Lords Sitting of 12 June 1995

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

Airliners: Width of Aisles
Lord Gainford: My Lords, in asking the Question standing in my name on the Order Paper, I wish to declare an interest, in that I am president of the Air Safety Group.
The Question was as follows:
To ask Her Majesty's Government whether steps are being taken to implement the proposal by the Civil Aviation Authority that the minimum width of aisles in airliners should be increased from 20 inches (51 centimetres) to 30 inches (76 centimetres) to facilitate the escape of passengers from any airliner in a case of emergency.
Baroness Miller of Hendon: My Lords, following the accident at Manchester Airport in 1985, the Civil Aviation Authority commissioned a study into the effect of cabin configuration on aircraft evacuations. That study concluded, among other things, that the optimum width for passageways between floor to ceiling rigid structures, such as galleys, was 30 inches. The study made no recommendation relating to the minimum width of aisles between passenger seating. The CAA proposals based on those studies are now being considered by the Joint Aviation Authorities' Cabin Safety Group.
Lord Gainford: My Lords, I thank the Minister for that Answer and offer my commiserations on her unfortunate throat affliction. Further to the tragic accident at Manchester, can my noble friend say what lessons have been learnt and what remedies possibly put into effect in relation to passenger evacuation in an emergency?
Baroness Miller of Hendon: My Lords, I thank my noble friend for his sympathy regarding my voice. The main lesson learnt from the Manchester accident is that behaviour of passengers in a real emergency evacuation must be taken fully into account in the design of passenger cabins. As well as changes to the minimum width of passageways between rigid structures—to which I referred—the Civil Aviation Authority is considering changes to the design of over-wing emergency exits. The main possibility being considered is providing the current disposable hatch with a hinged mechanism.
Lord Dean of Beswick: My Lords, is the Minister aware that some proposals are in hand to try to fit additional seats in existing aircraft to increase the payload? Will she support opposition to that type of proposal? It is one of the worst features being considered in the carrying of people by aeroplane.
Baroness Miller of Hendon: My Lords, I apologise to the noble Lord but I did not hear everything he said. It appears that none of us did. There may be something wrong with the microphone. Will the noble Lord kindly repeat his question?
Lord Dean of Beswick: My Lords, there appears to be a tendency among certain airlines to try to fit more seats into existing aircraft against the interests of the travelling public. Wherever that is suggested, will the Government oppose the idea?
Baroness Miller of Hendon: My Lords, I am sure that the Government will oppose the idea. As your Lordships are aware, we consider safety to be paramount at all times.
Lord Boyd-Carpenter: My Lords, in view of the great experience of the Civil Aviation Authority in matters of air safety—probably the most effective experience anywhere in the world—will my noble friend indicate that the Government are paying serious attention to its recommendations?
Baroness Miller of Hendon: My Lords, indeed they are.
Lord Clinton-Davis: My Lords, like the noble Lord, Lord Gainford, the House has every sympathy with the noble Baroness in her plight. I have promised to be especially nice to her on this occasion. Can the Minister indicate when the Joint Aviation Authorities' considerations are likely to be complete and when it is likely, in consequence, that the Government will be able to announce to Parliament their consideration of its recommendations?
Baroness Miller of Hendon: My Lords, as your Lordships are aware, the Civil Aviation Authority has been pursuing the proposals through the Joint Aviation Authorities. Any amendment to Joint Aviation Requirement 25, such as the increased minimum width of passageways, would have to be progressed through the JAA and the EC Aviation Safety Committee, in consultation with airlines through the normal notice of proposed amendment procedure. We believe that the consultation period will start in a few months' time.
Baroness Gardner of Parkes: My Lords, can my noble friend say whether she saw the reports in the weekend newspapers of the difference in accident results arising from the different brace positions adopted by passengers in crashing aircraft and the difference in the types of fracture sustained? The position adopted can have a significant effect on one's chances of escape from the plane. Can my noble friend inform me also whether such matters are the responsibility of the CAA and whether it is possible for research to be carried out into claims that our brace position causes spinal injuries?
Baroness Miller of Hendon: My Lords, I am happy to tell my noble friend that it does come within the ambit of the Civil Aviation Authority, which is due to publish a document later this year. My noble friend may be pleased to know also that British aeroplanes seem to have a better record from the point of view of fractures sustained than some European aeroplanes.
Lord Molloy: My Lords, will consideration be given to seeking the views of the crews on aircraft who look after the passengers? If we ask that they tell us of their difficulties, I am sure that they will give us first-hand information of what can be done to improve the situation.
Baroness Miller of Hendon: My Lords, the consultation with the airlines should take in the views of cabin staff. I shall make that point known.

