Legal Aid Bill [H.L.] (Hansard, 8 February 1988)

HL Deb 08 February 1988 vol 493 cc69-91 69

§ Consideration of amendments on Report resumed.

§ Clause 33 [Advisory Committee]:

§ [Amendment No. 55 not moved.]

§ Lord Elwyn-Jonesmoved Amendment No. 56: Page 28, line 35, leave out subsection (5).

§ The noble and learned Lord said: My Lords, this is an important amendment and its purpose is to ensure the continuing existence of the Lord Chancellor's Legal Aid Advisory Committee. That committee was established under the Legal Aid Act 1974. I well remember its first report because I had the benefit of it at that time, occupying the honourable position that the noble and learned Lord the Lord Chancellor occupies now. Throughout my term I found it of very great assistance to the work of the department, the courts and the public. Its members are appointed by the Lord Chancellor for their knowledge of the work 70 of the courts and social conditions, and they include members of the judiciary, solicitors in private practice, a justices' clerk, a chief taxing master, barristers, academics and representatives of advice organizations—in other words, a splendid cross-section of the users of the legal system and those who carry out important functions in it.

§ The committee's statutory responsibility has proved to be of abundant value and over the years the committee has established its worth as an informed critic of the Law Society's administration of legal aid and indeed as a generator of ideas for the development of legal services. It has a distinguished record as an independent commentator on legal aid and legal services and an impartial voice for the public interest in these matters. It has carried out detailed inquiries into various aspects of the legal aid scheme covering both policy issues and administration.

§ The annual reports that the committee has published have been an enormous stimulus to improvement of legal aid and its services. The report of 1983–84 reported on a detailed inquiry into eligibility for legal aid covering both financial and non-financial criteria in both civil and criminal proceedings. More recently the report for 1985–86 expressed serious concern at the decrease in eligibility for legal aid for families with children, caused by the reduction in dependants' allowances, and also criticised the mounting delays in granting certificates and in the payment of bills. In that way, through its reports, it has rendered very great service indeed to the administration of justice.

§ On Second Reading the Lord Chancellor expressed the view that with the establishment of the Legal Aid Board there would be no need to retain the advisory committee, which would represent at times, as the noble and learned Lord suggested, an unnecessary duplication. But the functions of the Legal Aid Board, are, after all, in replacement of those carried out up to now by the Law Society. That function in regard to the Law Society was valuable and we think that the continuing function in regard to the Legal Aid Board will be of equal value. The board will be under a duty to report to the Lord Chancellor. That is provided for in Clause 4, but it also can act as a watchdog in the same way as in a sense the advisory committee has acted as a watchdog on the Law Society and has reported constantly upon it in a valuable way.

§ What is important is that the operation of the legal aid scheme will continue to be monitored by an independent body which can advise and make recommendations for improvements. The board's own function will be managerial. Its job will be to run the legal aid scheme, and the need for its work to be monitored by an independent body which can advise and make recommendations for improvement, standing a little outside the legal aid scheme but nevertheless being a part of it, would be of value. Indeed, I cannot see how the new Legal Aid Board can fulfil that role of monitoring and watching the whole scheme when its primary job will be management and administration of the legal aid scheme itself. In our submission therefore the 71 emergence of the Legal Aid Board will not render superfluous the continued existence of the Legal Aid Advisory Committee. On the contrary, it will be a valuable supplement to it.

§ The Bill proposes the continuance of the committee, presumably until the Legal Aid Board settles in. However, the clause which seeks to delete it—namely, Clause 33(5) and (6)—provides that: The Lord Chancellor may, by order dissolve the advisory committee on such day as is specified in the order and on that day this section shall cease to have effect except as regards the defrayal out of money provided by Parliament of the allowances falling to be paid". Therefore, with that power under Clause 33(5) the Lord Chancellor may at any time in his discretion order the dissolution of the advisory committee. The subsequent subsection (6) gives the Lord Chancellor power to do so by statutory instrument, which shall be subject to annulment, but I believe I am right in saying that it has been amended and will now require affirmative decisions by both Houses; at least, I greatly hope that that is so.

§ We are anxious about the possibility that at any time—I shall not say at the drop of a hat, a wig or whatever it may be—the Lord Chancellor can terminate the advisory committee, which in our view should continue in existence. The knowledge that it is still in existence will give confidence to all concerned in the administration of justice. If I may say so, to hold the threat of its dissolution over the new arrangements will I fear put a question mark over the reliability of the new set-up for legal aid. In those circumstances, I beg to move.

§ Lord Ackner
My Lords, being at heart an unrepentant optimist, I thought I would return to the Chamber because this is not an amendment to establish a new advisory committee but to retain an existing one. I thought those impressive words "I welcome advice" might at least inure for the benefit of that which already exists. In that happy frame of mind, I support this amendment.

§ 8.30 p.m.

§ The Lord Chancellor
My Lords, like noble and learned Lords who preceded me as Lord Chancellor, in administering the legal aid scheme I have welcomed the advice of the Legal Aid Advisory Committee. I heartily endorse the tributes that have been paid to its work. Over the years its reports have been extremely valuable.
However, we have to recognise that the Legal Aid Board to be established under this Bill is to be given the power to advise me on the provision of advice, assistance and representation under the Bill when enacted. The board will be closely involved with the management of the system but, as I said earlier, I expect it to be independent, to have a mind of its own and therefore to be in a position to give advice on the whole range of matters that fall within the operation of the legal aid scheme.
While of course, as the noble and learned Lord, Lord Ackner, said, I welcome advice, it may not be wise to create or to continue in existence too many advice agencies. The possibility is that as this scheme 72 with the Legal Aid Board gets under way and settles down, the functions of the Legal Aid Advisory Committee may be overtaken. There is bound to be an overlap and it is possible that those functions may be overtaken.
As I have said before, parliamentary time is at a premium. If in the future it is foreseeable that that should happen it is right to take the power in the primary legislation to discontinue this advice. At the moment this advice is obligatory because of the statutory provisions of the Legal Aid Advisory Committee under which it has to function. It is because it may prove an unnecessary committee in the future that I think it right to include in the Bill power to discontinue it. At present I have no intention of discontinuing it, at least for some time. I have explained that to the Legal Aid Advisory Committee. In fact within the last few weeks I have appointed two new members, and I had the pleasure of meeting them last Thursday at a meeting of the committee which I attended.
I believe that it would be prudent to include in the Bill a power for the future to discontinue the committee if that seemed to be right in the light of the development of the system. The present proposal in the Bill is for that to be done by way of a negative resolution. I can understand the importance of this matter. It may go some way to dealing with the point if I say that, in relation to the Legal Aid Advisory Committee, I am willing to consider changing that to an affirmative resolution procedure. The noble and learned Lord, Lord Elwyn-Jones, and I have our names jointly to the amendment to delete subsection (6). That is consequential on the way in which I have been dealing with the earlier undertakings that I gave. On this occasion I wish to add to these undertakings to consider whether or not the power to dissolve the committee should be exercised only after an affirmative resolution of both Houses.
The Legal Aid Advisory Committee discussed with me matters that I believe were raised by the noble Lord, Lord Mishcon, in amendments proposed in Committee. I believe I am right in saying that the noble Lord, Lord Irvine of Lairg, also took part in these discussions about the relationship—so long as the two organisations lasted—between the Legal Aid Advisory Committee and the Legal Aid Board. Certain matters were brought to my attention at this meeting to which I have referred which I shall want to consider further. I have not lost sight of that aspect of the matter, although I believe it is not the subject of particular amendments at this stage of the Bill. It may be that for that transitional period it would be right to make arrangements which are not dissimilar to those applying to the Law Society at the moment.
I also have to consider that this new Legal Aid Board is independent and it is a new body. A certain degree of sensitivity must be shown in the nature of the relations that are created between itself and the Legal Aid Advisory Committee. There is no question of either being subservient to the other and care must be taken to balance these matters. Subject to that I am prepared to go that length with the noble and learned Lord. I certainly feel that it would be only prudent to leave in some mechanism for 73 discontinuance of this particular form of advice in the light of the development of the system as a whole.

