Lords Sitting of 19 January 1988

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

Inheritance Tax
Lord Boyd-Carpenter: My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government what is the annual yield as at the latest convenient date of inheritance tax on the first or principal home of a deceased taxpayer.
The Parliamentary Under-Secretary of State, Department of Transport (Lord Brabazon of Tara): My Lords, the information is not available in precisely the form requested by my noble friend. To exempt all residential property from inheritance tax on death is estimated to cost around £250 to £300 million.
Lord Boyd-Carpenter: My Lords, I thank my noble friend for that Answer and the for the implication that the cost of what is suggested in my Question would be less than the figure he named. Is he aware that a concession is already made in respect of capital gains tax on a person's home and that an extension of this would carry the Government's policy of making us a home-owning democracy further into another generation?
Lord Brabazon of Tara: My Lords, I am aware that the capital gains tax concession is applicable to primary residences. However, I am not aware of any proposals to extend it to inheritance tax. Of 660,000 people who die each year in the United Kingdom only some 4 per cent. of estates are liable to inheritance tax and as regards estates above the threshold around only a quarter of the value on average lies in a house.
Lord Bruce of Donington: My Lords, is the noble Lord aware that the great majority of the people of the United Kingdom do not have personal disposable assets above the £90,000 limit proposed in the inheritance tax legislation? Would he not think it more seemly that if there are funds at the disposal of Her Majesty's Government at the time of the next budget those funds should be devoted and directed to the less fortunate and less wealthy sections of our population?
Lord Brabazon of Tara: My Lords, in answer to my noble friend's supplementary question I said that only some 4 per cent. of estates are liable to inheritance tax. As regards any funds which are, as the noble Lord put it, available at the next budget,
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that is a matter for my right honourable friend the Chancellor of the Exchequer. We are rather near budget time now for me to make a comment on it.
Viscount St. Davids: My Lords, will the noble Lord confirm that there is no inheritance tax payable between husband and wife and that therefore there is no question of widows and widowers being thrown out of the home for any such reason? It is the next generation—those who have some interest in the family home but who nevertheless may have homes of their own by then—about which we are talking.
Lord Brabazon of Tara: My Lords, the noble Viscount is quite correct. The inheritance tax is payable only on the death of the last surviving spouse. I should say that if the suggestion made in my noble friend's Question was carried through and there was no inheritance tax on the first or principal home, it would have a fairly marked impact on the house market. Presumably those who thought that they were going to die would immediately buy the most expensive house that they could find in order to exempt themselves from inheritance tax.
Lord Boyd-Carpenter: My Lords, is my noble friend aware that the Inland Revenue could easily cope with that comparatively easy gambit by imposing a time limit? Is he also aware that the present high price of houses has the effect of pushing into inheritance tax people who have very few other means but whose houses have become highly rated? Will he express rather more sympathy than the noble Lord, Lord Bruce, with the families turned out of a home which they had hoped would continue to be theirs?
Lord Brabazon of Tara: My Lords, we are sympathetic. Beneficiaries who retain the home may pay tax in instalments over 10 years. That would probably not be very much different from what they might have to pay on normal mortgage repayments. Therefore with luck they should not be turned out of the family home.
Lord Mishcon: My Lords, does the Minister claim to have any knowledge of human affairs when he announces to the nation that it is the likely conduct of somebody who is about to die to walk out and try to find an expensive house?
Lord Brabazon of Tara: My Lords, I am saying that if the suggestion made by my noble friend were carried forward it would be a fairly obvious tax dodge for people to attempt.
Lord Mackie of Benshie: My Lords, does not the Minister agree that he might employ a clever solicitor?

Civil Defence Act 1948
2.43 p.m.
Viscount Mersey: My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether the Civil Defence Act 1948 still serves its original purpose of covering all aspects of what is now known as civil protection.
The Minister of State, Home Office (Earl Ferrers): My Lords, the Civil Defence Act 1948 makes provisions only in relation to hostile attack by a foreign power. The resources which are provided under that Act may also be used for peacetime emergencies, under the Civil Protection in Peacetime Act 1986.
Viscount Mersey: My Lords, I thank my noble friend for that reply. Nevertheless, I am sure he will agree that there is a good spirit of glasnost around nowadays. In view of that, will he consider renaming the Civil Defence Act the Civil Protection Act, which would have as its main aim ordinary disasters such as the Bradford City Football Club fire or the terrible fire at King's Cross Underground station?
Earl Ferrers: My Lords, I do not think that there would be great merit in changing the name of the Act, because the function remains an important one—that we should be able to have protection in the event of a hostile act. The fact is that arrangements now enable that Act to be used for peacetime purposes.
Lord Jenkins of Putney: My Lords, is it not the case, however, in support of what the Minister's noble friend has said, that the purpose of the Civil Defence Act is entirely different from that which it originally had? The original purpose was to offer some degree of protection to the population, for example, in nuclear war. That purpose has been admitted since then to be entirely fallacious, and is impossible. As the Act therefore is not the Act that it pretended to be in the first instance, would it not be a good idea to bring it back, possibly refashion it, and rename it as well?
Earl Ferrers: My Lords, there are plenty of protections available in the event of nuclear war, but that has nothing to do with civil protection in peacetime. The noble Lord will agree that the precautions being taken against troubles which might occur in international war can be used for civil purposes. I do not see that there is much point in altering that position.
Lord Renton: My Lords, I cordially welcome the appointment of my noble friend as Minister of State at the Home Office. Is he aware that the Home Office now has a policy, and has had for several years, of coping with all emergencies in peace and war, shortly called the all-hazards approach, and that the Home Office has used the expression "civil protection" rather than "civil defence" to describe all those risks? Would it not be better, therefore, to bring the statute law into line?
Earl Ferrers: My Lords, I am grateful to my noble friend for his kind remarks. I also congratulate him
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on the fact that he was responsible for the introduction of the Civil Protection in Peacetime Act 1986. That Act has been in operation for just over 12 months. It would be a little premature now to rehash that as well. I shall certainly bear in mind what my noble friend and others have said.
Lord Paget of Northampton: My Lords, did I hear the noble Earl aright when he said that there were plenty of defences available for nuclear war? Surely that is one of the most astonishing observations ever heard in this House.
Earl Ferrers: My Lords, perhaps I should have used my words a little more carefully and should have said that there are plenty of preparations for defence in times of war.
Lord Gladwyn: My Lords, would not the noble Earl agree that there is no possible protection for the population in the event of nuclear bombardment? Is it not absurd to imagine that there ever could be?
Earl Ferrers: My Lords, with the greatest respect to the noble Lord, Lord Gladwyn, that is no reason whatsoever for taking no protection measures against nuclear war.
Lord Mishcon: My Lords, in dealing with matters that are not covered by nuclear war or the threat of it, is the noble Earl satisfied that sufficient resources are being placed at the disposal of local authorities so that they can deal with the type of emergency that the noble Lord, Lord Renton, was speaking of?
Earl Ferrers: My Lords, I am perfectly satisfied that there are sufficient powers for local authorities to make use of such protection as they require for these emergencies.

Newbattle Abbey College
2.48 p.m.
Lord Hatch of Lusby: My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government what is their policy regarding Newbattle Abbey Adult Education College.
The Earl of Dundee: My Lords, Newbattle Abbey College has an intake of some 40–50 students a year taking the college's two-year diploma in liberal studies, which is recognised for entry to higher education. In 1986–87, some 61 per cent. of the Scottish students came from Edinburgh and the Lothians and more than 30 per cent. of the total came from England and Wales. In 1986–87, well over half a million pounds from public funds was spent on Newbattle and its students in grant, fees and student allowances. In addition, it is clear that if the buildings are to continue to be used for residential educational purposes, there will be a need for continuing significant capital expenditure.

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The Government must have regard to the effectiveness of their expenditure. We have, therefore, decided that given the opportunities now available elsewhere in Scotland for mature students to enter further and higher education, government grant to Newbattle should cease at the end of the academic year 1988–89. My right honourable friend the Secretary of State has said that the resources released will be devoted to encouraging wider access to higher education in Scotland in ways more relevant to current needs. We expect that the result will be that many more mature students will be helped to progress to higher education than are currently benefiting from the facilities at Newbattle.
Lord Hatch of Lusby: My Lords, is the noble Earl aware that my interest in this arises from the years after the war when, as a member of the staff of Glasgow University, I was asked to participate in the re-opening of Newbattle Abbey College under the distinguished direction of the Scottish poet Edwin Muir? Is it the case that Newbattle Abbey is the only residential adult education college in Scotland and that if the Government grant is withdrawn there will be no other such college anywhere in Scotland?
The Earl of Dundee: My Lords, I appreciate the connection which the noble Lord, Lord Hatch, has had with Newbattle college and which he has drawn to the attention of your Lordships. In regard to the professed unique status of the college, it is the Government's view that the case for continued support of the particular educational provision at Newbattle has been largely undermined by developments over the years which have made higher education in Scotland more accessible to mature students.
When Newbattle college was founded there were four Scottish universities; there are now eight. There are now approximately 20 other institutions of higher education and 50 further education colleges. In addition, Newbattle college appears to satisfy local rather than national needs in Scotland. The cost per student is high compared with the costs of preparing for higher education in other ways, let alone the costs for students actually in higher education.
Lord Carmichael of Kelvingrove: My Lords, is the noble Earl aware that, to my knowledge, there were no discussions or consultations with the board of Newbattle college before the decision was made to withdraw the grant? I believe that the letter was received on 10th December. Will the noble Earl accept that although there are many new ways of entering higher education, there is still a great need to ensure that people whose circumstances are not conducive to study are able to attend the residential course?
Will the noble Earl confirm that the grant to Newbattle college—which is Scotland's only adult residential college—has been static since 1978 in real terms while student numbers have increased by 50 per cent.? Will he not take it upon himself to institute discussions with the governors of Newbattle Abbey to see whether there is a way out of the difficulty so that Scotland will not lose this important residential college?
The Earl of Dundee: My Lords, as regards the noble Lord's first question, it seemed best to give a clear indication of the Government's view and to give ample notice. The decision will take effect in 18 months' time. Meanwhile, we are willing to hear the views of those concerned. I understand that the governors of the college will discuss the matter with officials of the SED.
I should like to point out to the noble Lord that in 1985–86, there were approximately 6,000 entrants to full-time higher education in Scotland, aged 21 and over. That is approximately one-quarter of the total intake. Newbattle college's contribution to that figure is only 40.
The Earl of Selkirk: My Lords, do I understand that Newbattle college is being closed and that nothing is being put in its place? Can the noble Earl say how many students wishing to go to the college are unable to obtain places?
The Earl of Dundee: My Lords, the contribution of Newbattle college to the total number of mature students who have taken advantage of higher education is very small; only 40 out of a total of 6,000. In Scotland all the signs are that students who are desirous of further education are using alternative means to improve their chances of obtaining it.
Lord Mackie of Benshie: My Lords, is the noble Earl aware that his explanation sounds very thin and that the college at Newbattle Abbey is held in high regard? Is he also aware of the long list of distinguished students who would otherwise have been unable to attend college? Has he heard of George Mackay Brown, the well known Scottish poet who was a distinguished ex-student? Should the noble Earl not think again because the college has done what the Government requested and has raised its own income by 50 per cent. while the grant has remained static? Surely this is a case for the Government to think again.
The Earl of Dundee: My Lords, I am grateful to the noble Lord for mentioning the distinguished poet, George Mackay Brown. I am sure that many noble Lords will also have a high opinion of Edwin Muir. In 1986–87 there were no students from north of the line from Aberdeen to Fort William. There were only four students from north of the central belt; two from Aberdeen and two from Fort William. The cost to the Government of supporting Newbattle college in 1986–87 was over £550,000.
Baroness Lockwood: My Lords, is the noble Earl aware that there is a significant difference between the kind of education offered to mature students in universities and that in adult colleges such as Newbattle college? Will he agree that in addition to providing an education for such students, or an introduction to higher education, the colleges make a substantial contribution to the development of education for mature students generally?
The Earl of Dundee: My Lords, I would not wish to deny that Newbattle college has made a significant

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contribution over the years. However, since the college was founded many other opportunities have become available in Scotland for mature students to gain access to higher education without the need for a special diploma.
Lord Kirkhill: My Lords, does the noble Earl not understand that this aspect of government policy is causing such concern north of the Border because Newbattle Abbey represents an absolute last chance for a limited number of people? In residential terms, that opportunity will be removed as a consequence of the probable decision.
The Earl of Dundee: My Lords, I do not accept that the closure will be so significant, nor that it will disadvantage even a limited number of people. No doubt a certain number of people who are closely connected with the college sentimentally consider its present defence to be a last stand. That is perhaps another matter. However, as regards other opportunities, upon which I have already touched, the Open University offers adults without formal qualifications a chance to proceed directly to part-time degree courses. There are also access courses tailored to particular institutions. For example, there are co-operative arrangements between schools, further education colleges, central institutions and universities designed to identify students who may not have the formal academic requirements for entry to higher education but who may benefit nonetheless.
Lord Carmichael of Kelvingrove: My Lords, the noble Earl said that there would be discussions between officials of the department and the board of the college. Can we assume that there may be a certain open-mindedness on the part of the Government in respect of this matter? Will the noble Earl ask officials to pay particular attention to the fact that this beautiful house, which which I am fairly familiar, was given by the Lothian family? Although the upkeep is considerable, we should not like to lose the house, which is part of our Scottish heritage. Therefore, it is inevitable that part of the costs of Newbattle Abbey must be the upkeep of the establishment.
The Earl of Dundee: My Lords, I can assure the noble Lord that my right honourable friend the Secretary of State would be willing to consider proposals which might meet modern needs more cost-effectively. However, he is not prepared to continue funding on the present basis.
Lord Hatch of Lusby: My Lords, will the noble Earl separate in his mind education at university, further education, the various forms of institutional formal education and adult education? That is quite different and separate, and it has a different purpose and applies to different people. Will the noble Earl recognise that the present decision of the Government removes that opportunity from the people of Scotland? I should like to reinforce the plea made by my noble friend Lord Carmichael and ask the Government to reconsider their decision.
The Earl of Dundee: My Lords, I shall certainly pass on the remarks of the noble Lord to my right honourable friend the Secretary of State. However, I should like to repeat the figures which I mentioned a few moments ago: out of approximately 6,000 entrants to full-time higher education in Scotland, aged 21 and over—which is approximately one-quarter of the total intake—Newbattle college's annual contribution is only 40.

Electricity Industry: Regulation Policy
3 p.m.
Lord Campbell of Croy: My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether the regulatory regime being prepared for the electricity industry after privatisation will be strictly similar in effect to that applying to the gas industry at the time.
Viscount Davidson: My Lords, effective regulation of the electricity industry after privatisation will be essential in order to safeguard the interests of consumers. The Government are considering the most appropriate form very carefully. Much will depend on what structure is decided for the industry. My right honourable friend will be making a statement on this when decisions are reached.
Lord Campbell of Croy: My Lords, I thank my noble friend for that satisfactory reply. Does he not agree that where there is no competition from other suppliers of energy—for, for example, computers, railways, and washing machines—there will be much more of a need for a regulatory regime which will not be oppressive but which will protect the consumers, both industrial and domestic?
Viscount Davidson: My Lords, protection of consumer rights will be one of our main priorities when we privatise the electricity industry. We are examining ways of safeguarding the rights of customers and securing high standards of service. The main purpose of regulation is to safeguard consumer interests in areas where a monopoly applies, and I agree entirely with my noble friend.
Lord Jenkin of Roding: My Lords, does my noble friend not agree that, to the extent to which he can ensure both competition and emulation between a number of separate authorities, the level of regulation will assume a lower proportion? Does he recognise that there are many who believe that the Central Electricity Generating Board has had such a monopoly in the supply and generation of electricity that perhaps there will be some argument for offering the possibility of a number of separate generating authorities which could pursue, for example, alternative technologies, pollution abatement, district heating and other matters of that sort?
Viscount Davidson: My Lords, I agree entirely with my noble friend. This is one of the matters being discussed at the moment and upon which no decision has yet been taken.
Lord Jenkins of Putney: My Lords, does not the noble Lord admit that all these artificial measures could be avoided if he were to take the simple act of not privatising a public monopoly?
Viscount Davidson: My Lords, that is a matter of opinion.
Lord Peyton of Yeovil: My Lords, may I ask my noble friend when we can expect a White Paper on the subject, because an increasing number of people are mildly interested in knowing the shape of the Government's proposals and there is some mounting anxiety that those proposals might give rise to a forest of regulations which would be very difficult to understand or comply with?
Viscount Davidson: My Lords, I am afraid I cannot tell my noble friend if or when a White Paper will be produced. However, I will convey his remarks to my right honourable friend.
Lord Stoddart of Swindon: My Lords, is the noble Lord aware that, following the BBC programme "This Week, Next Week", over the weekend people are really very confused? On the one hand, the Secretary of State appeared to say that no decisions have yet been taken about the form that privatisation will take; on the other hand, he was saying that consumers would be given more protection. Can we be given more information as to exactly what stage the Government have reached? In addition, before we have a White Paper on the subject, can we have a Green Paper so that not only this House and another place but consumers generally can have a say about the electricity industry and whether or not they want it privatised?
Viscount Davidson: My Lords, I am not in a position to reply to that question. However, at this stage I will tell my right honourable friend what the noble Lord has said and no doubt he will communicate with him.
Baroness Phillips: My Lords, may I ask the Minister a direct question? If and when electricity is privatised will it be recognised that the prime motive is profit rather than safety?
Viscount Davidson: My Lords, safety will never be sacrificed.

Business
3.4 p.m.
Lord Denham: My Lords, it may be for the convenience of the House if I announce that the Committee stage of the Legal Aid Bill will be adjourned at approximately 7.30 p.m. for approximately one hour and that during that adjournment a Motion to annul the Income Support (Transitional) Regulations 1987 will be taken.

Privileges: Select Committee
The Chairman of Committees (Lord Aberdare): My Lords, I beg to move the first Motion standing in my name on the Order Paper.
Moved, That the Lord Privy Seal (Lord Belstead) he appointed a member of the Select Committee for Privileges in the place of the Viscount Whitelaw, resigned.—(The Chairman of Committees.)
On Question, Motion agreed to.

Committee of Selection
The Chairman of Committees: My Lords, I beg to move the second Motion standing in my name on the Order Paper.
Moved, That the Lord Privy Seal (Lord Belstead) be appointed a member of the Select Committee of Selection in the place of the Viscount Whitelaw, resigned.—(The Chairman of Committees.)
On Question, Motion agreed to.

Procedure of the House: Select Committee
The Chairman of Committees: My Lords, I beg to move the third Motion standing in my name on the Order Paper.
Moved, That the Earl Ferrers be appointed a member of the Select Committee on the Procedure of the House.—(The Chairman of Committees.)
On Question, Motion agreed to.

Legal Aid Bill [H.L.]
3.5 p.m
The Lord Chancellor (Lord Mackay of Clashfern): My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved, That the House do now again resolve itself into Committee.—(The Lord Chancellor.)
On Question, Motion agreed to.
House in Committee accordingly.
[The LORD ABERDARE in the Chair.]
Clause 14 [Availability of and payment for, representation under this Part]:
Lord Elwyn-Jones Lord Elwyn-Jones moved Amendment No. 34B:
Page 11 Line 15, at end insert—
("(1) Representation shall always be granted to any child who is a party to the proceedings.").
The noble and learned Lord said: I have been asked by my noble friend Lord Mishcon to move this important amendment, which arises from the provisions of Clause 14 of the Bill relating to availability of and payment for representation under Part IV of the Bill dealing with civil legal aid. It may be convenient to also discuss a somewhat parallel provision arising from Amendment No. 43C relating to the arrangements for children brought before a juvenile court. Amendment No. 43C provides that

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legal aid shall be available to any child who is a party to those proceedings. If it is not convenient to take them together, so be it, but if it is convenient that course might be followed.
The Lord Chancellor: So long as the Committee keeps in mind that the subject matter of Clause 26 and Amendment No. 43C is rather different from this amendment, if it suits the noble and learned Lord, as it seems to do, to take these together it would be churlish of me to offer any objection.
Lord Elwyn-Jones: In view of what the noble and learned Lord has said, it may be that it will add an element of confusion, so we will take it in turn when we reach it. I was merely hoping to save a little time, but in the long run it may not have that effect.
I come now to the very important Amendment No. 34B, which states:
"Representation shall always be granted to any child who is a party to the proceedings".
The purpose of the amendment is to ensure that, where a child is made a party to any proceedings, the child shall always be granted legal aid and be represented in such proceedings. We are very much concerned with the family field of provision for children in care and children involved in other family proceedings.
Over the past ten years there has been much discussion and a great deal of reviewing and changing in that sphere. One such review was contained in the Government's White Paper entitled The Law on Child Care and Family Services, which is 1987 Command Paper 62. In addition to that White Paper, the Law Commission has also engaged in a review of child law. The White Paper to which I have referred states:
"There is a considerable volume of work with families to prevent or diminish the need to take children into local authority care and otherwise to support families, for example through daycare and domicilary services. There has been growing concern that the law governing all these services is confused and unnecessarily complex".
The services referred to there often—almost invariably—concern a child, and where a child is involved in court proceedings by now the proposition is not only asserted but accepted and established that what is paramount is the interests of the child. It has been increasingly recognised that where important decisions are being made about a child and its life and future the child should he made a party to the proceedings. Such decisions include cases where a child is taken into care and separated from his or her family; whether parents should continue to have access to a child in care or where a child is the subject of wardship proceedings.
Making a child a party to the proceedings—as the child in such cases should be made and will normally be made—has little meaning unless the child is legally represented. In some proceedings the court may appoint a guardian ad litem to safeguard the interests of the child. This does not necessarily mean that the child will be legally represented in the court proceedings unless the court or the guardian in question appoints a solicitor to act on behalf of the child.
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The purpose of this important amendment is to specify that in such circumstances a child should always have legal representation and that that should be given under the aegis of the legal aid scheme. Indeed, it would only be possible in the vast majority of cases if full legal aid was given.
The amendment is therefore an important one. It covers a field of some difficulty in law and a child may find itself in a battlefield where many legal tussles are involved. I hope therefore that the noble and learned Lord will feel, in view of the particular care and concern of ourselves and the courts for the interests of the child, that this right of representation should always be granted to any child who is party to the proceedings of the kind that I have mentioned.
Lord Renton: Before the noble and learned Lord sits down, I wonder whether he can clarify one point. He indicated that this provision should apply regardless of means. We know that some children have considerable means.
Lord Elwyn-Jones: It is intended as a broad provision for the child. There may be a child who is well off, but that is certainly the intention of the amendment. I beg to move.
Baroness Macleod of Borve: Before the noble and learned Lord the Lord Chancellor speaks, perhaps I may very briefly say one or two words, because I have had many years of adjudicating in juvenile courts. I warmly support this amendment. I believe it is very important that it should be part of the Bill, though I must tell the noble and learned Lord, Lord Elwyn-Jones, that representation is nearly always given in juvenile courts. We see that the child is always represented separately from his parents or indeed from the social services. In my view and to my knowledge it is always the practice that somebody who is legally qualified should represent a child of any age. As members of the Committee will know, it can be a child of any age from birth to age 18. It is certainly the practice, but I warmly welcome this amendment.
3.15 p.m.
The Lord Chancellor: I wish to intervene at this stage not to deal with the whole matter but to deal with the point that arose at the opening of the speech by the noble and learned Lord, Lord Elwyn-Jones. He began by suggesting that we might take Amendment No. 43C along with this one. There is a tremendous difference, and I wish to emphasise that right at the outset so that there will not be any misunderstanding. I feel responsible for some misunderstandings in the past and I do not wish to be responsible for any more if I can avoid it.
This amendment deals with civil legal aid and we have sought to delete from these provisions in order to have separate specific provisions dealing with child care and the juvenile courts. These provisions are to be found in the later clauses of the Bill and in particular in Clause 26, to which applies the later amendment referred to by the noble and learned Lord, Lord Elwyn-Jones.

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The Committee will see that Part VI of the Bill deals with legal aid in special cases. I believe that this is an innovation in the legal aid legislation. We thought it right to take these particular provisions—namely, care proceedings—out of the general categories and to deal with them specially and specifically because we appreciate that special considerations apply to them.
I believe I am right in saying—I am sure I shall be corrected speedily if I am wrong—that children in care used to be dealt with for legal aid purposes under the criminal legal aid provisions. I believe it is very obvious that that is not an appropriate place to deal with them. I feel strongly, and I know it is also the view of others who have dealt with these matters before me, that the provisions as regards children in care should be separate provisions. Therefore, my noble friend Lady Macleod of Borve is dealing with the situation which is covered in the later clauses where we have sought to give a very wide discretion to allow children whose care is in question to be represented.
The part of the Bill which we are now considering is the general provision dealing with legal aid. Accordingly the effect of the amendment put forward by the noble and learned Lord, Lord Elwyn-Jones, is that any child who is a party to the proceedings shall be automatically entitled to legal aid whatever the child's means, whether or not the child has any reasonable case to put. I think that is what he made clear and that is certainly the way in which I understand his amendment. In other words, both the merits test and the means test which apply to all others are to be removed simply because the person in question is a child.
I hope I am second to none in wishing the arrangements in our courts for children to be superb, sensitive and humane. But I cannot believe that it will be in the interests of children to make a general provision of this sort because it will put them immediately at a great premium—if you wish to bring a case, particularly one which raises a general question, try to get a child who would be a possible plaintiff. Thus a situation is produced in which a child becomes a mere pawn in the hands of other interests with a view to promoting those other interests.
I do not wish to elaborate on this at this stage. I shall sit down in a moment. I wish to make abundantly clear what is the subject matter of this amendment so that there should be no misunderstanding. If to any extent I have got it wrong I am sure that the noble and learned Lord will be kind enough to correct me.
Lord Elwyn-Jones: The problem arises chiefly in the family scene. While the noble and learned Lord has paid a tribute to our court arrangements with regard to children, I note in the White Paper to which I referred at page 1:
"The prime objective has been to seek improvements in the law so as to offer a fairer deal both to children and parents, especially in the legal processes when compulsory state intervention is necessary to protect and promote the interests of the child."
Therefore changes in this field are clearly thought to be necessary in the White Paper.
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In the interim phase there is what I have also referred to as the confused and unnecessarily complex state of the law. In that scene, into which the child may be projected without its own choice, the necessity of there being provision for legal representation of the child under the legal aid scheme seems to me to give reality to our claim that we always put the children first. This is an attempt to assert that principle in simple terms and make it part of our law.
Lord Renton: I am surprised that my noble and learned friend—if I may so describe him, as I do by chance on occasion—should be at such pains to wish to protect the children of the very rich in this way as undoubtedly his amendment would do. Let me just take one example. A millionaire may die, leaving several dependants including a child. The will is contested. It may be contested of course on behalf of the child; it may be contested on behalf of one or other of the dependants.
In a case like that, apart from the attitudes which any of the particular parties other than the child had taken, the court would almost certainly award costs out of the estate to the child. There would be no difficulty about legal representation. One could multiply the various occasions when, as I said earlier, children with their own means are children with a considerable stake involved, perhaps in some Chancery action for breach of trust. They would, under the noble and learned Lord's amendment, be represented at public expense in what could he quite an expensive action. When all the merits and justice of the matter would indicate that because the child or the guardian ad litem on his behalf, or a trustee on his or her behalf, could afford the representation, the noble and learned Lord is saying that the public should nevertheless pay. Speaking for myself I cannot go along with that.
Lord Denning: Perhaps I may say that in our civil law at the moment the interests of the child are well protected. We have the procedure by a next friend for the plaintiff and a guardian ad litem for the defendant. In Chancery proceedings the judge can direct that the children be separately represented. Then those proceedings can be tested for legal aid and for funding in the ordinary way.
I view with some doubt the prospect in custody proceedings, or access proceedings, of each of the children being separately represented and legal aid being paid for them. I am afraid that is going much too far. In other words, I would not support the amendment.
Lord Hooson: It seems to us on these Benches that the noble and learned Lord the Lord Chancellor has a good point, and he has practically convinced us of it. But may I express one concern and that is on wardship cases where the child is a party to the case? Where is that covered in the present provisions?
The Lord Chancellor: As it happens I was raising a question about wardship myself. It may well be that some further special consideration might be required in relation to wardship proceedings. Certainly at

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present the civil legal aid provisions with which we are dealing, and considering whether they should be amended, are general provisions which would cover all forms of civil legal aid.
I think that in wardship proceedings the kind of provisions to which the noble and learned Lord, Lord Denning, has referred would arise. I know from information that I have received that at present quite a substantial amount of work in the Family Division relates to questions of whether the child should be in care or in wardship; difficult disputes of that kind. I had rather taken it that the children-in-care provisions of the later clauses to which I have referred would apply, but if there is any question about it I shall certainly consider that further.
On the main matter I am glad to know that at least I have made some progress with the open minded. It is a serious matter and I do not wish in any way to suggest that it is not. However, it is important to be absolutely clear in our consideration of it that we do not confuse the heart with the head too much, and we must try to keep clear the different issues which are involved, and do our best to target the help to children to the proceedings where that help is likely to be required.
Lord Elwyn-Jones: While I should prefer to be associated with an open mind rather than a closed book, the fact is that in this amendment we are dealing with a situation of a child who is already a party to the proceedings. Unhappily there are cases—and I vividly remember one myself—where both father and mother are in an attitude of abandoning the interests of the child altogether.
I remember one case—it touches on frivolity—which arose during the exercise by the Attorney-General of his powers to call in the intervention of the Queen's Proctor in the famous cases that made the lives of chambermaids so important in those old days. That was a case where my department let me have a summary of the facts, and the facts were as follows: the husband in the case said, "My wife and I would have been divorced years ago but for the children. She won't have them, and I won't have them."
That situation does arise. However wealthy the parents may be it does not follow that the child may be able to count upon his provision. While the noble and learned Lord, Lord Denning, has acclaimed the present arrangements as wholly satisfactory, as I have said in the quotation that I made from the Government's own White Paper:
"The prime objective has been to seek improvements in the law so as to offer a fairer deal both to children and parents, especially in the legal processes when compulsory state intervention is necessary to protect and promote the interests of the child.".
There is nothing novel in what I am proposing.
However, I detect, if he will allow me to return the compliment, a closed mind for once in the noble and learned Lord the Lord Chancellor. Once one confronts that, my experience has shown that it is better to give up and fight the battle in another way on another day, which is what I propose to do. In those circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
3.30 p.m.
Lord Mishcon Lord Mishcon moved Amendment No. 34C:
Page 11, line 35, at end insert—
("(7) A person who is nominated to be the plaintiff or defendant in a class or representative action may he offered representation under this Part for the purpose of those proceedings without his financial resources being taken into account.").
The noble Lord said: I hope that at the end of this amendment I shall not be put in the unhappy position which has been so beautifully expressed by my noble and learned friend. It does not deserve that fate. Perhaps I may take the Committee through it in this way. First, what is the amendment seeking to do? As the Committee will see it seeks to see to it that:
"A person who is nominated to be the plaintiff or defendant in a class or representative action may be offered representation under this Part for the purpose of those proceedings without his financial resources being taken into account."
Facing as I do a negative indication from the noble Lord, Lord Renton, at the very outset of my speech, I continue with some optimism to try to convince him as somebody who is totally openminded.
It is one of the defects of our legal system easily put right by regulation and not by statute that we do not know at the moment the concept of the class action. This was vividly shown as being a grave defect in our system in the case that is known as the Opren case. It has the strict title of Davies v. Eli Lilly and Company. I should like to quote the Master of the Rolls word for word. I hope the Committee will forgive me if I do quite a lot of quoting in this address. I have to, because the Master of the Rolls put his problem so graphically and so clearly, so much better than I could in addressing the Committee.
He said:
"The concept of the class action is as yet unknown to the English courts. In some jurisdictions, notably in the United States where large numbers of plaintiffs are making related claims against the same defendants, there are special procedures laid down enabling all the claims to he disposed of in a single action. Clearly, this is something which should be looked at by the appropriate authorities with a view to seeing whether it has anything to offer and, if so, introducing the necessary procedural rules. Meanwhile, the courts must be as flexible and as adaptable as possible in the application of existing procedures with a view of reaching decisions quickly and economically.".
The Committee may well wonder what happens then in our present procedure if we do not have the concept of class actions. What happens is that one chooses what is called a lead action. A plaintiff is selected or a defendant is selected upon the basis that this might be a typical case. Unfortunately, this works out dreadfully from the point of view of legal aid. It was much discussed in the Opren case. Again, with the committee's permission, I quote the Master of the Rolls, this time at some length, only because he put the difficulties so succinctly. If by an amendment such as this we do not rectify the position now that we are dealing with legal aid, it may be a long time before we can do so.
This is what he said:
"Put simply, but for the present purposes wholly accurately, legal aid helps those who lose cases, not those who win them. Legal aid makes out-and-out grants to those who lose cases. It only makes loans to those who win. This is the way it works.
"Mr. X has a claim which looks from his point of view reasonable. He applies for legal aid. His means are assessed, and if they are sufficiently small he will he given legal aid. According to how small his means are, he may have to make some contribution to the legal aid

