Lords Sitting of 14 January 1988

Preamble
The House met at three of the clock: The LORD CHANCELLOR On the Woolsack.
Prayers—Read by the Lord Sandford.
Viscount Daventry Viscount Daventry—Sat first in Parliament after the death of his uncle.

Toy Safety and Unit Pricing Proposals
Baroness Burton of Coventry: My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government what progress was made at the European Consumer Affairs Council held on 18th December, with particular reference to the draft toy safety and unit pricing directives.
Lord Beaverbrook: My Lords, the Council agreed a common position on the amended proposal for a toy safety directive. The Council also resolved the few remaining points of difficulty on the two unit pricing proposals. A common position on these proposals is expected to be formally adopted very shortly.
Baroness Burton of Coventry: My Lords, if I am correct in saying that formal adoption of both these drafts depends upon approval by the European Parliament can the Minister tell us what is the earliest date on which this can be expected? Does his Answer indicate that he anticipates no further problems concerning such approval?
Concerning the meeting on 18th December is the noble Lord aware that my information is that the Commission submitted two Considerations to the Council? One dealt with consumer integration in other Community policies and one dealt with the consumer interest in standards making. If that is the case will he comment on the result?
Lord Beaverbrook: My Lords, it is indeed correct that the European Parliament's agreement must be obtained before adoption and also the approval of the Economic and Social Committee. They have of course yet to give their opinion on the amended proposal. Provided this is favourable, adoption is likely in mid-1988. The target date for the toy safety directive to come into force is 1st January 1990. The other points put to me by the noble Baroness did appear on the agenda but there was not substantial discussion on them. However we hope that there will be at the next meeting.
Lord Graham of Edmonton: My Lords, what the Minister has said is good so far as it goes; but could he be helpful by telling us what action the Government intend taking as their contribution to the European Child Safety Campaign, which is due to begin in April 1988? Can we be told of the extent to which the voluntary sector and the media will be involved? When doing so will the Minister bear in
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mind that hazardous toys can be found in every kind of store and that an early initiative involving large stores and market traders would be helpful?
Lord Beaverbrook: My Lords, the noble Lord makes a very good point on the proposed Child Safety Campaign. Any government should do all they reasonably can to reduce the number of accidents to children. As regards the proposed campaign the UK has made clear its readiness to participate in some form of child safety campaign provided that it is well thought through and properly targeted. The particular areas that the noble Lord mentioned of course should be taken into account.
Baroness Burton of Coventry: My Lords, reverting to the Answer that the Minister gave to my second supplementary question, is he aware that on the 18th December the Commission apologised for the short notice given about these submissions? Is he also aware that no discussion at all took place on them, that the actual Council meeting itself did not commence until after lunch on the Friday before Christmas and that I think that this is just not good enough? In commenting on those proposals will the Minister tell the House whether it is true that the next meeting of the Council is to be on 3rd May? If it is to be delayed until then, believing that the Government and the Minister wish to help, will the Minister tell the House whether in the meantime the House will pursue consideration of the two submissions which were ignored on 18th December?
Lord Beaverbrook: My Lords, the noble Baroness is indeed correct. The Government's understanding is that the German presidency intends to hold a consumer council on 3rd May. I think it would be right for me to say that we hope that the agenda will be prepared further in advance and that there will be more progress made on that basis at that time.
Lord Brougham and Vaux: My Lords, is my noble friend aware that my society is hoping to be very involved in this Child Safety Campaign which will hopefully start in April? Can he say whether the toy safety regulations will be in limbo until 1990 and that there will not be any new toy safety regulation?
Lord Beaverbrook: My Lords, in this country we already have considerable regulations on toy safety. There is no question at all of there being a free-for-all in the production of unsafe toys. It is purely a matter of trying to get some European standards.
Lord Sainsbury: My Lords, is the Minister satisfied with the proposed timescale for implementation? What reaction has he had from trade and consumer interests?
Lord Beaverbrook: My Lords, UK industry has generally welcomed the toy safety proposal because it will provide a common set of requirements throughout the whole European Community. The directive will also give a more comprehensive coverage than is provided for under our present national toy safety regulations. For that reason consumers should also welcome it. As regards the

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timescale, nothing happens overnight in Europe in general but I think it is fair to say that at least we now have a timescale.
Lord Campbell of Alloway: My Lords, is the Minister aware that, in the absence of Community regulations, there are certain decisions by the Court of Justice that may well inhibit Her Majesty's Government from prohibiting the import of dangerous toys from other member states of the Community?
Lord Beaverbrook: My Lords, I believe that I understand what my noble friend is getting at. However, once a European standard has been agreed, we hope that it will be no less rigorous than our existing laws.

Unemployment Statistics
3.15 p.m.
Baroness Turner of Camden: My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether they are satisfied that their present method of compiling statistical information on unemployment reveals the true level of unemployment in the United Kingdom.
The Earl of Dundee: My Lords, I am satisfied that the monthly unemployment figures derived from the claimant count are an accurate measure of the number of people claiming benefits at unemployment benefit offices. However, I am aware that the figures are somewhat higher than an alternative estimate using an internationally recommended definition of unemployment, based on the number of people without jobs seeking work. The results of the annual Labour Force Survey for Spring 1986 gave an unemployment total on the basis of 2.97 million for Great Britain—200,000 less than the claimant count.
Baroness Turner of Camden: My Lords, I thank the noble Earl for that reply. However, is it not a fact that since 1979 there have been no fewer than 19 changes in the way in which those statistics are compiled and that on each occasion, with one exception, the result has been to lessen the numbers of officially notified unemployed? As an example, there was the decision to remove men aged 60 and over from the unemployment count even though they were not necessarily out of employment, and the Social Security Bill removed men from the age of 55 and above from the unemployment count. Will there be further moves in that direction and does the Minister think that such self-deception helps anybody?
The Earl of Dundee: My Lords, the noble Baroness is quite right to point out the changes that have occurred. However, I do not agree that any measure of self-deception corresponds. It is impossible to know what the current unemployment count would
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be now if it were calculated on a former basis. While some people attempt to estimate current totals on the old basis, they cannot really know, for example, how many people would now register at jobcentres if that were made compulsory again or how many occupational pensioners would still be signing on if it were not for the relaxation of the requirement for men over 60 to be available for work in order to get national insurance credits or supplementary benefit at the long-term rate.
Baroness Seear: My Lords, will the Minister tell the House whether, in calculating the increase in employment which is largely an increase of women working part-time, those part-time workers count as a complete unit or a fraction of a unit? Do two part-time workers make one job or do they count as two jobs?
The Earl of Dundee: My Lords, I shall need notice of that question.
Lord Diamond: My Lords, that is a preposterous answer when we have been told time and time again over very many years that two part-time workers count as two jobs. No attempt has been made to determine what a full-time worker is.
Lord Stallard: My Lords, will the noble Earl accept that we can calculate how many people have been removed from the unemployment statistics because of changes in social security benefit eligibility conditions as well as the proposed changes contained in the Bill which is about to come before the House? Will the noble Earl consider publishing in the Official Report a breakdown of how many people have been removed from the unemployment statistics because of changes in social security legislation? It is becoming evident that, while the Government appear to have a splendid—
Noble Lords: Question!
Lord Stallard: Is it not becoming evident, as has been said before, that while the Government have a splendid policy of reducing the numbers of unemployed what we need is a policy to reduce unemployment?
The Earl of Dundee: My Lords, I could not agree more with the noble Lord when he says that what we need is a policy to reduce the number of unemployed. I am very happy to repeat today the announcement this morning that we have had a fall of 35,400 in December to 2.614 million. That is a fall of 505,000 over the past 12 months, the largest since similar records began in 1948.
Lord Molloy: My Lords, is the Minister aware that, notwithstanding the possibility of unemployment figures being cooked, the main factor is that they are far too high? Does he agree that there is a possibility that high unemployment figures may be related to the problems of inner cities and the rise in criminal activity throughout the country?
The Earl of Dundee: My Lords, we shall always feel that, whatever the level of unemployment, it is too high and should be reduced. I can assure the noble Lord that the happy news that we have had today reflects reductions in the level of unemployment throughout the country.
Baroness Carnegy of Lour: My Lords, is the Minister aware that the welcome fall in unemployment figures is great news to a number of noble Lords, at any rate on this side of the House, who disagree with the groans we hear coming from the other side of the House? Does he agree that the unemployment figures record the number of people who are looking for a job, want a job and cannot find a job and so are drawing benefit, and that many women who are in part-time work or looking for part-time work are very satisfied with that type of work? There is absolutely nothing wrong with counting those women as individuals and not as half people.
The Earl of Dundee: My Lords, I endorse my noble friend's view that those people should be counted as individuals.
Lord Basnett: My Lords, since the noble Lord, Lord Young, in evidence to the Select Committee on Employment in another place, conceded that the campaign alleging that the unemployment figures were fiddled had succeeded, would the noble Earl not agree that those figures lack public credibility? Would he not further agree that it would be sensible of the Government to introduce an advisory committee on the unemployment figures like their advisory committee on the retail prices index?
The Earl of Dundee: My Lords, as I have already said, I do not accept to any extent that the unemployment figures have been fiddled. We are able to achieve consistency, if we so wish, between the current date and 1979; the seasonally adjusted series is maintained on a consistent basis going back in fact to 1971 and the figures are published. It takes account of all the relevant changes.
Lord Boyd-Carpenter: My Lords, is my noble friend aware that many people very much resent the suggestion made by the noble Lord opposite that the figures have been fiddled as both an unjustified reflection on Ministers and a yet more unjustified reflection on our wholly impartial and honourable Civil Service?
The Earl of Dundee: My Lords, I am grateful to my noble friend for his support.
Lord Basnett: My Lords, will the noble Earl accept that I did not say that the figures were fiddled? I happen to think that the changes over the past few years have been inexplicable. What I said was that the noble Lord, Lord Young, had accepted before the Select Committee on Employment in another place that the campaign alleging that the figures had been fiddled had succeeded. I therefore asked a question which has not been answered by the Minister.
The Earl of Dundee: My Lords, however much the noble Lord may question the method of computing and doubt the particular figures that he sees, I am sure that he agrees that we should all welcome the trend in unemployment which is coming down. That is now undeniable.
Lord Mason of Barnsley: My Lords, will the Minister explain to the House why it has been necessary for the statistical method of calculating unemployment figures to be changed—we suggest "massaged"—19 times since 1979?
The Earl of Dundee: My Lords, the most important change, which was the introduction in 1982 of the count of benefit claimants, came about because of the introduction of voluntary registration at jobcentres and careers offices. The previous registration figures would have been incomplete and it was necessary to change the basis of the count. Other changes have resulted from the elimination of unnecessary procedures in benefit offices and there have been two corrections to reduce over-recording.

Uganda
3.22 p.m.
Viscount Buckmaster: My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government what is their attitude towards the present Government in Uganda, and whether they consider that the situation there has improved since Viscount Buckmaster's Unstarred Question was debated on 4th December 1985.
The Minister of State, Foreign and Commonwealth Office (Lord Glenarthur): My Lords, we support the efforts of the Ugandan Government to restore peace and stability to Uganda and welcome their courageous economic decisions and the President's own public commitment to the maintenance of human rights. The majority of people in Uganda now live in an atmosphere of greater stability and security than they have known for some years, and we hope that this improvement will continue.
Viscount Buckmaster: My Lords, I thank the Minister for that reply. Does he not agree that, whereas in the central, western and southern parts of the country there seems to he a general stability and the government are in effective control, nevertheless in the northern and eastern parts instability continues and is accompanied by killings, some of which are attributed to the government and some to the opposition? Is the Minister satisfied that the staff of Her Majesty's High Commission in Kampala have access to all parts of the country?
Lord Glenarthur: My Lords, it is certainly true that rebel forces are still fighting against the government in some areas of the north and east. They are mostly soldiers from previous administrations. However, we

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welcome the Ugandan Government's efforts to bring about reconciliation of the various conflicting interests in Uganda. As regards the last part of the noble Viscount's supplementary question, so far as I am aware the staff of the High Commission have access to all parts of the country, but if I am wrong in that I shall let him know.
The Earl of Selkirk: My Lords, can the noble Lord tell the House whether the penetration of the Sudanese into the north of Uganda has been stopped and particularly their poaching of game of one kind or another?
Lord Glenarthur: My Lords, so far as I am aware there is no particular problem about poaching game or entry by the Sudanese into the northern area; but should there be any further information on that matter, I shall let my noble friend know.
Lord Cledwyn of Penrhos: My Lords, in a debate that took place two years ago this House agreed that the essential step was the revitalisation of the Ugandan economy. Can the Minister go a little further and say whether he believes that the economy has been revitalised and if so to what extent the aid programme from this country has assisted that process? Can the Minister also tell the House what is the latest report from Amnesty International on the question of the abuse of human rights?
Lord Glenarthur: My Lords, President Museveni's government in May 1987 embarked upon an economic recovery programme with the support of the IMF, which in itself is an encouraging sign. It is a bold initiative which is required and it will require courageous decisions on the part of the government. Her Majesty's Government have provided substantial aid in a number of different support programmes. In June last year we pledged £25 million worth of balance of payments support for Uganda to be spent over two years. Then there are £5 million worth representing a bilateral programme to finance vital imports for the agricultural, transport and industrial sectors and £10 million worth of co-financing with the World Bank of special facilities for Africa. The remaining £10 million is subject to Uganda maintaining the economic recovery programme to which I referred. There are other matters as well. I am afraid that I do not have details of the Amnesty International report but I shall try to obtain them for the noble Lord.

Immigration: Medical Controls
3.27 p.m.
Lord Hatch of Lusby: My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government what is their policy towards immigrants who are suffering from illness.
The Minister of State, Home Office (Earl Ferrers): My Lords, the immigration rules provide for passengers, who are subject to immigration control, to be examined by a medical inspector on arrival in the United Kingdom. An immigration officer may, on the advice of the medical inspector, refuse a passenger leave to enter on medical grounds, unless he considers that there are strong compassionate reasons to justify admission. Alternatively, the officer may admit the passenger, but require him or her to report to a medical officer of environmental health for further examination and, if necessary, treatment.
Lord Hatch of Lusby: My Lords, is the noble Earl aware of the specific case, about which I gave his department notice, of Mr. Ruda Patel, who entered this country in August 1986 when suffering from Parkinson's disease and who was promised by the Home Office that within a month a decision would be made on his application for permanent residence? Is he further aware that Mr. Patel left this country in November 1987 in order to attend the funeral of his wife in Kenya without having received any message from the Home Office, and when he returned was given only a temporary visa and refused any extension of that visa or permanent residence? Also, will the noble Earl confirm that the Member of Parliament for the constituency within which Mr. Patel lived refused to intervene on his behalf, and that that Member of Parliament was the Prime Minister?
Earl Ferrers: My Lords, I am aware of the case to which the noble Lord refers. He is quite correct in saying that Mr. Patel came to this country. He came on a temporary visit, and having applied for a more permanent permission to stay required to have back his passport. When he asked for the return of his passport he was advised that he would need to obtain clearance from the authorities in Kenya before returning to this country. He failed to obtain that clearance.
Lord Rea: My Lords, may I say something which may not be relevant in this case? Does the Minister know that Mr. Patel is putting no charge on public funds, since, like his Member of Parliament, he obtains his medical care through the private sector?
Earl Ferrers: My Lords, I must reassure the noble Lord that it is not the medical condition which was the cause of Mr. Patel's rejected application; it was the fact that he left the country and was warned that he would have to start the application process again. He failed to do that and turned up without the correct clearance certificates.
Lord Mishcon: My Lords, in the first instance, perhaps I may congratulate the noble Earl on his new Ministry and say that it is a great joy to see him return to the Dispatch Box, to which in the past he lent great distinction. I should like to ask him this question arising out of the discussion that we have just had. In spite of his Answer, is he aware that there is a general feeling that there is still too much of a bureaucratic attitude shown by immigration officers and even their medical advisers? At the start of what I am sure will be a very distinctive Ministry at the Home Office, will

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the noble Earl see that mercy and understanding are incorporated in the duties of immigration officers and their medical advisers?
Earl Ferrers: My Lords, I am very grateful to the noble Lord, Lord Mishcon, for his kind welcome. I feel a little like the rubber ball that has bounced back, but I appreciate his welcome.
There is in the noble Lord's questions always an iron fist inside a kid glove. I shall give careful and sympathetic consideration—and I know that our immigration officers do that—but I must assure the noble Lord that in this case the individual concerned was warned of the conditions that would have to be entered into before he returned. He failed to meet those conditions. The immigration officers were quite correct in the action they took. Having said that, I should add that Mr. Patel's case is being considered further and he is at the moment in this country.
Lord Hatch of Lusby: My Lords, in his Answer to me the noble Earl revealed the difficulty about Mr. Patel and many other immigrants. He had applied for permanent residence in August 1986. He was promised an answer to that application by the Home Office within one month. Yet 15 months later he had received no notification. Is this not a scandal with regard to the attitude of the Home Office'? He was not able to satisfy the conditions for the return of his passport simply because the Home Office had not fulfilled its promise. Is it not the duty of a Member of Parliament to intervene on behalf of a constituent in this kind of case, which I understand was postponed only on the intervention of a Labour councillor?
Earl Ferrers: My Lords, it would be quite improper for me to say what points should be taken up by a Member of another place, whoever that is. I can only assure the noble Lord, Lord Hatch, that these matters are considered very carefully. While there may be reasons about which the noble Lord is concerned, this gentleman was warned that if he went back, and removed his passport, the process would have to start again.
Lord Peyton of Yeovil: My Lords, if my noble friend were to refrain altogether from responding to supplementaries which contain no element of the interrogatory he would enjoy a great deal of sympathy and even some applause.
Earl Ferrers: My Lords, I am not sure whether or not that requires a reply!

Business
3.33 p.m.
Lord Denham: My Lords, it may be for the convenience of the House if I say that the Committee stage of the Legal Aid Bill will be adjourned at approximately 7 p.m. for approximately one hour and that during this adjournment the Second Reading of the Arms Control and Disarmament (Privileges and Immunities) Bill will be taken.

Legal Aid Bill [H.L.]
3.34 p.m.
The Lord Chancellor (Lord Mackay of Clashfern): My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
Moved, That the House do now resolve itself into Committee.—(The Lord Chancellor.)
On Question, Motion agreed to.
House in Committee accordingly.
[The LORD ABERDARE in the Chair.]
Clause 1 [The Legal Aid Board]:
Baroness Faithfull Baroness Faithfull moved Amendment No. 1:
Page 1, line 7, at beginning insert—
("( ) It is the Lord Chancellor's duty to promote and secure the provision of a legal aid scheme designed to ensure that people of small or moderate means are not denied access to legal advice, assistance and representation, as defined below, on account of their means.").
The noble Baroness said: At the Second Reading of this Bill the noble and learned Lord the Lord Chancellor ended his notable speech with the following words:
"The legal aid system in this country is one of the best in the world. The provisions in the Bill not only preserve all that is best in our legal system; they enhance it".—[Official Report, 15/12/87; col. 614.]
In this amendment we seek to keep it so, now and in the future. We seek to enshrine on the face of the Bill the stated purpose of legal aid in this country so that it is clear for all to understand.
Amendment No. 1 states:
"It is the Lord Chancellor's duty to promote and secure the provision of a legal aid scheme designed to ensure that people of small or moderate means are not denied access to legal advice, assistance and representation, as defined below, on account of their means".
In his speech at Second Reading the noble Lord, Lord Meston, said that there is no clear statement of principle or purpose in the Bill. The amendment seeks to remedy that. Furthermore, without such a statement of principle the legislature on future occasions may be unable to safeguard the provisions of the Bill.
This is not a wrecking amendment; nor does it call for vast resources. In colloquial language it puts a marker down as to the principle and purpose of the Bill. With the present noble and learned Lord on the Woolsack we have no fear for the erosion of the principles of the Bill. We trust that this will be the case with all future Lord Chancellors. But all Lord Chancellors have the misfortune not to have a Vote. They have no money available to them for expenditure. They are dependent on the Treasury for any item of expenditure. All Secretaries of State are of course dependent on the Treasury to run their departments, but out of a lump sum allotted to them they can decide on the details of expenditure.
I pay tribute to the Chancellor of the Exchequer and the Treasury officials for the promotion of a sound economy in our country. I believe that individuals, families, communities and countries should live within their means. However, what is important is to have those means, large or small, wisely deployed. I would respectfully suggest that

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those at the Treasury, by the very nature of their work, cannot be in touch with the grass roots needs of people and cannot always take an overall view as to the effectiveness and cost-effectiveness of the grass roots needs.
Legal aid efficiently and fairly administered can save money, which is often not appreciated by the Treasury. I cite examples. In a debate in your Lordships' House on family courts, the noble and learned Lord, Lord Havers, then sitting on the Woolsack, said that, while from all sides of the House there was support for family courts, the Treasury was concerned about the cost but could give no details as to the costing.
I contend that family courts would save money for the legal aid fund. I understand that the Treasury is withdrawing grant from the National Conciliation Service, yet this would save legal aid. Again, the support and the extension of the Citizens' Advice Bureaux, money advice centres and legal centres will diminish the need for legal aid.
Another point made at Second Reading was that it was estimated that there were 56 regulation-making powers, all of which it is proposed would be by negative resolution. Further, many of the key regulations need the consent of the Treasury. It is within the realms of possibility that expenditure on legal aid could be whittled down. With this amendment as an enhanced principle in the Bill that could not happen without full knowledge and a debate in this Chamber.
I acknowledge that feelings enter into all we do. I can never forget the time when, as a young social worker in the 1930s, I was working in one of the poorest parts of Birmingham and living in the Birmingham settlement. I was secretary to the poor man's lawyer, a solicitor who came voluntarily one evening a week to advise those with legal problems. The men and women had access to advice but not to the due processes of law. I saw the resentment and the sense of hopelessness which that engendered. It is surely society's responsibility to ensure that no one should be denied access to justice on account of low income. All should have proper access to the law within a well-administered and accessible framework. That, as I said at the beginning of my speech, is the principle that should be enhanced in the Bill. I beg to move.
3.45 p.m.
Lord Elwyn-Jones: I greatly hope that the noble and learned Lord the Lord Chancellor will feel able to give his support to the amendment, the first that we have to consider, particularly bearing in mind the content and manner in which it was so ably moved by the noble Baroness, Lady Faithful!, in her moving speech, based on her great experience in the field helping those in need in Oxford and in other parts of the country.
In his notable speech on Second Reading the noble and learned Lord the Lord Chancellor acknowledged his overall responsibility for the legal aid scheme. He
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also commended the words of the White Paper which appeared earlier this year, namely:
"The purpose of legal aid is to ensure that people of small and moderate means"—
that is the language used in the amendment—
"receive access to proper legal advice, and to justice".
That says in positive mandatory terms what the amendment says slightly more reservedly, but it achieves what the noble Baroness referred to so eloquently. It enshrines on the face of the Bill the purpose of the Bill. Without that statement of principle the Bill, which is largely an enabling Bill, will be singularly naked and lacking in real content and significance. The purpose of the amendment is to spell out the principle which it is generally agreed should be applied in the legal aid field.
The substance of the Bill as at present is to be set out in a large number of as yet unseen and unknown regulations not in the Bill, and about that one cannot at this stage complain. Therefore in view of the shape of the Bill, it is essential that the general principle in Amendment No. 1 should be set out clearly and plainly. Without a statement of principle of that kind Parliament—indeed the noble and learned Lord the Lord Chancellor himself—would be unable to safeguard the provision in the amendment or direct the development of the Bill. The amendment should not and is not intended to embarrass the noble and learned Lord. On the contrary it is designed to give him strength in his negotiations with the Treasury. That is its whole purpose. He has said, and we were moved by it, that the Bill will do much to establish a framework within which the legal aid scheme could advance towards the 21st century in an efficient state. If our detailed examination of the Bill's proposals established that to be its purpose and effect, we would support it. But one of the early tests of the noble and learned Lord and the Government will be their approach to this blameless, indeed highly praiseworthy amendment.
In my speech on Second Reading I ventured to quote from the 34th annual report of the Lord Chancellor's Legal Aid Advisory Committee which stated:
"law is not merely an instrument of social control…it is also a positive instrument for defending individual liberties and giving reality to civil rights. Law, in this sense as well as in its restrictive sense, is a necessary precondition for order. If individuals cannot secure their legitimate rights and defend their interests through a system of justice. they will resort to other means in an endeavour to do so".
Then there follow these memorable and notable words:
"If the rule of law and equality before the law lie at the heart of the social system, then equally legal aid lies at the heart of the legal system".—[Official Report, 15/12/87; cols. 614–5.]
In the confidence that that approach will also appeal to the noble and learned Lord the Lord Chancellor, I hope that he will find it desirable and inescapable to support the amendment.
As I have said, our present worry is that the Bill currently contains no statement of principle of any kind so far as I have been able to gather. It is right that now, at the very beginning of the consideration of the Bill, this notable amendment, which spells out