§ Lord Irvine of Lairg
My Lords, I wonder whether the noble and learned Lord would explain how the new Legal Aid Board can conceivably become a watchdog in the public interest over a system which it is administering? Does he not understand that the public can have confidence only in a watchdog which both is and is seen to be independent.

§ The Lord Chancellor
My Lords, with the leave of the House, I shall answer that by saying that the Legal Aid Advisory Committee may be described as a watchdog, but I am not sure that that is a particularly appropriate name for a body of this distinction. Its reports are not the reports of a watchdog exactly; they are more the reports of independent persons of constructive mind indicating ways in which the legal aid system as a whole might be improved.
For example, I am not conscious—I may be wrong about this—of it picking out particular aspects of the Law Society's administration which require attention in the way that a watchdog would. In the public service there are other watchdogs—at least there are other persons not described by that name—which act in that capacity. Some of them have been referred to already in these debates. The Legal Aid Advisory Committee has a much more constructive and independent role than that of a watchdog. I believe I am right in saying that the principal reason that the reports of the Law Society are put before it is so that it may have a comprehensive understanding of the way in which the system is operating. I believe that the Legal Aid Board itself will be an independent operator of the system. Obviously it cannot be independent of itself, but it consists of independent people who take pride in the system which they are operating. They will be able to give the kind of constructive advice which hitherto has come from the Legal Aid Advisory Committee.
I am not saying now that it is impossible that there should be a role for both of them indefinitely. All I am saying is that it is possible that there will not be a role for both of them indefinitely and that it is prudent to take account of that possibility in the primary legislation and to provide a power if needs be—I underline these words—to discontinue the Legal Aid Advisory Committee.

§ Lord Harmar-Nicholls
My Lords, I think that this is a point where legal expertise is necessary. This is a practical point. The clause which the noble Lord would have deleted says that the Lord Chancellor may dissolve the advisory committee. The noble and learned Lord, who has sat on the Woolsack and who has had vast experience, said that he found the advisory committee very helpful indeed and that he would be reluctant for it to go.
The noble and learned Lord who now sits on the Woolsack, who has equivalent experience in terms of the practicalities, believes that it may well be that the new Legal Aid Board, when it is set up, will be able to carry out the functions adequately, sensibly and effectively. The noble and learned Lord who was 74 previously on the Woolsack did not have a Legal Aid Board, as it will be, from which to draw a comparison. If this matter arose in any of the businesses with which I am connected, I would hope that sensible precautions have been taken to avoid a big mistake. The board and the advisory committee will both operate for a period. They will both be available to be called upon. If the noble and learned Lord who happens to be Lord Chancellor after this Bill becomes an Act finds that that board is incapable of giving the kind of advice on this issue which the advisory committee gave, then he will not make use of the power we are now giving to him.
If he finds that it is a good thing, there would be no point in duplication. No doubt the lawyers know that in their field duplication is just as disturbing and frustrating as it is in the business field in which some of us have to operate. If in actual practice it appears that the advisory committee is still necessary, then it will carry on. On the other hand, if after having the board and the committee working for a period the Lord Chancellor thinks that it is no longer necessary, then why have the duplication? I should have thought that this is a practical and sensible way of approaching it. Under those circumstances I hope that those of us who are not legal experts will be able to offer some practical advice and say, "Don't clutter yourselves up unnecessarily with any clauses in a contract which you do not think the successful running of your business requires".

§ Lord Wigoder
My Lords, I hope the noble Lord, Lord Harmar-Nicholls, will forgive me, but is it not the normal practice in your Lordships' House that on Report stage debate should not break out after the spokesman for the Government has made his reply to a particular amendment, and that the only remaining contribution should normally be on behalf of the movers of the amendment as to the course which is then recommended.

§ Lord Harmar-Nicholls
My Lords, may I say that I have not recognised that even as an accepted convention either in the other House or this, and I have sat in one or another of them for 36 years. If the convention is as the noble Lord has said, then I shall apologise but hope that heed will be taken of what I have said.

§ Lord Renton
My Lords, my understanding has been after only eight years in your Lordships' House that on Report stage the main convention is that we may only speak once except with the leave of the House. The mover of an amendment has a right of reply, but even after the government spokesman has declared the government case, the matter is still open for debate. Indeed, it may be in the interests of the Government that further views should be heard. Sometimes they are invited.

§ Lord Mishcon
My Lords, only for the sake of clarity and not out of any intelligence of ingenuity, I happen to have taken advice. So that we know at least how our proceedings ought to be dealt with, perhaps I may say that the convention appears to be that after the Minister has spoken in answer for the Government, the mover of any amendment thereupon speaks. The only person who can speak 75 after the Minister is the Minister himself, if it were not for the mover, and he does it by leave of the House. As I have said, I have taken advice; it is not my own edict.

§ Lord Renton
It is not the practice.

