful.
The noble Lord, Lord Benson, said, and I accept, that the word "fair" arises in many contexts. The words "true and fair view" have appeared on certificates of accounts for generations, although one must add that that is hacked up by a very large number of detailed regulations which he knows much better than I do. But in this particular situation we are trying to set out in the statute plain, workable criteria for determining remuneration. In my view the words fair remuneration for
"work actually and reasonably done",
were all very well as a general statement of principle. Indeed that is what the amendment claims for them. But when it comes to getting down to brass tacks and getting remuneration negotiations on foot one must apply the principle by determining what the factors are. That is what I have done. I am a stage past talking about the principle. I am seeking to apply that principle by isolating the important factors.
As I said on Second Reading and as I repeat now, I am very open to suggestions for improvement of these factors. We shall have some discussion on some of them in a moment. That is perhaps rather an underestimate but we shall have discussion in due course. I am very amenable to improving those factors, to making them as comprehensive, as accurate and as acceptable as possible. But I regard it as a sad step hack to return from the isolation of these factors, which constitute fairness, to setting out,
30
as it were, a vague principle again as the basis for the remuneration of the legal profession.
There is one particular factor which I wish to mention because it is very important to this matter. That is the factor which I have described as:
"the cost to public funds of any provision made by the regulations".
That is factor (f) in the Bill. As I understood it, although I shall be corrected no doubt if I am wrong, there was much question as to whether it was fair to introduce that provision. That is open to argument. Your Lordships will hear argument in the course of debate on a later amendment that it is not fair to include that factor. But the question of whether it is fair or not certainly exists. I maintain that in the circumstances with which we are dealing here it is fair. But there is certainly a question about that.
If one introduces the word "fair", which is the foundation of that argument, into the opening words of the provision, one immediately obscures and undercuts the decision that one has already taken about whether that particular factor is to be introduced. I say that the underlying principle by which these factors are determined is the principle of fairness. It is obscurantist to put the principle in when one has got past that stage and is seeking to apply it.
I certainly consider, as my noble and learned friend Lord Hailsham said, that the position of Lord Chancellor in this matter is not a particularly easy one. But I regard it as fundamental to the success of his position. I do not of course guarantee success for myself personally but I am thinking about the office and the position. It is fundamental to that to have a clear, precise, determinate list of factors as the basis for these remuneration regulations. It is for that reason that I resist and invite your Lordships not to accede to this particular amendment.
4.30 p.m.
Lord Ackner: My Lords, I wish to make it perfectly clear that I am not adding a factor or seeking to add a factor by my amendment. I am putting the horse where it should be by defining the obligation, and after the obligation is defined then, as is frequently the case, one identifies some of the major relevant factors.
If noble Lords will study Clause 32(6), it will be seen that the last few words refer to matters "he considers appropriate". Those words are to be omitted in the next amendment to be moved, and in their place are to be inserted the words, "which are relevant". How does one determine the relevance of anything without first defining the object? The words I seek to retain so that that statutory obligation continues are the current definition of the obligation.
I do not wish to decry anything that the noble and learned Lord the Lord Chancellor has done by setting out certain relevant criteria, but do not let us imagine that there is any novelty about it. In 1986 the Lord Chancellor's Department provided a definition in a document dated 8th April, under the heading:
"Matters to which the Lord Chancellor proposes to have regard in making the criminal legal aid regulations".
It goes on:
"The Lord Chancellor's statutory duty is to have regard to the principle of allowing fair remuneration according to work actually and reasonably done".

31
Now mark these words:
"In the exercise of that duty he considers it proper to have regard to various matters, including the following".
One finds in the Bill the substance of what is in that document. So there was available to work (and they did work) side by side with the statutory obligation, properly defined, the various relevant factors identified two years ago but now put in on their own without first defining the obligation.
I have had the privilege of attending your Lordships' House at all stages of this Bill. I have appreciated, as most of us have, that the noble and learned Lord the Lord Chancellor is not in a giving vein. That is a criticism of his brief; it is totally inconsistent with his personality. Since that vein is going to continue, I have no alternative but to take the views of the House on what is a very important, albeit a very modest, amendment.
4.33 p.m.
On Question, Whether the said amendment (No. 46) shall be agreed to?
Their Lordships divided: Contents, 85; Not-Contents, 115.

DIVISION NO. 1

CONTENTS

Ackner, L. [Teller.]

Llewelyn-Davies of Hastoe, B.

Ardwick, L.

Longford, E.

Attlee, E.

Lovell-Davis, L.

Aylestone, L.

McNair, L.

Basnett, L.

Mason of Barnsley, L.

Benson, L.

Milford, L.

Blease, L.

Mishcon, L.

Bonham-Carter, L.

Molloy, L.

Brightman, L.

Mulley, L.

Briginshaw, L.

Nicol, B. [Teller.]

Bruce of Donington, L.

Peston, L.

Carmichael of Kelvingrove, L.

Phillips, B.

Carter, L,

Pitt of Hampstead, L.

Cledwyn of Penrhos, L.

Rea, L.

Cocks of Hartcliffe, L.

Reilly, L.

David, B.

Renton, L.

Dean of Beswick, L.

Ritchie of Dundee, L.

Diamond, L.

Ross of Marnock, L.

Donaldson of Kingsbridge, L.

Seebohm, L.

Edmund-Davies, L.

Sefton of Garston, L.

Elwyn-Jones, L.

Serota, B.

Ezra, L.

Shackleton, L.

Falkland, V.

Shannon, E.

Fisher of Rednal, B.

Shepherd, L.

Fletcher, L.

Somers, L.

Foot, L.

Stallard, L.

Gallacher, L.

Stedman, B.

Galpern, L.

Stewart of Fulham, L.

Glenamara, L.

Stoddart of Swindon, L.

Greenhill of Harrow, L.

Strabolgi, L.

Grey, E.

Strauss, L.

Griffiths, L.

Taylor of Blackburn, L.

Hampton, L.

Taylor of Mansfield, L.

Hatch of Lusby, L.

Templeman, L.

Hirshfield, L.

Thomas of Gwydir, L.

Hylton-Foster, B.

Tordoff, L.

Irvine of Lairg, L.

Underhill, L.

Jeger, B.

Wallace of Coslany, L.

John-Mackie, L.

White, B.

Kilbracken, L.

Wigoder, L.

Kilmarnock, L.

Wilberforce, L.

Leatherland, L.

Wilson of Rievaulx, L.

Listowel, E.

32

NOT-CONTENTS

Ailesbury, M.

Hunter of Newington, L.

Allerton, L.

Jessel, L.

Alport, L.

Johnston of Rockport, L.

Ampthill, L.

Kearton, L.

Arran, E.

Killearn, L.

Auckland, L.

Kinloss, Ly.

Bauer, L.

Kinnaird, L.

Beaverbrook, L.

Lauderdale, E.

Belhaven and Stenton, L.

Long, V.

Beloff, L.

Lucas of Chilworth, L.

Belstead, L.

Mackay of Clashfern, L.

Bessborough, E.

Macleod of Borve, B.

Blatch, B.

Manton, L.

Blyth, L.

Mar, C.

Boyd-Carpenter, L.

Margadale, L.

Brabazon of Tara, L.

Marley, L.

Brougham and Vaux, L.

Marshall of Leeds, L.

Butterworth, L.

Merrivale, L.

Caccia, L.

Mersey, V.

Caithness, E.

Milverton, L.

Cameron of Lochbroom, L.

Minto, E.

Campbell of Alloway, L.

Morris, L.

Carnock, L.

Mountgarret, V.

Chelwood, L.

Mowbray and Stourton, L.

Coleraine, L.

Munster, E.

Colwyn, L.

Murton of Lindisfarne, L.

Cottesloe, L.

Nelson, E.

Crickhowell, L.

Nugent of Guildford, L.

Croft, L.

Orkney, E.

Cullen of Ashbourne, L.

Orr-Ewing, L.

Davidson, V. [Teller.]

Oxfuird, V.

Denham, L. [Teller.]

Pender, L.

Derwent, L.

Peyton of Yeovil, L.

Dundee, E.

Plummer of St Marylebone, L.

Eccles, V.

Porritt, L.

Elibank, L.

Pym, L.

Elliot of Harwood, B.

Rankeillour, L.

Elliott of Morpeth, L.

Reay, L.

Erroll of Hale, L.

Renwick, L.

Faithfull, B.

Richardson, L.

Ferrers, E.

Rodney, L.

Foley, L.

Saltoun of Abernethy, Ly.

Fortescue, E.

Sandys, L.

Fraser of Kilmorack, L.

Selkirk, E.

Gainford, L.

Skelmersdale, L.

Gardner of Parkes, B.

Southborough, L.

Glenarthur, L.

Stevens of Ludgate, L.

Gray of Contin, L.

Stockton, E.

Gridley, L.

Strange, B.

Grimthorpe, L.

Strathspey, L.

Hailsham of Saint

Swansea, L.

Marylebone, L.

Swinfen, L.

Havers, L.

Terrington, L.

Hayter, L.

Thurlow, L.

Henderson of Brompton, L.

Trumpington, B.

Hesketh, L.

Westbury, L.

Hood, V.

Wise, L.

Hooper, B.

Wynford, L.

Resolved in the negative, and amendment disagreed to accordingly.

War Crimes
4.40 p.m.
The Minister of State, Home Office (Earl Ferrers): My Lords, with the leave of the House I shall now repeat a Statement on war crimes committed during the Second World War which is being made in another place by my right honourable friend the Home Secretary.
"The House will be aware of recent allegations that suspected war criminals have found haven in this country. Lists of names have been sent to us by the Simon Wiesenthal Center and others. Inquiries conducted by my department suggested that some

33
of the people named are still living in this country and we undertook to consider what action, if any, should be taken.
"The legal position is as follows. We would normally deal with alleged crimes in foreign countries by way of extradition. However, all the cases in question relate to crimes committed in territories now controlled by the Soviet Union, with whom we have no extradition treaty. Nor do the courts in the United Kingdom at present have jurisdiction to try offences of murder and manslaughter committed abroad when the accused was not a British citizen at the time of the offence. If we were to prosecute in these cases we should need to legislate to extend the jurisdiction of our courts.
"The passage of time does not lessen the horror with which we now read about wartime atrocities, but it does inevitably complicate the investigation of any allegations which might be made.
"I decided that it was impossible to take this issue forward without a better idea of what evidence existed. I therefore asked the Simon Wiesenthal Center to provide evidence to substantiate the allegations. In July of last year the center provided us with a large quantity of documentary material. This material contained serious allegations against a number of people. The material was carefully considered within Government. Our conclusion was that as it stood the material would not be sufficient to support a criminal prosecution, even if there were jurisdiction.
"In the circumstances it is clear that further work has to be done. I have therefore decided to appoint an independent inquiry to examine material relating to the allegations, to conduct interviews—possibly including interviews in the Soviet Union—and to consider the likely value of the evidence which could become available to United Kingdom court proceedings. In the light of its assessment, the inquiry team will advise whether the law should be amended in order to take jurisdiction over crimes allegedly committed overseas by persons now resident in this country. In the event of such a change it would be for the prosecuting authorities to decide, after such investigations as they may think necessary, whether any action should be taken in individual cases. I have placed the inquiry's full terms of reference in the library. I am very grateful that Sir Thomas Hetherington, the former Director of Public Prosecutions, and Mr. William Chalmers, the former Crown Agent in Scotland, have agreed to undertake the inquiry.
"All of us who have considered these matters recognise that they are intensely difficult. The allegations are very serious and must be pursued. However, I do not believe that the material now before us would justify me in proposing to Parliament a change in the law. The inquiry which I have announced will enable us to form a clearer view of the weight to be given to the allegations, and will enable us to determine whether it would be
34
right to propose a change in the law to extend the jurisdiction of the courts."
My Lords, that concludes the Statement.
Lord Elwyn-Jones: My Lords, the House will be grateful to the noble Earl, Lord Ferrers, for repeating the Home Secretary's Statement on this intensely painful matter, which will revive painful memories for many of us.
Very serious allegations have been made by the Simon Wiesenthal Center in America and others against persons living in this country. Those allegations are in respect of the alleged commission of war crimes by some of those persons during the Second World War. In that situation it is right that there should be full inquiry into the allegations and investigation of evidence that has already been obtained and any other available information. To achieve that, there must clearly be an independent inquiry. On this side of the House we welcome the Statement and the proposed inquiry.
That inquiry will have the task of examining and weighing the material relating to the allegations that have been made against those who have been able to find haven in this country. They may be innocent or they may not, but it is a matter that calls for the most serious examination. The evidence to be considered will presumably include information already collected by the Wiesenthal Center, which of course must be examined and weighed for the strength or weakness that it may present.
It is a task which will be familiar to the two distinguished public servants who are to conduct the inquiry, Sir Thomas Heatherington, the former Director of Public Prosecutions, and Mr. William Chalmers, the former Crown Agent in Scotland. It has already been indicated in the Statement by the noble Earl, Lord Ferrers, that they will be given every facility to perform their task both in this country and abroad. It is a very heavy responsibility and upon their judgment must depend a very great deal.
Lord Wigoder: My Lords, I too, am grateful to the noble Earl, Lord Ferrers, for repeating the Statement. Perhaps I may say at once that at this stage there can certainly be no question of this matter being in any way a party political issue.
I welcome much of what is contained in the Statement, but I hesitate a little over the suggestion at the beginning of the first paragraph that:
"The House will be aware of recent allegations".
As I understand it, the allegations now go back certainly many months and it may well be some years. I should be grateful if the noble Earl, Lord Ferrers, could indicate on what date the Government first became aware that allegations of this nature were being made. I should not want it to be thought—and I am sure the Government would not want it to be thought—that they had been in any way dilatory in pursuing this matter.
I accept that there may well be problems concerning both jurisdiction and the obtaining of evidence. It may well be that the appointment of the two distinguished public servants named in the Statement will help to resolve the problem of

35
evidence. Have the Government considered going back yet again to the Wiesenthal Center to see if they can resolve some of the problems about the further evidence, because it may be that it has facilities for obtaining evidence perhaps even more efficiently and effectively than Sir Thomas Hetherington and Mr. Chalmers?
Finally, I welcome without reservation the clear indication in this Statement that appalling wartime atrocities will not be forgiven nor forgotten however many years elapse, and that, if and when evidence becomes available, the Government will be quite unrelenting in bringing the alleged criminals to trial.
Earl Ferrers: My Lords, I am very grateful for the reaction of the noble and learned Lord, Lord Elwyn-Jones, and the noble Lord, Lord Wigoder. As we know, the noble and learned Lord, Lord Elwyn-Jones, is a person who is a great expert on these matters, having been a prosecutor at the Nuremberg Trials. What he has said is of great importance. When he said that these issues bring back painful memories, he struck a chord which will evoke sympathy throughout the House and indeed throughout the country. They are very painful memories indeed.
The noble Lord, Lord Wigoder, asked when we had the information about this. He queried the use of the word "recent". The list of the names which was received from the Simon Wiesenthal Center contained unsubstantiated and often generalised allegations. It did not form an adequate basis for a decision and my right honourable friend invited the center to substantiate its allegations. In July last year it gave us a large amount of material in relation to a few people. Since then we have subjected the material to legal analysis and have been considering the implications.
This is a difficult matter because the public interest considerations do not all point in the same direction. The noble Lord, Lord Wigoder, says that he hopes the Government will take the necessary action to prosecute people. I can only say to him that it would be wise to await the outcome of the inquiry. At present we in this country do not have the legal facilities to prosecute. If that were to be necessary then it would require a change in the law. That in itself would bring forward some fairly hefty implications.
Lord Mason of Barnsley: My Lords, as an official of the House of Lords and House of Commons War Crimes Group, perhaps I may say on its behalf that we do not wish to see a witch-hunt in this affair. It would be totally wrong to allow such an atmosphere to be generated. However, in view of the growing suspicion about the numbers of Nazis, however small, who may be in the United Kingdom, and who may have been concerned with the Holocaust and mass persecution of the Jews, it is right that the air should be cleared. I hope therefore that it will be a quiet, low-key, but nevertheless deep inquiry. May I ask the noble Earl whether the report will be published and therefore available for debate?
Earl Ferrers: My Lords, I agree with the noble Lord, Lord Mason, that it should be a quiet, low-key inquiry. That indeed is what we hope it will be. It will be necessary to wait and see the report of the inquiry before I can say in what way the results will be made public.
Lord Hailsham of Saint Marylebone: My Lords, has my noble friend any idea of the time factor likely to be involved? He obviously cannot give any undertaking, but one wishes to know the period of time that is contemplated as a possibility before the inquiry may be concluded.
Lord Ferrers: My Lords, our anticipation is that it will be in about a year's time.
Lord Wigoder: My Lords, will the noble Earl be kind enough to answer the first query that I raised about the date when the Government first heard of the unsubstantiated allegations?
Earl Ferrers: My Lords, I am so sorry. It was in fact in November 1986.