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clearly the principle and the claimed intention of the Government, should receive universal approval not only of the Committee but of the noble and learned Lord the Lord Chancellor.
Lord Allen of Abbeydale: I rise to make a brief contribution from the Cross-Benches in support of the amendment. Perhaps I ought to say that I had some concern in the past with criminal legal aid and, more to the point, I served for some years in the Treasury. The extensive regulation-making powers in the Bill are very much subject to the control of that great department. Like the noble and learned Lord, Lord Elwyn-Jones, I cannot help thinking that in settling the terms of these regulations it could well be of assistance to the noble and learned Lord if the basic purposes of the Bill and the overall responsibility to be assumed by the Lord Chancellor were set out in terms at the outset. It would be of great help to Parliament in considering whether the regulations as they appear comply fully with the intentions of the legislation.
It is regrettable that when one reads this important Bill one discovers that the opening provisions consist mainly of definitions. It is no doubt interesting to know what is meant by "advice", "assistance" and "representation", but as a fanfare to start the Bill the clause, as drafted, emits a rather uncertain sound.
Some press comments have suggested that this amendment is designed to change the Bill. That is not its purpose. It is designed to spell out what the White Paper stated to be the purpose of the Bill and to define the role of the Lord Chancellor as it is now to become. I hope that the Government will accept the amendment. If they do not, we may be tempted to suspect that the Treasury is showing its hand even at this early stage.
Lord Denning: While I sympathise with the sponsors of the amendment, I suggest that the way in which it is now stated is not a proper form. I should first like to deal with the double negative:
"to ensure that people…are not denied access to legal advice".
Put in the affirmative, that means that people are provided with legal advice.
Secondly, there is the implication of a duty upon the Lord Chancellor to provide legal advice and assistance for those who need it. It is an important duty to place upon him but it should be stated as an objective; it is too high to put it as a duty. I recall that there is now a process of judicial review. If anyone believes that the Lord Chancellor, or anybody else in authority, has not fulfilled his duty he can go to the courts of law, complain to them and ask them to put an order on the Lord Chancellor to carry out his duty.
Members of the Committee will have seen recent reports about the National Health Service. No doubt it is its duty to provide a good medical and health service for all the people in this country at whatever expense. We hear parents of very sick children saying that the children are not being operated on as quickly as they should be. They go to the courts and ask for a judicial review as to whether the health service is doing its duty.
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The emphasis on a "duty" is often taken too far in some quarters and even by the courts. I suggest that although the objective is desirable, and it may well be desirable to have a statement of principle in the Bill, it should not go forward in its present form but should be stated as being an objective which the Lord Chancellor should seek to achieve and not a duty.
Lord McGregor of Durris: I am sure that the proposers of the amendment will be happy to pay attention to what the noble and learned Lord, Lord Denning, has said. Speaking as a layman, it seems to be easy to add to the amendment a phrase to the effect that in no circumstances would anything that the Lord Chancellor did in discharging the duty or obligation be actionable.
I wish to raise a further consideration relating to the phrase in the amendment which states:
"a legal aid scheme designed to ensure that people of small or moderate means are not denied access to legal advice, assistance and representation".
Since 1950 that has been the major aim of the scheme. During the whole of that period the Government have always accepted a commitment to keep the eligibility level for legal aid and advice well above average earnings, because the scheme was designed to help people to cope with what everybody agreed, and still agrees, to be the high level of legal costs. If the scheme is to work, that must be a feature of it.
In 1979 the Lord Chancellor raised the eligibity of two-parent families with two children to 70 per cent.; that is to say, 70 per cent. of such families would be eligible for legal aid. That was the level of eligibility when the scheme was introduced in 1950.
The Government continue to quote that figure. Sometimes it is said to be 70 per cent. of the population and sometimes 70 per cent. of families. In the White Paper it was said to be 70 per cent. of households. That is a difficult notion because there are a large number of single person households containing retired persons which distort the meaning of the 70 per cent. There are more mysteries than certainties about the figure.
In the 1970s Mr. Cyril Glasser served as a special consultant to the Legal Aid Advisory Committee of the Lord Chancellor's Department. He undertook a major study of the levels and extent of eligibility in the legal aid scheme. In collaboration with the Central Statistical Office he produced genuine data for the first time in the operation of the scheme. He published a further calculation 18 months ago showing that the proportion of two-parent families with two children eligible for legal aid was then nearly 60 per cent. and that it was falling fast. It is now calculated that the proportion is down to 40 per cent. It would be helpful to have the latest computations of the Lord Chancellor's Department on that matter.
In practice the scheme has always provided financial assistance for people who wish to pursue their matrimonial troubles at law. Such persons have always absorbed the lion's share of the legal aid fund.
Lord Hailsham of Saint Marylebone: I believe that since the introduction of criminal legal aid that is no longer so.
Lord McGregor of Durris: I am grateful; the noble and learned Lord is right. I was speaking of civil legal aid, where the problems are different.
Are we not reaching the point at which there is a serious danger of the legal aid scheme being reduced to the point of providing financial assistance for very poor people wishing to pursue their family problems in court? If that is to be avoided, there must be faced serious issues of allocation of available funds. Clearly there will not be sufficient funds to meet the noble aspiration which the noble Baroness mentioned at the beginning of the debate. Allocation there must be. How can a Legal Aid Board, constituted and empowered as it is in the Bill, deal with a problem of that nature?
Issues affecting the income limits will be dealt with by negative resolutions. Is not this a whole area which must receive parliamentary discussion? Would it not be wise, at this stage in the Bill, for the noble and learned Lord the Lord Chancellor to retain control over these major issues and not to pass them on to a board, which is emasculated in respect of powers, to deal with such matters? I very much hope, together with others who have spoken, that the noble and learned Lord on the Woolsack will feel able to accept at least the spirit of this amendment.
4 p.m.
Lord Simon of Glaisdale: I have in the past, and still do, work very closely with the noble Baroness and indeed, with the noble Lord, Lord McGregor, and on matters which we put very high on our respective agenda, I believe we see eye to eye. However, in my submission, this amendment is wrong both in its form and in its intention. In its form it puts a duty on the noble and learned Lord the Lord Chancellor. That duty, as my noble and learned friend Lord Denning pointed out, by the evolution of our legal process is now reviewable in the courts. The job that is given to the courts is really quite an impossible one to carry out. The amendment refers to people of "small or moderate means". The people who apply will obviously be the people who are just above the current legal aid limits. How can any court possibly say that they are of "small or moderate means"? I suppose we all think of ourselves in those terms when we read of the glittering figures on Wall Street. However, it is really quite an impossible task to impose on the courts and, indeed, on Parliament when it comes to review the regulations. It is quite premature now to canvass the question of the regulatory powers under this Bill. That is quite a different question.
I said that it is not only wrong in form but it is wrong in intention. The noble Baroness, with her usual candour, made it quite clear—and this was reinforced by my noble and learned friend Lord Elwyn-Jones—that the purpose is to put pressure on the Treasury, to strengthen the arm of the Lord Chancellor when it comes to negotiations with the Treasury. The public purse has constant calls upon it. We hear almost daily of the needs of the National Health Service, social security, education; and there are the arts. There is not an aspect of our national life
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where many of us, most of us, or all of us, cannot think that it would be desirable to spend more money if it were available.
Like the noble Lord, Lord Allen, I too have served in the Treasury and of course I had heard for years before how mean the Treasury was and very occasionally—much more occasionally—how generous the Treasury had been on a particular occasion. When I went to the Treasury I was in charge of the Inland Revenue, so I thought that I should go to Somerset House to see what was happening there. In the course of that visit I was introduced to an official called the Revenue Secretary and I noticed in the corner of his office a large safe. Now, I thought, I shall see these vast sums that the Treasury dispenses so meanly. So I asked that it should be opened. It was opened and it contained nothing at all—not even a bottle of gin! The Treasury has constant competing calls. It is wrong in principle to arm legislatively one particular Minister with power to pre-empt the calls of other Ministers on the public funds. I therefore hope that my noble and learned friend the Lord Chancellor will not accept this amendment.
Lord Morris: I believe that I am not alone in finding it extremely difficult to resist the immense charm of the noble Baroness, Lady Faithfull, and indeed that of the noble and learned Lord, Lord Elwyn-Jones. The noble and learned Lord made it quite clear to the Committee that he believed that this amendment was nothing more than a piece of declaratory law, just stating the purposes and principles behind this Bill.
We have heard that this amendment is very much more than that. It is a blank cheque drawn on the Treasury and drafted by the noble and learned Lord the Lord Chancellor. It is no more and no less. However, worse than that it places a duty on the noble and learned Lord to do things which are impossible for him to do on his own. I suggest that this amendment should be resisted at all costs.
I just refer to a point made by the noble Lord, Lord Allen of Abbeydale, with regard to the drafting of the first clause. I very much welcome this more modern style of drafting where the basic definitions are at the front of the Bill because not least it concentrates the mind of the legislators let alone the practitioners. I would very much resist the earlier practice of having the interpretation clauses at the back of the Bill.
Lord Mishcon: A mist has descended on the Committee and it has hidden the sunshine that the noble Baroness and my noble and learned friend Lord Elwyn-Jones brought into it. The sunshine was that, in spite of the fact that this is an enabling Bill, at Second Reading the count of regulations made under it was, I believe, over 50. However, if we leave this as an enabling Bill without giving the noble and learned Lord the Lord Chancellor, present and future, certain clear duties—and I do not baulk at the words—we shall be missing an opportunity which will not return and we shall be walking into risks in the future which I do not believe any one noble Lord would wish to contemplate.

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Both the noble and learned Lord, Lord Denning, assisted by the voice of his brother, the noble and learned Lord, Lord Simon, who I thought spoke most pathetically about the absent gin bottle, had one thought in common and I venture to suggest as a humble practitioner in the law, that they have not looked carefully at the wording of this resolution. The proposed amendment does not say:
"It is the duty of the Lord Chancellor to ensure that people of small or moderate means are not denied access to legal advice",
and so on. If it had said that, their remarks would be pertinent, though I would still feel that by a suitable choice of words we could overcome this threat of judicial review, which appeared to be the main purport of their arguments, as well as the fear that the Treasury would have no answer at all, whatever the call upon it by the Lord Chancellor's Department.
Those are not the words of the amendment. The words of the amendment are, "to promote and secure". That is his duty. The provision of a scheme—
Lord Simon of Glaisdale: Would the noble Lord allow me? The amendment states:
"secure the provision of…legal aid".
How does that differ from "ensuring"?
Lord Mishcon: I regret that the noble and learned Lord has again stopped short in his reading of this amendment. I say that with the deepest possible respect. He stopped short of words which are very material and which I was about to read to the Committee. The words are not the provision of legal advice for people who otherwise would not be able to afford it. He is under a duty to secure the provision of a scheme. That is the first thing—not a duty to provide legal advice. Then come the words which defeat the arguments of both noble and learned Lords, though at least the noble and learned Lord, Lord Denning, said he had the utmost sympathy with the object behind this amendment. I was very glad to hear it and for that sympathy I am duly grateful.
The words are "designed to ensure". Therefore, if the aim of the scheme eventually ensures that, then this is the purpose of the amendment and the aim that is behind the preparation and the provision of that scheme. It is designed to ensure that.
The Committee and the noble and learned Lord seem to feel that there are some words here which need altering in order that the whole purpose of the design behind this amendment can be secured. I am quite sure that the main point we wish to get through is the purpose of this amendment. At Committee stage if the principle is right then it deserves to be carried. At a later stage of the Bill we can deal with any minor alterations in order to ensure that advantage is taken of certain points. I would urge upon the Committee that it is terribly important that this amendment is not lost as a result of a misunderstanding and that the mist created by some previous speakers is not allowed to obscure the sunlight.
4.15 p.m.
Lord Campbell of Alloway: I regret that I am unable to accept this amendment and to bask in the sunshine of my noble friend Lady Faithfull's approval, welcome though it would be. It is wrong in form, it is wrong in intention and it is also wholly unenforceable.
Although in principle I support the incorporation of a purpose clause, this amendment goes much further. I am sure that from his experience my noble friend Lord Renton will correct me if I am wrong, but this amendment goes very much further than what is normally understood to be a purpose clause. It does not state the object of the Bill but imposes a duty.
Furthermore it does not, as has been suggested, secure expenditure for legal aid by indirect pressure on the Treasury by the duty proposed to be placed upon the Lord Chancellor. If it did, it would be open to the serious exception to which the noble and learned Lord, Lord Simon of Glaisdale, has referred. The Committee may think it is of some consequence that we should consider this amendment on its own merits and not, as has been suggested, as an indication of the attitude of the Government or as a general attitude on the part of any Member of the Committee.
If the clause read:
"The purpose of this Bill is to promote and secure",
I accept as a matter of principle that that would be a form of purpose clause and as such would not be objectionable. But it is not. It imposes this duty upon the Lord Chancellor and therefore the clause as it stands is, with respect to the noble Lord, Lord Mishcon, in my view wrong in principle. A purpose clause should never seek to impose a duty of such a nature.
The statutory duty which this amendment seeks to import into the Bill is insufficiently precise to be capable of enforcement by a judicial review, as was said by the noble and learned Lord, Lord Denning. No other means of enforcement are provided. To try to meet the argument of the noble Lord, Lord Mishcon, may I say, yes, it is a breach of a duty to promote and secure the provision of a scheme "designed to ensure". That is what it is. In this context I ask the Committee to consider for one moment the crucial question; that is, what steps if not taken would constitute a breach of such a duty? It is virtually impossible to envisage the answer to that question. As was pointed out by the noble and learned Lord, Lord Denning, the courts would be unable to deal with it or to enforce it in any way.
Furthermore a duty to be enforced by the courts has to be reasonably specific. What means are "small or moderate"? All men have different views about "small or moderate means". The noble and learned Lord, Lord Simon of Glaisdale, very reasonably instanced those just on the edge of qualification. But it would not end there, would it? The words "small or moderate means" import a degree of uncertainty which would be wholly unacceptable for the purposes of judicial enforcement.

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The last question is, what constitutes a denial of access to legal advice and so forth? The Committee may well think that it comes to this. Apart from being wrong in form and intention and unenforceable in the courts, it is improper to include words of mere exhortation such as those in the drafting of any statute, however much one may sympathise with the sentiments which prompted this amendment and with which I assuredly sympathise.
Lord Parry: Before the noble Lord sits down, simply on his final point on denial of access and what it constitutes, would he not agree with me that the noble and learned Lord the Lord Chancellor indicated that he was aware, and the House seemed to be aware at Second Reading, that access to the law is denied both on price and on fear of access to a great many people on the country?
Lord Campbell of Alloway: I am anxious not to take up too much of the time of the Committee, and with leave I would ask that I might deal with this at a later stage of the Bill.
Lord Hailsham of Saint Marylebone: I hope that I shall not be considered to be intruding in this debate. I noticed that the weather forecast today predicted not merely fog but frost, and I hope that if I am slightly cool towards this amendment I shall not be accused of freezing it out of consideration. I could not help thinking, as I listened to the dulcet tones of the noble and learned Lord, Lord Elwyn-Jones, and, indeed, of the noble Lord, Lord Mischon, that the Committee was not being told and that nobody mentioned that we had had a legal aid scheme within the general responsibility of the Lord Chancellor since 1949.
It has got on pretty well. It is the fastest developing and has remained the fastest developing in real terms of all our social services. Whether that is an unmixed blessing is a matter for discussion, though not now. Why? The scheme as originally introduced covered civil legal aid only. It included criminal legal aid from 1962, and it had legal advice and assistance only from 1972 when, while I was Lord Chancellor, it was introduced in that respect.
For all that time, in spite of the complaint that there is no statement of purpose in this law, we got on very well without a statement of purpose at all. The reason was that the duty placed on the Lord Chancellor was never an indiscriminate one. We progressed by stages, and I fancy we are still progressing by stages. We have always excluded defamation from the province of legal aid. We did so because we deliberately did not consider that in the light of other needs, particularly even in the field of legal aid, defamation was a suitable subject for according assistance to litigants.
Despite constant pressure to do so, we have always been rather reserved in giving legal aid or assistance in tribunals of various kinds, at least some of which were designed to avoid the necessity for providing
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remuneration to lawyers at all. if this amendment is passed it seems to me that my noble and learned friend will immediately have to try to devise a scheme which inserts defamation into the legal aid scheme and inserts representation before all tribunals in front of which anybody had any claim to representation at all. The truth is that there must be priorities, and this amendment is indiscriminate in its general statement of duty.
The question that I would ask the proposers of the amendment is: how did the various Lord Chancellors under Lord Attlee's Government, how did the noble and learned Lord, Lord Gardiner, how did the noble and learned Lord, Lord Elwyn-Jones, get on without a statement of purpose? They got on very well. The reason was that they were entitled, in consultation with their colleagues, to exercise a certain degree of common sense and priority. As the late Aneurin Bevan was once heard to observe, priorities are the language of socialism. The principle that I am seeking to propose is the same.
Looking at this amendment, I wonder how many of the other spending Ministers operate under statutes which impose on them an indiscriminate duty. How many Acts of Parliament impose this on the Social Services Secretary, on the Secretary of State for Education and Science, the Defence Ministry or the Home Office? How many of them have this? Is it really desirable to impose upon my noble and learned friend this kind of general and indiscriminate duty, and is it an advance in the science of legislation to attempt to do so?
I find it very difficult to reconcile this amendment with the actual terms which follow in the statute. The scheme is laid out very largely in the statute. Legal aid is to be accorded in the criminal courts by the courts themselves. That is how it is accorded at the moment; it is accorded by the judiciary. It is accorded by the magistrates in the magistrates' courts and it is accorded by the judge in the Crown Courts. How can the Lord Chancellor interfere with the judiciary, and would he not be under an obligation to do so, or at least to introduce amendments in the Bill which would enable him to do so, if this amendment were passed?
As regards the question of means, that is already the duty of the Social Services Secretary. I am not quite sure what is intended under this Bill. If it is to be the Lord Chancellor who has to devise the scheme to secure that people of moderate means are not denied legal aid, where does the Social Services Secretary come in? Where does the Legal Aid Board, which is to take over the position of the existing committees and the Law Society, come in? I find that this amendment is something which has very few precedents. It is of doubtful parentage indeed, having regard to those who have sponsored it, other than my noble friend Lady Faithfull, who is wholly innocent in these matters, not having held any of the high offices of state to which the amendment relates.
There is just one other thing that I should like to say. It concerns the role of the Treasury. I come back to what was said by my noble and learned friend Lord Simon of Glaisdale. It is silly to impose upon an

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individual Minister a duty to provide within the ambit of his own Vote, ultimately out of the Consolidated Fund, something which must bear relation to the total global amount of government expenditure, whether by taxation or borrowing. The Treasury has an indispensable part in our constitution of relating the demands of the spending Ministries to the individual demands of spending Ministers. Of course my noble and learned friend the Lord Chancellor will fight like anything to get his slice of the cake. I wish him luck in doing so. At the same time, to impose upon him a duty which must depend upon the size of the cake and the collective responsibility of government is contrary to the general understanding that I have of our financial arrangements under our existing constitution.
4.30 p.m.
Lord Elwyn-Jones: The noble and learned Lord invited me to give any precedent of the kind that we find in this amendment. There is a convenient one which happens to be in my hand that is found in Section 1 of the National Health Service Act 1977:
"It is the Secretary of State's duty to continue the promotion in England and Wales of a comprehensive health service designed to secure improvement—
(a) in the physical and mental health of the people of those count ries"—
an interesting reference to England and Wales, incidentally—
(b) in the prevention, diagnosis and treatment of illness, and for that purpose to provide or secure the effective provision of services in accordance with this Act."
That was in 1977 and it has proved a most valuable provision.
Lord Hailsham of Saint Marylebone: I notice that the noble and learned Lord did not add it to the duties of the Lord Chancellor.
Lord Renton: This seems to me to be such an important matter that I hope the Committee will bear with me for a few moments. As is well known to some noble and learned Lords who have spoken, as chairman of the committee which suggested that they should be used when appropriate, I am on record as being in favour of purpose clauses in order that we may do what Parliament so rarely does, which is to express its intention. Although we legislate to a vast amount, we so rarely indicate in general terms what we are doing. Therefore when I first saw this amendment I looked upon it with some favour.
A purpose clause is often valuable and could, in the context of this Bill, be valuable to enable the Bill to he properly interpreted by the courts; to give guidance to the Legal Aid Board upon which, as my noble and learned friend Lord Hailsham rightly said, the main responsibility will be for introducing the legal aid scheme (I shall come to that in a moment), and in addition as guidance for those who are going to have to draft the many regulations in the Bill. I have not counted them but a friend of mine did so and said that there could be 51 regulations.
We are faced with an amendment which is up to a point a purpose clause. In fact it goes rather further
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than being a purpose clause. But, alas, despite my previous position in favour of such things, I also find difficulties in this amendment. The main difficulty is, as has been said by those with greater authority than I, the duty placed upon the Lord Chancellor.
If we turn to Clause 2(2) we find that the Legal Aid Board is the body upon which they are going to place the responsibility for doing just what is mentioned in the amendment. Clause 2(2) says:
"Subject to subsections (3) and (4) below, the Board shall have the general function of securing that advice, assistance and representation are available"—
I think that is a good word in the circumstances—
"in accordance with this Act and of administering this Act".
Placing that duty as expressed in the amendment upon the Lord Chancellor would be inconsistent with that subsection.
I do however say this, and I want to keep it short. I hope that in the light of this discussion, and hearing in mind the possible advantages of having some sort of purpose clause, my noble and learned friend the Lord Chancellor, after the Committee stage is over, might look with favour upon a purpose clause and not on the lines of the amendment but with the objectives I have already described and will not repeat.
Baroness Phillips: If a mere laywoman may tangle with noble and learned Lords, it seems to me that the noble and learned Lord the former Lord Chancellor, who has just spoken, has turned us back to what the Bill says, which is very reasonable. He referred to the "advice, assistance and representation" which have already been given, and he suggested that they have more or less grown up informally.
If we were to apply that principle to every Act of Parliament there would be no necessity to have Houses of Parliament at all. We could have some fairly informal discussions— like presumably the Barons had when getting Magna Charta together—and from those you would evolve by custom and practice how the courts operate.
Speaking as a mere magistrate we were always working, as I understood it, under Acts of Parliament and statutes. We are discussing today a new Act of Parliament which is going to be quite far reaching and presumably will be on the statute book for a long time. If we look at the definitions of "advice, assistance and representation" there is a gorgeous phrase which makes one think that "Yes, Prime Minister" is very accurate.
"They have the meanings respectively assigned to them by section 1".
Clause 1 tells us what "advice" means, what "assistance" means, and what "representation" means but it does not tell us how individuals obtain these. Even if we look at subsection (2) it does not actually come back to the vital point which is embodied in this amendment, that nobody shall be deprived of the opportunity of getting these vital things, "advice, assistance and representation". i must suggest that in no way are we bringing in a new principle and in no way are we covering a point that is covered in the Bill already.
Lord Milverton: Having heard the different arguments and points of view I would certainly still be happy to support this amendment. Even if the movers of the amendment are told that as it is it cannot be accepted, I would hope that my noble and learned friend the Lord Chancellor would be able to say that he would be able to work at it and be able to find a way to bring in the important principle of this amendment.
I am sure that despite any legal aid there is of this or that sort—and not only am I sure but I know—there are (as the noble Baroness, Lady Phillips, said, and other noble Lords most probably know) many men and women who cannot afford—and are desperate to be able to afford and have the means—to have legal assistance. I would say that many know that, and I would dare to say that many church workers and other clerics would confirm that. It is important that this principle is not just disbanded.
The Lord Chancellor: We have had an extremely interesting debate on this important amendment with which the Committee stage of this Bill is starting. I am bound to say that, as it was being explained to us by the various persons who have appended their names to it, I was not absolutely certain that all had precisely the same idea of what the amendment would achieve.
The amendment expresses an intention of laying on the Lord Chancellor a duty to do certain things. I am not clear whether my noble friend Lady Faithfull, the noble and learned Lord, Lord Elwyn-Jones, and the noble Lords, Lord Allen of Abbeydale and Lord McGregor of Durris, wish this to be a duty enforceable at law. I rather understood the noble Lord, Lord McGregor of Durris, to say no, and that he would be prepared, if necessary, to see the amendment amplified by an express statement to that effect.
This is a fundamental question in seeking to impose a duty of this kind. What is the scope of it? Is it intended to be enforceable at law? If it is intended to be enforceable at law, I must say that I should have thought that the words used in the amendment would require to be a good deal more precise than they are.
As has already been pointed out, the reference to "small or moderate means" is one that has been used often in ordinary language and in speeches to describe the purpose of legal aid. However, I do not think many would regard that phrase as sufficiently precise to determine who is entitled to legal aid and who is not. One of the provisions of the Bill is designed to determine who is financially eligible for legal aid and who is not. That is done by means of regulations which would be expected to be precise and of the kind the noble Lord, Lord McGregor of Durris, referred to. If this is intended to be a legally enforceable duty on the Lord Chancellor, these words are certainly not sufficiently precise to be a proper expression of that legal duty.
The next matter I wish to mention is perhaps a little more general. A person who does not fall into the category of being of small or moderate means but who has enough money to enable him to litigate without concern for his means is entitled to litigate
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whether or not he has a good case. If he has a bad case, in due course that will be ascertained, if necessary after a full hearing. It has always been part of the condition of the grant of legal aid in a civil case, at least in the shape of representation, that the person concerned should have some form of reasonably stateable case and if it is a criminal case, that it should be in the interests of justice in the broad sense of that expression—and there have been elaborations of that expression for particular purposes—that he should receive assistance out of the public purse. This amendment does not address that problem at all. Surely it cannot be an adequate statement of the purpose of legal aid, going straight to the positive form of it, to give access to legal advice, assistance and representation at the taxpayer's expense irrespective of whether one has a stateable case. A good deal more consideration should be given to it if the idea of the amendment is to impose a legal duty on the Lord Chancellor.
Lord Mishcon: I am sure that the noble and learned Lord will forgive me and will not think this an impertinent intervention. The amendment says "as defined below". If the noble and learned Lord will look at the definition clause he will see that Clause 1(5) says:
"Regulations may specify what is. or is not, to be included in advice or assistance".
The regulations will provide that assistance is not available unless there is a prima facie case in civil law as the regulation provides now.
4.45 p.m.
The Lord Chancellor: The amendment incorporates the definitions of advice, assistance and representation, not the conditions under which they may be available. The subsection to which the noble Lord has just referred may be part of the definition; but regulations will determine the conditions under which legal aid, in the shape of advice, assistance and representation, will be available. Therefore, with great respect to the noble Lord, his point is not well taken in this situation. If a general duty of the kind that is here described is to be imposed on the Lord Chancellor, it would have to deal with this aspect of the matter and deal with it precisely.
A number of other points about the clause have already been referred to by noble Lords. For example, my noble and learned friend Lord Hailsham has pointed out that the amendment—if it has the effect I am assuming for present purposes—would impose on the Lord Chancellor a duty right across the whole spectrum of litigation and would completely destroy the distinction between actions of defamation, for which it has been generally accepted up till now that legal aid should not be available, and others. It would be a general duty in respect of all kinds of proceedings. These are some illustrations of the problem that the amendment creates. It is fundamental to the questions, with which I hope my noble friend will deal when she responds, to hear whether or not it is the intention to impose an enforceable legal obligation upon the Lord Chancellor.