§ Lord Elwyn-Jones
My Lords, one is almost rendered speechless by all these qualifications and conditions about the right of free speech in your Lordships' House. However, I understand that I am entitled to say something in reply.
I should like in particular to take up the queries of the noble Lord opposite. The problem that will have to be faced is that the new board will have a managerial role. It will not be an advisory role as is the case with the Lord Chancellor's Legal Aid Advisory Committee. At present one has the Law Society and its machinery on the one side doing the managing plus the Legal Aid Advisory Committee. Hereafter, instead of the Law Society, there will be the managerial board. It is at the very least as important that its work should be the subject of review as in the case of the Law Society.
When I was speaking of the role of the advisory committee as a watchdog in reply to what the noble and learned Lord the Lord Chancellor has said, I was not saying that that was its only function. On the contrary, I pointed out that it has initiated some rather exciting lines of progress and advance in the legal aid field.
Certainly this is not an hour to test the opinion of your Lordships' House, but it may be that the noble Lord will give further thought to what I venture—I hope not too arrogantly—to call a warning. I think the attitude of the Government to the continued existence of the advisory committee would be something of a touchstone of their willingness not to dominate with this chosen board which will have the managerial role. I venture to think that there will be considerable alarm and despondency if this advisory committee in the fullness of time has to go. The noble Lord has said that there is certainly not any immediate intention to do that. My noble friend Lord Mishcon and myself have joined with the noble Lord on the question of Amendment No. 57 in leaving out subsection (6). However, the words used by the noble and learned Lord did not convey that that was a must, but gave the impression that that was only possible. It may be that I misunderstood the noble and learned Lord in that respect, but I think it must be a must. On those terms, I hope I have not broken any of the laws of the Medes and Persians and Welshmen and Scotsmen and all else. I ask leave to withdraw the amendment.

§ Amendment, by leave, withdrawn.

§ 8.45 p.m.

§ The Lord Chancellor moved Amendment No. 57: Page 28, line 40, leave out subsection (6).

§ The noble and learned Lord said: My Lords, I have already explained that this amendment is in line with the performance of the undertakings I gave changing some of these regulation-making powers to the 76 affirmative resolution procedure. This in itself does not have the effect of making this particular clause subject to the affirmative resolution procedure; but I have undertaken to consider that and shall do so. I beg to move.

§ On Question, amendment agreed to.

§ The Lord Chancellor moved Amendment No. 58: After Clause 33, insert the following new clause:

§ ("Orders and regulations: general.

§ —(1) Any power under this Act to make an order or regulations shall be exercisable by statutory instrument.

§ (2) As respects orders under this Act other than orders under section 43—

(a) except in the case of an order under section 2(4), any instrument containing the order shall be subject to annulment in pursuance of a resolution of either House of Parliament:
(b) in the case of an order under section 2(4), no such order shall be made unless a draft of it has been laid before and approved by resolution of each House of Parliament.

§ (3) As respects regulations under this Act—

(a) except in the case of regulations under section 7, 13(2) and 30(5), any instrument containing the regulations shall be subject to annulment in pursuance of a resolution of either House of Parliament;
(b) in the case of regulations under section 7, 13(2) or 30(5), no such regulations shall be made unless a draft of them has been laid before and approved by resolution of each House of Parliament.").

§ The noble and learned Lord said: My Lords, this new clause is inserted again in pursuance of the undertakings that I gave and in order to give a power to use the affirmative resolution procedure in particular cases. I believe that it follows the undertakings which I gave in Committee. The matter I have just discussed remains for Third Reading. I shall certainly intimate to your Lordships at Third Reading precisely what I propose in that connection. In the meantime, the purpose of this amendment is to carry out undertakings already given. I beg to move.

§ Lord Elwyn-Jones
I think there were one or two instances in an earlier debate when we were discussing this point when the noble and learned Lord intimated that he would have a look at it again, and perhaps he would do so.

§ Lord Wigoder
My Lords, I hope that the attendance in your Lordships' House is at this moment so emaciated that I might be allowed to make a few observations that might be thought to be marginally relevant, and escape censure in so doing.
I should like to query the value which we sometimes place in your Lordships' House on whether orders should be confirmed by negative or affirmative resolutions. It appears to me in the light of the current political and constitutional situation to make far less difference than we sometimes suppose. We sometimes believe in your Lordships' House that we have achieved something positive if we change a negative procedure to an affirmative procedure. Those bodies outside your Lordships' House which assist us so voluminously with their advice appear to think that they have achieved even more if such a step is taken.
In the present circumstances, if an order is made in another place it is 100 per cent. certain that it will go through. In present circumstances, when it comes to your Lordships' House the position is that we have 77 no power whatsoever to amend it and by constitutional practice we have no power to vote against it. So there is absolutely nothing in effect that we can do about it.
The vice occurs in a Bill of this nature where there is a piece of principal legislation which creates vast regulation-making powers conferred upon the Minister. I can understand the reasons for that; but it is undoubtedly a very effective way of escaping parliamentary scrutiny so far as concerns your Lordships' House. I should therefore like to place on record my own protest—and I do not want to make a Second Reading speech—at the procedures under this Bill which have given such extensive regulation-making powers to the Lord Chancellor, and to say that I believe the debate as between whether something should be by the affirmative or negative procedure is not a very important debate in the present rather unhappy situation in which we find ourselves.
If that situation continues, in due course we may have to consider very seriously whether the present convention under which we do not vote in the ordinary way against an order that has been passed by another place should be allowed to continue.

§ Lord Renton
My Lords, having listened to what the noble Lord, Lord Wigoder, said, I think we should bear in mind that, although inevitably a good many statutory instruments will be made as a result of the powers given by the Bill, if there were fewer statutory instruments there would have to be many more clauses in the Bill. For better or worse, the view has been taken in the past that when there is a good deal of detail which may have to be altered from time to time it is better done by statutory instrument than by having to alter the principal legislation. For that reason, although I was a little alarmed when I found that there were to be more than 50 statutory instruments, the reality of the situation with regard to the Bill is that it is inevitable.
The noble Lord rather poured scorn on the difference between the affirmative and the negative procedure. With respect to him, he overlooked, or at least played down, the advantage that the Lord Chancellor will have to give an explanation before the House considers the statutory instrument on the affirmative procedure, whereas on the negative procedure no such explanation will come until a Member of your Lordships' House tables a Prayer. We know, as the noble Lord pointed out, that we rarely do that. So there is a real constitutional advantage even to us in your Lordships' House in having the affirmative procedure, and, as I said earlier, the Lord Chancellor deserves credit for the extent to which he has enlarged the opportunities for it.