Nuclear Arms Control
2.43 p.m.
Lord Jenkins of Putney Lord Jenkins of Putney asked Her Majesty's Government:
Whether, as proposed by Germany, they will agree to a verifiable nuclear weapons register under the auspices of the United Nations; and if not, why not.
The Parliamentary Under-Secretary of State, Ministry of Defence (Lord Henley): My Lords, after discussions with our allies, we concluded that the proposal would not make the positive and practical contribution to nuclear arms control that the German Government had hoped.
Lord Jenkins of Putney: My Lords, is the noble Lord aware, and does he agree, that now that the Non-Proliferation Treaty has been concluded it is absolutely essential to make sure that it works? Is he further aware that Russia and the USA have declared their missile strength and that it is only Her Majesty's Government's refusal to do the same that is holding up the conclusion of an addition to the treaty which should provide the necessary transparency?
Lord Henley: My Lords, I do not agree with the noble Lord, but he would not be surprised at that at all. We welcome the unanimous decision to extend the Non-Proliferation Treaty indefinitely and we attach great importance to it. As regards declaring exactly what our strength is, our position is very different from that of the United States and the Russians. We have only a minimum nuclear deterrent and revealing the exact size of our forces would compromise their effectiveness, with consequences that are obvious even to the noble Lord.
Lord Williams of Elvel: My Lords, is the noble Lord aware that this is a serious proposition from the German Government? The German Government seek to have greater transparency in the declaration of nuclear weapons. While we have no doubt about the veracity of the Government's statement that each Trident boat will deploy no more than 96 warheads, is it not the case that Trident is capable of deploying many more than that? Therefore, in the spirit of transparency, would it not be sensible for the Government at least to enter into negotiations on this matter? As I understand it—the noble Lord will correct me if I am wrong—it is only Her Majesty's Government and France who are opposed to this.
Lord Henley: My Lords, I had better start by correcting the noble Lord. My understanding is that it is the United States, France and Her Majesty's Government and other members of NATO who have opposed this
1534
suggestion. My understanding is further that the German Government have dropped it and put forward further proposals which we understand have not been taken any further. As regards the capacity of Trident, I can only say, as I think the noble Lord knows full well, that we intend that Trident shall deploy a maximum of 96 warheads and on some occasions fewer.
Lord Jenkins of Putney: My Lords, is not the Government's position on this matter quite out of keeping with their enthusiastic support for the United Nations register of conventional weapons? Is it not even more necessary that everyone shall be aware of what the position is in relation to nuclear weapons or weapons of mass destruction? If that is not the case, how can one be sure that the Non-Proliferation Treaty is working?
Lord Henley: My Lords, the position of nuclear weapons is totally different from that of conventional weapons. I can take the noble Lord no further than what I said earlier. We have a minimum nuclear deterrent and we believe that revealing the exact size and nature of our forces would compromise their security.

Japan: EU Proposals
2.47 p.m.
Lord Bruce of Donington Lord Bruce of Donington asked Her Majesty's Government:
What was the outcome of the meeting of the Foreign Affairs Council of the European Union of 29th May, and in particular what was their response to the proposal of the Commission (COM (95) 73 final) of 19th March 1995, which provided for an extension of the Commission's export promotion in Japan and for European Union representations to the United Nations for Japan to become a member of the Security Council.
The Minister of State, Foreign and Commonwealth Office (Baroness Chalker of Wallasey): My Lords, the Council approved conclusions on the Commission's communication on Japan which broadly endorsed the strategy outlined by the Commission in it. In examining any Commission proposal for export promotion expenditure, the Council will expect the Commission to demonstrate the effectiveness and value for money of each programme. The Council did not endorse the Commission's support for Japanese membership of the Security Council because there is no consensus in the Council on the question of Security Council enlargement.
Lord Bruce of Donington: My Lords, in asking this Question perhaps I may offer my apologies to the House for an error that has appeared in the reference number of the Commission proposal referred to. The reference on the Order Paper should be COM (95) 73 final and not COM (95) 13 final. I apologise to the House.
I am most grateful to the noble Baroness for her reply. But is she not a little surprised that there should be no consensus in regard to the proposal of the Commission that the European Union should make representations to the United Nations in regard to the admission of Japan to the Security Council, as quite clearly there is no competence under the Treaty of Rome as amended under