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My noble friend Lord Renton, who was supported to some extent by others, asked whether consideration could be given to incorporating a statement of purpose in the Bill. If I take the explanation of the noble Lord, Lord McGregor of Durris, of the way he sees the amendment, it may be that what is sought is something of that kind. As my noble and learned friend Lord Hailsham said, the legal aid arrangements have been in existence for quite a long time and to date nobody has attempted in legislation to express the purpose of legal aid. There have always been substantial provisions for regulation-making power in legal aid statutes.
Legal aid has got along fairly well without any statement of purpose. However, I am happy to accede to any improvement in the existing legislation which clearly is an improvement. If a statement of purpose would help anyone and would be acceptable as a reasonably concise explanation of the purpose of the Bill, I would be happy to adopt it.
The difficulty of formulating a precise and appropriate clause of that kind should not be underestimated. I cannot at present guarantee that it would be possible. However, if this commends itself to the Committee I would certainly be willing to give some further thought to the possibility. No doubt if that is what the Committee had in mind, it would also give further consideration to these matters in the light of all the points that have been raised in the debate. I shall not take time from the Committee to summarise them again.
However, I should like to refer to one or two matters that have been raised. The noble Lord, Lord McGregor of Durris, and my noble friend Lady Faithfull referred to the substantial outlay in civil legal aid on matrimonial problems. I got the impression—and I hope it is right—that they have a proposal either for eliminating this aspect of expense or at least greatly reducing it. If there is a method by which that can be done, I shall be delighted to hear it. I would not be the first to wish that if money is being wasted under the existing legal aid arrangements these moneys should be used to better purpose.
The second point that I want to mention is in relation to moderate means and the various figures that have been referred to. It is perhaps an illustration of what I was trying to say earlier about "moderate means" being very imprecise that a number of figures have been described over the years. The noble Lord, Lord McGregor of Durris, referred to work of quality that was done in the Lord Chancellor's department in relation to this matter. If one uses households generally, still the best estimate that I have from the department is that 70 per cent. of households are still covered.
However, I would be the first to acknowledge—and I used to have some particular interest in matters of statistics and the like—that these figures are very difficult to attach any real weight to at all, and I am not clear that there are very good figures that can be used for this purpose, which very strongly emphasises the point that I was seeking to make. It is not a lawyers' point; it is a practical point about what one
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intends by the phrase "a person of moderate means". These are considerations which the Committee must have in mind.
My summary then is that I could not accept this amendment in any form, if the intention of it is to impose a statutory duty enforceable at law on the Lord Chancellor in anything like the terms here proposed. If, on the other hand, the intention is to seek to express, in a simple and short form, the whole purpose of the legislation, then I would certainly be willing to consider it. I doubt whether this amendment in its present form would be adequate for that, for the reasons that have been given; but I would certainly be willing to consider that and to reconsider any proposals which your Lordships might have on that line.
Lord Ackner: I apologise for arriving late and would not have spoken after the noble and learned Lord the Lord Chancellor, but for the fact that we have been sitting in the Appeal Committee. But I am wondering, in answer to his suggestion that he would consider a statement of purpose, whether the Committee has been reminded of this. The Government's response in Command Paper 9077, which contained the Government's responses to the recommendation on legal services of the Royal Commission presided over by the noble Lord, Lord Benson, had this phrase at page 10:
"The Government believes that legal aid should be available to assist those of small or moderate means by giving them the same chance to pursue or defend their legal rights as those in a position to instruct lawyers privately, provided that it has been shown that there are reasonable grounds for pursuing or defending the right in question."
That seems to be a purpose that the Government have already approved, put in writing some six or seven years ago, and I hope it is still operative.
The Lord Chancellor: Just before my noble friend replies, perhaps I may say to my noble and learned friend Lord Ackner that that comes not from a statutory provision but from a response. It may well provide material from which provision for a statutory purpose could be built. I doubt very much whether it would be adequate as stated for that purpose.
Lord Elwyn-Jones: May I ask the noble and learned Lord whether he thinks it would be possible, if the proposals of a statement of purpose is to be made, that we might have that before the Report stage of the Bill?
The Lord Chancellor: I am not sure that I particularly understand what the noble and learned Lord is asking. If I can devise a suitable statement of purpose with help such as I have available to me, then I would have in mind, if it were ready in time for the Report stage, to put it down as a proposed amendment as part of the proceedings for the Report stage. If perchance I was to have it ready very early and there was an opportunity to consider it before the Report stage, I would certainly be happy to let your Lordships have it. But I do not think that the prospect of that is sufficiently great for me to offer it, especially at this stage.
Baroness Faithfull: First, I should like to thank the noble and learned Lord the Lord Chancellor for explaining very carefully and in his very lucid way his view with regard to this amendment. Perhaps I may also thank all those who have spoken both for and against, but mostly of course for.
May I take up the point about the enforceable legal obligation? I do not know what the other supporters of the amendment have at the back of their minds, but I had never thought that this was to be an enforceable legal obligation on the Lord Chancellor. What I thought was that it was making a clear statement of purpose and guidance about this Bill. I have often listened to the plea of my noble friend Lord Renton that Bills should be understandable not only to the legal profession, but to those of us who are lay people and those of us in the country on the ground. Therefore I have thought that by putting down this amendment it would be clear to all those.
It is not only the lawyers who are concerned in this Bill; it is the people of this country, the voluntary workers of the Citizens' Advice Bureaux and other organisations that are involved in this Bill. Therefore it seemed right to me that in simple language the purpose of the Bill should be enshrined in the Bill, together with guidance. I make that as my first point.
My second point is that when people talk about moderate means and how this is to be determined, those of us who have worked on the ground have had to do this every day of our lives. The Social Security Act has to deal with people and whether they can or cannot draw social security. If you take a child into care, the parents are assessed to pay. Some of them can afford a great deal; some of them can afford nothing. You have a scale and a scale can be worked out. Therefore I am not quite sure why there is so much worry about this question of people of small and moderate means. This is perfectly possible to lay down and work out, and indeed it is in a great deal of our legislation at the moment.
I think that I am going to take issue with the noble and learned Lord, Lord Hailsham. The noble and learned Lord turned to me and said that I had never held high office of state. I understand therefore that that insinuated that there was much I did not understand in the law—
Lord Hailsham of Saint Marylebone: Let me say at once that what I said was that my noble friend was entirely innocent. I was rather intent upon the Opposition Front Bench, as I thought I had made it clear that it was rather odd that the noble and learned Lord, Lord Elwyn-Jones, had not asked for a definition of his duties having held the office of Lord Chancellor for so long, nor did his predecessor the noble and learned Lord, Lord Gardiner, and nor did his predecessor, Lord Jowitt.
5 p.m.
Baroness Faithfull: Nevertheless, I have not held high office of state; but I do, from the grass roots part of this Bill, understand what people want and need in this country. I am very grateful to the right honourable lady the Prime Minister who brought me into this House, who made the recommendation that
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I should come into this House, in order that I might put before your Lordships' House the feelings of the people of this country who are vulnerable, who are poor and who need support and help. I have to say to the Committee that they do not understand the judges, and therefore there have to be people who interpret to those people what the judges mean. Although I have not held high office of state, I stand between the judges and the vulnerable of this country.
The noble and learned Lord the Lord Chancellor asked whether we could suggest ways in which money for legal aid might be saved. A great deal of legal aid money can be saved by early counselling, advice and help given to people, such as is given by the Citizens' Advice Bureaux, counselling and the money centres. If these organisations are supported, a great deal of money would be saved because people would not need to go to lawyers. Many of those cases are helped by voluntary workers in the Citizens' Advice Bureaux and the legal aid centres. I think that that provision needs to be developed.
The Citizens' Advice Bureaux have an enormous number of offices but they do not cover the whole country. Therefore, there are areas where people must go to solicitors and must have legal aid, whereas, if a Citizens' Advice Bureau, legal centre or a money centre were available a great deal could be saved on legal costs. I have covered most of the points. I think that it was right to bring the amendment before the Committee. There must be more simplicity and understanding in our legislation. The noble and learned Lord, Lord Elwyn-Jones, mentioned that there is a precedent in the national health insurance legislation. It is not a new idea.
I stand by the amendment. I have, however, listened to what the noble and learned Lord the Lord Chancellor has said. I hope that something can be done.
The Deputy Chairman (Lord Aylestone): Is the noble Baroness withdrawing the amendment?
Baroness Faithfull: No, I shall leave the matter there.
Lord Elwyn-Jones: The noble and learned Lord the Lord Chancellor indicated—I do not know what the extent of the commitment is—that he would produce a statement of purpose and make it part of the Bill. If that is accomplished in a form that is satisfactory to the noble Baroness and myself, we may well be disposed not to take the matter further at this stage. However, I do not know how much further the noble and learned Lord can proceed on this matter, especially in the light of the intervention of the noble and learned Lord, Lord Ackner.
The Lord Chancellor: I am grateful that the precise aim of the amendment has been made clear. My noble friend has made it clear. Therefore, I shall endeavour to produce, with assistance to which I have already referred, a statement in the simplest terms that we can devise, which I hope will be comprehensible, of the purpose of the Bill. At the moment I do not go beyond that. I shall have a try at

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it. However, I cannot guarantee that it will be successful. There are difficulties in accomplishing that succinctly and in accordance with all the terms of the Bill.
It would be idle for anyone to suppose that if such a statement of purpose were incorporated it would not form part of the basis upon which the courts would construe the statute, if they ever have to. I am sure the Committee will appreciate that a great deal of care is required. That is why I am unable to give an absolute commitment that we shall be successful. As has already been pointed out, this has not been done so far and great intellects have been applied to the legal aid scheme since it was begun. I cannot claim therefore that I shall be able successfully to produce such an innovation. I undertake to do my best. In the light of that undertaking, I hope that my noble friend will feel able to withdraw the amendment.
Baroness Faithful!: In light of the undertaking just given by the noble and learned Lord the Lord Chancellor, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 1 agreed to.
Clause 2 [The Legal Aid Board]:
Lord Elwyn-Jones Lord Elwyn-Jones moved Amendment No. 2:
Page 3, Line 19, at end insert—
("( ) In appointing members to the Board the Lord Chancellor shall have regard to the following principles—

(a) the need for the independence of the Board;

(b) consultation with bodies representative of the consumers and providers of legal and advice services;

(c) representation from different parts of England and Wales;

(d) knowledge of the work of the courts and social conditions.").

The noble and learned Lord said: The amendment arises from the provisions in Clause 2(5) regarding the composition of the Legal Aid Board:
"Subject to subsection (6) below, the Board shall consist of no fewer than 11 and no more than 17 members appointed by the Lord Chancellor; and the Lord Chancellor shall appoint one of the members to be chairman".
Subsection (6) gives the Lord Chancellor power by order to:
"substitute, for the number … in subsection (5) … such other number as he thinks appropriate".
Subsection (7) provides:
"The Board shall include at least two solicitors appointed after consultation with the Law Society".
The amendment deals in greater detail with the board's composition than do the present provisions. The Committee will see from the amendment that it is proposed:
"In appointing members to the Board the Lord Chancellor shall have regard to the following principles"—
As has been established in the debate, there is no objection in principle to a reference to "principles". At least I hope that is so. The amendment provides that in appointing members to the board the Lord Chancellor shall have regard to:
"(a) the need for the independence of the Board".
I doubt whether that proposal will be challenged by the noble and learned Lord, or, indeed, by anyone.
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The necessity for the board to be independent, in the sense of being able to make its own decisions, is of great importance.
It is encouraging to note that when this part of the arrangements was touched upon on Second Reading, the noble and learned Lord said that he expected members of the Legal Aid Board to be independent. He went on to say:
"the type of person I shall be looking for to sit on the Legal Aid Board is not the type of person who would allow his personal independence to be compromised".—[Official Report, 15/12/87; col. 609.]
I am sure that the noble and learned Lord will not resile from that. In regard to a part of the Bill which is naked of provisions as to the board's composition in anything but the vaguest terms, we suggest that that element should be the first qualification and necessity for the board's existence and functioning.
The amendment provides that:
"in appointing members to the Board the Lord Chancellor shall have regard to"
their reliability in promoting that principle. The amendment also suggests in (b):
"consultation with bodies representative of the consumers and providers of legal and advice services".
As the noble Baroness said earlier, the workers in this field have had very great experience in these matters and can be of very great assistance. My experience, at any rate of the bodies that are functioning and of their representatives who have been so earnest and helpful to us in the preparation of this debate, is that the noble and learned Lord the Lord Chancellor would have no difficulty in finding worthy and suitable persons within that category to be members of the board. The same might be said both of the consumers associations and the providers of legal and advice services of which happily there are quite a few.
Paragraph (c) states:
"representation from different parts of England and Wales".
It is an unhappy fact that at the moment the provision of legal aid and advice is somewhat patchy. It is therefore important, if the quality and willingness to serve is sufficient among the people of this country, to find such persons in different parts of the country to enable appropriate representation to be established for the country as a whole.
Paragraph (d) states:
"knowledge of the work of the courts and social conditions".
The Members of the Committee will see that Clause 33(2) of the Bill makes a provision in regard to the advisory committee which will continue to advise the Lord Chancellor at least for the time being, That provision is:
"Appointments to the committee by the Lord Chancellor, whether by way of replacing existing members or making additional appointments, shall be made so as to secure that the committee is constituted of persons having knowledge of the work of the courts and social conditions."
So there is a clear precedent within the compass of the Bill itself to indicate that persons with:
"knowledge of the work of the courts and social conditions"
should be represented—if that is the right word—upon the board.
It is significant that the Scottish Act requires at least one member to have experience:
"of the practice and procedure of the courts".
Clearly in a field where the board will have so many quasi-judicial and directly legal matters to deal with and consider, it is desirable that someone with that degree of experience of the work of the courts and of social conditions should be appointed to the board.
One of the most moving aspects of the intervention of the noble Baroness was the way in which she showed—as some of the earlier interventions did not clearly indicate—her deep sense of sympathy with the problems with which we were endeavouring to deal. Therefore I am happy to move that this amendment be carried. Strength would be added to the set up—if that is not too unsuitable a word—of the legal aid board if men and/or women with the qualifications suggested in the amendment were appointed to the board by the noble and learned Lord the Lord Chancellor. I beg to move.
5.15 p.m.
Lord Renton: Although I am very much in favour of the next three amendments which are very specific in relation to the composition of the board, with due respect to the noble and learned Lord, Lord Elwyn-Jones, I have doubts about the practicability and need for his amendment. I shall take the points of the amendment in turn. Paragraph (a) mentions:
"the need for the independence of the Board".
In the nature of things the board will be a quango. Quangos are normally regarded as independent. Whatever the composition of the board, there may well be some kind of criticism: for instance, that "yes" men have been chosen or that it is not entirely independent. I do not think that it is other than overzealous of us to try to write that into the statute.
The amendment states in paragraph (b):
"consultation with bodies representative of the consumers and providers of legal and advice services".
I find that aspect of the amendment difficult. One of the problems of this provision would be that there is no body representative of litigants as a whole, for example of parties to divorce cases as a whole. That would give rise to some kind of difficulty.
Paragraph (c) mentions:
"representation from different parts of England and Wales".
On the face of it that proposition looks to be sound and sensible, but when we come to think it through, bearing in mind that the board may not be very large as its numbers will vary between 11 and 17, the noble and learned Lord the Lord Chancellor may be wasting a good deal of other talent that he might like to get onto the board if, in addition to selecting someone from Wales—which I am quite certain he should have—he must have someone from the South, someone from the East, the Midlands and the West as purely geographical representatives. That makes five people, plus the person from Wales which makes six out of possibly only 11 people on the board. We should not fetter the noble and learned Lord the Lord Chancellor in that way.
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Paragraph (d) of the amendment continues:
"knowledge of the work of the courts and social conditions".
Of course one hopes that the members of the board will have such knowledge but again to tie down the noble and learned Lord the Lord Chancellor to that definition may mean that he is missing the opportunity of getting somebody onto the board from, for example, industry who may not have knowledge of the courts or much knowledge of social conditions apart from those prevailing in the industries in which he has worked. My instinct is to say that that provision is a bit overzealous and that we could do without it.
Baroness Faithful!: I wish to take up a point made by the noble Lord, Lord Renton, when he talked about:
"consultation with bodies representative of the consumers".
I wish to point out to the noble Lord that in the National Health Service Act 1977 the Ministry of Health and subsequently Parliament set up the community health councils to represent consumers. As regards understanding consumers, those who are, for instance, in the social services, in the Citizens' Advice Bureaux, in fact in the statutory and the voluntary services, well understand the consumers' point of view.
Lord Renton: Perhaps I may briefly reply to the noble Baroness. Of course there are many statutory consumer councils but here we are dealing with a quite different point. Here the noble and learned Lord the Lord Chancellor is obliged to find out the people representative of certain groups. I believe that the biggest group of people who get help under the legal aid scheme are the people involved in divorce cases. Should the noble and learned Lord the Lord Chancellor really be obliged to ferret out a suitable representative of such people?
Lord Meston: I support the amendment. I hope that the noble and learned Lord the Lord Chancellor does not feel that the duty, such as it is, which would be imposed on him by the amendment would be too great a burden.
With respect to the noble Lord, Lord Renton, the amendment does not direct the Lord Chancellor absolutely to employ representatives from different parts of England and Wales; it requires him to have regard to the need for representation from different parts of England and Wales. The noble and learned Lord the Lord Chancellor will be aware, from our Second Reading debate if from nothing else, that there is great concern that the board should be as independent and as broadly based as possible. The amendment does little more than suggest in express terms what the noble and learned Lord indicated at Second Reading that he will seek to achieve in any event. To that end, I suggest that the amendment does no harm and may do some good.
The Lord Chancellor: As the noble Lord, Lord Meston, has just said, I indicated at Second Reading the sort of search I would have in mind in trying to get people for the board. As many Members of the

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Committee will know, on the assumption that the legislation may progress I have been consulting widely about possible candidates for board membership. I have contacted the local authority associations, bodies representing advice agencies and consumer associations generally, as well as many other organisations which have or may have an interest in legal services. I am most grateful to all of them for the help that they have given.
It is not a particularly easy task to get suitable people for the board. We have searched as widely as possible. My aim is to appoint people who are prepared and able to dedicate themselves to improving the management and operation of legal aid administration in all its aspects.
I understand the spirit of the proposed amendment perfectly well. It selects some principles, as it says, to be considered. In so far as it expresses those matters, I think it would be necessary at the very least to indicate that those are some principles among others to be considered. However, there are difficulties with the phraseology which I should like to mention.
It is absolutely clear that we want people of calibre. The Legal Aid Advisory Committee has been commended by more than one of the Members of the Committee who sit on the Opposition Front Bench for its independence. However, there is no statutory provision—and never has been, so far as I know—that the people appointed to the Legal Aid Advisory Committee should be independent. In a sense, it is a difficult concept to put into a statute, which is a similar sort of point to one I made earlier. One would need to ask. "Independent of whom?". Independence is not an abstract notion in its application; the board must be independent of somebody. Members of the Government will not be appointed to the board; I can assure the Committee of that. The people who are appointed to the board will not be members of the Government and they will he people of calibre.
I find that part of the wording of the amendment difficult to accept as part of a statute. So far as I know—I am open to the result of researches—a phrase of that kind has not appeared in statutory provisions before. Nonetheless, the councils and boards who have been appointed have been of calibre. There is an example which is near to home in the shape of the Legal Aid Advisory Committee, as I have said. As the noble and learned Lord, Lord Elwyn-Jones, has pointed out, there is a re-enactment of the provision for that committee in the Bill in the passage to which he drew attention and from which paragraph (d) comes. Therefore, I feel that it was rather inappropriate to have a phrase of that kind. I am perfectly happy to have a provision concerning consultation so long as it is seen not to be the only consultation that I should have.
This amendment has a slightly heterogeneous aspect about it. It is a mixture, if I may put it that way without seeking to be offensive to the drafting. It is confusing to know whether it is the personal qualities of the people or the method by which they are arrived at which is contemplated. One jumps from one to the other. I am sure that that is a matter which we can adjust together in due course.
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As I say, I have no particular objection to the proposed paragraph (b) if the Committee thinks that something of that sort is necessary. I believe that any Lord Chancellor will wish to do that in any case. However, if the Committee believes it will help, I have no objection to it.
As regards representation from different parts of England and Wales, that is slightly more difficult. Obviously I should very much like to have people who really know about conditions in Wales and all parts of England. However, the board is going to meet regularly and we do not wish to have people who have to spend all their time travelling from the remotest parts of England. That requirement is therefore just a bit difficult in practice. The Committee may take it that I shall try to get people who know about particular conditions throughout England and Wales, so far as that is possible.
I am also anxious that the people appointed to the board should include people with knowledge of the work of the courts and social conditions. We already have a provision for two solicitors on the board. I suppose that one may assume, with a fair degree of confidence, that they will be people with knowledge of the work of the courts and probably social conditions as well. That is expressly secured already. I think that it will be necessary, for example, not to leave out of account the need for expertise on management issues. One of the main responsibilities of the board is to provide management machinery. Concern has been expressed in some quarters that the board may be overloaded with accountants. I do not know why that should be a particularly feared section of the professional community. However, expertise in management is certainly required.
As regards the amendment as a whole, I am not particularly happy with the way it is expressed at present. Certain of the matters covered by it are perfectly acceptable if the Committee thinks it necessary to put those into the Bill. However, I should have thought that one could leave them to the good sense of the Lord Chancellor.
There is one drafting point of a slightly different kind which I should like to make. It concerns the use of the word "representation". I want the board to be a unit containing all sorts of knowledge. I think it would be inadvisable if, for example, the solicitor members of the board regarded themselves as representative of solicitors. They should be sitting on the board as part of it and seeking with their colleagues to attain a good and efficient legal aid system. However, I am sure that the solicitors who will be appointed will be of that sort. I do not think that the noble and learned Lord meant for the word "representation" to have that connotation in the circumstances of the amendment, but the fact that he used that word brings me to make that point, with which I hope the Committee will agree. I do not know that there is much between us in principle. I am open to any suggestions the noble and learned Lord may have as to how the matter may be progressed.
Lord Elwyn-Jones: The Committee will be grateful to the noble and learned Lord the Lord Chancellor for his sympathetic response to what was intended as a helpful suggestion. We are well aware of the

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considerable efforts he has been making in the confident expectation that in due course this ewe lamb, as I think the noble and learned Lord, Lord Hailsham, once described one of his projects—
Lord Hailsham of Saint Marylebone: It was one of the then Attorney-General's projects. The Attorney-General was my noble and learned friend Lord Havers, and it was the Contempt of Court Bill.
Lord Elwyn-Jones: It was his ewe lamb; in which case he may well be regretting the birth of that lamb. However, I must not distract myself from what I am seeking to say.
Clearly, we sympathise with the approach towards the membership indicated by the noble and learned Lord. I urge that he should not be discouraged by the prospect of coming from Wales as a circuiteer. As a circuiteer of the Wales and Chester circuit, I know the routes well. I know that now there is the Severn Bridge, unlike the old days, and trains that run nearly ten times as fast. However, in the light of the assurances that the noble and learned Lord has given I ask leave to withdraw Amendment No. 2.
Amendment, by leave, withdrawn.
5.30 p.m.
Lord Silkin of Dulwich Lord Silkin of Dulwich moved Amendment No. 3:
Page 3, line 24, after ("include") insert ("(a)").
The noble and learned Lord said: With the agreement of the Committee, I should like to group with Amendment No. 3 Amendments Nos. 4, 5, 6 and 7. Amendment No. 3 is a paving amendment for Amendment No. 7, which seeks to give effect to what the noble Lord, Lord Renton, indicated was an idea that he would accept in principle, although he did not commit himself to any specific wording of the amendment.
Lord Simon of Glaisdale: I wonder whether I may interrupt the noble and learned Lord. I have not had a list of groupings. Did he say that he was taking this amendment with Amendments Nos. 4, 5 and 6?
Lord Silkin of Dulwich: And Amendment No. 7. The list suggests grouping Amendments Nos. 3, 4, 5, 6 and 7, with which I find myself in agreement. Indeed, it is convenient that before Amendments Nos. 4, 5 and 6 are taken Amendment No. 7 should be considered because they are essentially amendments to the clause and affect Amendment No. 7.
Amendment No. 7 seeks to put in statutory form requirements which follow the pattern of consultation to which the noble and learned Lord the Lord Chancellor referred. He has been having widespread consultations, which we very much appreciate, as to the persons to be appointed to the board. The amendment is also consistent with assurances that were given to the Law Society by his immediate predecessor last July, and also with Scottish legislation. The noble and learned Lord the Lord Chancellor is to be congratulated on the width of the consultation that he has undertaken on the
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subject of the membership of the board since the functions of the board are of crucial importance. We hope and expect that the first board, which I understand is to be appointed in the near future, will be entirely consistent with the provisions of this amendment.
We are particularly concerned that the board should contain knowledge of conditions throughout the country—I hope that in putting it that way I shall have the assent of the noble and learned Lord—which includes knowledge of the procedure and practice of the courts and of social conditions, as well as the experience of those providing advice of a general character and those who can speak with knowledge for those sections of society likely to be consumers of legal services. I hope that those general principles are fully acceptable.
If the amendment is accepted, out of a maximum of 17 members the board will include at least three members, possibly four, who are either members of the legal profession or holders of knowledge of court procedure. It would include at least three others with special experience of a more general character earmarked by the amendment. Thus the amendment proposes to earmark what would be a minority of the 17 members of the board, if that is the eventual total, leaving a majority to accommodate the stated intention of the Government to include those with experience in personnel, finance and management, which we accept is a matter of great importance.
Our claims to earmark categories are extremely moderate. It is apparent from the amendments on the Marshalled List that the legal profession would have preferred a larger representation, but we have sought to avoid overweighting the board with lawyers, particularly bearing in mind that the numbers in the earmarked categories are minimum numbers. We say that it should have at least that number, and we leave it open to the noble and learned Lord to appoint more if he thinks it desirable.
It may be asked: why not leave it entirely to the noble and learned Lord the Lord Chancellor who understands what is required? I agree entirely that he does, but to that question there are two replies. First, the inclusion of those ear-marked categories in the Bill strengthens the hand of the noble and learned Lord against those who may wish to press for a larger majority of people with business experience who may be less concerned with the requirements of the consumers of legal services than with the cost of supplying those services.
Secondly, as the noble and learned Lord the Lord Chancellor said in the Second Reading debate, this Bill is intended to set the pattern of the legal aid system for the remainder of the century. To incorporate these requirements in the Bill would indicate to the noble and learned Lord's successors how Parliament in 1988 saw that pattern for the next decade or longer and how they thought it should be set.
This amendment is supported by the Law Society, subject to the outcome with regard to Amendment No. 5. It is certainly supported in principle by the Law Society. It is supported by the National Association of CABs, the National Consumer

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Council and a number of other bodies representative of those working in this field. Legal aid is recognised today as being an essential public service. This amendment will help to ensure that that principle remains predominant as we enter the new legal aid system that will take us into the 21st century. I beg to move.
Lord Meston: Perhaps it will assist at this stage if I indicate that, in the expectation that Amendment No. 7 will be moved, as well as Amendment No. 3, and in the hope that they will find some support, I do not intend to move Amendments Nos. 4 and 6 at this stage. I hope also that, as Amendment No. 7 provides, a place will be found on the board, and indeed in the Bill, for a barrister member.
As regards Amendment No. 5, I do not believe that the Bar would wish to enter into a numerical game with the Law Society as to membership of the board. I understand the reasons for the amendment, which no doubt will be expressed more fully by the noble Lord, Lord Mishcon, in due course.
I suggest it is correct that the Bar should be represented, and so should others, to ensure the independence of the board, and the width of representation of the membership of the board, without being delegates as such. As I understand it, the wording of Amendment No. 7 echoes, at least in part, the Scottish legislation, and for that reason must have something to be said for it. I am a little intrigued by the last category; paragraph (0 in Amendment No. 7 states:
"at least one other person having experience of the procedure and practice of the courts".
I do not know who is meant to be involved. I can think of a number of crooks or vexatious litigants who would make thoroughly undesirable candidates.
Lord Renton: I am rather disappointed with the speech of the noble Lord, Lord Meston. As I said at Second Reading, if we are to have two solicitors on this board—and that is already stated in the Bill—I should have thought that there should be at least two barristers. Under the present scheme the Law Society's administering committee has always had two distinguished, experienced members of the Bar serving on it, and they have found time to do so.
When I saw the noble Lord's Amendment No. 4, I welcomed it. I should have been prepared to support Amendment No. 5 which makes provision to increase from two to three the number of solicitors not merely because there are 10 times as many solicitors as barristers in this country, but because the solicitors will have to play, as they have done in the past, an even greater part numerically than the Bar in administering the scheme. It seems to me that there should be that representation. We would have that provision if Amendments Nos. 4 and 5 were accepted.
I think that Amendment No. 6 is sensible. As the noble and learned Lord the Lord Chancellor will be consulting the Law Society about the appointment of solicitors, so should the General Council of the Bar he consulted on the appointment of members of the Bar.
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I do not understand the comment of the noble Lord, Lord Meston, that we are not in the numbers game with solicitors. I had understood that the General Council of the Bar wanted to have two members on the board. It is preferable that we should accept Amendments Nos. 4, 5 and 6. Indeed, I should be prepared to move them if necessary, as one is entitled to do.
I do not have any great objection to Amendment No. 7 but I do not see the need for paragraph (6) of Amendment No. 7 if we accept Amendments Nos. 4 and 6. If we were to accept Amendments Nos. 4 and 5, I am doubtful whether we should need paragraph (0 of Amendment No. 7. We know that there are people other than barristers and solicitors who have experience of the procedure and practice of the courts. There are barristers' clerks, legal executives and so on, who are not necessarily qualified solicitors. I do not know whether those are the sort of people that the noble and learned Lord, Lord Silkin, has in mind in Amendment No. 7.
Lord Silkin of Dulwich: I am grateful to the noble Lord. Of course there is a wide range of people who have experience of the procedure and practice of the courts in addition to barristers' clerks and solicitors' clerks. There are those who have years of experience of working in them in one form or another.
Lord Renton: Yes. There are the press reporters who report legal cases. There are the police. The examples are innumerable. However, this relatively small, independent legal aid body, which must be highly respected, must have people who understand and have had professional experience of the working of the courts. That is why I say it is better that we should accept Amendments Nos. 4, 5 and 6.
5.45 p.m.
Lord Denning: I do not like Amendment No. 7. I think that the matter should be left to the noble and learned Lord the Lord Chancellor in accordance with the general provision. What about the legal executives? What about the magistrates' clerks, the magistrates' associates, and so on? I would not tie the hands of noble and learned Lord the Lord Chancellor to "at least" one of those. There may not be a suitable person ready and available to take up the task.
I prefer Amendments Nos. 4 and 6 for this reason. In obtaining legal aid the solicitors play a very important part in putting the case before the legal aid committee as to whether advice should be given. Perhaps the most important aspect is when the barrister is asked to advise whether there is a reasonable case to proceed with. The legal aid committees go by that barrister's advice 99 times out of 100. The barristers therefore play a most important part in the provision of legal aid.
In criminal cases also, where advice is given as to whether or not to appeal, the barrister's advice is accepted. In those circumstances I see no reason why there should be any differentiation between the number of solicitors and the number of barristers. If

