HL Deb 14 January 1988 vol 491 cc1350-98

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 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 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 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 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.

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 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.

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.

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 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 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 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 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.

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 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 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 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 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—

  1. (a) the need for the independence of the Board;
  2. (b) consultation with bodies representative of the consumers and providers of legal and advice services;
  3. (c) representation from different parts of England and Wales;
  4. (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. 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.

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 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.

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 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 Dulwichmoved 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 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 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.

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 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, 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 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 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 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 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 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 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 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 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 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 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—

  1. (a) which it considers necessary or desirable to provide or secure the provision of advice, assistance and representation under this Act; or
  2. (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". 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 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 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 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 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. 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
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.
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.
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.

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