§ Lord Simon of Glaisdale
My Lords, we seem to have strayed rather far from the amendment but I should like to say how profoundly I agree with the noble Lord, Lord Wigoder. In a number of respects we quite unduly fetter our role as a revising and scrutinising Chamber. He has identified one. Another is the so-called Salisbury rule. There is no conceivable reason why your Lordships, who after all in your 78 composition are more representative of political society at large than any other institution, should not exercise your full powers. Those powers are limited only by the Parliament Act. I have a Motion down for ballot on this matter, but as I never win a ballot or a raffle I thought I would take this opportunity to say how profoundly I agree with what the noble Lord, Lord Wigoder, said.

§ Lord Harmar-Nicholls
My Lords, there is one point on which I think we ought to try to clear our minds. The noble Lord, Lord Wigoder, said that it was the House of Lords that was not able to fulfil its complete duty as he saw it by using statutory instruments. I accept what my noble friend has said. I do not see how we could carry through the amount of legislation we do without having the assistance of statutory instruments. However, I think that he was being perhaps a little insular in thinking that the present system does not give protection against the wrong thing being done. Whether or not, under a convention or a rule, the House of Lords cannot amend or turn down a statutory instrument, the other place can.

§ Lord Renton
My Lords, the other place cannot amend statutory instruments. It can reject them.

§ Lord Harmar-Nicholls
My Lords. I thank my noble friend. I thought that it had the power to amend too, but apparently I am wrong and I withdraw that remark. Parliament has the power to reject, and so the fact that one part of Parliament does not have the same amount of ultimate influence as the other part does not remove the point that Parliament has the power. That is what we are part of and that is where the power is. I do not think that the benefit of having the statutory instrument in terms of saving time, space and printing should be criticised in the way the noble Lord did just because the ultimate power of Parliament having the last word is vested in the other place and not in this Chamber.

§ Lord Mishcon
My Lords, I felt very much like Rip Van Winkle when the noble Lord, Lord Wigoder, rose because it seemed as if I was waking up and hearing debates that had taken place on other parts of the Bill during his much regretted absence. My noble and learned friend Lord Elwyn-Jones counted the number of regulations. We debated it then and we found that it was more than 50. We decided—or some of us decided—that that was possibly not the best way of dealing with primary legislation
Two points arise—and I say this very quickly because we want to get on with other amendments and with more relevant debates. There is an argument for legislating not by primary legislation but by regulation in order to ensure that the statute book is not piled up with unnecessary clauses, a point made by the noble Lord, Lord Renton.

§ Lord Renton
And detail.

§ Lord Mishcon
My Lords, the problem arises where legislation refers to regulations without Parliament, whether it is the Commons of your Lordships' House, really knowing the nature of those 79 regulations when it passes the Act. That is the real difficulty with which we are very often faced. I know that the noble and learned Lord the Lord Chancellor will forgive me if I say that this has occurred so often during the course of this Bill that we deal with matters by sheer generality and talk in terms of later regulations when this House as the revising Chamber and as part of the legislative machine of government has not the slightest idea what those regulations are going to be. However, the power is given and, if I may revert to the point made by the noble Lord, Lord Wigoder, and subsequent speakers, the matter comes either by affirmative or negative resolution.
Perhaps I may explain to the noble Lord, Lord Wigoder, why we have fought so hard, not being able to know the nature of the regulations, for the affirmative resolution. With the affirmative procedure, if people are interested enough there is bound to be a debate in your Lordships' House and we can put a point of view which we hope the Minister will consider. If the negative procedure is adopted one has to put down a petition in order to negative. That procedure is a little cumbersome. Many of us forget about it and remember only when it is all too late. From these Benches I copy my noble and learned friend Lord Elwyn-Jones in a plea. It has been correctly pointed out to me that I should have used the word "Prayer" and not "Petition". I am most grateful. One has to lodge a Prayer and not a Petition. It sounds very much more ethical and religious and in those circumstances is a very much nicer procedure, I am sure.
My plea is this. Where a matter is of vital importance in connection with the Bill it should be in the Bill even if it makes it more cumbersome. If one has to legislate by secondary legislation and by giving the power to regulate, at least the Minister in charge—and I say this with all deference to the noble and learned Lord—on a material and vital matter should be able before the Bill leaves this Chamber to give some indication of what the regulations are likely to be wherever that is possible. That is the plea that was made from these Benches. I repeat it now.

§ 9 p.m.

§ The Lord Chancellor
My Lords, as I have understood the observations that have fallen from your Lordships since I last spoke, not much doubt has been cast on the propriety of approving Amendment No. 58. I am glad about that.
However, on the more general matters which have been raised, I have one or two comments. First, I am not sure whether the noble Lord, Lord Wigoder, was present when I pointed out that the noble and learned Lord, Lord Elwyn-Jones, had taken time to count the number of regulation-making powers in the Bill and arrive at a figure of 56. Similarly, I thought that to while away a little time I might count the number of regulation- and scheme-making powers in the legislation that we are replacing I discovered that it was about 60. It would seem that we are making improvements in the direction requested.
Secondly, the noble Lord, Lord Wigoder, said that we have a sense of achievement because we have 80 managed to move from the negative to the affirmative resolution procedure. I should like to encourage a sense of achievement. I believe it is good for us all to feel that we have achieved something. He questioned whether our achievements are as great as we think. Sometimes it is good to feel that we have done something well, and I should not like to be the one to reduce that sense of well-being which your Lordships have so far attained.
As regards the effectiveness of one procedure against the other, I have taken seriously the points that have been made on the matter by the noble and learned Lord, Lord Elwyn-Jones. I was encouraged on Second Reading to know that his most important criticism of the Bill was that it had that number of regulation-making powers. On the whole, I thought that that was as much of an endorsement for the principle of the Bill as one could expect in the circumstances. But I believe that there is a difference between the affirmative and negative resolution in regard to changing matters.
Where we are proposing a change—as has already been said, by the noble Lord, Lord Renton, and others—an explanation has to be given to the House. As the noble Lord, Lord Mishcon, says, there must be a debate. The Government have to decide what their explanation is before they start; whereas with the negative resolution procedure they need only to think of an explanation after the Prayer is tabled. Surely therefore there is some progress in that change.
I have two comments to make about the point made by the noble Lord, Lord Mishcon, on the Minister coming forward with all the regulations before the Bill leaves the House. First, many of the regulations are already in place under existing legislation, and they will continue in operation for some time. Secondly, it is a difficult task to try to show what the regulations will be until one knows what one's powers will be. After all, your Lordships must not be assumed to have accepted those regulations without change. We have seen a number of changes (to many of which I have agreed) in the course of the constructive debates that we have had. One can just imagine the work what would be thrown away if we had been trying to draft regulations under powers that were subsequently amended.
However, there is a more fundamental point with regard to these regulation-making powers. They are intended to enable the system to adapt to change and therefore to focus on proposals that the Minister may have to present is to miss the point. The point is to consider the general provisions of the primary legislation and whether it is appropriate to grant those powers. The whole object of the exercise is to create the possibility of adaptation to circumstances. The Minister would be failing in his duty if he did not take advantage of that flexibility to adapt the system to new circumstances continuously. We cannot return continously to your Lordships' House with primary legal aid legislation. I am sure that your Lordships would soon become tired of that. Accordingly, it is right to take this advantage to put the structure into place, with provisions for adaptation as circumstances develop. That is what the system seeks to do.
81 To present a picture of what the regulations might be at a time not yet reached could well be misleading It could be work which might well prove to be utterly unproductive. I hope that noble Lords feel that I have tried to respond to the requests that have been made, and that by agreeing to the affirmative resolution procedure in a number of cases we have improved the Bill and made progress.