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fund, although there are many whose contributions are assessed as nil. Subject to his paying those contributions, which are never very large, the Legal Aid Fund pays the whole of his costs to the litigation. If at the end of the case he loses, he may be ordered to pay a small sum to the successful defendant, but unless there has been a dramatic change in his circumstances—he has made a major win on the pools or something of that sort—this is the extent of his liability. His own costs of fighting the action will be borne by the Legal Aid Fund and the defendant will be left to pay all those costs incurred by him in successfully defending the claims. In other words, the unsuccessful plaintiff has received an out-and-out grant from the state.
"But suppose the plaintiff wins, as the Legal Aid Fund claims that he does more often than not. Then a very different picture emerges. As a successful party he does not have to pay the defendant's costs, and usually the defendant will be ordered to pay his. Let him not celebrate too soon. He may find that the defendant has no money or the Legal Aid Fund may have to incur further expenses in making the defendant pay. Furthermore—and this is very important—the defendant will at best only be ordered to pay the plaintiff's taxed costs. This is almost always less than the costs which have been incurred by the plaintiff in prosecuting his case to a successful conclusion. So there will always be a shortfall which may be very large if the defendant cannot meet the order for costs or if the plaintiff failed in some subsidiary issue and has been ordered to pay the defendant's costs in fighting that issue.
"'Why worry', said the successful plaintiff to himself"—
These are the dramatic questions put by the Master of the Rolls—
"'I have my damages. I have paid my contribution to the Legal Aid Fund and the fund has met all the costs which I have incurred'. Unfortunately for the temporarily happy plaintiff, Parliament has required the defendant to pay the damages not to him but to the Legal Aid Fund. That fund is required to use his damages to pay itself back every penny of the costs which it has incurred in assisting him to fight the case. It is only after this has been done that anything that is left will he paid to him. It may be that nothing will be left, or it may only he a relatively small charge".
Before I go on with the quotation, this is what happens if you choose a plaintiff, as is so often done, who is not liable to make any contribution to the Legal Aid Fund. The quotation continues:
"In other words, for a successful plaintiff the Legal Aid Fund provides a loan, not a grant, at least to the extent that his damages are sufficient to repay the loan. Put slightly differently, every legally aided plaintiff should realise that if he succeeds in recovering more by way of damages, costs and interests than it has cost to recover them. if the money actually paid by the defendant in respect of damages, costs and interests exceeds his own costs, which is after all what he expects, he will be in no better position than an unassisted litigant.
"So let us look again at the scheme whereby the plaintiff involved in the legal action should he chosen from those who are legally assisted with nil contribution. None of them would ever get a penny piece by way of compensation. Anything which the defendants were ordered to pay in respect of his damages, costs and interests could be totally absorbed in paying their own costs. This would be a grossly unfair situation".
That is the position if you do not have a class action, for which this amendment seeks to provide, and you have what has been described as a lead action in legally aided cases. The benefit of a class action is that it enables individual claimants with a similar grievance to join together in an action where the existing rules of court would make it simply too prohibitive to pursue the claims individually.
What I plead for in this amendment is the following. As I mentioned before, permission to bring class actions would not entail legislation; it would merely entail a procedural rule. About that there is no difficulty at all. If the Committee is confronted with a difficulty as to whether an entirely individual and exceptional case would be created on our statute book, perhaps I can make the point that Section 170 of the Housing Act 1985 provides for the
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Secretary of State for the Environment to have discretion to give assistance, including advice and representation without a means test or any charge on property recovered or preserved. The proceedings in that case relate to the exercise of the right to buy.
Section 66 of the Race Relations Act 1976 and Section 75 of the Sex Discrimination Act 1975 enable the Commission for Racial Equality and the Equal Opportunities Commission to give legal assistance out of public funds to persons to pursue their rights under those Acts. Lastly, there is the Employment Bill which is still to come before your Lordships. Clause 19 gives the commissioner power to assist trade union members to take proceedings against their union. It is estimated—and I ought to point this out quite clearly—that under Clauses 18 and 19 of the Bill the cost to public funds will be £1,200,000 in 1988–89 and £1,300,000 in each of the following years.
The liability under this amendment would be considerably less. Indeed, it would be negligible. There might even be a profit by virtue of the fact that the bringing of a class action would quite obviously see to it that similar actions were not brought. The result of the class action would settle the claims of so many people, as would have happened in the Opren case, and the legal aid fund would be saved all those additional cases.
I hope that the noble and learned Lord the Lord Chancellor will not reply by saying that the matter is under inquiry and that it will require a good deal of further research. We have heard for a long time about the need for class actions. To pass this amendment will not suddenly create class actions. The procedural alteration will have to be made. Parliament, with a little foresight, will have seen to it that provision could be made in such circumstances (and has been made in such circumstances) for a necessary alteration in our procedural law. And a necessary and economic measure will have been passed. I beg to move.
The Lord Chancellor: Before the noble Lord sits down, will he be kind enough to explain how his amendment meets the difficulty for the individually legally-aided litigant to whom the Master of the Rolls referred?
Lord Mishcon: It meets the difficulty in this way. If the class action were brought and the state funded it, the same results as pertain in the present action would not have to be a burden on the legal aid fund in that one would not be choosing the person who was the poorest and who would make no contribution. In a class action one would be seeing to it that the whole of the damages awarded, if the case were successful, would be paid, and the costs therefore of all of the parties would be attributable to the gross sum of the damages. If one takes the single case, which is what the Master of the Rolls was bringing to Parliament's attention, one does not do that. The single plaintiff is awarded a single sum by way of damages and it is against the whole of that award of damages that the cost would be chargeable. In the class action the whole of the class would bring the action; the whole of the damages would be awarded on that basis; and the charge would be on a very large sum indeed.
3.45 p.m.
Lord Denning: I hope that we shall not have anything like the class action in this country. In the Opren case the award of damages ran into millions of pounds in favour of the class. After everyone had put in a claim each claimant had a share out of those millions of pounds. The difference between the United States and ourselves is this. The lawyers for the claimants there would take for themselves 40 per cent. of the damages. They are the people who would gain out of these huge sums. Let us not get into that.
Our system at the moment works perfectly well. When I was at the Bar I had a case where a number of investors had been deceived by a prospectus. They combined together contributing a small amount each and brought their action. It was settled well in our favour. Then there are the thalidomide cases. You select one, two or three cases and you have a body of supporters who are all interested. You take a leading or test case and get that decided. Then the rest follow suit. All the thalidomide children got good compensation without a class action. We know how the Burmah Oil shareholders claimed together. They did not win but they had a good case which was well supported. Our present system works perfectly well and I should not like to suggest that it is altered.
Lord Hailsham of Saint Marylebone: Whatever be the relevance of the Opren case and the difficulties to which it has given rise, I rather question whether the proposed amendment provides a relevant or suitable answer. I should like to raise with my noble and learned friend on the Front Bench some of my doubts in the matter. This is a complicated issue but I rather doubt whether the amendment is at all an appropriate remedy.
In the first place the noble Lord, Lord Mishcon, drew upon a fact which we discussed yesterday—the effect of the statutory charge upon the damages actually recovered by a plaintiff in proceedings. We discussed that matter at some length. The statutory charge in that case only provides that if a person brings an action for damages, the damages recovered or the property preserved by the litigation should be a first charge on the costs. That is simply, by analogy, an introduction into the law of legal aid of what already exists in unassisted litigation; namely, the solicitor's lien on property recovered or preserved. That has absolutely no relevance to the proposed amendment. It is something we have discussed, and I believe that the present law relating to legal aid is a perfectly just and sensible provision. Otherwise the assisted plaintiff would be in a position vastly superior to that of the unassisted plaintiff who is subject to the solicitor's lien, and the taxpayer would be considerably worse off.
The second point raised by the noble Lord, Lord Mishcon, is the Opren case in relation to the introduction of a so-called class action. This has very little relevance to the amendment itself. Undoubtedly the Master of the Rolls, who expressed quite accurately the effect of the statutory charge, raised a number of quite interesting issues where a large number of plaintiffs, as in the Opren case or in the thalidomide case, as referred to by my noble and
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learned friend Lord Denning, have a certain number of issues in common in a single product liability case. But that is not part of the legal aid business at all. We in this country, of course, can consolidate certain proceedings and in that case it may be, or it may not be, that the legal aid rules or regulations ought to be looked at from the point of view of that possibility. But the legal aid scheme itself is wholly outwith that kind of consideration.
The plaintiffs in such a case often have totally different interests at stake. For instance, some of the plaintiffs have lost relatives and are bringing their actions under the Fatal Accidents Act. What they are claiming for is the loss sustained either by the estate of the deceased or by the extent of dependency of the actual plaintiff. But again that is totally outside the legal aid scheme and their interest is therefore quite different from that of the plaintiff who claims to have been suffering from the effects of the dangerous product, whatever it may have been. It has a totally different claim or interest.
Again, the plaintiffs who claim to have been suffering from the consequences of the dangerous product also have different interests in different degrees. Of course there may be a common factor. The common factor may be that all the plaintiffs have to prove that in the first place the product was dangerous. But there are factors which are not common. In the drug cases, of which the vaccination cases, the thalidomide cases and the Opren case are perfect examples, each separate plaintiff has to prove that he has suffered from some complaint or other, and that that complaint or other is caused by the dangerous nature of the product whose qualities are in question. To try by means of this amendment to solve this particular problem seems to me to be totally inappropriate, but I speak, of course, subject to my noble and learned friend on the Front Bench.
There is a problem about a group of cases—Opren is an example—where a number of plaintiffs all make a claim against a single defendant based upon an allegation relating to the dangerousness or otherwise of the product he has sold. But that is something which, as I think the noble Lord, Lord Mishcon, acknowledged, could be dealt with in one way or another by rules of court. I make no comment upon the plea of my noble and learned friend Lord Denning that that is not necessary under our present legal system. He may well be right. But what we are considering is this amendment to the Legal Aid Bill and the question which I am raising in connection with it is the appropriateness of this amendment to cure that particular problem, if any.
In the Opren case another issue which has been very widely canvassed is involved. As part of the alleged settlement to which some of the plaintiffs in that case are parties, and some I gather are not, there was inserted by the defendant a term that the solicitors who had appeared for the in-settlement plaintiffs should never be allowed to act in future on the part of the out-settlement plaintiffs—the potential plaintiffs who are not within the settlement scheme. I question whether that is not against public policy, but that again is something which the courts would have to decide and which has absolutely no relevance to the proposed amendment.

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There is, of course, a group of plaintiffs who have lost relatives and they raise a totally different question in the Opren case, on which I have strong opinions but on which other people have not. But in, I think, American law and in some other systems one is given damages against a negligent defendant for the grief one suffers as a result of bereavement. I speak as one who has lost a close relative in a case in which I felt very deeply. But what kind of money would I have asked for in compensation for that grief? I would have asked for nothing whatever, but had I had a case in negligence, would I have asked for £10 or £10 million? I would rather have had my wife back.
Lord Ackner: There are real problems in this field and I do not think they can be skated over in the way in which they have been. May I refer to two of them? If you have a large number of people involved in the same type of claim, their damages will be different but the common issue will be "Can you establish liability?"
Let us assume that in the case of one individual his damages, if he succeeds, will be modest. The case is a very complicated one, as I can indeed confirm was the case with the thalidomide children because I acted on behalf of the first 60 in their proceedings. If you take the one case, that person carries on his own shoulders all the ultimate liability for a charge on what he recovers. In the course of those proceedings every step that he takes which is in the interests of the class may not be successful.
He may make a request for discovery which is refused and costs are ordered against him. He may go to the judge in chambers on an appeal and he may lose. But all of this is essential in order properly to prepare the case which is vital for Lie class. So, inevitably, in the course of a complicated case there will be an amount of costs which he does not recover from the other side, because in every step he takes in the course of such a complicated case he cannot be guaranteed success.
The net result at the end of the day is that he recovers his £5,000 subject to the charge and the charge can be as great as, if not more than, £5,000. So he has had, no doubt, the inestimable pleasure of mounting a crusade on behalf of all the other class but he gets nothing in return.
What is required simply to meet that particular point is that in a class action there should be no charge on the amount recovered. The advantage to the public purse—which is a phrase that we have heard so repetitively throughout the debates on this Bill, and which we shall no doubt hear a great deal more—is being protected because it is cutting down the number of proceedings.
The second point is this. Indeed we had this problem in practice in the thalidomide case. We took two cases at either end of the spectrum of damages. If we had fought our way through—assuming that we had, and it is fanciful because I am sure we would not have done so—and established liability, that would bind nobody except the two parties to the proceedings and the defendant. If the defendant had been disappointed with the action, with the competence of his counsel, with the misfortune of the
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particular judge who tried it, or whatever it may be, he might say "Very well, I shall fight the next case."
If the other members of the class, on whose action one cannot bring proceedings under legal aid, had been disappointed with what the other two had received, they would have said, "Very well, we will go on." Maybe the legal aid authorities might have supported them—maybe not. Maybe it would have been done on a speculative basis. But it is an established principle and well recorded in Latin, which I shall not seek to pronounce, that it is in the interests of the public that there should be an end to litigation. That is why there are class actions and that is why there is a lacuna in the legal aid system which does not permit one. I therefore support the amendment.
4 p.m.
Lord Campbell of Alloway: As the noble and learned Lord, Lord Ackner, has just stated, the amendment does not deal with the charge. The main problem is that there should be no charge on the amount recovered. The amendment seeks to deal with the offer of representation. It is a misconception to think on the aspect of the offer of representation, which is different from the charge, that legal aid cannot cope with the situation as envisaged by the amendment.
I must here declare an interest because I have been, and still am, instructed in certain of these vaccine-damage cases. They are all legally aided and most of them with a nil contribution. A lead case was selected. It has been proceeding for two or three months and should come to an end soon. It is on product liability, as mentioned by my noble and learned friend Lord Hailsham. The question is: can the vaccine cause brain damage? Liability is of course tied up in that determination. To that extent, the legal aid authorities, having the governance of the situation, can produce a result and seek to curtail the ambit of litigation; bring litigation to an end; or enable a settlement to ensue.
The amendment does not go the root of the problem, as identified by the noble and learned Lord, Lord Ackner, and so it seems unnecessary to deal—I say this with the greatest respect—with the selection of the lead case on legal aid, as is proceeding with the vaccine-damage cases. Therefore one wonders what it achieves. It has been stated that in a class or representative action representation should be offered with financial resources being taken into account. In effect that means nothing because in many such cases there are nil contributions. If they were taken into account in such a case, would there be any injustice? If one goes to the root of the evil one deals with the charge and the amount recovered, which, as I understand it, is not in the ambit of the amendment.
Lord Hooson: I entirely agree with the views expressed by the noble and learned Lord, Lord Ackner. There is a lacuna in the law or in the provisions for testing, in the interests of the community, the matters that he has described. The noble and learned Lord, Lord Hailsham, overemphasised the differences and underestimated

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the common factor in the thalidomide cases and other such actions.
The noble and learned Lord, Lord Ackner, was correct when he said that the common factor in the case (whether one can prove liability) overrides the differences. Whether it is a fatal accident action or an action for damages for personal injury pales into insignificance as those actions concern only the assessment of damages, whereas the proving of liability is an important matter.
The point raised by the noble Lord, Lord Campbell of Alloway, dealt with—
Lord Hailsham of Saint Marylebone: Perhaps I may interrupt at this stage. I apologise for so doing. When the noble Lord, Lord Hooson, reads Hansard tomorrow I think he will see that 1 identified the common question that exists in these cases which is to prove whether the product in question is, or is not, capable of causing damage. I thought I said that explicitly. However, if I did not I was guilty of a great error.
Lord Hooson: I accept that the noble and learned Lord said that, but he overemphasised the differences, as I understood him, in his argument against the amendment. I come back to the point raised by the noble Lord, Lord Campbell of Alloway. It was a point of detail. If it is necessary to deal with the charge that can be made with regard to legal aid, there can he another amendment. This is a question of principle. There is a gap in the law. How can an important factor that governs the lives of many members of the community be expeditiously and economically dealt with on behalf of that community? There is an overwhelming case for a class action. I am not sure that the amendment properly deals with this issue. But on the question of principle, I entirely agree with the noble Lord, Lord Mishcon. Should it be necessary to improve or change the amendment on Report, so be it. The noble and learned Lord, Lord Ackner, presented me with an unanswerable case on the principle of the amendment.
Lord Campbell of Alloway: If we close the gap, as proposed by the amendment, where do we go if we do not accept the principle suggested by the noble and learned Lord, Lord Ackner? It does not deal with the essence of the injustice.
Lord Hooson: With the greatest respect to the noble Lord, I think that that matter can be dealt with at a later stage.
Lord Lloyd of Hampstead: I sympathise with the objectives of the amendment, urged with his customary eloquence by the noble Lord, Lord Mishcon. However merely to try slightly to modify the law of legal aid is not an adequate way to cope with the problem. There is no doubt that there is a substantial lacuna in our law, long recognised, and one which is dealt with comprehensively in modern American law by the so-called class action. In this country we have only two ways of coping with the situation. One is by means of a test action, and the other is by a representative action. But without going
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into any detail, which would be entirely inappropriate now, both those systems are unsatisfactory inasmuch as they have considerable limitations.
Once one introduces the class action into our system one is faced with the considerable problem of how to deal with the costs. One must remember that in America the matter is greatly simplified because they do not have orders for costs; each side pays its own costs. That opens itself to a system of which few of us approve in principle; that is, contingency fees. There is a complex problem here which needs to be tackled. One hopes that this is the kind of problem on which one might look for assistance from the two law reform commissions which could go into the whole matter to see how it can be dealt with.
With all respect to the gallant effort made by the noble Lord, Lord Mishcon, to introduce some temporary palliation in the light of the Opren and other similar cases I do not think that this is an adequate way to cope with the problem. However, it may lead to an indication from the noble and learned Lord the Lord Chancellor that he regards this as a lit and proper topic to refer to the Law Commission and the Scottish Law Commission. If so, there would perhaps be the hope that in a reasonable space of time we might be presented with a thoroughgoing, carefully considered and balanced solution such as we have learnt to expect with gratitude from those two admirable commissions.
The Lord Chancellor: I am grateful to all noble Lords and noble and learned Lords who have taken part in this discussion. I am bound to say at the outset that I do not understand that this amendment addresses the difficulty to which the noble Lord, Lord Mishcon and the noble and learned Lord, Lord Ackner referred. It is normally my privilege to understand very well what the noble and learned Lord, Lord Ackner, says. I can follow his argument extremely well; the same is true with regard to the noble Lord, Lord Mishcon. But on this occasion I very much regret that I cannot see how the amendment begins to address the only problem in relation to this matter which they have brought to our attention.
All the amendment does is to say that the representative in a class action, whatever that may be, or a representative action, shall be entitled to the benefit of representation, or may be entitled to the benefit of representation, without his means being assessed. If he has means which are beyond the liability limits, that would be of benefit to him. I can see that. However, it is usually easy, as the noble Lord, Lord Mishcon, says, if I have his words right. One normally chooses a plaintiff who is not liable for any contribution. That is usually a wise thing to do. If there are a number of people in this position, one normally chooses the person with the least means because he is putting least at risk. As far as I can see, it does not help to have the suggested provision at all.
1 find it very difficult to be in a position where I cannot understand how the amendment in any way addresses the problem referred to. I am not at all in the business of suggesting that there is no problem. There are quite a variety of problems in this area, as

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the noble and learned Lord, Lord Ackner, with his experience of the thalidomide case, mentioned. There were problems in other cases referred to particularly by my noble friend Lord Campbell of Alloway and other noble Lords. There are great difficulties in some of these actions. The Opren case is one which is still to some extent current, so I should be careful what I say about it although noble Lords are entitled to talk about it in relation to legislation because they are not subject to the restrictions of the sub judice rule in parliamentary proceedings. However, it is right to be careful what one says about it.
It is the type of case in which a number of people have taken a particular drug. Not all, hut, I think, many of those who took the drug, have, following the taking of it, suffered various unpleasant things such as photosensitivity, damage to fingernails and a whole variety of results. There is a very considerable question which obviously involves complicated scientific assessment as to whether any of the consequences were due to the taking of the drug. The fact that, let us say, the loss of the fingernails was attributable to the taking of the drug does not by any means establish that photosensitivity is a consequence of taking the drug and so on. So the Opren case is complicated in that way.
The causation is not necessarily the same question. The question of causation is not necessarily the same in relation to each of the plaintiffs. There are similar cases in that respect; for example, actions involving the loss of an airliner or something of that kind. The consequences are in very general terms the same for all the people involved. The question is whether there was some defect in the operation, design or maintenance of the airliner.
However, so far as I have been able to understand, one of the principal difficulties of the Opren case which arises and can arise in any big case is that the costs of investigating the matter and establishing the causation would be very large in relation to the amount of damages which would be recovered, particularly in this country where the damages sought to be recovered are related to death. That is where it is the death of a relative which is in issue, as my noble and learned friend Lord Hailsham said. If there is any cost left over, it will swallow up that sum of damages.
I think, in the thalidomide cases, the damages awarded to individual plaintiffs would be very considerably larger than the damages in the Opren case. It does not completely remove the problem but to some extent it mitigates matters. If the costs to be collected are out of a large sum, there may be a greater readiness to bear that than otherwise.
The question really is whether there should be special arrangements in relation to costs in a representative action. Representative actions have been known to the procedural law of England and Wales for a long time. There is a present Rule of Court—Order 15, Rule 12 of the Supreme Court Rules—which talks about representative actions. I am not sure whether class action referred to in this amendment is intended to be another name for the same thing or something different. If it is something
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different, I am not sure what it is. No doubt in due course we shall be enlightened as to what is the distinction between a class action and a representative action.
So far as this case is concerned, perhaps I may concentrate on the representative action. Rule 12 provides:
"Where numerous persons have the same interest in any proceedings"—
and I miss out an exception which does not concern the Committee—
"the proceedings may be begun and, unless the Court otherwise orders, continued by or against any one or more of them as representing all except one or more of them".
In other words, the court makes an order, as I understand it— and those noble Lords who are more familiar with the procedural law of England and Wales than I will correct me if I am wrong—that one or possibly more than one plaintiff will be allowed to proceed. These cases will be held to test the whole of the area and then the results will be applied in the rest of the group whose cases are representative.
It seems to me a very good arrangement, if I may say so respectfully, avoiding a multiplicity of proceedings. I think this is the same principle that my noble and learned friend Lord Ackner referred to as covered in the Latin expression. That situation is one in which it may well be that problems will arise about costs. The courts have sometimes found ways of dealing with that. But these problems arise for plaintiffs who are wealthy as well as for those who are of small or modest means.
The noble Lord, Lord Lloyd of Hampstead, is surely right that the problem is one of fundamental procedural law. Are you going to have class actions? As many noble Lords know, the point has been discussed frequently in this country. So far, Order 15, Rule 12 are the order and rule which have been made relating to it. The question of whether the class action from America should be imported is very difficult because one of the basic conditions under which the class action has prospered is that there are no awards of costs. Therefore this problem on which noble Lords have focused this afternoon does not arise and there is no need to deal with it.
However, in our system, generally speaking, costs are awarded, although I think I am right in saying that in test cases sometimes even if the defendant succeeds he may not be entitled to his expenses against the plaintiff if he has an interest in having the whole matter settled in a representative way. However, these are very fundamental questions of procedural law and it does not appear to me that they are matters which can be settled by an amendment of any kind in the Legal Aid Bill.
On the other hand the provisions of legal aid are that what may be appropriate would have to depend on what was decided in relation to such actions. So it would he putting the cart before the horse to make provision in the Legal Aid Bill for dealing with class actions when class actions or the procedures and conditions under which they should operate have not been introduced into the procedure.
Even if it were possible to introduce such an amendment to deal with the problem, it certainly

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seems to me, with the greatest possible respect to those who have supported the amendment, that this amendment does not address the problem at all. As I said, I appreciate that there is a problem and I have given some thought to it since this amendment was produced. This particular point was addressed for the first time in this amendment and the amendment was tabled fairly recently. I make no complaint about that except to explain why in a way it requires more thought than I have yet been able to give it. It occurs to me as a possible way of dealing with this matter that it might be provided that the Legal Aid Board should have the option in some circumstances of entering into contract to provide representation outside the immediate confines of the civil legal aid restrictions by means of solicitors and possibly entitle the solicitors to instruct counsel on behalf of groups of this kind. It might perhaps be wise to have a more general provision of that kind because it may well be that if one can achieve unity of representation in a case where there is no conflict of interest a lot of expense will be saved.
That seems to me to be a possible way of dealing with this matter and it may well be that joint representation would result in the costs also being borne jointly. If one divides such a burden at least one is effecting some improvement. It may be very difficult to say that one should make a law to prevent drug companies from recovering their costs, for example, when other people obtain theirs. It would be very difficult to frame a particular exception of that kind.
Those Members of the Committee who were here last week will remember that the noble Baroness, Lady Ewart-Biggs, asked a Question relating to another problem in connection with a contraceptive device which was found to be injurious to the ladies who wore it. In that case there arose a similar problem to the one we are discussing. It had nothing to do with drugs at all. I believe the device was called some kind of a shield. There were very serious consequences. Problems and difficulties of separation have arisen. Some of the women claimed in time but a lot of them claimed out of time, which seems unfortunate. There are many problems in relation to this particular kind of case which are very hard to encompass in the Legal Aid Bill.
Only this morning I read correspondence from a Member of another place which suggested to me that the class action may not be an unmixed blessing. One of that Member's constituents lost her husband in a disaster in the North Sea. The disaster is the subject of litigation in America by way of a class action. So far as I have been able to understand the facts—the Committee will recognise that that is quite a severe limitation on what I am saying—that lady has not as yet recovered anything and was anxious to take proceedings in this country having waited as long as she has for anything to happen. But it appears to be difficult to withdraw from the class action. She is caught by it and it is difficult for her to withdraw and take proceedings in this country as apparently at the present time she would like to do. I do not know the full detail of that case but I know enough to suggest to me that careful consideration would be required
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before one became involved in the detail of this class action.
I am certainly very open to the kind of suggestion that has been made by the noble Lord, Lord Lloyd of Hampstead, if that were to commend itself to the Committee. I should also like to develop a bit further the thinking along the lines that I have expressed myself, which I had considered as endeavouring to meet the point. The noble Lord, Lord Mishcon, said that he did not wish me to suggest an inquiry. I had some suspicion that that might be his attitude and therefore I wanted to come forward if possible with a reasonably constructive suggestion of my own. That is what I have tried to do, but I am certainly very open to suggestions such as the noble Lord, Lord Lloyd of Hampstead, has made. I certainly could not advise the Committee to accept this amendment, principally for the reason that it does nothing to help the problem which it is supposed to address so far as I can understand it.
Lord Mishcon: If the last sentence which the noble and learned Lord uttered were to be correct and I could see the force of it I should not be wearying the Committee with a reply but I am afraid that I cannot accept what he has said. Going backwards over the noble and learned Lord's remarks I wish to say with all humility, as I do not in any way pretend even to be an expert upon English law and procedure let alone upon American law and procedure, that at the present moment I do happen to have precisely the problem with the class action that the noble and learned Lord mentioned. One can always withdraw from a class action in the United States, I am advised, by agreement with the defendants if one is a plaintiff or otherwise by leave of the court. I throw that point out for what it is worth because it entails no disadvantage at all. Precisely the same situation might well apply in our courts except of course that one can always serve notice of discontinuance of proceedings with the resultant effect on costs which is not necessarily applicable in the United States.
I shall deal with the remarks which always command respect when they fall from the lips of the noble and learned Lord, Lord Hailsham of Saint Marylebone. Perhaps I may say at once that I support the point that the Committee may have felt there were grave difficulties in the way of a class or representative action because of the multiplicity of the bases of the claims of various plaintiffs. A great part of the noble and learned Lord's speech was directed to that. I at once concede that he dealt with the issue of liability where there could be some difference in the claims. The answer is that, if there is a difference, those people who have a difference from the majority would not be joined in the class action.
As has been said by the noble Lord, Lord Hooson, and others—certainly by the noble and learned Lord, Lord Ackner—the main thing that one ever deals with in a class action of the type referred to in this amendment, or in a representative action, is the issue of liability. Once liability is settled it passes in a very easy way, either to a master or a judge, or whoever it may be, to be dealt with as regards the amount of the damages that flow to each claimant. If I may say so, there is really nothing in that point.

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I would have conceded at once to the noble and learned Lord that much of what he said was material and, as always, had to be answered because it was based upon sound reasoning. But if he in his kindness and the other Members of the Committee would look at the wording of the amendment they will see that the word is not "shall" but "may" in the second line:
"A person who is nominated to be the plaintiff or defendant in a class or representative action may be offered representation".
That is exactly what the noble and learned Lord was saying would he likely to be a useful provision. That is exactly what we offer; namely, that the board could say in any proper case, "It will save a lot of money and a lot of litigation; we have the power to do it and we shall do it". It is not mandatory in any way. In my humble submission, the amendment does exactly what the noble and learned Lord thinks will be useful.
4.30 p.m.
Lord Hailsham of Saint Marylebone: Perhaps I may interrupt the noble Lord. He puts his case very reasonably. However, it does nothing whatever to solve the problem of the charge. If the plaintiff is a man without means or a man of heavy means and he is given the chance of legal representation by way of legal aid without regard to his means, that does not alter the problem of the charge which was dealt with both by myself and by my noble and learned friend Lord Ackner. I argued that the amendment is far too simple and that it will not solve the problem.
Lord Mishcon: I have listened to the noble and learned Lord with deep respect. I know that he always listens to all Members of the Committee with great courtesy. I promise him that I shall deal with that very point; I had not reached it yet. He will find, when I reach that point, that I come in a not entirely white sheet. I shall admit that.
I turn to the noble and learned Lord, Lord Denning. He is listened to with respect. However, if I may say so, he must not start talking about lawyers taking a percentage of costs in group or representative actions. He knows as well as 1 do that contingency fees are not permitted in this country to either branch of the profession. Until they are permitted—I shall regret that day—that is not a valid point to make.
Lord Denning: Perhaps I may interrupt the noble Lord. I did not say that it operated in England and Wales, and I do not want it to operate here. That was simply my comment on the Opren case in America.
Lord Mishcon: Thank goodness there are differences. I am sure that America has advantages over us in some respects and that we have advantages over America in others. However, I am dealing with English law and procedure. The Committee should not be put off the trail by a reference to contingency fees which do not apply, as the noble and learned Lord well knows.
I turn to deal directly with the point made by the noble and learned Lord, Lord Hailsham. As one would anticipate, when the noble and learned Lord,
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Lord Ackner, rose and delivered a short and effective speech he made my case for me with much more eloquence and good sense than I made it myself. I freely acknowledge that. He brought to the Committee not only a wealth of experience and learning; he also said that the need for legal aid to be dealt with in the way suggested in the amendment was obvious because it avoided a multiplicity of litigation and also because the test action was no test action at all unless it was agreed by the defendants that the action would determine liability.
Lord Hailsham of Saint Marylebone: And each potential plaintiff.
Lord Mishcon: The noble and learned Lord makes an intervention which is extremely useful and which is meant to be helpful. I am grateful to him. That argument is unanswerable. However, I do not come before the Committee in a white sheet on this point. Obviously the question of the charge must follow the logic of the case for the amendment. There is not the slightest doubt that if 1 had done a thorough job with those who are very concerned within the profession that the amendment should be passed, I would have added a provision, as I meant to do in the argument which I am advancing to the Committee, that when such legal aid is granted the legally assisted person in whose name the class action is being conducted should not he subject to the legal aid charge in respect of costs incurred by him for the class action. That was part of my brief and I disclose that brief to the Committee. I concede at once that the noble Lords who pointed that out to me with great courtesy are absolutely right.
However, at Committee stage, having shown to the Committee the spots upon my sheet, perhaps I may say that we are supposed to be dealing with matters of principle. The matter of principle is absolutely clear. There is a need. When I look at the noble and learned Lord, Lord Denning—with affection, may I say at once—I find it extremely interesting, if only from the point of view of the personalities in the great profession of the law, that the current Master of the Rolls is saying that that is something which obviously ought to be looked at and that there is something wrong with the present system, while his immediate predecessor says, "I think it is a load of nonsense; you have no reason to look at it". It makes for interesting judgments which I shall not seek to pursue.
The noble and learned Lord, Lord Ackner, has said, with all the weight which he brings to an argument and debate, that that is a necessary matter to procure by way of amendment.
Before I sit down, I must take up the challenge of the noble and learned Lord the Lord Chancellor, who asked me whether the present rule in regard to representative actions was not sufficient. I shall return to that point. However, I say to the Committee that we are dealing with a principle. Perhaps the Committee can accept from me that inherent in the amendment was the exemption from the charge in regard to an approved case where the Legal Aid Board has said, "This shall happen. This is a class or representative action and we want to support it for good reasons". On that basis, I feel that I am putting the case perfectly properly at Committee stage.

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I now turn to the question asked by the noble and learned Lord the Lord Chancellor. That was a perfectly fair question. He said, "Please tell my why, under Order 15, Rule 12, you cannot bring the sort of action that you have in mind". I am advised, on very reliable authority and with very good opinion, that when the Consumer Protection Act 1987 and the Landlord and Tenant Act 1987, for example, come into operation, there will be cases where a number of consumers or tenants can band together to take proceedings against a manufacturer or a landlord. At the present time, those proceedings cannot be instituted as group proceedings under Order 15, Rule 12 of the rules of the Supreme Court. Even if the rules are amended, the problem obviously remains as to how such actions can be financed if we do not deal with the matter as provided for in the amendment.
The Lord Chancellor: I do not wish to interrupt the noble Lord. However, I may not have put my question as accurately as I should like. I well understand the restrictions held in the authorities to apply to Order 15, Rule 12. The point I am trying to make is that he refers in his amendment to a class or representative action. I want to know what action it covers, other than the action in Order 15, Rule 12 of the orders of the Supreme Court. I wish to know how such an action is to be defined.
Lord Mishcon: I have received a reminder which removes all the spots from the white gown that I am supposed to wear when I appear before the Committee. I am reminded that my name is attached to Amendment No. 36A. I take the liberty of reading it even though it has not been reached. It says:
"A person who is granted legal assistance under the provisions of section 14(7) shall not be liable under those regulations to make a contribution to the Board in respect of the cost of the representation under this Part".
The amendment of course proposes to incorporate Section 14(7). I should have realised that it was my job to link Amendment No. 36A with my remarks to the Committee on this amendment. I claim leave to be able to do so in order that the amendment may be put.
Lord Hailsham of Saint Marylebone: With the greatest respect to the noble Lord, Lord Mishcon, even that does not remove the point that I made to him in interruption a moment or two ago. Amendment No. 36A deals with contribution; it does not deal with the effect of the charge on damages recovered, unless I am entirely mistaken. I should like to be corrected if I am wrong.
Lord Mishcon: If there is a nil contribution, I agree that it does not automatically refer to the charge. In regard to that, I say to the Committee only that I was reminded of Amendment No. 36A. It deals with the question of the contribution, not the charge. As I said before, I admit that in my brief as it should have been there would be reference to the charge not being applicable to a case where the board admitted under its discretion a class or representative action to come within the suggested amendment. I ask for the principle to be looked at on that basis. If the principle
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is admitted I undertake at a subsequent stage of the Bill to see that the matter is put right.
3.42 p.m.
On Question, Whether the said amendment (No. 34C) shall be agreed to?
Their Lordships divided: Contents. 96; Not-Contents, 152.

DIVISION NO. 1

CONTENTS

Ackner, L.

Jeger, B.

Airedale. L.

Kilbracken, L.

Ardwick, L.

Kilmarnock, L.

Attlee, E.

Kinloss, Ly.

Aylestone, L.

Listowel, E.

Banks, L.

Lloyd of Kilgerran, L.

Basnett, L.

Lockwood, B.

Blackstone, B.

Longford, E.

Blease, L.

Lovell-Davis, L.

Bonham-Carter, L.

Mackie of Benshie, L.

Brooks of Tremorfa, L.

McNair, L.

Bruce of Donington, L.

Mar, C.

Callaghan of Cardiff, L.

Mason of Barnsley, L.

Carmichael of Kelvingrove, L.

Meston, L.

Carter, L.

Milford, L.

Chitnis, L.

Mishcon, L.

Cocks of Hartcliffe, L.

Molloy, L.

Craigavon, V.

Mulley, L.

David, B.

Murray of Epping Forest, L

Davies of Penrhys, L.

Nicol, B. [Teller.]

Dean of Beswick, L.

Oram, L.

Diamond, L.

Peston, L.

Dormand of Easington, L.

Phillips, B.

Elwyn-Jones, L.

Pitt of Hampstead, L.

Ennals, L.

Ponsonby of Shulbrede, L. [Teller.]

Falkender, B.

Falkland, V.

Prys-Davies, L.

Fisher of Rednal, B.

Ritchie of Dundee, L.

Fitt, L.

Robson of Kiddington, B.

Foot, L.

Seear, B.

Gallacher, L.

Sefton of Garston, L.

Galpern, L.

Shannon, E.

Glenamara, L.

Silkin of Dulwich, L.

Graham of Edmonton, L.

Somers, L.

Grey, E.

Stallard, L.

Grimond, L.

Stedman, B.

Hanworth, V.

Stewart of Fulham, L.

Hatch of Lusby, L.

Stoddart of Swindon, L.

Hayter, L.

Strabolgi, L.

Henderson of Brompton, L.

Taylor of Gryfe, L.

Heycock, L.

Taylor of Mansfield, L.

Hooson, L.

Tordoff, L.

Houghton of Sowerby, L.