Legal Aid Bill [H.L.]
4.55 p.m.
Consideration of amendments on Report resumed on Clause 32.
The Lord Chancellor The Lord Chancellor moved Amendment No. 47:
Page 27, line 27, leave out ("he considers appropriate") and insert ("which are relevant").
The noble and learned Lord said: My Lords, this amendment follows Amendment No. 45. It deletes the phrase "he considers appropriate" and inserts the phrase "which are relevant". This is an attempt on my part to secure good will, to which my noble friend Lord Renton referred, in making it clear that the standards to be used are standards which are not particular to me. The phrase "he considers appropriate" was thought to be too subjective and on reconsideration I have thought it right to put forward a more objective formulation. I beg to move.
Lord Ackner: My Lords, I have only one inquiry to make. By reference to what is it proposed to decide whether something is relevant? Is it by reference to fairness or to some other concept? If so, what?
The Lord Chancellor: My Lords, in my judgment what regulates the question of what is relevant is the context in which this phrase occurs. It is a determination of remuneration. Therefore everything that is in the judgment of a court—if it has to decide—that is properly relevant to determination of remuneration in the circumstances of the case will in my view be appropriate to be taken into account.
Lord Elwyn-Jones: My Lords, in my view the requirement "which are relevant" is more attractive than stating that the Lord Chancellor is entitled to have regard to them. The Lord Chancellor would be entitled to disregard them entirely if those words remain. The amendment proposes that it is a

37
mandatory duty to consider "matters which arc relevant". That seems to me to be a more satisfactory position than leaving the matter to the subjective judgment of what the Lord Chancellor considers to be appropriate. I therefore support the amendment.
Lord Benson: My Lords, like the noble and learned Lord, Lord Ackner, I have one point of inquiry. If the amendment is agreed, will the noble and learned Lord the Lord Chancellor be kind enough to tell us this. When he has had regard to the factors, is it the intention to fix fair or unfair remuneration for the legal profession?
Lord Hailsham of Saint Marylebone: My Lords, before my noble and learned friend replies, am I right in thinking—and if I am not right I should like to be corrected—that, by substituting "relevant" for "he considers appropriate", my noble and learned friend—if one reverts to something that was said in a previous debate by my noble and learned friend Lord Ackner— has made himself subject to judicial review.
The Lord Chancellor: My Lords, my understanding is that a clause of the kind that we have in this Bill would certainly make the Lord Chancellor open to judicial review in decisions that he took under it. However, the doubt was expressed by my noble and learned friend Lord Ackner and others, including the noble Baroness Lady Seear, that the way in which it was expressed might have the effect of making a successful judicial review unnecessarily difficult because of the phraseology. I am anxious to make it as plain as possible that it is intended to exercise this clause in a fair and proper manner.
Reverting in a sense to the previous amendment, the noble Lord, Lord Benson asks whether it is my intention to fix fair or unfair remuneration. I expect the clause to produce a result which persons viewing the matter objectively would regard as fair remuneration to the legal profession, having properly taken into account all the relevant factors, including the factors expressly stated in the clause.
On Question, amendment agreed to.
5 p.m.
Lord Mishcon Lord Mishcon moved Amendment No. 48:
Page 27, line 34, at end insert ("and whether competent barristers and solicitors will continue to undertake the work").
The noble Lord said: My Lords, having regard to the previous debate and the speeches that were made in it, I can summarise the reason for this amendment in very few words. In the contribution that I tried to make to that debate I endeavoured to say that I am sure the House would want to avoid there being two sets of lawyers who would be doing legal aid work and work that was not legal aid. Therefore, one of the considerations must be whether the rate of remuneration that was being paid was such that competent lawyers could not be expected to do it unless they were being asked to be charitable in connection with this work or indeed—as is happening in many legal aid firms throughout the country—that they find themselves in financial difficulties as a result of doing legal aid work.
The noble and learned Lord the Lord Chancellor mentioned just now the words "fair and proper" as the considerations that he would take into account. They are enumerated here. I should have hoped that he could have accepted this amendment as one of relevant factors that he should have in his mind when fixing remuneration. I beg to move.
Lord Ackner: My Lords, I moved this amendment at Committee stage. Obviously the lateness of the night gave me too great a sense of relief that my noble and learned friend the Lord Chancellor was going to accept the concept. In Hansard (at col. 185) my noble and learned friend said on 19th January:
"At this time of night and having regard to what I said in respect of the earlier amendment, I shall certainly take this matter into account".
I had assumed that this was an undefended amendment, so to speak. Apparently it is not. In the spirit of total conciliation, I quote another observation made by my noble and learned friend Lord Hailsham in the debate on 16th June 1986. This is what he said:
"It is of course right that it is wholly in the public interest that the Bar and the solicitors' profession should continue to attract and retain a sufficient number of competent practitioners in the criminal as in other fields".
It was doubtless for that reason that he included in the items that he set out in the paper dated 8th April 1986 (to which I have drawn reference) this as item No. 5:
"whether competent people are continuing to be attracted to and retained at the Criminal Bar in sufficient numbers".
One deletes the Criminal Bar because this is an overall point. Bearing in mind the reaction of my noble and learned friend the Lord Chancellor in Committee, albeit at approaching midnight, hearing in mind the list which contains this point under the heading "Lord Chancellor's Department 8th April 1986" and even bearing in mind what my noble and learned friend Lord Hailsham (when Lord Chancellor) said in the debate to which I have referred, I cannot for the life of me see now what is in contest on the matter.
Lord Mishcon: My Lords, before the noble and learned Lord sits down, I apologise to him for my seeming lack of courtesy in not referring to the fact that it was he who moved the amendment at Committee stage. I had forgotten that.
Lord Ackner: My Lords, I join my noble friend, not in any way to suggest that I am in favour of any undivided profession—divided profession is firmly my view—but in order to make sure that both our weight was leant to what I should have thought was a simple amendment which should be granted.
The Lord Chancellor: My Lords, as I undertook to consider this, I have done so carefully since we debated it at Committee stage. There is a slight difficulty in the wording of the amendment proposed in relation to "competent barristers and solicitors". Precautions are taken by both branches of a united profession on this matter to ensure competence in the

39
members of the profession. Barristers and solicitors are to be competent. What I believe is in question here is the competence or special qualifications for the particular level of work. The problem that has been pointed to is that I assume the question is whether, if the remuneration is fixed at a certain level, one will get people of the necessary experience. I hesitate to use the word "expertise" in view of the expressions of my noble and learned friend Lord Hailsham upon that on the last occasion. But we need to get people of the necessary skill and experience to undertake the work. I had understood that that is the flavour of what is wanted.
Having considered that, I believe it is catered for in paragraph (d) where I have tried to relate the question to the general level of competence to the particular work. I may not have succeeded, but that is the intention. The intention of paragraph (d) in this context is that I should be obliged to consider whether a certain level of fee will attract a sufficient number of people of the general level of competence required for that work. That is the idea and it is expressed in the manner that parliamentary counsel have here used. I believe it covers the point.
To suggest that there are incompetent barristers may not be wise. I know that my noble and learned friend did not intend that and neither did the noble Lord, Lord Mishcon; but I believe that the point they are seeking to make in the amendment is covered by paragraph (d).
Lord Renton: My Lords, it seems to me that the use of the word "number" in the Bill makes the amendment unnecessary, if I may say so with respect. Bearing in mind that the word "number" of barristers and solicitors undertaking the work means that, for us to add,
"and whether competent barristers and solicitors will continue to undertake the work"
simply makes it tautologous and repetitious. So I should not support the amendment.
Lord Mishcon: My Lords, subject to any observations, while I am still on my feet, that the noble and learned Lord, Lord Ackner, may care to make before I resume my seat, I endeavour to answer the noble and learned Lord. I remember that the noble and learned Lord, Lord Ackner, used the phrase, which is not unknown, of the cart being put before the horse. If I may say to the noble and learned Lord the Lord Chancellor on this occasion I believe that his observations seem to be putting the cart before the horse. I say that for this reason. The wording of paragraph (d) seems to me to mean that the Lord Chancellor, when fixing remuneration, will consider the number and general level of competence of barristers and solicitors who are undertaking the work for legal aid. That is a very different matter from the amendment which I had the privilege of moving —copying, as I have now made it clear with an apology—the amendment that was previously moved by the noble and learned Lord, Lord Ackner. That is not what we want: a view, as it were, after the event as to the number and competence of barristers and solicitors who may be undertaking that specific
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type of work. What we want to do is to see that the remuneration scale that is fixed will attract competent solicitors and barristers both by way of number and competence to undertake that work.
If the noble and learned Lord the Lord Chancellor does not like the word "competence" and says that he prefers the expression "those of sufficient skill and experience" instead of the word "competence" I am perfectly sure that there would be no objection to the use of suitable phraseology. If he will forgive me, his answer that the amendment is covered by subsection (6)(d) must surely not be correct for the reason that I have tried to give.
The Lord Chancellor: My Lords, with the leave of the House, the intention of including paragraph (d) is to cover this point. If I have not done that correctly it may be necessary to alter the paragraph. With respect to the noble Lord, Lord Mishcon, what he has said leaves out of account the fact that the regulations relate to the future. In other words, I am making regulations for remuneration for work to be done. They will affect work done after they come into force and I look to the number and general level of competence of barristers and solicitors undertaking the work. The idea is that I must produce a level of fees in relation to a particular type of work which will provide the number and general level of competence of barristers appropriate for that work.
Lord Mishcon: My Lords, with the leave of the House, although strictly I had not resumed my seat, I am grateful to the noble and learned Lord for his courtesy in answering my argument. I hope that he will forgive me for saying that I am not in the slightest degree convinced by it. It would be a perfect argument if we were starting a legal aid scheme in 1988. It would then be right that one would look ahead, see the number of people who are competent to do the work and then fix a fee for the future.
Unfortunately, the situation is that because of the low fees which are now being paid in legal aid, the noble and learned Lord will not obtain a proper picture of the competence and number of people who ought to be carrying out the work if he looks now at the number and the competence. I say that perfectly frankly. One wants to see the legal aid scheme work properly with a sufficient number and sufficient competence, skill, or experience —whatever word one wishes to use. Our amendment is different from paragraph (d) in that the noble and learned Lord ought to take into account the number, the competence, and the standard that should be required in any field of legal work. He should then say: "In order to attract that number and obtain that competence, experience and skill, this ought to be the fee".
If the noble and learned Lord is saying that that is what he meant to achieve in paragraph (d), I should like to consider—and, in order to assist me, I should like my noble and learned friend Lord Ackner, also to consider —whether the substitution of the amendment that we are now moving would possibly answer that point. I am looking to the future based on the need to obtain both numbers and competence, and to pay a proper remuneration in order to achieve that.
Lord Ackner: My Lords, with the leave of the House, having regard to the paternity which is now conceded in regard to the amendment, I should like to explain in a sentence or two how it was included in the Lord Chancellor's Department's list of relevant factors on 8th April, 1986. The Bar was saying, as was said in the debate in June, 1986, that people are no longer coming to the Bar because they are put off. Unless they are high-fliers who can carry out privately funded commercial work, they are not coming to the Bar. Those who are now at the Bar are doing their best to move away from the main publicly-funded criminal work and into civil work. The anxiety was felt that, although there are now enough people to carry out the work, because they cannot all leave the profession and find other employment, they will not enter from the universities because the professors and the profession will say that if one is thinking of coming to the Bar to undertake criminal or matrimonial work, all of which by and large is publicly-funded, one should think again. That is the point we are seeking to make and it is why the Lord Chancellor's Department has identified it as being one of the relevant factors.
The Lord Chancellor: My Lords, with the leave of the House, all I can say is that in my view a proper working of Clause 32(6)(d) will have the effect of making that a relevant consideration. If the noble Lord, Lord Mishcon, has in mind particular examples of work being done by persons of inadequate competence under the legal aid scheme, I should be glad to have details of that. However, at the moment we are seeking to set up a general framework. The purpose of paragraph (d) is to take account of the nature of the work so that under the regulations an adequate fee will be fixed in order to ensure that the work will be undertaken by a satisfactory number of barristers and solicitors with a general level of competence adequate for the work.
The overall effect to which the noble and learned Lord, Lord Ackner, has referred, will be a conglomeration of that for all types of legal aid work. The idea of paragraph (d) is that it relates to particular pieces of work in respect of which the fee is sought to be determined by the regulations. In my view, the overall effect will be properly taken into account.
5.15 p.m.
Lord Mishcon: My Lords, with the leave of the House—and I promise not to ask for the leave of the House again in regard to this matter—will the noble and learned Lord show some little flexibility in this matter? I say that most respectfully. My noble and learned friend Lord Ackner and I have endeavoured to say what we mean by the amendment and why we consider that the existing words do not carry out the purpose of the amendment in looking to the future. If the noble and learned Lord will say that if there is doubt about the words he will make the matter clear within the spirit of our amendment, and also look at the argument which the present words do not address, I personally would be satisfied and we can reconsider the matter at Third Reading.
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I hope that the noble and learned Lord the Lord Chancellor will not present an immoveable wall against any arguments for altering any part of the Bill. Surely this matter can be looked at favourably because it would appear that the noble and learned Lord, and my noble and learned friend Lord Ackner and I, are trying to achieve precisely the same object. We believe that it is not achieved by the present wording but that it is achieved by our amendment. Will the noble and learned Lord consider the matter in order to ascertain whether our wording can be accepted, or some other wording which makes it abundantly clear. He has said many times that he is anxious that when the statute emerges from Parliament it should be in clear and precise language that everyone can understand.
The Lord Chancellor: My Lords, I believe I have demonstrated that I am far from being immoveable on these matters, apart from where necessary and I am happy to look at this matter again. I have considered it carefully since the Committee stage and I had reached my conclusions. However, in the light of what has been said today, I am happy to reconsider the issue. I do not promise that I shall be persuaded that the paragraph should be changed, but I promise to reconsider the matter with the kind of open mind which your Lordships might expect.
Lord Mishcon: My Lords, in the expectation of that open mind. I ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Benson Lord Benson moved Amendment No. 49:
Page 27, leave out line 36.
The noble Lord said: My Lords, the basic principle behind this amendment is simple. If the Government decide to make a service available to the public they must do one of two things. They must either provide enough funds from the public purse for that purpose and pay those engaged in it properly, or they must cut the service appropriately. It is not possible for a responsible government to provide inadequate funds to continue the service unabated and then to say that only one of the parties who contributes to the service must make up the difference by having its remuneration curtailed.
This is a new clause in the history of the Legal Aid Bill. One can only guess what its purpose is. I assume that its purpose is to enable those who are negotiating on the subject of pay on behalf of the noble and learned Lord the Lord Chancellor in bland innocence to say, "We should like to pay you adequately but Parliament will not vote us enough funds and therefore we are sorry but we have to curtail your remuneration." That would be discriminatory, punitive and monstrously unfair. It will lead inevitably to a second-class legal aid service and in due course it will lead to a second-class judiciary.
A very large number of people are involved in providing the legal aid service. By way of example, there is the judiciary, the civil servants who provide the backup service in the courts and elsewhere, the noble and learned Lord the Lord Chancellor himself and his immediate staff. Each and every one of those

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would be outraged if they were told that their pay was going to be curtailed because Parliament had not voted enough funds for the legal aid service. It is small wonder that the legal profession is outraged for that very reason.
In Committee the Lord Chancellor expressed his outrage in muted terms. He said that his pay and anyone else's pay which is fixed for the public service takes account of the fact that it is paid out of public funds. I think that perhaps the Lord Chancellor might momentarily have forgotten that his pay is not reduced if the public funds are not provided for the service. Perhaps he has also forgotten that the legal profession also gives public service out of public funds. By this clause, at the behest of the Lord Chancellor himself, the legal profession alone can have its remuneration curtailed because Parliament will not provide the funds.
None of the other great spending departments of Government is subject to legislation which says that if Parliament does not vote them enough funds for their needs, then one of their suppliers, and one only, may have its remuneration curtailed. Why is this irresponsible form of government administration introduced into the Legal Aid Bill? The Bar Council and the Law Society have an obligation—and in fact do so—to inform recruits as to the prospects when they come to the profession. They would like to say "Come and join this great profession. You will have to work hard but the rewards are fair. We welcome you".
Now they will have to tell the truth. They will have to say, "A great slice of legal work is now covered by the legal aid scheme. For years past lawyers engaged in it have been inadequately remunerated. The Legal Aid Act recently passed makes it clear from its clauses that that inadequate remuneration will continue in the future. The legal aid service will inevitably become a second-grade service. We beg you to take these matters into consideration before you join this profession". That is the heritage which is being passed down by this Government to the future generation.
We see in this Bill, with these clauses for which amendments are proposed but unhappily not acceded to, definitive steps which will reduce the legal profession to a second-rate profession. I repeat that that will affect the quality of the judiciary in due course. Before taking that step I beg the House to consider very carefully. I beg to move.
Lord Simon of Glaisdale: My Lords, we have had a legal aid service since Tudor times, and that was the old procedure of in forma pauperis. If somebody claimed wrongly that he was entitled to legal aid in that form, the punishment was that he would be flogged. We have now substituted a different scheme and the sanction against false claim is the one adumbrated by my noble and learned friend on Thursday; namely, that the views of a party against whom legal aid was claimed can be considered on the merits at the time that the legal aid was being considered.
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The great difference that was made in 1947 was that the procedure in forma pauperis did not reach the person who could not afford litigation and who, nevertheless, needed help to bring or defend his rights but was above the level of pauperism—poverty. In 1947 the legal aid scheme was transformed into a social service funded out of public funds. The legal profession still made a contribution. Up until then, it was regarded as a duty to appear for a litigant in forma pauperis and famous cases came before your Lordships' House with the lawyer giving their services completely gratuitously. After 1947 the lawyers continued still to make a personal sacrifice because they accepted less than the proper taxed fees that would be allowed.
However, it became, subject to that, a social service funded by public funds. As my noble and learned friend Lord Hailsham pointed out on Amendment No. 46, as such it has to compete with a whole number of other social services. In each one there are people claiming emoluments. There is the private soldier and the officer in the army. There is the rating and the officer in the navy. There are the nurses and administrators in the hospital service, and so on. One could enumerate them indefinitely.
Nobody could have listened—and I say this without personal prejudice—to the speeches of my noble friend Lord Benson, my noble and learned friends Lord Ackner and Lord Griffiths and other noble Lords who spoke to Amendment No. 46 without being deeply impressed. I found it quite impossible to vote against their contentions having heard them. But this seems to me an entirely different matter, and a completely impossible amendment to accept. Of all the servants in the various public services apparently only the lawyers will not have their remuneration considered with competing claims. My noble and learned friend the Lord Chancellor is enjoined to consider this, that and the other, but the one aspect he is not allowed to consider is the cost to public funds. That seems to be an impossible proposition and I hope that my noble and learned friend will not accept it.
5.30 p.m.
Lord Hailsham of Saint Marylebone: My Lords, I want to make only a brief comment. I believe that the noble Lord, Lord Benson, greatly overstated his case in putting forward this amendment. Nor am I at all content with the view relating to the remuneration of barristers and solicitors when the noble Lord, Lord Mishcon, said in an earlier debate that idealism had gone out of the window.
The law is a profession. It is not a trade union. When my father, who was by far the most competent barrister I have ever spoken to intimately, was advising me on what to do when I was called to the Bar he said that the art of the advocate was the ability to persuade. I believe that to be the profound truth. He advised me to take any work which came, whatever it was, and to do the best I could with it. There was no legal aid. I took criminal work, matrimonial work and I worked in the Chancery Division. My home was the King's Bench Division, the county court and the magistrates' courts. I worked all over the place. I must say that this theory