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there are to be two solicitors then there should be two barristers. I suggest that that is the only fetter we should put upon the noble and learned Lord the Lord Chancellor when establishing this board.
Lord Boyd-Carpenter: I very much agree with the noble and learned Lord, Lord Denning, that this somewhat complicated amendment would leave the noble and learned Lord the Lord Chancellor with quite considerable difficulties of selection, and, if I may say so with respect, a rather odd collection of people.
Paragraph (c) provides for:
"at least one member after consultation with the appropriate local authority associations".
There are a great many local authority associations. Which of them are appropriate in this respect is a very open question. They each and all of them regard themselves as the only appropriate body for consultation about almost everything. The noble and learned Lord the Lord Chancellor would therefore be in great trouble if he consulted one and not the others. None of them would recommend the same person. The process seems fairly useless because this does not seem to be a matter which concerns local authorities and their associations.
The most extraordinary provision, paragraph (d), provides for:
"at least one member after consultation with the providers of general advice to members of the public".
Who are they? I suppose the press would regard itself as the most important provider of general information to the public. It would also be challenged by the broadcasting media. It is an extraordinary expression to use. It is no doubt intended to mean some worthy collection of people who work in organisations. However, as expressed and as it is proposed to put into the law, the ordinary meaning of the phrase:
"the providers of general advice to members of the public"
seems to suggest those who provide a great deal of advice to the public; that is to say, our friends in the press.
Paragraph (e) provides for:
"at least one member after consultation with the representatives of consumers of legal services".
Who on earth are the consumers of legal services?
Lord Hailsham of Saint Marylebone: Persons charged with crime!
Lord Boyd-Carpenter: As my noble and learned friend Lord Hailsham suggests, they are either those who committed serious crimes and who we know, as a result of the activities of the parole board, will soon be at liberty and therefore available for appointment to this board; or, if it refers to the legal aid scheme in particular, as the great volume of the work done is, as I understand it, divorce, the person presumably most qualified would be the member of the public who had had the most divorces. That is not perhaps a proposal which would appeal to the right reverend Prelates on the Bishops' Bench!
Lord Hailsham of Saint Marylebone: I do not know. We are all broadminded nowadays!
Lord Boyd-Carpenter: It seems to me that the amendment is largely an organised or perhaps a disorganised nonsense, and I hope my noble and learned friend the Lord Chancellor, with his habitual courtesy, will dismiss it.
Lord Hailsham of Saint Marylebone: I do not want to intrude too much into these debates, for very obvious reasons, but at an earlier stage in the year I gave some thought to this matter. I fully agree with the Opposition Front Bench and those who proposed the various amendments that the composition of the board must be subject to parliamentary scrutiny. The Lord Chancellor must be very clearly accountable to Parliament and continuously accountable to Parliament for his appointments from time to time. But having said that, I doubt whether the sort of trade unionism and other speeches we have heard will assist him in the discharge of his duties.
The first thing we have to remember is that this is an executive board and not an advisory board. It must not mix itself up with the Legal Aid Advisory Committee, which has done very useful work but must not have its work duplicated by the board. This is the board that will take over the work of the executive committees of the legal profession all over the country, and certain of the functions of the Lord Chancellor. Members must therefore be chosen for their executive ability. The Lord Chancellor should consider that first of all.
Secondly, there is a legal principle which will be known to the noble and learned Lord who proposed the amendment, Lord Silkin of Dulwichi—expressio unius est exclusio alterius. The effect of putting all these things in will tie the hand of the Lord Chancellor and prevent him from appointing numbers of otherwise suitable people, because he will say "Oh, but there is only one barrister so far", or "There are only one-and-a-half solicitors". The result is that there will be no room for some desirable expert in management on the board, even if the full number of 17 is provided.
I endorse what my noble friend Lord Boyd-Carpenter said about consumers of legal services. I was not altogether jocular when I asked, "Who are the consumers of legal services?" First, as he said, there are people involved in matrimonial disputes. Secondly, there are people who are run over by motor cars and those who are sued by them. Thirdly, there are the persons who are charged with crimes. They are the consumers of legal services. There is no representative body of these rather heterogenous characters for the Lord Chancellor to consult. Even the noble Baroness, Lady Burton of Coventry, who is such a protagonist of consumers, cannot represent the consumers of legal services. Even my noble friend Lady Faithfull cannot do that.
I back my noble and learned friend Lord Denning. Obviously Parliament will have to scrutinise the Lord Chancellor, and the Lord Chancellor must be heavily accountable to Parliament for what he does. But I wonder whether it is wise to put all these characters together defending the rights of solicitors, barristers,

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local authority associations and advisory bodies. That will give us a board of the great and the good but who represent nobody except one another.
Lord Renton: Can my noble and learned friend say whether he considers the fact that the Bill provides that the board shall include at least two solicitors would prevent the Lord Chancellor from also appointing two barristers?
Lord Hailsham of Saint Marylebone: It depends what vacancies there are. On the first appointment it would not matter, but if one man on the board were to die that might prevent the appointment of somebody who was thought suitable. For example, if one of the two solicitors were to die or be run over by a motor car the Lord Chancellor would have to appoint another solicitor. Therefore his hands would be very heavily tied. I agree with the principle of accountability and parliamentary supervision, but I doubt whether the principle of definition is not merely an example of quango-like trade unionism.
The Lord Chancellor: The problem of securing the right people to be members of the Legal Aid Board is not altogether an easy one. In response to the earlier amendment I sought to indicate the kind of Legal Aid Board that I have in mind. I understood from the reaction from all sides of the Committee that, generally speaking, noble Lords were in agreement with that.
It has not been particularly easy on consultation to identify a great number of people who would be entirely suitable. I should like to begin by dealing with the position about the Bar. I think I am right in saying that it was the original intention of my noble and learned friend Lord Hailsham—whose interventions in these debates I greatly welcome—to have in the statute a provision for two barristers as well as two solicitors. The difficulty that has arisen as a result of trying to work out the details of the scheme is that the board will be a working board in the sense that there is a lot for it to do. It is intended that the members of the board should take a close interest in aspects of the work of the board. The board may think it wise to conduct its business by dividing itself so that parts of its operation will be subject to particular administrative scrutiny by some members of the board with special interests.
We have agreed, with the advice of my officials and with consideration of the nature of the administration of the Law Society at present, that the hoard's work would be quite demanding, particularly in the early stages. Up to now there has been difficulty in being certain that suitable members of the Bar would be able to participate in the work of the board on the basis at present estimated. My officials, as well as myself, have been discussing this matter. We have corresponded with the chairman of the Bar and we have written to the past chairman about this point.
It has been put on record that practising barristers, or barristers recently in practice, should be appointed to the board. We agree that that is highly desirable. Because we recognise the problems in finding a practising barrister able to give two days a week, we have agreed to reduce the commitment, if that could
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be done, to one day to try to find a good candidate. But there is a problem even about that. This is why at present I am not anxious to commit myself in the statute to a particular level of barrister participation. If we can find barristers willing to give the necessary commitment, we shall embrace that opportunity eagerly.
Lord Denning: Are the members of the board to be paid? If a barrister gives his time to this, will he be paid or will he do it free?
The Lord Chancellor: There is no question of people being invited to carry out this work free. They will receive remuneration on a stated basis, but, as the noble and learned Lord knows, there are different levels of remuneration according to the different work that people may be doing. I need not go into the detail of that just now. No doubt we shall hear more about that later, and we have perhaps read something about it recently as well. All I need to say in answer to the noble and learned Lord is that it is anticipated that members of the board will be paid for the work they do.
Notwithstanding that, it is not clear at the present time that we shall be able to find two barristers who are able to participate as fully as we should like. It may be possible to solve the problem, and I hope that it will be, but the Committee must appreciate the fact that unless it is clear that the problem can be solved, and solved for all time, it is unwise to put the matter on the face of the Bill. It would mean that if that point cannot be met, then we cannot operate at all and primary legislation would be required to alter the situation. It is a severe practical difficulty.
In principle, I am in favour of the amendment and would welcome two suitable barristers on to the board. That is the main point that I should like to raise in relation to the general issue—
6 p.m.
Lord Renton: I hope that my noble and learned friend will forgive my interruption. I should like to place on record the fact that the advice that he has received from the Bar has changed from the advice that I was given at the time of the Second Reading. I accept what he has said.
The Lord Chancellor: This is a changing situation. We have correspondence with the Bar and have not yet received a reply. This is an interim stage and I should not like to prejudice any hope of securing suitable members of the Bar. However, if we can achieve it, we certainly shall.
I do not wish to include the amendment at the moment only for the reason that I have given. If the situation changes, we shall certainly reconsider the matter. That of course would be after consultation with the general council of the Bar, and that is what we are trying to carry out at the moment.
I envisage that a board will be appointed after consultation with a large variety of people. I do not think that it would be right to state that it should be at least one member after consultation with the appropriate local authority associations. In so far as

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there are local authority associations which are appropriate (I take the point made by my noble friend Lord Boyd-Carpenter) they will be consulted before anyone is appointed. If a vacancy occurs on the board after it is appointed and running, we should not want to restrict consultation to particular groups at that stage. I think that it is a mistake to link a particular place on the board with a particular consultation. We shall try to have wide consultation, as a result of which I hope that we shall obtain a board whose members will cover separately (or more than one member will cover more than one aspect) the various concerns that underlie the amendment. I do not wish to go into the detail of those. Comment has been made about the possible people who may be regarded as covered by the various headings. As have other noble Lords, the noble Lord, Lord Meston, has speculated on what is intended by paragraph (f). However, I think that it would be a mistake to try to achieve it in this way.
If any provision about consultation is to be included, I think that the correct form is a general consultation provision prior to all appointments. The appointments should then be left free, subject to the system of appointments that has already been included (unless any member of the Committee suggests that that should be deleted, though I do not think that that has been suggested). Subject to that, the consultation process should yield as good a board as we can achieve with wide interests and experience.
Lord Silkin of Dulwich: I found that to be an extremely helpful reply, as have been the previous ones. We must look at the lines on which the noble and learned Lord proposed that the difficulty might be dealt with. It may be that we on this side of the Committee, together with the noble and learned Lord, will be able to work out the most suitable wording.
If necessary, we can look at the matter at a later stage, but I wonder whether what the noble and learned Lord said about the difficulty regarding the Bar, which I have always fully understood, would apply to the form of the amendment in subsection (7)(b) which specifically provides for one member. We ask that because we were aware not only of the difference between the total numbers of solicitors and barristers but also of the problem that the Bar would have in finding a substantial number or even more than one member. We understand that the Bar would have no difficulty in finding one member. However, between now and the next stage of the Bill the noble and learned Lord might ponder over the question of whether it is desirable that in the Bill there should be specific reference to solicitors and no reference to barristers. Having said that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Meston Lord Meston had given notice of his intention to move Amendment No. 4:
Page 3, line 24, after ("least") insert ("two barristers and").
The noble Lord said: I do not wish to move this amendment.
Lord Renton: One is entitled to move the amendment in another Member's name. During an earlier discussion, I said that I was proposing to move this amendment if it was not moved. However, in view of what the noble and learned Lord the Lord Chancellor has said (which indicates that he is now in discussion with the Bar Council, and that its attitude has changed since Second Reading) I do not propose to take the matter any further.
[Amendment No. 4 not moved.]
Lord Mishcon Lord Mishcon moved Amendment No. 5:
Page 3, line 24, leave out ("two") and insert ("three").
The noble Lord said: At the outset I should like to make clear the fact that there is no competition whatever between my own side of the profession and the Bar as to how many representatives are on the board. It is not a matter of prestige; it is a matter of serving the nation. In that context, on behalf of the Law Society, I should like to remind the Committee—I am sure that I do not have to remind many Members—that the Law Society has been administering the legal aid scheme since 1949. It has had a full-time legal aid committee dealing with the matter; it has had officers dealing with the matter. We are talking of 40 years of expertise, quite apart from administering approximately 80 per cent. of the legal aid fund in respect of solicitors. It is because the Law Society would wish to put that expertise at the nation's disposal that at least three members of the solicitors' profession should be on the board.
In view of the way in which I commenced my remarks, I should like to say that the Law Society completely supports the fact that the Bar, with its 5,000 members— I make no point of the fact that that is one-tenth of the number of practising solicitors—
should be represented. I was delighted to hear that the noble and learned Lord the Lord Chancellor is hearing sounds from the Bar Council that such representations should be possible. I beg to move.
The Lord Chancellor: I should like to say how much I appreciate the work of the Law Society in administering this scheme. I am sure that that is true of those who have been my predecessors since the legal aid scheme was introduced, and those noble and learned Lords who are here have indicated so to me. It has been a great service to the nation and the legal aid board, when established, will have a great deal to learn from the Society. I am sure that the experience gained over the past 40 years will be immensely valuable.
For that reason alone I should be perfectly content that the Bill should continue to have a provision expressly reserving two places for solicitors, even if we do not ultimately amend it to include any express provision in respect of the Bar. On the other hand, I believe that the more restrictions one has, the more difficult it may be to secure the best possible board. I hope that the noble Lord might feel that we have; ought genuinely not only to pay tribute to the past Put also to express confidence in the contribution that the solicitor branch of the profession will give us in he future by having the figure of two. I hope that he nay feel that that is sufficient for the present.
Lord Mishcon: I have some difficulty with the very kind words of the noble and learned Lord the Lord Chancellor. He paid tribute to the experience and what has been done for the nation. I am sure that the Law Society, which has heard that expression of appreciation from him before and was very grateful for it, will be grateful for it now. I only hope that that experience and that appreciation will be remembered over the years. It is experience accumulated over 39 years. I feel, therefore, if I may say so respectfully to the noble and learned Lord, that to have a fixture—if I may put it that way—of at least three, which is not very many but which will give that experience over the years, would be guidance for his successors; he needs no guidance himself. Otherwise, I would have been completely content with the noble and learned Lord's assurance that he would be looking at a figure similar to three or possibly more, dependent on how he finds his experience with the rest of the board. I should be content with that verbal assurance.
However, I am looking forward to the future and I believe that a profession which represents some 40,000-odd practising members, and is doing the main part of this, ought to have its experience available to the board in a membership of at least more than two. I wonder if the noble and learned Lord would at least indicate that he will very seriously consider the alteration from two to three. I certainly do not wish to test the feeling of the Committee but I hope that he could at least say that he will consider the matter favourably.
The Lord Chancellor: The invitation of the noble Lord is very enticing, but I have considered this fairly carefully and I do not feel able to depart from the suggestion that the Bill should be left as it stands as an acknowledgement of the position. Of course, as I pointed out, the Bill says "at least two" and we are in no way bound to restrict it to that. I feel that the provision of "at least two" is sufficient and I am not in favour of increasing the number to three on the information and consideration which I have been able to give to this matter.
Lord Mishcon: There are so many important amendments and matters of principle coming before this Committee that I do not believe that I should take up time at this stage in testing the feeling of the Committee or taking the matter further. Therefore, I beg leave to withdraw the amendment with liberty to apply at further stages of the Bill if I see fit.
Amendment, by leave, withdrawn.
[Amendments Nos. 6 and 7 not moved.]
6.15 p.m.
Lord Mishcon Lord Mishcon moved Amendment No. 8:
Page 3, line 26, leave out subsection (8) and insert—
("(8) The powers conferred by subsections (4) and (6) above are exercisable by statutory instrument which shall not come into force unless or until approved by a resolution of each House of Parliament.").
The noble Lord said: This is one of those occasions when one reminds the Committee of the procedure, and one does it very respectfully. The negative procedure for dealing with matters or orders and statutory instruments is not one favourable to the
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House of Lords. We have a tradition that we never vote upon such matters. We are, our course, bound by the fact that we cannot amend and in those circumstances we merely stand in the face of the negative procedure by being able to make speeches and by feeling somewhat powerless.
In dealing with the matter which is raised on page 3, line 26, we therefore ask for leave to omit subsection (8) and to insert there quite clearly that:
"The powers conferred by subsections (4) and (6)"—
which are very important,
"are exercisable by statutory instrument which shall not come into force unless approved"—
and that is, or course, an affirmative resolution,
"by a resolution of each House of Parliament".
I beg to move.
Lord Simon of Glaisdale: Constitutionally, this seems to me one of the most important matters that the Committee has to consider. A great deal under this Bill is carried out by regulations. We have come to accommodate that although it inhibits to a great extent the regulatory function of the Houses of Parliament and, in particular, it inhibits the function of this House as a revising Chamber. Even if this amendment is accepted, there is no possibility of amending the regulations that are laid. All that can be done is discussion and, if opinion is hostile enough, the regulations are taken away, redrafted and relaid; but at any rate this goes part of the way.
As the noble Lord, Lord Mishcon, said, it particularly impinges on the responsibilities of this House as a revising Chamber. That is not purely a negative expression but it is the constitutional duty of this House. Unless this House can carry it out, it is not carried out at all. One must face the fact that under our present electoral system, this House, by its composition, reflects more accurately the totality of political opinion in the country than any other institution.
In my respectful submission, what is proposed by the noble Lord, Lord Mishcon, is the very minimum that is acceptable. The House will then have an opportunity of seeing the regulations, discussing them. If they are unsatisfactory, it is true they cannot be amended. But they can be met with such hostility as has happened in the past, that they are taken away and redrafted in view of the opinion expressed.
Lord Ackner: Having had the privilege and pleasure of hearing my noble and learned friend Lord Hailsham say, in regard to Amendment No. 7, that the noble and learned Lord the Lord Chancellor was heavily accountable—a comment he repeated more than once—to Parliament in the choice of the members of the board, I too, and for that reason, support the amendment.
Lord Hailsham of Saint Marylebone: Before my noble and learned friend replies I wish to say this, and I shall be very interested to hear his reply. I should have thought that there was a manifest difference between the powers given to him by subsection (8) and the powers exercised by him under subsection (6). I should have thought that the maximum and the

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minimum numbers of the board were a typical example of what ought to be done by negative resolution. Unless one complained of the maximum being raised to 18 or 19 or the minimum reduced to nine or 10, one would really let the matter go on the nod.
The other powers are positive and some of them are analogous to powers which are already dealt with by affirmative resolution and not by negative resolution. I believe there is a distinction between the two subsections.
Lord Elwyn-Jones: This amendment refers to an important provision in the Bill; namely, the functions to be exercised by the board. In subsection (8) the powers that are relevant are those conferred by subsections (4) and (6). Subsection (4) reads:
"does not confer on the board any of the following functions unless the Lord Chancellor so directs by order and then only to the extent specified in the order".
It goes to the nature of the functions that are exercisable by the board. I should have thought that that was a matter of considerable importance 'and might well go to issues of principle. Subsection (6) relates to the number that would perhaps have been appropriate to be dealt with by negative machinery and formulation. On the former, one ought to draw the line here as this refers to a matter of principle.
I am most grateful to the noble and learned Lord the Lord Chancellor for the letter he sent me about this matter. I appreciate the difficulties. It may be desirable to look carefully as between one clause and another to see which in particular merits the full-dress procedure of full debate, because there is a very great sense of frustration when we have merely a negative resolution. The Lord Chancellor might therefore consider whether this is an appropriate clause for making the wider provision available.
The Lord Chancellor: I am grateful to the noble and learned Lord, Lord Elwyn-Jones, for what he has said, and also to the other noble and learned Lords who have spoken; namely, my noble and learned friends Lord Hailsham, Lord Ackner and Lord Simon of Glaisdale.
On Second Reading, I indicated in a reply to one of the main points made by the noble and learned Lord, Lord Elwyn-Jones, that I thought there was room for considering the particular powers to see which was the appropriate method. I entirely adhere to that. I think it would be a waste of parliamentary time to have an overall view of this. I think it is best that we look at each of these in particular.
In this case I think that the changes which would be wrought by the exercise of power under subsection (4) would be very important changes. They would be extensions of the first power of the board. We are hoping to set up the board to take over the civil legal aid activities of the Law Society. Then, as matters develop, we may be able to extend. This power is the power for extension of these functions of the board. Therefore I believe that if it is operated subsection (4) is an important change and accordingly I think that
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it would be right to accept the amendment in so far as it deals with that aspect.
On the other hand—my noble and learned friend Lord Hailsham and the noble and learned Lord, Lord Elwyn-Jones, were inclined to the same view—subsection (6) is a mere change of number. If it was contentious it could readily be raised under the negative procedure. No explanation would be needed as one would be under subsection (4). At present I am disposed to accept the view that the powers in subsection (4) should be under the affirmative procedure and those in subsection (6) should be under the negative procedure. In general terms this principle is the right principle to apply in dealing with this important matter. I agree entirely that it is an important constitutional matter which I should like to get right. In applying it to this particular case, that is the way in which it should be done.
In the light of that, I hope that the noble Lord feels able to withdraw the amendment on the understanding that we shall consider introducing an amendment to have that effect.
Lord Mishcon: I am sure we are all grateful to the noble and learned Lord the Lord Chancellor for what he said, and especially for his assurance that in each and every case we shall be looking to see whether the negative or the positive procedure will be appropriate. In addition, we shall be looking at things on their merits. In view of the kind assurance from the noble and learned Lord that there will be an amendment at Report stage which will deal with this matter in the way that he said, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 2 agreed to.
Clause 3 [Powers of the Board]:
Lord Silkin of Dulwich Lord Silkin of Dulwich moved Amendment No. 9:
Page 3, line 38, leave out from ("different") to ("fields") in line 39.
The noble and learned Lord said: This is not so weighty an amendment as some of the others which we have discussed previously. It is of a probing character. The provision in Clause 3 of the Bill is to the effect that the board may do various things. It goes on to say:
"advice, assistance and representation may be provided in different ways in different areas in England and Wales and in different ways in different fields of law".
One understands entirely that there are different conditions in different parts of the country. At the moment, what is not abundantly clear to me is why the powers of the board in relation to advice, assistance and representation should differ according to the areas in England and Wales that are dealt with. They may wish to use their powers in different ways in different parts of the country. If that is what it means then why should their powers be different according to the area of the country which is dealt with? It is simply to obtain an explanation that this amendment has been tabled. I beg to move.
Lord Renton: Part of the answer to the last point raised by the noble and learned Lord is that one could have different areas which deal with divorce and other civil matters. The only point I wish to put to my noble and learned friend is that there are already existing areas and sub-areas for legal aid. Presumably, free scope is given to the board to change those areas and to have an entirely different arrangement. Perhaps the noble and learned Lord would say what he has in mind.
The Lord Chancellor: I am not absolutely certain that I understand precisely the amendment which the noble and learned Lord is proposing. If I am not mistaken, there is more than one "different" in line 38. I am not sure whether it is the first or the second one from which he means to start the deletion.
Lord Silkin of Dulwich: Perhaps it would help if I read out the wording of the subsection if the amendment were made. It would read:
"and advice, assistance and representation may be provided in different ways in different fields of law".
6.30 p.m.
The Lord Chancellor: I am very much obliged to the noble and learned Lord. We are including the provision which he seeks to probe because we think that it may be wise to retain flexibility in this matter; the social conditions and conditions in which legal advice is sought may be different in different parts of England and Wales. We fear that unless it is made plain that different arrangements could be made in various parts of the country to take account of those differences, it may be held to be illegal to make such differentiation.
In a sense, this power is intended to complement the sort of idea that was contemplated in the earlier amendments about knowledge of England and Wales as a whole. The conditions may well be different in different parts of England and Wales, and it seems appropriate that the arrangements could take account of these differences. I do not say that they will, but that they could take account of these differences. I hope that that explanation meets the point that the noble and learned Lord made.
Lord Silkin of Dulwich: I am grateful to the noble and learned Lord for explaining in principle. It would certainly help me if he could give some explanation of the kind of difference that he has in mind.
The Lord Chancellor: I think it is fairly easy to see that in some situations a particular kind of arrangement for the provision of services would be appropriate, whereas in another part of the country, where perhaps that particular type of service is remote, some other form of arrangement would be appropriate. I do not think that I want to speculate too much on what might give rise to this power, but it does seem a suitable power to include. I hope that the noble Lord will feel able to withdraw the amendment.
Lord Hailsham of Saint Marylebone: I do not know whether my noble and learned friend has this in mind, but when I was practising in the provinces in the county court there were certain parts of the country where one was not allowed on taxation a fee for a barrister unless one could get a No Local Bar certificate, and the ordinary representation allowed on taxation was representation by solicitor. I do not know whether that is an example of what my noble and learned friend has in mind, but it would seem to come within the terms of what he has proposed.
Lord Silkin of Dulwich: Perhaps the noble and learned Lord the Lord Chancellor might spend a little time considering this with his advisers. If he has any example to give beyond what he has already said perhaps he could let me know. I am grateful for his reply and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Mishcon Lord Mishcon moved Amendment No. 10:
Page 3, line 39, at end insert—
("( ) In exercising its powers under subsection (1) above, the Board shall have regard to the need to maintain and develop a competent accessible independent national network of advice centres and law centres.").
The noble Lord said: We have just been dealing in Committee with Clause 3, and in particular subsection (1). With the Committee's permission I shall remind noble Lords what that subsection says:
"Subject to the provisions of this Act, the Board may do anything—

(a) which it considers necessary or desirable to provide or secure the provision of advice, assistance and representation under this Act; or

(b) which is calculated to facilitate or is incidental or conducive to the discharge of its functions.".