Turner of Camden, B.

Hughes, L.

Underhill, L.

Hunt, L.

Wallace of Coslany, L.

Hutchinson of Lullington, L.

Wells-Pestell, L.

Ilchester, E.

Winchilsea and Nottingham, E.

Jacques, L.

Jay, L.

Winstanley, L.

NOT-CONTENTS

Ailesbury, M.

Blatch, B.

Ailsa, M.

Bledisloe, V.

Airey of Abingdon, B.

Boyd-Carpenter, L.

Alexander of Tunis, E.

Brabazon of Tara, L.

Allenby of Megiddo, V.

Brightman, L.

Allerton, L.

Brougham and Vaux, L.

Arran, E.

Broxbourne, L.

Auckland, L.

Bruce-Gardyne, L.

Barber, L.

Butterworth, L.

Belhaven and Stenton, L.

Caithness, E.

Beloff, L.

Campbell of Alloway, L.

Belstead, L.

Campbell of Croy, L.

Benson, L.

Carnegy of Lour, B.

Bessborough, E.

Carnock, L.

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Chelmer, L.

MacLehose of Beoch, L.

Clifford of Chudleigh, L.

Macleod of Borve, B.

Coleraine, L.

Margadale, L.

Constanline of Stanmore, L.

Massereene and Ferrard, V.

Cork and Orrery, E.

Merrivale, L.

Cottesloe, L.

Mersey, V.

Cowley, E.

Middleton, L.

Craigmyle, L.

Milverton, L.

Craigton, L.

Monk Bretton, L.

Cranbrook, E.

Montagu of Beaulieu, L.

Croft, L.

Montgomery of Alamein, V.

Croham, L.

Morris, L.

Cullen of Ashbourne, L.

Mottistone, L,

Davidson, V. [Teller.]

Mowbray and Stourton, L.

Deedes, L.

Munster, E.

Denham, L. [Teller.]

Murton of Lindisfarne, L.

Denning, L.

Nelson, E.

Dundee, E.

Newall, L.

Elibank, L.

Nugent of Guildford, L.

Ellenborough, L.

O'Brien of Lothbury, L.

Elliot of Harwood, B.

Onslow, E.

Elliott of Morpeth, L.

Orkney, E.

Elton, L.

Orr-Ewing, L.

Erne, E.

Oxfuird, V.

Erroll of Hale, L.

Penrhyn, L.

Faithfull, B.

Peyton of Yeovil, L.

Ferrier, L.

Polwarth, L.

Fortescue, E.

Porritt, L.

Fraser of Kilmorack, L.

Prior, L,

Gisborough, L.

Rankeillour, L.

Glenarthur, L.

Reay, L.

Gray, L.

Renton, L.

Greenway, L.

Rochdale, V.

Gridley, L.

Rodney, L.

Haig, E.

St. Aldwyn, E.

Hailsham of Saint Marylebone, L.

St. Davids, V.

St. John of Fawsley, L.

Harmar-Nicholls, L.

Salisbury, M.

Harvington, L.

Saltoun of Abernethy, Ly.

Havers, L.

Selborne, E.

Hesketh, L.

Selkirk, E.

Hirshfield, L.

Simon of Glaisdale, L.

Hives, L.

Stodart of Leaston, L.

Home of the Hirsel, L.

Strathcarron, L.

Hood, V.

Strathcona and Mount Royal, L.

Hooper, B.

Hunter of Newington, L.

Strathspey, L.

Hylton-Foster, B.

Sudeley, L.

Johnston of Rockport, L.

Swansea, L.

Joseph, L.

Teynham, L.

Kaberry of Adel, L.

Thomas of Gwydir, L.

Kearton, L.

Thorneycroft, L.

Knights, L.

Thurlow, L.

Lane-Fox, B.

Trafford, L.

Lauderdale, E.

Trumpington, B.

Lindsey and Abingdon. E.

Ullswater, V.

Lloyd of Hampstead, L.

Vaux of Harrowden, L.

Long, V.

Westbury, L.

Lucas of Chilworth, L.

Wilberforce, L.

Luke, L.

Windlesham, L.

Lyell, L.

Wyatt of Weeford, L.

McFadzean, L.

Young, B.

Mackay of Clashfern, L.

Ypres, E.

Resolved in the negative, and amendment disagreed to accordingly.
4.51 p.m.
Lord Mishcon Lord Mishcon moved Amendment No. 35:
Page 11, line 44, at end insert—

("(a) any contribution payable out of capital to be paid forthwith if the sum is readily available or, if it is not, by such time as seems reasonable in all the circumstances; and

(b) any contribution payable out of income to be paid by instalments at a rate which would, if the maximum contribution from income was required, secure that it would be paid within the twelve months next ensuing, or within the period in relation to which the disposable income has been computed, whichever is the later.").

The noble Lord said: This amendment provides that
"any contribution payable out of capital to be paid forthwith if the sum is readily available or, if it is not, by such time as seems reasonable in all the circumstances".
Then there is this important part of the amendment to which I direct the attention of the Committee:
"any contribution payable out of income to be paid by instalments at a rate which would, if the maximum contribution from income was required, secure that it would be paid within the twelve months next ensuing, or within the period in relation to which the disposable income has been computed, whichever is the later".
I can tell the Committee the object of the amendment in one sentence. It is to enable the assisted person to know at the very commencement of undertaking liability exactly where he or she stands.
Perhaps I may trouble the Committee with a little history and the reason for this amendment. Clause 15 of the Legal Aid Bill confers powers on the Lord Chancellor to make regulations making a legally-aided litigant liable to pay a contribution in respect of the cost of representation. That power exists already in Section 9(1) of the Legal Aid Act 1974. That defines how the total amount of the contribution shall be calculated. Regulation 44 of the general legal aid regulations of 1980 specifies that the contribution payable out of income should be paid over a period of not more than 12 months.
The Bill removes the current restriction on the upper limit of a contribution contained in Section 9(1) of the Legal Aid Act 1974. What worries me, those who sit with me, and I hope many others, is the recommendation at paragraph 44 of the legal aid White Paper. That proposes that monthly contributions to civil legal aid should continue to be paid throughout the length of the case. We can only conjecture that this means that litigants will be paying different amounts for their legal costs, not according to their means or ability to pay, but related to how long it takes to get the case dealt with by the court.
Anyone who has had any experience of litigation will know that if one is a defendant one is very much dependent upon the speed with which the plaintiff moves. If one is either plaintiff or defendant one very often has to depend upon the speed with which one's solicitor or counsel may move. Furthermore, whether one is a plaintiff or a defendant, the length between the institution of proceedings and the hearing date may depend upon the state of the court list in which one happens to have one's case listed. That is a completely indeterminate and, the Committee may feel, a completely unfair basis upon which to judge the period of contributions if they are to continue for that length of time.
I could go on to give other examples of the injustice. However, I think that it would be an insult to the Committee's powers of imagination to take it for granted that Members cannot imagine the number of factors that determine how long a case may last. Noble Lords may consider that justice is obtained where the litigant says this. "Thank you for the advice you have given me. You have told me I have a good case. I do wish to bring it but I shall not do so if that gets me into financial trouble. I can work out what my income and expenditure will be with

109
rather greater assurance than Mr. Micawber was able to do. I can say that I can meet this liability by monthly payments over the next 12 months. But if you tell me that I have some kind of indeterminate period over which I am supposed to find money, I am afraid that that is something I cannot undertake and although you have told me that I have a good case I had better not bring it, or I had better not defend it."
I do not know what was wrong with the old rule of 12 months, the determinate payments, and the knowledge of the prospective assisted litigant about the commitment. It is for exactly the same reason that when there is a capital sum to be paid the amendment provides that either it should he paid forthwith or within a reasonable time so that again the assisted litigant knows exactly where he or she stands. There is a commitment to pay that sum by a given date; it can be afforded; it can be dealt with, and it can he budgeted for.
Those are the reasons for the amendment. Naturally if in the course of the Committee's discussion any matters should arise on it to which I can address myself in reply I most certainly shall. I beg to move.
Lord Renton: It seems to me that the case put forward by the noble Lord, Lord Mishcon, is sound in its merits. However, the question arises: is it a fit subject for legislation? The discretion that will be exercised by the board is plainly stated in Clause 15(3) to which the noble Lord referred. I should have thought that the only extra factor that arises on discretion is the time factor to which the noble Lord very properly and fairly referred. But is that matter not better dealt with by the rules of court? I should have thought that for us to go into this detail on legislation was unnecessary especially when rules of court would be available to achieve the purpose.
5 p.m.
Lord Mishcon: I referred to Regulation 44. That regulation stipulates that the contribution payable out of income is to be paid over a period of not more than 12 months. Why alter that?
Lord Renton: I was going on to say that in framing rules of court what the noble Lord has said is sensible and should be borne in mind. If any further amendments to existing rules are needed, let that be done at the same time.
Lord Ackner: I rise to support the amendment out of the sense that it may cause unfairness unless there is an assurance that what the noble Lord fears will not take place. I have an impression, though I may be quite wrong, that the White Paper foreshadows that this is the type of order that might be made. It could work unfairly in many respects. Let me suggest one or two. A case may start with all proper expedition, get into court, then it is heard that there is judgment pending in the same type of action and therefore it had better be adjourned. It is adjourned, judgment is given and notice of appeal is immediately entered. Again it has to delayed. It may even go to the House of Lords. Such a delay is totally unattributable to the parties or their solicitors, a delay which may involve
110
a legally aided litigant, who ex- hypothesi has a good, arguable case, saying "1 am sorry. I cannot afford to go on making contributions month in month out". In another case it may be decided that the best course is to decide liability first and then quantum of damages if it is appropriate. That will cause delay in the ultimate decision.
I should be happy not to be associated with the amendment if we receive some form of assurance, contrary to the impression I received from a very quick reading of the White Paper, that this is not envisaged.
Lord Campbell of Alloway: I agree with my noble friend Lord Renton that the principle of the amendment is entirely sound, but it rather pre-empts the regulations. It would be more appropriate, surely, that a provision of this detail should appear in secondary legislation rather than in primary legislation. But the noble and learned Lord, Lord Ackner, as always, does a signal service in underlining the merits involved. The hope must he that some form of assurance will be given.
Lord Renton: I referred to rules of court, but of course regulations would be a perfectly sensible and in the circumstances perhaps a more suitable way of doing it.
The Lord Chancellor: Clause 15 establishes that the legally-aided person may be required to pay a contribution towards his legal aid, if he is assessed as eligible to do so. The clause then allows the financial arrangements relating to contributions to be set out in regulations. This seems the most sensible way to proceed when dealing with such detailed matters as these.
I agree with my noble friends Lord Renton and Lord Campbell of Alloway about that. However I do not disguise the fact that, as the White Paper foreshadows what is intended, the regulations will require the assisted person to pay the income contribution for which he is assessed for as long as the case lasts. It is important to remember that there are two distinct contributions: first, the capital contribution. There is no difficulty envisaged between us at this stage about that. In addition to the capital contribution, a prospective litigant applying for legal aid will be assessed in respect of income. The income he will be assessed upon will have regard to his other commitments considered in the regulations, and that will determine the contributions that he will be required to pay towards the case.
Of course it is obviously in the interests of the person paying that he should pay as little as possible. If we could have a system under which he paid just one month's contribution that would be much better for him. On the other hand if we are trying to finance a system of helping people and targeting the help where it is most needed, if a person's income is such that he can reasonably make an income contribution to the costs, there is no reason why it should stop at 12 months. The system is better if the amount available is increased in a way that does not prejudice the person as regards his other commitments. That is the basis upon which the income contribution is assessed.

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There is no particular virtue in the period of 12 months in this connection, apart from the fact that it has been used in the past. In my view, if we are to have as comprehensive a system of legal aid as is possible, then those who are able to pay contributions will have to contribute.
The proposal in the White Paper was that the income contribution should continue for as long as the case lasted. It is important to remember that nobody is to be asked to pay more than the total cost of the case to the legal aid fund. That is my first point. Secondly, no one will be asked to pay more out of income than it is assessed he can reasonably afford. Thirdly, if the circumstances of the litigant change for the worse in the course of the litigation, then he can have his assessment revised. For example. if a source of income ceases or some obligation which is taken account of under the regulations increases he can have his contribution varied accordingly.
That appears to me to be a perfectly reasonable system. We are not asking the person to pay more than he can afford as assessed in these two ways as to capital and income. The legal aid fund is not making a profit out of him or anything of that sort. Nobody will be asked to pay more than the cost of the case to the legal aid fund. In so far as there is more money available than if the income contribution stopped at 12 months, so much the better for the spread and efficiency of the system.
The noble and learned Lord, Lord Ackner, has pointed out that there are some circumstances in which the case may be continued without any fault on the part of the assisted person. I accept that that is true and I should wish to consider in the detail of the regulations exactly what provisions ought to be made. We have not reached that stage yet, but it does not follow from that that to allow the contributions to continue for more than 12 months would be unfair. That is the only thing that the amendment affects so far as the income is concerned. It precludes regulations providing for income contribution for more than 12 months in any circumstances whatsoever, as I understand it and as it has been explained.
I accept the serious points that my noble and learned friend Lord Ackner has made and I should wish to take them into consideration in framing the detail of the regulations, although one must be careful not to put in so much detail as to make the regulations unworkable.
However, there is another side to this. It has often been argued that assisted persons themselves are sometimes able to behave oppressively in litigation where they are not making any contribution. Certainly husbands in divorce proceedings have often expressed grievance on these grounds. I think that for a solution to those problems, and to the kind of problems raised by my noble and learned friend, we must look outside the legal aid system because they can potentially arise whenever one party in litigation has a large resource compared with the other; either his own resource or one to which he is able to have recourse.
My noble and learned friend Lord Ackner and other Members of the Committee are familiar with
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the Civil Justice Review. It has been examining whether the court should exercise greater control over the pace of proceedings. I believe that we must look to solutions on those lines, rather than to solving the problems through the rules governing legal aid generally.
However, I accept that there may be situations, even in a perfect procedural climate, in which the kind of problems referred to by the noble and learned Lord, Lord Ackner, could arise. I should certainly wish to consider those in relation to the precise detail of the regulations. However, in my submission to the Committee, the amendment introduces a wholly unnecessary and unwise restriction into the regulation-making powers. I ask the Committee not to accept the amendment.
Lord Mishcon: In moving the amendment my worst fears have been realised. I say that with a sense of complete seriousness. Paraphrasing the noble and learned Lord—I hope he thinks fairly— he concluded his remarks by saying that he did not see any sense at all in a stipulation which limited the period to 12 months. Perhaps he will be good enough to explain why, in 1980, the Government saw fit to pass such a regulation limiting the period to 12 months. Perhaps the noble and learned Lord will tell the Committee not only why that was done but also what instances have occurred since then which made the provision a completely wrong provision in his view.
I know that the noble and learned Lord, Lord Ackner, could have continued to give other examples; I said that I could do so. What about the example of the opposing party who knows perfectly well that the assisted person must continue to pay a sum of money out of his income until the case comes to trial? What is the aim of the opposing party who does not have much of a conscience? It is to delay the proceedings for as long as possible in the hope that the assisted person. because of that burden, will give up the proceedings or settle them on terms less than that party should. It is open to all kinds of iniquities and, if I may say so, it shows how bad it is to leave such vital matters—and this is a vital matter—to regulations.
If the matter was left to a regulation, I have not the slightest doubt that when it comes before the House it will he in the midst of other regulations dealing with the question of assessment upon assisted persons and so forth. Members of the Committee will be in no position to say, "The rest of the regulation is perfectly all right but we ask for this provision to be amended". As we discussed yesterday, one cannot do that. Again, it was said yesterday that all one can do is make a speech and hope that the Minister will be convinced.
I have made a speech and some other Members of the Committee have made speeches. It is completely obvious that the noble and learned Lord the Lord Chancellor, as at present advised, is not convinced, except that there might be some provision for a certain class of case within the regulation; although, as he says (again I am paraphrasing) one does not wish to mix up too much with a regulation because otherwise it becomes confusing, misleading, and does not serve a proper purpose.

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We now have no assurance. In fact, the assurance is in the reverse direction: that the White Paper will be followed; that people will not know of their liability; and that all the decent and caring people of whom we are thinking (not the reckless people) will be deterred in those circumstances from accepting an almost timeless commitment. In saying that they can always apply to have this reduced, or that they can always apply to say that the action is being protracted, I should like to ask what of the unfairness of the case which is fairly easy, although it involves a lot of money, and can be heard rapidly, as against the complex case which cannot? Is there to be a difference between the time of the contribution being made?
Because of the lack of assurance, which I believe that nearly every speaker in the debate called for from the noble and learned Lord the Lord Chancellor, I must press the amendment.
5.16 p.m.
On Question, Whether the said amendment (No. 35) shall be agreed to?
Their Lordships divided: Contents, 89; Not-Contents, 141.

DIVISION NO. 2

CONTENTS

Ackner, L.

Kilmarnock, L.

Airedale, L.

Kirkhill, L.

Ardwick, L.

Listowel, E.

Attlee, E.

Lloyd of Hampstead, L.

Aylestone, L.

Lloyd of Kilgerran, L.

Banks, L.

Lockwood, B.

Basnett, L.

Longford, E.

Blackstone, B.

Lovell-Davis, L.

Blease, L.

Mackie of Benshie, L.

Bonham-Carter, L.

McNair, L.

Broadbridge, L.

Mason of Barnsley, L.

Brooks of Tremorfa, L.

Meston, L.

Callaghan of Cardiff, L.

Mishcon, L.

Carmichael of Kelvingrove, L.

Molloy, L.

Carter, L.

Mulley, L.

Chitnis, L.

Nicol, B.

Cocks of Hartcliffe, L.

Oram, L.

David, B.

Peston, L.

Davies of Penrhys, L.

Phillips, B.

Dean of Beswick, L.

Pitt of Hampstead, L.

Diamond, L.

Ponsonby of Shulbrede, L. [Teller.]

Dormand of Easington, L.

Elwyn-Jones, L.

Prys-Davies, L.

Ennals, L.

Ritchie of Dundee, L.

Ezra, L.

Robson of Kiddington, B.

Falkender, B.

Seear, B.

Falkland, V.

Sefton of Garston, L.

Fisher of Rednal, B.

Serota, B.

Foot, L.

Shaughnessy, L.

Gallacher, L.

Silkin of Dulwich, L.

Galpern, L.

Simon of Glaisdale, L.

Glenamara, L.

Somers, L.

Graham of Edmonton, L. [Teller.]

Stedman, B.

Stewart of Fulham, L.

Grey, E.

Stoddart of Swindon, L.

Grimond, L.

Strabolgi, L.

Hanworth, V.

Taylor of Gryfe, L.

Hatch of Lusby, L.

Taylor of Mansfield, L.

Hayter, L.

Turner of Camden, B.

Heycock, L.

Underhill, L.

Hughes, L.

Wallace of Coslany, L.

Jacques, L.

Wells-Pestell, L.

Jay, L.

Wigoder, L.

Jeger, B.

Winchilsea and Nottingham, E.

John-Mackie, L.

Kilbracken, L.

Winstanley, L.

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NOT-CONTENTS

Ailsa, M.

Hunter of Newington, L.

Alexander of Tunis, E.

Hylton-Foster, B.

Allenby of Megiddo, V.

Ilchester, E.

Allerton, L.

Johnston of Rockport, L.

Arran, E.

Joseph, L.

Auckland, L.

Kimball, L.

Barber, L.

Kinloss, Ly.

Belhaven and Stenton, L.

Lane-Fox, B.

Beloff, L.

Lauderdale, E.

Belstead, L.

Lawrence, L.

Bessborough, E.

Lindsey and Abingdon, E.

Blatch, B.

Long, V.

Blyth, L.

Lucas of Chilworth, L.

Boardman, L.

Luke, L.

Boyd-Carpenler, L.

Lyell, L.

Brabazon of Tara, L.

Mackay of Clashfern, L.

Bridgeman, V.

Mar, C.

Brougham and Vaux, L.

Margadale, L.

Broxbourne, L.

Massereene and Ferrard, V.

Bruce-Gardyne, L.

Merrivale, L.

Butterworth, L.

Mersey, V.

Caithness, E.

Middleton, L.

Campbell of Alloway, L.

Milverton, L.

Campbell of Croy, L.

Monk Bretton, L.

Carnegy of Lour, B.

Montgomery of Alamein, V.

Carnock, L.

Morris, L.

Chelmer, L.

Mottistone, L.

Clifford of Chudleigh, L.

Mowbray and Stourton, L.

Constantine of Stanmore, L.

Munster, E.

Cork and Orrery, E.

Murton of Lindisfarne, L.

Cottesloe, L.

Nelson, E.

Cowley, E.

Newall, L.

Cox, B.

Nugent of Guildford, L.

Craigavon, V.

Orkney, E.

Craigmyle, L.

Orr-Ewing, L.

Craigton, L.

Oxfuird, V.

Cranbrook, E.

Pender, L.

Croft, L.

Peyton of Yeovil, L.

Croham, L.

Polwarth, L.

Cullen of Ashbourne, L.

Porritt, L.

Davidson, V. [Teller.]

Radnor, E.

Deedes, L.

Rankeillour, L.

Denham, L. [Teller.]

Reay, L.

Denning, L.

Reilly, L.

Derwent, L.

Renton, L.

Dundee, E.

Rochdale, V.

Elibank, L.

Rodney, L.

Elliot of Harwood, B.

St. Aldwyn, E.

Elton, L.

St. Davids, V.

Erroll of Hale, L.

Salisbury, M.

Faithfull, B.

Saltoun of Abernethy, Ly.

Ferrers, E.

Selborne, E.

Ferrier, L.

Selkirk, E.

Fortescue, E.

Shannon, E.

Fraser of Kilmorack, L.

Stodart of Leaston, L.

Gainford, L.

Strathcona and Mount Royal L.

Gisborough, L.

Glenarthur, L.

Sudeley, L.

Gray, L.

Swansea, L.

Greenway, L.

Terrington, L.

Gridley, L.

Teynham, L.

Haig, E.

Thomas of Gwydir, L.

Hailsham of Saint Marylebone, L.

Thorneycroft, L.

Trafford, L.

Hanson, L.

Trumpington, B.

Harmar-Nicholls, L.

Ullswater, V.

Harvington, L.

Vaux of Harrowden, L.

Havers, L.

Wilberforce, L.

Hesketh, L.

Windlesham, L.

Home of the Hirsel, L.

Wyatt of Weeford, L.

Hood, V.

Young, B.

Hooper, B.

Resolved in the negative, and amendment disagreed to accordingly.
5.25 p.m.
Clause 14 agreed to.
Clause 15 [Reimbursement of Board by contributions and out of costs or property recovered]:
[Amendments Nos. 36 and 36A not moved.]
Clause 15 agreed to.
Clause 16 agreed to.
Clause 17 [Costs of successful unassisted parties.]
The Deputy Chairman of Committee (Lord Nugent of Guildford): Before I call Amendment No. 37 in the name of the noble and learned Lord, Lord Denning, I should explain that if this is agreed to I shall not be able to call Amendment No. 38.
Lord Denning Lord Denning had given notice of his intention to move Amendment No. 37:
Page 13, line 18, leave out from beginning to ("; and") in line 21
The noble and learned Lord said: We discussed this yesterday. It is part of the group. I do not intend to move Amendment No. 37.
[Amendment No. 37 not moved.]
[Amendment Nos. 38 and 39 not moved.]
Clause 17 agreed to.
Lord Ackner Lord Ackner moved Amendment No. 40:
After Clause 17, insert the following new clause:
("Remuneration of persons giving civil legal aid.
—(1) A solicitor who has acted for a person receiving legal aid shall be paid for so acting out of the legal aid fund, and any fees paid to counsel for so acting shall also be paid out of that fund.
(2) The sums allowed to counsel or to a solicitor in connection with proceedings in the House of Lords, the Court of Appeal, the High Court and the County Court shall be the full amount allowed to taxation of costs.
(3) The sums allowed to counsel or to a solicitor in any other case shall be such as may be determined in the prescribed manner.
(4) Where a solicitor has acted as agent for another, the sums allowed under the preceding provisions of this section shall be the aggregate amount allowed them, but may be divided between them as they may agree.
(5) For the purpose of subsection (1) above counsel's fees shall be taxed as if they had been paid by the solicitor.
(6) Costs shall be taxed for the purposes of this section on the standard basis; but no question shall be raised as to the propriety of any act for which prior approval was obtained as required by regulations.
(7) The Lord Chancellor, in making regulation for the purposes mentioned in section 32(2)(e) as respects the courts, persons or bodies by whom, and the manner in which, any determinations which may be required for the remuneration and payment of the expenses of solicitors and counsel shall be made, reviewed or appealed, shall require such courts, persons or bodies to have regard to the preceding provisions of this section and to the principle of allowing fair remuneration according to the work actually and reasonably done.")
The noble and learned Lord said: This is the first of a number of amendments standing in my name, the succeeding ones also being concerned with the remuneration provisions of the Bill. I should like to make one overriding point which relates to all the amendments that I hope to move, and it is this. Although it was some 17 years ago that I was the elected leader of the Bar, I am not moving these amendments out of some nostalgic loyalty to my profession. I should not like the Committee to think that it is about to witness the rigor mortis of a superannuated shop steward.
The basic reason for my tabling this amendment is due—and I hope the noble and learned Lord the
116
Lord Chancellor will notice this indication of harmony at the outset—to my profound agreement with the sentiments of the Government as expressed in their very first response to the report of the Royal Commission on legal services presided over by that eminent chairman the noble Lord, Lord Benson. Those responses are contained in Cmnd. 9077. They were presented by the Lord Chancellor in November 1983, which is not so long ago, and as it took some three years for those responses to be worked out I imagine that great thought was given to them and they are unlikely to be departed from.
The first response I quote is this:
"The existence, strength and vitality of an independent legal profession, and public confidence in it, are fundamental to our freedom under the law".
On 4th June 1986 in a debate initiated by the noble Lord, Lord Benson, to call attention to the current concern about the provisions of criminal legal aid and the need to consider ways of improving the system for negotiation of fees, 12 of your Lordships gave the Chamber the benefit of their views. No doubt some reference will be made in detail to those views when the Committee comes to consider Amendment No. 55, which stands not only in my name but also in the name of the noble Lords, Lord Benson, Lord Meston and Lord Seebohm. All of your Lordships were unanimous on a number of matters but on one in particular. That is that if the legal aid scheme—one of the greatest social reforms since the last war—offered no more than a second class service (or, I would add, second rate, because that is the right description of a second class service) that would be a disaster.
The strength and vitality of the profession are thought by the Government to be essential. It would not only be seriously weakened but public confidence in it would be killed. Our concept of freedom under the law would thus be seriously damaged. I have no doubt that the then Lord Chancellor, my noble and learned friend Lord Hailsham, who took part in that debate, is of the same view, as I am absolutely sure is also my noble and learned friend the present Lord Chancellor.
In another response, which I quoted in the debate on Thursday—I thought it had been given some six or seven years ago instead of barely four years ago—the Government asserted:
"The Government believes that legal aid should be available to assist those of small or moderate means, by giving them"—
and I now emphasise the following words—
"the same chance to pursue or defend their legal rights as those in a position to instruct lawyers privately''.
To my mind that is as clear a statement as one could ask of the entitlement of our fellow citizens whose circumstances require them to rely upon legal aid for access to the courts; to receive a standard of advice and representation no lower than that which they would have received if they had been able to pay for it.
Consistent with the sentiments just quoted, in the same Command Paper at page 15 the Government answered with the following words the

117
recommendation of the Benson Commission that the rates of remuneration for legally aided work should be fixed at a reasonable level and kept up to date:
"The Government accepts that legally aided work should be reasonably remunerated".
By the medium of this and the other amendments in my name I hope I shall be able to justify to the Committee my deep anxiety that the Government no longer intend to adhere to the views they expressed either in regard to,
"the same chance to pursue or defend their legal rights as those in a position to instruct lawyers privately",
or that legal aid work should be reasonably remunerated, which provides the same chance to which they referred. I hope to establish that one, if not the main, purpose of the Bill is to provide a cut-price service and therefore inevitably a second-rate service with all the serious consequences mentioned in the debate in June 1986.
This amendment is directed, as the side note indicates, to civil legal aid. Why civil legal aid requires a different position from criminal legal aid needs a little, and slightly technical, explanation. As matters now stand lawyers' legal aid fees are subject—and I emphasise this—to independent assessment. It is an assessment which is done essentially by judicial officers, not civil servants with no legal knowledge, not members of the executive, but independent legal officers. The overall target at which they strive is to achieve fairness. The method of assessment varies in criminal and civil work for the following quite simple reasons.
In civil work there is almost invariably an assessment, called a taxation, by the courts of the costs that a losing party should pay to the winner. This is a broad explanation. The usual order is that the costs be taxed on the standard basis and the words of Order 62, Rule 12, provide:
"On a taxation of costs on the standard basis there should he allowed a reasonable amount in respect of all costs reasonably incurred".
That is something which no one has found any difficulty in applying as a general principle though it varies from case to case and occasionally gives rise to some difficulty.
The taxing officer, who is almost invariably a solicitor and much experienced in this field of work, is required to have regard to certain factors. I shall not worry the Committee with them; they are currently set out in Appendix 2 to Order 62, which provides that in exercising his discretion the taxing master—I again emphasise these words because they are mandatory—
"shall have regard to all relevant circumstances and in particular to—
certain factors are then isolated—
"with a view to achieving fairness, complexity, difficulty, novelty, skill, special knowledge required, weight of the case, importance to the client, value of the property in issue",
and so on. As a matter of convenience and to avoid duplication it has been a long-standing arrangement for civil legal aid costs to be assessed also by the taxing master. In the old days there used to be a difference between party-and-party costs and common fund. The Committee need not be worried
118
with that complexity because it has gone; it is all on the standard basis unless there is a special order.
That is the basis upon which costs in the ordinary civil cases have been dealt with. In criminal legal aid there is very seldom a party-and-party taxation because costs are seldom awarded between the parties. Accordingly different arrangements are necessary. Remuneration is fixed by a court official, who I believe now enjoys the title of a determining officer, applying regulations issued by the Lord Chancellor—again I emphasise—with the right of appeal to the taxing master.
It was in this context that in Section 39(3) of the 1974 Act Parliament directed that in making regulations there was a dual obligation; the obligation on the Lord Chancellor and on any person by whom such amounts fall to be assessed that the regulations should have regard to the principle of allowing fair remuneration according to work actually and reasonably done. No problems appear to have arisen in that concept though there have been some difficulties in ensuring that matters are kept up to date.
Following negotiations with the Lord Chancellor's Department in recent times standard fees—I think perhaps a better description is "prescribed rates"—have been agreed for about 90 per cent. of criminal work. That is because in criminal cases you can fairly simply identify the relatively "un-numerous" units of work, as I believe the on-going jargon is. That still enables taxation to be asked for if it is considered that the prescribed rate is not sufficient.
In civil cases there is such a wide diversity in range of work; I need only refer to the categories of work such as Admiralty work, patent work, copyright work, commercial work, passing-off actions and the like. However much, I respectfully suggest, the Lord Chancellor's Department would wish to, you cannot hope to identify many units of work in such litigation. Of course you can in the running down case, which is a stock type of case, or the industrial injury case, and it has been done. But it is apparently the desire of the Lord Chancellor's department and the Lord Chancellor to seek to apply the standard fee to 75 per cent. of all cases within the next two years.
I am told that some progress has been made in the matrimonial work because again you can identify units, but, to give the Committee an indication of how imprecise some of these standard fees can be, there is only one item for paperwork, and that is £33. How on earth anyone arrived at £33, or what on earth use it has as an indication, I do not understand. Paperwork can comprise drafting an affidavit of one page or 100 pages; advising on evidence of one page or 50 pages; advising on quantum in a difficult matrimonial financial contest or in a simple one. But apparently bureaucratic tidiness is satisfied by having achieved that there is one item of standard fee in the matrimonial field, £33.
The reason for all of this is that a Lord Chancellor's and Treasury committee—I think it is called the scrutiny team—has expressed a view, which I think is the view which must be the view adopted in the approach to this legislation, in these terms:

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"In buying legal services, as with the purchase of other goods and services from the private sector, the Government should be looking to obtain the services of the quality"—
and I now underline the words—
"it needs as economically as possible."
Not what the litigant needs but what it, the Government, needs. This analogy with the supermarket is probably responsible for how well the supermarket is represented on the committee dealing with the civil justice review.
I continue to quote from that report. To achieve this objective the proposal is that:
"all rates of remuneration should be set on a national basis by the Lord Chancellor's department".
The next objective I quote is
"to permit rates of pay for legal aid work to be set by regulation"—
and again I emphasise—
"at different rates from those set for privately-funded work."
There is the rub. The right to receive the same standard of service is an essential part of the legal aid system. How, anyone, particularly those who talk in terms of buying services as if they were goods and commodities, can think that they are going to obtain the same quality in goods and services without paying the same, or an analogous, price is difficult to follow. Those of small or moderate means are apparently not to have:
"the same chance to pursue or defend their legal rights as those in a position to instruct lawyers privately".
The attempt made in this amendment is to put back into the legal aid scheme that which exists at the moment. I need not go line by line through this amendment because it follows, with appropriate alterations to bring it up to date, Section 10 of the Act of 1974 and the second schedule. It is to ensure that there is brought back into this Act in regard to civil litigation the obligation upon the fund to pay to those providing civil legal services the sums that are allowed on taxation. A procedure designed for fairness.
It is true that the recommendation of the scrutineers—if that is the right description—that assessment of fees should no longer be part of a judicial process but should become part of an administrative process is not accepted outright in the White Paper, but the White Paper at paragraph 50 says:
"Once the wider introduction of standard fees has simplified the taxation of bills, the Government considers that it might be sensible for these to be assessed by County Court staff"—
those are civil servants with no legal qualifications—
"rather than, as at present, by County Court registrars"—
who are of course solicitors. It goes on:
"This would be similar to the system of payment in criminal cases, and would reduce the burden on Registrars. Timing and other details will be discussed with the relevant trade unions and other interested parties before steps are taken to bring this change into effect."
In regard to the present situation it is stated in paragraph 51:
"The Government considers that there is a continuing need for an independent appeal mechanism on assessment of bills. It therefore proposes to retain the present arrangements for appeals to the Taxing Master. However, the Government does not rule out change in this area, and would be prepared to consider alternative proposals, for example that appeals against assessment should be heard by the Legal Aid Board"—
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which I understand is unlikely to have even one member of the Bar upon it.
"The Government intends to ask the Board, once established, to consider this".
I hope that this amendment will give the Lord Chancellor an opportunity to explain in perhaps some detail the radical basis in the remuneration of the profession which his department has in mind, thus enabling us to pierce the regulatory veil and get the flavour of that which most of us would have wished to have seen in detail in the primary legislation. However much my noble and learned friend the Lord Chancellor may disagree with what I have submitted, I hope that at least on this occasion I have made myself clear. I beg to move.
5.45 p.m.
Lord Denning: Let me say that in a way I think this amendment goes much too far in favour of the legal profession. I am sorry to have to say it but I have to tell the Committee of a matter of taxation of costs that we had to deal with in the Court of Appeal.
It happened in Swanage. A man who dived off a board in Swanage hit his head on something on the bottom of the sea and was severely injured. He brought his claim for negligence against the council, claiming that it was its fault that there was something on the bottom of the sea on which he broke his head. He got legal aid for the purpose, if you please, but he failed.
In those circumstances, what was the position? No costs were being awarded against the legal aid fund, but his solicitors and counsel of course wanted their costs from the Government or from the legal aid fund. They put in their bill and it went before the taxing master. There was no one to oppose it and the taxing master felt that he ought to do something himself. What happened? About nine months after the accident happened an expert was sent down, by which time the obstacle had been removed and the site could not be seen as it was at the time. He went on two occasion at great expense. Not only that but leading counsel and junior counsel were brought in. Was that necessary?
The taxing master himself thought he ought to go into it to see whether the bill was reasonably incurred. There was no one to speak against it but he did what he could. After he had knocked it down a little the solicitors appealed to us to restore their original bill. In the Court of Appeal I said that it was most unfortunate that there was no one to speak against the bill and that the taxing master was absolutely right to inquire into it as best he could, unequal as it was. That example is just to show the Committee that in legal aid matters the bill is put in by the solicitor on behalf of himself and counsel whom he has instructed and there is no one to check it and oppose it except the taxing master, who has to do that as best he can.
I submit that that is wrong and its shows the difference between legal aid taxation, when the solicitor and counsel want to get the cost of the litigation, and other litigation, when the solicitor's bill is always taxed by the other side. Then it has to be paid. That is one important distinction which I draw in this claim for the right to have legal aid taxed on the full basis when there is no one to oppose it.