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that the legal profession is developing—it has been reflected in some of the speeches today—that if you handle crime you have to do that and nothing else, that if you do legal aid work you have to defend in crime and nothing else, or perhaps do matrimonial work and nothing else, or act as a plaintiff in running down cases and nothing else, runs against my whole experience of the profession and undermines its professional character. The law is a profession and God grant that it should never become a trade union.
Lord Mishcon: My Lords, the last words of the noble and learned Lord echoed through the Chamber and certainly struck my ears. However, I assure him that there is no need for drama to alter in any way the character of the profession that he has honoured by being a member for many years; and a distinguished member, too.
I never said that idealism had left my profession. If I thought that I would leave the profession rather quickly. I happen to be, I hope, as faithful a member of it as the noble and learned Lord, even if not as distinguished a member. I said something quite different in Committee. I said that either the Government have to rely upon the old idealism still current in the profession. where all of us who were worthy of the name "lawyer" used to do as much as we could to take on cases and matters even where we were not paid one penny or at reduced fees, or it must be properly paid for.
I do not intend to recount to the House my own experiences over the years, which I very much enjoyed, of running a poor man's law centre in one of the poorest districts of London. I learnt an awful lot about human nature and I hope that at the same time I learnt a little about the law. However, I learnt much more about human nature as a result of that experience.
What I said in Committee was that the Government took upon themselves the responsibility of saying to the profession, "We no longer need your idealism". The days referred to by the noble and learned Lord, Lord Simon of Glaisdale, going back to Tudor times and lasting over the centuries were memorable and idealistic, but the Government said, "We do not intend to do that any more than we are going to do it with health. We are no longer going to ask a doctor as a matter of charity to see the cap-doffing person outside who begs him to look at his child but who cannot pay the fee." The Government said, "In a welfare state we no longer require that; we are going to pay properly for a National Health Service and we are going to pay properly for a legal aid scheme." I said that in those circumstances idealism was no longer called upon and was asked almost to fly out of the window so that the legal aid scheme would properly function without charity being called for. I hope the noble and learned Lord will never quote me again as saying that idealism had left the legal profession.
Having said that, our fear is that the Treasury will one of these days, and it may be rather soon, say to the Lord Chancellor, "In the general economy which we are practising this is the total amount we are going to give you. That is the total sum regardless of
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whether or not you can pay out fair remuneration and regardless of whether or not you can properly run the legal aid programme". We say that in fixing the remuneration the difference is between the concept of the overlordship of the Treasury saying, "You will have only this sum for this year, now fix your legal aid scheme", and the Lord Chancellor's Department being able to say, "This is the cost of the legal aid scheme run as economically and as efficiently as possible; this is the cost and we must therefore argue for that cost". Once there is the obligation to supply a legal aid scheme it must be properly paid for. Again, I speak in terms of the cart being placed before the horse.
That is all I have to say but I repeat—only because otherwise it is extremely hurtful—that there is no member of the legal profession for whom the noble and learned Lord, Lord Hailsham, has any respect, or for whom I have any respect, who does not carry into his allegiance to that profession a love of the law and a desire to serve his fellow man.
Lord Ackner: My Lords, I venture to suggest that this amendment is being misunderstood. The cost to public funds is clearly relevant in the administration of this service. The cost to public funds must bear upon the entitlement to legal aid; where you draw the limits, what is the capital and what is the income. The cost to public funds must determine whether there is legal aid before the Social Security Commissioners —a matter with which my noble and learned friend the Lord Chancellor had considerable sympathy. However, funds do not stretch that far. They do not stretch far enough to cover proceedings before the industrial tribunals. They do not stretch far enough to cover the coroner's courts. We all wish that they did.
If public funds cannot accommodate, for example, appeals to the House of Lords, that facility must be withdrawn. What this amendment is directed to is simply this. If public funds permit legal aid so that those who need to rely upon the service shall have, as the Government have said more than once, the same ability to obtain assistance, then it follows that it must be properly remunerated. To bring into the scale of remuneration, once it is accepted that legal aid should be provided, this nebulous phrase,
"cost to the public funds",
thereby producing the potential application of some ill-defined and undisclosed incomes policy, is quite irrelevant.
Its irrelevance is demonstrated by reference to that useful document of 8th April 1986 in which the Lord Chancellor's Department sets out the various matters to which regard should be had. There is not the slightest reference to the fact or hint that this in itself was of relevance. This is why there is anxiety at its being introduced in a clause where the principle of fair remuneration has gone out of the window. By all means let the Government say that the fund cannot afford various facilities, but once they say that they can afford that facility, then in order that the customer should get the same kind of service as he would have done if he could have afforded it, it must follow that the public funds argument is irrelevant.
The Lord Chancellor: My Lords, your Lordships will remember that very early in the legal aid administration a deduction of a percentage was made from civil legal aid in respect of remuneration which otherwise might be payable on the ground that it was legally aided. I believe it is important to remember that, because in the various arguments that we have had this point is sometimes forgotten. The Government recently announced that this particular percentage would be cut. It could not be cut altogether because of the legislation under which legal aid was paid. It was to be cut from 10 per cent. to 5 per cent., and it will be cut altogether if and when this Bill becomes law because the possibility of doing that lawfully would then occur. I believe that in all the discussions connected with remuneration it is worth while to bear that in mind. One might gather from the atmosphere and from what we have heard in some of the speeches that there is a suggestion that the Government are concerned only to try to reduce and reduce and reduce, whereas as regards civil legal aid we have at a stroke increased remuneration by 11 per cent.
As regards this amendment, it is proper to understand what is being said. The noble Lord, Lord Benson, in moving the amendment has misunderstood the part that this particular phrase (which he seeks to delete) plays in the matter. I said, and I believe it to be true, that in fixing the remuneration of those in the public service the Government will take into account the fact that it is a public service that is being funded. The remuneration of Ministers and officials is fixed with that in mind.
I agree that, remuneration having been fixed and agreed to for a particular period, there is no question of its then being cut in order to afford some particular public interest unless in very special circumstances. It may have happened in the past in rather special circumstances the details of which I need not dwell upon. There is no suggestion of that in this clause. What is suggested here is that in fixing the remuneration to which a solicitor or barrister will be entitled under the legal aid scheme, one of the factors to be taken into account is the cost to public funds of any provision made by the regulations. In my view and entirely in accordance with the speech of my noble and learned friend Lord Simon of Glaisdale, this is simply to recognise an important fact of public administration and to recognise it appropriately on the face of the Bill as one of the considerations to be taken into account.
The noble Lord, Lord Benson, made a suggestion which is negatived by the provisions of the Bill as I sought to explain them to noble Lords who moved amendments to Clause 39. Once remuneration has been earned under the regulations in respect of work done under the regulations following the date on which they come into effect, that work will be remunerated. There is no question of a cut being made thereafter. Once the remuneration has been earned on the statutory basis, that remuneration becomes payable out of money provided by Parliament. In the terms of the opening part of Clause 39, the Lord Chancellor has an absolute obligation, subject to time and place, to make
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payment of the sums to which the legal profession is entitled in terms of the remuneration provisions.
There is no question of a subsequent cut such as that which the noble Lord, Lord Benson, described and which he sought to distinguish from the kind of considerations affecting all persons who are paid out of the public purse. In my view recognition that the remuneration is to be out of the public purse is fundamental and it is appropriately recognised on the face of the statute. We are seeking to identify the factors which make up the appropriate remuneration for the profession. In those circumstances I could not possibly accept this amendment or advise your Lordships to agree to it.
5.45 p.m.
Lord Ackner: My Lords, I make two points in answer to the Lord Chancellor. The first is that I do not understand that the removal of the 10 per cent. is any act of generosity —
Lord Hailsham of Saint Marylebone: My Lords, on a point of order. I understand that we are on Report stage. This is not the first time that it has happened but it is being treated as a Committee stage. We are entitled only to one speech.
Lord Ackner: My Lords, the amendment is down in my name and I believed that I was entitled to close it. However I bow to my noble and learned friend if I am wrong.
Lord Hailsham of Saint Marylebone: The amendment is in the name of the noble Lord, Lord Benson.
Lord Ackner: My Lords, the amendment is down in our joint names. May I have the permission of your Lordships to continue uninterrupted?
The two points I make are these. I do not understand that it is the result of any government generosity that the 10 per cent. is being moved. It is a technical consequence. We have moved from a method of taxation known as party and party and indemnity taxation to a standard basis. It is because of the standard basis taxation that the 10 per cent. is going. I read that in the report of the Legal Aid Advisory Committee.
My second point is that the noble and learned Lord the Lord Chancellor said at Committee stage, and again today, that there is no question of our taking money out of the pay otherwise agreed for the legal profession. I accept that, but perhaps I may emphasise how the problem is going to arise in practice. The new approach to fees is prescribed fees. The prescription of those fees from time to time—often very frequently, vide the £33 for paperwork to which I have referred—has to be looked at in the light of the particular circumstances of the case. One can well see as a result of government policy the word going out that the prescribed rate must not be departed from or, if departed from, by no more than a given percentage.
That is where the danger lies. The money would not be taken out; it just would not be properly paid.

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That is the reason for resisting something which has never occurred before in a clause where all the pointers are that this is going to be a method of cut-price remuneration. However, out of respect, as I think the phrase is, to your Lordships' lobby, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Benson Lord Benson moved Amendment No. 50:
Page 27, leave Out lines 37 to 40.
The noble Lord said: My Lords, the purpose of this amendment is to remove from the Bill paragraph (g) of Clause 32(6) because it is unintelligible. That is a sufficient reason for asking for its removal and one which scarcely requires embellishment. It might be prudent to comment that the nature of this clause is similar to the unsatisfactory drafting in some of the other clauses of this Bill.
In so far as it is possible to ascribe a meaning to the words, it appears to say that the Lord Chancellor shall have regard to two things: a list of priorities and, secondly, any considerations indicated by paragraphs (a), (b), (c) and (d).
First, what will the Lord Chancellor do when he has made the list of priorities? Will he lock it up in his files or will he use it? If he uses it, how will he use it and why? The public is entitled to know the intention of the list of priorities, and there is no indication in the Bill.
Secondly, what are the considerations indicated by paragraphs (a), (b), (c) and (d)? Here again the public is entitled to know precisely how those considerations affect paragraphs (a), (b), (c) and (d). In the course of replying to this amendment I hope that the noble and learned Lord the Lord Chancellor will specify the considerations presently indicated by paragraphs (a), (b), (c) and (d) and the order of priority which he presently thinks appropriate for each of them.
This amendment is not a matter of ridicule; it goes to the very heart of Clause 32(6), which is the remuneration of the legal profession. It is entitled to know precisely what the clause means. As presently drafted, it might be used to erode or to eliminate altogether the effect of paragraphs (a), (b), (c) and (d). I suggest that not only for the reason that the wording is unintelligible the clause should be withdrawn. I beg to move.
Lord Renton: My Lords, purely as a matter of drafting, I think that the Bill is capable of improvement upon the point which the noble Lord, Lord Benson, has mentioned. Perhaps I may weary your Lordships for one moment by reading out the relevant words and the sequence in which they will come now that two amendments of my noble and learned friend the Lord Chancellor have been agreed to. It will read as follows:
"The Lord Chancellor, in making regulations for the purposes mentioned in subsection (2)(e) above as respects any description of legal aid work, shall have regard, among the matters which are relevant, to—"
Then we go down to (g):
"the relative priority among the matters for which he is responsible under this Act which he attaches to any considerations indicated by paragraphs (a) to (d) above."
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In trying to understand this, I must confess that it is possible, with a metaphorical wet towel round one's head, to derive a sense of logical English from it, but it is not easy. I think that the draftsmen should be invited to reconsider this purely as a matter of wording.
I now come to the substance of the noble Lord's amendment. I find it rather strange that, having set out these specific tests to which my noble and learned friend referred in some detail when we were discussing Amendment No. 46, we then find that they are not born free and equal. Paragraphs (a), (b), (c) and (d) are to be given relative priority. However the quite important tests under paragraphs (e) and (f) for this purpose are excluded by not being mentioned. I must confess that I find that very strange. Therefore, although I am uncertain whether paragraph (g) is necessary at all, I think that for the reasons that I have mentioned—the matter of drafting and the matter of substance—it should be reconsidered.
Lord Griffiths: My Lords, I too have great difficulty with the wording of this subsection. I do not know what are comprised among the matters for which he is responsible under this Act. Is that meant to bring in paragraphs (e) and (f)? If not, to what is it referring? I confess that I just do not know the answer.
Lord Ackner: My Lords, I too should like to voice my difficulty in understanding this. Since my noble and learned friend the Lord Chancellor has said he wishes to identify a simple and workable formula which the professions will be able easily to follow, this does not seem to qualify.
The Lord Chancellor: My Lords, I adhere to the object that I expressed earlier of obtaining a workable formula which will be reasonably plain. I think I am right in saying that this particular point was not raised at Committee stage, but I am subject to correction if anybody has raised it and I have allowed it to slip from my mind.
The (g) factor—if I may call it that for the purposes of reference—is intended to ensure that when the Lord Chancellor takes his decision on remuneration, he can do so having regard to the implications for the legal aid scheme as a whole. These regulations will generally deal with particular types of work. For example, it is possible that the fees allotted to matrimonial work would produce a balance in favour of matrimonial work because it was thought to be particularly important at a particular time that it should be concentrated upon. It is one of the matters that has to be provided under the Act. I have to have regard to the relative priority of the various services for which I am responsible. I believe it is necessary that I should be able to have regard to these factors and the considerations arising from them in relation to the legal aid scheme as a whole.
For my part I regard that as an important consideration. Remuneration of the profession, is, as your Lordships have said, a crucial factor in ensuring the health of the legal aid scheme. Factor (g) does not in any way diminish the Lord Chancellor's responsibility in giving weight to each factor, and in

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particular to that factor. The clause requires him to have regard to each of the factors set out. Remuneration rates cannot be set in a vacuum. We need to take account of the implications for the legal aid scheme and the way the work is conducted under that scheme as a whole. That is what factor (g) ensures and that is one reason why I believe it to be important.
The provision has the effect of ensuring that the Lord Chancellor's decision is taken by having regard to the precise factors listed and the considerations arising from them. This is the point that I sought to illustrate in relation to paragraph (d). If the result of consideration under paragraph (d) was that not enough barristers and solicitors of sufficient standing were undertaking particular work that would be a consideration of which it would be right to take account in allotting priorities or weight as between the factors. Accordingly, I would think it necessary to have a provision of the type which is specified in paragraph (g) to open out these considerations and allow them to be used as one looks forward to the time at which the remuneration will take effect; and not only therefore to the remuneration but the likely effect of that remuneration on all the services to be rendered.
I regard the clause as important and one that should be retained. Whether it can be improved is a matter of judgment. If I may I shall certainly examine what has been said to see whether any improvement can be made to the clause because I am still anxious that we should have in regard to remuneration for the future a clause which everyone can understand.
6 p.m.
Lord Benson: My Lords, I understood the noble and learned Lord the Lord Chancellor to say that in the light of the comments that have been made on this clause tonight he will consider amending it to make it what I would call intelligible or at least more in accordance with the explanation that he sought to give us. If that is so, I shall be happy to withdraw the amendment. I should like to be sure that I understood the position correctly.
The Lord Chancellor: My Lords, with the leave of the House, I said that a number of noble and learned Lords (for whose opinion I have the greatest possible respect) have said that this is unintelligible. In the face of suggestions of that kind, it must be responsible of me to ask parliamentary counsel to have another look at the clause to see whether he can make it more intelligible to my noble and learned friends and to those who will have to operate it. I desire, however, to make it clear that I wish to retain what I have sought to explain as the purpose of the clause. What I am offering is to attempt to improve the wording to meet the difficulties on which my noble and learned friends and others appear to have stumbled.
Lord Benson: My Lords, on the basis of that undertaking, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Lord Chancellor The Lord Chancellor moved Amendment No. 51:
Page 28, line 5, leave out subsection (9).
The noble and learned Lord said: My Lords, this amendment is one of those consequential on the changes I agreed to accept in relation to the differentiation between the affirmative and the negative resolution procedure in respect of the various regulation-making powers. We require to alter the basic structural arrangements in this connection, and this provision is in pursuance of those undertakings. I beg to move.
On Question, amendment agreed to.
Lord Elwyn-Jones Lord Elwyn-Jones moved Amendment No. 52:
Page 28, line 7, at end insert—
("( ) Any regulations made for the purpose of sections 1(5), 1(7), 2(8), 7, 13, 14, 15. and 32(2)(e) of this Act or containing any provision made for any purposes shall not come into force unless or until approved by a resolution of each House of Parliament.").
The noble and learned Lord said: My Lords, to some extent we have covered the ground in regard to this point: namely, the importance of having the affirmative resolution procedure for important provisions made by regulation. The noble and learned Lord the Lord Chancellor has agreed in regard to Clause 2(8) and Clauses 7, 13 and 32(2)(e); but I do not think that the same concession has been made on Clause 1(5) which covers the important provisions regarding the scope of legal aid.
The Lord Chancellor: My Lords, just so that there is no mistake about this matter, Clause 2(4) is what I have agreed to make subject to the affirmative resolution procedure and not Clause 2(8). Clause 2(8) has to do with the numbers. Clause 2(4) deals with the extension of the board's powers. There may be a misprint or perhaps the noble and learned Lord intends to subject Clause 2(8) to this power.
Lord Elwyn-Jones: My Lords, I am most grateful. Perhaps I had better look at the clauses one by one. Clause 1(5) relates to the scope of legal aid and is an immensely important provision. I should like the observations of the noble and learned Lord on that. The next one is Clause 1(7). I do not think that I can make any serious contention about Clause 1(7) so I withdraw it from the amendment. It deals with occasions when counsel can be dispensed with. It does not sound as though it is of revolutionary importance, but for the Bar it might be thought to be so. I do not think I can press that one, but I thought that Clause 2(8) in relation to the extension of the board's functions had been agreed to.
The Lord Chancellor: My Lords, it was Clause 2(4).
Lord Elwyn-Jones: My Lords, with regard to Clause 7 and the scope of legal advice, the resolution procedure has been agreed. In regard to Clause 13 and the scope of legal aid, that has been agreed for affirmative resolution. In regard to Clause 14, which governs financial eligibility for legal aid, it has not. It is a fundamentally important provision and I should be grateful for the further thoughts of the noble and learned Lord on that point. Clause 15, which governs contributions for civil legal aid, seems to us to be of