1535
Title V? Is she not surprised that there should not have been unanimous rejection of the Commission proposal? Will she say who dissented from the Government's view that it lies outside Community competence? I should be most grateful if she would give some information on that point and also indicate what will be the Government's attitude at the next meeting of the Council, under the French presidency, at which, according to the Government's own memorandum, the proposal is likely to be made again.
Baroness Chalker of Wallasey: My Lords, it is our firm belief that the Community does not have a locus as regards questions relating to the structure of the UN Security Council. Nevertheless, we have made clear our national support for Japanese permanent membership of the Security Council and indeed that of Germany. But Security Council enlargement is a political question and, therefore, it is not for the Community. There is certainly no consensus among members of the European Union. As far as I could find out, Belgium was in favour, but nobody else. I have no doubt that that is exactly how it will be at e next meeting.
Lord Stoddart of Swindon: My Lords, can the noble Baroness explain why the Commission is involved in this matter at all? Surely, it has no locus in matters relating to foreign policy and defence. Ought not the Council of Ministers to tell the Commission that it should stop meddling in affairs which do not concern it?
Baroness Chalker of Wallasey: My Lords, I believe that that is exactly what the Foreign Affairs Council did on 29th May.
Lord Pearson of Rannoch: My Lords, when the Government ratified the Maastricht Treaty, did they envisage the Commission using Title V, or the common foreign and security policy, to undermine our export initiative in the Far East and elsewhere?
Baroness Chalker of Wallasey: My Lords, there is no question of the Commission undermining our export initiative in the Far East. As I told the House last week—my noble friend may remember this—the UK share of Japanese investment in the European Union is 41 per cent. and our visible exports last year were up 13 per cent. on 1993. But it does not do any harm to have a Commission executive training programme to which the United Kingdom sends more people than any other country in the European Union. The work that we do with the European Union enhances our bilateral activities and we get the benefit. That is just how it should be.
Baroness Williams of Crosby: My Lords, has not the Minister made the Government's position crystal clear? As regards the Government's position and Japanese membership of the UN Security Council, is there any support from any other major country in the world? For example, is there any support from the United States or the Commonwealth? Can she say something more about the current position?
Baroness Chalker of Wallasey: My Lords, I am unable to tell the noble Baroness anything definite about the Commonwealth, although I believe that a number of individual members of the Commonwealth think that it
1536
would be a good idea. I know that there are several views within the United States. We shall see which one finally wins the day.
Lord Campbell of Alloway: My Lords, is it not right that the activities of the Commission in this regard cannot possibly help or further the interests of the United Kingdom in any way at all?
Baroness Chalker of Wallasey: My Lords, that is exactly why, apart from there being no locus as regards the UN Security Council, we do not believe that it would be a good idea, and neither do a number of other members of the European Union.
Lord Bruce of Donington: My Lords, I am most anxious to support the noble Baroness in the stand which the Government are taking. Will she kindly confirm the statement in the Government's explanatory memorandum that they do not endorse the expansion of the Commission's export promotion activities as being a sentiment that they will carry with them to the next meeting of the Council under the French presidency, at which the matter will undoubtedly be raised again? Can we have an expression of her fierce determination that that will be resisted?
Baroness Chalker of Wallasey: My Lords, I believe that your Lordships are well aware of my fierce determination on such questions. What is important is that we support programmes if they are complementary to our bilateral programmes and demonstrate value for money. We shall not give competence to a body which should not have that competence. That remains the position for the next and all subsequent meetings.

Offshore Structures: Disposal
2.55 p.m.
Lord Rea Lord Rea asked Her Majesty's Government:
Whether it is their policy to support proposals to dispose of disused offshore oil platforms and other structures by sinking them in the open sea and if so, how they will ensure that they do not contain potentially hazardous substances.
Lord Inglewood: My Lords, the disposal of offshore oil and gas installations will be considered on a case-by-case basis, in line with our international commitments. If deep-sea disposal is an option, the presence of potentially hazardous substances and their implications for human health and the environment, together with the practicable steps proposed for their removal, would be an essential element of any assessment.
Lord Rea: My Lords, I thank the noble Lord for that Answer, the first part of which was predictable. I found the second part helpful and useful. Does the noble Lord not believe that dismantling onshore is a perfectly feasible option and no more costly, even for the Brent Spar, which is currently in the news, with the possible exception of a few concrete structures? Does he not recognise that, as well as avoiding the unpredictable effects of possible contaminants in the open sea, the option of dismantling ashore provides orders for a declining industry and thus