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I must add another point in my disquiet about this proposal. It must be remembered that this gives the solicitor and counsel whom he instructs an interest in promoting the case which may conflict with his duty. How easy it is. The poor person goes to the solicitor and says, "I want to bring an action. I have been injured in an accident". The solicitor says, "Can you afford it yourself or not?" The man asks, "Can I get legal aid?" The solicitor replies, "Oh yes, if there is a reasonable chance of your succeeding". "What if I lose?" The solicitor says, "Don't worry about that. You do not have to pay any costs even if you lose". That is what he tells the legally aided client. The lawyer says, "We shall have to look into it to see whether you have a reasonable case. Let me see your witnesses. Let me see your statements. If the case is good enough—and there may only be an even chance—we shall get legal aid for you". So it goes on.
The solicitor is interested himself in getting legal aid for his client because he will also get the costs and the fees at the end of the day. There is nothing to lose. The client has nothing to lose. The solicitor and counsel have nothing to lose. I stress this point in order to show that there is an interest which may conflict with duty.
It is very different when a man is not legally aided. Let us take the case of a man who is just over the legal aid limit. He may be a small tradesman or a professional man but he is just over the legal aid limit. He is involved in an accident. He goes to the solicitor and asks, "What about bringing an action?" The solicitor says, "You have an even chance of winning". The man asks, "What will happen if I lose?" The solicitor says, "You will have to pay all the costs of the other side. There is always that risk, you know. I really could not advise you to go on with this action when if you lose you will have to pay all the costs of the other side". Many a person just over the legal aid limit will say, "I cannot take the risk on my own"; whereas the legally aided client will say, "That's all right. I am no worse off. If I win, I get damages. If I fail, I do not get the costs".
That is the dilemma. The solicitor is in a difficult position in advising because he has an interest—and he is absolutely honest—in saying that this is a good legal aid case. I throw that out in addition to the other point I mentioned only to show that legal aid litigation is very different from that which is not legally aided. This amendment tries to put it on the same basis as other litigation. It would he not altogether right to put that into this Bill.
Lord Meston: I support the amendment and in so doing declare an interest as someone who is in receipt of legal aid from his professional practice.
On the first day of the Committee stage of the Bill the noble and learned Lord the Lord Chancellor reminded us that the main source of legal advice is and will remain under this Bill the independent legal profession, the private practitioner. It is important to remember that this is a public service which depends on private practitioners. It is not in the interests of the public to reduce the quantity and the quality of lawyers prepared to do legal aid work. I suggest that
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the quantity and quality will be reduced if practitioners lose confidence in the legal aid system and in its funding.
The noble and learned Lord, Lord Denning, spoke about litigation which is improperly brought, and that of course should be a matter for taxation. With respect, I would suggest to him that it is irrelevant to the argument surrounding this amendment, which is concerned with fair remuneration. I question what he has just said, that somehow the practitioner dealing with legal aid work has a greater interest in that litigation than in any other form of litigation. In either case he is entitled to fair remuneration. With respect again to the noble and learned Lord, he overlooked the fact that the great majority of legal aid practitioners recognise that not only do they have a duty to their client as in any other case but they have a duty to the legal aid fund. They recognise it, respect it and take steps to put it in practical terms when applicable.
At Second Reading the noble and learned Lord, Lord Denning, reminded us of his experience of young barristers, before legal aid, waiting for dock briefs. It is at the Bar and in the solicitors' profession, I suggest, where young people learn the important lesson at an early stage that the world does not owe them a living. Young lawyers, particularly those in London, are still as exposed to great pressures of financial stringency as in the days of the noble and learned Lord, Lord Denning. Indeed, it is not just a question of the young barrister or the young solicitor. There is a broader concern in modern circumstances. We are faced not only with the risk of losing young practitioners but also with the risk of losing senior, more successful, practitioners who ought to be the backbone of a properly run legal aid system. Those who remain in the system, not giving up because they find other, fatter fish to fry, will be tempted to cut corners and work less efficiently. A second-rate inferior system is not a cost-effective service.
Earlier amendments have been met with the argument on a number of occasions during this Committee stage, "Well, there was nothing like them in the previous legislation under which legal aid has worked perfectly well". That argument cannot be advanced in answer to this amendment. Fair remuneration exists in the present legislation; moreover, fair remuneration is a concept expressly acknowledged in the White Paper. The fact that it is in the existing legislation and that it was recognised in the White Paper reinforces the concern that has been expressed at its conspicuous absence from the Bill.
At Second Reading the noble and learned Lord the Lord Chancellor said that the concept of fair remuneration was left out because it was too uncertain. He preferred to have a list of factors governing the provisions of the remuneration which appear in Clause 32(6). There is nothing inherently wrong with a list of factors if they are used to define and refine the concept of fairness. But they do not do so. There are at least three things wrong, I would suggest, with the contents of Clause 32(6). The word "fair" is missing; the list is not definitive; and it is not mandatory. The reason for that is that the expression is used that the Lord Chancellor,

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"shall be entitled to have regard, among the matters he considers appropriate, to".
Then there is a list running from (a) to (g) of a number of factors.
6 p.m.
Lord Ackner: If the noble Lord will allow me to intervene, in my address to the Committee I carefully avoided dealing with Clause 32. That is the subject matter of detailed amendments. I had hoped that this could be dealt with in a self-contained statement; otherwise, there will be a constant repetition of the same points.
Lord Meston: Of course I accept the noble and learned Lord's point. I shall not dwell further on Clause 32(6) save only to say that there is concern about it. As the noble and learned Lord has said, that is reflected in future amendments; therefore, I will not anticipate those.
The fact of the matter is that the private practitioner is entitled to assume that he will be fairly paid. That should be on the face of the Bill. If it were to be on the face of the Bill it would restore the confidence of the professions in the Bill and in the legal aid system, and it would ensure the calibre of the practitioners in the future. This is not just a moan by lawyers about their remuneration. It is a matter of wider public importance.
Lord Campbell of Alloway: It would have been my wish to support this amendment as I share the anxieties expressed so well by the noble and learned Lord, Lord Ackner. Of course I declare an interest, as in the case of the noble Lord, Lord Meston.
The difficulty is that a constitutional problem arises because of the element of pre-emption of the future allocation of public funds. This arises under subsection (7) which refers to the regulation for the purposes mentioned in Clause 32(2)(e). The broad constitutional question is whether, as regards any future allocation of public funds for any specific purpose, pressure should be put on the Treasury, indeed, upon the Government, by legislation which enables any Minister—here, the Lord Chancellor—to be amenable to judicial review in respect of a composite ministerial decision taken in Cabinet as regards the allocation of public funds.
As to the anxieties of the noble and learned Lord, Lord Ackner, which I share, it is the plain duty of any government to ensure that the levels of remuneration under Clause 32(2)(e) are adequate to support the efficient working of the scheme. It is right that pressure both inside and outside Parliament should be brought to bear at all times on government to ensure that the levels set by the Lord Chancellor are adequate to maintain satisfactory standards and to avoid any incipient degeneration of the service. But surely it would be wrong in principle to seek to pre-empt allocation of public expenditure by rendering the noble and learned Lord the Lord Chancellor subject to judicial review as regards the actual decision to set the level, albeit contained in the regulation, referred to in Clause 32(2)(e) imported by subsection (7) of this amendment. That setting of the
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level is not in truth the decision of the noble and learned Lord the Lord Chancellor; it is a composite ministerial decision taken in Cabinet as regards the allocation of public funds. This would be contrary to our traditional process and system of government, since it exposes the high office of Lord Chancellor to unwelcome indignity in a situation where it is accepted that his hands are tied by the composite Cabinet decision.
Quite apart from the unreality of such a situation, your Lordships' Committee may well think it unfair that the noble and learned Lord the Lord Chancellor should be singled out for such exposure and, indeed, that other ways of putting pressure on the Government—which ought to be and must be put on the Government—are preferable and more appropriate.
In conclusion, it is accepted that a distinction has to be drawn between preliminary steps in the decision-making process which lie within the exclusive province of the noble and learned Lord the Lord Chancellor, such as—to give but one example and leave it—consultation before making regulations as provided in Clause 32(7) and which are and should remain subject to judicial review, and the actual decision to set the level affecting the allocation of public funds which is the composite ministerial decision. Mindful of this distinction, I regret that I am unable to support the amendment on constitutional grounds.
However, in practical terms there is another aspect. What is,
"fair remuneration according to the work actually and reasonably done"?
It is an extremely difficult question for any court in judicial review proceedings. The court in the prior judicial review proceedings did not enter into this question and it is very much doubted whether it could have done so. It stopped short on the issue of failure to consult, there being a reasonable expectation of consultation.
So the building in of the judicial review process, which would happen if this amendment were to be accepted, would not be in accordance with our traditional process of government as regards the allocation of public funds. As regards fair remuneration, it might well be impractical and unworkable, and the position of consultation is fully safeguarded in the Bill as it stands. On those grounds I am forced to oppose the amendment although I have much sympathy with it.
6.15 p.m.
Lord Griffiths: I support this amendment, because if the Government decline to pay what I will call fair market rates for legal aid work I fear that there will he a very serious fall in the standard of representation available to those who are currently represented under the legal aid scheme. We are talking about civil legal aid, and let us be clear what we are really talking about. We are talking about helping plaintiffs. Not many defendants receive civil legal aid in the High Court. Why not? It is because you do not sue people who require civil legal aid as they do not have the

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money to be worth while. I am talking about civil legal aid, not matrimonial legal aid. That is an entirely separate question.
Dealing with civil legal aid, you are dealing with an assisted person against an unassisted person, and if we are talking in terms of reality the vast majority of those people in the High Court who receive civil legal aid are people who have been injured in accidents, in all sorts of different circumstances—accidents on the roads, accidents in the home, accidents in work, and so forth. Those people will have as their opponents insurance companies, and the insurance companies will pay their legal advisers the going market rate.
At the moment, bar the 10 per cent. deduction, those who act on behalf of the injured who are receiving civil legal aid are themselves being paid the going market rate, which is fixed, as my noble and learned friend Lord Ackner has explained, through the medium of taxation by skilled taxing masters. My noble and learned friend Lord Denning made the point that the taxing masters took their duty very seriously, because they were prepared to reduce a bill albeit that it was not even opposed. They are the skilled watchdogs and they set the rates. This amendment merely continues the system which we have had up to date and the system which I believe has worked very satisfactorily indeed.
However, it is quite clear from the White Paper that the Government are fearful that they are paying too much. Otherwise why should they wish to depart from the market rate? So I start from the premise that the Government in future, by fixing their own rates, intend to pay significantly less. Otherwise I can see no point in interfering with the system which has worked satisfactorily now for some 17 years.
If that is done, it seems to me quite inevitable that the cream of representation will be on the defendant's side earning the going market rate, and plaintiffs will have to look to lawyers who are prepared to work for significantly less. It is idle to think that they will have the same quality of lawyer available to them. The result of this will also be a serious imbalance in our trial system.
Those who criticise the advocacy system—and on the Continent there are many—say that your chances of success depend not so much on the merits of your cause as on the strength of your champion. We answer that by saying that in fact the market regulation operates so that in a given case adversaries are evenly matched because the market rate applies to either side; so that in the very expensive litigation you get expensive counsel on either side, and so you go down the scale but with a matching.
Occasionally of course you get the clever high flyer on one side who upsets the balance, but we judges are all poachers turned gamekeepers and we can usually cope with that situation. But it would be a different situation if, in the run of the mill case, you always had much better representation for the defendant than for the plaintiff, and that would cause a serious imbalance in the trial process. I am fearful that departing from the present system and, as it were, creating a lower grade of lawyer, a lower-paid lawyer, to do the plaintiffs' work will result in significant injustice to many of those plaintiffs.
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The other area in which you find that legal aid is being increasingly granted is judicial review. What is happening in judicial review'? Some poor individual is taking on central government, local government or some other department of bureaucracy. They have available to them the finest advice. They pay the market rate. But is it now to be that whoever are to represent those who are taking on these powerful institutions are only to have access to lawyers who are prepared to work for significantly less than the market rate? Of course you will find those lawyers. When one tries to argue, "Oh, but you won't he able to get representation at this level" the Treasury will say, "But you can. Look, you get it". But you are not going to get comparable quality representation, and that would have a disastrous effect on the operation of this scheme. I think the statistics show a high rate of success for legally assisted persons—
Lord Hailsham of Saint Marylebone: About 60 per cent.
Lord Griffiths:—and that being so I cannot believe the savings are going to be very significant. But the potential damage is tremendous and I foresee this scenario eventually possibly developing like this. Because of the poor remuneration paid to legal aid lawyers, lawyers are not properly prepared to do legal aid work. The Law Society and the Bar worry about that fact. What will happen'? The only alternative is the contingency fee system. If we are not going to provide proper legal aid, the only way we can help people is by a contingency fee system. If that is introduced, we shall run into all the horrific problems that they are encountering on the other side of the water.
Clause 32 raises separate points which I am not going to touch. My broad objection to this provision is the lowering of standards I see in plaintiffs' representation.
Lord Hailsham of Saint Marylebone: I had not intended to take part in this debate for reasons which may be obvious to the Committee. However, I think I ought to say something about the words which have just fallen from my noble and learned friend Lord Griffiths. He and I have been opposed to each other at the Bar on many occasions, as indeed on one famous occasion were my noble and learned friend Lord Ackner and I. I found them to be notably skilful, attractive and honourable opponents.
However, I do not believe that the profession to which I have belonged since 1932—my father belonged to it from 1903—would ever act in the way in which my noble and learned friend Lord Griffiths supposes. I acted for years under the existing legal aid scheme in civil and criminal matters. I regarded myself as bound by what at the Bar we call—I do not think the solicitors have the same phrase, but they will still recognise it—a taxi-cab rule.
If my time was available I made no distinction between whether I was appearing for an insurance company as a defendant—as I frequently did in personal injuries cases—or whether I was appearing for a legally aided plaintiff. It made no difference whatever whether I was briefed for the prosecution or

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for the defendant. I appeared impartially according to my availability for work. I believe that the profession of which I am proud to be a member will always, whatever the result of the amendment, whatever the type of remuneration available and however it is arrived at, continue to abide by the taxi-cab rule. Although I would never have claimed to be in the class of some highly remunerated counsel, I believe that I gave service to whichever side I represented.
I say to the noble Lord, Lord Meston, that my noble and learned friend Lord Denning, on Second Reading I think it was—earlier in these debates—was right when he described how we acted for impoverished plaintiffs, without any remuneration, under the poor persons rules, and the kind of remuneration we received under the Poor Prisoner's Defence Act and the dock brief system. It was just as he said. Whatever the noble Lord, Lord Meston, may suppose, the Bar and the solicitors' profession have gained enormously from the introduction of legal aid. They gave their services, sometimes at a loss but virtually free, in those days rather than see persons who could not afford representation not have it.
It is a real disservice to the legal profession to suggest that if the amendment is not passed there will be a different kind of lawyer who does the remunerated work for insurance companies and the legally aided work for assisted plaintiffs. I do not believe that that is true. I say to the noble Lord, Lord Meston, that the Bar has doubled in size since I first became Lord Chancellor; and the solicitors' profession—although I cannot give the figures—has greatly increased in numbers. I could ascertain those figures but I do not have them in my head. Those are not the marks of a declining or under-remunerated profession.
Having said that, I should like to add one or two rather simple points about the general philosophy behind the amendment. My noble and learned friend Lord Griffiths said that in the amendment we were not concerned with matrimonial proceedings. I thought—I may be wrong, and I shall be corrected if I am—that we are concerned with matrimonial proceedings in the amendment. In my understanding of the business, the bulk of legally aided work in the civil field, as distinct from the criminal field, is matrimonial.
Lord Ackner: My noble and learned friend invited interruption or I should not have intervened. He is right that the phrase "civil litigation" includes matrimonial cases. Since drafting the amendment, I understand that there has been a considerable move towards the standard fee in matrimonial work. I understand that regulations are about to come into force to provide for the taxation of those fees in every case. Therefore, they are not of the concern that I ventured to suggest, or had in mind, with regard to ordinary civil non-matrimonial matters.
My points of principle, even though the drafting extends to matrimonial proceedings, are designed to focus upon civil litigation of the non-matrimonial kind which is of a highly diverse character.
6.30 p.m.
Lord Hailsham of Saint Marylebone: I know that the Committee will be greatly indebted to my noble and learned friend for his intervention and the information which it contained. I do not think it would have had that information but for what he has just said. Far from invalidating what I was about to say, it rather increases its importance and underlines the case which I was about to put forward. In the amendment, and in its wording, we are concerned with matrimonial litigation, as well as with personal injuries litigation. After having said what I did in respect of remarks made by my noble and learned friend Lord Griffiths, and other remarks which have fallen during the debate, I say that remuneration presents difficult and delicate constitutional problems. My noble friend Lord Campbell of Alloway made that point and it is one which must be borne in mind.
I hope that nothing I say to my noble and learned friend the Lord Chancellor will undermine what I said—I think it was in answer to an earlier debate when I was Lord Chancellor—when I stood by the principle of fair remuneration for work actually and reasonably performed. The, question is how one ascertains that and not whether one accepts the principle.
It is, I think, just for the Government to have endeavoured both here and in a subsequent part of the Bill, which we are deliberately not discussing, to spell out the kind of factor which the Lord Chancellor is entitled to take into account in fixing what is fair remuneration and how to achieve it.
My next point concerns civil litigation which is contested. In the kind of personal injuries case considered by my noble and learned friend Lord Griffiths, taxation—the basis of the amendment—is a contested process; that is to say, it takes place inter partes. Nobody attacks or criticises the expert knowledge and experience of the taxing master. However, in contested litigation, the taxation is a contested matter. The party who may be having to pay the bill has obvious designs to knock it down, and the taxing master then hears both sides.
However, in many legally aided cases, first of all in the civil litigation which is not contested or where the defendant does not have to pay, it is true that the taxing master has to arrive at his own decision without the aid of contests between two counsel. This is particularly true in relation to matrimonial cases, not because there are not two hostile parties (there may be and in many cases there are) but in the sense in which I am now describing it when the contested taxation takes place with one party unassisted and the other party assisted. In most matrimonial cases, 90 per cent. or thereabouts, both parties are assisted. Therefore, although the taxation takes place, both parties have the same interest which is not to knock down the bill.
There must be some way in which the interests of the public are maintained in those circumstances. To say that the full amount of the taxation must be paid and that one relies entirely upon the expert knowledge of the taxing officer, though he be legally qualified and absolutely honest and impartial, is, I

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suspect, not really good enough. Almost in parenthesis, I would point out something which none of the advocates of the amendment has either referred to or admitted but which is highly relevant to what we are discussing. Up to and including the present time—my noble and learned friend the Lord Chancellor will correct me if I am wrong—legal aid in civil cases has been knocked down by 10 per cent. from what my noble and learned friend Lord Griffiths calls the market rate.
That was the rule under which I operated at the Bar. The Bar and the solicitors' profession gave their services for 10 per cent. less than they were worth. While I was Lord Chancellor I had some difficulty with this and my noble and learned friend who is my successor has succeeded in the achievement, if it be an achievement, that the 10 per cent. allowance has gone. Of course, this is of vital importance in assessing the amendment. There was the automatic reduction of what my noble and learned friend called the market rate up to and including the present moment. But now it has gone. What we are discussing is the payment of what I would call fair remuneration which is 100 per cent. of the full market rate.
I want to make another point in relation to this matter. Although I did my best to reduce delays—I believe that steps are being taken to reduce them even further— there was, and still is, a perfectly legitimate complaint on the part of the Bar and solicitors. It is that the Treasury or the legal aid fund, or whoever was paying the remuneration for solicitors and barristers, was doing so about two years after the money had been earned. The result was that they were paid in depreciated currency as we were suffering from an inflation greater then than, happily, it is now. But even if the situation were as of now, they are still paid, sometime, in arrears in a currency that has depreciated by a degree of inflation.
For some reason the two trade unions, the Bar Council and the solicitors' profession, never really made the best of that. It was very largely I myself, with a good deal of blood spilt on the ground, who began to get what seemed to me to be a reversal of what was admittedly a disreputable practice. One of the astonishing and unexpected results of the first tranche, which was pitiful enough, was that my daughter who practises in the same division as the noble Lord, Lord Meston, received a cheque for £12,500 which had been overdue for more than a year. I think both the trade unions rather failed in their duty to their members in not putting that at the top of their grievances. They left it to the unfortunate Lord Chancellor, about whom they were full of complaints, to get it remedied on their behalf.
However, this brings me back to the principal point up to which I have been leading. A later section of the Bill lays down that the Lord Chancellor should consult the two trade unions concerned—the two professional bodies concerned—the Law Society and the Bar Council. That is absolutely right. It is the only way in which this matter can be honourably and properly discharged.
What is fair is very difficult to ascertain. It must be done by agreement or the profession will he the first to suffer. My noble friend Lord Campbell of Alloway
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quite rightly drew attention to the constitutional practice, clearly allowed for in a later section of the Bill, that what is paid out of the legal aid fund is paid out of moneys provided by Parliament and that moneys paid out by Parliament are voted by the House of Commons, not by this House. They are very largely determined after negotiation between the Treasury and the spending departments. In this respect I must tell the Committee what it probably already knows. The spending departments are the great enemies of each other. One knows in practice that every penny one squeezes out of the Consolidated Fund for one's own clients, if one is a spending Minister—and the Lord Chancellor is an important spending Minister—must be extracted not only from the Treasury but from the rival claimants to the common Consolidated Fund.
I question very much whether those who support this amendment or the two professional bodies have really taken this in mind because there is a deplorable ignorance among professional people of some aspects of our constitutional law. My own feeling is that this is the way forward. It is for the professional bodies to negotiate with the Lord Chancellor. It is useless to throw bricks at the Lord Chancellor as if he were an absolutely free agent to dole out such money he might think suitable as remuneration. He must negotiate it with his colleagues. Whatever may be the fate of this amendment I shall follow my noble and learned friend's speech very carefully before I make up my own mind because I want to do what is right. However, I rose not to make this somewhat discursive oration but to say that I simply do not accept what my noble and learned friend Lord Griffiths said about the way in which the profession would behave if they did not get exactly what they wanted.
Lord Wigoder: I have no interest to declare but perhaps I may simply make two very short comments on the argument put forward by the noble and learned Lord, Lord Hailsham. The first is that as the gap grows, if it grows, between legal aid fees and private fees, it is quite inevitable, quite natural and quite understandable that some members of the Bar will cease to do legal aid work. It is quite inevitable that they will be the more competent and the more successful members of the Bar.
My other comment is simply that in practical terms many briefs are delivered to chambers and are then allocated by the clerk of the chambers, both criminal and civil work, in agreement with the solicitor. It is again inevitable that if there is a gap in the fee structure the clerk will direct the better work, the private work towards the more competent and the more outstanding of the members of chambers and the less well paid work will inevitably go to the remainder. I venture to suggest that the noble and learned Lord, Lord Griffiths, is quite right in the general proposition that if the gap is allowed to grow legal aid will become a second-class service.
Lord Denning: I wish only to add a footnote to what my noble and learned friend Lord Hailsham of Saint Marylebone has said. I did not practise at the Bar in the days of legal aid. Before the advent of legal

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aid I did many cases for nothing. I defended dock briefs and I also defended cases at higher levels but the fees often depended on the means of the individual. Often my clerk said to me that he was afraid that a particular individual did not have much money and then asked me if I would please not let that deter me from doing my duty. It was my duty and I used to take it on even at a lesser fee. I do not know whether that made me a second-rate advocate. At all events perhaps the most important case that I did for nothing was an appeal to this House when we succeeded in reversing a decision of the Court of Appeal. I did that for nothing because I felt that it was my duty as a member of the Bar. As my noble and learned friend says, one must do what one feels one's duty is and represent one's counsel to the best of one's ability. I hope that I was not a second-class advocate on that occasion.
Lord Mishcon: I intervene only for one moment as my own profession has also been mentioned. What the noble and learned Lord, Lord Griffiths, said was absolutely correct. The Committee must forgive me for repeating a phrase that I used before but if one looks at what is happening "on the ground" I would say to the noble and learned Lord, Lord Denning, whose altruism I shall always respect, that the situation became very different once legal aid was created.
In the old days when the idealism of the profession was appealed to, many of us, especially those practising as I used to when I was a youngster in a very poor area, were content to do work quite literally for nothing. Then came legal aid and we were told that charity was not wanted any more. We were told that the gates of justice must be open to everyone regardless of their means and that the state would ensure that that was done. As soon as the state took on that obligation, quite frankly idealism flew out of the window to a very large extent, because it was thought in the profession that if that was a state obligation the state must pay fair remuneration. If that was not being done it was considered that the state was to blame. That is the distinction that we are dealing with today.
What is happening today in my own profession is this: we are not growing as a profession. We have approximately 10 times the number of members at the Bar. The number of practising members of our respective professions stands at about 40,000 as compared with about 5,000 in the past. But we are not growing; in fact the recruits are dropping. I am not talking about the people who practise in the City and the West End of London. I should be a humbug if I did not say that they are doing very nicely, thank you. In the main, I am talking about the people in the suburbs of London, in the rural areas, in little villages and towns throughout the land, who are doing a lot of legal aid work. The reports that are coming into the Law Society are that those people are accumulating overdrafts that they cannot meet, that the legal aid sums that are being paid do not cover their overheads in many cases and that they are saying as a result that they had better try and get private work and possibly abandon some legal aid work.
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We do not want that, because, as I understood the noble and learned Lord, he did not say that the people who are pretty well off in either profession will necessarily turn down legal aid work. He was saying that if the profession is going to be underpaid, especially among the young people who do a lot of legal aid work both at the Bar and in the sister side of the profession, the profession will not attract the best brains and the best ability in the future. The good ones will be snapped up, and we all know it, by large City firms paying very high salaries indeed. But for the legal aid work the less able people will possibly be attracted as they can do that work because they have the time to do it and because they do not have the other work to do.
I repeat that the old days of idealism are over. I know that the noble and learned Lord, Lord Hailsham of Saint Marylebone, practised in those days of idealism, as did the noble and learned Lord, Lord Denning. I say with humility that I did the same in regard to my own profession. Those days ended when the state obligation was enshrined in a statute and there was a cry from the Government that they no longer needed charity at the Bar or in the solicitors' profession and that they were going to pay so that those who needed justice could have it regardless of means.
6.45 p.m.
Lord Hailsham of Saint Marylebone: I said to the Committee, and it is true, that from 1945 onwards until I took up relatively high office I too was working under the legal aid system and I took both kinds of work.
Lord Mishcon: I accept that at once. Unless there is any misunderstanding let me make it perfectly clear that I was not saying that idealism had died in the profession. Of course it has not and of course there are many volunteers at legal aid centres, advice centres, law centres and other such places. However, if we are tackling the real problem I make the point that either one is saying that legal aid is a charity and people who take it on are doing so charitably or one pays a fair remuneration for the work, which is what this amendment is trying to establish.
Lord Elwyn-Jones: I am very glad that my noble friend added those words because the impression that the legal profession is now totally dominated by selfishness and fee earning and has lost its capacity for idealism is a complete misconception in my experience of it. I have found in the running of law centres, for instance, and of legal advice centres the immense willingness of young people to do a great deal of the work for nothing and when they undertake it as full-time work to accept the most modest of remuneration.
It has been one of the most moving things to see how the young rally, and not only in the profession of the law. There is still a great strength in this country of willingness to serve in various ways. In my experience of the legal profession that certainly applies. Let us not be too romantic about those old days when the noble and learned Lord the Lord Chancellor and I used to do cases for nothing. The

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noble and learned Lord the Lord Chancellor did not go as far as South Wales, to the coal mining areas to do it.
Lord Hailsham of Saint Marylebone: I did.
Lord Elwyn-Jones: Oh, very good, I did not realise that. I thought that the noble and learned Lord the Lord Chancellor, like myself, would have a more intimate experience of these matters. But let us not be romantic about it. That was not a way to conduct the serious job of instructing someone to do a case. One suddenly had a brief thrown at one at the last moment. A great deal of the work consisted of dock briefs. I heard the noble and learned Lord, Lord Denning, being most romantic about dock briefs. They were a ridiculous method of helping a client who should have been given an opportunity properly to instruct counsel. Brilliant as the young Mr. Denning must have been, proper instructions to counsel were something which did not exist. The law is not a game which is expensively played by lawyers for their own delectation and benefit. I do not regret the passing of those days.
The provision of legal aid is a crucial social and public service. That should not be overlooked. The community has gone into the business of increasing the scope of the law in the life of the citizen, for better or worse— in many ways for better. The machinery of the welfare state and the tribunals that have arisen have made necessary and called for the provision and participation of lawyers. Therefore, the answer is not to approach the problem as a generous piece of giving away of public money unnecessarily. It is a public service. It is an important social revolution, which was achieved following the recommendations of all parties at the end of the war. It was taken up by the government in which I had the honour to be in the humblest of positions as a Parliamentary Private Secretary to the Attorney-General—the lowest of all positions in government. It was a matter of pride to me that at that time, along with Hartley Shawcross and others, we brought the legal aid process into being. I will not have it decried and dismissed as some strange, expensive and extravagant eccentricity which exists merely to line the pockets of lawyers. It is an important public service.
Whether I shall go into the precise detail of all that is contained in Amendment No. 40 is a matter which I should like to ponder. However, we shall be guilty of a dangerous lack of realism if we do not bear in mind that we are dealing with an important public service—the provision of legal assistance for those who cannot afford it. The result has been that a great mass of injustice has been reduced and removed by the existence of legal aid, both in the civil field and in the criminal field. I do not think that any lawyer need apologise for the existence of legal aid services or the fees that are properly paid for it.
The Lord Chancellor: We have had a very extensive debate on the amendment. As the Committee will know, there are more amendments to follow which deal to some extent with the same matter. I should like to summarise the position as I see it. I do not
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expect to be able to encompass all the comments that have been made. However, I shall concentrate on the central issues as I see them.
First, I should like to say that I am personally as committed as anyone here to the independent legal profession. I came into government, as many Members of the Committee will know, from having held the position of elected head of the Bar in Scotland. Those who are familiar with that part of the country will know just how independent the Bar in Scotland is.
Secondly, I should certainly not wish to have any responsibility for a decline in the standard of service that may be provided under the legal aid statutory provisions. I believe that it is among the fastest growing of the social services in real terms. It is an important part of government expenditure on those social services and therefore government's responsibility in the matter must be clearly seen.
My noble and learned friend Lord Ackner introduced the amendment with his usual clarity. On this occasion I had no difficutly whatever in following him, as he had drafted the amendment himself. I am also glad to say that I do not intend to attribute to him in moving the amendment anything in the nature of a superannuated shop steward. Whatever residues of shop stewardship may still be with him, he is far from being superannuated.
Turning to the substance of the amendment, it is important that we understand exactly what is proposed. It is proposed that the particular form of regulations to deal with all forms of civil legal aid should, for as long as this Act lasts, be in that particular form. That is the purpose of putting the amendment into the statute. The regulation-making power would enable the Lord Chancellor to make regulations such as those if he felt that they were the correct regulations in the circumstances. The amendment forces the Lord Chancellor, for all the time that the Act remains on the statute book, to adopt that particular form.
Is that a wise thing to do? Let us take the situation in matrimonial costs. My noble and learned friend Lord Ackner informed the Committee about developments in that connection. There have been developments in terms of matrimonial costs and it has now been possible, thanks to the co-operation of the profession, to agree in a fair degree of detail, and certainly in principle, on regulations which regulate matrimonial costs. At the present time, I believe that those regulations proceed on the basis of prescribed rates rather than on the basis of standard fees. In any case, that is a step towards a new method of dealing with that particular branch of civil legal aid.
The vast proportion of civil legal aid is expended currently on matrimonial causes and personal injury actions. There are others, such as a number of legally-aided passing off cases and the like; they are insignificantly small and special provisions could be made for them. The vast bulk of cases are in those two broad categories. I see the possibility of having a system which will enable us to simplify the preparation of accounts in cases of that kind.
One of the consequences of the present system, as my noble and learned friend Lord Hailsham has said,

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is that there is a great deal of delay in payment of legal aid fees for civil work. We have tried to mitigate that by a scheme which, as my noble and learned friend has said, he initiated with his usual vigour in defence of the profession. That was and is at least partly a consequence of the fact that a system of fixing remuneration on the lines of the amendment was in use. Anyone who reads the amendment will immediately see that it is intended to deal with remuneration after the work has been done. That is in line with a principle which is dear to the profession, so far as one can judge from the number of times it is reiterated. The principle is one of allowing fair remuneration for the work actually and reasonably done. The work has to be done before remuneration is arrived at.
It will be a great step forward if we can arrange a system in which the basis of remuneration, the rates of remuneration and (if we go to standard fees) the remuneration for substantial pieces of work can be determined in advance. It will make it a lot easier to pay earlier. In my submission, it will make it a lot easier in a number of respects.
A most important matter in this connection is that by the method here proposed the regulations will have to be laid as regulations before Parliament. For civil legal aid that is not the case at present so far as rates are concerned. If rates are fixed by regulation they will be rates that are put before Parliament and Parliament will have every opportunity to consider them before they become the binding rates for the profession. The flexibility of the Bill as at present constituted may well turn out to be of considerable value to both branches of the profession.
7 p.m.
I am dealing at present with the form of the amendment. There are other matters—the principles to be applied—which the noble and learned Lord, Lord Ackner, wishes to have dealt with later. For simplicity, in order to focus on the points at issue in the amendment, I propose to leave that over. I may have something to say about it, as Members of the Committee will imagine.
My objection to the amendment is that for the length of time that the Bill lasts it forces the remuneration to be fixed in accordance with these methods. I quite understand that this method, subject to a minor change or two that my noble and learned friend has introduced into the drafting, is the provision that has operated in the past in civil legal aid generally. However, as has been said more than once, the mere fact that it has operated in the past does not necessarily mean that it is incapable of improvement. To introduce flexibility enabling us, for example, to fix standard rates for standard work approved by Parliament is surely an advance. It means that Parliament will see rates when they are fixed, the rates will then be entirely public and of course any sensible regulations will have some flexibility. The particular rate may not apply to every possible type of case; there may require to be exceptions.
Much has been said with which I agree about the need to maintain standards. I am slightly concerned
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about the question of complete competition. I do not think that it is likely that the public service of legal aid could pay figures that will command the top of the profession all the time. That is probably more than my noble and learned friend and Members of the Committee who supported the amendment will have in mind. I feel sure that those who are at the top of the profession and therefore generally able to command very high rates will think it their duty to take legal aid work from time to time. At least I hope that would be the tradition.
It would be wrong for me to sit down without saying one word about what was said by some noble Lords with regard to the present idealism in the profession. I entirely accept that the profession is entitled to be remunerated for work done under the legal aid scheme. The regulations in the Bill will certainly so provide. I think that it would be right for me to say that I appreciate fully the work done, for example, by the Free Representation Unit that the Bar has set up. It gives excellent service and supports what the noble and learned Lord, Lord Elwyn-Jones, said: idealism—the desire to help people—is still very much alive at the Bar. I intend in the legal aid scheme to depend not on those good qualities but on the good quality of service in return for proper remuneration.
Lord Ackner: Anyone who had joined the debate knowing nothing of the background and hearing references to unconstitutional suggestions and fixing the situation in a mould that was unsatisfactory would never have dreamed for one moment that the amendment being proposed was merely to put back that which has existed mutatis nultandis since 1974. I do not follow—I am delighted that my noble and learned friend the Lord Chancellor has not sought to support it—the proposition that for the last 13 years there has been an unconstitutional provision operating in the Act of 1974. I think that the in terrorem speeches about unconstitutionality will have to be regrouped when one comes to debate Clause 32, which I was anxious to keep in its own compartment.
My noble and learned friend the Lord Chancellor has given us no indication about whether the taxation appeal system will apply; in other words, whether the judicial process ultimately of fixing fees will give way to the administrative process which certainly the scrutiny team wished to have in mind. I hope that there will be an opportunity later in the debate for him to deal with it. I hope too from his silence that the Government remain committed to the response that I read out, which was that those of small and moderate means should have the same chance to pursue or defend legal rights as those in a position to instruct lawyers privately.
What I think is being overlooked and can be developed later is this. We do not have a system in which the majority of work is private and here and there the practitioner does legally assisted work. Fifty per cent. of the practising Bar—I know not the position with solicitors—does crime, and crime is publicly funded work, so members of the Bar are totally . dependent upon legal aid fees or their equivalent. I am told that 70 per cent. of all

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matrimonial work is legal aid on both sides. Therefore, we do not have the situation that applied in the time of the noble and learned Lord, Lord Denning, and later and in the time of my noble and learned friend Lord Hailsham where occasionally and quite rightly one did assisted work as a matter of obligation to the profession. Here there is a high proportion of people totally dependent upon legally aided work. If they cannot afford to do that work, as has already been pointed out—I shall point it out again when we consider Amendment No. 48—this will have a serious effect on recruitment and in due course on the entire administration of justice. I leave that over for one moment.
Perhaps I may make this observation about the romanticism of the dock brief to which reference has been made. I was a very young man when the dock brief system was operating after the war; I had only just been called. I was delighted to get dock briefs because one had to break the vicious circle of getting work to be known and being known by getting work. When the word went round that there was going to be a docker, those of greater seniority than I was could be seen getting out of court like greased lightning because they could not afford to be landed with the obligation of the dock brief, which for all they knew might be a fight in those days for even two or three days. These rose-coloured spectacles are perhaps too deeply tinted among those of my very senior noble and learned friends.
I listened to the short observations made by my noble and learned friend the Lord Chancellor. The amendment was designed to draw him out. He has not been drawn very far but then that is not his main characteristic. I shall ponder upon his observations. I shall consider them in the light of what will be the main debate upon this matter in Clause 32, which comes to grips much more firmly with the basic philosophy of the legislation and its consequences. At this moment in time I do not press the amendment.
Amendment, by leave, withdrawn.
Clause 18 agreed to.
Clause 19 [Competent authorities to grant representation under this Part]:
Lord Elwyn-Jones Lord Elwyn-Jones moved Amendment No. 41:
Page 16, line 11, leave out subsection (9).