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sufficient importance to merit each House having the opportunity to consider the regulations when it is sought to introduce them. We have just dealt with Clause 32(2). Those arc the matters to which my amendment relates. An abundance of regulations are still left under the sole supervision of the negative procedure but the ones referred to in the amendment are of sufficient importance for each House to be able to examine them and express a view upon them.
The Lord Chancellor: My Lords, perhaps I may take the regulations that are outstanding in the amendment and try to deal with them in the order in which they appear. Clause 1(5) deals with the power to specify what may be included in advice, assistance and representation in particular circumstances. It also provides for regulations to allow for work done otherwise than under the Act to be included within its provisions. That kind of regulation will be self-explanatory and though important can certainly be adequately dealt with by the negative resolution procedure. If there is an objectionable matter your Lordships would have the chance to raise it.
Clause 1(7) deals with the power to prescribe circumstances in which representations can be limited to solicitors only or counsel only, or the circumstances in which representation by more than one counsel is to be allowed. Regulations of that type are self-explanatory. The noble and learned Lord has agreed that it would not be appropriate to allocate parliamentary time in advance and possibly unnecessarily to those regulations.
The next matter relates to Clause 2(8), as printed. As I intervened to say, I have agreed that Clause 2(4) should be the subject of affirmative resolution. In discussion on that clause, I think we reached substantial agreement about that matter. Clause 2(4) is taken up again in Clause 2(8) which also incorporates Clause 2(6). Clause 2(4) is agreed by me as requiring affirmative resolution. I do not think that it is appropriate to make Clause 2, and particularly Clause 2(6), subject to the affirmative resolution procedure for the reasons that I have just given.
I have agreed to Clause 7. Your Lordships will remember that that clause was subject to amendment by the House. I have agreed to make the powers under that clause subject to affirmative resolution. Clause 13(2) (the scope of civil legal aid) and Clause 14 (the financial eligibility conditions for civil legal aid) are entirely self-explanatory and I should have thought appropriate for the negative resolution procedure. As regards Clause 15 (the arrangements for contributions and the statutory charge in civil legal aid), I made some adjustments to the statutory powers to take account of a point made by my noble and learned friend Lord Ackner.
As regards the remuneration regulations, I should have thought that those were pre-eminently regulations which should be dealt with by way of negative resolution. It will be plain enough what the regulations are seeking to do and no explanation or introduction of them will be required. Therefore I suggest to your Lordships that it would be appropriate that they be dealt with by the negative resolution procedure.
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Having considered those powers individually, as we have done during the Bill's passage, I venture to suggest to your Lordships that we have reached a proper balance as between the affirmative and the negative resolution procedures. Parliamentary time is a scarce commodity and I am sure that your Lordships would not wish to be wearied unnecessarily with explanations from me of uncontroversial provisions. Who knows, the remuneration regulations may well fall when made under that category—one never ceases to be amazed—and, accordingly, I think we have achieved a good balance which I invite your Lordships to accept.
Lord Elwyn-Jones: My Lords, I think that I am allowed to speak at the end of the debate. It would be churlish of me not to express gratitude for some of the concessions that have been made. The issue is not whether a provision is clear or straightforward but how important the point is to the litigant or potential litigant. However, I shall examine carefully what the noble and learned Lord the Lord Chancellor has said. At this stage I ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amentment No. 53 not moved.]
Lord Benson Lord Benson moved Amendment No. 54:
After Clause 32 insert the following new clause:
("Legal Aid fees Advisory Committee.
The Lord Chancellor shall appoint an Advisory Committee (to be known as "the Legal Aid Fees Advisory Committee") to examine and report to him on all matters relating to the remuneration of the legal profession in connection With legal aid.").
The noble Lord said: My Lords, this subject was debated late into the night in Committee. The Committee stopped just before midnight. During that debate I explained in some detail why the Royal Commission on Legal Services had made the recommendation that an advisory committee should be appointed. I also explained how it would be set up and the effect it would have on the remuneration of the legal profession. It would weary the House if I were to go through all that argumentation again, but I have one or two relevant points to make.
The basic reason the Royal Commission found for making the recommendation was that there was copious evidence, extending over a long time before we even sat (1976 to 1979) to show that adequate statistical and financial information had not become available. Apart from that, there had been a continuous failure to pay adequate remuneration for the lawyers engaged in the service. There was, so to speak, a running fight in that connection. We went into the matter in a good deal of detail and came to the conclusion that the only solution would be the appointment of an advisory committee. That proposal has indeed been warmly endorsed by the legal profession.
On 4th June 1986, the former Lord Chancellor, the noble and learned Lord, Lord Hailsham, said that he was not and had never been unfriendly to the suggestion of such an advisory committee. He said that he would greatly welcome a mechanism which would help him to fulfil his responsibility. In

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Committee the noble and learned Lord the Lord Chancellor took the opposite view. He said:
"I think that we are making progress in the collection of the basic data. That is what is required. It is much better for those concerned to work this out between them than to pass it all over to some third party to sort out".—[Official Report, 19/1/87; col. 199.]
Ten years ago we found that the basic data had not been provided. Indeed, now some 10 years later it has still not been provided. One doubts whether it ever will be provided in a satisfactory form.
However, assuming that it is eventually provided, it is not only the data but the interpretation which is placed upon it that is important. I remind the House that with all the resources at their disposal the Government have for many years failed to find a suitable formula or satisfactorily to remunerate the legal profession in the legal aid service.
If the Royal Commission's recommendation had been adopted, that inept administration, which has plagued the legal aid services for so many years, would have been avoided. The legal profession is anxious for an advisory committee to be appointed so that order can be restored out of chaos. When replying in Committee, the noble and learned Lord the Lord Chancellor said that it was always open to him to appoint an advisory committee, and so it is; but, it is equally open to him not to do so. The purpose of the amendment is to suggest that, in view of past experience and the uncertain prognostications for the future, the option should be removed and an advisory committee should be appointed by statute.
The House may or may not think that the arguments that I have put before it are compelling. But anyone who reads carefully the debate which has taken place about factors, principles, standards, fair remuneration and so forth, will realise the general muddle which still prevails. That is one of the overriding reasons for having an independent committee to advise on those problems and help to sort out the chaos which has existed for so many years.
6.15 p.m.
Lord Ackner: My Lords, recently I happened to come across a magazine issued by the Bar which has two great advantages. First, it contains two excellent photographs; one in colour and one in black and white, which almost do justice to my noble and learned friend the Lord Chancellor. They caught my eye. Secondly, the following phrase used by my noble and learned friend caught my eye: "I welcome advice". That is the whole purpose and function of the amendment. That it is advice only the committee would offer is made plain when one sees what the noble Lord, Lord Bancroft (a one-time Permanent Secretary to the Treasury), said, to which my noble friend Lord Benson has drawn our attention.
He said this:
"I am aware that the creation of a fees advisory hoard can be and indeed has been criticised on a number of grounds. The first is that the Government are abdicating a crucial responsibility. Secondly, it places too much power in the hands of a non-accountable body. Thirdly, it omits from the equation the critical item of the ability to pay. All those arguments are very old and are totally misconceived.",
He went on:
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"The proposed body, like the several others that already exist and to which reference has been made during the course of the debate, would be advisory to the extent that it would be open to the Government of the day to reject or modify the advice if there were clear and compelling reasons in the national interest for doing so. It is for the Government to make that judgment, for good or ill. I believe that I am right in saying that in their wisdom successive governments of both colours have almost invariably used that right of modification in the case, for example, of the Top Salaries Review Body, but there has always been a public benchmark, whether honoured or not.".
The need for that body to exist was made clear two years ago when the Bar retained Messrs. Coopers & Lybrand to make a detailed investigation into what was the situation in regard to criminal legal aid. In essence, they reported as follows. Barristers with between 10 and 15 years' seniority (that is, aged 30 to 35, or perhaps a little older) who were dependent upon criminal legal aid were earning 30 to 40 per cent. less than barristers of the same seniority employed in government departments. Of course those in government departments have the advantage of security of tenure, security of income and the reassuring knowledge that if they go sick there is someone to maintain their families. They also have many pension advantages.
The Government are a monopoly employer. They therefore ought to have advice available to them if they genuinely want to be fair and reasonable. This type of advisory body is not a new class of body, it exists, and successfully exists, in many, many fields.
As amendment after amendment has been lost, Clause 32 becomes more and more depressing reading to those who do not want to see the legal aid system degenerate into a second-rate service. The advisory committee will provide the necessary check and advice, which may on occasions support a desire to keep fees down rather than to allow them to go up. But it will be an independent body, in which, like other independent bodies, professions are likely to have confidence. It cannot in any way hurt the Government to have advice available unless they are bent on disregarding such advice in the majority of cases.
Lord Renton: My Lords. I too read the article in Counsel. I read with admiration and agreement, if I may say so, the answers which my noble and learned friend gave, besides admiring the handsome likenesses and photographs, both of them.
I can tell my noble and learned friend what he already knows: he will get plenty of advice. He will get advice from the Bar Council and the Law Society, from the judges and perhaps from the leaders of circuits. He will get advice of course from the Legal Aid Board itself. I am very much afraid that if there is an advisory committee appointed there will be a tendency to try to channel that advice through this proposed advisory committee instead of to the Lord Chancellor, as I think it should be directed. The advisory committee will perhaps consist of distinguished accountants who may not all be as sympathetic as the noble Lord, Lord Benson. But my feeling is that it will not be easy if we have this advisory committee to work out the division of functions among it, the Legal Aid Board and the Lord Chancellor's Department. Therefore I would find it very difficult to support this amendment.
Lord Griffiths: My Lords, I support this amendment because of the melancholy experience which I had when I was president of the Senate. I watched the deteriorating relationships between the profession and the Lord Chancellor's Department, arising out of attempts to have direct negotiation between those bodies on legal aid fees. It is very understandable. The Lord Chancellor's Department regards itself as the keeper of the public purse, and very properly so. Those who are negotiating on behalf of the professions regard it as their task, within reason and what is compatible with a public position, to secure as good remuneration as they can for the profession.
The situation reached such a pitch that when the Bar, at great expense, commissioned a report by Coopers & Lybrand, the attitude of the Lord Chancellor's Department was that it was basically such a flawed document that it was hardly worth taking it into consideration. That is not a satisfactory way to collect and evaluate data.
As I understood the function, the suggestion in this amendment is that the advisory board would itself receive the data and arguments presented by the two sides and bring to it a completely independent judgment of what was in all the circumstances fair remuneration. It would then give its advice to the Lord Chancellor in exactly the same way as various other bodies give their advice on fair remuneration for nurses, judges, generals and so forth to the Government. I believe that to be a far better and more satisfactory way of arriving at fair remuneration.
The other matter that disturbs me greatly is that it is essential for the health of the administration of justice in this country that there should be a good, harmonious working relationship between the Lord Chancellor and his department and the professions. Unless there is a harmonious relationship, the adminstration of justice will suffer greatly. I am afraid that the refusal to acknowledge the principle of fair remuneration is inevitably likely to sour future relations in negotiations on pay.
These two amendments are in some way tied together. Had the principle of fair remuneration been conceded, I should have felt less anxious about this amendment. But as the principle of fair remuneration is not conceded, I support it because I think it very important that there should be an entirely independent look at the remuneration of the profession, in which there would, I hope, be a large lay input.
6.30 p.m.
Lord Hailsham of Saint Marylebone: My Lords, as my name was brought into this matter at an earlier stage perhaps I may say that in the present form in which the amendment is proposed I am inclined to think that it would be, as my noble friend Lord Renton said, as it were a fifth wheel to the coach. But there are two entirely separate issues to be considered here.
When the Coopers and Lybrand report was brought to my attention I did indeed on the advice of my officials regard it as a deeply flawed document. So
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it turned out to be, not from any lack of expertise or expert integrity on the part of the accountants who were engaged by the Bar but because the data—forgive my old pronunciation—fed into it by the Bar itself were not accurate. They were very inaccurate indeed in parts. I shall not go into detail because it was ultimately established that they were inaccurate.
When I said during the debate in 1986 that I was not in any way hostile to a mechanism whereby the facts could be established, I meant exactly what I said. It seemed to me to be wholly undesirable that in any negotiations between the department of the noble and learned Lord the Lord Chancellor and a learned profession or either part of a learned profession regarding what the facts were, the facts could not be decided by a mutually agreed mechanism of some kind. I still think that that may very well be true, although I should hope that the mechanism when agreed would not be imposed by statute on either side but would be mutually acceptable to the two negotiating bodies. However, when it is said that there should be an advisory committee on fees generally then I am much more hesitant because a different issue is thereby raised.
My noble and learned friend Lord Griffiths said that the department of the noble and learned Lord the Lord Chancellor—he was too polite to say the noble and learned Lord the Lord Chancellor although certainly two of us present in the Chamber took it that my noble and learned friend meant the noble and learned Lord the Lord Chancellor—regarded itself as the keeper of the public purse or some such expression. He meant, in effect, that the Lord Chancellor's Department was a fairly subordinate department of the Treasury.
I do not know what the department was like under the noble and learned Lord, Lord Elwyn-Jones, or what it will be like under my noble and learned friend on the Woolsack, but that remark certainly was not true of me when I held that office and I hope it never will be true of the department of the noble and learned Lord the Lord Chancellor.
Obviously under the doctrine of Cabinet responsibility the noble and learned Lord the Lord Chancellor must take responsibility for the ultimate outcome, not only of negotiations between himself and the profession but also of negotiations between himself and the Treasury. But I can assure my noble and learned friend Lord Griffiths that the department of the noble and learned Lord the Lord Chancellor (and the noble and learned Lord the Lord Chancellor himself, in my experience) regards itself as the spokesman for the legal profession—the judiciary as well as the two branches of the practising profession—inside the Government. The noble and learned Lord the Lord Chancellor is their friend at court. I can tell my noble and learned friend Lord Griffiths that many and ferocious were the battles fought by the noble and learned Lord the Lord Chancellor and his department on behalf of the legal profession inside the government machine. I do not think that I am entitled to say more than that.
But to suggest that one will improve matters by bringing in an advisory body appointed by the noble and learned Lord the Lord Chancellor to advise

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generally on the basis perhaps of the Top Salaries Review Board or that which deals with the doctors, the top airmen, the top soldiers, the top sailors, etc. would tend to be, in the form in which it is now proposed, to propose a fifth wheel to the coach. I believe that my noble friend Lord Renton made that point much better than I am doing now.
I thought that I detected in the speeches of my noble and learned friend Lord Griffiths and the noble Lord, Lord Benson, a desire to make the analogy between the Top Salaries Review Board and the other advisory bodies and what is now proposed for the legal profession. But the difference is clear and, I should have thought, decisive. To take the rather painful part of the analogy, judges are paid by salary. That means that it is quite legitimate for them to appear, or for senior doctors or consultants to appear, before their body—I once appeared before it myself as a patient—and say, "Look, we must have an independent piece of advisory machinery in order to say what somebody paid by salary entirely out of public funds should receive by way of remuneration and in comparison with other highly paid professions."
However, I do not believe that in the present situation of this amendment a profession which is paid entirely by fees should be at all in the same position. It is the duty of the department of the noble and learned Lord the Lord Chancellor to negotiate on the basis of agreed facts. If the department cannot agree them it should devise a mechanism to determine them. On the basis of agreed or determined facts it should negotiate with the two professions direct. Having negotiated with the two professions direct it is up to the noble and learned Lord the Lord Chancellor to approach his colleagues in the Government. Let us not again make the mistake of regarding the Treasury as the Aunt Sally to be attacked. The Treasury does include all the other spending departments. The right way forward is to agree one's facts first, get them clearly determined or agreed and then to negotiate direct with the profession and direct inside the Government between the department of the noble and learned Lord the Lord Chancellor and the other departments.
I do not believe that an outside body would be of any use for that purpose. It would either be a nugatory body because, as has been said, its advice could be disregarded, or it would be used as a pressure point to get for the legal profession something which it could not get by the process which I have described.
Lord Roskill: My Lords, I venture to suggest to your Lordships that this amendment is to be supported and to express the hope that my noble and learned friend the Lord Chancellor will have second thoughts other than those which he expressed in Committee. I of course accept what my noble and learned friend Lord Hailsham of Saint Marylebone has just said. There have been many occasions on which his department and that of his predecessors in the past has put up a valued fight with the Treasury on behalf of the judges and the legal profession. Many of us in the past have been deeply grateful for
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that. However there have been other occasions on which unfortunately such battles have been lost.
It cannot be stressed too strongly—here I speak, like my noble and learned friend Lord Griffiths, as a former president at the Senate—how melancholy it is that for one reason or another relations between the Bar Council and the Law Society on the one hand and Whitehall (I use the word generically at the moment) on the other have deteriorated sadly in recent years.
I was not in my place earlier because I was engaged in trying to resolve a long dispute which is not a subject of legal aid. I have a number of extremely busy juniors and leaders. The juniors said to me, "I am so glad you are going down there. Can nothing be done to restore the confidence of the Bar in Whitehall and see that we have a fair deal?—because unless something is done soon"—here I quote the words of one junior not unknown to my noble and learned friend Lord Simon of Glaisdale—"legal aid will simply pass into the hands of the duds".
I heard the noble Lord, Lord Mishcon, express the same thought more elegantly in Committee but there is a very real risk that that will happen. I suggest that nothing would restore confidence more quickly between the Bar Council as it now is and the Law Society on the one hand and central government on the other than if my noble and learned friend on the Woolsack would show willingness to set up a committee and would provide in the statute that it should be set up. As the noble and learned Lord said later during the Committee stage that night, of course he can appoint a committee if he wants to do so. But, as my noble and learned friend has said, sometimes the Lord Chancellor might say "Yes", but he is not immortal and another Lord Chancellor might say "No".
Those of us who support the profession on this wish to see a statutory obligation. As the noble and learned Lord, Lord Ackner, has said, the Government are not obliged to follow the advice of such a body; they could reject its advice, as they have more than once rejected that of other advisory committees. But at least there would be an independent body which the profession could trust, which at present is lamentably and sadly lacking. I venture to hope that the noble and learned Lord the Lord Chancellor will give another thought to this proposal.
Lord Meston: My Lords, although it is right to say that there are distinctions between practitioners who receive fees and those who receive salaries and therefore have the benefit of advisory committees, many legal practitioners dependent upon legal aid work receive a fee that is finite; it has a ceiling upon it and their livelihood has a ceiling upon it. They are therefore not really in an equivalent position to practitioners who enjoy privately-paid work. They are in a position equivalent to those receiving salaries without the security of those who have salaried employment. It is for that reason, among others, that I believe the proposed committee would be so useful.
Such a committee could do a great deal to ensure the confidence of the legal professions upon whom