In that context, I should like to draw the Committee's attention not just to the efforts of my own profession practising in offices and in firms, or to the worthy services of the Bar, but to one of the great pillars upon which legal aid has relied and will rely even more in the future, that is, the network of advice centres and law centres. I am sure that noble Lords will wish to pay tribute with me to the work that is done there, much of it by volunteers, saving the legal aid fund money, doing it in an informal way and therefore doing it in an acceptable way to so many of our citizens who find it a little fearful to walk into professional offices and certainly into counsel's chambers.
The addition is made at this stage by this suggested amendment:
"In exercising its powers under subsection (1) above, the Board shall have regard to the need to maintain and develop a competent accessible independent national network of advice centres and law centres.".
Having regard to earlier discussions, noble Lords may feel that one has to be a little careful about wording—about using adjectives that are too extravagant or imposing duties to look at the need in too general terms. Therefore I shall at once tell the Committee that in the very much respected Benson Report on Legal Services these words were used:
"the need to develop a competent accessible independent national network of generalised advice agencies".

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So I rely for the generality of the words that have been used in this amendment upon a very reliable report which, when it was discussed in your Lordships' House, met with very deep respect, as indeed we have for the person, our colleague, whose name that report bears.
I do not want to refer to that alone as a source for this amendment. I look with confidence at the noble and learned Lord the Lord Chancellor who will so well remember the wording of the Government White Paper which contains the following commitment in paragraph 26:
"The Government will need to be satisfied that all areas of the country are fully provided for in all types of work".
That was the feeling of the Government when the White Paper was issued—that it was a necessity that all areas of the country were to be fully provided for in all types of work in regard to legal aid.
I should like to say at once that it is a fact that a power to make grants is conferred on the board by subsection (2)(b) of the Bill. However, the objective of this amendment is to make sure that that power is in fact used. I beg to move.
Lord Denning: I should like to support this amendment. I know of the work because I happen to be president of the Citizens' Advice Bureau of Andover. I know what they do; I know how volunteers come and give a great deal of their time during the day for nothing. I know that they also get in touch with solicitors if need be, and those solicitors also give advice in the evening. They do excellent work, and I would support it being carried out accordingly.
Baroness Faithfull: I support this amendment, and I should like to ask some questions. Looking at the number of Citizens' Advice Bureaux in the country and at the map, I understand that the whole country is not covered by Citizens' Advice Bureaux, by legal centres or by money centres which give a great service. Therefore, perhaps I may ask my noble and learned friend the Lord Chancellor whether the board will carry out a survey throughout the country.
I have just received a very interesting book from Herefordshire which looks at the services in the country areas. Many of the country areas are in just as parlous a state as are the inner cities.
That brings me to a second point. The Citizens' Advice Bureaux, the legal centres, the money centres, save the country money by first of all advising and helping people, and often it prevents them from having to go to a solicitor. There is not a network throughout the country. Therefore may I ask my noble and learned friend whether it is likely that there will be a network—or at least a survey to see how a network can be set up—to meet the needs of every part of the country, including the country areas?
We have in this country in some areas—only in some areas—an excellent conciliation service. This again saves legal aid—and I said this earlier—a great deal of money. However, I understand now that it is possible that the Government may withdraw the
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grant to the conciliation services which save legal aid. May I ask my noble and learned friend those two questions and how they are to be met?
Lord Irvine of Lairg: I too desire to support this amendment. So far as I am concerned, its signal purpose is to call attention to the fact that there is no secure basis for the funding of the advice centres and the law centres. These are the bodies on which the Government intend to build a more efficient and effective legal aid system.
As I ventured to say on Second Reading, there is at present no duty on central government to fund these bodies; there is no duty on local government to fund these bodies; and, even more surprising, there is no express authority or power given to local authorities to fund them. In fact, the bulk of the funding comes from local authorities. They rely on a general power under Section 137 of the Local Government Act. This enables them to spend a limited amount of money on matters not otherwise authorised but which are in the interests of their area or their inhabitants.
How much may be available by the Section 137 route for advice agencies is wholly dependent on the extent to which local authorities, already hard pressed, may have drawn on their limited funds under Section 137 for other purposes, but also obviously it is dependent upon what individual local authorities choose to make available to these centres within the tight confines of Section 137.
As the noble Baroness, Lady Faithfull, said, across the country there is a very fractured picture. There are overworked urban centres; there are non-existent rural centres; and geographic inequalities in advice provision are dramatic. In many urban areas, for example, long queues form outside the CABs before the doors arc open. For example, within minutes of Hackney CAB opening, a full day's work passes through the doors and then the doors have to be locked. In other areas of the country there is scarcely any provision at all. For example, in the East Midlands there is one advice worker for 23,250 inhabitants. That is a level of provision which does not allow each consumer in that area any more than one hour per decade of information and advice.
The provision of specialist law centres is even worse. Out of 47 shire counties, 22 have no law centre or housing centre, and it is estimated that 5 million people do not have any access to advice at all. The Government are putting a great deal on these agencies; so the basic question is therefore should they not ensure that they are securely funded? If they are not securely funded, they will not be able to do what they are going to be required to do. I asked that question on Second Reading and there was no answer. I ask the question again in the confident expectation that the noble and learned Lord the Lord Chancellor will, with his usual courtesy, respond to it.
May I shortly state in practical terms what I gather are the understandable apprehensions of the advice agencies. When green form work is transferred to them from private practice true they will be paid for it, but they ask: will the result be that local authorities will then be liable to fund us even less than today so that we end up in nett terms worse off? Surely that

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fear must be well grounded when they have no right to be funded by anyone or any body. Surely therefore some body should assume responsibility for a coordinated and adequately-funded national network of advice agencies. That body should obviously be the board. If this amendment is not acceptable to the Government, one would desire to ask what proposal do they have for ensuring the secure funding of these agencies?
6.45 p.m.
Lord Hailsham of Saint Marylebone: I put this point in a purely interrogative sense. The amendment refers to law centres and advice centres. They are of course not the same thing, as noble Lords opposite have clearly recognised in what they have said. Dealing with them in reverse order, I hope it will not be thought that I am hostile to law centres. On the contrary, the noble and learned Lord, Lord Elwyn-Jones, knows that I became his accomplice in the sole funding of seven. On the other hand, I personally hope that the law centre will never supplant the green form scheme where there is an adequate supply of solicitors ready to work under that scheme. I should like to know whether or not my noble and learned friend agrees with that.
Moving on to the advice centres, it appears to be common ground between certainly my noble and learned friend Lord Denning and my noble friend Lady Faithfull that this includes the Citizens' Advice Bureaux. Is it intended at all by the Government that responsibility for the Citizens' Advice Bureaux (to whose work I pay full tribute since I have always been a warm supporter of them) should be transferred to the Legal Aid Board? If so, I have missed something. It is possible that it was because I was not able to be present at the Second Reading of this Bill—much to my regret—but I should like to know definitely whether the responsibility for CABs should belong to the Lord Chancellor and, through him, the Legal Aid Board.
Thirdly, I was a little surprised to hear my noble friend Lady Faithfull refer to the conciliation services, in presumably matrimonial disputes, in the same breath as this amendment. I had thought that these would be separate from both the CABs and the law centres. I wonder whether my noble and learned friend, when he comes to reply, would clear up these points?
Baroness Faithfull: Perhaps I may say first of all from the point of view of the Citizens' Advice Bureaux being part of the board's responsibility that the Citizens' Advice Bureaux, as I understand it, do far wider work than give only legal advice to people. Therefore, they could not be exclusively the responsibility of the board. Nevertheless, having said that, they give the most enormous amount of legal advice and legal consultation and counselling to people, which saves legal aid. With regard to the conciliation service, the service is of course entirely separate from both legal centres and the CAB, but nevertheless they also give a service which saves legal aid to an enormous degree.
The Lord Chancellor: Clause 2(2) of the Bill sets out the general functions of the new Legal Aid Board. They are to secure that advice, assistance and representation are available in accordance with the Bill, and to administer the Bill when enacted. In the White Paper announcing the establishment of the board the Government made clear that they saw the board as initially taking over no more than the functions currently performed by the Law Society. In time, however, the board might take on further functions. The power to do this is set out in Clause 2(4) which we discussed in relation to the regulation-making power. All of these functions, both initial and future, relate to the operation of the legal aid scheme. I regard this as vitally important. The main source of legal advice and legal aid is and will remain the independent legal profession, and as such the priorities must be for the board to concentrate on improving the operation and administration of the legal aid scheme.
The board may of course have connection with advice and law centres. As I mentioned at Second Reading, it is proposed that responsibility for the grants to the seven law centres, to which my noble and learned friend referred, which the Lord Chancellor currently funds, will be transferred to the Legal Aid Board and any contracts entered into by the board for the provision of advice and assistance may be with advice agencies or law centres. I want to emphasise, particularly in view of what the noble Lord, Lord Irvine of Lairg, said, that there is no question of this Bill putting any responsibility to give advice on advice agencies or law centres. What it does is to empower the board with appropriate consent to make contracts with advice agencies or law centres.
If somebody is struggling to get money it is often a source of strength that the person has some additional work for which he will be paid. It is in that context that I believe that this may be a helpful matter to advice agencies or law centres. It is a different question from the core funding or the setting up of these advice agencies or law centres, but it may be helpful to them in this way.
The board will be asked to consider as an early task whether the best use is being made of the resources devoted to advice and assistance and the board will need to be satisfied that the services provided in the law centres are an effective use of resources in that context. As I said at Second Reading, it will be open to other law centres to submit proposals for contracts or grants in the general context of the board's plans for advice and assistance. However, I should leave the Committee in no doubt that it is the Government's view that central funding is not the most appropriate source of core funding for these initiatives.
As I said at Second Reading, law centres may well provide a valuable service to local communities but they are essentially a local service and are appropriately funded locally. I wish to make the point that the establishment and maintenance by the board of a network such as is proposed in the amendment is not the kind of work for which the board is to be set up, and it would distract the board

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from its central purpose—the efficient and effective administration of the legal aid scheme. That is what the board is for.
I wish to make another point which in a sense follows up what my noble and learned friend Lord Hailsham said. The over-riding purpose of the majority of the provisions in the Bill is to establish a legal aid arrangement based on solicitors and barristers. That has been the way the legal aid scheme has always operated, and for the most part it has worked well. Under the Bill the private practitioner remains the main source for the provision of public funded legal services. The Bill would indeed allow for work to be contracted out in some circumstances to advice agencies or law centres but the Government's intention is that this should only be in areas where they have particular expertise and when it would provide a better use of resources.
Perhaps I may give an illustration of the kind of difference in arrangement that I had in mind in replying to the noble and learned Lord, Lord Silkin of Dulwich. It might depend on the nature of available private practice whether in a particular area the matter was best arranged by a contract with a law centre or advice agency or left in the ordinary scheme. This amendment, however, would require the board to set up a network of advice and law centres dealing with a whole range of legal issues. It would thus give rise to the very real risk of conflict between the agencies and the private practitioner and could almost be said to be encouraging the establishment of a service in opposition to the private practitioner.
If the board were to act in the spirit of the amendment it would almost inevitably mean less and less advice and assistance being given by solicitors and more and more by advice agencies. Matrimonial work is a good example. If the board were required to establish a network of advice agencies and law centres, it would make sense to encourage people to use them even for matrimonial matters where the private profession has traditionally done much of its legal aid work. It would not be long before representation in matrimonial matters, at least in the magistrates' court, would move to advice agencies.
I appreciate that this may not be exactly palatable to all those who support the amendment but I want to emphasise that the purpose of the Bill is not to set up legal centres or advice agencies such as Citizens' Advice Bureaux. I certainly pay tribute to them but the opportunities that this Bill affords in relation to matters closely connected with legal aid may well be helpful to those centres and agencies. However, that will be incidental to the main purpose of the Bill, and as an incidental possible benefit it is to be welcomed. It would be a mistake and a complete misunderstanding to substitute for the purpose of the Bill a different purpose altogether as suggested in the amendment.
Lord Irvine of Lairg: If the noble and learned Lord is of the opinion, as he has said, that it is inappropriate for central government to provide the core funding for these agencies, does he believe that local authorities should be under a duty to provide
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that funding? Is he of the opinion that local authorities should have an express power to provide that funding, or is he indifferent to how these agencies are funded?
The Lord Chancellor: My responsibility, so far as I am seeking to discharge it at the moment, is in relation to legal aid. These agencies may well have something to contribute in the area that approximates to legal aid. If so, this Bill may be of some help to them. I certainly do not consider it part of my function in relation to this Bill to go beyond it and to deal with matters as my noble and learned friend has said and as the Committee has heard, quite outside the legal aid field—matters with which, for example, Citizens' Advice Bureaux are concerned.
Perhaps I should also say, as regards conciliation and conciliation services, that research has been commissioned into the effectiveness of conciliation procedures. Ancillary to that, the Lord Chancellor's department gave grants to certain conciliation services in order that the research might be carried out. When the fieldwork was finished at the end of December 1987, that completed the present project. The results are being evaluated and depending on the evaluation further action may be required. The effectiveness of conciliation services in relation to preventing disputes and preventing expenditure in legal aid is the matter which the research was designed to test. I hope, in due course, to be able to report the results of these researches.
7 p.m.
Lord Mishcon: The words of the noble and learned Lord the Lord Chancellor—I say this for the first time in the course of the Committee proceedings and I say it to my great regret—will be received with great sorrow throughout the country, certainly so far as those who are connected with advice centres and Citizens' Advice Bureaux are concerned. They reflect—and I am choosing my words advisedly—a lack of appreciation of what happens on the ground. What happens on the ground is that the citizen goes to the Citizens' Advice Bureau or the legal advice centre. This is done almost every single day throughout the country, and in all appropriate cases there is complete liaison with local solicitors; they work in close co-operation. One without the other would impose upon the legal aid fund an absolutely insuperable financial burden. The advice centres and the Citizens' Advice Bureaux are looking to Parliament at this moment to see that the White Paper words that I used and quoted are not wasted or meaningless words.
Perhaps I may remind the noble and learned Lord that in successive legal aid reports the Law Society has expressed concern about inadequate and insecure funding of both advice agencies and law centres. In the categories that I was talking about earlier I should have mentioned law centres as being a very important part of all this. I shall quote, if I may, very shortly the 30th annual report which reads:
"The Law Society has supported secure central government funding for law centres for a number of years and remains of the view that this is the only way to avoid the waste of resources and the disruption caused by annual funding uncertainties."

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What is happening is this and it is pathetic. If you ask the Minister responsible for local government, he will with the greatest courtesy tell you that if you are talking about law centres and legal advice bureaux, it really is not a matter for him as the local government Minister. You then go to the noble and learned Lord, the Lord Chancellor. We have been to the noble and learned Lord's predecessors; we have asked Questions in this House and have been told "No, this is a matter for local government." in between this complete and utterly vicious and rather cruel circle, the advice centres of this country, the law centres of this country and the Citizens' Advice Bureaux of this country are suffering. It is our duty, in my humble submission, to see that this amendment tonight is passed. I hope that it can be accepted and passed by this Committee without a Division. But if a Division is necessary a Division will take place.
7.3 p.m.
On Question, Whether the said amendment (No. 10) shall be agreed to?
Their Lordships divided: Contents, 55; Not-Contents, 91.

Division No. 1

CONTENTS

Airedale, L.

Irving of Dartford, L.

Amherst, E.

Jay, L.

Ardwick. L.

Jeger, B.

Attlee, E.

Kennet, L.

Bonham-Carter. L.

Kilbracken, L.

Briginshaw, L.

Kilmarnock, L.

Broadbridge. L.

McNair, L.

Bruce of Donington, L.

Manchester, D.

Carter, L.

Mayhew, L.

Cledwyn of Penrhos, L.

Meston, L. [Teller.]

Cocks of Hartcliffe, L.

Mishcon, L.

Craigavon, V.

Oram, L.

Dean of Beswick, L.

Phillips, B.

Denning. L.

Pitt of Hampstead, L.

Dormand of Easington, L.

Ponsonby of Shulbrede, L.[Teller.]

Elwyn-Jones, L.

Faithfull, B.

Prys-Davies, L.

Fitt, L.

Saltoun of Abernethy, Ly.

Foot, L.

Serota, B.

Gallacher, L.

Silkin of Dulwich, L.

Galpern, L.

Stewart of Fulham, L.

Graham of Edmonton, L.

Stoddart of Swindon, L.

Grey, E.

Tordoff, L.

Halsbury, E.

Turner of Camden, B.

Hayter, L.

Underhill, L.

Henderson of Brompton, L.

Williams of Elvel, L.

Houghton of Sowerby, L.

Winchilsea and Nottingham, E.

Hylton-Foster, B.

Irvine of Lairg, L.

NOT-CONTENTS

Alexander of Tunis, E.

Boyd-Carpenter, L.

Ampthill, L.

Brabazon of Tara, L.

Arran, E.

Brougham and Vaux, L.

Ashbourne, L.

Broxbourne, L.

Auckland, L.

Caithness, E.

Barber, L.

Cameron of Lochbroom, L

Beaverbrook, L.

Carlisle of Bucklow, L.

Beloff, L.

Carnegy of Lour, B.

Belstead, L.

Carnock, L.

Benson, L.

Coleraine, L.

Blake, L.

Colwyn, L.

Blatch, B.

Cork and Orrery, E.

Boardman, L.

Cottesloe, L.

Borthwick, L.

Craigmyle, L.

1398

Crickhowell, L.

Napier and Ettrick, L.

Dacre of Glanton, L.

Nelson, E.

Davidson, V. [Teller.]

Newall, L.

Denham, L. [Teller.]

Nugent of Guildford, L.

Dilhorne, V.

Orkney, E.

Dundee, E.

Pender, L.

Elibank, L.

Penrhyn, L.

Elliot of Harwood, B.

Rankeillour, L.

Ferrers, E.

Reay, L.

Ferrier, L.

Rees, L.

Glenarthur, L.

Renton, L.

Gridley, L.

Romney, E.

Hailsham of Saint Marylebone, L.

Russell of Liverpool, L.

Sanderson of Bowden, L.

Hesketh, L.

Seebohm, L.

Hives, L.

Shannon, E.

Hooper, B.

Skelmersdale, L.

Jenkin of Roding, L.

Stockton, E.

Johnston of Rockport, L.

Strange, B.

Lane-Fox, B.

Strathcarron, L.

Lauderdale, E.

Strathclyde, L.

Lindsey and Abingdon, E.

Strathcona and Mount Royal, L.

Long, V.

Mackay of Clashfern, L.

Swinfen, L.

Malmesbury, E.

Thomas of Gwydir, L.

Margadale, L.

Thorneycroft, L.

Marley, L.

Trafford, L.

Merrivale, L.

Trumpington, B.

Mersey, V.

Vaux of Harrowden, L.

Monk Bretton, L.

Wyatt of Weeford, L.

Mottistone, L.

Wynford, L.

Mountevans, L.

Young, B.

Munster, E.

Resolved in the negative, and amendment disagreed to accordingly.
The Earl of Arran: Perhaps I may suggest that now would be a convenient time to break for dinner. I suggest that we do not return to the Committee stage before 8.15 p.m. I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

Arms Control and Disarmament (Privileges and Immunities) Bill
7.12 p.m.
Lord Glenarthur: My Lords, I beg to move that the Arms Control and Disarmament (Privileges and Immunities) Bill be now read a second time. As your Lordships will be aware, this Bill was thoroughly debated in another place last year and carefully scrutinised in Committee. I do not think this is the occasion for a general debate on the whole range of isms control and disarmament issues, to which your Lordships have rightly devoted considerable time in recent months, perhaps most notably in the excellent debate introduced by the noble Lord, Lord Cledwyn, on 9th December. I therefore intended to concentrate) on the Bill itself: to set out its purpose and to explain some of its provisions.
The main objective of the Bill is to give effect to the outcome of the Stockholm conference on confidence and security building measures and disarmament in Europe. This concluded on 22nd September 1986 with agreement on a substantial package of measures elating to the notification, observation and inspection of military activities in Europe. In

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addition to the military provisions of the document, the Stockholm accord also calls on participating states to confer privileges and immunities, as laid down by the Vienna convention on diplomatic relations, both to inspectors carrying out on-site verification and to observers invited to military activities notified under the terms of the accord.
This Bill is therefore designed to confer upon both observers and inspectors, as well as on their auxiliary staff, those privileges and immunities which are set out in detail in the Diplomatic Privileges Act 1964. This means that both inspectors and observers will be equated with diplomatic agents while in the United Kingdom. As a result, they will enjoy inviolability of the person as well as immunity from criminal jurisdiction and, with some exceptions, from civil and administrative jurisdiction as well.
Auxiliary personnel will be equated with administrative and technical staff assigned to embassies in the United Kingdom. They will enjoy the same privileges, except that their immunity from civil and administrative jurisdiction will be confined to acts performed during the course of their duties.
The Bill also provides for privileges and immunities to be conferred by Order in Council, subject to the affirmative resolution procedure, to give effect to any international agreement or arrangement superseding the Stockholm document, or making provision for furthering arms control or disarmament. The purpose of extending the Bill in this manner is to avoid as far as possible the need for primary legislation each time there is a new arms agreement involving the granting of privileges and immunities, for example, to those involved in its verification.
The INF Treaty is an example of this. It is the Government's intention, once this Bill becomes law, to introduce an Order in Council to cover the INF inspection arrangements in the UK. But such extensions will be done under the affirmative resolution procedure, which will give your Lordships the opportunity to debate the order when the time comes. The only privileges and immunities which the Bill confers directly are those stemming from the Stockholm document.
I should like to make clear that no changes are made in this Bill to the privileges and immunities set out in the Diplomatic Privileges Act 1964. The present Bill merely extends the category of people who are entitled to them. Nor in practice will the proposed extension to Stockholm observers and inspectors greatly increase the number of people entitled to full diplomatic privileges and immunities in the United Kingdom. Many such observers and inspectors are likely to be diplomats or military attaches already accredited here.
Those coming from abroad will only be granted privileges and immunities for the duration of their stay in the United Kingdom. In practice, this is likely to be about two or three days in each case. Nor will such observations or inspections be particularly frequent. The maximum number of inspections any country must accept under the Stockholm accord is three per year; and we are unlikely to invite observers
1400
to military exercises in the UK more than once every two or three years. Moreover, while we are obliged under the terms of the accord to invite representatives of all 35 signatory states, in practice many of the smaller states do not send observers.
I am pleased to report that the provisions of the Stockholm accord have worked extremely well during its first year of operation. Five inspections have been carried out, including one by the United Kingdom on the GDR in September; and United Kingdom representatives have observed 15 exercises in the course of this first year, eight in the Warsaw Pact and seven in NATO countries. At exercise "Purple Warrior" in Scotland last November, we ourselves played host for the first time to observers from Stockholm signatory states, including from all the Warsaw Pact except Romania. The observation programme passed off smoothly. It attracted compliments from both Eastern and Western observers alike, both for the efficiency with which it was organised and for the commitment to openness and transparency in military matters that it demonstrated.
The building of trust between states is an essential concomitant of successful arms control. The Stockholm accord, although not a treaty with legal force, nonetheless involves a political commitment by its 35 signatories to increasing predictability about military activities in Europe, in order to reduce mistrust and the risk of miscalculation in times of tension. It represents a significant advance on the more modest voluntary measures in the Helsinki Final Act 1975; and is the first of its kind to provide for verification through on-site "challenge" inspection within the area of application. Together with our partners in the Alliance, the Government are determined to build upon and expand the results of the Stockholm conference. To that end, at the CSCE review meeting in Vienna last July, Western countries tabled a proposal for further negotiations on confidence building. We hope that these will begin in the course of this year.
I hope that the House will demonstrate its support for the laudable aims of the Stockholm document by giving this Bill the Second Reading I believe it rightly deserves. I beg to move.
Moved, That the Bill be now read a second time.—(Lord Glenarthur.)
7.19 p.m.
Lord Cledwyn of Penrhos: My Lords, we are grateful to the noble Lord, Lord Glenarthur, for his opening speech and for his explanations of the Bill. It is a small Bill with big implications and we welcome it because it opens the door to greater possibilities than seem apparent at first glance.
The Bill is related to the negotiations which led to the INF treaty which was signed in Washington on 8th December. It goes to the heart of the most difficult obstacle in the way of agreement; namely, verification. Most of us were relieved and glad that: his long-standing obstacle had been overcome by the countries concerned. It would be foolish this evening to say that all the problems have thus been resolved, and no doubt there will be many pitfalls on the road