The noble and learned Lord said: This amendment leaves out subsection (9) of Clause 19, which provides that
"An order under section 2(4)"—
that is the provision giving wide powers to make orders—
"may make provision restricting or excluding the competence of any court mentioned in any subsections (2) to (7) above and may contain such transitional provisions as appear to the Lord Chancellor necessary or expedient".
Subsections (2) to (7) are a vital part of the arrangements for the provision of criminal legal aid. They are of crucial importance in the running of the courts where criminal aid is called for.
The proposal in the clause in effect will subvert and do away with the present arrangements with regard to the grant of legal aid for representation in criminal
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cases. At the present time a decision whether or not legal aid should be granted in criminal cases is for the courts to make and is controlled by the courts. No doubt the public interest in seeing that justice is fairly and properly applied, and that there is a proper legal representation where it is necessary, is a crucial part of the fairness of our criminal justice system.
We submit from this side of the Chamber that Clauses 18 and 19 substantially affect and limit the power of control by the courts. In our view that control should be maintained in the courts for three broad reasons. First, the court is always in the best position to judge whether representation is necessary. It has the experience and the detail of the case. It sees the applicant and it is interested in the proper and fair administration of justice. Secondly, control by the courts and by the judges assists the courts to control and regulate their own proceedings. Thirdly, control by the courts enables applications to be dealt with expeditiously and thereby prevents unnecessary and undesirable delay in the criminal process.
I notice that the noble Lord, Lord Meston, is a co-signatory to the amendment that was initially in the name of my noble friend Lord Mishcon. We on this side of the Chamber are opposed to the power being given to the noble and learned Lord the Lord Chancellor, generously as he would do his best to interpret it, to remove that control from the courts by order made under Clause 2(4). I cannot recollect at the moment whether affirmative resolution was necessary with regard to Clause 2(4). I think that it was.
7.15 p.m.
The Lord Chancellor: Perhaps it may help to say that I undertook to make such provision in that clause.
Lord Elwyn-Jones: I am grateful. That was lying at the back of what I am pleased to call my mind. I am glad that my recollection is correct. That modifies the mischief in that the power can be examined again before it is granted by the House and another place to the noble and learned Lord. However, for the reasons that I have given, Clause 19(9) should be deleted from the Bill in the interests of the fair administration of justice in this land.
Lord Meston: Very briefly I support the amendment in the interests of retaining control by the courts for each of the three broad reasons advanced by the noble and learned Lord, Lord Elwyn-Jones. Like him, I am somewhat comforted to know that there will now be an affirmative resolution procedure in these matters.
The Lord Chancellor: As Members of the Committee know, the purpose of setting up the Legal Aid Board is first to take over the functions at present with the Law Society in relation to legal aid. That is clearly the first step. However, there is a lot to be said for legal aid being administered by one authority. At the moment legal aid in criminal cases is administered in effect by the courts. If my memory is correct, on a past occasion I have heard the noble and learned Lord, Lord Elwyn-Jones, mention the discrepancies

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that occurred between one court and another in the grant of legal aid. To some extent that has been mitigated as the result of arrangements that have been made, but there may still be a certain amount of difference between one court and another in this field.
When the Legal Aid Board is set up the Government wish this aspect to be considered by it. If there is no objection to it taking over this function of legal aid in criminal cases I would be empowered under the provisions of Clause 4 to give it that function. I have undertaken that this exercise of power will require affirmative resolution of both Houses of Parliament. Noble Lords would therefore know of the position and would hear my justification for such resolution in the light of the circumstances as they then obtained.
It is a comment on the system we have adopted that everything is not being done at once. There is something to be said for doing this in stages, for examining the situation as we proceed; and accordingly, while nothing is intended to happen immediately, the subsection is a very important part of the Bill and should remain there. Therefore I oppose the amendment.
Lord Elwyn-Jones: Much will turn on the outcome of the control which the noble and learned Lord the Lord Chancellor will impose in the exercise of those powers. That is something we shall have to see when the intentions of the noble and learned Lord are announced and when he seeks the leave of noble Lords and of another place for what is done. The better course at this stage is to reserve judgment on the matter and return to the issue again on a future occasion. In those circumstances, I ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 19 agreed to.
Clause 20 [Availability of representation under this Part]:
Lord Elwyn-Jones Lord Elwyn-Jones moved Amendment No. 42:
Page 16, line 23, at end insert—
("The factors to be taken into account by the competent authority in determining whether it is in the interests of justice that representation be granted in any case shall include the following—

(a) that the charge is a grave one in the sense that the accused is in real jeopardy of losing his liberty or livelihood or suffering serious damage to his reputation;

(b) that the charge raises a substantial question of law;

(c) that the accused is unable to follow the proceedings and state his own case because of his inadequate knowledge of English, mental illness or other mental or physical disability;

(d) that the nature of the defence involves the tracing and interviewing of witnesses or expert cross-examination of a witness for the prosecution;

(e) that legal representation is desirable in the interest of someone other than the accused as, for example, in the case of sexual offences against young children when it is undesirable that the accused should cross-examine the witness in person.").

The noble and learned Lord said: Those of us who are presently in the Chamber will not be immediately familiar with the Widgery criteria. It may be helpful if I were to explain that Lord Widgery set out what he considered and advised were the factors that
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should be taken into account by the competent authority in determining whether, in the interests of justice, representation should be granted in any case where an application for representation is made. Those criteria have been included as the basis of the approach of the criminal courts to the granting of legal aid ever since the Widgery criteria were introduced.
It is significant that for some reason for Scotland the inclusion of the Widgery criteria in the Legal Aid (Scotland) Act 1986 was considered necessary and desirable. However, the Government have not thought that necessary for England and Wales. I do not know why we should be so unhappily treated, bearing in mind the more openhanded approach to our Scottish brethren. What is activating the Government's mind in leaving out the Widgery criteria as guidance to the courts in deciding whether or not to grant legal aid?
When one looks to see what the criteria are, I have little doubt that those of us still in the Committee will think that they are very reasonable factors. They are all set out in the amendment. I do not know that I need read them all, but perhaps I may briefly refer to them:
"The factors to be taken into account by the competent authority in determining whether it is in the interests of justice"—
that is a crucial phrase—
"that representation be granted in any case shall include the following".
There then follow five significant tests that ought to be applied. The first is,
"that the charge is a grave one in the sense that the accused is in real jeopardy of losing his liberty or livelihood or suffering serious damage to his reputation";
secondly,
"that the charge raises a substantial question of law";
thirdly,
"that the accused is unable to follow the proceedings and state his own case because of his inadequate knowledge of English"—
that is true of parts of the Principality—
"mental illness or other mental or physical disability".
Then we find,
"that the nature of the defence involves the tracing and interviewing of witnesses or expert cross-examination of a witness for the prosecution";
and finally,
"that legal representation is desirable in the interest of someone other than the accused as. for example, in the case of sexual offences against young children when it is undesirable that the accused should cross-examine the witness in person".
The Committee may think that that guidance to the court exercising this important responsibility would be welcomed by the court. The noble and learned Lord may say that the court will apply those kinds of factors in any event, but if it is to be a duty for the competent authority in determining whether representation shall be granted the Act of Parliament itself should set out those factors that ought to be considered if an application for representation is made. The critical words, as my noble friend Lord Mishcon reminds me, is that the factors shall include those as a minimal test of what should be considered as the law. If there are other factors for the court to

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consider, that would properly be in the power of the court, if this became part of English and Welsh law.
Accordingly, I hope that the noble and learned Lord the Lord Chancellor, coming from where he does, may think that, not for the first time, the wisdom north of the border in the field of the administration of justice is one that we should be well advised to follow and apply also statutorily the consideration of the Widgery criteria here. I beg to move.
Lord Meston: In supporting the amendment, I suggest that the Widgery criteria enshrine important factors. I know that the Bar considers that the Widgery criteria should be expressly preserved in this way. The exclusion of the criteria would give the competent authority under the Bill an unfettered discretion, particularly so if Clause 19(9) stands, as has been agreed under the previous amendment.
The Lord Chancellor: The situation so far as concerns England and Wales and so far as the statutory provisions apply is that the phrase here has been "in the interests of justice". It is from that phrase that Lord Widgery developed these factors. In other words, the authority was that phrase. We are really duplicating the issue, when one examines the matter thoroughly, by putting in "in the interests of justice" and these factors as well. As I have said, the factors in the amendment are simply an explanation of factors which would be taken into account according to the criteria.
The noble and learned Lord, Lord Elwyn-Jones, pointed out that these words are incorporated in the Scottish Act passed last year. Obviously that fact weighs with me somewhat. In this case the court remains in charge, at least for a time, and the case for enshrining the criteria in statute here for the first time has not been made out. It is not a point about which I feel very strongly. Personally I do not think it would be important one way or another. If the profession feels very strongly about it for good reason, obviously I should be happy to consider that. The noble Lord, Lord Mishcon, indicates that it does. That may be so; on some other occasion I should like to discuss the matter a little further. The noble and learned Lord was kind in his introduction of the amendment and the noble Lord, Lord Meston, supported it. However, I have not heard of any difference that would be made if it were left out. As far as I can see, it would make no difference and it is for that reason that, at the moment, I am not persuaded that it is necessary to lengthen the statute book by this particular addition. As my remarks indicate, I feel open about the matter but I should prefer to consider it further.
Lord Elwyn-Jones: As the noble and learned Lord has undertaken to consider the matter further I shall not press the amendment. However, I assure him that this is taken seriously by the Bar and the solicitors' profession. I hope that in his reconsideration he will give due weight to the fact that both aspects of the legal profession in England and Wales attach importance to maintaining the Widgery criteria as part of the criminal law They also take the view that
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the noble and learned Lord's good friends north of the Border will not introduce sheer irrelevance and sheer verbiage into one of their Acts of Parliament. I cannot think that he would dismiss them as recklessly as that. In view of what has been said by the noble and learned Lord, I ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
7.30 p.m.
Lord Mishcon Lord Mishcon moved Amendment No. 43:
Page 17, line 26, leave out ("may") and insert ("shall").
The noble Lord said: I can deal with this amendment shortly. I stand to be corrected, but I believe that in discussion on another statute it was made abundantly clear that where legal aid was refused in a criminal case by the magistrates' court there would be an appeal procedure. The wording of Clause 20(10) of the Bill as it stands reads:
"Regulations may provide for an appeal to lie to a specified court or body against any refusal by a magistrates' court to grant representation under this Part".
All we ask is that that should he mandatory and that the regulations must provide for this right of appeal. It is a vital issue to any defendant. I beg to move.
Lord Meston: To say that there may be an appeal procedure is thoroughly uninformative and unsatisfactory. I support the amendment.
The Lord Chancellor: As I mentioned a while ago, there was a complaint about the divergence between courts in relation to the granting of legal aid. The 1982 Legal Aid Act provided for the establishment of criminal legal aid committees of the Law Society whose purpose is to hear such appeals in certain circumstances. Those committees will transfer to the board once it takes over. However, an appeal does not lie in all circumstances. An appeal from a magistrates' court's refusal to grant legal aid could be made if the applicant had been charged with an indictable or either-way offence and if the application had been refused on interests of justice grounds. There is also a restriction on the timing of applications which effectively means that if an application for legal aid is made too close to the date fixed for the trial there can be no appeal. Obviously, that would be an easy way of postponing the trial.
There is no right of appeal where the applicant is refused legal aid on the ground of means. It is my intention that those arrangements should continue but I do not intend to extend the right of appeal. Those arrangements appear to work quite well and I see no reason to extend them further.
As I understand it, the amendment would require there to be a right of appeal in all cases, and for that reason it is unacceptable. The noble Lord shakes his head and no doubt he will explain to me why he does so. However, that is the explanation for the use of the word "may". Obviously, one could write out all of these conditions but I hope that it will be best left to regulations. Apart from anything else, it will give us the opportunity to consider the system as it goes along. No system is absolutely perfect and it may be necessary to alter the situation as the years go by.
Lord Mishcon: The noble and learned Lord will realise that as the Bill now stands there need not be any regulations for an appeal to lie in any case at all. Therefore, with great respect, what he has said does not apply. If there are regulations which shall be made, they will permit an appeal and lay down the procedure, and there could be an exception to the rule in the kind of case about which the noble and learned Lord speaks. However, at the moment there is no obligation to have any regulations at all providing for an appeal.
If, on consideration, the noble and learned Lord wanted to add to this provision words to the effect that the regulations which make provision for an appeal can be subject to certain conditions or exceptions and that they will then come before Parliament in the normal way, I should obviously bend my head in approval and say that I can understand the point. However, I repeat—and I hope not ad nauseam—the fact that, as the Bill stands, no regulations for an appeal need be made at all. Taking that point on board, possibly the noble and learned Lord would care to say that it may be that at Report stage he would like to add the provision that there need not be an appeal in every case but that he would at least wish to see that the regulations must be made.
The Lord Chancellor: I am saying that we intend the present system, as enshrined in the Legal Aid Act 1982, to continue, and regulations will be made so to provide. The Bill does not lay an obligation on us to do that but it provides us with the power to do that. I am telling the noble Lord that I intend that that power should be exercised in that way. I think that the result will be a happy one.
Lord Mishcon: As do all Members of the Committee, I wish the noble and learned Lord an extremely long tenure in his office and an extremely long and healthy life. However, the fact that at this moment he says that he intends to make certain regulations is surely not a way of dealing with legislation when we all know that the regulations ought to be made. If the noble and learned Lord wishes me to withdraw the amendment, I appeal to him to say that he will at least consider adding words which make it mandatory—he cannot lose anything if he intends to do so—that such regulations will be made to provide for an appeal, even though not applying to every case. If the noble and learned Lord says that he will consider that point, I shall take a certain course.
The Lord Chancellor: I am certainly happy to consider something along those lines. I am not absolutely certain whether it will add anything to the Bill but I am willing to consider the noble Lord's proposal.
Lord Mishcon: If nothing is added and nothing is subtracted, presumably no harm is done. In view of what the noble and learned Lord has said, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Earl of Arran: I believe that this would be a convenient moment at which to break for dinner. Perhaps I may suggest that we return to the Committee stage of the Bill not before 8.40 p.m. I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

Income Support (Transitional) Regulations 1987
7.40 p.m.
The Countess of Mar The Countess of Mar rose to move, That an humble Address be presented to Her Majesty praying that the regulations (S.I. 1987 No. 1969) be annulled.
The noble Countess said: I beg leave to move the Motion standing in my name on the Order Paper. In doing so, I will use plain language to explain my concern about the drafting of these regulations. I will begin with a simple drafting error on page 12. In Regulation 14(3) on the sixth line and Regulation 14(4) also on the sixth line the word "it" is printed instead of the word "if". Since amending regulations may be necessary to correct the error, is the Minister prepared to take this opportunity to clarify the drafting in other regulations, in particular, 15(1)?
I believe that the most important role of your Lordships' House is to ensure that the meaning of any legislation which passes us is clear. Regulation 2(1) states:
"In these regulations, unless the context otherwise requires".
That means that the interpretation of "transitional addition" as an amount of income support applies only within the transitional regulations. As a result, former beneficiaries under supplementary benefit who will not qualify for income support under the main regulation but who will qualify for transitional addition will be deprived of free prescriptions, legal aid, dental care, vouchers for spectacles and other benefits to which they are now entitled. Is it really the Government's intention so to deprive this group? If not, what is their intention?
I understand that the Government mean to exclude those currently receiving housing benefit supplement from transitional addition. If this is so, the definitions of a "former housing benefit recipient" and a "former beneficiary" as separate interpretations may not be adequate to ensure their exclusion. The definition of a former beneficiary includes all those receiving supplementary benefit, including housing benefit supplement. The two definitions fit into neither,
"special provisions override general ones",
nor
"to state one thing is to exclude another".
principles. The Minister should have another look at these.
I now move to the general aspect. The Government have frequently stated that it is their intention that no beneficiary will be worse off after the change to income support. If they mean this, it seems to me that the rate of benefit paid at the changeover to income support is critical. The two weeks allowed for a

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claimant's normal situation to be assessed are not enough. There are a number of circumstances where a claimant's position could be abnormal during these two weeks; for example, if he is in hospital. It is a matter of chance whether he will be given a fair allocation of transitional addition. It would be sensible to extend the assessment period to, say, 13 weeks and also to include in the regulations a definition of what is a claimant's normal situation. We would then be sure that those who most need help receive it.
There is a special linking rule for those who go into respite care while they are receiving special transitional addition, but there is no protection for those receiving the basic transitional addition. The Minister for Social Security in another place gave a clear commitment on Central Television's "Link" programme on 1st November 1987 that a period in respite care would not lead to a loss of transitional addition. The Minister must surely agree that public promises given by government Ministers must be made law.
I will now deal with the claimant who needs £10 or more a week to meet the reasonable cost of private domestic help and who receives a domestic assistance addition. Where he is not entitled to a severe disability premium the effect of Regulations 10(3), 10(4) and 10(5) will lead to reduced transitional additions. To take your Lordships through the complexity of this calculation I really need a blackboard and chalk so I hope you will bear with me. For example, a claimant receiving a domestic assistance addition of £18 a week, with no severe disability premium and with a total benefit income in benefit week one of £75·10 and in benefit week two of £46·45, would receive a transitional addition of £10·65. He is also entitled to a special transitional addition as he is receiving domestic assistance addition.
In Regulation 10(5) the special transitional allowance is £6·75, the difference between £18 and the severe disability premium of £24·75. After 11th April 1988 the claimant will lose £11·25 a week. If such people are not to be penalised, the drafting of Regulation 15(1) should read, from the middle of the fifth line:
"He shall be entitled to a special transitional addition of an amount equal to the difference between his domestic assistance addition and his severe disability premium if any is applicable".
In a debate on the Social Security Bill the noble Baroness, Lady Trumpington, said about the severely disabled:
"We have all along made it clear that such people would not face a cash loss at the time of the change to income support".—[Official Report, 23/6/86; col. 21.]
This assurance has not been carried into these regulations and it seems that those in receipt of a high rate of domestic assistance addition are least protected.
Living near to me is a tetraplegic man who, with the assistance of two community service volunteers, copes very well with his disability. Without them, he would be unable to live in the community. CSVs determine what volunteers are paid, allowing for their food, clothing and personal expenditure. In the
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past the rate has been reviewed annually and any increase has been accepted by the DHSS. As expenses will certainly increase over the years, may I ask the Minister whether he will include a mechanism where transitional allowances will be uprated to reflect increases in the cost of volunteers on an actual basis rather than some other as yet undetermined formula such as RPI, where domestic care is being provided by such organisations as community service volunteers or independent living schemes? Is he also prepared to provide a means by which special transitional addition could be increased if domestic assistance costs increase; for example, if the claimant's health deteriorates and his need for domestic assistance is greater?
Another family living nearby has an extremely complex array of social security benefits. The father, the claimant, suffers from Crohn's disease. He has had most of his gut removed and is restricted to an expensive high protein, low roughage diet. He also receives attendance allowance, a laundry addition and a mobility allowance. His son, aged 15, suffers from cystic fibrosis and must have a high protein, low fat, low roughage diet. An attendance allowance is paid for him. Their total diet addition, paid on an actual cost basis, is about £75 a week. The son will be 16 after 11th April 1988 and will be leaving school in July. He will not be fit for full-time employment and he has been advised by his careers officer to apply for benefits in his own right in September. As a result, the family will lose his transitional addition, despite the fact that its circumstances will be unchanged.
There is a need for a means of transferring from dependant to non-dependant status. Similarly, should the father cease to be able to be the claimant, there is no provision for transfer of transitional addition to the mother where the child is a dependant.
I fully appreciate the need for this statutory instrument but it must be made clear. Although I have not covered all the points, I hope later speakers will do so. The drafting falls well below the standard essential if the promises given by the noble Baroness, Lady Trumpington, and other government Ministers are to be put into effect. We would also be failing in our constitutional duty if we let it pass without revision.
Moved, That an humble Address be presented to Her Majesty praying that the regulations (S.I. 1987 No. 1969) be annulled.—(The Countess of Mar.)
7.48 p.m.
Lord Carter: My Lords, I should like to begin by thanking the noble Countess, Lady Mar, for putting down this Motion, which I believe provides the only opportunity in either House to discuss these extremely important regulations. As she said, there are a number of detailed points which have to be made on these regulations, which are of their nature extremely complex.
However, I should first like to ask the Minister a question on a general point. Is he able to tell the House how much the Government saved by not uprating certain benefits in line with an inflation rate of 3.2 per cent? This uprating was not carried out to

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take effect in April 1988. Is it possible to give the House an indication of the savings that resulted from doing that so that all those receiving income support will be 3.2 per cent. worse off than they otherwise would have been?
On a second general point on the overall cost of the transitional protection, Mr. John Moore, the Secretary of State for Social Services, speaking in the other place on 27th October 1987 said that the cost of transitional protection is £200 million. Presumably without that £200 million those receiving income support would have seen a reduction in their benefits of that amount. In other words, the £200 million represents what would be the underlying reduction in value in income support if there were no transitional protection. I should like the Minister to comment on that point.
I now move to a more detailed consideration of the regulations. I am sure that the Minister knows that there is considerable concern, as the noble Countess, Lady Mar, said, among the disabled and their organisations regarding the effect of the changes commencing in April 1988 on their existing rights, under current regulations, to free prescriptions, dental treatment, vouchers for glasses and the like. May I ask the Minister whether those rights are fully protected under the new regulations or are amendments required in other regulations to protect the existing rights? If amendments are required will the Government undertake to introduce the necessary amendments to make sure that the existing rights are protected?
The matter of respite care was referred to by the noble Countess, Lady Mar, and as she said, the Minister for Social Security and the Disabled referred to this in a television programme. To assist the noble Lord the Minister, I shall quote from a transcript of that programme.
"But on respite care there's no question of anybody losing their entitlement to transitional protection as a result of taking advantage of respite care. That's an absolute clear assurance that I can give today".
He continued:
"But I know there has been some worry about respite care and I think it is very important to set people's fears at rest on that particular count".
Those are the quotations from the transcript of the programme. I ask the Minister to confirm that there are no circumstances in which anyone receiving transitional protection and entering respite care will risk any reduction in the level of transitional protection if the spell in respite care is the only change in the circumstances of the claimant.
On reading the regulations, everything seems to depend upon the claimant's total income in just two crucial weeks—the last week on supplementary benefit and the first week of income support—the weeks of 4th and 11th April of this year. Would it not have been much fairer, as the noble Countess said, to relate the level of transitional protection to the claimant's normal income from benefits? What if there is some temporary change in circumstances affecting the claimant in the crucial two weeks which control the level of transitional protection? The noble Countess referred to a spell in hospital. What is the
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effect on the level of transitional protection if someone is in respite care for the crucial two weeks? I repeat that it would surely have been much fairer to base the level of transitional protection on the normal income of a claimant, however defined, from benefits before and after the changeover of the system.
There are many other detailed points where the regulations are, to say the least, obscure. The noble Countess, Lady Mar, has referred to a number of them. Besides these important points of detail, there is the central point that the Government have refused to undertake to uprate the levels of benefit under transitional protection in line with inflation. As it stands at the moment there are some claimants who may have to wait for 10 to 15 years for income support to catch up with their transitionally protected level of benefit. In addition, any change in their circumstances in that time could result in a substantial reduction in their income.
We are still awaiting the details of the long-promised scheme to assist those who become newly disabled after April 1988. As the regulations are now, they stand to receive a much reduced level of benefit compared with those who were disabled before April 1988.
There is much distress, concern and worry throughout the whole of the disabled community regarding the effects of the new Act. I hope that when he comes to reply the Minister can allay at least some of those fears, and particularly those which arise from the complexity of these regulations.
7.55 p.m.
Lord Banks: My Lords, I should like to make a brief general comment on the Motion so ably and comprehensively moved by the noble Countess. I join in the thanks to her which were expressed by the noble Lord, Lord Carter, for providing us with the opportunity to discuss these regulations.
My principal concern is with Part II of the regulations—provision of transitional protection. We know that the object of transitional protection is to ensure that there is no reduction in the actual cash which a claimant is receiving on income support as compared with supplementary benefit. If the new entitlement is lower than the old, then the new under these regulations is made up to the level of the old by a transitional addition. I have two concerns about that. The first is the very considerable number of people who will need transitional protection. The second is the fact referred to by the noble Lord, Lord Carter, that the transitional protection is not index-linked so that the claimant who receives transitional protection is gradually lowered to the new, real value which will immediately affect new claimants.
On December 9th when the noble Earl, Lord Arran, was answering a Question put to him by the noble Lord, Lord Carter, I asked a supplementary question concerning the number of pensioners who will receive transitional protection. I asked whether it was not a fact that they would all suffer a loss in real value. The noble Earl indicated that he would write to me on those two points and he did so on 14th December. I am very grateful to him for writing to

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me. I am rather puzzled by his reply and I should like to read the second paragraph of the letter. It states:
"We estimate that around 650,000 pensioners will receive a normal transitional addition".
The House will see from that what I meant when I spoke about the very large numbers of people who are going to require transitional protection. The letter continues:
"which will remain in payment until either they lose entitlement to benefit or until their rate of income support increases to overtake their former level of benefit."
That we understand. The noble Earl's letter continues:
"After the uprating in April 1989 it is estimated that the number of pensioners still needing transitional protection will have reduced to 270,000. Thus the majority will not suffer a decline in the real value of their benefit."
If the noble Earl is correct in that last sentence, it would seem to imply that 270,000 pensioners will suffer a decline in the real value of their benefit. I wonder whether the noble Earl is correct, because it seems to me that the phrase,
"thus the majority will not suffer a decline in the real value of their benefit",
is a non sequitur. It seems to me that after a year has passed the 380,000 pensioners who no longer require transitional protection will have found that their new entitlement to income support will have reached the level that they were formerly receiving.
In order for them not to have suffered any decline in real value it would have been necessary for the transitional protection to be index-linked. The fact that it is not index-linked means that they all will suffer a decline in the real value of their benefit. In other words, 650,000 pensioners will remain entitled to benefit but they will suffer a decline in the real value of their benefit. That is one substantial reason for supporting the Motion proposed by the noble Countess.
8 p.m.
Baroness Jeger: My Lords, we could spend our time going into a great deal of detail about this statutory instrument, but the most important thing is for us to try to go back to some of the underlying philosophy. We unfortunately passed the Social Security Act last year. A main part of that Act was to provide that important matters should be dealt with by regulations and by statutory instruments and not by legislation. We have tonight an example of matters brought before us by statutory instrument which ought to have been in the primary legislation. If that had happened, and it is what ought to have happened, we should have had Notes on Clauses and more public information about these matters.
When I was trying to do some work on this matter I had to refer to the Offical Report of the other place for 11th January. At col. 177 a Minister said:
"After the draft version of the Income Support (Transitional) Regulations 1987 had been placed in the Library on 3rd November, legal advice led to a number of technical and drafting changes to ensure that the regulations more accurately reflected the original policy intentions".
I am not sure what the word "more" means. Certainly to have something more accurately rather
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than more inaccurately does not seem to give the impression that there is total accuracy in the policy intentions. This is what is before us this evening. I find it a great pity that in this short time we are having to look at something which affects thousands of people in this country and that we have only something more accurately and not totally accurately before us.
I must ask the Minister what steps he is taking to ensure that these revised regulations are being explained to his staff and, even more important, to the public. We have great difficulty, and so does the other place, in dealing with these regulations. I do not think that anybody here would claim particular knowledge or understanding of the semantics of the DHSS, but if we have problems what is the position of claimants, of people in trouble and poverty who go to their local office and do not know what to ask, and are met by people who do not know what to tell them? I must ask the Minister whether his department is putting out any leaflets to clarify this, or whether there is any way in which people can be helped to understand these indescribably complicated regulations.
I understand that the protection on the interim payments is in cash terms. I cannot find that there is any increase in April for many people who will be in need. For instance, what about people who will suddenly find themselves having to pay 20 per cent. of their rates? What is going to happen to people who may have to go into hospital for a period? Will they lose their benefit rights and their interim rights, or can they come out after a time in hospital, and if so after how much time, and then pick up their rights? When do these rules begin and when do they end?
It seemed to me, before the lawyers were brought in to put things right, that paragraph 16 in the original draft excluded persons on housing benefit supplement. In the final draft I cannot find whether people who were regularly on housing benefit supplement are still specifically included or excluded. I hope the Minister can say that they will be all right in these new regulations.
Also under paragraph 16, there is an exclusion for people on board and lodging. Why is this happening? Some of the people who are dependent on allowances from the DHSS for board and lodging are the worst off in the country. They are people who have no homes; they are people who are putting up wherever they can get a roof over their heads. If the Minister can tell me that under these new regulations they are not going to be any worse off than they are now I shall be glad, but I have not been able to read this into the statutory instrument before us.
Those are some of the most important questions which concern those of us on this side, but the basic problem is that the Government are going wrongly about this whole question of social security. They are not putting enough matters into legislation. They are relying too much on regulations to which the ordinary public has no access. I challenge the Minister to tell me what access the public has to these extensive regulations, which are not normally available and are certainly not available in the social security offices in my area of central London where

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there are many people who are in trouble and who need to know about these matters.
I hope that I have not gone beyond the rules of order tonight, but I think it is important that we should hear from the Minister what is being done to make people aware of these transitional regulations and to instruct his staff—some of whom I know are unaware of these regulations—so that we can somehow take a step forward to make the public and the people in need more informed, and the people trying to help them in his offices more informed of what they can do about these matters.
8.7 p.m.
The Earl of Arran: My Lords, I should first like to thank the noble Countess, Lady Mar, for this opportunity to debate the Income Support (Transitional) Regulations. These regulations, which provide for the administrative arrangements necessary for the changeover from supplementary benefit to income support and for the manner in which claimants' income is to be protected at the point of change, are of vital interest to several million people. I welcome this occasion to put on record just how the new scheme will affect these people.
The special administrative arrangements are needed for the change from supplementary benefit for technical reasons connected with the fact that income support is a new benefit. The second part of these regulations is concerned with the protection of the income of supplementary benefit claimants whose entitlement to income support would otherwise be less than their supplementary benefit entitlement.
The Government thought it right to provide transitional protection to protect the cash position of those who would otherwise have lost as a result of the reforms, and to ease their adjustment to the new levels of benefit. For householders, the transitional protection arrangements will also ensure that the extra benefit towards the average contribution that they make to their domestic rates will be fully available in addition to the protected allowance for other living costs. Special transitional protection, which will be protected against the effect of rising prices at future upratings, will also be available to meet the cost of domestic assistance for those few severely disabled people who had a supplementary benefit additional requirement for this cost of more than £10 and for whom the income support severe disability premium does not meet the charge.
The number of claimants who are expected to benefit from this protection is in excess of 1,400,000 at a cost of £200 million. Noble Lords are well aware of the reasons for the reforms. They have been thoroughly debated in this House and in another place. Tonight, therefore, I shall concentrate on the points raised in the debate.
Turning to the points made by the noble Countess, Lady Mar, I am pleased to be able to reassure her about her concern that former supplementary benefit recipients who qualify for transitional protection only next April will lose their automatic entitlement to "fringe" benefits such as free prescriptions, free welfare foods and dental and optical care. These benefits are of considerable importance to a large
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number of claimants and it is not the case that those getting protection only will lose their automatic entitlement to them. Transitional protection is, in fact, income support for the purpose of these fringe benefits.
However, on the proposal by the noble Countess that the comparison between the old and new schemes should cover a period of 13 weeks in all cases, I very much regret that it would not be possible, for operational reasons, to adopt it. Such a rule would be hopelessly complicated for our local office staff to administer and would jeopardise the conversion exercise. I am afraid that in most cases the snapshot has to be limited to the two weeks immediately surrounding the change. Temporary changes in circumstances may well affect protection. However, there is a special safeguard for people in residential care and nursing homes, hostels and certain types of board and lodging accommodation who are temporarily absent from their normal accommodation on 11th April. On their return to the accommodation, any protection payable will be calculated as if the claimant had been present in the relevant weeks. This special provision reflects the fact that the benefit in payment in these cases includes the cost of lodgings, as well as board, and will enable people to return to the accommodation which they had come to regard as their home.
I am grateful to the noble Countess and to the noble Lord, Lord Carter, for drawing our attention to the position of people who go into respite care. The benefit payable to single people who go into respite care provided normally by the local authority remains unchanged. Thus their protection will not be affected by the stay. The position of couples where either or both goes into local authority respite care depends upon whether they need extra benefit to meet the charge, if any. If extra benefit has to be paid, it is quite true that, as the regulations stand, normal protection would be affected. Clearly, this is of concern to the noble Countess and noble Lords, and we will certainly give further thought as to whether the circumstances are sufficiently compelling to make an exception to the normal protection rules for this group of people. We have to remember, however, that the more exceptions we make, the more complex we make the system. While we have special rules to cushion people with high domestic assistance charges against cost of living increases, we cannot protect people for each and every change in their circumstances for an indefinite period.
The noble Countess is also concerned about the special transitional protection awarded to people who do not qualify for the severe disability premium. I would remind noble Lords that we are talking about supplementary benefit domestic assistance additions of £10 a week or more. If the severe disability premium is not payable it is the intention that the whole amount of the domestic assistance addition will be protected. The interpretation of the regulation as presently drafted is a matter for the independent statutory authorities, but, as we understand it, the authority concerned is content that the provision achieves the intention. People who do not qualify for the severe disability premium will therefore have full protection for high domestic assistance additions.