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the future working of the legal aid system will continue to depend. It would do much to remove the heat from future negotiations between the professions and government departments. I suggest that it would not only remove the heat but would also produce well-informed light, and its function—as is clear from the amendment—would simply be to advise.
In that context the committee need not be expensive or cumbersome. It would not have to meet frequently once the machinery for the assessment of remuneration was properly in being. It would only be of help. I venture to suggest also that we would not be spending so much time on the topic of remuneration during the course of this Bill's passage through your Lordships' House if such an advisory committee had already been in existence.
Lord Mishcon: My Lords, I follow the noble and learned Lord, Lord Roskill, in an appeal to the noble and learned Lord the Lord Chancellor, which others have also made in this debate, to consider this amendment with a completely open mind and—if I may say so with respect—very seriously indeed.
I make that plea (and I hope this will not be deemed too bold a remark) for the sake of the dignity of the Lord Chancellor's position which, as has been said, is historically the head of the legal profession.
I have always regarded it as absolutely unseemly that the head of the legal profession, whether or not he is represented by officers of his department, should sit across a table bargaining over the fees payable in regard to legal aid. That led to a most unhappy situation—and we have all agreed not to draw the curtain on it this afternoon—of proceedings actually being brought by a branch of the profession against the Lord Chancellor on the basis of a judicial review.
The noble and learned Lord the Lord Chancellor was frank enough to say that he kept open the doors of the court in regard to an application for judicial review by the very wording of the clause with which we are dealing. That was a very frank and, if I may say so, a very honourable statement. But I assure him that there is not one Member of your Lordships' House, nor one solicitor or member of the Bar, who wants so see that situation arise ever again.
6.45 p.m.
What is the way of avoiding that? The way is not the harsh bargaining that sometimes used to take place by virtue of the fact that the Lord Chancellor had the Treasury looking over his shoulder—maybe in the very gentlemanly and gentle guise that the noble and learned Lord, Lord Hailsham, depicted the Treasury, merely telling him to be awfully careful about the fees that are agreed—and on the other side, I hope, reasonable negotiators appointed by the Law Society and the Bar Council, who tried equally to put to the Lord Chancellor the reasons why the Treasury should not on this occasion win the battle because it was an unfair battle.
That is completely undignified and wrong. However, what if the Law Society, the Bar Council and the Lord Chancellor could say, "We have had the advice of a panel"? It is not intended to be a standing
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committee, as the noble Lord, Lord Meston, was hinting, but merely a panel to which certain aspects will be referred from time to time, possibly with the help of the manpower commission when some research has to be carried out; I am talking about the manpower secretariat.
The difference then would be in the dignity of the discussions, where an independent outside body whose decisions were not binding on either party was able to put its recommendations or views so that both parties could deal with them and with the data that it had to present.
The noble and learned Lord, Lord Hailsham, when speaking in terms of certain top review bodies, said quite correctly that they deal with salaries. I respectfully draw the attention of the noble and learned Lord to the fact that there is another professional body that deals with fees coming from both the private and public sector, which does have such a committee or panel. I refer to the pharmaceutical profession. I am told that it works extremely well. If ever there is a profession needing an advisory body, then it is the legal profession. The public may feel that the profession is getting greedy; I hope that they do not, but that is sometimes the view expressed.
The noble and learned Lord the Lord Chancellor walks into the unfortunate street where passers-by in the legal profession—members of it—wonder whether he is doing his duty by that profession and whether he is not being too mean. Is it not very sensible to have a panel nominated by the Lord Chancellor? I am sure that the legal profession would be delighted with that. It might have sitting on it a solicitor, a barrister, an economist, a senior civil servant and one other suitable expert. I am referring to notes because I know that the Law Society put forward proposals that the membership of such an advisory panel might comprise such persons. As noble Lords will have noticed, that means a majority of people other than practising solicitors and barristers.
I plead with the noble and learned Lord the Lord Chancellor that we do not want a repetition of the unseemly and ungainly past. It put both the profession and the Lord Chancellor in the wrong position. The Legal Aid Board cannot fulfil such a role because it is charged with administering the scheme. It would be a nonsense if that board were to put forward such suggestions. We have the opportunity in the Bill before us of achieving dignity for the position that the noble and learned Lord holds and for the two sides of the legal profession. I beg the noble and learned Lord to accept the amendment.
The Lord Chancellor: My Lords, I begin by paying tribute to the noble Lord, Lord Benson, who moved this amendment and to his work as chairman of the Royal Commission on Legal Services. I agree with him that it is of fundamental importance that proper data should be available to whoever has the responsibility to determine legal aid remuneration. However it is done, that is the first and fundamental requirement. My predecessor but one, the then Lord Chancellor, the noble and learned Lord, Lord Hailsham, together with the Bar Council and the Law

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Society, put in place some arrangements for the collection of data.
Under the present system there are serious limitations on the collection of data, but that system can be improved. The first stage is to obtain agreement on the data to be collected and the method of operation. I agree entirely and am willing to receive any advice that anybody cares to tender about how the system should progress. Personally I am thoroughly committed to progressing it as far as possible in order to see precisely what will happen and to ascertain the income that is derived by practitioners from legal aid
A good deal has been said about that matter. At present I am engaged in negotiations with both the Bar and the Law Society and therefore I shall be careful about going into detail. However, I believe that the first essential is to produce good data. That is a process upon which we are already engaged and which we shall continue to improve. I accept that there is great scope for further improvement. I believe that the data collection operation can be improved —in the courts on criminal legal aid and in the Law Society on civil legal aid —with the result that more data will be available to whoever has the responsibility for determining remuneration.
The second point that I want to make is that it is fairly plain that the precise form which regulations governing remuneration should take is likely to be complicated. There is a great variety of work which it would be well to cover under the regulations and which different priorities may affect. Considerable progress has been made already in the standard-isation of fees, which has a bearing on economy and cuts out unnecessary taxations and the like. There are difficulties to be faced but I believe that they are capable of being tackled.
As I understand it, the suggestion is that there should be inserted into the present machinery a Legal Aid Fees Advisory Committee. I should like to make clear to the noble Lord, Lord Mishcon, that it is an advisory committee that is to be set up under statute with the remit:
"to examine and report to him"—
that is the Lord Chancellor—not on selected matters as they may arise but
"on all matters relating to the remuneration of the legal profession in connection with legal aid".
In other words, the committee is to have as a standing remit the responsibility of examining every aspect of this matter for as long as this legislation lasts. Accordingly, the idea that I think the noble Lord was suggesting, whatever its independent merits may be, is not the idea that is suggested in this amendment.
As I understand it, the proposal is that the Bar and the Law Society should collect their information and, in so far as there is none, supplement their case with argument. The same goes for the Lord Chancellor. He should submit to this advisory committee his view on the appropriate level of remuneration and the details of the scheme. Then presumably the advisory committee will form a judgment, as between the Lord Chancellor and the profession in its two branches about the correct level of remuneration. It is advice
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only. The Lord Chancellor has taken a decision at an earlier stage but advice will come as to whether that decision is good, bad or indifferent. He will then be expected, I presume, to take a further decision in the light of that advice.
One of the great attributes of the legal profession is that it is able to examine disputes and come to a resolution of them. Advising clients to agree is a skill that advocates and solicitors claim to have. I believe that this ability to settle on reasonable terms is exercised to a degree which the public sometimes does not recognise. Surely if there is any place in which it is possible to achieve settlement on reasonable terms it is between the legal profession in both its branches and the Lord Chancellor directly.
The Lord Chancellor has the responsibility for determining remuneration by clear criteria (subject to my being able successfully to clarify paragraph (g)) laid down by Parliament. Surely the legal profession and the Lord Chancellor together will be able to secure such a course. If the Lord Chancellor fails in a way that leads to injustice, as has been said, the courts are available. There is nothing undignified about disputes being taken ultimately to court. I hope that no such situation would arise with me, but the fact is that the courts are a very dignified—perhaps the most dignified—way of settling disputes. No lack of dignity is involved in going to the courts. It would be very unfortunate if such a matter could not be resolved but, as I have said, I hope that we will be able to resolve these matters.
Lord Mishcon: My Lords, if the noble and learned Lord will forgive me, I talked in terms of dignity in regard to an application for judicial review. I know that he will understand that I was not thinking of the court acting as an arbitrator, which quite obviously is a most dignified role. I was thinking of an argument as to whether the Lord Chancellor of this country has adopted the procedures that he should have followed in taking certain decisions under an Act of Parliament. If that is dignity I do not know what dignity means.
The Lord Chancellor: My Lords, I can anticipate a perfectly proper dispute between both branches of the legal profession and the Lord Chancellor about what is a relevant factor to be taken into account in the light of the applicable statutory provisions. I have heard arguments of that kind before between perfectly dignified people and such disputes will have to be determined. I would hope that such circumstances would not arise as long as I have the responsibility. In my view it is necessary to have machinery which is likely to function reasonably.
I cannot see why it is an improvement on direct negotiation between the Lord Chancellor and the Bar and the legal profession to have some independent body, however dignified, however independent and however high its credentials, intervening between the Lord Chancellor on the one hand and the legal profession on the other. After all, the Lord Chancellor ought to have a very deep knowledge and appreciation of the work of the legal profession in all its branches, which I certainly hope that I have and the person who succeeds me will have. Certainly, my

65
noble and learned predecessors have clearly demonstrated such knowledge and appreciation.
I cannot see that any greater level of expertise is likely to be generated. Although I do not wish to refer to my history in any detail, I have been a recipient of remuneration under the legal aid scheme since 1976. Up to 1979 I acted in cases which were paid through legal aid. I have also spent some time as the chairman of the tribunal for determination of pharmacists' remuneration under the National Health Service in Scotland—to which the noble Lord, Lord Mishcon, referred in more general terms—and have considered the matters that arose in that connection. I also had responsibility on behalf of the much smaller Bar of Scotland for discussions on remuneration under legal aid for it for some four and a half years. I therefore have a little experience in a number of fields of negotiations of this type. I say in all sincerity that to introduce another body to give advice—and I welcome advice, as I always have done—with statutory responsibility to give advice in this way is to interfere with the direct line between the Lord Chancellor and the profession, which seems to me to be appropriate to this profession.
It is true that there are professions which have other arrangements, but the other professions are different. They do not have their remuneration determined by the Lord Chancellor in a relationship to the profession which is quite unique and very special. I welcome the good will of both branches of the profession in these negotiations. I shall do my best to earn it. However, all parties need to be reasonable to preserve good will and I have every expectation that both branches of the professions will have such an attitude in these matters.
The last thing in the world that I wish to do is to create a system that does not work. On the other hand, I believe that there is a great deal to be said for direct negotiations. The noble and learned Lord, Lord Ackner, was talking about equiperating the situation with the private field. In the private situation, the person who is instructing the solicitor or counsel hopes to be able to make some arrangement with him, although ex post facto if there is a dispute about that there can be a taxation. However, if he is in a position to reach agreement in advance, that is surely the best arrangement. Accordingly, although I have listened carefully to all that has been said by the noble Lord, Lord Benson, and other noble Lords and noble and learned Lords who have supported this idea, I do not find the arguments persuasive. I invite your Lordships not to accept this amendment.
Lord Ackner: My Lords, I have listened carefully but sadly to my noble and learned friend the Lord Chancellor. I shall have in due course to return to my room, find my copy of Counsel, and where it says "I welcome advice", I must put a little asterisk, and at the footnote say "Save on legal aid fee matters". My noble and learned friend Lord Hailsham referred to the report of Coopers & Lybrand. I shall not go into the merits of it, but the very fact that he contested its acceptability shows the desirability of an independent fees advisory committee.
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When I spoke in that debate I did not deal with the contents of the Coopers & Lybrand report. I referred to the position on the ground, which was this. There is a queue of highly competent young lawyers seeking to go into chambers who do not do legally assisted work—or very little of it. It is quite the opposite with regard to chambers which specialise in or do only legal aid work. There is a flight from the Bar from those quarters that do legal aid work.
I spoke to the Attorney-General of Hong Kong some 18 months ago. He was astonished at the number of experienced and competent members of the English Bar seeking to obtain a very modest appointment in his office, with all the anxieties and problems that that country faces in the near future. I know, not only because I too have been president of the Senate, chairman of the Bar, and treasurer of my inn but from the fact that I have a son-in-law and a daughter at the Bar, that members of the Bar are changing over as fast as they can, if they can, from legally assisted work to private work. From the point of view of the public interest the future that we envisage is quite simply this. This will involve more expense because work incompetently done means work which takes longer to do and where the risk of a wrong decision with appellate work is subsequently increased.
This is really the last-ditch stand to breathe back into Clause 32 some semblance of fairness. In view of the attitude which has now been adopted twice by my noble and learned friend the Lord Chancellor, reluctantly but with no other alternative I ask for an opportunity to test the views of the House.
7.6 p.m.
On Question, Whether the said amendment (No. 54) shall be agreed to?
Their Lordships divided: Contents, 63; Not-Contents, 96.

DIVISION NO. 2

CONTENTS

Ackner, L. [Teller.]

Griffiths, L. [Teller.]

Airedale, L.

Halsbury, E.

Attlee, E.

Hampton, L.

Barnett, L.

Hanworth, V.

Benson, L.

Hatch of Lusby, L.

Blease, L.

Hylton-Foster, B.

Briginshaw, L.

Irvine of Lairg, L.

Carlisle of Bucklow, L.

Jeger, B.

Carmichael of Kelvingrove, L.

John-Mackie, L.

Carter, L.

Kilbracken, L.

Cledwyn of Penrhos, L.

Kirkhill, L.

Cocks of Hartcliffe, L.

Llewelyn-Davies of Hastoe, B.

Colville of Culross, V.

McNair, L.

David, B.

Mason of Barnsley, L.

Dean of Beswick, L.

Meston, L.

Diamond, L.

Mishcon, L.

Donoughue, L.

Napier and Ettrick, L.

Dormand of Easington, L.

Nicol, B.

Elwyn-Jones, L.

Northfield, L.

Ennals, L.

Pitt of Hampstead, L.

Ewart-Biggs, B.

Ponsonby of Shulbrede, L.

Foot, L.

Roskill, L.

Gallacher, L.

Ross of Marnock, L.

Galpern, L.

Serota, B.

Greenhill of Harrow, L.

Simon of Glaisdale, L.

Greenway, L.

Stedman, B.

Grey, E.

Stewart of Fulham, L.

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Stoddart of Swindon, L.

Underhill, L.

Strabolgi, L.

White, B.

Taylor of Blackburn, L.

Wigoder, L.

Taylor of Mansfield, L.

Wilberforce, L.

Turner of Camden, B.

NOT-CONTENTS

Alexander of Tunis, E.

Long, V.

Arran, E.

Lucas of Chilworth, L.

Ashbourne, L.

Mackay of Clashfern, L.

Auckland, L.

Macleod of Borve, B.

Barber, L.

Mar, C.

Bauer, L.

Margadale, L.

Beaverbrook, L.

Marley, L.

Beloff, L.

Marshall of Leeds, L.

Belstead, L.

Merrivale, L.

Bethell, L.

Mersey, V.

Blatch, B.

Morris, L.

Boyd-Carpenter, L.

Mottistone, L.

Brabazon of Tara, L.

Mountevans, L.

Butterworth, L.

Mowbray and Stourton, L.

Cameron of Lochbroom, L.

Munster, E.

Campbell of Alloway, L.

Murton of Lindisfarne, L.

Carnock, L.

Nelson, E.

Chelwood, L.

Nugent of Guildford, L.

Coleraine, L.

Orkney, E.

Craigavon, V.

Orr-Ewing, L.

Craigmyle, L.

Oxfuird, V.

Crickhowell, L.

Pender, L.

Croft, L.

Peyton of Yeovil, L.

Davidson, V. [Teller.]

Pym, L.

Denham, L. [Teller.]

Reay, L.

Derwent, L.

Renton, L.

Dundee, E.

Robertson of Oakridge, L.

Eden of Winton, L.

Rodney, L.

Elibank, L.

St. Aldwyn, E.

Elliot of Harwood, B.

Salisbury, M.

Elliott of Morpeth, L.

Saltoun of Abernethy, Ly.

Faithfull, B.

Sandford, L.

Fanshawe of Richmond, L.

Sandys, L.

Fortescue, E.

Selkirk, E.

Gardner of Parkes, B.

Skelmersdale, L.

Gridley, L.

Southborough, L.

Hailsham of Saint

Stockton, E.

Marylebone, L.

Strange, B.

Harmar-Nicholls, L.

Swansea, L.

Havers, L.

Swinfen, L.

Hesketh, L.

Thomas of Gwydir, L.

Hood, V.

Thurlow, L.

Hooper, B.

Trefgarne, L.

Jenkin of Roding, L.

Trumpington, B.

Johnston of Rockport, L.

Vinson, L.

Kinloss, Ly.

Windlesham, L.

Kinnoull, E.

Wyatt of Weeford, L.

Lawrence, L.

Wynford, L.

Lindsey and Abingdon, E.

Resolved in the negative, and amendment disagreed to accordingly.
Viscount Long: My Lords, I suggest that this would be a convenient moment at which to break for dinner. I propose that further consideration on Report be adjourned until 8.15 p.m.
Moved accordingly, and, on Question, Motion agreed to.

