HL Deb 08 February 1988 vol 493 cc36-67

4.55 p.m.

Consideration of amendments on Report resumed on Clause 32.

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 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 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 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 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.

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 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 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.

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 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 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 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. 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 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. 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 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 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 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 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.

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 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 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: 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 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 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 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 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 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 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 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 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.

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.
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.