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There is no provision in the regulations for uprating domestic assistance additions when the claimant's circumstances change and more help is needed, or for meeting the cost of services provided by community service volunteers or other voluntary organisations. Both I and my honourable friend the Minister for Social Security and the Disabled are well aware of the splendid work done by these organisations to enable the severely disabled to live independently in the community, but we cannot carry forward into income support the detailed rules of the supplementary benefit scheme. The new rules for the severe disability premium of £24·75 a week cater specially for live-in care provided by voluntary organisations, so the presence of this type of helper does not disqualify the claimant as regards the premium.
The noble Countess, Lady Mar, is right in her assertion that there is no provision to transfer protection from a parent to a child when that child reaches the age when he or she can claim in his or her own right. It would be difficult in some cases and impossible in others to allocate the protection to individual members of the family, particularly if part of the addition had already been eroded. Effectively it would mean carrying forward the rules of the old scheme into the new one solely for this protection. Children who become independent of their parents after next April will be able to qualify for the premiums on the same terms as anyone else, and the protection provided to the parents will remain the same in spite of this change.
The noble Lord, Lord Carter, along with other noble Lords, asked about the position of disabled people under the reforms. It is quite true that people can build up quite high entitlements through additional requirements though in practice multiple receipt is relatively rare. For example, in 1986 only 5 per cent. of pensioners and 15 per cent. of the sick and disabled under pension age had three or more of these additions. Also, I must advise noble Lords that some of these additions were in urgent need of an overhaul and, but for the reforms, I am sure that we should have had to take a close look at the reasons for, and level of, these additions. As things stand now we go forward into income support with a system of premiums which will broadly help those who need additional requirement additions now. In the long term we will keep the premiums under review, particularly in the light of the survey on disablement by the Office of Population Censuses and Surveys and of Sir Roy Griffiths' overview of community care.
In the immediate future, my honourable friend the Minister for Social Security and the Disabled has announced that he is addressing urgently the problem of how best to direct extra help to the very small group of severely disabled people who need considerable help to live independently in the community, and who claim after next April. I know that this is a matter of considerable concern to noble Lords and I can assure them that the Government intend to find a solution to it. As my honourable friend made clear in another place on 12th January, the problem is under consideration with the help of the voluntary sector.
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I should like now to turn to a few points raised during the debate. The noble Lord, Lord Carter, asked about savings in 1988–89 from uprating by 4·5 per cent., to 5 per cent. instead of 6·5 per cent. to 7 per cent. the illustrative figures set out in the technical annexe to the White Paper. It would have cost an additional £156 million in public expenditure to set the rates for 1988–89 at the higher levels.
Lord Carter: My Lords, will the noble Earl confirm that, if the figure of £150 million is correct, of the £200 million that is the cost of transitional protection, £150 million of it has been provided by not uprating the benefit?
The Earl of Arran: My Lords, perhaps I may correspond to the noble Lord on that point because it would be inappropriate for me to give an answer which was not totally accurate.
The noble Lord, Lord Carter, referred to "passporting" to benefits such as free prescriptions. I can repeat my earlier assurance that recipients of income support, including those who receive only a transitional protection, will be entitled to free prescriptions, free welfare foods and dental and optical care.
I appreciate the worries that the noble Lord, Lord Carter, has about the effect on transitional protection of admission to hospital. The income support payable to people who go into hospital after next April remains unchanged for six weeks. This means that protection also remains unchanged as the vast majority of people, over 90 per cent., are discharged from hospital within this period. They will not lose their protection beyond the six-week period. The special protection is safeguarded for a further eight weeks. Overall, therefore, these rules are not ungenerous.
The noble Lord, Lord Carter, has suggested that we should extend real terms protection to cover normal as well as special transitional additions. Cash protection is the normal way to protect existing beneficiaries when benefit rules change. The cost will be £200 million for the first year on this occasion. The special protection for the domestic assistance addition recognises the exceptional difficulties of this small group of severely disabled people.
The noble Lord, Lord Banks, raised the question of the number of people who receive transitional protection. As I said earlier, that is 1·4 million altogether. Putting that into context, under the reform scheme 2·8 million will receive more under income support than they would under supplementary benefit.
The noble Baroness, Lady Jeger, asked whether housing benefit supplement will be protected. Housing benefit supplement, which is an adjunct to housing benefit, ceases before the introduction of income support. People who were formerly recipients will be able to look to income support for assistance.
The noble Baroness raised the question of providing information to all those who will be able to take advantage of these benefits. Copies of our regulations are available for inspection in all our local offices and if the noble Baroness has had

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difficulties with offices in her area we should be very glad to hear of them.
The noble Baroness also mentioned the publicising of income support. Publicity for the income support scheme will be tackled by a variety of methods, and it might be worth spending a short time to explain this. Existing supplementary benefit claimants will each receive a short leaflet and a personalised letter explaining their entitlement under the new scheme. There will also be a new range of leaflets and postal claim forms and the existing supplementary benefits handbook will be replaced by a new, free, technical guide covering income support. This is intended primarily for advisory groups, but copies will also be available to individual claimants. The new leaflets and claim forms will be available from April, but in the meantime we have produced a pack of fact sheets about the new social security benefits, including income support, and copies are available from local offices.
No one in your Lordships' House would contest that the supplementary benefit scheme is in urgent need of reform. These regulations are crucial to that reform, and therefore I strongly urge noble Lords to give them their support.
Baroness Jeger: My Lords, before the noble Lord sits down, I should like to say that I appreciate all the helpful information he has given. However, I did ask one question— and I apologise for having asked so many questions—on Clause 16(2) of the statutory instrument, which states:
"A person who is in board and lodging accommodation or a hostel shall not be entitled to a special transitional addition".
Is it possible for the noble Lord to explain that, because it seems to discriminate against some very poor people? Otherwise, perhaps he would write a letter to me.
Lord Banks: My Lords, I wonder if I might ask another question before the noble Lord sits down. Would he agree that the 650,000 pensioners referred to in his letter to me of 14th December will in fact all suffer a decline in the real value of their benefit, contrary to what he states in the letter?
The Earl of Arran: My Lords, first, in reply to the noble Lord, Lord Banks, I apologise for not having answered that particular point. Perhaps he will allow me to correspond with him more deeply on this. I am well aware of the answer I gave him in that particular letter, and I should like to be quite certain that the question he has raised is answered properly.
As regards the question raised by the noble Baroness, Lady Jeger, I repeat that I regret that the snapshot has to be limited to the two weeks immediately surrounding the change in most cases. A temporary change in circumstances may well affect protection. However, there is a special safeguard for people in residential care, in nursing homes, in hostels and in certain types of board and lodging accommodation who are temporarily absent from their normal accommodation on 11th April.
The Countess of Mar: My Lords, I thank the noble Earl for being so helpful, or perhaps I should say for
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trying to be so helpful. I know perfectly well that he means to be.
I am not entirely happy about some of the answers I have received. It seems to me that a very small minority of severely disabled people are going to suffer financially despite the promises of the Government, purely and simply because Her Majesty's Government thinks it is too complicated to make special exceptions for them. Tomorrow I shall read in Hansard with very great interest what the Minister has said, and if I have any other points perhaps I may write to him. In the meantime I wish to withdraw the Motion.
Motion, by leave, withdrawn.
Lord Hesketh: My Lords, I beg to move that the House do now adjourn during pleasure until 20 minutes to nine o'clock.
Moved accordingly, and, on Question, Motion agreed to.
[The Sitting was suspended from 8.27 to 8.40 p.m.]

Legal Aid Bill [H.L.]
House again in Committee on Clause 20.
Clause 20 agreed to.
Clauses 21 to 24 agreed to.
Clause 25 [Representation in care proceedings: scope and competent authorities]:
Lord Elwyn-Jones Lord Elwyn-Jones moved Amendment No.43A:
Page 21, line 3, leave out ("and").
The noble and learned Lord said: Amendments Nos. 43A and 43B are linked together and as Members of the Committee will see they relate to representation in care proceedings and deal with the scope and competence of the relevant authorities. Amendment No. 43A to page 21, line 3, leaves out the unnecessary conjunction "and", and Amendment No. 43B provides for the insertion at the end of line 6 on page 21 of the additional provisions in paragraphs (d), (e) and (f) which are to be the subject of and which give rise to entitlement to legal aid under the terms of the Bill.
They are respectively under paragraph (d) proceedings under Sections 3, 5 or 67(2) of the Child Care Act 1980 (parental rights resolutions): under paragraph (e) proceedings under Part 1A of the Child Care Act 1980 (access to a child in care); and finally under paragraph (f) proceedings under Section 3 of the Children and Young Persons Act 1963.
The purpose of the amendments is to ensure that where a child is made a party to any proceedings there should be adequate protection and provision for the representation of the child and that children and parents involved in all care and related proceedings are entitled to legal aid and representation under Part VI of the Bill. The amendments take the step of ensuring that all involved, children and parents, regardless of the

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grounds or process by which the child came into care or the type of proceedings being heard, should have the benefit of and be entitled to legal aid and representation.
As we considered earlier, child care legislation is extremely complex and confusing. There are apparently at least 12 routes through which a child may be taken into care and separated from his or her family governing the child's entrance into or discharge from care, the child's status in care and parents' rights in relation to a child in care. Both the child's and the parents' entitlement to legal aid and representation differ according to the particular court proceedings and the child's route into care.
In care proceedings under the Children and Young Persons Act 1969 the child is a party to the proceedings and is entitled to legal aid and representation. Parents may be represented if the court decides that there is a conflict of interest, which alas arises from time to time between parents and child, and makes an order for separate representation in those circumstances. Part VI of the Bill makes provision for legally aided representation in these proceedings, recognising that care proceedings are a special case and should no longer be treated as part of the criminal legal aid scheme as at present is the case.
In other proceedings before the juvenile court, most notably those under the Child Care Act 1980 (that refers to paragraph (e) of the amendment) both child and parents may be parties to the proceedings but are currently only entitled to limited legal aid through the provision of ABWOR—that abominable abbreviation of the well-known phrase "advice by way of representation", about which my noble and learned predecessor and I have had some modest entertainment as the years have gone by. That way of representation has proved to be important under the green form scheme and is subject to a far more stringent means test than full legal aid.
Then proceedings under the 1980 Act include a challenge to a resolution passed by a local authority through an administrative process which removes parents' rights over their child. Also included are applications under Part 1A of the Act for access to a child in care where the local authority has terminated parental access to the child. Both of these matters, Members of the Committee may think, involve decisions which are vitally important to both children and parents. Then parents who wish to initiate care proceedings in relation to a child who is beyond their care and control under Section 3 of the Children and Young Persons Act 1963 are also subject to the same limitation in entitlement to representation.
While the long awaited reform of child care legislation—there is an abundance of research and investigation into it; some reports have already come out and it has been promised at any rate during the next parliamentary Session—will, it is hoped, codify and simplify all child care and related proceedings, it is important in the circumstances that parents' and children's entitlement to legal aid in these proceedings are established and made uniform and clear. This amendment will I hope assist in achieving that aim. I beg to move.
The Lord Chancellor: Amendments Nos. 43A and 43B are related to Amendments Nos. 58D, 58E and 58F to the second schedule. As I sought to explain in answer to an earlier amendment, Part VI places in a separate part those care proceedings which are currently entwined with criminal proceedings in Part II of the 1974 Act. The generality of care proceedings was entwined with criminal proceedings. Some care proceedings were not entwined with criminal proceedings, and they remain under Part IV of the Bill.
These amendments seek logically to place those proceedings in Part VI so that Part VI would deal with all proceedings relating to care. I mentioned earlier the possibility that we might need to consider wardship, but there is a problem in relation to administration. The juvenile court has machinery for the granting of legal aid but the county court and the High Court do not have the machinery for considering legal aid applications. Therefore we must be careful when making those adjustments to ensure that we do not take anything out of one position and put it into another where there is no proper machinery for granting it.
I have tried to look at those details since the amendment was tabled. The examination that we have so far been able to make suggests that the noble and learned Lord's amendment would be acceptable. I am speaking of these and the later amendments. I should like to he able to check that matter with those who are responsible for considering applications such as those to which these amendments relate before I come to a decision.
If the noble and learned Lord were willing to withdraw the amendment, I would promise to consider that in some detail. A fair amount of detailed consideration is needed. We may not be able to do that while the Bill is still in Committee. However, I undertake that it will be done. This aspect of the matter will be looked into.
Lord Elwyn-Jones: It is highly desirable that we should have the outcome of this investigation before the Bill leaves this place, because the present situation is complicated. It is sad that matters affecting unhappy conflicts within the family should have produced the legal cul-de-sac into which they have apparently run. However, in view of the noble and learned Lord's announced intention, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 43B not moved.]
Clause 25 agreed to.
Clause 26 [Care proceedings: availability]:
[Amendment No. 43C not moved.]
Clause 26 agreed to.
Clause 27 [Representation in contempt proceedings]:
Lord Silkin of Dulwich Lord Silkin of Dulwich moved Amendment No. 44:
Page 22, line 31, leave out ("may") and insert ("shall").
The noble and learned Lord said: I beg to move Amendment No. 44. If one looks at Clause 27(2) one

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finds that it relates to proceedings for contempt. It provides that in those proceedings the court may order that the person proceeded against be granted representation,
"under this section for the purposes of the proceedings if it appears to the court to be desirable to do so in the interests of justice".
The amendment would substitute the word "shall" for "may" so that the provision would be that in such proceedings,
"the court shall order that he be granted representation…if it appears to the court to be desirable to do so in the interests of justice".
I find it difficult to envisage circumstances in which the court would consider it desirable to grant representation in the interests of justice but would take the view that in its discretion it should not do so. The use of the word "may" would leave that open. I think that it is desirable. On that basis, I beg to move.
The Lord Chancellor: Like the noble and learned Lord, I do not think it at all likely that if the court has power to do that, and it appears to the court to be desirable to do so in the interests of justice, anything more need be said. If it has the power, and it seems desirable, one can reasonably expect the court to grant legal aid. I think the word "may" is slightly better as one is dealing with a court. However, I shall be glad to draw what the noble and learned Lord has said to the attention of parliamentary counsel and take his advice.
Lord Silkin of Dulwich: I am grateful for that indication from the noble and learned Lord, and accordingly I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 27 agreed to.
Clause 28 agreed to.
Clause 29 [Act not generally to affect position of legal representatives or other parties]:
Lord Elwyn-Jones Lord Elwyn-Jones moved Amendment No. 44A:
Page 23, line 29, at end insert—
("( ) the fact that the services of a law or advice centre are given under this Act shall not affect the relationship between or rights of any law or advice centre worker and any client of such a centre: and").
The noble and learned Lord said: The purpose of the amendment is to protect the professional relationship that exists between law centre and advice centre workers and their clients, especially in relation to confidentiality, without elevating that relationship through statute law to the status of privilege which exists as between lawyer and client.
Law and advice centre workers offer their services to members of the public under a pledge of confidentiality without which it would be impossible for them to operate. Without some safeguard of this principle, it is inconceivable that such agencies would consider tendering to provide legal aid services, as the Government appear to wish them to do.
The Law Society and the Bar support the principle that the amendment seeks to introduce. They have supported the work of advice and law centre workers
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for some considerable time. There was an initial period of resistance when we brought the legal aid scheme into being. I found that that resistance soon disappeared and there is now excellent co-operation between the professions and the advice and law centres. I am sure that they would welcome anything that promotes professional standards for advice and law centre workers. They, in turn, would appreciate it. I beg to move.
The Lord Chancellor: The purpose of Clause 29(1) is to make it quite clear that nothing in the Bill, except where specifically stated, should affect the normal solicitor-client relationship. The relationship of a solicitor and his client is governed by well-established rules and legislation, and is generally well understood.
In so far as law centre or advice centre workers are solicitors, they are already covered by Clause 29. In so far as they are not, I am not sure that there is a very clear or formal relationship of the kind that would call for a statutory declaration like this. Therefore at present I cannot see what effect this amendment would have. The noble and learned Lord mentioned that the law centres and advice centres deal on the basis of confidentiality. I certainly do not think there is anything that would require special protection in that. But since this point has been raised I should be willing to consider it further.
I do not know whether there is any specific description of category of worker in the centres which the noble and learned Lord has in mind that require particular protection, but if there are such people then obviously consideration will be given to that. At the moment I am not clear that the generality requires such a declaration.
9 p.m.
Lord Elwyn-Jones: I have nothing more specific to communicate at the moment than that they are called advice and law centre workers. But they are apparently anxious, perhaps in order to elevate their professional standing, that there should be some provision of the kind suggested in the amendment. However, I shall make further inquiries and perhaps in the meantime the noble and learned Lord will also investigate. Clearly we want to reassure the people running the centres and those who use them that confidentiality exists and can be relied upon in respect of what goes on.
I do not suppose that there will be any rush to write books or make broadcasts of the kind which might incur the wrath of the Government in respect of these law centre workers, as appears to have been the case in regard to others. However, I must not be tempted to trail a coat at this hour.
I trust that the noble and learned Lord would look into this. It is apparently a matter which is considered to be of importance to the workers who do such admirable work in these law and advice centres. I think he has indicated that he is willing to do this in any event. Accordingly I ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 29 agreed to.
Clause 30 [Selection and assignment of legal representatives]:
Lord Silkin of Dulwich Lord Silkin of Dulwich moved Amendment No. 44B:
Page 24, leave out lines 8 to 10.
The noble and learned Lord said: With the agreement of the Committee it will be convenient to take with this Amendment No. 44D.
Clause 30 is concerned with selection and assignment of legal representatives. There is a somewhat complicated series of provisions which must be read together in order to understand the matters with which these amendments are concerned. First of all, subsection (1) provides the basic rule:
"Subject to subsection (2) below, a person entitled to receive advice or assistance or representation may select—

(a) the solicitor to advise or assist or act for him, and

(b) if the case requires counsel, his counsel; and he shall be entitled to make the selection himself".

That of course is the customary rule from which one would not wish to depart unless there were very good reasons for doing so.
Then one looks at subsection (2) to see what that provides, it being the exception provided for under subsection (1). It provides that subsection (1) does not confer any right of selection in relation to (a) and (b). I do not think I need deal with those here. It goes on:
"and a person's right to select his solicitor or counsel himself is subject, in the case of representation under Part V, to regulations under subsection (6) below".
Part V deals with criminal legal aid. So we are then referred to subsection (6), which says:
"Regulations may provide as respects representation under Part V that subsection (1) above"—
that is to say the general rule—
"shall not apply in cases of any prescribed description and that in any such case a prescribed authority shall assign solicitor or counsel or solicitor and counsel in accordance with regulations under section 1(7) to the person entitled to receive such representation".
So here the regulations may make provision which goes right away from the basic principle in subsection (1).
However, it does not stop there, because all this is apparently subject to the provision in the second part of subsection (6) that:
"in any such case a prescribed authority shall assign solicitor or counsel or solicitor and counsel in accordance with regulations under section 1(7)".
One has to look at that to see what it provides. Section 1 sets out the basic definitions and other preliminary provisions and subsection (7) provides:
"that in any particular case, advice, assistance and representation under this Act, except when made available under Part II, shall be by solicitor and, so far as necessary counsel; but regulations may prescribe the circumstances in which representation is to be by counsel only or by solicitor only and regulate representation by more than one counsel".
What I am certainly not very clear about at the moment is whether one starts in Clause 30 with subsection (1) and makes that subject to the provisions in (2), and then again to the provisions in (6), and makes them subject to the provisions in Clause 1(7). In other words, is the exception from what I have called the basic principle really governed
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by Clause 1(7) so that all that is being done there is to make specific provision in criminal legal aid cases that regulations can deal with the question of when there should be counsel, when there should be a solicitor only and when there should be more than one counsel, or does this collection of legislative provisions go beyond that?
If it is simply exemplifying what will apply as regards Clause 1(7) and dealing with a particular case of criminal legal aid, it may be that there is no objection to it. However, if it goes beyond that one would want to know what are the circumstances in which such regulations are likely to be made. One would certainly want to consider what procedure they should be subject to because they may have very important effects in removing the normal right of a person to select his own solicitor or counsel.
I hope that we shall be enlightened by what the noble and learned Lord the Lord Chancellor tells us about this rather difficult combination of clauses that one has to look at to ascertain what this one means. I beg to move.
The Lord Chancellor: The. powers to which the noble and learned Lord has referred are designed to enable the regulations to produce the present result; that is, the result that presently obtains in practice. In practice at the present time, the assisted person chooses his own solicitor in criminal proceedings as in civil proceedings in almost all cases. However, the formal position is that the court assigns a solicitor and counsel in criminal cases. This is provided for in Section 30(1) of the Legal Aid Act 1974. Section 39(1)(c) of that same Act establishes that regulations may make provision with respect to the manner in which counsel and solicitors are to be assigned to legally assisted persons in pursuance of legal aid orders. So that provision, which is very like the concluding part of Clause 30(2), is to be found in the existing statutory provisions.
The relevant regulations are the Legal Aid and Criminal Proceedings General Regulations 1968. Regulation 8 of those regulations establishes that subject to the provisions of Regulations 11 and 14 any person in respect of whom a legal aid order is made entitling him to the services of a solicitor may select any solicitor who is willing to act, and such solicitor shall be assigned to him. So generally speaking, although it is the court that assigns, it is on the selection of the person wishing the solicitor. Regulation 9 establishes that where the legal aid order is made in respect of the services of a solicitor and counsel the solicitor may instruct any counsel who is willing to act provided that in the case of proceedings in the Court of Appeal or the House of Lords counsel may be assigned by the court or person making or amending the legal aid order. Therefore there is power in the court to assign in that situation.
Regulation 11 provides that in assigning either solicitor or counsel for House of Lords or Court of Appeal proceedings the person or court making the order shall have regard so far as possible to the wishes of the legally assisted person. But there is a slight restriction on fully giving him what he wants.

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Regulation 14 provides that a solicitor or counsel may be assigned to two or more legally assisted persons whose cases are heard together unless the interests of justice require that such persons be separately represented. That is the real nub of the problem. If a situation arises where justice does not require separate representation and there are two people involved, they cannot both have a free choice of the one person and something must be done.
In practice, virtually the only time when a solicitor is assigned who is not the assisted person's chosen solicitor is under Regulation 14; that is to say, when it is convenient for the court that there should not be dual representation in cases being heard together. There is nothing new in the provisions that we have in the Bill; they are intended to produce this result in practice. That, as I say, is that in practically all cases the legally aided person may choose his counsel and solicitor, but that must yield particularly to the case where there is a single representation for two or more people.
Lord Silkin of Dulwich: Before the noble and learned Lord sits down, perhaps he could explain the reference in the Bill to Section 1(7). Is that simply what one might call a paving provision for this?
The Lord Chancellor: Those are the provisions that regulate the level of representation rather than the individual who is to represent. The regulations may prescribe the circumstances in which representation may be by counsel only or solicitor only and they also regulate representation by more than one counsel. That does not affect the choice of an individual counsel or solicitor where counsel or a solicitor is to be the representative.
Lord Silkin of Dulwich: I am grateful to the noble and learned Lord for that explanation. He will probably accept that that was a mouthful to assimilate at this late hour. Perhaps I may look at what has been said in Hansard and, if necessary, come back to it. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
9.15 p.m.
Lord Elwyn-Jones Lord Elwyn-Jones moved Amendment No. 44C:
Page 24, line 21, at end insert
("( ) Any regulations made pursuant to this section shall not come into force unless and until approved by resolution of each House of Parliament.").
The noble and learned Lord said: The amendment relates to Clause 30 concerning selection and assignment of legal representatives. The purpose of the amendment is to ensure that the many regulations which are liable to be made pursuant to that section shall not come into force unless and until approved by resolution of each House of Parliament. We have covered the broad considerations which determine that matter on previous occasions. However, I submit that this is another appropriate case for each House to have an abundant opportunity to examine what is proposed in some detail.
We see a reference to regulations in three places in the clause. We see it first in subsection (2), where it relates to a choice of solicitor or counsel. That subsection provides that:
"a person's right to select solicitor or counsel himself is subject, in the case of representation under Part V"—
which relates to criminal legal aid—
"to regulations under subsection (6)".
That is the first batch of regulations.
In subsection (5), it is stated:
"Regulations may provide that the right conferred by subsection (1) above"—
namely, the power to select solicitor or counsel—
"shall be exercisable only in relation to solicitors who are, for the time being, members of a prescribed panel".
We are not told who the members of the prescribed panel will be or who will form it. Presumably the noble and learned Lord is going to have a busy time giving effect to those regulations. At any rate, the regulations are to be exercisable only in relation to a picked band of solicitors who constitute the mysterious panel about which we shall no doubt in the fullness of time hear more.
Coming to the third group of regulations, which are contained in subsection (6), that subsection states:
"Regulations may provide as respects representation under Part V"—
that is again under the criminal provisions—
"that subsection (1) above"—
entitling a person to select his solicitor or counsel—
"shall not apply in cases of any prescribed description"—
the Lord Chancellor can place a massive limitation on that—
"and that in any such case a prescribed authority"—
it is by no means clear who that is—
"shall assign solicitor or counsel or solicitor and counsel in accordance with the regulations under section 1(7) to the person entitled to receive such representation".
We are in a domain of great importance to the litigant relating to selection and assignment of legal representatives. That clearly needs considerable explanation and elaboration. I feel sure that each House will want to have an opportunity of examining those regulations with the care which is possible when affirmative approval of a clause and the powers sought is provided for in legislation. I accordingly hope that, along with one or two other provisions where the noble and learned Lord has conceded the right to have an affirmative resolution in regard to important regulations, that right will again be applied in regard to the package of regulations in Clause 13. I beg to move.
The Lord Chancellor: As I sought to explain earlier, a good number of these powers are very much along the lines of existing powers. The novelty is principally in subsection (5) referring to what the noble and learned Lord described as a mysterious panel. The idea is that there might be a possibility of having people with particular expertise for particular types of work. The law is not getting simpler as the days are passing. A time may well come when it is appropriate that solicitors with particular expertise should be the

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people to give advice and to act in relation to particular matters. Two panels exist for laws relating to child care and mental health review. People with particular expertise sit on the panels. If one wants advice in these fields, one knows to go to people who are accustomed to giving it. The purpose of subsection (5) is to provide for that in relation to particular fields.
The generality of the regulations in Clause 30 is not particularly important or novel. I would be willing to consider applying the affirmative resolution procedure to regulations under Clause 30(5) because of the novelty of the provision. If the noble Lord is willing to accept an undertaking on those lines, I am happy to give it.
Lord Mishcon: I had hoped that the noble and learned Lord might go even further. However, we have to be grateful for whatever comes forward from the rich table so honourably decorated by him. With that undertaking I suppose that we on this side of the Committee must rest content. Given that assurance and the promise that the matter will be looked at again before the next stage, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 44D not moved.]
Clause 30 agreed to.
Clause 31 agreed to.
Clause 32 [Regulations]:
Lord Ackner Lord Ackner had given notice of his intention to move Amendment No. 45:
Page 26, line 32, at beginning insert ("without prejudice to anything contained in section (Remuneration of persons giving legal aid) of this Act").
The noble and learned Lord said: Amendments Nos 45 and 46 were included in the optimistic anticipation that Amendment No. 40 would be accepted. Since with the concurrence of the Committee I sought leave in the terms mentioned to withdraw Amendment No. 40, having consulted my noble and learned friend Lord Griffiths and my noble friend Lord Meston, I seek leave not to move these amendments.
[Amendment No. 45 not moved.]
[Amendment No. 46 not moved.]
Lord Ackner Lord Ackner moved Amendment No. 47:
Page 27, line 18, leave out ("be entitled to have regard, among the matters he considers appropriate,") and insert ("have regard to the principle of fair remuneration according to the work actually and reasonably done and shall in particular have regard").
The noble and learned Lord said: The Bill has been described, no doubt accurately, as an enabling Bill. When one comes to Clause 32 I respectfully submit that it is far better described as a disabling Bill. With the concurrence of the Committee I propose to deal with Amendment No. 47 on its own. I should like to identify the various self-inflicted wounds that one finds in Clause 32 and then return to the subject matter of the amendment. Members of the
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Committee will observe in Clause 32 a total absence of any reference to the existing statutory obligation on the part of the Lord Chancellor, which was inserted some 13 years ago, to pay fair remuneration for work actually and reasonably done. That is wound number one.
Wound number two, also comprised in this amendment, is the tepid reference to some considerations to which he shall be entitled but not obliged to have regard. Any obligation to do anything has been removed as far as I can see. Wound number three—and this is the subject matter of Amendment No. 48 to which I shall refer in due course—is leaving out an important factor; namely, whether competent barristers and solicitors will continue to undertake legal aid work. Wound number four is to bring in a wholly irrelevant consideration when dealing with fixing remuneration compared with deciding on the scope of the Act; namely, the cost to public funds. Wound number five is that no regulations may be made under this clause except with the consent of the Treasury.
Perhaps I may now return to the subject matter of this amendment, which is to draw attention to the absence of the statutory obligation to pay what I shall conveniently call fair or reasonable—there is no difference—remuneration and the failure to accept that there are factors to which the Lord Chancellor should, rather than may, have regard. Before suggesting to the Committee the reasons why there have been these omissions, it might be convenient to remind the Committee of certain recent and relevant statements.
The Times on 22nd March 1986, reporting the second day of the proceedings for judicial review brought by the Bar Council against the Lord Chancellor's predecessor, my noble and learned friend Lord Hailsham, quotes the following excerpt from his affidavit. It reads:
"My statutory duty is to have regard to the principle of allowing fair remuneration according to the work actually and reasonably done. I refer to this principle hereafter as the principle of fair remuneration. This involves considering amongst other factors the rates payable for different items of work, the amount of time reasonably devoted to each such item, the skill which should be devoted to it. It is relevant to consider the levels of earnings that are achieved from legally aided criminal work by barristers of different seniority and standing. It is relevant to consider the overheads that have to be borne by barristers".
There was not a hint of any suggestion in that fairly voluminous affidavit, of which I have quoted only an excerpt, that the then Lord Chancellor was suffering from any difficulty in complying with his statutory obligation.
Some three months later, on 4th June 1986, in the debate in this Chamber to which I have already made reference—a debate at the instigation of the noble Lord, Lord Benson—my noble and learned friend Lord Hailsham in his reply to the debate said this inter alia:
"I am of course wholly wedded to an independent and vigorous legal profession, fairly remunerated. Secondly, I wholeheartedly accept the principle of fair remuneration according to work reasonably and actually performed. I should be wedded to that principle whether or not the words were embedded in statute. Otherwise I should be guilty of trying to defend work not reasonably remunerated in that manner".—[Official Report, 4/6/86; col. 1008.]