Industrial Training Levy (Engineering Board) Order 1988
7.15 p.m.
The Earl of Dundee The Earl of Dundee rose to move, That the draft order laid before the House on 13th January be approved [12th Report from the Joint Committee].
The noble Earl said: My Lords, our debate today takes place because any industrial training levy order which involves a levy exceeding 1 per cent. of an employer's payroll must receive parliamentary approval under the Industrial Training Act 1982. In the case of the engineering board, one part of the levy proposals—that covering site employees in the mechanical and electrical engineering construction sector—establishes a levy rate of 1.12 per cent. and thus requires approval under the affirmative resolution procedure.
The board's levy proposals for 1988 show no change from those approved by this House in March last year. The board anticipates that it will raise some £19·6 million from the levy after allowing for exemptions. The levy will apply to those firms which fall within the scope of the board between the date that the order comes into force and 31st August 1988.
The levy proposals are in two parts; the first applying to mainstream engineering and the second to the mechanical and electrical engineering construction industry. I shall briefly outline the proposals in both sectors. For mainstream engineering establishments the board proposes a total levy of 1 per cent. of an employer's payroll. For an establishment with fewer than 1,000 employees, 0·08 per cent. of payroll will be non-exemptible. Larger establishments will pay a non-exemptible levy of 0·08 per cent. in respect of the first 1,000 employees, and 0·072 per cent. in respect of the remainder. The bulk of the levy is therefore exemptible; that is, employers who train satisfactorily will be given credit for this and will not be required to pay the maximum levy to the board. In addition, firms employng 40 workers or less will be excluded totally from paying levy. Some 68 per cent. of firms employing 12 per cent. of the workforce will be excluded from levy because of their size.
Turning to the mechanical and electrical engineering construction sector, again the levy proposals are the same as those approved last year. In this sector, arrangements differ for workers employed on-site and those employed off-site. For on-site employees, no levy is payable on the first £50,000 of payroll. Above that, a non-exemptible levy of 1.12 per cent. will apply, and 31 per cent. of establishments employing 0.5 per cent. of the workforce will be below this levy threshold.
For off-site employees, establishments with up to 30 employees will be excluded from levy. This will mean that some 79 per cent. of establishments employing 11 per cent. of the workforce will not pay the levy. Establishments with more than 30 employees will be levied at 1 per cent. of payroll. The non-exemptible element of this levy will be 0.15 per cent.
The raising of a non-exemptible levy in excess of 0.2 per cent. in the on-site sector means that the board must satisfy another requirement of the Industrial Training Act 1982. That is, that there should be a proven employer consensus in the industry for the proposals. Employer organisations representing more than half of the employers liable to pay levy—and also organisations representing employers liable to pay more than half the total levy

69
between them— have confirmed their agreement to the proposals, thus satisfying the conditions required by the Act.
The proposals before the House were approved unanimously by the board and the Manpower Services Commission. They are necessary for the board to carry out its function of stimulating and encouraging training within the industry so that our engineering firms can compete and succeed in the international markets of this high technology age. I commend them to your Lordships. I beg to move.
Moved. That the draft order laid before the House on 13th January be approved [12th Report from the Joint Committed]—(The Earl of Dundee.)
Baroness Turner of Camden: My Lords, I thank the noble Earl for his explanation of the Industrial Training Levy (Engineering Board) Order. We on this side of the House welcome it. It is my understanding that it has the support of both sides of industry; the trade unions and the employers. The Engineering Industry Training Board has a good record of training and we believe that the order will help its work. On a personal note, I should like to say that I am glad that the EITB has had a significant effect upon the training of women in the engineering industry. It has done a great deal to encourage women to take up training in the engineering industry and has recently started a range of initiatives to encourage their training in this non-traditional field.
With those few remarks, I welcome the order. It will help the industry and the training within it. It is necessary to have training in this important high-tech industry for manufacturing, for exports and for the general economy.
On Question, Motion agreed to.
Lord Beaverbrook: My Lords. I beg to move that the House do now adjourn during pleasure until 8.15 p.m.
Moved accordingly, and, on Question, Motion agreed to.
[The Sitting was suspended from 7.21 to 8.15 p.m.]

Legal Aid Bill [H.L.]
Consideration of amendments on Report resumed.
Clause 33 [Advisory Committee]:
[Amendment No. 55 not moved.]
Lord Elwyn-Jones Lord Elwyn-Jones moved Amendment No. 56:
Page 28, line 35, leave out subsection (5).
The noble and learned Lord said: My Lords, this is an important amendment and its purpose is to ensure the continuing existence of the Lord Chancellor's Legal Aid Advisory Committee. That committee was established under the Legal Aid Act 1974. I well remember its first report because I had the benefit of it at that time, occupying the honourable position that the noble and learned Lord the Lord Chancellor occupies now. Throughout my term I found it of very great assistance to the work of the department, the courts and the public. Its members are appointed by the Lord Chancellor for their knowledge of the work
70
of the courts and social conditions, and they include members of the judiciary, solicitors in private practice, a justices' clerk, a chief taxing master, barristers, academics and representatives of advice organizations—in other words, a splendid cross-section of the users of the legal system and those who carry out important functions in it.
The committee's statutory responsibility has proved to be of abundant value and over the years the committee has established its worth as an informed critic of the Law Society's administration of legal aid and indeed as a generator of ideas for the development of legal services. It has a distinguished record as an independent commentator on legal aid and legal services and an impartial voice for the public interest in these matters. It has carried out detailed inquiries into various aspects of the legal aid scheme covering both policy issues and administration.
The annual reports that the committee has published have been an enormous stimulus to improvement of legal aid and its services. The report of 1983–84 reported on a detailed inquiry into eligibility for legal aid covering both financial and non-financial criteria in both civil and criminal proceedings. More recently the report for 1985–86 expressed serious concern at the decrease in eligibility for legal aid for families with children, caused by the reduction in dependants' allowances, and also criticised the mounting delays in granting certificates and in the payment of bills. In that way, through its reports, it has rendered very great service indeed to the administration of justice.
On Second Reading the Lord Chancellor expressed the view that with the establishment of the Legal Aid Board there would be no need to retain the advisory committee, which would represent at times, as the noble and learned Lord suggested, an unnecessary duplication. But the functions of the Legal Aid Board, are, after all, in replacement of those carried out up to now by the Law Society. That function in regard to the Law Society was valuable and we think that the continuing function in regard to the Legal Aid Board will be of equal value. The board will be under a duty to report to the Lord Chancellor. That is provided for in Clause 4, but it also can act as a watchdog in the same way as in a sense the advisory committee has acted as a watchdog on the Law Society and has reported constantly upon it in a valuable way.
What is important is that the operation of the legal aid scheme will continue to be monitored by an independent body which can advise and make recommendations for improvements. The board's own function will be managerial. Its job will be to run the legal aid scheme, and the need for its work to be monitored by an independent body which can advise and make recommendations for improvement, standing a little outside the legal aid scheme but nevertheless being a part of it, would be of value. Indeed, I cannot see how the new Legal Aid Board can fulfil that role of monitoring and watching the whole scheme when its primary job will be management and administration of the legal aid scheme itself. In our submission therefore the

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emergence of the Legal Aid Board will not render superfluous the continued existence of the Legal Aid Advisory Committee. On the contrary, it will be a valuable supplement to it.
The Bill proposes the continuance of the committee, presumably until the Legal Aid Board settles in. However, the clause which seeks to delete it—namely, Clause 33(5) and (6)—provides that:
"The Lord Chancellor may, by order dissolve the advisory committee on such day as is specified in the order and on that day this section shall cease to have effect except as regards the defrayal out of money provided by Parliament of the allowances falling to be paid".
Therefore, with that power under Clause 33(5) the Lord Chancellor may at any time in his discretion order the dissolution of the advisory committee. The subsequent subsection (6) gives the Lord Chancellor power to do so by statutory instrument, which shall be subject to annulment, but I believe I am right in saying that it has been amended and will now require affirmative decisions by both Houses; at least, I greatly hope that that is so.
We are anxious about the possibility that at any time—I shall not say at the drop of a hat, a wig or whatever it may be—the Lord Chancellor can terminate the advisory committee, which in our view should continue in existence. The knowledge that it is still in existence will give confidence to all concerned in the administration of justice. If I may say so, to hold the threat of its dissolution over the new arrangements will I fear put a question mark over the reliability of the new set-up for legal aid. In those circumstances, I beg to move.
Lord Ackner: My Lords, being at heart an unrepentant optimist, I thought I would return to the Chamber because this is not an amendment to establish a new advisory committee but to retain an existing one. I thought those impressive words "I welcome advice" might at least inure for the benefit of that which already exists. In that happy frame of mind, I support this amendment.
8.30 p.m.
The Lord Chancellor: My Lords, like noble and learned Lords who preceded me as Lord Chancellor, in administering the legal aid scheme I have welcomed the advice of the Legal Aid Advisory Committee. I heartily endorse the tributes that have been paid to its work. Over the years its reports have been extremely valuable.
However, we have to recognise that the Legal Aid Board to be established under this Bill is to be given the power to advise me on the provision of advice, assistance and representation under the Bill when enacted. The board will be closely involved with the management of the system but, as I said earlier, I expect it to be independent, to have a mind of its own and therefore to be in a position to give advice on the whole range of matters that fall within the operation of the legal aid scheme.
While of course, as the noble and learned Lord, Lord Ackner, said, I welcome advice, it may not be wise to create or to continue in existence too many advice agencies. The possibility is that as this scheme
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with the Legal Aid Board gets under way and settles down, the functions of the Legal Aid Advisory Committee may be overtaken. There is bound to be an overlap and it is possible that those functions may be overtaken.
As I have said before, parliamentary time is at a premium. If in the future it is foreseeable that that should happen it is right to take the power in the primary legislation to discontinue this advice. At the moment this advice is obligatory because of the statutory provisions of the Legal Aid Advisory Committee under which it has to function. It is because it may prove an unnecessary committee in the future that I think it right to include in the Bill power to discontinue it. At present I have no intention of discontinuing it, at least for some time. I have explained that to the Legal Aid Advisory Committee. In fact within the last few weeks I have appointed two new members, and I had the pleasure of meeting them last Thursday at a meeting of the committee which I attended.
I believe that it would be prudent to include in the Bill a power for the future to discontinue the committee if that seemed to be right in the light of the development of the system. The present proposal in the Bill is for that to be done by way of a negative resolution. I can understand the importance of this matter. It may go some way to dealing with the point if I say that, in relation to the Legal Aid Advisory Committee, I am willing to consider changing that to an affirmative resolution procedure. The noble and learned Lord, Lord Elwyn-Jones, and I have our names jointly to the amendment to delete subsection (6). That is consequential on the way in which I have been dealing with the earlier undertakings that I gave. On this occasion I wish to add to these undertakings to consider whether or not the power to dissolve the committee should be exercised only after an affirmative resolution of both Houses.
The Legal Aid Advisory Committee discussed with me matters that I believe were raised by the noble Lord, Lord Mishcon, in amendments proposed in Committee. I believe I am right in saying that the noble Lord, Lord Irvine of Lairg, also took part in these discussions about the relationship—so long as the two organisations lasted—between the Legal Aid Advisory Committee and the Legal Aid Board. Certain matters were brought to my attention at this meeting to which I have referred which I shall want to consider further. I have not lost sight of that aspect of the matter, although I believe it is not the subject of particular amendments at this stage of the Bill. It may be that for that transitional period it would be right to make arrangements which are not dissimilar to those applying to the Law Society at the moment.
I also have to consider that this new Legal Aid Board is independent and it is a new body. A certain degree of sensitivity must be shown in the nature of the relations that are created between itself and the Legal Aid Advisory Committee. There is no question of either being subservient to the other and care must be taken to balance these matters. Subject to that I am prepared to go that length with the noble and learned Lord. I certainly feel that it would be only prudent to leave in some mechanism for

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discontinuance of this particular form of advice in the light of the development of the system as a whole.
Lord Irvine of Lairg: My Lords, I wonder whether the noble and learned Lord would explain how the new Legal Aid Board can conceivably become a watchdog in the public interest over a system which it is administering? Does he not understand that the public can have confidence only in a watchdog which both is and is seen to be independent.
The Lord Chancellor: My Lords, with the leave of the House, I shall answer that by saying that the Legal Aid Advisory Committee may be described as a watchdog, but I am not sure that that is a particularly appropriate name for a body of this distinction. Its reports are not the reports of a watchdog exactly; they are more the reports of independent persons of constructive mind indicating ways in which the legal aid system as a whole might be improved.
For example, I am not conscious—I may be wrong about this—of it picking out particular aspects of the Law Society's administration which require attention in the way that a watchdog would. In the public service there are other watchdogs—at least there are other persons not described by that name—which act in that capacity. Some of them have been referred to already in these debates. The Legal Aid Advisory Committee has a much more constructive and independent role than that of a watchdog. I believe I am right in saying that the principal reason that the reports of the Law Society are put before it is so that it may have a comprehensive understanding of the way in which the system is operating. I believe that the Legal Aid Board itself will be an independent operator of the system. Obviously it cannot be independent of itself, but it consists of independent people who take pride in the system which they are operating. They will be able to give the kind of constructive advice which hitherto has come from the Legal Aid Advisory Committee.
I am not saying now that it is impossible that there should be a role for both of them indefinitely. All I am saying is that it is possible that there will not be a role for both of them indefinitely and that it is prudent to take account of that possibility in the primary legislation and to provide a power if needs be—I underline these words—to discontinue the Legal Aid Advisory Committee.
Lord Harmar-Nicholls: My Lords, I think that this is a point where legal expertise is necessary. This is a practical point. The clause which the noble Lord would have deleted says that the Lord Chancellor may dissolve the advisory committee. The noble and learned Lord, who has sat on the Woolsack and who has had vast experience, said that he found the advisory committee very helpful indeed and that he would be reluctant for it to go.
The noble and learned Lord who now sits on the Woolsack, who has equivalent experience in terms of the practicalities, believes that it may well be that the new Legal Aid Board, when it is set up, will be able to carry out the functions adequately, sensibly and effectively. The noble and learned Lord who was
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previously on the Woolsack did not have a Legal Aid Board, as it will be, from which to draw a comparison. If this matter arose in any of the businesses with which I am connected, I would hope that sensible precautions have been taken to avoid a big mistake. The board and the advisory committee will both operate for a period. They will both be available to be called upon. If the noble and learned Lord who happens to be Lord Chancellor after this Bill becomes an Act finds that that board is incapable of giving the kind of advice on this issue which the advisory committee gave, then he will not make use of the power we are now giving to him.
If he finds that it is a good thing, there would be no point in duplication. No doubt the lawyers know that in their field duplication is just as disturbing and frustrating as it is in the business field in which some of us have to operate. If in actual practice it appears that the advisory committee is still necessary, then it will carry on. On the other hand, if after having the board and the committee working for a period the Lord Chancellor thinks that it is no longer necessary, then why have the duplication? I should have thought that this is a practical and sensible way of approaching it. Under those circumstances I hope that those of us who are not legal experts will be able to offer some practical advice and say, "Don't clutter yourselves up unnecessarily with any clauses in a contract which you do not think the successful running of your business requires".
Lord Wigoder: My Lords, I hope the noble Lord, Lord Harmar-Nicholls, will forgive me, but is it not the normal practice in your Lordships' House that on Report stage debate should not break out after the spokesman for the Government has made his reply to a particular amendment, and that the only remaining contribution should normally be on behalf of the movers of the amendment as to the course which is then recommended.
Lord Harmar-Nicholls: My Lords, may I say that I have not recognised that even as an accepted convention either in the other House or this, and I have sat in one or another of them for 36 years. If the convention is as the noble Lord has said, then I shall apologise but hope that heed will be taken of what I have said.
Lord Renton: My Lords, my understanding has been after only eight years in your Lordships' House that on Report stage the main convention is that we may only speak once except with the leave of the House. The mover of an amendment has a right of reply, but even after the government spokesman has declared the government case, the matter is still open for debate. Indeed, it may be in the interests of the Government that further views should be heard. Sometimes they are invited.
Lord Mishcon: My Lords, only for the sake of clarity and not out of any intelligence of ingenuity, I happen to have taken advice. So that we know at least how our proceedings ought to be dealt with, perhaps I may say that the convention appears to be that after the Minister has spoken in answer for the Government, the mover of any amendment thereupon speaks. The only person who can speak

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after the Minister is the Minister himself, if it were not for the mover, and he does it by leave of the House. As I have said, I have taken advice; it is not my own edict.
Lord Renton: It is not the practice.
Lord Elwyn-Jones: My Lords, one is almost rendered speechless by all these qualifications and conditions about the right of free speech in your Lordships' House. However, I understand that I am entitled to say something in reply.
I should like in particular to take up the queries of the noble Lord opposite. The problem that will have to be faced is that the new board will have a managerial role. It will not be an advisory role as is the case with the Lord Chancellor's Legal Aid Advisory Committee. At present one has the Law Society and its machinery on the one side doing the managing plus the Legal Aid Advisory Committee. Hereafter, instead of the Law Society, there will be the managerial board. It is at the very least as important that its work should be the subject of review as in the case of the Law Society.
When I was speaking of the role of the advisory committee as a watchdog in reply to what the noble and learned Lord the Lord Chancellor has said, I was not saying that that was its only function. On the contrary, I pointed out that it has initiated some rather exciting lines of progress and advance in the legal aid field.
Certainly this is not an hour to test the opinion of your Lordships' House, but it may be that the noble Lord will give further thought to what I venture—I hope not too arrogantly—to call a warning. I think the attitude of the Government to the continued existence of the advisory committee would be something of a touchstone of their willingness not to dominate with this chosen board which will have the managerial role. I venture to think that there will be considerable alarm and despondency if this advisory committee in the fullness of time has to go. The noble Lord has said that there is certainly not any immediate intention to do that. My noble friend Lord Mishcon and myself have joined with the noble Lord on the question of Amendment No. 57 in leaving out subsection (6). However, the words used by the noble and learned Lord did not convey that that was a must, but gave the impression that that was only possible. It may be that I misunderstood the noble and learned Lord in that respect, but I think it must be a must. On those terms, I hope I have not broken any of the laws of the Medes and Persians and Welshmen and Scotsmen and all else. I ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
8.45 p.m.
The Lord Chancellor The Lord Chancellor moved Amendment No. 57:
Page 28, line 40, leave out subsection (6).
The noble and learned Lord said: My Lords, I have already explained that this amendment is in line with the performance of the undertakings I gave changing some of these regulation-making powers to the
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affirmative resolution procedure. This in itself does not have the effect of making this particular clause subject to the affirmative resolution procedure; but I have undertaken to consider that and shall do so. I beg to move.
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No. 58:
After Clause 33, insert the following new clause:
("Orders and regulations: general.
—(1) Any power under this Act to make an order or regulations shall be exercisable by statutory instrument.
(2) As respects orders under this Act other than orders under section 43—

(a) except in the case of an order under section 2(4), any instrument containing the order shall be subject to annulment in pursuance of a resolution of either House of Parliament:

(b) in the case of an order under section 2(4), no such order shall be made unless a draft of it has been laid before and approved by resolution of each House of Parliament.