§ On Question, amendment agreed to.

§ Clause 39 [Finance]:

§ [Amendment No. 58A not moved.]

§ Lord Mishcon moved Amendment No. 58B: Page 31, line 17, leave out ("with the approval of the Treasury").

§ The noble Lord said: My Lords, I wonder whether your Lordships remember that in Committee, not for the first or the last time, I made an error. That error was during a debate with regard to Treasury approval having to be obtained thus putting, as I submitted to the Committee, some manacles on the noble and learned Lord's wrists which we would wish him not to have.

§ The arguments for the continuance of the use of those words and against their omission was that the "approval of the Treasury" had to be obtained before the money supply and the amount of it could reach the Lord Chancellor's Department. I submitted to that argument and when the noble and learned Lord, with complete fairness, called the first amendment to leave out, with the approval of the Treasury".

§ I said, "Not moved" or I asked for leave to withdraw. Then, by mistake, when he called the amendment for the second time I said, "Not moved". That error spoilt the opportunity to test the Committee's view on whether the approval of the Treasury was necessary in the second case; namely, in Clause 39. I should like to refer your Lordships to Clause 39. That provides: The Lord Chancellor shall pay to the Board out of money provided by Parliament … such sums", as are mentioned in the clause. I need not repeat them. It continues: as he may, with the approval of the Treasury, determine are required for the other expenditure of the Board".

§ I admit at once that the consent of the Treasury is necessary for that purpose. Continue, if your Lordships will, to read subsection (2) of Clause 39: The Lord Chancellor may … determine the manner in which and the times at which the sums referred to in subsection (1)(a) above shall be paid to the Board; and … impose conditions on the payment of the sums referred to in subsection (1)(b) above.

§ There again, the top line of that subsection states, "with the approval of the Treasury".

§ I make the first point that quite obviously the question of the determination of the manner in which and times at which sums shall be paid out and the imposition of conditions on the payment should be the Lord Chancellor's province. There is no need for him to obtain the approval of the Treasury. If the answer to my objection is that this must for some reason be approved by the Treasury, then I ask why the words are in the Act in any event.

§ So with some confidence I move the amendment Lit Report stage which by my own error I was unable to move and on which I was unable to take the view of the Committee at the Committee stage. I beg to move.