1537
saves unemployment benefit, and provides large amounts of material, such as structural steel, which is highly suitable for recycling?
Lord Inglewood: My Lords, the manner in which any particular structure might be dismantled obviously depends on its inherent characteristics. That in turn will determine what the cost might be. I understand that in the case of the Brent Spar, to which reference has been made, the cost of horizontal dismantling on shore would be of the order of £45 million, while deep water disposal would be of the order of £11 million.
Lord Campbell of Croy: My Lords, does my noble friend recall that the decommissioning of offshore structures was fully discussed in this House during the passage, as a Bill, of the Petroleum Act 1987, which did provide for each to be considered individually in accordance with the policy of the International Maritime Organisation? Has he noted that marine scientists suggest that the deep ocean is the most suitable place for disposal, in certain circumstances; for example, in a letter in The Times on 22nd May?
Lord Inglewood: I am very grateful to my noble friend for his two comments. As regards the first part of his comments relating to the Petroleum Act 1987, I myself was not a Member of your Lordships' House in those days, but the Government have a collective memory. He is absolutely right, in that these provisions determine our policy as regards these matters in accordance with our international obligations. As far as the disposal of structures is concerned, my noble friend is absolutely right. There are certain circumstances when the clear, scientific view appears to be that the most environmentally benign way of dealing with the problem is the way which my noble friend has described.
Lord Dean of Beswick: My Lords, can the Minister tell us under whose authority we can give permission for someone to sink an installation of this kind into the Atlantic, bearing in mind that no more than any other country do we own those waters? Is there some international agreement? Is the Minister aware that on the news this morning, when reference was made to the protestations of Greenpeace, a spokesman on behalf of the company which is to sink this oil installation said that the adverse effects would be negligible? Cannot that word be much misused? Is it negligible to the public in general? It is certainly negligible to the oil company, which will save a great deal of money. Is the Minister aware that everyone agreed with the view taken?
Lord Inglewood: My Lords, I did not see the matter to which the noble Lord, Lord Dean of Beswick, refers. From the statement it is not clear what everybody agrees with. The legal position as regards this kind of matter is complicated, but, once it has been unravelled, it is relatively straightforward. Under international law, the London Convention applies, together with the UN Convention on the Law of the Sea. As regards the North East Atlantic, the provisions of the London Convention are supplemented by the Oslo and Paris Conventions, which in turn are being subsumed in another convention which this country has ratified but not yet implemented in domestic law. I refer to the OSPAR Convention.
1538
As far as this particular proposal is concerned, three permits were required before the structure can be lawfully sunk in the manner proposed. First, approval is needed under an abandonment programme. This is granted under the Petroleum Act 1987, to which my noble friend Lord Campbell of Croy referred. Secondly, a licence is necessary under the Food and Environment Protection Act, which implements our obligations under international law. Finally, in this instance, a licence is needed under the Radioactive Substances Act 1993.
Baroness Nicol: My Lords, can the noble Lord explain something about the amount and type of hazardous substances that are present in such structures? In the event of disposal at sea, who is responsible for checking that the hazardous substances have been disposed of and who will monitor the situation thereafter?
Lord Inglewood: My Lords, we are talking about a generalised description of offshore installations. Clearly, what is required will be decided on case-by-case basis. The detail of what is proposed to be done in taking off all the bits of the structure that can be removed before any sinking might take place is described in the abandonment programme and then becomes a legal obligation. I understand that the Brent Spar installation contains about 100 tonnes of toxic sludge, of which about 90 per cent. is sand. The rest comprises heavy, stable oil residues somewhat similar to bitumen. I understand that within that bitumen is a very small proportion of heavy metals which are not significantly different from those found in a similar weight of plankton or marine sediment. In addition, something like 30 tonnes of scaling, of a very low level of radioactivity, derive from the oil which comes through the terminal. In terms of its power, that amounts to about the same as would emanate from a group of granite houses in Aberdeen and is many orders of magnitude within international standards. In addition, there is paint on the structure, as well as some sacrificial anodes which are zinc-corrosion preventers. Everything on the structure is being removed—down to the last lightbulb.
Lord Rea: My Lords, with regard to the cost of onshore dismantling of the Brent Spar, is the Minister aware of the detailed engineering feasibility report by Schmidt Engineering of Rotterdam which was given to Shell in 1992 and which stated that the installation could be dismantled at a cost of less than £10 million, which is less than one-quarter of the sum which has been quoted by Shell? Is not that another reason for putting on hold the decision to dump the Brent Spar in the Atlantic?
Lord Inglewood: My Lords, I am not aware of the report to which the noble Lord refers. However, the proposals which were considered in the abandonment programme were checked by Her Majesty's Government when forming a view on the merits of the prospective options of either dismantling onshore or using deep-water disposal. Another point that I believe to be relevant is that it is estimated that in terms of human safety, it is likely to be six times more dangerous to dismantle onshore than to have deep-sea disposal.
Lord Skelmersdale: My Lords, will my noble friend accept my congratulations on both the volume and quality of the information that he has given to the House this afternoon?
Lord Inglewood: My Lords, I am grateful to my noble friend, but of course it depends on the quality of the briefing.
Baroness Nicol: My Lords, in his otherwise very clear answer to me, the noble Lord did not mention monitoring. Will be now answer my question about who will be responsible for monitoring, since presumably we are talking about international waters?
Lord Inglewood: My Lords, I know that it is monitored, but I cannot recall whether by the British Government or the Oslo Commission. However, I assure the House that the company is liable for any results that may arise from the material that is disposed of in the sea.
Lord Clinton-Davis: My Lords, is the noble Lord aware that when he said, "This is a complicated issue but once unravelled is relatively straightforward", he should have used the adjective "confused"? Is it not a fact that decommissioning onshore is more expensive, but that that cost can be offset against tax, so that the taxpayer picks up 60 per cent. of the burden under relief that was afforded by Mr. John Major when he was either Chancellor or Chief Secretary to the Treasury? Has not this decision rather more to do with cost than with the environment?
Lord Inglewood: My Lords, the answer to the noble Lord's first question is "yes", and to the second, it is "no". This matter was dealt with in accordance with the provisions laid down by Parliament and our international obligations.
Lord Brougham and Vaux: My Lords, does not my noble friend agree that, when dismantling one of these objects, the cost of human life cannot be offset against tax?
Lord Inglewood: My Lords, of course.