(3) As respects regulations under this Act—

(a) except in the case of regulations under section 7, 13(2) and 30(5), any instrument containing the regulations shall be subject to annulment in pursuance of a resolution of either House of Parliament;

(b) in the case of regulations under section 7, 13(2) or 30(5), no such regulations shall be made unless a draft of them has been laid before and approved by resolution of each House of Parliament.").

The noble and learned Lord said: My Lords, this new clause is inserted again in pursuance of the undertakings that I gave and in order to give a power to use the affirmative resolution procedure in particular cases. I believe that it follows the undertakings which I gave in Committee. The matter I have just discussed remains for Third Reading. I shall certainly intimate to your Lordships at Third Reading precisely what I propose in that connection. In the meantime, the purpose of this amendment is to carry out undertakings already given. I beg to move.
Lord Elwyn-Jones: I think there were one or two instances in an earlier debate when we were discussing this point when the noble and learned Lord intimated that he would have a look at it again, and perhaps he would do so.
Lord Wigoder: My Lords, I hope that the attendance in your Lordships' House is at this moment so emaciated that I might be allowed to make a few observations that might be thought to be marginally relevant, and escape censure in so doing.
I should like to query the value which we sometimes place in your Lordships' House on whether orders should be confirmed by negative or affirmative resolutions. It appears to me in the light of the current political and constitutional situation to make far less difference than we sometimes suppose. We sometimes believe in your Lordships' House that we have achieved something positive if we change a negative procedure to an affirmative procedure. Those bodies outside your Lordships' House which assist us so voluminously with their advice appear to think that they have achieved even more if such a step is taken.
In the present circumstances, if an order is made in another place it is 100 per cent. certain that it will go through. In present circumstances, when it comes to your Lordships' House the position is that we have

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no power whatsoever to amend it and by constitutional practice we have no power to vote against it. So there is absolutely nothing in effect that we can do about it.
The vice occurs in a Bill of this nature where there is a piece of principal legislation which creates vast regulation-making powers conferred upon the Minister. I can understand the reasons for that; but it is undoubtedly a very effective way of escaping parliamentary scrutiny so far as concerns your Lordships' House. I should therefore like to place on record my own protest—and I do not want to make a Second Reading speech—at the procedures under this Bill which have given such extensive regulation-making powers to the Lord Chancellor, and to say that I believe the debate as between whether something should be by the affirmative or negative procedure is not a very important debate in the present rather unhappy situation in which we find ourselves.
If that situation continues, in due course we may have to consider very seriously whether the present convention under which we do not vote in the ordinary way against an order that has been passed by another place should be allowed to continue.
Lord Renton: My Lords, having listened to what the noble Lord, Lord Wigoder, said, I think we should bear in mind that, although inevitably a good many statutory instruments will be made as a result of the powers given by the Bill, if there were fewer statutory instruments there would have to be many more clauses in the Bill. For better or worse, the view has been taken in the past that when there is a good deal of detail which may have to be altered from time to time it is better done by statutory instrument than by having to alter the principal legislation. For that reason, although I was a little alarmed when I found that there were to be more than 50 statutory instruments, the reality of the situation with regard to the Bill is that it is inevitable.
The noble Lord rather poured scorn on the difference between the affirmative and the negative procedure. With respect to him, he overlooked, or at least played down, the advantage that the Lord Chancellor will have to give an explanation before the House considers the statutory instrument on the affirmative procedure, whereas on the negative procedure no such explanation will come until a Member of your Lordships' House tables a Prayer. We know, as the noble Lord pointed out, that we rarely do that. So there is a real constitutional advantage even to us in your Lordships' House in having the affirmative procedure, and, as I said earlier, the Lord Chancellor deserves credit for the extent to which he has enlarged the opportunities for it.
Lord Simon of Glaisdale: My Lords, we seem to have strayed rather far from the amendment but I should like to say how profoundly I agree with the noble Lord, Lord Wigoder. In a number of respects we quite unduly fetter our role as a revising and scrutinising Chamber. He has identified one. Another is the so-called Salisbury rule. There is no conceivable reason why your Lordships, who after all in your
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composition are more representative of political society at large than any other institution, should not exercise your full powers. Those powers are limited only by the Parliament Act. I have a Motion down for ballot on this matter, but as I never win a ballot or a raffle I thought I would take this opportunity to say how profoundly I agree with what the noble Lord, Lord Wigoder, said.
Lord Harmar-Nicholls: My Lords, there is one point on which I think we ought to try to clear our minds. The noble Lord, Lord Wigoder, said that it was the House of Lords that was not able to fulfil its complete duty as he saw it by using statutory instruments. I accept what my noble friend has said. I do not see how we could carry through the amount of legislation we do without having the assistance of statutory instruments. However, I think that he was being perhaps a little insular in thinking that the present system does not give protection against the wrong thing being done. Whether or not, under a convention or a rule, the House of Lords cannot amend or turn down a statutory instrument, the other place can.
Lord Renton: My Lords, the other place cannot amend statutory instruments. It can reject them.
Lord Harmar-Nicholls: My Lords. I thank my noble friend. I thought that it had the power to amend too, but apparently I am wrong and I withdraw that remark. Parliament has the power to reject, and so the fact that one part of Parliament does not have the same amount of ultimate influence as the other part does not remove the point that Parliament has the power. That is what we are part of and that is where the power is. I do not think that the benefit of having the statutory instrument in terms of saving time, space and printing should be criticised in the way the noble Lord did just because the ultimate power of Parliament having the last word is vested in the other place and not in this Chamber.
Lord Mishcon: My Lords, I felt very much like Rip Van Winkle when the noble Lord, Lord Wigoder, rose because it seemed as if I was waking up and hearing debates that had taken place on other parts of the Bill during his much regretted absence. My noble and learned friend Lord Elwyn-Jones counted the number of regulations. We debated it then and we found that it was more than 50. We decided—or some of us decided—that that was possibly not the best way of dealing with primary legislation
Two points arise—and I say this very quickly because we want to get on with other amendments and with more relevant debates. There is an argument for legislating not by primary legislation but by regulation in order to ensure that the statute book is not piled up with unnecessary clauses, a point made by the noble Lord, Lord Renton.
Lord Renton: And detail.
Lord Mishcon: My Lords, the problem arises where legislation refers to regulations without Parliament, whether it is the Commons of your Lordships' House, really knowing the nature of those

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regulations when it passes the Act. That is the real difficulty with which we are very often faced. I know that the noble and learned Lord the Lord Chancellor will forgive me if I say that this has occurred so often during the course of this Bill that we deal with matters by sheer generality and talk in terms of later regulations when this House as the revising Chamber and as part of the legislative machine of government has not the slightest idea what those regulations are going to be. However, the power is given and, if I may revert to the point made by the noble Lord, Lord Wigoder, and subsequent speakers, the matter comes either by affirmative or negative resolution.
Perhaps I may explain to the noble Lord, Lord Wigoder, why we have fought so hard, not being able to know the nature of the regulations, for the affirmative resolution. With the affirmative procedure, if people are interested enough there is bound to be a debate in your Lordships' House and we can put a point of view which we hope the Minister will consider. If the negative procedure is adopted one has to put down a petition in order to negative. That procedure is a little cumbersome. Many of us forget about it and remember only when it is all too late. From these Benches I copy my noble and learned friend Lord Elwyn-Jones in a plea. It has been correctly pointed out to me that I should have used the word "Prayer" and not "Petition". I am most grateful. One has to lodge a Prayer and not a Petition. It sounds very much more ethical and religious and in those circumstances is a very much nicer procedure, I am sure.
My plea is this. Where a matter is of vital importance in connection with the Bill it should be in the Bill even if it makes it more cumbersome. If one has to legislate by secondary legislation and by giving the power to regulate, at least the Minister in charge—and I say this with all deference to the noble and learned Lord—on a material and vital matter should be able before the Bill leaves this Chamber to give some indication of what the regulations are likely to be wherever that is possible. That is the plea that was made from these Benches. I repeat it now.
9 p.m.
The Lord Chancellor: My Lords, as I have understood the observations that have fallen from your Lordships since I last spoke, not much doubt has been cast on the propriety of approving Amendment No. 58. I am glad about that.
However, on the more general matters which have been raised, I have one or two comments. First, I am not sure whether the noble Lord, Lord Wigoder, was present when I pointed out that the noble and learned Lord, Lord Elwyn-Jones, had taken time to count the number of regulation-making powers in the Bill and arrive at a figure of 56. Similarly, I thought that to while away a little time I might count the number of regulation- and scheme-making powers in the legislation that we are replacing I discovered that it was about 60. It would seem that we are making improvements in the direction requested.
Secondly, the noble Lord, Lord Wigoder, said that we have a sense of achievement because we have
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managed to move from the negative to the affirmative resolution procedure. I should like to encourage a sense of achievement. I believe it is good for us all to feel that we have achieved something. He questioned whether our achievements are as great as we think. Sometimes it is good to feel that we have done something well, and I should not like to be the one to reduce that sense of well-being which your Lordships have so far attained.
As regards the effectiveness of one procedure against the other, I have taken seriously the points that have been made on the matter by the noble and learned Lord, Lord Elwyn-Jones. I was encouraged on Second Reading to know that his most important criticism of the Bill was that it had that number of regulation-making powers. On the whole, I thought that that was as much of an endorsement for the principle of the Bill as one could expect in the circumstances. But I believe that there is a difference between the affirmative and negative resolution in regard to changing matters.
Where we are proposing a change—as has already been said, by the noble Lord, Lord Renton, and others—an explanation has to be given to the House. As the noble Lord, Lord Mishcon, says, there must be a debate. The Government have to decide what their explanation is before they start; whereas with the negative resolution procedure they need only to think of an explanation after the Prayer is tabled. Surely therefore there is some progress in that change.
I have two comments to make about the point made by the noble Lord, Lord Mishcon, on the Minister coming forward with all the regulations before the Bill leaves the House. First, many of the regulations are already in place under existing legislation, and they will continue in operation for some time. Secondly, it is a difficult task to try to show what the regulations will be until one knows what one's powers will be. After all, your Lordships must not be assumed to have accepted those regulations without change. We have seen a number of changes (to many of which I have agreed) in the course of the constructive debates that we have had. One can just imagine the work what would be thrown away if we had been trying to draft regulations under powers that were subsequently amended.
However, there is a more fundamental point with regard to these regulation-making powers. They are intended to enable the system to adapt to change and therefore to focus on proposals that the Minister may have to present is to miss the point. The point is to consider the general provisions of the primary legislation and whether it is appropriate to grant those powers. The whole object of the exercise is to create the possibility of adaptation to circumstances. The Minister would be failing in his duty if he did not take advantage of that flexibility to adapt the system to new circumstances continuously. We cannot return continously to your Lordships' House with primary legal aid legislation. I am sure that your Lordships would soon become tired of that. Accordingly, it is right to take this advantage to put the structure into place, with provisions for adaptation as circumstances develop. That is what the system seeks to do.

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To present a picture of what the regulations might be at a time not yet reached could well be misleading It could be work which might well prove to be utterly unproductive. I hope that noble Lords feel that I have tried to respond to the requests that have been made, and that by agreeing to the affirmative resolution procedure in a number of cases we have improved the Bill and made progress.
On Question, amendment agreed to.
Clause 39 [Finance]:
[Amendment No. 58A not moved.]
Lord Mishcon Lord Mishcon moved Amendment No. 58B:
Page 31, line 17, leave out ("with the approval of the Treasury").
The noble Lord said: My Lords, I wonder whether your Lordships remember that in Committee, not for the first or the last time, I made an error. That error was during a debate with regard to Treasury approval having to be obtained thus putting, as I submitted to the Committee, some manacles on the noble and learned Lord's wrists which we would wish him not to have.
The arguments for the continuance of the use of those words and against their omission was that the "approval of the Treasury" had to be obtained before the money supply and the amount of it could reach the Lord Chancellor's Department. I submitted to that argument and when the noble and learned Lord, with complete fairness, called the first amendment to leave out,
"with the approval of the Treasury".
I said, "Not moved" or I asked for leave to withdraw. Then, by mistake, when he called the amendment for the second time I said, "Not moved". That error spoilt the opportunity to test the Committee's view on whether the approval of the Treasury was necessary in the second case; namely, in Clause 39. I should like to refer your Lordships to Clause 39. That provides:
"The Lord Chancellor shall pay to the Board out of money provided by Parliament … such sums",
as are mentioned in the clause. I need not repeat them. It continues:
"as he may, with the approval of the Treasury, determine are required for the other expenditure of the Board".
I admit at once that the consent of the Treasury is necessary for that purpose. Continue, if your Lordships will, to read subsection (2) of Clause 39:
"The Lord Chancellor may … determine the manner in which and the times at which the sums referred to in subsection (1)(a) above shall be paid to the Board; and … impose conditions on the payment of the sums referred to in subsection (1)(b) above."
There again, the top line of that subsection states, "with the approval of the Treasury".
I make the first point that quite obviously the question of the determination of the manner in which and times at which sums shall be paid out and the imposition of conditions on the payment should be the Lord Chancellor's province. There is no need for him to obtain the approval of the Treasury. If the answer to my objection is that this must for some reason be approved by the Treasury, then I ask why the words are in the Act in any event.
So with some confidence I move the amendment Lit Report stage which by my own error I was unable to move and on which I was unable to take the view of the Committee at the Committee stage. I beg to move.
Lord Simon of Glaisdale: My Lords, I support this amendment. On the face of it, it is a quite unimportant amendment because whether these words remain in or come out of the Bill makes absolutely no difference to what will happen on the ground. When I say "on the ground", I mean in Parliament Square; crossing from Treasury Chambers in Great George Street to the office of my noble and learned friend on the Woolsack at the other end of the building. The same people will talk to each other, the same approval will be sought and acquired, the same decision will be arrived at. That applies both to Amendment No. 58A and to Amendment No. 58B.
Although on the face of it this is a supremely unimportant amendment in the sense that it will change nobody's conduct at all, there is real significance behind it. The phrase is a silly one which is increasingly creeping into statutes. As my noble and learned friend the Lord Chancellor said in Committee, unnecessary words should not be in a statute. The noble Lord, Lord Mishcon, has just pointed out much the same thing and it was repeated by the noble Lord, Lord Renton. So, for that reason as well, the draftsmen and those who give instructions to the draftsmen should be warned off this phrase. It appears over and over again in statutes; in this Bill it occurs on almost every page. It is a great waste of money.
However, there is yet another reason why this amendment is important and why the draftsmen should not put in this phrase with a sort of neurotic tic whenever the Treasury might be concerned with any decision. That is because it brings the Treasury into intense detestation and vilification.
Perhaps I may come to that in a moment, but first I shall deal with whether this phrase is necessary at all. Noble Lords will remember that in the early part of this Bill a Legal Aid Board is set up. It has to maintain two accounts: one is the legal aid fund; the other is all the income and expenditure other than that connected with the legal aid fund. As the noble Lord, Lord Mishcon, said in Committee, this is a very difficult clause to understand because one has to go backwards and forwards to Clause 5, where two different subsections are being referred to and a number of different paragraphs under those two subsections. What it amounts to is that, so far as the legal aid fund is concerned, the Legal Aid Board must enter any receipts. Those receipts will be such as contributions made by legally aided persons. There are many others recited in the Bill. The expenditure, on the other hand, is the disbursement of money as reward for those who give legal advice, legal assistance and legal representation. Of course there is an enormous gap between the small receipts and the enormous disbursements. That gap is made up with money voted by Parliament. That is what Clause 39(1)(a) is concerned with.