§ Lord Simon of Glaisdale
My Lords, I support this amendment. On the face of it, it is a quite unimportant amendment because whether these words remain in or come out of the Bill makes absolutely no difference to what will happen on the ground. When I say "on the ground", I mean in Parliament Square; crossing from Treasury Chambers in Great George Street to the office of my noble and learned friend on the Woolsack at the other end of the building. The same people will talk to each other, the same approval will be sought and acquired, the same decision will be arrived at. That applies both to Amendment No. 58A and to Amendment No. 58B.
Although on the face of it this is a supremely unimportant amendment in the sense that it will change nobody's conduct at all, there is real significance behind it. The phrase is a silly one which is increasingly creeping into statutes. As my noble and learned friend the Lord Chancellor said in Committee, unnecessary words should not be in a statute. The noble Lord, Lord Mishcon, has just pointed out much the same thing and it was repeated by the noble Lord, Lord Renton. So, for that reason as well, the draftsmen and those who give instructions to the draftsmen should be warned off this phrase. It appears over and over again in statutes; in this Bill it occurs on almost every page. It is a great waste of money.
However, there is yet another reason why this amendment is important and why the draftsmen should not put in this phrase with a sort of neurotic tic whenever the Treasury might be concerned with any decision. That is because it brings the Treasury into intense detestation and vilification.
Perhaps I may come to that in a moment, but first I shall deal with whether this phrase is necessary at all. Noble Lords will remember that in the early part of this Bill a Legal Aid Board is set up. It has to maintain two accounts: one is the legal aid fund; the other is all the income and expenditure other than that connected with the legal aid fund. As the noble Lord, Lord Mishcon, said in Committee, this is a very difficult clause to understand because one has to go backwards and forwards to Clause 5, where two different subsections are being referred to and a number of different paragraphs under those two subsections. What it amounts to is that, so far as the legal aid fund is concerned, the Legal Aid Board must enter any receipts. Those receipts will be such as contributions made by legally aided persons. There are many others recited in the Bill. The expenditure, on the other hand, is the disbursement of money as reward for those who give legal advice, legal assistance and legal representation. Of course there is an enormous gap between the small receipts and the enormous disbursements. That gap is made up with money voted by Parliament. That is what Clause 39(1)(a) is concerned with.
83 But in addition to that there is the other account of the other kinds of receipts and disbursements. The receipts will again be money provided by the public; the disbursements will be on such things as staff, accommodation, and other matters. Those matters are referred to in Clause 39(1)(b).
In Committee I ventured to challenge my noble and learned friend the Lord Chancellor with the question: if those words "with the consent of the Treasury" are left out, whose action will be altered in any way, and in what way? My noble and learned friend the Lord Chancellor gave two answers. The first was a flight of fancy which it would be, I think, kind to describe as a near miss. It was that his department might be sued by the Legal Aid Board. The essence of the argument was that, although the approval of the Treasury made no difference to the operation of subsection (1)(b) or subsection (2) of Clause 39, it did denote an absence from subsection (1). My noble and learned friend's first immediate reply was that that would be useful if his department were sued by the Legal Aid Board.
The Legal Aid Board is appointed by the noble and learned Lord the Lord Chancellor. It is subject to his directions and regulations. It is his creature. It is of course a matter of pure fantasy to think of the Legal Aid Board suing my noble and learned friend. I do not think that more need be said about that, because my noble and learned friend had a more substantial argument. That was that the presence in subsection (1)(b) and in subsection (2) of the words, with the approval of the Treasury", would draw the attention of the accounting officer in his department to the fact that they were not contained in subsection (1)(a).
There are a number of things to be said about that argument. First, that style of draftsmanship is calculated to appeal exclusively to those who prefer to scratch their right ear with their left hand. Secondly, the accounting officer of the department of the noble and learned Lord the Lord Chancellor needs no reminder that he need not have the approval of the Treasury under subsection (1)(a), because that is money voted by Parliament. Money which is voted by Parliament in the Committee of Supply in the other place cannot be interfered with by the Treasury or anybody else. It must be used exclusively for the purpose for which it is voted.
Thirdly, the accounting officer needs no reminder of that because he is the senior official in the department of my noble and learned friend. He is the Clerk of the Crown in Chancery. Subject to my noble and learned friend himself, he is responsible for the drafting of this Bill and knows excactly what is in it. The presence of phrases that have no influence or effect in Clause 39(1)(b) or in subsection (2) is not needed and cannot be needed to denote their effect on subsection (1)(a).
So far as concerns subsection (1)(b) regarding other expenditure of the board, that is a matter of daily and routine discussion between every spending department and the Treasury. It does not need writing into every Act of Parliament. It takes place 84 whether or not the words are on the face of the Bill. The same applies in respect of subsection (2)(a).
The money I mentioned to your Lordships is voted by the other place in Committee of Supply but it cannot all be appropriated by the spending department on the first day of the financial year. For example, there may be a Vote for the pay of the army. Certainly the Ministry of Defence cannot claim that the whole of that sum should be paid over on the first day of the financial year. That expenditure must be discussed with the Treasury as to when and how it is needed. That is cleared by subsection (2)(a) so it is not necessary for it to appear both in subsection (1)(a) and (b) and in subsection (2)(a).
So far as concerns subsection (2)(b), my noble and learned friend did not seem very certain for what purpose it was meant. My feeling is that it is the kind of provision that the draftsman might make on the instruction of officials in case it turned out to be useful in some way or another that cannot be envisaged at the moment. The only case mentioned by my noble and learned friend the Lord Chancellor was money is paid over subject to a contingency; in other words, when it was not immediately required by the spending department—in this case, by the Legal Aid Board—but might in the future be needed for some purpose, in which case it would be a stipulation that the money was not to be spent until that condition had been satisfied. But that again is the subject of everyday discussion with the Treasury.
There is to be found in your Lordships' House one former Chancellor of the Exchequer and four Chief Secretaries. I do not see any of them present at the moment, but I do see the noble Viscount, Lord Eccles, who is a great expert on these matters. I say, subject to any challenge, that the words in question are utterly unnecessary for any purpose and should be removed.
My noble and learned friend has virtually agreed with that view. After the Committee stage I wrote to him about two other points but mentioned in passing that I thought he should look again at this clause. He was good enough not only to do so but also to write to me about the matter. He said: As we both know, it is a matter of routine that the kind of matters covered by Clause 39 are discussed and agreed between my Department and the Treasury, and this is inevitable and right". That puts more succinctly what I have been endeavouring to lay before your Lordships. He goes on: I am not persuaded that, simply because Treasury approval is sought as a matter of routine, specific reference to it in the Bill is unnecessary. A clear reference on the face of the Bill makes the Treasury's concern and involvement explicit. I believe that removing the reference would encourage the view that the Treasury is not and should not be involved". That is the end of the passage.
This particular statutory phrase is a comparative novelty and was not needed before to ensure Treasury control. After all, there was Mr. Gladstone as Chancellor of the Exchequer with his policy of candle-ends. He did not need the expression "with the approval of the Treasury". I have forgotten the name of the noble Earl whose grandfather was "Black Michael" Hicks-Beach. He was a Chancellor of the Exchequer so terrifying to every spending 85 department that he was able to impose a budget before the Omdurman campaign was undertaken. He did not need the phrase.
Shortly after the Renton Report, when we were fairly full of hope that the statute book might at last be streamlined and redundant phrases removed, I remember raising on a Home Office Bill the question of the desirability of the phrase "with the consent of the Treasury". I had raised the matter at Committee stage in the debate on whether the clause should stand part of the Bill. The noble Lord, Lord Elton, who was then a Home Office Minister, said that he knew perfectly well that those were matters of everyday discussion. Emboldened by that observation, I put down an amendment at Report stage to omit those words; but by that time unfortunately his arm had been twisted.
It was said that Treasury officials felt more comfortable if that phrase was in the Bill notwithstanding the fact that for centuries we had managed without it. Since then the phrase has appeared habitually and in this Bill it has appeared so frequently that it has reduced my noble and learned friends who were in the Chamber earlier this evening to such a frenzy that on the third day in Committee your Lordships were kept up till midnight before their frenzy was exhausted. By that time it was not only their frenzy that was exhausted.
The Treasury does itself immense harm by insisting, as it does, that this phrase should be in the Bill. Throughout our discussions it has, quite wrongly, been a subject of vilification. At every stage I have endeavoured to put the Treasury case. However, in so far as concerns this phrase its actions are utterly misconceived and it is doing itself immense damage. In my time I have seen departments suffer and grow weak because they were the subject of habitual criticism.
I remember not long ago, a decade or so ago, the Home Office became a byword for obscurantism—I think wrongly— and its most moderate and sensible proposals were looked at askance for that reason. If the Treasury insists on that kind of phrase, the same will happen to it. Its whole authority will be diminished. My noble and learned friend said that this was not a Treasury draft; it was drafted in his department. That is true, but it is not the whole truth. It is true in the sense that the Minister in charge of the Bill is responsible for its drafting; but it is also true that a clause of this sort is not put into a Bill until it has been cleared with the Treasury. Adverting to my exchange with the noble Lord, Lord Elton, as a matter of history this phrase comes in because the Treasury, quite wrongly, likes to have it in.
Therefore if the noble Lord, Lord Mishcon, carries this matter to a Division—I do not suppose that he will at this time of night—I shall support him wholeheartedly.

§ 9.30 p.m.