House of Lords' Offices: Select Committee Report
3.5 p.m.
The Chairman of Committees (Lord Boston of Faversham): My Lords, I beg to move that the third report from the Select Committee on House of Lords Offices be agreed to.
Moved, That the third report from the Select Committee he agreed to (HL Paper 65).—(The Chairman of Committees.)
Following is the report referred to:
1. BLACK ROD
The Queen has approved the appointment of General Sir Edward Jones as Gentleman Usher of the Black Rod and Serjeant-at-Arms with effect from 9 May 1995, in succession to Admiral Sir Richard Thomas.
The Committee wishes to record its gratitude to Sir Richard Thomas on the occasion of his retirement for the assistance which it received from him during the three and a half years he served as Agent of the Administration and Works Sub-Committee.
2. DISABILITY DISCRIMINATION BILL
The Committee has agreed that the provisions of the Disability Discrimination Bill now going through Parliament should apply to the House of Lords. This is in line with the Committee's policy that the House should move from voluntary compliance to statutory application in the case of the Health and Safety at Work etc. Act 1974; and the Committee's recent acceptance of the removal of Crown exemption from the Palace of Westminster in respect of planning and health and safety legislation.
3. CAR PARKING
The Committee has considered the present rules for car parking in the precincts of the House of Lords and the parking problems which might be caused while building works are in progress over the next year. Black Rod will be inviting applications for additional parking spaces which have been acquired in the Abingdon Street car park to compensate for the temporary loss of spaces in the House precincts. He will be reviewing the use of the Abingdon Street car park and the terms of the contract with National Car Parks. The Committee wishes to emphasise that only those Lords who are attending business in the House are entitled to use the Lords parking facilities, and that pass holders for Abingdon Street should not park elsewhere in the House of Lords.
4. RESTORATION OF THE BAR IN THE LORDS CHAMBER
The brass gates at the Bar of the Lords Chamber, which are very worn, will be replaced by new brass gates to match existing railings around the Throne.
5. FEES ON JUDICIAL PROCEEDINGS
The Committee has agreed to a revised scale of judicial fees with effect from 1st November 1995, as follows—

£

Petitions for leave

Presentation

500

Entering Appearance

100

Appeals—Mandatory Fees

Presentation

1,000

Entering Appearance

200

Setting Down

3,000

Appeals—Occasional Fees

1st Extension of Time

200

2nd Extension of Time

300

3rd and Subsequent Extensions

500

Agreed Interlocutory Petitions

200

Opposed Interlocutory Petitions

500

Waiver of Security

100

6. STAFF OF THE HOUSE
The Committee has agreed that the temporary post of screen corrector in Hansard should be made permanent, bringing the complement to six.
The Committee was informed of the appointment of Mrs. Sylvia Jay as a temporary Senior Clerk in the Committee Office.
Lord Monkswell: My Lords, I thank the Chairman of Committees for introducing the report, to which I am sure that we shall all agree without dissent. However, perhaps I may ask a question about paragraph 2, which refers to facilities for disabled people. I am sure that we are all glad that the House is to bring its facilities up to the right standard for enabling disabled access. However, with regard to toilet provisions, what timetable is envisaged for the full provision of toilets accessible to disabled people? Furthermore, during that programme, will facilities be made available to ensure that female Members of this House, female staff and female visitors also have adequate toilet provision?
The Chairman of Committees: My Lords, there is already in train some provision for improved toilet facilities for disabled people within the precincts of your Lordships' part of the Palace of Westminster. It is envisaged that that work will be completed during the coming summer Recess. On the noble Lord's other point, I shall write to him if I am able to give him any information on the timetable beyond that which I have already indicated.
On Question, Motion agreed to.

