Legal Aid Bill [H.L.]

HL Deb 19 January 1988 vol 492 cc156-201

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 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 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 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 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 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 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 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—

1. (a) the solicitor to advise or assist or act for him, and
2. (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 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.

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 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 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 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 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 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.] 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 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.

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 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 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 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 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.

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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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.

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.

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 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 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.