§ Lord Renton
My Lords, I also support this amendment. I shall do so very briefly. The noble and learned Lord, Lord Simon of Glaisdale, speaks with all the knowledge and experience of a former Financial Secretary to the Treasury. I fully endorse 86 what he says so far as it is within my knowledge. However, perhaps I may quickly refer to a point which I think is worth underlining. During our debate on the amendment to leave out the earlier phrase in line 15, my noble and learned friend the Lord Chancellor pointed out why the Treasury's approval was not required in relation to subsection (1)(a) of this clause. Yet in subsection (2)(a), which refers only to subsection (1)(a), we find that the words "with the approval of the Treasury" have been inserted to cover that. That cannot be consistent with what my noble and learned friend said on the earlier occasion
. On subsection (2)(a)—which admittedly refers to subsection (1)(a)—I would say this. The Lord Chancellor has already been provided with the money to which subsection (2)(b) refers. All that arises on the wording of subsection (2)(b) is whether he shall have power to impose conditions without the approval of the Treasury. Bearing in mind that he has been provided with the money, it seems nonsensical to insist that the Treasury should also have to give approval to any conditions which he in his wisdom considers are necessary. I therefore hope that my noble and learned friend will consider very seriously what has been said.

§ The Lord Chancellor
My Lords, I undertook to consider these matters between Committee and Report stages. In response to a letter from my noble and learned friend Lord Simon of Glaisdale, to which he has made reference, I replied to him in some detail although he kindly said that his letter did not call for a reply.
I have considered this matter with as much seriousness as I can command. I have to say in the first place that these provisions are intended to create legal obligations between the board and the Lord Chancellor. My noble and learned friend Lord Simon of Glaisdale says that the board will never sue the Lord Chancellor; it is a figment of my heated imagination. He may not have put it like that: that is taking it to extremes. It was a near miss, as he put it; a fantasy.
I am trying here to define legal obligations. In a well-regulated society disputes sometimes arise, as we discussed earlier. They have to he resolved by the position at law. Everyday matters continue happily. The Treasury, the Lord Chancellor's Department, the Legal Aid Board and possibly even the legal aid profession are all agreed. But some unfortunate day may come when there is a dispute. The dispute cannot be regulated by what is normally done, what is the understanding or what happens when everybody is agreed. It has to be resolved by reference to the statutory obligations that are imposed by the Bill, when it becomes an Act, on the various parties. I pointed out at Committee a very important distinction between Clause 39(1)(a) and Clause 39(1)(b). From the introduction to the amendment by the noble Lord, Lord Mishcon, I appreciated that he clearly understood that much of my response, because he has accepted that to have the approval of the Treasury in Clause 39(1)(b) is perfectly appropriate, although I suspect that the argument of my noble and learned friend Lord Simon of 87 Glaisdale, if taken to its logical conclusion, would delete that phrase as well.
However the phrase that the noble Lord, Lord Mishcon, has chosen for his attack this time is the opening phrase in Clause 39(2). Here the Treasury is the department responsible for ensuring that the money voted by Parliament is used in accordance with the statutory obligations upon the various Ministers, is used properly and in a way which conforms with proper accounting practice and all that kind of thing. That is the Treasury's responsibility and the Treasury approval to the conditions which I might impose under Clause 39(2)(b) is part of that.
My noble and learned friend Lord Simon of Glaisdale says that if I have this it is not necessary that the approval of the Treasury should apply to the conditions. But that is part of the working out of the arrangements. The conditions which I might impose will have to conform with the standards necessary for proper public accounting, as set by the Treasury, and that great department of state is subject to the Public Accounts Committee and has to satisfy it. The truth is that the approval of the Treasury is accepted as being required and what I have sought to do is to set out the legal relationships correctly and in the appropriate detail upon which that understanding is based. I believe that it makes for good administration clearly to set out the responsibilities of the various Ministers and Ministeries when statutory obligations are being imposed.
My noble and learned friend said that Gladstone did not require this phrase. I think it is fair to say that the technique of judicial review and the calling to account of Ministers by the courts has developed somewhat since Gladstone's day. It is important that if a Minister such as the Lord Chancellor is subjected to judicial review the legal obligations that are in question and the particular consents he must get from others are properly before the court. I regard it as necessary accurately to reflect these relationships in the conditions which are imposed.
As I said, I believe it is fundamental that the Lord Chancellor should have an unconditional obligation to pay to the board the sums referred to in Clause 39(1)(a)—the content of which I explained on the last occasion and shall not repeat—but it is appropriate that the Treasury should insist on the manner and times at which these sums are to be paid. In other words, the obligation to pay is absolute but the manner and times at which the sums should be paid is a matter that is not absolute but is subject to proper financial control.
For these reasons in my submission to your Lordships the words, with the approval of the Treasury", are not unnecessary but they accurately reflect the legal relationships between the parties. It is the purpose of the Bill among other things to set these out.
When I stated that the Bill was drafted on the instructions of my department and that I took responsibility for it, my noble and learned friend said that that was the truth but not the whole truth. Of 88 course other departments are interested in a Bill drafted on the instructions of my department. However, the theory that the Treasury can include this provision without my approval is not appropriate. The Bill as now presented to your Lordships is my responsibility. It is on the basis of that responsibility that it is presented to the House.

§ Lord Mishcon
My Lords, at one stage I thought it was a predetermined tactic to talk out my amendment and that was not the purpose with which I moved it. Having said that, I should like to thank the noble and learned Lord, Lord Simon of Glaisdale, and the noble Lord, Lord Renton, for supporting the amendment. Nothing in the world will convince me that in an Act of Parliament such as this there should be the provision that the Lord Chancellor cannot determine the way in which money is to be distributed and so forth without the approval of the Treasury.
Having said that, I should like to thank the noble and learned Lord for the explanation of his point of view, if I may use those words. The time is late—even later than I anticipated when I moved the amendment—and at this stage it would be wrong to ask your Lordships to express a view. The noble and learned Lord has heard the views expressed in favour of the amendment by those far more experienced than I. I ask him with his usual patience to agree to consider the arguments put forward on this occasion and in a fuller House and at a more civilised time we can deal with the matter at Third Reading if necessary. In those circumstances I beg leave to withdraw the amendment, hoping that the noble and learned Lord will accept the suggestion that I respectfully made to him.

§ Amendment, by leave, withdrawn.

§ Clause 43 [Short title, commencement and extent]:

§ The Lord Chancellor moved Amendments Nos. 59 and 60:

§ Page 32, line I, leave out ("made by statutory instrument").

§ Page 32, line 34, leave out ("made by statutory instrument").

§ The noble and learned Lord said: My Lords, Amendments Nos. 59 and 60 are consequential on what I have already sought to explain. With the leave of the House, I beg to move the amendments en bloc.

§ On Question, amendments agreed to.

§ Schedule 2 [Civil proceedings.' scope of Part IV representation]:

§ Lord Mishcon moved Amendment No. 61:

§ Page 36, line 25, at end insert— ("8. Arbitration proceedings.").