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I wonder whether it ever occurred to him that that lot might fall on his successor.
Thirdly, the White Paper on legal aid issued on 26th March 1987 stated in terms that the Government will continue to have regard to the principle of fair remuneration for work actually and reasonably done. Again, there is not a hint of any suggestion that the words were so vague as to be incapable of application.
Fourthly, on 15th December, on Second Reading, my noble and learned friend the Lord Chancellor stated that the Government will continue to have regard to the principle of fair remuneration for work actually and reasonably done. Fifthly, in regard to the terms which are specified under Clause 32(6), in his speech the Lord Chancellor said:
"The aim of that list, which is not exhaustive, is to ensure"—
I underline that word—
"that all relevant factors are taken into account".—[Offcial Report, 15/12/87; col. 613.]
The only way of ensuring that all relevant factors are taken into account is to place on the Lord Chancellor a positive obligation, which, according to that expression, he seemed happy to accept.
My sixth point is that in reply to the debate the noble and learned Lord the Lord Chancellor said that he wished to try,
"with the aid of your Lordships to isolate the factors that have"—
again I emphasise the word "have"—
"to be taken into account in order to reach what would be regarded as suitable remuneration".
I am inviting the Committee to give the noble and learned Lord the Lord Chancellor the very help that he asked for. In this regard, all I am endeavouring to do, when we come to Amendment No. 49, is to add one phrase plus the words which oblige him to have regard so that he can carry out his own wishes to ensure that all relevant factors are taken into account. There is no difficulty or novelty in this.
I reminded the Committee not long ago that under Order 62 the taxing master is obliged to pay on a standard basis a reasonable amount in respect of all the costs reasonably incurred. There is no difference between a reasonable amount and a fair amount. The schedule sets out not factors to which he may or may not have regard, but that in exercising his discretion the taxing master shall have regard to all relevant circumstances.
At this stage one is entitled to ask the rhetorical question: why all this shyness? Why is the statutory obligation (so applauded in the references I have made) which has inured for 13 years in the legislation to be excised? If the noble and learned Lord the Lord Chancellor wishes to ensure that all relevant factors are taken into account, why should they not be identified as obligatory factors?
I think the explanation—I shall be told if I am wrong—is that the traumatic experience of his predecessor being the subject matter of proceedings for judicial review has taken away the taste for statutory obligations. What we are now landed with is a situation in which access to the courts will be denied, because the Bill is so drawn that there is no obligation on the Lord Chancellor to do anything.
His only obligation under the Bill is to pay those fees which the Treasury says that he may pay. That is why, certainly as regards Clause 32, I have advisedly used the words, "this is a disabling Bill".
The noble and learned Lord the Lord Chancellor has diminished his own powers. His predecessor could have said—and, for all I know, when the judicial proceedings were withdrawn at the suggestion of the Lord Chief Justice presiding over the divisional court, he may well have said—to the Treasury, to the Cabinet or to the Prime Minister, "It is no use denying me funds; I have a statutory obligation to pay fair and reasonable remuneration. If you insist on obliging me to refrain from carrying out my statutory duty, the adjournment which the divisional court has most conveniently provided will result in my returning to that court without an ability to comply with my statutory obligation and to leave that court with a large forensic flea in my ear telling me to carry out my statutory duty."
Hence its removal, and hence the careful way in which the noble and learned Lord the Lord Chancellor, in his reply at Second Reading, referred to the intention to pay suitable remuneration. I ask, suitable to whom? The answer to that question is simple. I have referred to the scrutineers' report—if that is the right description—which said that the Lord Chancellor will pay the fees that it (that is, the Lord Chancellor and/or the Treasury) considers to be appropriate for the services that it wants. It has been made clear in the White Paper that there is no longer an intention to pay the same remuneration which ex hypothesi is reasonable remuneration because it is so fixed by the taxing masters in legal aid cases.
It is all very well for my noble and learned friend Lord Hailsham to talk about the taxi-rank. With deep respect, he has the doctrine quite wrong. The taxi-rank doctrine obliges a member of the Bar to accept a brief provided that it is in the field of work in which he normally practices and at the fee which he normally requires. I am sure that my noble and learned friend overlooked the fact that there is no taxi-rank rule which obliges the barrister to take work at below the fee which he normally charges. He frequently does so as an act of generosity because it is an obligation to his profession. But there is no rule at all.
When my noble and learned friend Lord Hailsham referred to the fact that he frequently undertook legal aid work, that was at no sacrifice except for the 10 per cent. I believe that his last memorable case in the House of Lords, which he inevitably won because he was against me, was an occasion when he appeared for a legally assisted person and I appeared for the Government. I probably received less than the noble and learned Lord because the Government are rarely excessive in their remuneration. Acting for a legally assisted person is at no sacrifice at all. To suggest that as he, in the past, sacrificed himself—which, with deep respect, he never did in that context, although he may have done in others—the profession will continue to do so in the future, is, in my respectful submission, a complete non sequitur.
It is not a question of generosity. The member of the Bar who is going to be offered unreasonable

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remuneration will say—and understandably say—"I cannot afford to take on this work. If I take this brief, I disentitle myself from taking a brief which is not legally assisted". Not only will he say that, but his clerk, who wisely manages his professional activities, will say, "Do not tie yourself up with something that you are going to do at a loss; you cannot afford it; the overheads are too high", and so on and so forth.
The noble and learned Lord the Lord Chancellor said that the last thing he wished to do was to preside over the disintegration of this vital legal service. Unless there is this obligation clearly and firmly laid down, that is exactly what will happen. I ask the Committee to ensure that these self-inflicted wounds should not be permitted and that my noble and learned friend the Lord Chancellor will not be left powerless to resist the diktat of the Treasury. I beg to move.
Lord Renton: I desire to support the noble and learned Lord. When the noble and learned Lord, Lord Griffiths, spoke at Second Reading I took the liberty of interrupting him and suggested that the words "fair remuneration" might well come into the clause. Having heard the noble and learned Lord, Lord Ackner, I not only remain of that opinion but am further convinced that that should be done.
I say that for these reasons. First, it has the desirable objective of preserving continuity on an agreed principle which the noble and learned Lord stated and which was declared by my noble and learned friend Lord Hailsham when he was Lord Chancellor. Secondly, in my opinion it would reassure both branches of the legal profession, among whom some fears and doubts, I believe mostly unjustified, have arisen. However, they have arisen. There was discussion about them on Amendment No. 40 and it seemed to me, listening to that discussion but not taking part in it, that those fears and doubts could well be resolved and would be justifiably resolved by somehow inserting into the Bill at Clause 3(6) the concept of fair remuneration.
I have a further reason for supporting the amendment, and I hope and am sure that my noble and learned friend the Lord Chancellor will take it in the spirit in which it is meant. In his speech at Second Reading he said:
"As the White Paper made clear, the Government will continue to have regard to the principle of fair remuneration for work actually and reasonably done".
He then said that we have to be fair to the taxpayer as well, and of course we must. He went on:
"The aim of that list"—
that is referred to in Clause 32(6)—
"which is not exhaustive, is to ensure that all relevant factors are taken into account."—[Official Report, 15/12/87; col. 613.]
That surely is a most relevant factor—the factor of providing fair remuneration. I am glad that my noble and learned friend the Lord Chancellor said that the list was not exhaustive, but it seems to me that accepting this amendment, or something on those lines inserted into subsection (6), would ensure that all relevant factors are included.
9.45 p.m.
Lord Benson: I support this amendment. The facts of the situation are clear. Numerous committees, commissions and other inquiries have established that over a very long period of years the remuneration payable to lawyers in the legal aid scheme has been inadequate. The second factor is that neither the existing legislation nor this Bill include suitable mechanism to make it likely that remuneration will be fair and reasonable in the future. We shall come to the question of machinery in Amendment No. 55.
The third factor is that this underpayment of the legal profession has continued for so many years and is so well documented that one is left with the inescapable conclusion that it is government policy to underpay the legal profession.
The consequences of that deplorable situation are threefold. In the first place if will inevitably lead—if it has not already done so—to a second-class service. The legal profession will not spend their lives and their time in providing a service which is consistently and deliberately underpaid.
The second consequence is that the long-term effect on the judiciary will be to erode its quality. Responsibility for that dreadful future legacy rests fairly and squarely on this Committee in dealing with this Bill and on Members in another place. The third consequence is that the morale of the legal profession is being eroded. Relations between the Government and the legal profession are becoming permanently soured.
The first corrective step which is necessary is to state clearly in the Bill what is the objective. That is a basic, simple, elementary administrative step. That basic objective must be, as the Government are already committed to it, that fair remuneration shall be paid.
Clause 32(6) in its present form cannot withstand the ordinary dictates of common sense. It entitles the Lord Chancellor and the Treasury under Clause 32(11) to have regard to the factors which go to make up fair and reasonable remuneration. But a statute that entitles somebody to do something entitles him also not to do it. The extraordinary results of this Bill are that both the Lord Chancellor and the Treasury are entitled to disregard the very factors which go to make fair and reasonable remuneration.
Any government which cherishes a reputation for fair dealing cannot, I suggest, put such a clause on to the statute book. But there is worse to come. As has been pointed out, this matter was debated in this Chamber on 4th June 1986. That was at the time when the then Lord Chancellor was being pursued by the legal profession in the High Court because the legal profession was not satisfied that he was properly discharging his responsibilities. It was a most extraordinary debate. Fourteen people took part and 13 Peers all said in strong language that in their opinion the legal profession should be properly paid and that proper mechanism for ensuring that should be incorporated in the legislation.

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There was one modest dissentient and that was the noble and learned Lord, Lord Hailsham, the then Lord Chancellor. He said (at col. 1010 of the Official Report):
"The first point is that Section 39(3)"—
that is the section in the existing Act which this Bill will overturn—
"compels … the Lord Chancellor…to make regulations which have regard to the principle of fair remuneration for work actually and reasonably done".
He then said:
"I have already said that I wholeheartedly embrace that principle".
On 15th December the noble and learned Lord the Lord Chancellor now in office reaffirmed that principle, as has already been pointed out. If two Lord Chancellors of the Government are committed to a principle which they wholeheartedly embrace, why has it been excluded from the present Bill? Particularly why has it been excluded when it is already in existing legislation?
This course of action excites misgivings. What are the motives? I suggest that it is not possible for any government to exclude from this Bill a principle which they wholeheartedly embrace. I suggest in the gentlest possible language that such a course is unacceptable. It is unquestionably unacceptable if the confidence of the legal profession is to be retained.
This matter of the underpayment of the legal profession has been an open, festering sore for years. The Bill does nothing but rub salt into the wounds. If the Government intend that this great legal service in this respect shall be properly and fairly administered, now is the time to start the healing process.
I suggest that the healing process gives the Government only two possible courses; either to accept this amendment in its existing form or to take Clause 32(6) away altogether and restructure it, and in restructuring it to include in it the very principle that the Lord Chancellors and the Government have said they wholeheartedly embrace.
Lord Griffiths: I support this amendment. I was president of the Senate of the four Inns of Court and the Council of the Bar for the two years during which protracted negotiations over the level of fees were taking place between the Lord Chancellor's Department and representatives of the Bar Council and the Law Society. Maybe my recollection is playing me false, but I am bound to say that I heard with astonishment the indictment of my noble and learned friend Lord Hailsham when he castigated the bodies representing solicitors and barristers for not attempting to negotiate interim payments.
Over the period of my presidency, although I naturally was not involved in the negotiations as I held judicial office, there was a constant struggle by the representatives of the Bar Council and the Law Society to have accepted the principle of interim payments so that barristers could be paid before the case was finally complete. Ultimately, with the assistance of the Law Officers—my noble and learned friend Lord Havers was Attorney-General and Sir Ian Percival Solicitor-General—the principle was
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finally, after a great struggle, accepted. We are of course indebted to the then Lord Chancellor for the part he played in getting that principle accepted in Cabinet and enabling some payment to be made. But to indict the profession for not struggling for it is utterly wrong.
I raise that point because I cannot stress too much how difficult these negotiations with the Lord Chancellor's Department were. Unhappily there came a period when there was a complete breakdown of trust between the department and the representatives of the profession. That was a most lamentable state of affairs. I do not want to go into old and painful history but, as the Committee will know, the situation led to the unprecedented step of judicial review proceedings against the Lord Chancellor. That must never happen again.
I am happy to think that relations are now greatly improved. That assists the negotiations. But they remain difficult because there is always the fear in the professions that the hand of the Treasury, one party to the negotiations, is dictating the course taken by the Lord Chancellor's Department. And no doubt the Lord Chancellor's Department thinks that self-interest may dominate the motivation of the professions. So there is an inherently difficult situation. It is made more difficult by the fact that when such negotiations in other circumstances break down there is resort to strike action. To my mind it would be absolute anathema that the professions should resort to strike action to resolve the deadlock.
I urge the Government to consider this amendment so as not to damage the delicate trust now being engendered between the Lord Chancellor's Department and the profession. As I understood the noble and learned Lord the Lord Chancellor, the point he made was that "fair remuneration" was a difficult phrase and it would be better to spell out the constituents of it. I was sympathetic to that and I should like to have the constituents spelt out. As I understand it, that is what has been done in subsection (6) of Clause 32 of the Bill. But if fair remuneration is what is being aimed at, and it has been spelt out, why is not the negotiating team of the Lord Chancellor to have regard to those matters?
We have to be realistic. It is not the noble and learned Lord the Lord Chancellor who sits down to negotiate these fees. It is a number of his officials and they are not at the top of the hierarchy of his department. Surely it is very much easier to negotiate with people if you can say, "We have on the table the matters that we have to take into consideration. Let us go through them and see how they affect it." However, if you say, "No, we do not have to take this into account. We are not taking this into account this year; we looked at it last year", there is the basis of mistrust. Furthermore, if one takes out of the Bill fair remuneration, one also engenders mistrust.
If it is not the intention to do other than pay fair remuneration, for goodness sake say so. If these are the considerations that the Government think constitute fair remuneration, they should say so and say that they will have regard to them. It would be unworthy to think that this was put in purely to avoid any future judicial review. But if that was the motive, it is an unworthy motive. If it was not the motive, I

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cannot understand why the amendment is not accepted. I assure the Government that if they will accept it, it will do much to restore the confidence which they are now fast eroding, I regret to say.
10 p.m.
Lord Trafford: Perhaps it behoves a layman who is not a lawyer to speak, since we have heard from no one but lawyers for hours, really. There are a few factors which raise a query. Large numbers of people in this country work for the Government either intermittently or constantly. Those people do not have any rights in statutes with regard to payments or settlement of their payments. Claims about the ability to turn to strike action are relatively meaningless in connection with a lot of the professions, although I accept that in many fields strike action is a weapon which is available.
I raise this matter in a sense of query rather than anything else. I find myself somewhat surprised and, indeed, shaken by the almost special interest pleading, as it sounded, of the noble and learned Lord, Lord Ackner, on behalf of the legal profession, for, although I am entirely in favour of lawyers and anybody else receiving proper remuneration for their
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services to the state, I am somewhat alarmed that there should be a suggestion that special procedures should apply to lawyers. I do not know whether lawyers are starving any more than doctors or any other profession in the land. I suspect that they are not. Proper remuneration is correct; but that we should specially legislate in this respect—particularly in a Committee overwhelmingly populated by lawyers tonight—does disturb one who is not of that particular profession.
I therefore draw to the attention of my noble and learned friend the Lord Chancellor, who will shortly reply to this—perhaps it does not need to be drawn to his attention—the fact that there might be some anxieties raised and explanations requested as to why such special pleadings in regard to one profession or occupation should not apply to many others, and why it is that in a Committee where weighty opinions have been expressed in this matter they should not carry the same weight when members of other professions and occupations put forward the same requirements for judicial review for their right and fair remuneration. This is a matter which needs explanation before the legal profession is allowed entirely to get away with this presentation.
The Lord Chancellor: As the members of the Committee know, the Government issued a White Paper a considerable time ago and indicated in a number of ways that legislation on it would follow. That White Paper stated that the Government would continue to have regard to the principle of fair remuneration for work actually and reasonably done and also to the public expenditure that would be involved in remuneration for the legal profession.
When I found myself with responsibility for this matter, I came to the responsibility with those declarations having been made. I immediately adopted the principle of fair remuneration for work actually and reasonably done, but having regard also to the expense to the public purse. The noble and learned Lord, Lord Ackner, has indicated that I have used that phrase several times in the course of this Committee stage, It is natural that I should do so because it is a fact that any money that goes to the legal profession under this system comes out of the public purse, out of the taxpayer's resources. It is utterly idle to conclude anything else.
My noble friend Lord Renton said that he supported this amendment, by which I take it he meant Amendment No. 47. But of course the noble and learned Lord, Lord Ackner, is coupling Amendment No. 47 with an amendment which leaves out line 27—
Lord Ackner: With great respect, I had invited the Committee's consent to my dealing with Amendment No. 47 on its own, and that is the amendment which I have asked leave to move.
The Lord Chancellor: I am perfectly content with that. The noble and learned Lord is moving Amendment No. 47 on its own, but the noble and learned Lord has on the Marshalled List the amendment in his name to leave out line 27. Line 27 is paragraph (f),
"the cost to public funds of any provision made by the regulations".
The important point with regard to the principle of fair remuneration, which was stated by the Government and repeated by me in my opening speech on Second Reading, takes account of the fact that these remunerations are to be paid out of public funds. I did not come to this office without some knowledge of what had taken place in the past, and when I found myself with this responsibility my principal object was to set down in the statute what would be a workable formula.
The noble and learned Lord, Lord Ackner, I thought—I may be wrong about this—suggested that I had in mind to produce proposals which would have the effect of excluding judicial review in respect of these regulations. I can honestly say to your Lordships without any equivocation whatsoever that I had no such view of the matter. What I wanted to produce was a workable formula which the Bar, the Law Society and I, through my department, would be able to operate harmoniously right into the future. That was my only aim and the idea that I wanted to
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exclude from judicial review what I might do is, to my mind, absolutely absurd and utterly repulsive.
I have been a judge for some time, latterly in the House of Lords, but when I was a judge at first instance I think I was happy with the thought that if I made a mistake, as is so readily done when one is sitting alone at first instance, there was a court of appeal to put it right. And I am happy with the thought that if I should do any injustice, with or without the consent of the Treasury, to the legal profession in this country, solicitors or barristers, there is a judicial procedure by which that injustice can be removed. So the last thing I thought of was any idea of trying to exclude judicial review. But what I did want to do was to produce a workable formula that I believed could work, and work harmoniously, with people who were seeking to make it work.
I was surprised to read in The Times this morning a letter by a gentleman to whom I have had the pleasure of listening on two occasions as counsel in this House sitting in its judicial capacity, making very much the same suggestion as the noble and learned Lord, Lord Ackner, made, and I am extremely sorry that that should have been done. I can assure your Lordships that it is utterly wrong to suggest that I thought of excluding judicial review.
Naturally, however, I would wish to produce a result which would not attract judicial review. I certainly would. And I think any reasonable person would also wish to produce a result in the application of the regulations which would not attract judicial review. In other words, I would hope that any regulations I made would stand up to judicial review, if anyone wanted to take judicial review. So that was my purpose in trying to adopt a formula which was workable.
Now, it is said: why not put in the principle of fair remuneration? As I said, the principle of fair remuneration is to take account of, among other things, the fact that these monies are to be paid out of the public purse. That of course means that the public purse is the ultimate payer. If a private person instructs litigation he is entitled to arrange with the solicitor and counsel what he will pay them. Those provisions are intended to enable the Lord Chancellor, on behalf of the legal aid fund and the public purse, to make the necessary arrangements with the profession generally in advance of the work to be done.
As I said on an earlier amendment, there is a great deal to be said for having the arrangements made in advance where possible. There may be situations where it is not possible, but where it is possible to have agreement in advance that is highly preferable. Anyone—not only the public purse—who goes to a professional man should be able to arrange with him the basis upon which he is to be paid and to charge fees. Therefore the principle of work actually and reasonably done is one which applies after the work is done. It is not in these terms applicable to arrangements that are being made before the work is done with a view to having the work done on reasonable terms.

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It is necessary to try to set out the factors which make up fair remuneration. That is what I have tried to do, because what is fair is an abstract question; for example, in relation to taxations it depends upon who the payer is. What was called in the earlier amendment the standard basis—that is the party-and-party basis—gives fair remuneration in one sense. It we talk about the indemnity basis as between solicitor and client the amount would be different.
If I am engaged in litigation, employ a solicitor and counsel and agree to pay them a certain sum, on a taxation between me and them one figure might be awarded. I might choose a high-flyer at the Bar—I shall not mention any names—to take my case. It would be fair that I should pay him a certain figure. But when it comes to my being awarded costs against the other side, I would not receive the full amount of his fee in a taxation against the other side. Because I have chosen to have him it would not be fair to the other side that it should pay the whole fee that is fair that I should pay him.
What is fair depends on the circumstances, including who is the payer. In these provisions I have tried to set out a workable statement of the factors that should be taken into account in arriving at the remuneration of the legal profession. Apart from wanting to add a provision by Amendment No. 48:
"whether competent barristers or solicitors will continue to undertake the work",
which I thought was covered by,
"the time and skill which it requires"—
I can see that there may be room for difference over that—and the suggestion contained in Amendment No. 49 that the public purse is to pay should be left out, there is not much between us on the factors. I am trying to set out what will amount to fair remuneration in the circumstances with which we are dealing in this clause. That is what I have sought to do. To add the words "fair remuneration" for work actually and reasonably done when what you are contemplating is making regulations to provide rates for the work before it is done does not appear to me to make very much sense. There is no question of my trying to depart from the basis on which we have worked. I think trust will be on a much firmer basis if we know exactly what it is we are entitled to take into account.
I entirely accept the point which is made about the phrase "shall be entitled to have regard". It may be that we shall be able to improve on that, but I explained at Second Reading and repeat now, since it is an important matter, that these regulations will be somewhat detailed. For example, much work has gone into the matrimonial costs regulations which have been the subject of negotiation, and there are a lot of different areas of work which the Bar and the solicitors do which must be covered. I do not think we could reasonably expect the remuneration regulations to review each of these items fully every year.
Therefore as sometimes happens—I am sure the negotiators will remember this—it has occasionally been agreed that a particular item or series of items
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should be dealt with simply by a straighforward uprating, if that is appropriate, by reference to the general level of prices or something of that kind. I should have thought, first, that if I were subject to judicial review in respect of subsection (6) the court would expect me to be able to demonstrate that I had taken all relevant considerations into account as part of the fundamental administrative law. Secondly, if these factors which are mentioned here were not taken into account, they were not taken into account for some specific reason such as I have mentioned.
This is my explanation of how the terms come to be as they are. I am certainly very amenable to doing my best to improve them. In so far as improvements can be suggested, particularly in relation to the phrase which I mentioned—"shall be entitled to"—I am content to seek to improve. However, I do not think it will be an improvement to reintroduce vague words instead of the specific factors which seem to me to be important.
I hope that in the light of these considerations noble Lords will not approve this amendment as it stands.
10.15 p.m.
Lord Renton: Before my noble and learned friend sits down, I wonder whether he will allow me to point out that I think most of us discussing this amendment were speaking only to Amendment No. 47. I myself do not agree with Amendment No. 49. I think it would have followed from what I said about the public purse. Surely whether line 27 should be left out is a separate issue, and it would be better if we concentrated at this moment on Amendment No. 47.
Lord Ackner: Before my noble and learned friend the Lord Chancellor sits down, could he confirm what I hoped he was going to confirm earlier in the day? It was that the Government stand by their response which I read out in relation to legal aid. It was in these terms on page 10 of the Command Paper:
"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".
I wonder whether my noble and learned friend the Lord Chancellor could tell me whether that is still the view of the Government. I have asked this before.
Baroness Seear: Before the noble and learned Lord the Lord Chancellor sits down, perhaps I as a non-lawyer and also as someone who has struggled with these questions of pay over a number of years may intervene rather nervously in this debate. When it comes to the judicial review, could the Lord Chancellor explain how it would operate with a clause as highly subjective as he considers appropriate? I think that,
"entitled to have regard among the matters he considers appropriate,"
gives such power to make a personal subjective decision about what is appropriate that it would be

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very difficult to apply the judicial review to something as subjective as that.
The Lord Chancellor: Perhaps I should answer the questions in the order in which they have been put to me. As regards the question of my noble and learned friend Lord Ackner my view is that the Government's position is still as stated in the Command Paper. I see no reason to depart from that. One of the factors if engaged in private litigation is that one is able to make an agreement in advance if one wishes to do so as to what the rate of remuneration might be.
As regards the question of the noble Baroness, Lady Seear, I think that the courts have shown very plainly over the years, in the judicial creativity which is involved in judicial review, that a Minister in the position of the Lord Chancellor under a regulation of this kind would have an obligation implied in the regulation to consider all relevant factors, as the noble and learned Lord, Lord Ackner, illustrated by quoting from the concluding passage in the order relating to taxation. It would be quite within the powers of the court on judicial review to exclude and to strike down a decision which was based on idiosyncratic ideas of a particular Lord Chancellor.
Viscount Bledisloe: The noble and learned Lord said that it was not his intention in the drafting to avoid the possibility of judicial review. Speaking for myself, I have no possible hesitation in accepting that. Whether or not it was perhaps in the back of the minds of those in the department of the noble and learned Lord the Lord Chancellor who drafted some parts of this Bill before his welcome elevation to this post, we cannot know. But assuming that it is not so intended, I confess that I am wholly unable to understand why the Government are in any way reluctant to accept the amendment which states that they shall be obliged to have regard to these matters rather than that they shall be entitled to have regard to these matters. As I understand it the part of Amendment No. 47 which we are now considering states that the Government shall:
"have regard to the principle of fair remuneration".
The Government shall in particular have regard to the items listed rather than merely shall he entitled to do so.
For my part I am wholly unable to understand why the Government are reluctant to be compelled to have regard in drafting the regulations—not in fixing the pay—to those matters.
On the question of fair remuneration, surely the noble and learned Lord is being a little less than his usual clear self in confusing the question of whether the regulations have themselves to provide for remuneration which is in every circumstance fair, which would obviously be very difficult, or whether they should merely be regulations made by him having regard in making them to the principle of fair remuneration. For my part, again I wholly fail to understand why an obligation to have regard to the principle of fair remuneration would be any objection to fixing scales of fees in advance. After all, when my
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client and I through the intermediary of our solicitor and our clerk agree a fee for a case, what they are doing is having in advance regard to the principle of fair remuneration. They may of course get it wrong; it may turn out to be much harder work than they thought. But they are having regard to that principle. Regulations which state that payment for drafting a statement of claim shall be between £20 and £25 in normal cases have regard to the principle of fair remuneration even if in the odd case they miss the target.
I must confess that nothing that the noble and learned Lord has said explained to me either why the Government are reluctant to accept an obligation to have regard to these principles rather than merely an entitlement to have regard to them (which, as the noble Lord, Lord Benson, so clearly said, must give them equally a right not to have regard to them) or why they are reluctant that the regulation shall be made by the noble and learned Lord the Lord Chancellor after having regard not to achieving fair remuneration but to that principle. Unless the noble and learned Lord can explain that to me more clearly, I confess that I remain unconvinced.
The Lord Chancellor: I do not wish to delay the Committee unduly. The amendment proposed has more in it than "shall … have regard". If that was all it contained, it would be easier to accept. As I have tried to explain, the reason it is not easy always to have regard to all those matters in detail in determining the regulations is that from time to time one would wish that to be done by way of uprating. The basic considerations would be those. However, one would not, every time one made new rates or regulations for rates, have to consider all of them on the basis of various factors. That is a big job, as the noble Lord must know. Accordingly, it seemed to me to be right to make it clear that those were the basic factors in the consideration and that they will remain so. However, it may not be necessary every time to have regard to them.
As I have explained, the reason I have not put in the phrase "fair remuneration" in that context is that it is meaningless as an addition to the factors. What does it mean? What help does it give to the negotiators? How does one tell whether a sum of £20 or £40 is fair remuneration? It is only possible to tell that by examining whether the sum takes proper account of those factors. That is the way I see it. It seems to me to be an operative and operable formula.
Lord Ackner: The noble Baroness, Lady Seear, put her finger very perspicaciously on the point. The suspicion which has widely existed that the reason for the exclusion of the statutory obligation was to avoid judicial review is simply this. Judicial review is the courts' supervisory jurisdiction. What are they to supervise? As the Act now stands, quite clearly they are to supervise the statutory obligation of the Lord Chancellor to pay fair remuneration for work actually and reasonably done. It is that which can be supervised. Once one starts an area of total discretion, one has a great deal more difficulty. As I understand it, irrationality would have to be

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established. That means behaviour which no Lord Chancellor with his wits still in existence would succumb to. That is the reason this is so important.
Perhaps I may reply to the noble Lord, Lord Trafford. The reason the lawyers are spending time on this matter is because they agree with what the Government said, which I read out at an earlier stage in the debate. The existence, strength and vitality of an independent legal profession and public confidence in it are fundamental to our freedom under the law. If we erode that profession by underpaying so that a large proportion of those people cannot have a proper existence, we shall not only de facto prejudice the profession that exists but we shall also prejudice those, if any, who come thereafter.
Having listened to the noble and learned Lord the Lord Chancellor, I must, with deep respect, indicate that I am wholly dissatisfied with his observations. If he does not like the words "actually and reasonably done" because they relate to the past, let him keep the obligation to pay fair remuneration and continue:
"and shall have regard to the following factors".
That is simple. If his only anxiety is that that is a reference to the past, let him take out the past.
As regards the noble and learned Lord's willingness to consider the very point which was pinpointed by my noble and learned friend Lord Griffiths in the Second Reading debate, nothing has been forthcoming. With regret, I feel little confidence that the point which I see as fundamental will occur. Although the hour is late, with great reluctance I feel that the views and feelings of the Committee on this vitally important matter should be taken. I beg to move.
10.30 p.m.
Lord Hailsham of Saint Marylebone: Before that takes place, I ask my noble and learned friend to revise his situation. This can hardly be described as a packed and excited Chamber. The feelings of Members of the Committee are better obtained when the hour is earlier and they are more capable of forming an opinion on what they have heard. I had very grave doubts as to whether I ought to take part in the debate, but I think that I ought to put one or two factors on the record. I ask my noble and learned friend Lord Ackner to consider whether this is a suitable moment at which to take the feelings of the Committee.
Contrary to what some noble Lords suggested at an earlier stage, I practised under this system from the time at which it was brought into operation, about 1949, until 1956; and again between 1964 and 1970. It is quite a long time when the two are added together. I do not agree with the noble Lord, Lord Benson, that throughout that time the legal profession was under-remunerated. On the contrary, from 1970 onwards the Bar at any rate has doubled in size, which is not the mark of an under-remunerated profession.
However, there were two important respects in which I think it was under-remunerated. One, as I have already indicated, was the question of delay in
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payment, which I do not equate with the question of interim payments, to which my noble and learned friend Lord Griffiths referred. I can assure him that there would not have been an icicle in June's hope of the scheme coming into effect had it not been for my personal intervention in the matter. The other respect in which there was not fair remuneration was the 10 per cent. deduction from fair remuneration which had to be made by statute. This we have now removed.
Lord Ackner: That is not accurate, with great respect to the noble and learned Lord. According to the statement of the noble and learned Lord the Lord Chancellor on Second Reading, as from this month it would be down to 5 per cent. and it would be totally removed once the legislation came into force.
Lord Hailsham of Saint Marylebone: I quite understand that what we are discussing is the situation when the legislation comes into force. If I said anything to the contrary, I hope that I may be allowed to correct it.
We are now considering the situation in which the 10 per cent. deduction will have been removed. One has some hope—I trust not a vain one— that the delay in payments will be obliterated so far as it is reasonably possible to do that. I repeat that it is not fair to say in a case where a profession was doubled in size over a period of 10 to 15 years that it has been wholly under-remunerated.
I say this to my noble friend Lord Trafford. One of the reasons—not, I think, adverted to by my noble and learned friend Lord Ackner—why lawyers are in a separate position (although nurses, doctors and others paid by the public are entitled to fair remuneration) is that lawyers are an independent profession paid by the piece. What gives rise to the controversy is that they are not paid by salary and therefore they have to be paid by fees. It is therefore not unreasonable for lawyers to have a separate debate upon what is virtually the only profession which is paid by fees.
The phrase to which so much attention is being paid is "have regard to the principle of fair remuneration". I could have understood this a good deal better if the phrase to which importance was attached had been "to pay fair remuneration". But "to have regard" is an extremely ambiguous phrase.
Simply as a matter of record—and I hope that I shall not be corrected—when the Bar Council tried to take the then Lord Chancellor to the divisional court by way of judicial review it was not on the ground that fair remuneration was not being paid, but that there had not been adequate consultation. I had tried to explain to the Bar that I could not go further at the stage at which negotiations were broken off before Christmas until two matters were cleared up. The first was that certain claims were factually incorrect. I shall not enter into those this evening. The second was that before a further offer could be made in the ordinary course of constitutional practice a meeting would have to be convened under the chairmanship of the Prime Minister with the principal spending departments present as well as myself. That could not

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be arranged until the following mid-January. Those were the matters which gave rise to the misunderstanding.
The total effect was to delay a settlement—and it was settled—for about two months because no further offer could be made while the proceedings were in place. Whether the Bar were wise or foolish to do that is not for me to say. However, they achieved exactly what they would have achieved two months earlier had the matter not taken that course.
This is a late hour. The House has been paying great attention to everything that has been said. But I do not know what would be the result of calling a Division at this hour. Very few of us except those in the Chamber have heard the arguments and, with great respect to my noble and learned friend, it would be quite inappropriate to the tradition of this House to force a Division when the state of the Chamber is as we see it to be and the hour is as we know it to be.
Lord Renton: Having spoken in favour of Amendment No. 47, I too hope that the noble and learned Lord, Lord Ackner, will not try to bring this to a conclusion tonight. From his point of view it might be a self-defeating exercise. If the matter is allowed to rest for the time being we might achieve something from this amendment eventually.
Lord Ackner: The last thing I wish to do is to embarrass this Chamber. The fact that this amendment is being debated at a late hour was not of my choosing. If I had been told at dinner time that we were to continue consideration of this Bill on Thursday, I should have ordered a decanter of wine instead of a bitter lemon and enjoyed the rest of the evening.
If the noble and learned Lord the Lord Chancellor is prepared to say that he will consider putting into Clause 32 wording that refers to reasonable remuneration—using the words of the noble and learned Lord, Lord Hailsham, or some other words—leaving out, if he wishes, the words "work actually and reasonably done", which worry him, and will give consideration to putting in words that make it obligatory to have regard to the items he mentions, I shall depart with enthusiasm and with a song in my heart. But I really think that he ought to go that far.
The Lord Chancellor: I explained to Members of the Committee that in drafting the clause in this way I had in mind that we should have a workable formula. It is fair to the departmental officials to say that this clause was drafted in its present form as a result of instructions given by me.
Of course I am anxious that the best possible relations should exist between the Lord Chancellor's Department, the Bar and the Law Society, and that we should have an amicable method of solving these problems. I appreciate that in view of what has been said the precise words that have been chosen may have created some impressions which are not in accordance with what I would wish. Therefore in the interests of seeking to secure at the outset of my personal involvement with this problem a reasonable
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relationship, having regard to my responsibilities and the responsibilities of the Government to the public purse, I am willing to see whether some accommodation can be reached.
I certainly am prepared to make as plain as possible, having regard to achieving a workable formula, what we are aiming at. The suggestions that the noble and learned Lord, Lord Ackner, made at the end of his speech may provide a basis. I need some formula for dealing with the uprating, however. It is possible that it is not beyond the wit of all of us to invent something to cover that.
If we can get a formula that everybody likes, that may be a good start. In the hope that the debate may have helped me to produce one, I am content to reconsider. I cannot promise to satisfy the request but I can at least promise to try.
Lord Ackner: In view of the two years of consistent harmony that I have enjoyed sitting alongside the noble and learned Lord, I have every confidence that he will do his best. I hope that that confidence will be fully satisfied, as I believe it will in due course. In the circumstances I ask the Committee's leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Ackner Lord Ackner moved Amendment No. 48:
Page 27, line 25, at end insert ("and whether competent barristers and solicitors will continue to undertake the work").
The noble and learned Lord said: This amendment is short and simple. I hope that it is not contentious. All I am asking is that there is inserted at paragraph (d) words to the effect that there should be taken into account not only the number and general level of competence of barristers and solicitors undertaking the work but whether competent barristers and solicitors will continue to undertake the work.
I urge the amendment with an unusually high degree of confidence because, after the debacle to which the noble and learned Lord, Lord Hailsham, referred, he laid down a document containing matters to which the Lord Chancellor proposes to have regard in making the criminal legal aid regulations. It was signed by the Lord Chancellor's Department on 8th April 1986. It states in terms as one of the items whether competent people are continuing to be attracted to and retained at the criminal Bar in sufficient numbers.
The importance of this is that the noble Lord, Lord Trafford, did not understand what all the fuss was about. It is not only about the situation at the moment. I emphasise that it is about how one is to recruit to the legal profession if the fees, on which depends the livelihood of a high proportion of its members, are grossly inadequate. This is in light of an independent investigation by a well-known firm of consultants, when it was discovered that barristers after 10 to 14 years in the profession were earning 30 per cent. less than those of the same seniority in the legal service in government departments. That is why the question of future intake is so important. I, like my noble and learned friend Lord Griffiths, in view of the positions we have held, have kept in touch with

