COMMONS AMENDMENT (Hansard, 24 October 1990)

§ The Lord Chancellor
My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 75. This amendment refers to the legal aid provisions. I speak also to Amendments Nos. 111, 112, 233 and 259, all of which concern that subject.
Your Lordships will recall that the noble Lord, Lord Mishcon, moved Clause 31. I accepted it at the time on the basis that there were details that required to be looked into while I accepted the principle of the clause on which we appeared to be substantially agreed: that the Crown Court, by exercise of legal aid powers, could not be turned into a solicitor-only court.
As a result of a good deal of discussion, we have been able to reformulate Clause 31 in a way which I believe is acceptable. It is the subject matter of later amendments. I am in a position to give a very full explanation of all the amendments if that is required. However, I believe that the spirit of what is provided is in line with what the noble Lord, Lord Mishcon, proposed in his original Clause 31 and that we have now refined the detail of that provision.
Moved, That the House do agree with the Commons in their Amendment No. 75.—(The Lord Chancellor.)

§ Lord Mishcon
My Lords, I thank the noble and learned Lord who sits on the Woolsack for his very gracious reference to the amendment which I had the privilege of moving. As a result of the amendment which comes from the other place, it now appears as a very valuable principle in the Bill.
We also completely understood that the noble and learned Lord wished to reserve the right to ensure that there was not a waste of costs and that therefore the remuneration provisions would still be open in spite of this right to regulate the situation properly.
I believe that it would also be the view of the noble and learned Lord that it would be wrong to use those costs arrangements to discourage counsel being instructed in the higher courts unless and until it became the normal procedure for private litigants to be represented by a solicitor alone in particular 1412 proceedings. Will the noble and learned Lord give an indication that that is a view with which he agrees? It would be very helpful.

§ Lord Hutchinson of Lullington
My Lords, perhaps I too may ask for an assurance from the noble and learned Lord. I presume that the purpose of the amendment is to preserve the litigant's right to choose his representative. I believe that "representative" should be in the plural: to select his legal representatives. It is a very small point. However, if that is the purpose of the amendment, the noble and learned Lord has power under the Legal Aid Act to provide for the remuneration of legal services by regulation.
The assurance that I seek is that through that operation of the Legal Aid Act the Lord Chancellor is able to say that the fee should be only for one legal representative, whoever that may be. Will it be possible therefore that although the client may elect to have two legal representatives—a solicitor and a barrister—under the Legal Aid Act he may be allowed remuneration for only one lawyer, a solicitor, and therefore the two lawyers will have to share the fee?
There was much discussion about that when the Bill passed through this House. I believe that noble Lords on all sides are anxious to ensure that lawyers would not have to share a fee because of the operation of the Legal Aid Act.

§ The Lord Chancellor
My Lords, "representative" includes representatives. Therefore if there are two, obviously the right to choose, subject to the other provisions of the Legal Aid Act, applies. The provision prevents the power being exercised generally to restrict the representative to one representative with regard to the higher courts.
In regard to determining remuneration, the provision preserves the Lord Chancellor's right to take account of all the factors that are mentioned in the existing statutory provisions affecting that matter. The extent of the effect, if any, must depend on what happens under the new machinery.
Obviously, the more general a particular practice became the more likely it would be that there would be an effect on fees. However, the proviso merely preserves the Lord Chancellor's right to fix the fees for the representatives in question as distinct representatives in the light of all the factors that are presently in the Legal Aid Act provisions relating to fees. It does not entitle the Lord Chancellor to pay a fee to one person and oblige that person to divide the fee with another. That is not what the power would enable one to do. In considering the fee for a piece of work the provision would enable the Lord Chancellor to take account of the various ways in which that piece of work might be done.