Proceeds of Crime Bill
3.7 p.m.
Lord Chesham: My Lords, I beg to move that the Bill be now read a third time.
Moved, That the Bill be now read a third time.—(Lord Chesham.)
Lord McIntosh of Haringey: My Lords, I rise briefly, not to delay the progress of the Bill which, as the noble Lord, Lord Chesham, well knows, has our full support, but to raise a matter which could not conveniently be raised as an amendment but which remains outstanding. I apologise to the noble Lord for not having given him notice of the matter but it came to my attention only in the past hour or so.
I refer to an undertaking that was given at Report stage of the Bill in another place on 31st March. The undertaking was given by Mr. David Maclean, the Minister of State at the Home Office, in response to an amendment proposed by Mr. John Greenway about the extension of the provisions of the Bill to the Copyright, Design and Patents Act 1988, the Trade Descriptions Act 1968 and the Trade Marks Act 1994. The Minister expressed sympathy with the amendment and said that an interdepartmental exercise was under way. He stated that,
"considerable progress is being made, and I should be in a position to make known the outcome of our deliberations shortly. I certainly expect to be able to do so before the Bill completes its parliamentary passage".
The Minister told Mr. Greenway:
"I assure him that the Government will consider very sympathetically the addition of these offences to schedule 4 by means of an order".
He added:
"I should be able to inform the House before the Bill has completed its parliamentary stages".—[Official Report, Commons, 31/3/95; col. 1306.]
If the Bill is now passed, that is the end of its parliamentary consideration. I wonder whether the Minister in this place has anything to say on the matter. I apologise to her for not having mentioned it previously, but I know that the Home Office has been aware of the issue over the past few days.
The Minister of State, Home Office (Baroness Blatch): My Lords, if the House will permit me to respond to that point, the noble Lord is right that the Minister of State in another place explained that the Government were considering adding certain counterfeiting and copyright infringement offences to Schedule 4 to the Criminal Justice Act 1988 with the aim of bringing them within the reach of the confiscation
1542
legislation but that they had not completed their deliberations when the subject was debated on Third Reading in another place.
As the Minister explained in another place, the addition of offences to Schedule 4 of the 1988 Act is not entirely straightforward, and, as a result, it was necessary to set in train an interdepartmental consultation process before the Government could agree to the addition of the offences in question.
I know that promises were made. The noble Lord is absolutely right to press us on that point. Progress has of course been made since the matter was discussed in another place, but the Bill's rapid progress through this House has not permitted all the issues involved to be resolved before now.
The Government have decided that the question of the funding of the provisions must be resolved before the statutory instrument can be made. On that point, I expect a decision to be reached by a very early date, and I propose to make known the outcome to the House shortly. I trust the noble Lord is satisfied that the work is in hand and that our commitment will be met, but not within the timescale that we had envisaged.
Lord McIntosh of Haringey: My Lords, I thank the Minister.
On Question, Bill read a third time.
Lord Chesham: My Lords, I beg to move, That the Bill do now pass.
Moved, That the Bill do now pass.—(Lord Chesham.)
On Question, Bill passed.

Statute Law (Repeals) Bill [H.L.]
3.10 p.m.
The Lord Chancellor (Lord Mackay of Clashfern): My Lords, I understand that no amendments have been set down to this Bill or to the other three consolidation Bills standing in my name on the Order Paper and that no noble Lord has indicated a wish to move a manuscript amendment or speak in Committee on any of them. Therefore, unless any noble Lord objects, I shall beg to move in each case that the order for recommitment be discharged. I beg to move.
Moved, That the order of recommitment be discharged.—(The Lord Chancellor.)
On Question, Motion agreed to.

Merchant Shipping Bill [H.L.]
The Lord Chancellor: My Lords, I understand that no amendments have been set down to this Bill and that no noble Lord has indicated a wish to move a manuscript amendment or to speak in Committee. Therefore, unless any noble Lord objects, I beg to move that the order of recommitment be discharged.
Moved, That the order of recommitment he discharged.—(The Lord Chancellor.)
On Question, Motion agreed to.

Shipping and Trading Interests (Protection) Bill [H.L.]
The Lord Chancellor: My Lords, I understand that no amendments have been set down to this Bill and that no noble Lord has indicated a wish to move a manuscript amendment or to speak in Committee. Therefore, unless any noble Lord objects, I beg to move that the order of recommitment be discharged.
Moved, That the order of recommitment be discharged.—(The Lord Chancellor.)
On Question, Motion agreed to.

Goods Vehicles (Licensing of Operators) Bill [H.L.]
The Lord Chancellor: My Lords, I understand that no amendments have been set down to this Bill and that no noble Lord has indicated a wish to move a manuscript amendment or to speak in Committee. Therefore, unless any noble Lord objects, I beg to move that the order of recommitment be discharged.
Moved, That the order of recommitment be discharged.—(The Lord Chancellor.)
On Question, Motion agreed to.