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the Bar. There is no doubt that it is having difficulty not in recruiting but in recruiting the people who should be entering a specialist profession.
I hope that since the noble and learned Lord, Lord Hailsham, and his department thought that this was a relevant factor there should be no problem in my noble and learned friend the Lord Chancellor accepting the same philosophy. I beg to move.
10.45 p.m.
Lord Trafford: I should like to point out that the noble and learned Lord, Lord Ackner, has not quoted me correctly. I said nothing about recruitment to the Bar. Indeed, the Committee later heard that over the past 10 years the Bar has considerably expanded. Furthermore, I point out to the noble and learned Lord that, apart from misquoting me in this context, in many professions there are difficulties in recruitment related to various factors, not only to salaries, although often attributed to salaries. It may be that a nasty suspicion creeps into my mind that it was not that he misunderstood me but perhaps understood me only too well.
Lord Griffiths: I gather from what was said by my noble and learned friend the Lord Chancellor that he was sympathetic to the idea underlying the amendment but felt that probably it was comprised within subsection (6)(d). I believe that it is important to keep one's eyes on future recruiting, particularly bearing in mind that the ultimate Bench will come from tomorrow's recruits. I hope that the drafting of subsection (6)(d) can be reconsidered so that that concept can be embraced within it, even though it is not necessary to have this amendment in addition to paragraph (d).
The Lord Chancellor: At this time of night and having regard to what I said in respect of the earlier amendment, I shall certainly take this matter into account.
Lord Ackner: In those circumstances, I am happy to beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Ackner Lord Ackner moved Amendment No. 49:
Page 27, leave out line 27.
The noble and learned Lord said: This is an important amendment. I am sorry that the hour is so late but it is not within my hands to ask for how long we carry on. I should like to make the point perfectly clear. The cost to public funds is an entirely legitimate consideration. It is an entirely legitimate consideration when the Government are assessing priorities for expenditure, in particular in determining what should be the extent of legal aid.
I should like to explain what I mean. There have been various attempts to persuade the Government to extend legal aid; for instance, to representation before industrial tribunals. That suggestion was strongly supported by one of my noble and learned friends who practises very much in that field. My
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noble friend Lord Irvine of Lairg spoke in some detail about it. The Benson Commission suggested extending it among other courts to the coroner's court. The suggestion has also been made of extending it to social security tribunals. I have not taken part in any debates on the subject but I quite understand when the Government say, "Sorry, we cannot afford it. The public purse", to which my noble and learned friend the Lord Chancellor has frequently referred, "does not permit it". I also fully understood when yesterday my noble and learned friend Lord Simon of Glaisdale made a powerful speech in regard to Clause 12 and the same point arose.
I should like to remind the Committee how the matter arose in relation to Clause 12. My noble and learned friends Lord Simon of Glaisdale and Lord Denning urged that the legal aid fund should pay the costs to the successful non-legally assisted party in the same way as those costs can be ordered on an appeal because the limitation on the court's jurisdiction in those circumstances is for as long as it is just and equitable. My noble and learned friend Lord Simon pointed out with impeccable logic that to deny the court that power in a case at first instance was to indicate that the Bill would contain a clause which was neither equitable nor just. There would be no possible reason for omitting that clause if "just and equitable" was the only consideration. However, the consideration was the public purse. The legal aid fund cannot afford to pay the costs of the successful non-legally assisted defendant. So be it. That is a matter which, of course, the Government have to control.
My point, quite simply, is that once it is decided that legal aid should e granted, then there should be legal aid in the magistrates' court, in the High Court, and so on. Once that is granted, the public purse cannot then come along and say that it will not pay a reasonable sum because the public purse is empty. The answer is to be honest about it and withdraw legal aid. The public know where they stand. Once the concept is introduced that the public purse should decide whether you pay below a reasonable sum, that is introducing a wholly irrelevant concept. It is introducing policy into fair remuneration. It occurs nowhere else. No taxing master introduces that in his assessment. It is now being muddled into this Bill along with the obligation to pay fair remuneration—but only fair remuneration if the public purse can afford it. I say that is irrelevant. It is irrelevant to the scope of the facilities that are provided that once the facility of legal aid is provided, it is an irrelevant concept. I beg to move.
Lord Renton: There have been several times in the living memory of those of us who are now fairly old when the Government have been faced with a very severe economic crisis and, by common consent, government expenditure on all sides has had to be restricted. To say that the Government shall not have the freedom to do that with regard to the legal aid fund in those unfortunate circumstances seems to me to be quite unrealistic. I hope that such a situation will never arise but to say that Parliament is to act on the basis that it would never arise seems to be impracticable and wrong.
Lord Simon of Glaisdale: I stand by everything I said in relation to the earlier clause to which my noble and learned friend Lord Ackner has referred. I hope that we shall have a further opportunity of discussing that matter at a later stage, but it really cannot be used in relation to this amendment. The amendment seeks to leave out from the consideration of the Lord Chancellor in making the regulations the cost to public funds of any provision made by the regulations.
The service of justice is a social service and it has to compete with other social services. Naturally, we, as lawyers, who are mainly taking part in these debates, rate it very high. But there are other clamouring voices urging the claims of, for example, the National Health Service, education at all levels, regional policy, and so on. One can go on indefinitely. It seems to me to be absolutely impossible to say that one of the matters that the Lord Chancellor must not have in mind is the cost to public funds. The decision pre-empts all the Cabinet decisions, all the Treasury decisions about the priority of public expenditure, and it pre-empts the watchdog committee. It seems to me that one of the matters that the Lord Chancellor must bear in mind in making the regulation is the cost to public funds. It simply cannot be dismissed as if this Bill were in isolation and as if justice were the only social good of which the provision of legal aid was the only cause within the general cause of justice. I hope that my noble and learned friend the Lord Chancellor will not accept this amendment.
Lord Benson: I support this amendment. Clause 32(6) ought to say—and in the light of this debate it seems likely that it will eventually say—that fair remuneration should be paid. It should then go on to say, if it is thought proper, what factors should be taken into account in fixing fair remuneration.
Subsection 6(f) is an entirely unrelated subject and it has nothing whatever to do with fair remuneration. It is concerned with the amount of money that is in the coffers of the Treasury. A long-established principle upon which government and its financial administration has been based is that the Government can set aside what is available out of the national economy for legal aid. It is then the responsibility of the appropriate department to keep within those limits after paying appropriately the outgoings that are necessary to provide that service.
In its present form the Bill does exactly the opposite. It says that legal aid will be provided, but it enables the Lord Chancellor, if there is a deficiency, to take it out of the pay of the legal profession. That is highly selective and highly punitive. If it were to have the slightest trace of fairness the Bill would say that in considering the provision of legal aid the pay of the judiciary engaged in legal aid cases shall be reduced—we will take it out there. Alternatively, it should entitle the Lord Chancellor to say that the remuneration of the raft of civil servants who provide the support services shall be reduced. Does the noble and learned Lord wish to intervene?
Lord Hailsham of Saint Marylebone: I am sorry to interrupt the noble Lord. I was spoken to from the
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Bench behind, and I was not intending to interrupt. I am very hoarse, and the result is that I may have made too much noise.
Lord Benson: I was saying that if this is to have the slightest trace of common sense or fairness the pay of the judiciary engaged in legal aid cases should be reduced, the pay of the raft of civil servants who supply the support services should be reduced, or the pay of the noble and learned Lord the Lord Chancellor should be reduced, and that of his servants who are engaged in legal aid matters.
If that were to be done there would be some semblance of fairness. On the contrary, what this does is to invest the Lord Chancellor and the Treasury with the right to make up any deficiency out of the pay of the lawyers alone and without their approval.
It is sometimes easier to explain by analogy. The Government may say, "We will build six warships". The Treasury say, "We will only provide enough money for four warships". The Government nevertheless build six warships and say, "If there is a deficiency of funds we will take it out of the pay of the ratings". The result of that policy is that you will get no ratings, and that is exactly what is happening and is going to happen in legal aid. You will not get the lawyers, who will refuse to provide the service if reasonable remuneration is not paid.
Another analogy is the case of a private citizen who orders goods valued at £120. When the bill comes in he says, "I am sorry, I have only £100. You will have to go short". If a private citizen does that it is considered dishonourable, and it is no less dishonourable if it is done by the Government.
I suggest that it is totally impossible to say that if public funds are getting out of hand we shall take it out of the pay of the lawyers without their approval. This novel and irresponsible form of public financial administration is quite unfitted for the Legal Aid Bill. I go further and say that if this same principle—or, I should say, this lack of principle—were included in the administration of every spending department the whole government administration would come to an end.
This subsection has absolutely no relevance to fair remuneration and I suggest that it should come right out of the clause. If it is desired to put it in some other place, which I rather doubt, so be it, but it has nothing whatever to do with the fixing of fair remuneration.
11 p.m.
The Lord Chancellor: I do not think I can improve on the statement of the position given by the noble and learned Lord, Lord Simon of Glaisdale, for wishing to retain this factor among those which are to be considered. There is no question of our taking money out of the pay otherwise agreed for the legal profession, as the noble Lord, Lord Benson, has suggested. My pay, and anyone else's pay which is fixed for the public service, takes account of the fact that it is paid out of the public funds, and that is what we seek to do here. That was made plain in the White

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Paper. The principle on which the noble and learned Lord, Lord Ackner, has repeatedly founded his argument, as stated in the White Paper, included reference to this.
If one looks at the taxation systems that have been used in the courts over the years, they take account of what is fair in relation to the nature of the person paying, the standard basis between party and party being different from the indemnity basis as between the client and the solicitor and counsel. This is a statement of the Government's position which has been clear for a long time. So far as I am concerned this certainly is not in any sense something that I could reconsider.
Lord Ackner: I would not suggest for one moment that in regard to pay agreed there would be an attempt to make deductions, although the power would no doubt exist if the clause stands. Where pay should go up there would be no increase, and the public purse would then recoup itself by a standstill so that the remuneration got less and less reasonable.
I know that I shall be told by those much more experienced than I that however important this is it is now five-past 11 and I should be going against the ordinary conventions of the House by asking the Committee to divide. I therefore through no fault of mine have no alternative but out of courtesy to Members of the Commitee to ask leave to withdraw the amendment and give as firm an undertaking as I can, having regard to the commitments of the Appeal Committee, to restore it when perhaps the Whips may enable me to do so in a situation when I can test the view of the House.
Amendment, by leave, withdrawn.
Lord Ackner Lord Ackner had given notice of his intention to move Amendment No. 50:
Page 27, line 31, at end insert—
("( ) The Lord Chancellor, in making regulations for the purposes mentioned in subsection (2)(e) above in relation to criminal legal aid work as respects the courts, persons or bodies by whom, and the manner in which, any determinations which may be required for the remuneration and payment of the expenses of solicitors and counsel shall be made, reviewed or appealed, shall require such courts, persons or bodies to have regard to the principle of allowing fair remuneration according to the work actually and reasonably done.")
The noble and learned Lord said: I do not move this amendment because it is connected with Amendment No. 40 and repeats in the same manner the provisions of that amendment. I therefore ask the Committee's permission not to move it.
[Amendment No. 50 not moved.]
Lord Elwyn-Jones Lord Elwyn-Jones moved Amendment No. 50A:
Page 27, line 34, at end insert ("and any such regulations shall not come into force unless and until approved by resolution of each House of Parliament").
The noble and learned Lord said: In view of the importance of Clause 32 and its relevance to remuneration and payment of the profession, I wonder whether the noble and learned Lord will
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say—and it will shorten my speech—that he will give sympathetic consideration to Amendment No. 50A. I beg to move.
The Lord Chancellor: I do not think that this type of regulation should be subject to the affirmative resolution procedure. I have gone a good way with the noble and learned Lord on matters where novelty is involved but these regulations are comprehensible and can easily be attacked by the negative resolution procedure if any point has to be raised about them. I am not disposed to put the affirmative resolution procedure into the clause.
Lord Elwyn-Jones: This will produce an interesting accumulation of work at Report stage, but in the circumstances I ask leave to withdraw the amendment with the assurance that we shall return to the attack again.
Amendment, by leave, withdrawn.
Lord Silkin of Dulwich Lord Silkin of Dulwich moved Amendment No. 51:
Page 27, line 39, at beginning insert ("Subject to the foregoing provisions of this Act").
The noble and learned Lord said: With the leave of the Committee perhaps I may take with this Amendment No. 52A, which I think says exactly the same thing but in a slightly different place and with different wording.
When my amendment was put down the assumption was that by this time there would be provisions for the affirmative resolution procedure in the Bill and that therefore a provision of this kind would be necessary when we came to Clause 32. However, what we have is a number of undertakings rather than amendments. In due course one or other of these amendments will be appropriate even though not at the moment; in due course the noble and learned Lord the Lord Chancellor will have introduced his provisions on the subject. It may therefore be convenient to leave it to the noble and learned Lord to say what is convenient in the circumstances. I beg to move.
The Lord Chancellor: The noble and learned Lord is perfectly right. I think it might be wise to leave these provisions to parliamentary counsel to draft the implementation of the undertakings and the matters consequential.
Lord Silkin of Dulwich: I am quite content to follow that advice. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Ackner Lord Ackner moved Amendment No. 52:
Page 27, line 39, after ("Act") insert ("except any such regulations as are mentioned in subsection (9A) below").
The noble and learned Lord said: This amendment is linked with Amendment No. 53. The two go together. It seeks to indicate, so that the Lord Chancellor can consider them as he said he would at Second Reading, those clauses where the affirmative resolution procedure should be applied. I shall go through them. Clause 1(5) on page 2 deals with regulations which may specify or include in advice or

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assistance any description, or representation. That is therefore very important.
Clause 1(7) deals with regulations which may prescribe the circumstances,
"in which representation is to be by counsel only or by solicitor only and regulate representation by more than one counsel".
That raises or could raise important matters with which even the courts themselves may be concerned, since it is they who ultimately control the audience before their courts. I would respectfully suggest that it would be quite wrong for it to be done other than by an affirmative resolution.
The next matter to which I have referred is Clause 13, which has already been catered for, so I can leave that. Clause 14 deals with availability of and payment for representation under the legislation. There are the regulations under Clause 14(3) which may prescribe the criteria for determining any questions arising under paragraph (b); that is, assistance by representation under Part III.
Then there is Clause 15, which concerns reimbursement of the board by contributions out of costs or property recovered. That provides for regulations within the body of that clause.
Next is Clause 19(9), which Members of the Committee will find on page 16:
"An order under section 2(4) may make provision restricting or excluding the competence of any court mentioned in any of the subsections (2) to (7) above and may contain such transitional provisions as appear to the Lord Chancellor necessary or expedient".
Clause 30(6), which Members of the Committee will find on page 24, deals with regulations in respect of representation under Part V. Finally there are the regulations under the all-important Clause 32 regulating the remuneration of the profession.
Those are aspects which I commend to the attention of the noble and learned Lord the Lord Chancellor as being matters which should be the subject of an affirmative resolution. Accordingly, I beg to move.
Lord Meston: I should like to support this amendment. All these matters are on that side of the borderline which I suggest would require affirmative resolution.
The Lord Chancellor: We have dealt with some of these, and the principle that I have tried to follow is to apply the affirmative resolution procedure where some explanation is likely to be necessary in putting forward the regulations. So far as I have been able to judge, the regulations which are covered by these clauses, apart from the ones to which I have already agreed, would be self-explanatory.
The negative resolution procedure enables these resolutions to be very effectively challenged in the House if a question arises about them. On the other hand, it is very unwise to waste parliamentary time on regulations which are self-explanatory and which do not raise any matter of controversy. I would hope that most of the regulations under these clauses would be of that kind. If on their face there is a matter of controversy, then the negative resolution procedure is appropriate.
Lord Ackner: I find myself in the situation to which my noble and learned friend Lord Griffiths referred on Second Reading, seeking to negotiate when there is nothing with which to negotiate. In that unhappy situation, I have no alternative but to beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
11.15 p.m.
Lord Elwyn-Jones Lord Elwyn-Jones moved Amendment No. 52A:
Page 27, line 40, after ("which") insert ("except as expressly provided otherwise").
The noble and learned Lord said: I wondered whether, in view of the fact, in relation to subsection (9)—which provides that,
"The power to make regulations under this Act is exercisable by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament"—
that the noble and learned Lord has already conceded in respect of at least one of the regulations under this Bill that it should be by affirmative resolution, it is a helpful suggestion that is contained in my Amendment No 52A, which proposes the insertion of the words,
"except as expressly provided otherwise".
I imagine that that would be worthwhile. I beg to move.
The Lord Chancellor: As I said, I think it is highly likely that something on those lines would be acceptable. But I think it would be part of the consequentials, and it might be right that parliamentary counsel should be invited to draft the whole of the consequential provisions. If we do some of them, we may find that something goes wrong, so I should prefer that the matters be left together to deal with.
Lord Elwyn-Jones: Something has got to be done, but I am quite content that counsel should be consulted about it. In those circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Ackner Lord Ackner had given notice of his intention to move Amendment No. 53:
Page 27, line 41, at end insert—
("(9A) Any regulations made for the purpose of sections 1(5), 1(7), 13, 14, 15, section [Remuneration of persons giving civil legal aid], 19(9), 30(6) and 32 of this Act or containing any provision made for any of these purposes shall not come into force unless or until approved by a resolution of each House of Parliament.")
The noble and learned Lord said: This amendment is designed to remove the—
The Lord Chancellor: We have dealt with it already. If the noble and learned Lord will allow me, I think that Amendment No. 53 went along with No. 52. So the noble and learned Lord has already dealt with that. I think we are now at Amendment No. 54.
[Amendment No. 53 not moved.]
Lord Ackner Lord Ackner moved Amendment No. 54:
Page 28, line 6, leave out subsection (11)
The noble and learned Lord said: This amendment is designed to remove the Treasury diktat to be found in Clause 32(11),
"No regulations shall be made under this section which include provision for the purposes mentioned in subsection (2)(c) or (e) above except with the consent of the Treasury."
When the judicial review proceedings came on before the divisional court, on the second day—the report is to be found in The Times of 22nd March 1986—counsel on behalf of the Lord Chancellor said this:
"The Legal Aid Act 1974 itself recognised that the Treasury had a part to play in the funding of legal aid. Of course the Treasury could not dictate to the Lord Chancellor on the exercise of his discretion, but Treasury restraints were a relevant factor to which he could have regard in the exercise of his discretion."
There was no suggestion that that was a situation under which the Lord Chancellor laboured with some difficulty, but now there is to be potential dictation by the Treasury to the Lord Chancellor, rather than the exercise by the Lord Chancellor of his discretion having consulted the Treasury. In other words, this is part of the Treasury stranglehold to which reference has been made previously in relation to this Act.
My noble and learned friend Lord Griffiths drew particular attention to it on the Second Reading, saying that the Bill was peppered with instances of the Treasury hand upon the Lord Chancellor, and he really thought that it was outrageous that the Lord Chancellor, should be, in substance—I do not quote him—manacled in this way. That is the reason for the amendment. What I am seeking to do is to mount a rescue operation to save the Lord Chancellor from the Treasury's embrace from which he may never emerge capable of continuing to breathe. I beg to move.
Lord Griffiths: My noble and learned friend Lord Ackner has already taken the cherries out of my orchard. I support the amendment, especially because I know that during negotiations with the Lord Chancellor's Department the song that was sung all the time was, "Oh, the Treasury won't wear it". If nothing can be done without specific Treasury consent—it is not a party to the negotiations—such negotiations are impossible. Furthermore, it is absolutely outrageous that the Lord Chancellor of England should be manacled by the Treasury in administering this scheme.
Lord Simon of Glaisdale: My objection to the subsection is different from those that have been expressed. I have no sympathy with paranoic distrust of the Treasury. The Bill is concened with the provision of justice through legal aid. The worst place to proclaim justice is on the doorstep of the International Monetary Fund. The Treasury has a vital part to play in balancing the competing claims on public funds. I make no excuse for using the words "public purse" which my noble and learned friend Lord Ackner seems to find so ignoble.
My objection is that the subsection is concerned with a government's machinery of justice and is
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unnecessary. Regulations made by any department must be cleared with the Treasury just as must any action by any department. The words,
"except with the consent of the Treasury"
are unnecessary. Although I do not for a moment adhere to the line that the Bill is subject to a Treasury stranglehold, I suggest to my noble and learned friend the Lord Chancellor that the provision is unnecessary because the normal machinery of government takes account of it.
The Lord Chancellor: This is a common form of provision. It is necessary for me to adhere to it in relation to statutory instruments which affect the public revenues and under which payments are to be made out of the public purse by virtue of regulations. The words are necessary on that account. The reality of the matter, as has been said, depends upon securing Treasury consent. A workable formula for arriving at the remuneration will be an important factor in enabling that consent to be forthcoming. The need to have that provision on the face of the Bill is in accordance with the ordinary practice with such regulation-making powers. Therefore I cannot accept the amendment.
Lord Ackner: On the axiom of reculer pour mieux sauter, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 32 agreed to.
11.30 p.m.
Lord Ackner Lord Ackner moved Amendment No 55.
After Clause 32, insert the following new clause:
("Legal Aid Fees Advisory Committee
. The Lord Chancellor shall appoint an Advisory Committee (to be known as "the Legal Aid Fees Advisory Committee") to examine and report to him on all matters relating to the remuneration of the legal profession in connection with legal aid.")
The noble and learned Lord said: When I was at the at, not long ago, I used frequently to use the formula, "I am, of course, in your Lordship's hands." This matter was the subject of a three-hour debate in June 1986. It is bound to take time; it is just the sort of subject on which one should be entitled, if need be, to ask for the views of noble Lords, particularly in the light of the fact, referred to by my noble friend Lord Benson, that 13 peers spoke on that occasion. They were unanimous that there should be this committee. I do not propose to take this shortly because I would not be doing justice to the important matter which noble Lords thought fit to make the subject matter of that debate. I am in your Lordships' hands and perhaps I might have assistance in the circumstances.
Lord Denham: I wonder if the noble and learned Lord would consider this. There are a number of government Bills going through both Houses in every Session of Parliament, and time in both Houses is a finite commodity. It is generally accepted in both Houses that it is the duty of the Opposition to enable the Government's business to go through.
In this House, we have the great advantage that we have no selection of amendments. We have no guillotine; we have no closure. Any noble Lord may

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put down any amendment that he likes to a Bill, speak on it for as long as he likes and get as many of his noble friends to support him as he likes. The corollary to this must be that if debates on a particular amendment are going to take a long time, either debates must be shorter on other amendments or the House must sit late.
The noble and learned Lord, Lord Ackner, moved an extremely important amendment to the Bill which took 72 minutes. We have a certain number of days allotted to the Bill. The noble and learned Lord must realise, as noble Lords in the parties in this House must realise, that if they wish to give a rather greater consideration to one part of the Bill, they must be prepared to give less to another part or sit late.
If we rise now, we may not have the time to give the sort of discussion which the noble and learned Lord has in mind to this amendment. I think noble Lords must exercise a certain amount of forbearance. This must apply to noble and learned Lords as well as to noble Lords in the parties in this House, because the freedom we have in this House of choosing the amendments which we wish to discuss and the time we wish to spend on them is very precious to the House and very right for a revising Chamber.
Because of the length of time which has been taken on other amendments, I hope the noble and learned Lord will see fit to take slightly less time than he would otherwise have wished on the amendment which he is about to move.
Lord Ackner: I merely made the observation because yesterday evening, when I was perfectly prepared to continue with the amendments which were down in my name, the general view was that we should rise. Naturally I did nothing to take a contrary view. I was wondering—I am in your Lordships' hands—why Tuesday should be treated so differently from Monday. Apparently, however, that is to be the case, so I shall seek to address the Committee.
This amendment owes its genesis to a debate which took place in June 1986. It was, as my noble friend Lord Benson said, a remarkable debate because 13 Peers spoke and they were unanimous. They were unanimous on a number of matters, one of which was that it would be a disaster if legal aid provided a second-rate and second-class service. That, I imagine, is common ground.
The other matter upon which they were unanimous was that there should be a fees advisory committee available to give the noble and learned Lord the Lord Chancellor advice. It was not a novelty. It was a matter which had been recommended by the Benson Commission, as I have called it. The noble Lord, Lord Benson, spoke in regard to it.
The noble and learned Lord, Lord Hailsham of Saint Marylebone, expressed not an enthusiasm for it but a willingness to consider it. Eighteen months ago there was a statutory obligation to pay fair remuneration. At the moment it does not exist, and I must continue to address the Committee on the basis that it is not there at the moment.
The other matter was that there was an overall advisory committee, which is the subject matter of
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another amendment, which is likely to be abolished: at least, power is being taken to abolish it.
The amendments which we have put up today have all been designed to ensure that the accepted attitude of the Government as indicated in their response that a legally assisted person should have the same opportunity for advice and representation as if he had paid will be maintained. We have by and large lost all our amendments. That therefore makes it today even more important than it was 18 months ago for this advisory committee to exist.
The reason for the unanimity of the 13 Peers who spoke was quite simply that they did not consider that the noble and learned Lord the Lord Chancellor would be able to resist Treasury pressure unaided by independent advice to which he could refer. It is that which has no doubt given rise to similar committees for doctors, dentists, nurses, for the top salaries of the armed forces, the judiciary and the Civil Service. Today—it is still today, although not by much—there is an opportunity to consider again in circumstances where it is much more necessary the creation of such an advisory committee. That is the purpose of the amendment. Accordingly, I beg to move.
Lord Benson: I support this amendment. On an earlier amendment I said that this question of the remuneration of the legal profession was an open, festering sore which had been outstanding for a great many years. But one of the reasons for that was that there was an absence of adequate mechanism either in the existing legislation or in the present Bill.
The task of fixing remuneration for legal work is extremely complex. It requires a great deal of financial and statistical information and it requires practical knowledge and experience. Even when all that is available in abundance there is the age-long difference of view between the giver of money and the receiver of money. There is almost certain to be disagreement, and that has been the long record for many years as regards remuneration for lawyers in the legal aid service.
The Royal Commission on Legal Services looked at the problem over 10 years ago and found that there was an absence of financial and statistical information. We found that the remuneration payable to the legal profession was wholly inadequate. After going into the matter at great length we came to the conclusion that the only solution to overcome the long-standing difficulty was the appointment of an advisory committee. We therefore made that suggestion.
The advantage of an advisory committee is that it is staffed by men of integrity. They are objective and independent. Having brought all the information together, they produce facts on which balanced decisions can be made. They do not fix the remuneration. However, they lay down independent criteria upon which fair judgments can be based and which both parties can rely on for the purpose of final negotiation.
In the long run remuneration payable to the legal profession must be fixed by the Government because

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they are responsible for the overall economy of the country. However, it has been the practice of the Government in the past to accept the advice of advisory committees unless there is a compelling reason to the contrary in the national interest. In that case they say so and explain the reasons. That system has been adopted in many other walks of life. It has been tested in the hot fires of experience.
My noble and learned friend Lord Ackner mentioned some cases. However, I shall mention others for completeness. Examples are the review boards for government contracts, for the remuneration of the armed services, doctors, dentists, nurses, pharmacists, the police, senior civil servants, the judiciary and, let it be noted, for remuneration payable to Members in another place and the allowances paid to your Lordships. The Royal Commission found that the method of using advisory committees was eminently suited to the legal profession. I think that that same thought has been echoed by my noble and learned friend Lord Ackner.
In the debate of 4th June 1986 the noble and learned Lord, Lord Hailsham, did not show a passionate anxiety to accept that solution. However, he was at least very friendly to it. He said this:
"I am not unfriendly to this suggestion. I have never been … If I could find the mechanism, whether by an advisory committee or otherwise, which would help to establish common ground as the basis for any decision which a statute required me to take and to improve and sweeten the atmosphere, I should greatly welcome that".—[Official Report, 0/86; col. 1012].
By common consent, the record has been bad. I suggest that the arguments for change are compelling. The solution is straightforward and simple. It has been well established by experience. I hope that the noble and learned Lord will show the same affection—perhaps even a warmer affection—than his predecessor. If he does not and if he is hostile to the proposal, it is certain that two things will happen. In the first place the Government will be making a rod for their own backs for many years to come. But worse than that, as regards the remuneration of lawyers in the legal aid service, that service will continue to be, as it has been in the past, unfairly and badly administered. That is a citation which no government can be proud to have upon their record sheet.
Lord Meston: I support this important amendment. It is important that those who think that this is just a lawyers' Bill talked about by lawyers should know that the amendment has the authoritative support of the noble Lord, Lord Benson. Those who consider that this is a matter of so-called special pleading by lawyers as distinct from other publicly paid bodies should note that it is only the lawyers who are a publicly paid profession without the kind of advisory committee proposed in the amendment.
Whether rightly or wrongly, the profession fears that the provisions of the Bill will immunise the Lord Chancellor against judicial review. With such a committee it will perhaps matter less whether the Lord Chancellor has such immunity.
Lord Griffiths: I support the amendment for the reasons advanced. It is of particular importance now that the Government have decided not to take advantage of the independent views of the taxing masters as they have in the past under the present arrangement.
The Lord Chancellor: I have considered the arguments available to me prior to this evening, and the arguments that I have heard this evening are substantially to the same effect.
I am aware of the recommendations made by the Royal Commission on Legal Services and the views expressed in the debate initiated by the noble Lord, Lord Benson, in 1986, in which my noble and learned friend Lord Hailsham took part as Lord Chancellor. I have looked at this for myself in the light of the machinery that may be provided for dealing with the matter.
I remain unpersuaded that there would he any real advantage in establishing an advisory committee on fees. The responsibility for setting rates of remuneration will fall properly on the Lord Chancellor. He is the Minister who must account to Parliament for the money voted for legal aid. It is therefore right and proper for the final decision on how that money should be spent to be for him, subject of course to the ultimate decision of Parliament on the rates and regulations laid before it. The regulations will be laid before both Houses of Parliament. It is therefore sensible that it should be for the Lord Chancellor to ensure, with the help of the two sides of the profession, that he has all the information necessary and relevant to enable him to take an informed and fair decision on what the rates should be.
I am certainly willing to discuss with the profession improvements in the mechanism for collecting information and for conducting discussion on the rates, but an advisory committee in my view would serve only to blur the true lines of responsibility. For my part, I can see no merit in that.
Some reference has been made to history. I do not want to go into that. I believe that one of the difficulties has been the absence of reasonably detailed statutory provision setting out the factors that must be considered. I have endeavoured to set out these in the statute. These factors, I believe, contributed to the previous discussions getting under way and coming to a conclusion. What is more, I believe that it will be much easier to thrash out differences in direct discussion between my officials and the representatives of the profession rather than through the intermediary of an advisory committee.
We have heard more than once that the idea is that the legally aided person should be in much the same situation as the private litigant. The private litigant when seeking to arrange fees with solicitors and counsel does so by direct negotiation. It does not require an advisory committee. The Lord Chancellor ought to have an interest in and knowledge of both branches of the legal profession which would be informed on the difficulties that face the legal profession.

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I agree that proper information is needed, however the process is carried out. That is why senior officials of my department now meet with senior members of the negotiating teams of the Law Society-and the Bar to agree on what data are relevant to the decision on rates and how it can best be obtained. I think that we are making progress in the collection of the basic data. That is what is required. It is much better for those concerned to work this out between them than to pass it all over to some third party to sort out.
Direct discussion and debate may be difficult. I acknowledge that sometimes there are difficulties, and sometimes there may be acrimony. But if they are conducted in a proper atmosphere of mutual respect, as I believe they are, and will continue to be, face to face discussions, in my view, lead to a far better mutual understanding of the perspectives and problems of those involved and give a far better prospect of a lasting, properly based settlement.
I therefore remain unpersuaded that it will be useful at this juncture in the relationship between the profession and the Government to introduce an advisory committee. It is always open for the Lord Chancellor of the day, if he thinks an advisory committee could help him, to appoint one. But this amendment will force one on him whether he wants it or not. At the present juncture in the relationships between the professions, I believe that there is hope of the kind of relationship which is necessary to have reasonable negotiation. In my view, that is the best method forward if it can be achieved.
11.45 p.m.
Lord Simon of Glaisdale: I trust that that is not the last word of my noble and learned friend the Lord Chancellor. It seemed to me that the speech of my noble friend Lord Benson was most cogent. It cannot be said that the various advisory committees that we already have—for example, on the salaries of the superior civil servants, of the judiciary and of the senior members of the armed services—in any way blur (to use the expression of my noble and learned friend) the responsibility of the Minister.
One cannot close one's eyes to the history of this matter and indeed to the suspicions which have been voiced consistently throughout these debates and which I have made clear I do not share. However, it seems to me that something along the lines proposed would be of real assistance to my noble and learned friend in his negotiations. I hope that he will keep an open mind on the matter.
Lord Ackner: I am bound to say that the response of the noble and learned Lord the Lord Chancellor is deeply disappointing. Members of the Committee have tolerated with great kindness the expression of my views on a number of occasions this evening. Let me end, not with my views but with a quotation from the debate and the views of the noble Lord, Lord Bancroft, a former Permanent Secretary to the Treasury, who regretted his inability to be here.
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In speaking about the present situation—which I believe will get worse—he said:
"To call it a system would strain both language and credulity. It places the responsible Minister and his officials in a totally impossible position, by interposing the say-so of the Treasury jack-in-office between them and the professions".
He added:
"I speak with due reverence for my former department, quoting the late Sir Thomas Farrer. It allows of no rational process of argument, let alone negotiation. It imposes a government incomes policy, the existence of which is then promptly denied".
He concluded the part I am quoting by saying:
"But much much worse, as my noble friend Lord Benson pointed out, it will end up with the provision of a second-class service to those of our citizens whose circumstances require them to depend on publicly funded legal services. That would be, in the phrase of my noble friend, a truly dreadful legacy".—[Official Report, 4/6/86; col. 991.]
He added that he spoke not as a lawyer, but as a consumer.
Like my noble and learned friend Lord Simon, I, too, hope that the Lord Chancellor has not closed his mind to this. In view of my inability to test the feeling of the Committee, having regard to the lateness of the hour, I reserve the right to reintroduce the matter if thought fit. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 33 [Advisory Committee]:
The Deputy Chairman of Committees (Lord Ampthill): Before calling Amendment No. 56, I should remind the Committee that, if it is agreed to, I cannot call Amendments Nos. 57, 57A or 57B.
Lord Ackner Lord Ackner moved Amendment No. 56:
Page 28, line 24, leave out subsections (4) and (5).
The noble and learned Lord said: The amendment is in error when it refers to subsection (4). It should read "subsections (5) and (6)". It is therefore a similar amendment to Amendments Nos. 57A and 57B in the names of my noble and learned friend Lord Elwyn-Jones and the noble Lord, Lord Mishcon. I beg to move.
Lord Elwyn-Jones: We are seven minutes from midnight. The Committee is practically empty. There is, mercifully, a Report stage. These are very important matters. We shall influence nobody tonight with our speeches and therefore, if I may, I advise my old friend that perhaps the better course now would be to reserve his gunpowder until the Report stage.
Lord Ackner: It has always been my custom to accept any advice given by the noble and learned Lord. Of course I shall keep dry such powder as exists at the moment and shall follow his course. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Elwyn-Jones Lord Elwyn-Jones had given notice of his intention to move Amendment No. 57:
Page 28, line 24, leave out from ("shall") to end of line 32 and insert ("refer the Board's annual report under section 4(3) to the committee for their consideration and advice and when the committee have considered it shall lay before each House of Parliament a copy of any comments or any other matter under this Act.")
The noble and learned Lord said: By parity of reasoning and reasonableness I do not move Amendment No. 57.
[Amendment No. 57 not moved.]
[Amendments Nos. 57A to 57C not moved.]
Lord Elwyn-Jones: But my goodness there will be abundant motion when these amendments come back again!
Clause 33 agreed to.
Clause 34 agreed to.
Lord Denham: I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.
House adjourned at five minutes before midnight.