§ The noble Lord said: My Lords, I hope to move this amendment as briefly as I did the last. I pray that the debate will not last as long as with the last one. At the Committee stage of the Bill I suggested that it would be useful and perhaps essential to introduce into the legal aid provision a cover for arbitration proceedings in certain circumstances; in other words, the means test, if I may describe it in that summarised form, would still exist. However, in deserving and 89 proper cases, and where it would appear that the arbitration was worth while, legal aid cover should be available to those who need it.

§ I shall not repeat my speech but on that occasion I drew the Committee's attention to the fact that many contracts are now entered into for minor matters, as many of your Lordships may think, concerning little people and that there is an arbitration clause in the contract. The Consumers' Association is keen about this matter, especially in cases where dealing with arbitration proceedings would be a hardship if it fell upon the purse of the kind of people I have in mind. It would be a sensible and proper provision to cover the issue, especially when aribitration sometimes saves an awful lot of time in the courts and so forth.

§ I also drew attention to some Landlord and Tenant Act cases, but I shall not weary your Lordships with that again at this time. I hope that in the circumstances the noble and learned Lord at the conclusion of a fairly happy day—not very happy for those of us who have been trying to move amendments—would at least bring a smile to our faces as we leave this Chamber by adopting this amendment. I beg to move.

§ 9.45 p.m.

§ The Lord Chancellor
My Lords, I endeavoured to explain in Committee, in answering a very similar amendment, that I do not feel that arbitration proceedings are very high on the list of priorities to which legal aid might be extended. Since then there has been a development which is perhaps worthy of note and that is that a Member in another place has proposed a Private Members' Bill called the Consumer Arbitration Agreements Bill and it has been given a Second Reading in another place. The effect of that would be to open up the courts to small arbitrations to some extent. I put the matter fairly generally and not as precisely as Mr. Pawsey has done or may yet do.
The result of that may, to some extent, deal with the points made by the noble Lord, Lord Mishcon, both tonight and in Committee, although I appreciate that it may not deal with them all. There is one aspect of construction contracts with which it may not deal. However, it is perhaps a move in the right direction so far as the noble Lord is concerned that the courts' jurisdiction may be extended and thus legal aid extended in some of these disputes which are at present covered by arbitration proceedings. However, I regret that I am not able to bring a smile to your Lordships' faces in the way suggested by the noble Lord on this particular occasion. But—who knows?—I may be able to do so on some other occasion.

§ Lord Mishcon
My Lords, having been given some hope that a smile will be on the faces of certain of your Lordships who will be trying to improve this Bill on Third Reading, I beg leave to withdraw the amendment.

§ Amendment, by leave, withdrawn.

§ Schedule 4 [Amendments of the Legal Aid (Scotland) Act 1986]:

§ The Lord Advocate (Lord Cameron of Lochbroom) moved Amendment No. 61A:

§ Page 40, line 7, at beginning insert— ("( ) In section 16 —

(a)subsection (1) is repealed;
(b)in subsection (2), the words "In this section and" are repealed.").

§ The noble and learned Lord said: My Lords, in speaking to this amendment, with your Lordships' leave I shall also speak to Amendments Nos. 61B to 61E and Amendment No. 62A. Part I of Schedule 4 amends the Legal Aid (Scotland) Act 1986 in order to alter the arrangements for the collection of contributions from assisted persons in civil cases so that payment will become a matter of settlement between solicitor and client. The amendments now proposed are mainly concerned with clarifying a number of points of detail which were raised by the Scottish Legal Aid Board and by the Law Society of Scotland. First, they are designed to put beyond doubt that the payment of the contribution is entirely a matter between solicitor and client, and that is effected by Amendments Nos. 61B and 61C. Secondly, to provide that the solicitor's right to collect the contribution is established as soon as the board have assessed the account; that is effected by Amendment Nos. 61D. Thirdly, to remove an apparent conflict between Sections 16 and 17 as regards payment into the fund of expenses recovered. That is effected by Amendment No. 61A to which Amendment No. 62A is consequential. Amendment No. 61E is a drafting point. I beg to move Amendment No. 61A.

§ Lord Mishcon
My Lords, in order to show the flexibility of at least one side of the House, we have no objection to these amendments.

§ On Question, amendment agreed to.

§ Lord Cameron of Lochbroom moved Amendments Nos. 61B to 61E:

§ Page 40, line 8, after ("words") insert ("from "by the Board" to").

§ Page 40, line 9, before ("the") insert ("to contribute to").

§ Page 40, line 25, at end insert (", but an account of expenses which has been approved for payment by the Scottish Legal Aid Board shall not be liable to taxation by an auditor of court in any proceedings.").

§ Page 40, line 32, leave out ("legally assisted person") and insert ("the person concerned").

§ On Question, amendments agreed to.

§ Schedule5[Minor and Consequential Amendments]:

§ The Lord Chancellor moved Amendment No. 62:

§ Page 44, leave out lines 8 to 13 and insert— ("21. Section 64 of the Family Law Act 1986 (family proceedings rules) shall cease to have effect.").

§ The noble and learned Lord said: My Lords, this amendment is consequential upon the deletion of reference to Section 64 of the Family Law Act. It gives specific power to the Family Proceedings Rules Committee to differentiate in rules as to costs in legal aid cases and in private cases.

§ Under the Bill there will no longer be any need for the committee to differentiate between these two types of costs since the Lord Chancellor will in future set out in regulations such matters as relate to legal aid. This amendment will remove the corresponding provisions in the Family Law Act which are no longer necessary. I beg to move.

§ Lord Elwyn-Jones
My Lords, with Celtic adaptability, I approve of this amendment. Is this perhaps to be regarded as a precursor to a family court?

§ The Lord Chancellor
My Lords, in the sense that any family court will come after this, I suppose it is true that this is a precursor to the family court, but I have to say that the contribution that this amendment makes to that is minimal.
Your Lordships know that I am very concerned that the proper arrangements should be made in relation to children both in the substantive law and in procedural law, but it would be quite wrong of me to claim that this is a step in that direction.

§ On Question, amendment agreed to.

§ Schedule 6 [Repeals]:

§ Lord Cameron of Lochbroom moved Amendment No. 62A: Page 45, line 51, column 3, after ("Section") insert ("16(1), in section 16(2) the words "in this section and'', and section").

§ The noble and learned Lord said: My Lords, this is a consequential amendment. I beg to move.

§ On Question, amendment agreed to.

§ The Lord Chancellor moved Amendment No. 63: Page 46, line 3, at end insert—("1986 c.55. The Family Law Act 1986. Section 64.").

§ The noble and learned Lord said: My Lords, this amendment is consequential on Amendment No. 62 that I have already moved. I beg to move.

§ On Question, amendment agreed to.