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But in addition to that there is the other account of the other kinds of receipts and disbursements. The receipts will again be money provided by the public; the disbursements will be on such things as staff, accommodation, and other matters. Those matters are referred to in Clause 39(1)(b).
In Committee I ventured to challenge my noble and learned friend the Lord Chancellor with the question: if those words "with the consent of the Treasury" are left out, whose action will be altered in any way, and in what way? My noble and learned friend the Lord Chancellor gave two answers. The first was a flight of fancy which it would be, I think, kind to describe as a near miss. It was that his department might be sued by the Legal Aid Board. The essence of the argument was that, although the approval of the Treasury made no difference to the operation of subsection (1)(b) or subsection (2) of Clause 39, it did denote an absence from subsection (1). My noble and learned friend's first immediate reply was that that would be useful if his department were sued by the Legal Aid Board.
The Legal Aid Board is appointed by the noble and learned Lord the Lord Chancellor. It is subject to his directions and regulations. It is his creature. It is of course a matter of pure fantasy to think of the Legal Aid Board suing my noble and learned friend. I do not think that more need be said about that, because my noble and learned friend had a more substantial argument. That was that the presence in subsection (1)(b) and in subsection (2) of the words,
"with the approval of the Treasury",
would draw the attention of the accounting officer in his department to the fact that they were not contained in subsection (1)(a).
There are a number of things to be said about that argument. First, that style of draftsmanship is calculated to appeal exclusively to those who prefer to scratch their right ear with their left hand. Secondly, the accounting officer of the department of the noble and learned Lord the Lord Chancellor needs no reminder that he need not have the approval of the Treasury under subsection (1)(a), because that is money voted by Parliament. Money which is voted by Parliament in the Committee of Supply in the other place cannot be interfered with by the Treasury or anybody else. It must be used exclusively for the purpose for which it is voted.
Thirdly, the accounting officer needs no reminder of that because he is the senior official in the department of my noble and learned friend. He is the Clerk of the Crown in Chancery. Subject to my noble and learned friend himself, he is responsible for the drafting of this Bill and knows excactly what is in it. The presence of phrases that have no influence or effect in Clause 39(1)(b) or in subsection (2) is not needed and cannot be needed to denote their effect on subsection (1)(a).
So far as concerns subsection (1)(b) regarding other expenditure of the board, that is a matter of daily and routine discussion between every spending department and the Treasury. It does not need writing into every Act of Parliament. It takes place
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whether or not the words are on the face of the Bill. The same applies in respect of subsection (2)(a).
The money I mentioned to your Lordships is voted by the other place in Committee of Supply but it cannot all be appropriated by the spending department on the first day of the financial year. For example, there may be a Vote for the pay of the army. Certainly the Ministry of Defence cannot claim that the whole of that sum should be paid over on the first day of the financial year. That expenditure must be discussed with the Treasury as to when and how it is needed. That is cleared by subsection (2)(a) so it is not necessary for it to appear both in subsection (1)(a) and (b) and in subsection (2)(a).
So far as concerns subsection (2)(b), my noble and learned friend did not seem very certain for what purpose it was meant. My feeling is that it is the kind of provision that the draftsman might make on the instruction of officials in case it turned out to be useful in some way or another that cannot be envisaged at the moment. The only case mentioned by my noble and learned friend the Lord Chancellor was money is paid over subject to a contingency; in other words, when it was not immediately required by the spending department—in this case, by the Legal Aid Board—but might in the future be needed for some purpose, in which case it would be a stipulation that the money was not to be spent until that condition had been satisfied. But that again is the subject of everyday discussion with the Treasury.
There is to be found in your Lordships' House one former Chancellor of the Exchequer and four Chief Secretaries. I do not see any of them present at the moment, but I do see the noble Viscount, Lord Eccles, who is a great expert on these matters. I say, subject to any challenge, that the words in question are utterly unnecessary for any purpose and should be removed.
My noble and learned friend has virtually agreed with that view. After the Committee stage I wrote to him about two other points but mentioned in passing that I thought he should look again at this clause. He was good enough not only to do so but also to write to me about the matter. He said:
"As we both know, it is a matter of routine that the kind of matters covered by Clause 39 are discussed and agreed between my Department and the Treasury, and this is inevitable and right".
That puts more succinctly what I have been endeavouring to lay before your Lordships. He goes on:
"I am not persuaded that, simply because Treasury approval is sought as a matter of routine, specific reference to it in the Bill is unnecessary. A clear reference on the face of the Bill makes the Treasury's concern and involvement explicit. I believe that removing the reference would encourage the view that the Treasury is not and should not be involved".
That is the end of the passage.
This particular statutory phrase is a comparative novelty and was not needed before to ensure Treasury control. After all, there was Mr. Gladstone as Chancellor of the Exchequer with his policy of candle-ends. He did not need the expression "with the approval of the Treasury". I have forgotten the name of the noble Earl whose grandfather was "Black Michael" Hicks-Beach. He was a Chancellor of the Exchequer so terrifying to every spending

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department that he was able to impose a budget before the Omdurman campaign was undertaken. He did not need the phrase.
Shortly after the Renton Report, when we were fairly full of hope that the statute book might at last be streamlined and redundant phrases removed, I remember raising on a Home Office Bill the question of the desirability of the phrase "with the consent of the Treasury". I had raised the matter at Committee stage in the debate on whether the clause should stand part of the Bill. The noble Lord, Lord Elton, who was then a Home Office Minister, said that he knew perfectly well that those were matters of everyday discussion. Emboldened by that observation, I put down an amendment at Report stage to omit those words; but by that time unfortunately his arm had been twisted.
It was said that Treasury officials felt more comfortable if that phrase was in the Bill notwithstanding the fact that for centuries we had managed without it. Since then the phrase has appeared habitually and in this Bill it has appeared so frequently that it has reduced my noble and learned friends who were in the Chamber earlier this evening to such a frenzy that on the third day in Committee your Lordships were kept up till midnight before their frenzy was exhausted. By that time it was not only their frenzy that was exhausted.
The Treasury does itself immense harm by insisting, as it does, that this phrase should be in the Bill. Throughout our discussions it has, quite wrongly, been a subject of vilification. At every stage I have endeavoured to put the Treasury case. However, in so far as concerns this phrase its actions are utterly misconceived and it is doing itself immense damage. In my time I have seen departments suffer and grow weak because they were the subject of habitual criticism.
I remember not long ago, a decade or so ago, the Home Office became a byword for obscurantism—I think wrongly— and its most moderate and sensible proposals were looked at askance for that reason. If the Treasury insists on that kind of phrase, the same will happen to it. Its whole authority will be diminished. My noble and learned friend said that this was not a Treasury draft; it was drafted in his department. That is true, but it is not the whole truth. It is true in the sense that the Minister in charge of the Bill is responsible for its drafting; but it is also true that a clause of this sort is not put into a Bill until it has been cleared with the Treasury. Adverting to my exchange with the noble Lord, Lord Elton, as a matter of history this phrase comes in because the Treasury, quite wrongly, likes to have it in.
Therefore if the noble Lord, Lord Mishcon, carries this matter to a Division—I do not suppose that he will at this time of night—I shall support him wholeheartedly.
9.30 p.m.
Lord Renton: My Lords, I also support this amendment. I shall do so very briefly. The noble and learned Lord, Lord Simon of Glaisdale, speaks with all the knowledge and experience of a former Financial Secretary to the Treasury. I fully endorse
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what he says so far as it is within my knowledge. However, perhaps I may quickly refer to a point which I think is worth underlining. During our debate on the amendment to leave out the earlier phrase in line 15, my noble and learned friend the Lord Chancellor pointed out why the Treasury's approval was not required in relation to subsection (1)(a) of this clause. Yet in subsection (2)(a), which refers only to subsection (1)(a), we find that the words "with the approval of the Treasury" have been inserted to cover that. That cannot be consistent with what my noble and learned friend said on the earlier occasion.
On subsection (2)(a)—which admittedly refers to subsection (1)(a)—I would say this. The Lord Chancellor has already been provided with the money to which subsection (2)(b) refers. All that arises on the wording of subsection (2)(b) is whether he shall have power to impose conditions without the approval of the Treasury. Bearing in mind that he has been provided with the money, it seems nonsensical to insist that the Treasury should also have to give approval to any conditions which he in his wisdom considers are necessary. I therefore hope that my noble and learned friend will consider very seriously what has been said.
The Lord Chancellor: My Lords, I undertook to consider these matters between Committee and Report stages. In response to a letter from my noble and learned friend Lord Simon of Glaisdale, to which he has made reference, I replied to him in some detail although he kindly said that his letter did not call for a reply.
I have considered this matter with as much seriousness as I can command. I have to say in the first place that these provisions are intended to create legal obligations between the board and the Lord Chancellor. My noble and learned friend Lord Simon of Glaisdale says that the board will never sue the Lord Chancellor; it is a figment of my heated imagination. He may not have put it like that: that is taking it to extremes. It was a near miss, as he put it; a fantasy.
I am trying here to define legal obligations. In a well-regulated society disputes sometimes arise, as we discussed earlier. They have to he resolved by the position at law. Everyday matters continue happily. The Treasury, the Lord Chancellor's Department, the Legal Aid Board and possibly even the legal aid profession are all agreed. But some unfortunate day may come when there is a dispute. The dispute cannot be regulated by what is normally done, what is the understanding or what happens when everybody is agreed. It has to be resolved by reference to the statutory obligations that are imposed by the Bill, when it becomes an Act, on the various parties. I pointed out at Committee a very important distinction between Clause 39(1)(a) and Clause 39(1)(b). From the introduction to the amendment by the noble Lord, Lord Mishcon, I appreciated that he clearly understood that much of my response, because he has accepted that to have the approval of the Treasury in Clause 39(1)(b) is perfectly appropriate, although I suspect that the argument of my noble and learned friend Lord Simon of

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Glaisdale, if taken to its logical conclusion, would delete that phrase as well.
However the phrase that the noble Lord, Lord Mishcon, has chosen for his attack this time is the opening phrase in Clause 39(2). Here the Treasury is the department responsible for ensuring that the money voted by Parliament is used in accordance with the statutory obligations upon the various Ministers, is used properly and in a way which conforms with proper accounting practice and all that kind of thing. That is the Treasury's responsibility and the Treasury approval to the conditions which I might impose under Clause 39(2)(b) is part of that.
My noble and learned friend Lord Simon of Glaisdale says that if I have this it is not necessary that the approval of the Treasury should apply to the conditions. But that is part of the working out of the arrangements. The conditions which I might impose will have to conform with the standards necessary for proper public accounting, as set by the Treasury, and that great department of state is subject to the Public Accounts Committee and has to satisfy it. The truth is that the approval of the Treasury is accepted as being required and what I have sought to do is to set out the legal relationships correctly and in the appropriate detail upon which that understanding is based. I believe that it makes for good administration clearly to set out the responsibilities of the various Ministers and Ministeries when statutory obligations are being imposed.
My noble and learned friend said that Gladstone did not require this phrase. I think it is fair to say that the technique of judicial review and the calling to account of Ministers by the courts has developed somewhat since Gladstone's day. It is important that if a Minister such as the Lord Chancellor is subjected to judicial review the legal obligations that are in question and the particular consents he must get from others are properly before the court. I regard it as necessary accurately to reflect these relationships in the conditions which are imposed.
As I said, I believe it is fundamental that the Lord Chancellor should have an unconditional obligation to pay to the board the sums referred to in Clause 39(1)(a)—the content of which I explained on the last occasion and shall not repeat—but it is appropriate that the Treasury should insist on the manner and times at which these sums are to be paid. In other words, the obligation to pay is absolute but the manner and times at which the sums should be paid is a matter that is not absolute but is subject to proper financial control.
For these reasons in my submission to your Lordships the words,
"with the approval of the Treasury",
are not unnecessary but they accurately reflect the legal relationships between the parties. It is the purpose of the Bill among other things to set these out.
When I stated that the Bill was drafted on the instructions of my department and that I took responsibility for it, my noble and learned friend said that that was the truth but not the whole truth. Of
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course other departments are interested in a Bill drafted on the instructions of my department. However, the theory that the Treasury can include this provision without my approval is not appropriate. The Bill as now presented to your Lordships is my responsibility. It is on the basis of that responsibility that it is presented to the House.
Lord Mishcon: My Lords, at one stage I thought it was a predetermined tactic to talk out my amendment and that was not the purpose with which I moved it. Having said that, I should like to thank the noble and learned Lord, Lord Simon of Glaisdale, and the noble Lord, Lord Renton, for supporting the amendment. Nothing in the world will convince me that in an Act of Parliament such as this there should be the provision that the Lord Chancellor cannot determine the way in which money is to be distributed and so forth without the approval of the Treasury.
Having said that, I should like to thank the noble and learned Lord for the explanation of his point of view, if I may use those words. The time is late—even later than I anticipated when I moved the amendment—and at this stage it would be wrong to ask your Lordships to express a view. The noble and learned Lord has heard the views expressed in favour of the amendment by those far more experienced than I. I ask him with his usual patience to agree to consider the arguments put forward on this occasion and in a fuller House and at a more civilised time we can deal with the matter at Third Reading if necessary. In those circumstances I beg leave to withdraw the amendment, hoping that the noble and learned Lord will accept the suggestion that I respectfully made to him.
Amendment, by leave, withdrawn.
Clause 43 [Short title, commencement and extent]:
The Lord Chancellor The Lord Chancellor moved Amendments Nos. 59 and 60:
Page 32, line I, leave out ("made by statutory instrument").
Page 32, line 34, leave out ("made by statutory instrument").
The noble and learned Lord said: My Lords, Amendments Nos. 59 and 60 are consequential on what I have already sought to explain. With the leave of the House, I beg to move the amendments en bloc.
On Question, amendments agreed to.
Schedule 2 [Civil proceedings.' scope of Part IV representation]:
Lord Mishcon Lord Mishcon moved Amendment No. 61:
Page 36, line 25, at end insert—
("8. Arbitration proceedings.").
The noble Lord said: My Lords, I hope to move this amendment as briefly as I did the last. I pray that the debate will not last as long as with the last one. At the Committee stage of the Bill I suggested that it would be useful and perhaps essential to introduce into the legal aid provision a cover for arbitration proceedings in certain circumstances; in other words, the means test, if I may describe it in that summarised form, would still exist. However, in deserving and

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proper cases, and where it would appear that the arbitration was worth while, legal aid cover should be available to those who need it.
I shall not repeat my speech but on that occasion I drew the Committee's attention to the fact that many contracts are now entered into for minor matters, as many of your Lordships may think, concerning little people and that there is an arbitration clause in the contract. The Consumers' Association is keen about this matter, especially in cases where dealing with arbitration proceedings would be a hardship if it fell upon the purse of the kind of people I have in mind. It would be a sensible and proper provision to cover the issue, especially when aribitration sometimes saves an awful lot of time in the courts and so forth.
I also drew attention to some Landlord and Tenant Act cases, but I shall not weary your Lordships with that again at this time. I hope that in the circumstances the noble and learned Lord at the conclusion of a fairly happy day—not very happy for those of us who have been trying to move amendments—would at least bring a smile to our faces as we leave this Chamber by adopting this amendment. I beg to move.
9.45 p.m.
The Lord Chancellor: My Lords, I endeavoured to explain in Committee, in answering a very similar amendment, that I do not feel that arbitration proceedings are very high on the list of priorities to which legal aid might be extended. Since then there has been a development which is perhaps worthy of note and that is that a Member in another place has proposed a Private Members' Bill called the Consumer Arbitration Agreements Bill and it has been given a Second Reading in another place. The effect of that would be to open up the courts to small arbitrations to some extent. I put the matter fairly generally and not as precisely as Mr. Pawsey has done or may yet do.
The result of that may, to some extent, deal with the points made by the noble Lord, Lord Mishcon, both tonight and in Committee, although I appreciate that it may not deal with them all. There is one aspect of construction contracts with which it may not deal. However, it is perhaps a move in the right direction so far as the noble Lord is concerned that the courts' jurisdiction may be extended and thus legal aid extended in some of these disputes which are at present covered by arbitration proceedings. However, I regret that I am not able to bring a smile to your Lordships' faces in the way suggested by the noble Lord on this particular occasion. But—who knows?—I may be able to do so on some other occasion.
Lord Mishcon: My Lords, having been given some hope that a smile will be on the faces of certain of your Lordships who will be trying to improve this Bill on Third Reading, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Schedule 4 [Amendments of the Legal Aid (Scotland) Act 1986]:
The Lord Advocate (Lord Cameron of Lochbroom)The Lord Advocate (Lord Cameron of Lochbroom) moved Amendment No. 61A:
Page 40, line 7, at beginning insert—
("( ) In section 16 —

(a)subsection (1) is repealed;

(b)in subsection (2), the words "In this section and" are repealed.").

The noble and learned Lord said: My Lords, in speaking to this amendment, with your Lordships' leave I shall also speak to Amendments Nos. 61B to 61E and Amendment No. 62A. Part I of Schedule 4 amends the Legal Aid (Scotland) Act 1986 in order to alter the arrangements for the collection of contributions from assisted persons in civil cases so that payment will become a matter of settlement between solicitor and client. The amendments now proposed are mainly concerned with clarifying a number of points of detail which were raised by the Scottish Legal Aid Board and by the Law Society of Scotland. First, they are designed to put beyond doubt that the payment of the contribution is entirely a matter between solicitor and client, and that is effected by Amendments Nos. 61B and 61C. Secondly, to provide that the solicitor's right to collect the contribution is established as soon as the board have assessed the account; that is effected by Amendment Nos. 61D. Thirdly, to remove an apparent conflict between Sections 16 and 17 as regards payment into the fund of expenses recovered. That is effected by Amendment No. 61A to which Amendment No. 62A is consequential. Amendment No. 61E is a drafting point. I beg to move Amendment No. 61A.
Lord Mishcon: My Lords, in order to show the flexibility of at least one side of the House, we have no objection to these amendments.
On Question, amendment agreed to.
Lord Cameron of Lochbroom Lord Cameron of Lochbroom moved Amendments Nos. 61B to 61E:
Page 40, line 8, after ("words") insert ("from "by the Board" to").
Page 40, line 9, before ("the") insert ("to contribute to").
Page 40, line 25, at end insert (", but an account of expenses which has been approved for payment by the Scottish Legal Aid Board shall not be liable to taxation by an auditor of court in any proceedings.").
Page 40, line 32, leave out ("legally assisted person") and insert ("the person concerned").
On Question, amendments agreed to.
Schedule5[Minor and Consequential Amendments]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 62:
Page 44, leave out lines 8 to 13 and insert—
("21. Section 64 of the Family Law Act 1986 (family proceedings rules) shall cease to have effect.").
The noble and learned Lord said: My Lords, this amendment is consequential upon the deletion of reference to Section 64 of the Family Law Act. It gives specific power to the Family Proceedings Rules Committee to differentiate in rules as to costs in legal aid cases and in private cases.
Under the Bill there will no longer be any need for the committee to differentiate between these two types of costs since the Lord Chancellor will in future set out in regulations such matters as relate to legal aid. This amendment will remove the corresponding provisions in the Family Law Act which are no longer necessary. I beg to move.
Lord Elwyn-Jones: My Lords, with Celtic adaptability, I approve of this amendment. Is this perhaps to be regarded as a precursor to a family court?
The Lord Chancellor: My Lords, in the sense that any family court will come after this, I suppose it is true that this is a precursor to the family court, but I have to say that the contribution that this amendment makes to that is minimal.
Your Lordships know that I am very concerned that the proper arrangements should be made in relation to children both in the substantive law and in procedural law, but it would be quite wrong of me to claim that this is a step in that direction.
On Question, amendment agreed to.
Schedule 6 [Repeals]:
Lord Cameron of Lochbroom Lord Cameron of Lochbroom moved Amendment No. 62A:
Page 45, line 51, column 3, after ("Section") insert ("16(1), in section 16(2) the words "in this section and'', and section").
The noble and learned Lord said: My Lords, this is a consequential amendment. I beg to move.
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No. 63:
Page 46, line 3, at end insert—("1986 c.55. The Family Law Act 1986. Section 64.").
The noble and learned Lord said: My Lords, this amendment is consequential on Amendment No. 62 that I have already moved. I beg to move.
On Question, amendment agreed to.

University College London Bill [H.L.]
Returned from the Commons agreed to with amendments; the amendments considered and agreed to.
House adjourned at seven minutes before ten o'clock.