Conditional Fee Agreements Order 1995
3.13 p.m.
The Lord Chancellor The Lord Chancellor rose to move, That the draft order laid before the House on 20th April be approved [17th Report from the Joint Committee].
The noble and learned Lord said: My Lords, I beg to move, that the draft Conditional Fee Agreements Order 1995 which was laid before this House on 20th April be approved. At the same time, I shall speak to the second Motion standing in my name relating to the Conditional Fee Agreements Regulations 1995 and hope to move that Motion formally later.
Section 58 of the Courts and Legal Services Act 1990 empowers me to prescribe the types of proceedings in which conditional fee agreements should be available, the maximum percentage uplift which solicitors can charge on their fees when they take a case on that basis, and any other requirements of an agreement. It is those matters which are set out in the draft order and regulations which are before your Lordships. These drafts have now been approved in their current form in another place without a Division.
The consultation exercise which has given rise to the order and regulations has been a lengthy and extensive one. I am required by Section 58 to consult the Lord Chief Justice, the Master of the Rolls, the President of the Family Division and the Vice-Chancellor, and also the Law Society and General Council of the Bar. In addition to the statutory consultees, I approached consumer bodies and other organisations with an interest, including my Advisory Committee on Legal Education and Conduct. Drafts of the order and regulations were circulated to numerous members of the profession and to members of the public.
In developing the conditional fee scheme as it now stands, I have given a great deal of consideration to the advice which I have received from all sources. My purpose has always been to develop a scheme which will increase access to the courts and consumer choice. That cannot be achieved by stifling the scheme with over regulation. Clients and solicitors must be given the freedom to reach an agreement which reflects their mutual interests according to individual circumstances. Of course that must take place within a framework which provides protection for the client, who is naturally in the weaker position at the negotiation stage because he or she is unlikely to have much knowledge of the law and procedure. It is that balance which I have sought to achieve within the order and regulations.
I propose that conditional fee agreements should be allowable in personal injury cases, insolvency actions and cases before the European Commission of Human Rights and the European Court of Human Rights. A limited scheme of that kind should enable us to observe how conditional fees work in practice, with a view to extending the scheme to cover other cases if it appears sensible to do so. I also propose that the maximum permitted percentage uplift which a lawyer may charge on his fees should be set at 100 per cent. That figure is exactly what has been allowed since August 1992 under the Scottish speculative fee scheme, and that percentage was decided by the Scottish courts not the Government. It is this proposal which has perhaps provided most discussion and is at the root of many of the misgivings which have been expressed. I therefore wish to take this opportunity to explain the reasoning which led me to the conclusion that 100 per cent. was the right figure at which to set the maximum uplift.
First of all, I must again emphasise that the whole purpose of conditional fees is to extend access to justice. The fact that lawyers can charge an uplift of up to 100 per cent, will encourage them to accept cases with a 50:50 chance of success, which, if the uplift were lower, it would not be appropriate for them to take. With a low uplift of, say, 10 per cent.—which was the first proposal—the range of cases which would be taken would be very much more restricted.
In approaching this matter one has to assume that the ordinary fees that lawyers charge are based on the view that they will be paid those fees for the work done with a reasonable level of profit as part of the practice of their profession. Therefore, their fees do not include any element for the risk of litigation so far as concerns the outcome for the client. That is the right way of doing it.
It is obvious that if one is to take a case which involves a degree of risk, the correct balance is to allow the proper percentage of risk to be taken into account in fixing the fee. For example, if one takes a case where the chance of success if 50:50, the correct uplift for that—unless one is going to charge other clients for that case—is 100 per cent. Of course, if one has a case in which the risk is much less then it is appropriate that the uplift should also be much less. Under Section 58 I am entitled to fix a maximum uplift that may be charged. That is what I have done and that is why, in response to the consultation, I took the view that that was the right figure.
Those who oppose the 100 per cent. uplift must recognise that as an inevitable consequence the range of risk which can appropriately be taken is thereby reduced. I can see no good reason why those clients who have a viable case, but for whom the prospects of success are of the order of 50:50, should not be able to take advantage of the scheme if they wish to do so.
It follows that if the lawyer is successful he or she will receive an uplift in fees of 100 per cent. That is seen as conferring a great benefit on the lawyer but the other side is that there is a 50:50 chance that for all the work done the lawyer will receive nothing.
I would add that I do not anticipate the figure of 100 per cent. becoming the normal uplift for all conditional fee cases. There has been a suggestion in some papers that that will happen, but I do not accept that. I must determine the maximum percentage uplift. Nor can I see why it should be assumed that that will happen in practice. My intention has always been to provide sufficient scope for the conditional fee scheme actually to work. We will not be serving the interests of the consumers of legal services by stipulating a low maximum uplift and effectively limiting the kind of actions which solicitors would be prepared to take on a conditional fee basis to those of low risk.