1401
ahead; but the principle of verification has been accepted by both sides. The Bill is part of the practical process of achieving that.
The noble Lord has reminded us of the history of the Bill and of the fact that it goes back to the Stockholm Conference of September 1986 and the agreement made then providing for on-site verification and the observation of military activities. As the noble Lord said, it was agreed in Stockholm that those who came to observe and to inspect and any necessary staff should enjoy the same immunities and privileges as diplomats under the terms of the Vienna Conference and the Diplomatic Privileges Act 1964.
When the Bill received its Second Reading in another place on 22nd October last, the INF treaty had not then been signed; but the Bill made provision for the future in Clause 1(2). The noble Lord has already referred to the Orders in Council which will be needed to cover future eventualities and he has described the procedures. Over the years we have been concerned in this House, as noble Lords I am sure will agree, with privileges and immunities and their abuse by some embassies. The Bill therefore has some implications for what has been discussed in this House over the years.
The impression which the noble Lord has given is that those who come to visit the installations and who come to attend the military exercises will not be numerous. Perhaps he would be good enough to tell the House once again how many people in respect of inspection and visitation of exercises will be coming to this country in all from the Soviet Union over the next 10 years. As the noble Lord said, we had a comprehensive debate on the INF treaty here on 9th December. This Bill was referred to on that occasion by several noble Lords who spoke. Therefore I do not propose to cover that ground again tonight but to concern myself rather more with the provisions of the Bill, especially as we are somewhat limited with time.
We should recognise that territorially we are a relatively small part of the area which will be subjected to verification procedures. The task of inspection in the huge land areas of the Soviet Union and the United States is formidable but that again is a matter for the governments concerned. I must express the hope and the expectation that the necessary procedures will be carried out successfully and with goodwill in those two very large countries.
The INF treaty has raised our expectations that there will now be serious progress towards a START treaty. If such a treaty is signed—that is now said to be the objective of both President Reagan and Mr.Gorbachev—then the administration of the verification process will become even more complex than it is at the present time under this Bill following the INF treaty. We shall need to consider our own involvement as a country, and this may well be significant, in the light of events.
However verification in this country under the INF treaty will necessarily be a less complex affair. We have only two bases which are declared sites; and, as I understand the position, inspection will be restricted to these so that in our discussion of the Bill at this moment as things stand now under the treaty
1402
we are only concerned with inspectors from the Soviet Union visiting those two installations of Molesworth and Greenham Common. I should be grateful if the noble Lord would confirm that I am right in that definition.
But the Bill is an enabling Bill and if a START treaty is signed the area of inspection in Britain will presumably be extended. It would be interesting to know by how much. I know that any such extension will need the approval of Parliament by way of the Orders in Council to which the noble Lord has already referred; but it would help if we can be told the extreme boundaries to which privileges and immunities could be extended in those circumstances.
May I also assume that inspectors will be accompanied by appropriate personnel from this country and that presumably their travel facilities will he clearly defined? What we are contemplating at this point under the INF treaty is an arrangement for the inspection of two sites; an arrangement which will come to an end when all the missiles have been removed. We are dealing with a temporary situation and perhaps the Minister will tell us what term is intended. What will be the so-called "draw down" period?
The treaty itself is of course very relevant to this Bill; but I must confess that my heart sank when I learnt that it is a document comprising 31 pages of treaty and a 100 page appendix described as a "Memorandum of Understanding". I understand that the treaty documents published by the United States will be deposited in the Libraries of both Houses of Parliament and I shall be grateful if the noble Lord will confirm that. In my reading of the debates which took place in another place that point was not absolutely clear as the Library of the other place was specifically mentioned there.
I move on to another point arising from the words in subsection (2) of the Bill which are as follows:
"or otherwise making provision for furthering arms control or disarmament".
This is the enabling provision which looks forward to further developments, and this could include not only START but an agreement on chemical weapons too. The Government deserve praise for their initiatives on this front. We hope that further progress will be made; but we should be clear that the implications of verification here are very different from those that we have been discussing. The production, experimentation and storage of chemical weapons pose a different problem, and it may be that the Order in Council procedure will not be adequate to cover it. I make that point in passing; but I do not wish to stray too far from the technicalities of what is in essence a technical Bill.
I am sure that the Minister will confirm that as regards privileges and immunities there is nothing new in the Bill which affirms the position set out in the Diplomatic Privileges Act 1964. By this small Bill an obstacle to progress has been removed. There is a long way to go and no one with any sense will expect miracles; but we can be thankful that we are supporting a significant step in the right direction.
7.30 p.m.
Lord Kennet: My Lords, the Bill has been introduced with exemplary clarity by the Minister. From these Benches, we welcome it for what it does. The next set of inspectors who will have to receive diplomatic immunity will be those for the INF treaty and the subsidiary agreements, as the Minister has said. It was for that reason that the House of Commons gave four Committee days to consideration of the Bill. I do not propose that we should follow suit. However, I intend to speak fully on the Bill tonight in the hope of getting some government comments and explanations of the treaty structure which, I hope to show, are needed. They could not have been sought before because when the Bill was considered for four days in the House of Commons, the package of agreements had not been published. So this is the first time that either House has had the opportunity of discussing the package.
The inspectors will verify the destruction or departure and subsequent non-reappearance of certain classes of nuclear missiles and launchers based both here and in Western Europe. All those weapons are of a range to strike Western Europe from Eastern Europe and vice versa, but not to strike the United States from Eastern Europe and vice versa. Thus, if the removal and destruction of the weapons increases security—and most people believe that it will—the security which will be increased is the security of Europe, including Russia. The security of the United States will not be increased directly.
The two sides in Europe will therefore need the confidence which can only come from verification that what has been agreed is being done. The treaty provides for Soviet inspectors to verify the destruction of missiles which are stationed in Western Europe, which is necessary. However, it does not provide for Western European inspectors to verify the destruction of those which are deployed in Eastern Europe, which is equally necessary. Instead, it provides for United States inspectors to do that. But it is not the United States which expects an increase in its direct security from the treaty. The United States is already invulnerable to those missiles. They cannot get there.
Moreover, the treaty expressly looks forward to a START agreement. We are vulnerable to Soviet strategic missiles in exactly the same degree as the United States. While we have a greater interest than the United States in the good verification of an INF treaty, we shall have no more than an equal interest with the United States in the good verification of a START treaty. If we in Europe get no verification of our own, even when US vulnerability is not at stake, how much can we expect to get when it is at stake, as it will be with a START Treaty for 50 per cent. strategic reductions?
There is a whole structure of interlocking agreements. Perhaps the House does not realise they are all in the public domain. I have been able to study all of them. First, we have the INF agreement itself and its two protocols, respectively on elimination and inspection. That is a bilateral treaty between the United States and the Soviet Union.
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Next, we have a series of basing country agreements which the United States has signed with Italy, Germany, Belgium, the Netherlands and ourselves which regulate various matters bilaterally with each of those countries. It has an annexe on privileges and immunities.
Next, there is the exchange of notes between this country and the Soviet Union regulating—insufficiently, I shall argue—certain matters between us and them. Lastly, there are the deployment state agreements, as they are called, between the Soviet Union and East Germany and Czechoslovakia.
First, I have some general questions about the status of the documents that concern us. Will any of them be registered as treaties of the United Nations? What about ratification by those countries whose parliamentary system, unlike ours, requires that stage before a treaty can come into force? Which countries will have to ratify and which will not? Lastly, are all the basing country agreements the same as ours?
Next, I have some general questions about the intended effects of the agreements. There is one real shock in the text which makes one sit up and think "What on earth is going on here?" That occurs at Protocol I, paragraph II. 7 of the main agreement. I have given the Minister prior notice of that and all the other points I shall raise. Therefore, I shall spare the House the references from now on. That paragraph speaks of re-entry vehicles which have been released by unilateral decision from existing programmes of co-operation. What programmes of co-operation?
Lord Glenarthur: My Lords, I hesitate to interrupt the noble Lord. I understand his interest in discussing the wider question of the INF agreement and perhaps others and how the provisions will affect the United Kingdom. However, I wonder whether that is perhaps stretching our rules of procedure under Standing Order No. 26(v). It may take us beyond the narrow confines of the Bill before us. Perhaps I did not make it plain enough to your Lordships that in any case we shall have the opportunity for a more wide-ranging debate when the Government take advantage of the provisions in the Bill to extend it to the INF inspection agreements and any others which may follow in due course. I hope the noble Lord will accept the spirit in which I say that.
Lord Kennet: My Lords, of course I accept the spirit. However, in point of fact there will be no more justification to go wide when the orders are laid than there is on the occasion when the Bill is being considered which will entitle the Government to make the orders. Indeed, it would be possible to argue that there will be less justification to go wide later.
Perhaps I may point out that the House of Commons spent no less than four days in Committee on the Bill. They discussed the entire disarmament field—present, past and future. They discussed not only the INF treaty, which I am discussing, but chemical, conventional and mutual and balanced force reductions. If the Minister is content to hear me out, I shall not be very long and we shall be finished

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by 8.15. Then I shall undertake that, so far as I am concerned, we shall not have another go at the Bill in Committee stage. The Minister nods, and I am most grateful to him.
I mentioned the re-entry vehicles which have been released by unilateral decision from existing programmes of existing co-operation. Those appear to be exempt from the treaty between the Americans and the Russians. My question is: what vehicles, what programmes of co-operation, what release and what sort of unilateral action? What is going on here? It is obscure from the text of the treaty.
Next, there is to be some destruction of missiles actually in the United Kingdom. If there is an accident, either on the spot or an environmental accident—there will be a lot of burning of pretty hairy military equipment—whose courts will be responsible for dealing with compensation claims? That is a question to consider now and not later, as has been suggested. Worldwide, under START the destruction of weaponry is going to be even greater. It may even be that there is a possibility of a nuclear winter situation arising out of disarmament.
The INF agreement itself contains the usual provisions for its own termination, before the 13 years are up, by notice delivered and so on. However, neither the Basing Country Agreements nor the exchange of letters contain such provisions. It is curious that the Deployment State Agreements among the Warsaw Pact countries do have those provisions. On our side, is it right for us to assume that if either signatory terminates the main agreement under its own provisions, no acts will thereafter be done under the agreement and there will therefore be no question of either the basing country agreement or the exchange of notes remaining in force? I imagine that that is so; can the Government confirm that?
Here is a small puzzle which I hope that the Government will be able to say is due to haste in their own drafting and nothing worse. In the exchange of letters with the Soviet Union, the Government wholeheartedly support the INF agreement and its protocol on inspections. They do not, apparently, support the other protocol on the eliminations themselves. Why is this? One would have hoped they would support both.
I turn now to what I call the edges of the agreement, including the vexed question of circumvention by building up weapons systems not covered in the agreement in order to obtain supposed compensation for some loss. I hope that the Government have no intention of going along with any of this; they might be asked to do so.
The preamble of the INF agreement relates the whole package to Article 6 of the Non-Proliferation Treaty, which reminds the superpowers of their duty to get on with nuclear disarmament in general. It would not be disarmament if the INF reductions were compensated for by more air-launched or sea-launched missiles, whether ballistic or cruise, or bombers. Therefore, I imagine that compensation is expressly precluded by that agreement. It is all the more important that it should be because the nuclear warheads themselves are not going to be destroyed
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and would thus be available, with ill will, for other systems. We must remember that the agreement is not for nuclear disarmament; it is for the abolition of means of delivery only.
Throughout the treaty package, the procedures are Soviet-American procedures and this country has a quite insufficient role. The United States presents us with a sealed envelope containing Soviet-American procedures which we are required to accept without opening. These procedures are objectionable because many of them insulate the British Government, Parliament and press from knowledge of what is going on. We stay in the dark and our confidence in verification remains dependent on American confidence, or on the American wish that we should be confident.
It is surprising that in some respects the Soviet deployment states, that is, East Germany and Czechoslovakia, get a better deal under their agreements with the Soviet Union than we do under ours with the US. A few of the procedures on our side constitute downright infractions of British sovereignty. I shall mention them later.
Under the agreements the superpowers are to notify one another of intended launchings of missiles for research purposes. We are not notified, but it is our security which is at stake. Again and again, the superpowers notify one another of things and do not notify us. This example can stand for many cases.
Besides the inspectors, who will be Soviet officials, there are to be two teams of Americans touring the country with them. They will have some diplomatic immunity, though apparently on a lesser scale; they are the in-country diplomatic escort, and the air crew diplomatic escort. You get the picture? The Americans are escorting the Russians on their mission, just as the Russians will be escorting the Americans in the Soviet Union. There is no objection to that. But what do we do? Do we escort everybody, as it is our country and as one would expect, and as I think we would like to do simply out of courtesy, because we approve of the treaty, even if our highest national security interests were not involved? Well, no; or not much. Probably not! The in-country escort "may" include British people; the agreement does not say "shall". It will be up to the Americans.
Again it is provided that when a party of Soviet inspectors are flying around Britain looking at different places—they may indeed fly from Greenham to Molesworth and back—the American air crew "may" include a British person. That should be "shall". Although the "inspected country"—a reference to the Americans—must clear the members of its in-country escort with the "inspecting country"—that is the Russians—it does not need to do so with the basing country, the UK. This means that the Americans must submit their names for the approval of the Russians but they do not have to submit them to us.
The gear that the Soviet inspectors bring into this country is to be inspected by the Americans but not by us. If any of it is found to be unconnected with the purpose of the visit, that is to say, designed for a bit of espionage on the side, it is to be impounded by the

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Americans on our soil, indeed on our RAF bases, under a dual key arrangement with the Russians. We are to know nothing about it.
It is curious that under Warsaw Pact deployment State agreements the Russians, the Czechs and the East Germans inspect incoming American equipment together. If the Germans or Czechs do not like it, the Russians are bound to ensure its removal. The Americans are not bound to do any such thing for us. On our side the presence or absence of RAF people at the inspections which are to take place at RAF bases is on the basis of "may" and not "shall". In other words the Americans decide; we have no rights. There is altogether too much "may" and not enough "shall" in these parts of the text.
Since we do not, by right, see much of what goes on during an inspection, how are we to learn about it? The Government will no doubt say, as they always do when it is a matter of Anglo-American consultations, that our friendship is not to be enquired into because it is ipso facto full, friendly, constructive and loving. But what do the agreements say? The basing country agreement says that after an inspection has taken place—after it has taken place—we may request "a briefing", and if we do it will be provided. I ask the House and the Government to consider: how does this wretched wording to cover the removal of the weapons consort with the wonderful rapport that was supposed to make a dual release key unnecessary while these things were operational? And how does the American undertaking to "advise" us that "the inspection has been completed" compare with the Soviet undertaking to "inform" the East Germans and the Czechs "about the conclusion of the inspection?"
I turn to the infringements of sovereignty. The first concerns West Germany but sets a precedent for us later. In the INF agreement, a bilateral treaty between the Soviet Union and the US, the US undertakes to destroy the Pershing IAs. Though the warheads of these missiles are American property, the missiles themselves are German property. Of course the German Government have agreed, but the undertaking should have been given by Germany and not the United States. If that is what happens to undoubted German property under this treaty, what is likely to happen, under an advanced START, to the Trident missiles which, in view of their recycling through a common US-UK servicing pool, cannot be called undoubted British property? At any rate they would certainly be less clearly British than the Pershing Is are German. We should think about it.
In the INF agreement itself the US undertakes to ensure that basing countries admit the inspectors' equipment and supplies duty free. Here we come to a direct infringement of British sovereignty. It is quite unacceptable that the Government should have permitted the United States to purport to promise the Russians that the British Customs will do this or that. Again, in the main INF Treaty, the United States has given the Soviet Union the right to waive the diplomatic immunity which will be conferred upon their people under this Bill when the Soviet Union is of the opinion that an immunity would impede the
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course of justice and that it would not prejudice the implementation of the agreement. I am not sure that that is a good right for the inspectors to have; or rather I am not sure that the limitation placed upon it is a good limitation for them to be entitled to enjoy. But what I am sure of is that neither the right nor any limitation on it are the Americans' to give. They are ours to give, and their purported giving by another country infringes our sovereignty. The Government must take responsibility for that.
To sum up my judgment of the treaties, the Bill is necessary and useful. The treaties are good enough for their main purpose: that is, ridding Europe of these weapons. But they are severely defective because they are bilateral through and through, reflecting a purely bipolar world which is on the way out, and because they infringe our sovereignty. The deployment of these weapons in Europe was decided by NATO in 1979—an Alliance decision. The role of NATO as a whole in the verification of their removal is nil; and the role of each European NATO country is virtually nil. This is deplorable. Both in itself, and as a precedent for the even more important agreements that we hope will follow it, and which are bound to be influenced by it, the present treaty structure ought to be improved.
The removal of Soviet INF weaponry ought to be made subject to NATO verification. This would require the revision of the INF agreement; and, fortunately, the agreement provides fully for its own revision. Because this country is the only nuclear power among the basing countries, and because it is also the only depository power of the Non-Proliferation Treaty to which this agreement is linked by its preamble, it is our Government which ought to set the ball rolling. They ought to propose a NATO system of verification of the INF agreement so that we can know directly that the Russians are keeping their part of the bargain; and so that we can know directly what the Russians know about how the Americans are keeping their part of the bargain.
As a very first step—though I do not think that the major objective of full NATO verification should wait upon this—there should be a continuing committee of basing countries, perhaps in NATO, perhaps in the WEU, in which they can share their experience and align their policies.
These disarmament arrangements are not secret treaties and we shall not allow them to become so. We shall debate them fully. It is the hope of mankind for its entire future that is at stake. Let us have frank and ungrudging debate both now and later. If any mistakes have been made, let us have considered discussion of them and of how to put them right. I allege that mistakes have been made, and I have suggested how they could be put right.
7.53 p.m.
Lord Mayhew: My Lords, I was following the noble Lord, Lord Kennet, with considerable sympathy until he reached the proposition that NATO should undertake the verification of the INF

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treaty. I would agree with him in principle that it would be good to have more European involvement in the matter. He argued this very well. The real fear among those who are passionately concerned to see the INF treaty work is that it might not be ratified by the United States Senate and Congress. If a treaty, drafted as it now is, is at risk in the United States Congress—which provided not merely for NATO inspection but for Warsaw Pact inspection of United States weapons—I think that that would severely limit the possibilities of success in Washington.
I wish to follow the Minister and the noble Lord, Lord Cledwyn, in addressing myself modestly to the provisions of the Bill. I should hope to return to the very important and interesting questions raised by the noble Lord, Lord Kennet, when we have the affirmative order and perhaps at Committee stage. We are all welcoming this remarkable stride forward in agreement on verification—so much so, that I forbear to spell out its significance.
I wish to make three points modifying our rapture at this moment. First, it is so much easier to verify a treaty which provides for the elimination of a total class of weapons. It is so much easier to verify that this Chamber is empty—if it is—than if it contains no more nor less than 100 Peers. In the case of the INF Treaty we are asked to verify the position of no weapons of this class at all. On strategic weapons, conventional forces, or chemical weapons (to which the noble Lord, Lord Cledwyn, referred) we are there dealing with verifying a certain level—neither more nor less. The problems, both political and technological, are vastly greater. I am afraid this is one of the restraints that we must feel as we go into the negotiations on strategic arms. Here the problem of verification will be infinitely more difficult than the one we have successfully overcome in connection with intermediate weapons.
Secondly— the Minister made this clear—the verification provisions will apply only to those sites declared by the superpowers to contain their intermediate nuclear weapons. It will not apply to any other area of any other country. Here it will apply in Greenham, Molesworth, and nowhere else. Therefore it is technically possible to hide up a secret cache of intermediate nuclear weapons which can neither be seen from the air by satellite nor visited on the ground by inspectors. I am afraid that this is true and it will form a considerable part of the discussions in the United States Senate on the question of ratification. I can see opponents of the treaty arguing that it is too easy for the Russians to hide away these intermediate weapons. I hope that it will also be borne in mind that although one can hide from the satellites, and from the inspectors, a precise cache of intermediate nuclear weapons, the moment one starts manning them, supplying them, maintaining them or even having personnel attached to them, that cannot be concealed from the extraordinary technology of inspection which the two superpowers have. I do not therefore think that this provides an operational capacity to either side even if they were prepared to cheat.
My third reservation was touched upon by the noble Lords, Lord Kennet and Lord Cledwyn. This
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verification procedure does not provide for the possibility of substitution. This is very important. Almost as soon as the ink was dry on the INF Treaty, and the two superpower leaders had given their blessing to it, the British Government announced a project—I am not now discussing its merit—for co-operation with the French Government on airborne cruise missiles carried on Tornadoes. One gets rid of the ground-based intermediate nuclear weapons and everyone cheers. One has verification, and the Russians come here and note that they have gone. Then in the next breath one puts exactly the same type of weapon on to an aircraft. What is the net gain? What has happened?
I am not encouraged by the remarks of the Minister of State at the Foreign Office, Mr. Mellor, in Standing Committee D of the House of Commons. He said:
"No decisions have been taken on any consequential changes that might be needed in the deployment of Alliance systems"—
consequent on the abolition of the intermediate nuclear weapons.
"It must be clarified that neither air-launched nor sea-launched cruise missiles are part of the treaty… We shall honour to the letter any agreement reached within the INF framework and subsequently, we hope, the START framework, but no more than the rest of our Allies shall we be prepared to bind our hands in relation to other activities outside the treaty".
That is a rather long and diplomatic Foreign Office way of saying that we shall have other weapons of a type similar to the land-based cruise missiles. That is a limitation on the effect of this on the verification we are talking about.
I put these three negative points, though not because my noble friends and I are not enthusiastic supporters of the Bill. We regard it as a splendid promise of future agreements in disarmament and future verification agreements of a more complicated but effective kind.
8 p.m.
Lord Glenarthur: My Lords, I am grateful to all noble Lords who have taken part in the debate. I am glad that we all agree that this short Bill, by facilitating the provisions of the Stockholm accord, is in itself a small contribution to the breaking down of barriers of mistrust and suspicion. The Stockholm accord, as I have said, also provides a vehicle for furthering the aims of other agreements in the arms control and military security field.
The present Bill, as I explained earlier, avoids the need for primary legislation each time that there is a new international arms agreement involving the granting of privileges and immunities. The noble Lord, Lord Cledwyn, rightly drew our attention to the case of a chemical weapons convention. I am grateful to the noble Lord for his kind remarks about the efforts which the Government are making in this direction. Such a convention could contain provisions allowing for international inspection on United Kingdom territory.
It is not clear whether the privileges and immunities of chemical weapons convention inspectors would be more appropriate for primary legislation or for the present Bill. Because no draft of

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any such convention has yet emerged, it would be wrong to foreclose any options at this stage. I hope that by my saying that the noble Lord, Lord Cledwyn, will appreciate I take on board the point he made that we have to see what any convention states.
I very much agree with the noble Lord, Lord Mayhew, that START, chemical warfare conventions and other matters can throw up greater complications. I take that point on board, as I do also his remark that missiles outside designated sites would be hard to keep operational without very visible support facilities.
At present we envisage the extension of the Bill only to the INF agreement signed last month, in so far as it affects inspections taking place on United Kingdom territory. To that end, it is the Government's intention to avail themselves of Clause 1. This provides for the Bill's application to other arms control agreements. I am unable to tell your Lordships precisely when this will be, as much will depend on the timing of the Bill in its remaining stages. But our intention is to do so at the earliest opportunity.
The noble Lord, Lord Cledwyn, asked me a number of questions: first, how many inspectors will be involved, and how many observers? As I have said, no country is obliged to accept more than three inspections per year. The inspection team can consist of up to four, plus auxiliary staff, and can last anything up to 48 hours. There have been five inspections to date this year, though none in the United Kingdom.
Concerning observers and observable military exercises in the United Kingdom, it is unlikely that we shall be inviting observers more than once every two or three years. I described earlier the exercise Purple Warrior towards the end of last year. Each of the 34 other signatory states can, in theory, send up to two observers to each exercise, but on the basis of experience so far, including Purple Warrior, the smaller countries tend not to send observers, while for some of those that nominate diplomats already accredited in the country concerned the observation period, as was the case with Purple Warrior, is unlikely to exceed two or three days.
The noble Lord, Lord Cledwyn, was quite right when he said that only Royal Air Force Greenham Common and Royal Air Force Molesworth are involved so far as concerns verification arrangements on INF in this country. All missiles on those sites will be eliminated within three years and it is likely that those at Molesworth will be eliminated first.
The noble Lord asked about certain practical arrangements to do with escorting. British officials, along with American officials, will meet the aircraft carrying the Soviet inspection team and will form part of the permanent escort of Soviet inspectors during the period of inspection. Neither the inspectors nor the aircrew will be allowed access beyond the two bases, where they will be accompanied by British and American escorts at all times.
The noble Lord, Lord Cledwyn, asked about the extreme boundaries to which privileges and
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immunities could be extended This really refers to START and what may stem from that. The verification arrangements are still under discussion and it is not quite clear how it will apply to the United Kingdom. As for accompanying personnel—another of his points—as I have said, they will be accompanied at all times by United Kingdom personnel. As for the drawdown period, to use the technical term, elimination will be within 18 months for shorter-range INF and three years for longer-range INF. There are other aspects to do with the timing and duration of the inspections that would fit within those parameters, but I hope that that has given the noble Lord the answer he sought.
As for the matter of treaties being deposited in the Libraries of both Houses of Parliament, I shall certainly ensure that if they are not in the Library of your Lordships' House now they will be placed there straight away. I am grateful to the noble Lord for raising that point.
The noble Lord, Lord Kennet, raised a number of detailed points. I have listened carefully to all of them. I fear that much of what he said and many of the queries he raised go much wider than the Bill. I should certainly like to study carefully what he said and if necessary write to him. Some of his points are pertinent and relevant to the narrower subject of our debate today and I shall certainly try to answer some of those.
Lord Kennet: My Lords, I am most grateful to the noble Lord for offering to write to me. I shall read his letter with interest and care. But is there really any point in informing the Government in advance of the points one intends to raise? I let the noble Lord know in a very full letter more than a week ago all the points I intended to raise today. My questions are in Hansard. For proper parliamentary debate I submit that the Government's answers should also be in Hansard, if not now—I think they should appear now, because that is why one writes in advance—then perhaps on another occasion, and if so, what? Or are the Government of the opinion that silence in response to questions of which prior notice has been given before a debate is quite a good thing?
Lord Glenarthur: My Lords, as I said earlier, the noble Lord, Lord Kennet, was straying very wide of the Bill before your Lordships. I am grateful to the noble Lord for giving me notice of his questions. The fact that he did so merely reinforced in my mind the fact that his points were wide of the Bill. If the noble Lord wishes it, and I think that he does, I can now deal shortly with the subjects he raised that are relevant to the Bill.
Lord Kennet: My Lords, in response to the point about wideness, the House of Commons took four days in Committee, which was eight or 10 hours, to discuss the treaty structure before the treaty had been published. Today is the first occasion on which either House of Parliament has been able to discuss that treaty structure. If the noble Lord rebukes me for taking 25 minutes to do so, is he sure that he wishes

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to take upon his shoulders the burden of rebuking the House of Commons for taking eight hours before they knew what they were talking about?
Lord Glenarthur: My Lords, I am in no sense rebuking anyone. I was trying to stick to the rules within the procedure of this House. However, I can give a short answer to many of the points although not within the time-frame that we have allowed for this debate. There is a sound procedure whereby any letters written to noble Lords on any subject are placed in the Library, and I hope that that will satisfy the noble Lord. It is all very well to talk about another place but your Lordships' House has its own procedures and we must bear that in mind.
The noble Lord asked some relevant questions and I am grateful to him for giving me notice of them. First, he referred to the inspection of inspection equipment and of dual key inspection. As clearly stated in Article V(4), the full in-country escort—and we shall always have an escort—will examine such equipment. In the case of inspection to the United Kingdom, the in-country escort will always include British personnel. As regards diplomatic air crew escort accreditation, I do not think that there is the kind of inconsistency that the noble Lord appears to believe there is. The inspection protocol covers inspections in both the United States and basing country territory. The basing countries' agreement covers inspection only in basing countries and in this case it cannot refer to the United States in the way in which the noble Lord feels it should.
Lord Kennet: My Lords, there is a misunderstanding. I am sorry that the noble Lord feels that we are overrunning our time. I should like to state that I urged him most strongly to arrange for a slightly longer time for this dinner time debate. Unfortunately, he did not see his way to take up that possibility. I have since been told that if we overrun a little it will not matter; if we overrun a great deal it will be possible to continue this Second Reading debate at a later time. I received that message from the Government Whip's office, so let us relax about the matter. I hope that the noble Lord will forgive my interruption.
My point was not that the basing country agreement ought to apply to the United States—of course not. The requirement that the Americans should clear the membership of their diplomatic escort with the Soviet Union is one thing. It would have been better if they had been bound to clear it with us too, as it is our country which is being inspected in the cases with which I am concerned.
Lord Glenarthur: My Lords, I still do not believe that there is the inconsistency which the noble Lord seems to think exists. The inspection protocol covers inspections in both the United States and the basing country territory. The basing country agreement can cover inspections in basing countries only. Without studying the noble Lord's remarks in great detail, I honestly do not believe that there is the inconsistency to which he draws attention. The noble Lord indicates that he thinks there is an inconsistency but I beg to differ. I shall of course study his remarks to see whether we can reach an accord.
Lord Kennet: My Lords, if the noble Lord will be patient, I did not use the word "inconsistency" and I have not alleged any inconsistency. I have said that the obligation on the United States to clear the membership of a certain team with the Soviet Union should be matched by an obligation to clear the membership of that same team with us on the occasions when the team is accompanying a Soviet inspection team in this country. There is no inconsistency in what is printed; it is simply a mistake. That is the point that I am making.
Lord Glenarthur: My Lords, in his letter the noble Lord stated that there was a discrepancy, so perhaps I should have used that word and not the word "inconsistency".
The noble Lord implied that Protocol 253 stated that the United States shall ensure basing countries admit equipment and supplies duty free. He went on to indicate that he considered it to be unacceptable that the United States should enter into an agreement with the Soviet Union to ensure that the British Government do anything. I do not think that that is correct. That form of words is acceptable language based on the commitment given by the United Kingdom in the basing countries' agreement, Article IV(5).
As regards the waiving of privileges and immunities and the noble Lord's concern about the annexe to the BCA, the annexe on privileges and immunities contains the regime applying to US and Soviet inspectors. These privileges have been agreed by the basing countries as applying during inspections in their territory. Article IV(4) of the BCA refers to that and it is appropriate to annexe them to the BCA.
Turning to the question of the waiving of Customs duties and the fact that the noble Lord's eyes should be on the exchange of notes, I believe that on this point the noble Lord may be on the wrong track. The waiving of Customs duties is agreed between the US and the Soviet Union for each other's territory, by the US through basing countries and the BCA for Soviet entry to basing country territory. I shall of course study the other remarks made by the noble Lord which go wider than the Bill.
As the noble Lord, Lord Cledwyn, said, both the Stockholm accord and the signing of the INF agreement last year indicate that we now have a real prospect of resuming business between East and West in a way which brings mutual benefit. Indeed, the noble Lord, Lord Mayhew, made a similar comment. We must build on the achievements that have been registered so far, leading to a reduction in what we can surely all agree, whatever our other disagreements, are the enormously over-swollen arsenals of conventional, chemical and nuclear weapons. We now have the opportunity to open a new chapter in confidence-building between East and West in the hope of creating a climate of trust which makes war inconceivable. We have not, alas, reached that point. But allowing representatives of each Alliance to visit the other with the protection of diplomatic privilege is one small step towards that

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goal. This is what this modest but important Bill seeks to achieve. Once again, I commend it to your Lordships. I beg to move.
On Question, Bill read a second time, and committed to a Committee of the Whole House.

Legal Aid Bill [H.L.]
8.20 p.m.
House again in Committee on Clause 3.
Lord Silkin of Dulwich Lord Silkin of Dulwich moved Amendment No. 11:
Page 4, line 7, after ("undertake") insert ("or commission").
The noble and learned Lord said: The purpose of this amendment is in part to draw attention to the importance of the board carrying out extensive inquiries and investigations of a kind which in fact is contemplated by subsection (2)(f), but in particular to make quite certain that it can do that not only by making those inquiries itself but also by commissioning research from academic and other bodies. Indeed, it is to be hoped that it will regard that as a very important part of a continuous research function to assist it in dealing with its powers and in making a periodical assessment of the needs for different forms of legal aid which will certainly not remain static in different parts of the country.
I dare to hope, despite what the noble and learned Lord the Lord Chancellor said in reply to the previous amendment, that among the matters it will investigate in depth is the gaps in legal services and the way in which those gaps are being filled, in particular by law centres and other advice bodies, irrespective of whether this Bill contains a provision for the function of those bodies to be within the ambit of the board. Indeed, it is hard to see how a full picture can possibly be assessed by the board or by the noble and learned Lord the Lord Chancellor unless it is aware not only of the gaps that exist but also of the problems which exist concerning the various bodies such as law centres which try to fill those gaps.
Unless those and similar matters affecting the general picture of legal aid provision are part of the main function of the board, the board will be handicapped in carrying out its job. I have no doubt that it is the intention that the board should be able to commission investigations of the kind I have mentioned, in particular for academic bodies but also others, and no doubt to pay for those under its powers contained in Clause 3. However, in case there be any doubt about that from the wording of the subsection, which refers only to "undertaking" and not also to "commissioning", we think it preferable to write that into the legislation so that the importance of it cannot be underestimated.
In Clause 3(4) the draftsman has adopted that cautious principle of being certain in distinguishing between the powers to provide advice and the powers to secure the provision of advice. In moving this amendment, I am following, or seeking to follow, his excellent lead in that respect. I beg to move.
The Lord Chancellor: I entirely accept the point that the noble and learned Lord makes. My impression, which is perhaps the same as his, is that this is probably comprehended in the Bill already. However, as he has made the point perhaps he will allow me to check that for certain and I will come back on Report. It is certainly our intention that the board should have power not only to undertake but also to commission somebody else to undertake inquiries or investigations.
Lord Silkin of Dulwich: I am grateful to the noble and learned Lord for that reply, and in the light of it I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Mishcon Lord Mishcon moved Amendment No. 12:
Page 4, line 22, at end insert—
("and such directions shall include conditions as to the availability to the public. and quality of, advice, assistance or representation and as to the means for monitoring such availability and quality.").
The noble Lord said: As much as anything else, this is a probing amendment in order to ascertain what standards the noble and learned Lord the Lord Chancellor thinks should be set down in view of the provision in the Bill as it exists at the moment. Subsection (4) states:
"The powers to provide advice, assistance or representation under this Part and to secure its provision under this Part by means of contracts with, or grants or loans to, other persons or bodies—

(a) shall not he exercisable unless the Lord Chancellor so directs and then only to the extent specified in the direction: and

(b) if exercisable, shall be exercised in accordance with any directions given by him".

There is no hint in the Bill as to what the matters are that the Lord Chancellor would of necessity have in mind before contracting out certain services under the Bill. It merely says that the board itself would not be able to exercise the powers without the directions of the Lord Chancellor.
Therefore it was thought necessary to table this amendment so that there is protection in the sense that such directions shall include conditions as to the availability to the public and the quality of advice, assistance or representation, and as to the means for monitoring such availability and quality. The purpose of the amendment is to see that to a great extent, if not completely, the choice of representation, availability and quality is there. The noble and learned Lord may well think that this is a helpful addition to the Bill. However, if I may say so, I am particularly interested in what the noble and learned Lord has in mind himself as to the kinds of matters that should limit the board's powers to deal with this contracting-out provision, which many of us feel is a very dangerous matter. I beg to move.
The Lord Chancellor: I am sorry that the noble Lord should feel that a contracting-out option is dangerous. I hope that it may prove an extremely useful and cost-effective option. However, I recognise the concern that he has expressed that the service provided by those contracting with the board to provide advice and assistance should be a good service of a proper quality.

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I believe that this can be achieved by setting proper conditions for the award of contracts. As the noble Lord and the Committee realise, the Bill at present provides that if the powers are exercisable they should be exercised in accordance with any directions the Lord Chancellor may give. Therefore it is open to the Lord Chancellor, in agreeing to the exercise of this option, to lay down conditions which must be adhered to if the power is to be lawfully exercised. I certainly intend, as I am sure that anyone discharging the responsibility that I have would wish, that the conditions and directions should be appropriate. The requirement that this amendment proposes also applies to some law centres, the responsibility for which is to be transferred to the board as they will be funded to the extent provided under its grant-making powers. This will mean that, if it is done in accordance with this amendment, there will be a tighter control over the activities of those centres than they have enjoyed in the past, because the noble Lord's amendment applies to grants and loans as well as to the other contracts.
I understand the point that the noble Lord has made. I am not convinced that it would be necessary to set this as an obligation in respect of all grants and loans as well as contracts. I should be glad to consider further what he has said and to see whether anything further is required to be added to the provisions of the Bill. It was our intention that the Bill should give power to cover this aspect of the matter. I should be happy to consider that further in the light of what he has said if he feels able to withdraw the amendment at the present stage.
8.30 p.m.
Lord Mishcon: I am most grateful to the noble and learned Lord and readily agree to what he has suggested. I hope I am not over-burdening the noble and learned Lord's department; but it would be of considerable assistance if one had an intimation before Report stage that the amendment as it stands is acceptable, or of any suggested amendment. If it is acceptable then it could be tabled at Report stage so that this point is covered. Subject to those remarks, I readily accept what the noble and learned Lord has said, and I regard it as very helpful. I ask leave to withdraw the amendment.
The Lord Chancellor: I shall try to write to the noble Lord if we manage to overtake all the matters which we have to consider in the time available to do so.
Amendment, by leave, withdrawn.
[Amendment No. 13 not moved.]
Lord Meston Lord Meston moved Amendment No. 14:
Page 4, line 31, at end insert—
("(8) Subject to the approval of the Lord Chancellor, the Board shall establish regional legal services committees which shall be constituted under regulations and which will be given the task of promoting and developing a more efficient and effective use of existing legal resources on a regional basis.").
The noble Lord said: Amendment No. 14 is concerned with the regional distribution of legal services. The hoard itself is inevitably limited in
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numbers and may well be thought to be over-centralised even if it is able to disperse its administrative functions throughout the country.
The amendment is not merely concerned with administrative functions; it is concerned to provide by committees a positive mechanism to deal with any geographical imbalances in the provision of legal services. As the noble and learned Lord, Lord Elwyn-Jones, said earlier this afternoon, the provision of legal services throughout the country is patchy in some areas. It is characterised by overworked urban solicitors and urban law centres and sometimes by sparse rural services trying to meet the reasonable needs of people in an increasingly sophisticated legal framework. The irony is that it is the lower income groups that often encounter the most complex pieces of legislation in regard to the law of social security, housing, consumer credit, immigration and so on.
All those problems mostly arise in areas where there tend to be fewer lawyers because they find there is less for them to do in privately paid work, and less incentive to practise in such areas. By this amendment the Lord Chancellor would be empowered to set up regional committees to assess and to meet local needs.
There exists already the North-West Legal Services Committee which I understand has had the support of the Lord Chancellor's department. That in itself indicates that it has been regarded as a useful and successful committee. This amendment derives its inspiration from the South Wales Legal Services Steering Committee on whose behalf the noble Lord, Lord Parry, spoke with great effect on Second Reading.
The purpose of the amendment is to provide something which I hope is useful to co-ordinate and improve legal services, particularly in deprived areas. I hope it will be seen as a useful adjunct to the powers of the board. It is only an enabling provision but it will put on a statutory basis that which the Lord Chancellor has already done at least in the North-Western area. I beg to move.
Lord Renton: Would the noble Lord agree that what he is proposing here in mandatory terms is very similar to the power given in permissive terms under subsection (1) when read with subsection (4) of Clause 3?
Lord Meston: I am sorry, but would the noble Lord repeat the subsections to which he was referring?
Lord Renton: Subsection (1) and subsection (4) of Clause 3 would enable to be done that which he is making mandatory in his amendment.
Lord Meston: I hope that I am not making anything mandatory. It is subject to the approval of the Lord Chancellor and it is therefore intended that committees should not have to be set up in every area but only in those of which the Lord Chancellor approves as suitable for such committees. They certainly will provide positive assistance to the hoard in such areas.
Lord Irvine of Lairg: I support the amendment. As I read the amendment put down by the noble Lord, Lord Meston, the purpose is to put a duty on the board to establish these regional legal services committees, but subject to the approval of the Lord Chancellor. It does not appear to me that there is any duplication with the provisions of Clause 3 to which the noble Lord, Lord Renton, has referred because these are permissive only so far as the board is concerned.As regards the amendment itself, it starts with the proposition to be found in the Bill in Clause 3(1) that "advice, assistance and representation" may be provided in different ways in different parts of the country. That was a provision which the noble and learned Lord the Lord Chancellor was invited to explain further in the context of the probing amendment tabled by my noble and learned friend Lord Silkin—Amendment No. 9. Having heard the Lord Chancellor's explanation, I feel that this provision makes good sense.
There are differing local needs for particular kinds of advice. I have felt constrained to say on more than one occasion that the provision of advice agencies is haphazard across the country not only in number but in the expertise available. Therefore, it seems to make good sense to allow the board to provide advice, assistance and representation in different ways in different parts of the country according to need.
The noble and learned Lord the Lord Chancellor gave reasons for resisting Amendment No. 2 which would have required him to have had regard to certain principles. The noble and learned Lord was resistant to that for the reasons that he gave. In appointing members to the board one of the principles in that amendment is representation from different parts of the country. The Lord Chancellor observed that he would not wish people to travel to London from the remotest parts of England to sit on a board which would be essentially a London-based board. There is a good deal of sense in that.
Surely the board cannot function in the manner intended under the Bill unless regional committees are established with local knowledge. Today and earlier in our debates the noble Lord, Lord Renton, drew attention to the geographical division of the country into legal aid authorities. Surely that could be utilised for the regional committee structure proposed by the amendment. The point of the amendment is this: how can a London-based board, to which people from the remoter parts of the country cannot reasonably be expected to travel or to serve on, determine the advice needs of communities, say, in Truro or Bootle? Regional committees would furnish the board with practical advice and information about local needs and the efficiency of its delivery on the ground. For those reasons I support this amendment.
The Lord Chancellor: I know well the work pioneered by what is now the North-West Legal Services Committee, a venture which the noble and learned Lord, Lord Elwyn-Jones, was instrumental in establishing. I also know of representations I have received for the funding of a committee in South Wales.
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The North-West Legal Services Committee receives funding through the legal aid administration of the Law Society. Pressure for funding other committees by central government was resisted by my noble and learned friend Lord Hailsham when he was Lord Chancellor on the grounds that these were essentially local initiatives and that their development must rest with those in the locality who are directly involved in the provision of legal services.
In my view, the amendment which is now proposed in unnecessary. I do not oppose it on the basis of any antipathy towards the concept of local or regional committees. My reason is that the amendment is unnecessary. The board can fund regional committees or any other type of local committee appropriate to the locality under the general power in Clause 3(2)(b). That power is quite sufficient. Of course, these grants or loans would need my approval and I should need to be convinced that to set up such committees in the particular area was the right course to take.
The board would need to look at this position in the light of all the circumstances as they appear to the board. I certainly think that, as the noble Lord, Lord Irving of Lairg, has pointed out, this clause as drafted is not a completely discretionary clause on the board. It places a duty on the board, with the consent or approval of the Lord Chancellor. That is a slightly hybrid type of obligation. If the Lord Chancellor were to approve, the duty would arise. That seems slightly unusual. However, I make no particular point about that. Rather, I am saying that we already have a very flexible power to do all that is required in this provision. Whether or not that power should be used in this way would be a matter for consideration.
I should like to refer to another point arising out of the speech of the noble Lord, Lord Irvine of Lairg. He mentioned my earlier comment about people travelling from remote parts of the country to London. I would not wish to create an inevitable obligation for that to happen. It is conceivable that a person may travel from a remote part of the country to London every week for a multitude of purposes, one of which might be the Legal Aid Board. He might be doing other work as well.
I myself travel quite often from an area which may be regarded as even more remote than any part of England and Wales. I was just illustrating one possible difficulty in placing too inflexible obligations on the Lord Chancellor in the selection of members of the hoard. But I would not wish it to be taken that nobody could be appointed to the board in London from some distant part of England or Wales. The board might be all the better for such appointments, and any consequences that might arise might be well taken.
I hope that in the light of these explanations the noble Lord, Lord Meston, will feel able to accept that his concern, in so far as he wishes the board to have the necessary power, is intended to be covered by the provisions of the Bill, and that he may feel that in these circumstances the amendment might be withdrawn.
Lord Meston: I am grateful to the noble Lord, Lord Irvine of Lairg, for his support. This amendment was intended to provide a precise and useful requirement—albeit in a hybrid form, as the noble and learned Lord the Lord Chancellor has put it—to the benefit of both the board and the public, on the basis that local committees know what is best required in their individual areas. I am reassured by the indication of the noble and learned Lord the Lord Chancellor that the power under Clause 3(2)(b) can be used to provide grounds for committees if that seems appropriate.
I should have hoped for something more precise, but for present purposes I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 3 agreed to.
8.45 p.m.
Lord Mishcon Lord Mishcon moved Amendment No. 15:
After Clause 3, insert the following new clause:
("Advice and representations by solicitors in magistrates courts.
.—(1) The Board shall make a scheme providing—

(a) for the making, by committees set up under the scheme, of arrangements whereby advice and representation to which this section applies is provided by solicitors in attendance at magistrates' courts; and

(b) for the making, by such committees, of arrangements whereby advice and assistance is provided for persons—

(i) such as are mentioned in section 29 of the Police and Criminal Evidence Act 1984; or

(ii) arrested and held in custody who—

(a) exercise the right to consult a solicitor conferred on them by section 58(1) of the Police and Criminal Evidence Act 1984; or

(b) are permitted to consult a representative of a solicitor.

(2) A scheme under subsection (1) above which relates to advice and representation at magistrates' courts may provide that arrangements made under it may be so framed as to preclude solicitors from providing such advice and representation if they do not also provide advice and assistance in pursuance of arrangements made by virtue of a scheme under that section which relates to the provision of advice and assistance for persons such as are mentioned in section 29 of the Police and Criminal Evidence Act 1984 and for persons arrested and held in custody.
(3) A scheme under subsection (1) above applies to such advice and representation in connection with criminal proceedings before magistrates' courts as may be specified by the scheme, being advice and representation for persons, or any class of persons, in respect of whom no legal aid order is for the time being in force in relation to the proceedings in question and to whom advice and assistance in respect of those proceedings is not being given under section 1 of the Principal Act.").
The noble Lord said: When the Police and Criminal Evidence Bill came before Parliament many of us were concerned about some of the powers that were given under that Bill. We were consoled by the knowledge that there was going to be an effective 24-hour scheme for solicitors to be available at police stations and magistrates' courts. This amendment places a duty on the board to continue that very useful scheme. It may be of interest to the Committee to know that that scheme is helping annually approximately 200,000 suspects at police stations.
Having said that, I am even more delighted to report to the Committee that the cost is approximately £16.6 million, when in fact in July 1985 £20 million was the estimate that the then noble and learned Lord the Lord Chancellor said would be available for the scheme.
The purpose of this amendment is to ensure that reference is expressed to the schemes in the Bill, which will emphasise their importance, although I readily concede that arguably the board has power to establish these schemes under Clause 3(1) of the Bill as drafted. I make that point immediately because if I did not the noble Lord, Lord Renton, would immediately rise and tell me that that was so, and he would be correct.
The Lord Chancellor: I should make it absolutely clear at the outset that it is the Government's clear intention that duty solicitor arrangements. both for magistrates' courts and police stations, should continue to operate. The administration of them will be transferred to the board, which may well have its own views on how they should best be organised and run, so I cannot guarantee that the precise details of the present arrangements will stand for all time. What I can, however, say is that this amendment is quite unnecessary to continue the duty solicitor arrangements.
Under the existing legislation, as many noble Lords will know, many of the functions carried out by the Law Society in the legal aid area are based on formal schemes made by the Law Society subject to the Lord Chancellor's approval and that of the Treasury, though not of Parliament. It is a kind of delegated power to make schemes delegated to the Law Society with these two approvals.
The Bill does away with that rather inflexible and rigid framework for schemes. It is one of the points that I had in mind in relation to the wording of the first amendment. We are trying to get away from the idea of these rigid schemes because it is possible to get the same result by more flexible arrangements. So the Bill does away with that inflexibility of requiring schemes, and I should be reluctant to reintroduce that inflexibility unless it were absolutely necessary and shown to be so.
In future the management of the duty solicitor arrangements will be for the board, but regulations will clearly specify that there have to be duty solicitor arrangements for both magistrates' courts and police stations. The Bill as at present drafted enables duty solicitors to be provided under Part III or Part II. Initially at least I would expect them to be provided under the advice and assistance provisions of Part III because that is the more natural place for it to be found. But, at a later stage, the board may well wish to consider making arrangements under the contracting-out powers of Part II. It might well be a suitable type of arrangement for a duty solicitor to have a contracting-out type of provision; a contract with particular people or with a particular centre, say, to provide the necessary services.
This amendment in its present form would deny the flexibility inherent in the proposals made in the Bill. To summarise, the position is that I entirely accept the spirit of the amendment in seeking a continuation of the duty solicitor scheme but not in the form of "scheme" in the very technical sense of the previous legislation. I believe that our present proposals enable these arrangements to continue, to be modified possibly in the light of experience and to be improved either under Part III, the natural place

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for them, or possibly Part II, as matters develop. I hope that in the light of that explanation the noble Lord will feel able to withdraw the amendment.
Lord Mishcon: I am much obliged to the noble and learned Lord for much of what he has said. I should like to have the opportunity of consulting and to study what the noble and learned Lord has said. At this stage I would ask leave to withdraw the amendment.
The Lord Chancellor: Before the noble Lord withdraws his amendment, may I take this chance to say what I should have said on other occasions. If, as a result of such consultations, a point arises that I have not covered, if the noble Lord felt able to draw my attention to it before we come to Report stage, it might save time at that stage, just as he has asked me, if possible, to give him my results.
Lord Mishcon: The noble and learned Lord is always so courteous to others that I should like to reciprocate that courtesy, and I shall certainly do so.
Amendment, by leave, withdrawn.
Clause 4 [Duties of the Board]:
Lord Irvine of Lairg Lord Irvine of Lairg moved Amendment No. 16:
Page 4, line 38, at end insert—
("( ) The Board shall, from time to time, furnish to the Legal Aid Advisory Committee such information as it may require relating to the discharge or proposed discharge of the Board's functions.")
The noble Lord said: The noble and learned Lord the Lord Chancellor made it reasonably plain on Second Reading on 15th December that after a transitional period he might well exercise his power to dissolve the Legal Aid Advisory Committee. The result would be that only the new Legal Aid Board would remain. In that debate the noble and learned Lord, at col. 650, insisted that he desired to retain the benefit of independent comment on the operation of the legal aid system. In particular the noble and learned Lord said:
"The Legal Aid Advisory Committee has given valuable advice. It will continue to do so during the transitional period, but the Legal Aid Board is charged with giving advice. If we can obtain people of the same quality on the Legal Aid Board, it may be unnecessary duplication to have the Legal Aid Advisory Committee and the Legal Aid Board giving advice. None of those advisory bodies is completely without the need of a little money to keep it going".
As a fellow Scot I see the force of that. The noble and learned Lord continued:
"On the whole, one would prefer not to have unnecessary wheels on the coach. Therefore, power has been taken in the Bill to dispense with the services of the Legal Aid Advisory Committee after a time, if that should seem right".
It is reasonable to infer that the card of the Legal Aid Advisory Committee has been marked.
While moving this amendment I would invite the noble and learned Lord to consider how consistent this is with his acceptance of the need for him to continue to have the benefit of independent comment—I emphasise the word "independent"—on how the scheme is working. The question is: is it
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realistic that the Legal Aid Board could ever provide independent comment on the discharge by it of its own functions?
The point is that when the Law Society runs legal aid, the Legal Aid Advisory Committee keeps the Law Society's administration of the scheme under critical scrutiny. Now the new Legal Aid Board is going to run the scheme. Therefore, the simple point which is the background to the amendment is that the Legal Aid Board cannot be a watchdog, in the public interest, over itself. If the Legal Aid Advisory Committee goes, then the Legal Aid Board will be exercising the functions formerly exercised both by the Law Society and the Legal Aid Advisory Committee. There will therefore be no independent body able to give the independent comment which the noble and learned Lord the Lord Chancellor has assured this House he desires to retain.
Let me emphasise this point by practical example. Time and again, the Legal Aid Advisory Committee has expressed itself in trenchant and critical terms that the scheme is not being administered effectively in the public interest. In its 34th report published in January 1985, the committee expressed its serious concern about gross regional variations in the grant of legal aid, particularly the "striking variations" in allowing the green form £50 limit to be exceeded.
In its report for the next year, 1984–85, the advisory committee had strong things to say about delays in the issue of civil legal aid certificates. It called for the Law Society to establish performance objectives. In its most recent report for 1985–86 the committee was outspoken about delays and accumulating backlogs in the system, while at the same time noting the adverse effect on the administration of the scheme of cash limits and manpower ceilings.
What I would call attention to is this: can it seriously be argued that the Legal Aid Board is going to say this sort of thing about its own administration of the scheme? Independent criticism of administrators comes only from a body independent of the administrators. This amendment is predicated on the advisory committee continuing permanently in being because of the independent watchdog function in the public interest which only it can exercise. The amendment would give it a power to require the new board to give the advisory committee such information about how the board is administering the scheme as the committee requires so as to allow it—the advisory committee—to exercise its watchdog function effectively.
A later amendment, Amendment No. 57 on the Marshalled List, will seek to remove the power to dissolve the committee given to the Lord Chancellor by Clause 33(5), and will further require the Lord Chancellor to refer the Legal Aid Board's annual report to the advisory committee for its consideration and comment on what is contained in that report along with any other comments that the Legal Aid Advisory Committee may choose to make on the whole operation of the scheme.
Meanwhile, this amendment will give the committee a power to require the board from time to time to furnish information to the committee to assist

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it to fulfil its function of monitoring the operation of the scheme in the public interest. I commend the amendment to the Committee. I beg to move.
Lord Ackner: I should like to support the amendment which I should have thought might have been welcomed by the noble and learned Lord the Lord Chancellor in order to test whether the Legal Aid Advisory Committee has anything of value to offer. This would precisely achieve that because the noble and learned Lord the Lord Chancellor would then be able to see whether, as a result of the board from time to time furnishing the committee with information, there is a useful feedback from that committee which would justify its existence. I do not want to arm the noble and learned Lord the Lord Chancellor with a reply to a later amendment which I have down and to which my noble friend Lord Irvine has referred. However, I should have thought that it would fortify his resistance to be able to say, "I want to keep the power to abolish the committee in the light of the utility or absence of utility which it demonstrates, having regard to this amendment which obliges the committee to act with the information which it receives". For those reasons I should have thought that this is a sensible amendment.
9 p.m.
The Lord Chancellor: The Legal Aid Advisory Committee has been operating for some time, and from the reaction to its reports, which the noble Lord, Lord Irvine of Lairg, and others have expressed, it has been operating satisfactorily to them at least, and I think also to others. It has no power to require the Law Society to furnish such information as it may require. It is perfectly able to operate successfully without such a power. If the Legal Aid Advisory Committee seeks any information from the Law Society it would in the normal course of events without any such power ask for it. If for any reason the information was not forthcoming, it should be possible for the Lord Chancellor to obtain that information if necessary. At the present moment it does not appear to me to be right to give the Legal Aid Advisory Committee a formal power of this kind when it has not proved necessary in relation to the Law Society. The Legal Aid Advisory Committee has functioned perfectly well without such a power.
As to whether the Legal Aid Advisory Committee should be continued indefinitely, perhaps I should keep what I have to say about that until the amendment arises in which that question is to be debated. The noble Lord, Lord Irvine of Lairg, tempts me to answer but I think it is perhaps more appropriate that I should wait to hear the full arguments that my noble and learned friend Lord Ackner and others supporting the amendments will advance. I had better have the whole case against me before I give my reply. That is a wise precaution for people to take in other circumstances and perhaps I should retain that right myself.
At the moment my answer to the amendment before us is that no such power exists at present, the Legal Aid Advisory Committee functions perfectly satisfactorily, there is no reason to think that any
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such power is necessary for the future, and there is no question that if information were required powers exist to enable it to be provided.
Lord Irvine of Lairg: I am heartened by the support for the amendment that has been offered by the noble and learned Lord, Lord Ackner, and I see great additional force in the reason that he gave for his support. I have heard the noble and learned Lord the Lord Chancellor say that the power which it is suggested the advisory committee should have in relation to the board is not one which it presently has in relation to the Law Society. If I were generally to accede to that form of reasoning, it would follow that nothing new should ever be done for the first time.?
We attach great importance to the permanent retention of the advisory committee. We shall consider the noble and learned Lord's response to Amendment No. 57 when it is moved. He declines to anticipate his position in relation to it and we shall consider that response along with the limited response that he has made in relation to this amendment. Meanwhile, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Silkin of Dulwich Lord Silkin of Dulwich moved Amendment No. 17:
Page 5, line 2, after ("cases") insert ("or categories of cases").
The noble and learned Lord said: Clause 4 of the Bill sets out the duties of the board. Subsection (5) provides that:
"The Board shall have regard, in discharging its functions, to such guidance as may from time to time be given by the Lord Chancellor".
Subsection (6) qualifies subsection (5) by providing that:
"Guidance under subsection (5) … shall not relate to the consideration or disposal, in particular cases, of—
(a) applications for advice, assistance or representation",
or subsequent matters arising where those are available.
The question which is not wholly clear is whether that is intended simply to prevent the Lord Chancellor from giving guidance on individual cases or whether it goes wider than that to classes of case which go beyond the single individual case. On the face of it, it would not seem sensible that he should not have the power greater than the power to deal in this way with cases of various classes or a number of cases of the same kind. The provisions of subsection (6) should therefore be restricted to guidance in individual cases so that only in those cases should the Lord Chancellor be prevented from giving his guidance. I shall be glad to know what the noble and learned Lord the Lord Chancellor has in mind in relation to this subsection. I beg to move.
The Lord Chancellor: The idea of this particular provision is to exclude interference by the Lord Chancellor in a grant or refusal in an individual case. That is the primary thing that is attacked here. The noble and learned Lord's amendment would insert the phrase "or categories of cases". It seems to me at the moment that it might be perfectly appropriate for the Lord Chancellor to give directions in relation to categories of cases, so long as that did not involve guidance in relation to particular cases.

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For example, it would be quite wrong for him to say, "Please refuse all applications that come from a certain person or relate to a certain thing". On the other hand, it would seem perfectly reasonable that the Lord Chancellor should say to the board that in matrimonial matters involving children those applications must be given priority. That sort of guidance would seem perfectly feasible. So to exclude guidance in relation to categories of case might well exclude the possibility of guidance that would be perfectly reasonable, and indeed necessary, for the Lord Chancellor to take in the public interest in seeing that the arrangements that the Legal Aid Board made fitted the public interest.
There may be room for some more subtle provision which tries to distinguish between acceptable guidance in categories of case, and non-acceptable guidance in categories of case that the noble and learned Lord's amendment raises. But at the moment I feel that the amendment that he has proposed strikes against guidance that it might be perfectly appropriate to give. Perhaps we both ought to think a bit further about this point.
Lord Silkin of Dulwich: I am grateful to the noble and learned Lord the Lord Chancellor who seems to have understood the problem here a bit more clearly than I expressed it. I agree with him that any form of words will not be easy to formulate to encompass what we both have in mind. Perhaps if we can both think about it we may be able to come up with something. Meanwhile I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Mishcon Lord Mishcon moved Amendment No. 18:
Page 5, line 11 at end insert—
("(8) The Board shall consult the Law Society with respect to any proposals or exercise of powers by the Board which, in the opinion of the Board, may have a significant effect on solicitors and shall consult the General Council of the Bar with respect to any proposals or exercise of powers by the Board which, in the opinion of the Board, may have a significant effect on counsel.").
The noble Lord said: At first sight, and I admit it at once, the Committee may feel that this is not a very wise amendment. The Committee may say "Really, do you have to insert in a Bill that the board must consult the Law Society where matters of significance affecting the solicitors' profession are concerned, and must consult with the General Council of the Bar in regard to proposals or powers which the board think might have a significant effect on counsel?" I accept the rebuke which has not yet been uttered and will now try to explain why the rebuke is not deserved.
As the Bill is presently drafted, the Legal Aid Board has only to consult the Lord Chancellor, and the Lord Chancellor has no duty of consultation, save of course the duty to consult with the Treasury, except in relation to the appointment of solicitor members of the board and to remuneration. While that be so, can one from experience say that it all works out very well when no duty to consult in this manner is set out in a Bill?
I have to tell the Committee what has happened in Scotland. Grave concern has been expressed by the
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legal profession that they have not been sufficiently involved in the reform of the scheme following the Legal Aid (Scotland) Act 1986 and the establishment of the Scottish Legal Aid Board. I am told, and told reliably, that the result has been hasty changes leading to unforeseen consequences. There is a gentleman called Rob Mackenzie of the Law Society of Scotland, who spoke in October 1987 at the National Legal Aid Conference in Liverpool. He said that one of the startling features of the Scottish Act was the speed with which changes were brought in. I give your Lordships some facts.
Between September of that year and 1st April 1987, when the new Scottish Legal Aid Board and the statutory provisions became operative, a complete and revamped framework of secondary legislation required to be drafted and was put out for consultation and comment. I am reliably informed that in some cases a matter of only two or three weeks was allowed for that consultation. What was the result? It was inevitable. Less than six months after the commencement of the new regime the society and the board had a formidable list of proposals for change. There was a Scottish Office news release on 15th December 1987 which announced that a number of the proposals had been conceded.
I shall quote the Secretary of State for Scotland, the right honourable Malcolm Rifkind, QC, MP, who confessed in the following terms:
"It is clear that the new arrangements require some adjustments to ensure that our objectives for legal aid are being fully achieved … Given the magnitude of the changes introduced in April, it is hardly surprising that there are some areas where improvements are possible. I am grateful to all those who made representations".
The Secretary of State might have said—one is obviously grateful for the appreciation that he expressed—that there might have been no need for the changes if proper consultation had taken place.
I am well aware that the board, as chosen, will consist of people of worth who will realise the need to consult about the matters referred to in the amendment and to do so with both branches of the profession. That will be true of the first board, and I hope it will always be true of its successors. What is the harm if one inserts the provision in this Bill based on the unfortunate experience in Scotland? I utter these words with some fear, bearing in mind that while half of the noble and learned Lord's heart is in this country the other half is in the very country that I have mentioned. I feel that the amendment should be incorporated in the Bill for the reasons that I have tried to give. I beg to move.
9.15 p.m.
Lord Renton: If the Bar and the solicitors were to be represented on the board, presumably it would not be necessary to have consultation of the kind which is envisaged in the amendment by the noble Lord, Lord Mishcon. Nor would it be necessary to have it if the effect on solicitors or barristers respectively were to be favourable to them. Therefore when the amendment refers to "a significant effect" on them, one wonders whether those are the right words.
In any event, I must say that this endless writing into statutes of a duty to consult when consultation would be part of the normal process of

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administration seems to me to be something that goes too far and is a habit which we should not develop.
The Lord Chancellor: It is fairly apparent these days that good administration, whether by the Lord Chancellor, by the Legal Aid Board or anyone else, requires consultation with those who are affected, and does not need, as my noble friend Lord Renton said, to he constantly written into statutes. The noble Lord. Lord Mishcon, explained what took place in Scotland. All I can say is that one result of the speed with which matters happened in Scotland was that statutory improvements to the Scottish Act, which were seen to he necessary in the light of experience, are set out in Schedule 4 to the Bill. Had it not been done speedily, that opportunity would have been lost and who knows when another opportunity might have arisen.
However, I am not here to defend or comment upon what happened in Scotland except as it may contain some lessons for us. The position as I see it is that consultation about the effects on people of any change, proposal or exercise of power by the board would be proper action for the board to take. I take some exception to the concentration in this amendment on consultation with the Law Society and with the General Council of the Bar.
To the ordinary lay person, represented for example by those to whom my noble friend Lady Faithfull referred, it might give the impression that the Legal Aid Board and the whole of the Legal Aid Bill was for the benefit of solicitors, the Law Society and the General Council of the Bar whereas in fact of course the primary purpose is to provide a service for people of low, small or moderate means. Any change might well affect them so they also should be consulted.
The Committee may think the amendment gives an undue prominence to the interests of the Law Society and the General Council of the Bar. I also take the point that my noble friend Lord Renton made that they are to have the advantage, we hope, of having membership of the board. However, I do not go quite so far as my noble friend. The mere fact that there are people on the board who are members of the Law Society or perhaps members of the Bar or even members of the General Council of the Bar would not I think make it right for the board to proceed on what those members might think was the correct opinion of the effect of any changes on the solicitors' branch as a whole or on the Bar as a whole.
Whatever the constitution of the board, it would still be appropriate for proper consultation to take place in relation to proposals for change. I should think that, on consideration, my noble friend would agree with that.
Lord Renton: Strictly speaking it does not need to he written into the Bill.
The Lord Chancellor: I am greatly obliged. In my view this particular provision, whether or not one depends on that consideration, does not need to be written into the Bill. For the reason that I mentioned a moment ago, I think that it creates a slightly unfortunate impression of the balance of the Bill as a
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whole. It may be that the noble Lord will feel able in the light of these submissions to withdraw the amendment.
Lord Mishcon: I feel that I must at least answer in view of the nature of the objections that the noble and learned Lord the Lord Chancellor and the noble Lord, Lord Renton, raised. I was going to say—but the noble and learned Lord the Lord Chancellor has said it rather better than I could—that emphasis has been placed upon the fact that membership of the board does not mean representation of the interests of the people concerned. One hopes, as the noble and learned Lord the Lord Chancellor said, that this will operate as a unit for the general benefit of mankind, if I may put it that way.
So the mere fact that solicitors and counsel will be represented on the board was not quite an answer to what I have said; nor, with great respect to the noble Lord, Lord Renton, does he necessarily describe the altruistic attitude of the Law Society and, I am sure, of the General Council of the Bar, when he says that one need not necessarily consult a particular body when one is doing something which is very favourable to the profession. I hope that my profession is sufficiently altruistic to say that we are being given too much.
Lord Hailsham of Saint Marylebone: I do not think so.
Lord Mishcon: The noble and learned Lord is amazed at that remark and finds it a matter for some jollification; but I assure him that that really is the attitude of my profession. I am sure that he can speak for his profession. I say that with some seriousness because quite obviously what may be deemed to be very favourable to the profession would be seen by it to be too favourable if another aspect is being ignored and is being sacrificed by virtue of the benefit which is being offered. That may be a matter that quite obviously should be discussed and be the subject of consultation, whether it be favourable or unfavourable.
I must deal with the point of the noble and learned Lord the Lord Chancellor about the amendment looking as though the whole interest to be safeguarded was that of the law. I think that possibly the Opposition is the one place where no such suggestion ought to be faced fairly, since we are the ones who are responsible, together with others such as the noble Baroness, Lady Faithfull, for seeing to it that the interests of all parties are represented on the board. We have talked about the consumer, the Citizens' Advice Bureaux and other bodies. We have obviously tried to safeguard their interests. It is the legal profession who will have to carry out the duties of the Legal Aid Act. Therefore, we thought that such consultation was very necessary; it was not supposed to be of a selfish character.
If I am told, as the noble and learned Lord has said, that that is not a desirable result, in spite of the fact that I tried to give reasons as to why it should happen, I naturally want to think about his remarks. In the circumstances, at this stage I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Silkin of Dulwich Lord Silkin of Dulwich moved Amendment No. 19:
Page 5, line 11, at end insert—
("(8) The Board shall ensure that legal representation shall be available in any proceedings before any court, tribunal or statutory inquiry where in the opinion of the Board—

(i) a significant point of law arises;

(ii) evidence is likely to be so complex or specialised that the average layperson could reasonably wish for expert help in assembling and evaluating the evidence and its testing or interpretation;

(iii) a test case arises;

(iv) deprivation of liberty or the ability of an individual to follow his occupation is at stake; or

(v) the proceedings are before the immigration appeal tribunal, social security commissioners or the vaccine damage tribunal.").

The noble and learned Lord said: This is a particularly important amendment. It is regrettable that inevitably it has come at a time when the Chamber is looking a little bare. I am sure that many Members of the Committee would have wished to consider the amendment and take part in the discussion.
The amendment raises the question of representation before tribunals and statutory inquiries. The provision of legal aid in those cases has been advocated by many persons and bodies over a considerable period of time. Among them are the Lord Chancellor's Advisory Committee on Legal Aid which has made proposals which. to a large extent, are echoed in the amendment. It has repeatedly pressed for an extension of legal aid to tribunals, as have the Law Society and other bodies. The restrictions on that provision which the amendment proposes follow the ideas of the advisory committee.
The amendment falls short of granting a general extension of legal aid to tribunals. It requires the board to ensure that legal aid is generally available to tribunals if—but only if—in the opinion of the board there is a particularly strong necessity for it. It sets out categories of cases where it is likely that that necessity will arise. It goes a little further in that under paragraph (v) there is a provision for proceedings before certain tribunals—the immigration appeal tribunal, social security commissioners or the vaccine damage tribunal—where it can be assumed, in our view, that the matters will be of such importance that representation ought to be available.
Some legal advice and representation is a vital element in the provision of justice. I am sure that we all have no doubts about that. That is so irrespective of the identity of the court or tribunal which is entrusted with the dispensation of justice in any particular case. The potential damage to the individual who is unrepresented before tribunals or at statutory inquiries is potentially as great as or greater than that which arises before the courts of justice.
It is difficult to see what possible logic there is, if indeed there is any logic, in a system which excludes from tribunals, inquiries and other bodies representation under the legal aid scheme for cases in which damage may be very great and the issues involved very complicated and complex—questions of law, fact and evidence—when legal aid is available
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in relatively simple cases involving comparatively little damage to individuals which happen to come before the court. The only justification that can be given for that distinction is the hard logic of cost to the public and the way in which the legal aid system has developed. But the hard logic of cost undoubtedly creates its own injustice.
This amendment recognises the cost factor. That is why it seeks to limit the extension of the proposed new facility to the most important and difficult cases—those which are most deserving of the provision of representation or those who are unable to afford to be represented themselves; cases, indeed, in which in many instances the other side may be a statutory authority that has no difficulty in obtaining representation or a large company which is well represented when it comes across a case of some difficulty.
I accept entirely that there may be cases of which it may be said that it is better for there not to be representation at all. But no representation at all is not the same thing as one side being represented in a way which is inevitably unfair to the other side. It is that situation that this amendment seeks to end, but only in cases where one can justify by the nature of the case the importance to the individual concerned of being represented. In my submission to the Committee, at the very least this amendment presents the noble and learned Lord the Lord Chancellor with the strongest case that he can have to put to his Cabinet colleagues; namely the argument that they should depart from the inflexibility that was displayed in the White Paper, which said that there should not be extension to tribunals. I hope that he will welcome and seize that opportunity. I beg to move.
9.30 p.m
Lord Renton: I wonder whether the noble and learned Lord would be so good as to explain why he has raised this matter at this stage—admittedly under the heading "Duties of the Board"—when it might have been more appropriate to have raised it under Clause 14, which deals with availability of representation.
Lord Silkin of Dulwich: We certainly thought it quite appropriate to raise the issue under the duties of the board. It will be for the board to decide whether in its opinion one of the conditions of precedent which are set out in paragraphs (i) to (v) arise. That would be a function of the board entirely consistent with its general function of deciding whether there should be representation or advice in other cases.
Lord Elwyn-Jones: I hope that the noble and learned Lord the Lord Chancellor will be able to look sympathetically and approvingly at this amendment. It has always struck me as exposing a tremendous lacuna in the arrangements for legal aid where before tribunals—and we have a multiplicity of them—parties are represented fully on one side by an array of counsel who raise important matters of law and matters of importance to the individual before the tribunal. Yet it is a one-sided process.

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At one stage, trade unions preferred to undertake this procedure through their own experienced spokesmen. That is a phase which has long since passed. Now, even though skilled men—of whom the noble and learned Lord may have had a little experience—have done their work well in the past, the inequality of representation before tribunals on matters of very great importance to the individual concerned is becoming more apparent and more unsatisfactory.
Without going into the detail of the matter. I urge the importance of acceptance or at least an undertaking to look at this matter which has been raised by authorities in this field. It is high time, in a period of proliferation of tribunals, when so much is done outside the courts which is of increasing importance to the individual subject, that we consider whether we can fill in some way, if only modestly, the gap which now undoubtedly exists in this field.
Lord Ackner: Perhaps I may add a short comment on this point. As my noble and learned friend the Lord Chancellor knows, very often great costs are run up in appeals where, if the case had been argued competently in the first instance, no appeal would have been necessary. If in this field one is concerned with public expenditure—and it is probably only in this field that one is so concerned—one should hear in mind that money well spent at an early stage can often prevent quite unnecessary expenditure at a later stage.
Lord Meston: With respect, perhaps I may take up that last point and support it. This is an important amendment. I suggest that the extension of legal aid in some form or other to tribunals would be valuable and possibly cost-effective. I have some experience of industrial tribunal cases. I suggest that to enable legal representation in more cases, certainly before industrial tribunals, would lead to more cases being settled, or abandoned when they are utterly hopeless as indeed far too many of them are.
The existing ACAS and interlocutory procedures in industrial tribunal cases do not deter the unarguable case. They do not prevent a great number of cases being pursued to a full hearing when, had there been proper advice at an early stage, the applicant would have been saved a great deal of disappointment and the respondent—usually his employer or former employer—would have been saved a great deal of expense and trouble.
As the noble and learned Lord, Lord Ackner, has said, the effective presentation of cases at an early stage will inevitably be of benefit and will shorten cases before tribunals, some of which go on for far too long.
I see one problem in the amendment. When monetary sums are awarded, typically the amounts recovered before tribunals are small—surprisingly small in some cases. Indeed, the applicants themselves are often surprised at how little they are able to recover. The cost provisions are such that orders for costs in favour of the successful party are seldom made by tribunals. It follows that if there was representation under the legal aid scheme, the
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statutory charge would bite and would probably swallow up most of what was recovered. It would therefore be necessary to provide some measure of exemption from the operation of the statutory charge if the amendment, or something like it, were to come into force.
The Lord Chancellor: I accept there is no doubt that some times, if cases were better prepared in a lower court, the result would save unnecessary expense. I may be wrong, but I have come across a case or two of which that might be said in which there was legal representation. If one could incorporate that with legal representation, perhaps the point that my noble and learned friend makes might be powerful. As it is we have to see whether the amendment focuses on cases of that sort.
So far as I can see, the amendment would apply to any form of tribunal, statutory inquiry or court. It would apply to a defamation action in which some important point of law arose or which was a test case for one or more actions of defamation. As I said earlier, up to now it has been accepted that defamation actions should not be covered by legal aid. That would be an innovation in itself. But the fundamental point about the amendment is that the distinction between tribunals and statutory inquiries on the one hand and the ordinary courts of law on the other is that tribunals and statutory inquiries are set up specially for particular purposes. Matters are taken from the ordinary courts so that specialised attention may be given to them by persons who have special qualifications to deal with such matters.
The whole thrust of the great increase in such tribunals and statutory inquiries—I shall not pause to try to trace the history of that growth or the particular administrations under which it arose— indicates that the justification advanced was that these tribunals offered a specialised service and therefore were not dependent in anything like the same way as ordinary courts on the arguments advanced by the parties on one side or the other in the shape of representations of law. A tribunal is supposed to be familiar with the law and able to apply it.
The amendment has the exceptional quality that it would apply to every court, tribunal or statutory inquiry and therefore there would be no kind of threshold test. The administration of the board would be required to look into applications in every possible kind of court, tribunal or statutory inquiry to see whether, for example, a significant point of law arises, whatever that might mean; perhaps one which is significant as distinct from any other point of law. The evidence is likely to be so complex or specialised that the average lay person could reasonably wish for expert help in assembling and evaluating the evidence and its testing or interpretation. One can understand that it would largely apply, for example, to the planning inquiry field. I think that any substantial planning inquiry would have that character. As far as I understand, all of these headings are options. If one or more of the headings apply, legal aid would become available and therefore a tremendous field is being opened up.

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Paragraph (iv) of the amendment reads:
"deprivation of liberty or the ability of an individual to follow his occupation is at stake".
I am not clear what is meant by the latter part of that provision. Paragraph (v) appears to be different and appears to give a complete right to legal aid in respect of the immigration appeal tribunal, social security commissioners and the vaccine damage tribunal. That appears to fit strangely into the principle, if there is a principle, in the early part of the amendment.
As some Members of the Committee have pointed out, this matter has been discussed for some time. When my noble and learned friend Lord Hailsham was Lord Chancellor he made arrangements for his department to commission research into the effectiveness of representation at tribunals. My experience of some tribunals suggests to me that perhaps one is better without legal representation on occasion. I have vivid recollections of appearing for the rating officer in Scotland in valuation appeal committees. The most successful applicants to those committees were not those who came along with learned senior counsel, or arrays of distinguished counsel, but the lady who came along with a baby in her arms and briefly stated her position. She usually went away with more by way of success than did those who came equipped with dazzling and perhaps expensive counsel to support their application.
Perhaps lawyers such as myself are apt to assume that if one has the benefit of a lawyer one necessarily has the benefit of a better result. I would be the last person to underestimate the value of a lawyer's services. On the other hand, when one is examining a question as important as this, it is wise to see whether legal representation overall makes any substantial difference to the result of tribunals.
The research is going ahead and is concentrating on social security, mental health, industrial and immigration tribunals. We hope to have the results of the research early in 1989; it is a fairly thorough examination. However, I cannot accept this amendment at present and nor can I reasonably give any encouragement that I shall be in a position to accept it at any time during the currency of the proceedings on this Bill.
Lord Silkin of Dulwich: At this hour of the night I would not think of seeking to test the opinion of the Committee. However, we may wish to return to this matter at a later stage, perhaps with a better drafted amendment. The noble and learned Lord's objections seem to be largely devoted to the wording of the amendment and to particular parts of it, although the White Paper is much more robust in opposing the general concept of extension. However, we shall consider that issue.
I should like to comment on the noble and learned Lord's observation that it is sometimes better not to be represented before tribunals. Of course it is sometimes better not to be represented but in general—particularly if the other side is a powerful body which is represented—it is difficult to persuade the unrepresented person that that is so.
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What the noble and learned Lord said does not apply only to tribunals in so far as it applies at all. I well remember a long divorce case that I fought unsuccessfully before the High Court. My client could not afford to brief counsel for the Court of Appeal and he was not eligible for legal aid. I told him that in my view he had a very good case and that he could do it himself. He did so far more successfully than I did in the court below. Cases of that kind happen, but it would be a very sad reflection on the purpose and advantages of legal aid if one were to accept that that is a generality that one ought to regard as usually applying in tribunal cases. However, at this hour of the night, I do not believe it is profitable to pursue the matter, and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 4 agreed to.
Lord Elwyn-Jones Lord Elwyn-Jones moved Amendment No. 20:
After Clause 4, insert the following new clause:
("Regional Legal Services Committees.
.—(1) The Board shall establish regional committees for legal services, composed of appropriate groups of legal aid areas or any parts of legal aid areas.
(2)The said committees shall consist of bodies representative of the consumers and providers of legal and advice services and local authorities in each region, and other people interested in the work of the committees.
(3)The said committees shall ensure and facilitate the development of legal and advice services.
(4)The said committees shall advise the Board upon regional needs for legal advice, assistance and representation and the Board shall exercise its powers and duties under this Act with due regard to such advice.
(5)The Board shall provide financial and other resources to the regional committees for the performance of their obligations.")
The noble and learned Lord said: This amendment would require the establishment of regional legal services committees along the lines of the existing North-West Services Committee and, if I may say so, of a committee in South Wales which, however, is impoverished, although for some reason the North-West body is not. However, both do excellent work in the locality.
One of the problems in the legal aid field is the unequal availability of legal aid as between one district and another. It has been found, and legal aid annual reports have indicated, that locally based legal services committees make a valuable contribution in the regional development of legal services. They are particularly useful in identifying unmet needs. in pioneering new schemes for the provision and delivery of legal services and, indeed, in co-ordinating the provision of services in their areas.
Clause 3 (1) of the Bill, it would seem, confers on the Legal Aid Board power to establish such committees. The subsection states:
"Subject to the provisions of this Act, the Board may do anything

(a) which it considers necessary or desirable to provide or secure the provision of advice, assistance and representation under this Act.".

It is therefore a broad enough provision to cover the financing of regional legal services committees.
I have had very eloquent letters from South Wales about the work that the South Wales Legal Services Steering Group does, for which we are grateful in those parts. The North-West Legal Services

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Committee has a proven record of bringing together all those concerned with the administration of justice and the provision of legal services to achieve improvements. I am told, for example, that the committee pioneered what has now become the ALAS scheme. I hope it is not the "alas" scheme because that sounds too desperate a situation for me to call in aid, and I hope I shall not be pressed to say what ALAS stands for. However, whatever it stands for, it is a scheme which has organised experiments for delivering legal services to prisoners. It has published directories of advice services in the locality and it is the kind of service which can be rendered by these local groups. Other committees exist in the North-East, and for some time I have received letters from them and also from South Wales.
The Law Society in its response to the legal aid efficiency scrutiny, said that regional committees:
"would play a key role in co-ordinating legal services".
It is thought that that role is particularly crucial if the Government are to press ahead with their plans to hive-off parts of the green form advice scheme. This is a situation which has concerned the Law Society and this is one of the stop-gap measures which it believes will be particularly useful if that occurs.
On any view it seems important to ensure the spread of availability of legal aid and legal services across the country and that there should be a willingness to set up these regional legal services committees dedicated to looking after the interests, above all, of the people in their own region. There are some regions which are badly neglected and which sorely need such facilities. I cannot believe that it would involve any great expenditure. We believe that it would be a valuable addition to the administration of the legal aid scheme. I beg to move.
The Lord Chancellor: I have already made comment on the North-West Legal Services Committee, and I have also referred to the South Wales Steering Group for such a committee and its eloquent desire for help.
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I have already explained that power to do what is suggested in this amendment is available to the board subject to the approval of the Lord Chancellor. I also sought to explain that it is a matter of seeing what is required in the view of the board when the board is set up. I hope that the noble and learned Lord, Lord Elwyn-Jones, will feel that the answer I gave to the earlier amendment may be something to be taken into account in answering this one. I certainly do not see a need to add anything on these lines to the Bill when the Bill already covers a discretionary power to the board to make provisions on the lines that the amendment seeks to provide.
Lord Elwyn-Jones: I confess that I was not giving my undivided attention to the earlier consideration of this matter. I therefore may have let something very important pass by in the odd moments when one is allowed relaxation. I shall bring no tears to anyone's eyes but I have sat in this Chamber since three o'clock in the afternoon. If I have missed something which was said earlier, I apologise. I invite a serious look at this provision, otherwise I shall be unable to go to South Wales again. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clauses 5 and 6 agreed to.
The Earl of Arran: I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

City of Westminster Bill
Brought from the Commons, read a first time and referred to the Examiners.
House adjourned at one minute before ten o'clock.