In relation to the concern which has been expressed about the 100 per cent. uplift, there have been calls for the regulations to impose a statutory cap to ensure that only a certain percentage of any damages recovered can be taken by way of the uplift. I do not believe that I have the power to do that under Section 58 of the Courts and Legal Services Act 1990. The power given to me is to prescribe the maximum percentage increase on the lawyer's normal fee. However, it seems to me that there would be other difficulties with imposing such a cap even if I had the power. How would a cap, imposed by regultaion, operate in cases in which there is a structured settlement whereby the plaintiff may receive a lump sum and then a regular payment during his or her lifetime? A statutory cap may also have the same effect, as I have mentioned with regard to lower uplift, in discouraging lawyers from accepting cases with a high risk. The relationship between cost and the amount in claim varies a great deal, in practice, with the amount that is claimed.
It may well be that a cap such as the Law Society recommends in its model agreement will prove a useful tool. It certainly helps to focus attention on this aspect of the matter in discussions between the lawyer and the client. However, it is important for the client to be aware of the implications of the uplift and it is for this reason that I have included within the regulations a requirement for the agreement to state whether or not there is to be a cap on the amount of damages to be taken by way of the uplift. This will ensure that the matter is addressed in all cases if the agreement is to be a conditional fee agreement obtaining the protection of the law and therefore enforceability.
I ought to emphasise another aspect of the matter. An additional safeguard against excessive costs will be provided by taxation, which will be available to clients under a conditional fee agreement in respect of all the fees in question. The proposed taxation amendments have
1546
been circulated for consultation among taxing experts and I expect them to come into force within the next few months. That is on the assumption that your Lordships approve the draft order.
It may also be helpful if I direct your Lordships' attention to the other requirements in the regulations which will provide protection to the client. The regulations require a conditional fee agreement to state, first, to which proceedings or parts of them it relates. It is possible to have a conditional fee agreement relating only to part of what would otherwise be a composite proceeding.
Secondly, it should state the circumstances in which the legal representative's fees and expenses, or part of them, are payable. That is to define what is to be success for the purpose of the agreement. It is most important that client and solicitor should have their minds focused on that matter, which may vary according to the circumstances of the case.
Thirdly, it should state what payment is due upon partial failure of the specified circumstances, irrespective of the specified circumstances occurring and upon termination of the agreement for any reason. In other words, the agreement must state what happens if for any reason it is to be terminated or what happens if the result or outcome is only a partial not a full success within the meaning that the parties have agreed upon for success.
Fourthly, it should state the actual amount payable in the event of success or, if that is not specified, the method to be used to calculate it. However, the client and solicitor must direct their attention at the outset to the question of how fees are to be calculated if the amount of the fee in question is not specified.
Fifthly, it should state whether the amount payable is to be limited by reference to the amount of any damages which may be recovered on behalf of the client. In other words, the lawyer and the client are to discuss and agree the question of whether there is to be a cap on the amount of the fee which can be taken under the agreement by reference to the amount of damages in question. Of course, that can vary and it is a matter for the parties to agree upon.
In addition, the agreement must state that before it was entered into the legal representative drew the client's attention to the availability of legal aid and taxation and the liability of the client for the costs of his legal representative and for the costs of any other party to the proceedings. These requirements, supported by the guidance and recommended forms of agreement, which I know the Law Society is to distribute to solicitors, will, I believe, provide an appropriate degree of protection to the client.
I believe that the conditional fee scheme will provide greater access to justice and will increase choice for the consumer; and I thank the Consumers' Association for its view that,
"conditional fees offer a means of support for those who would otherwise be deterred from pursuing their legal rights by the fear of legal costs".

1547
The scheme that I propose combines consumer protection with sufficient flexibility to encourage take-up of the scheme and the adjustment of protection to the particular circumstances of the client and the proceedings in question.
Lord Ackner: My Lords, before the noble and learned Lord sits down, perhaps he can help me with regard to the suggestion that he has no power to cap the amount which can be taken out of the damages. Has the noble and learned Lord had the opportunity to reconsider an amendment that he moved on Report on 22nd February 1990 to the Courts and Legal Services Bill? The amendment proposed that the conditional fee agreement,
"complies with such requirements (if any) as may be prescribed by the Lord Chancellor".
Perhaps I may remind your Lordships that the matter arose in this way. In discussing the amendment the noble and learned Lord said:
"Your Lordships will see that the second of the two amendments provides for the prescribing of requirements rather than information. While the former includes the latter, it also seemed wise on reflection to include the possibility of prescribing, for example, how conditional fee agreements should define success in the client's action".
The noble Lord, Lord Mishcon, made this short intervention:
"None of us quite knows how it is going to work"—
that is, conditional fees—
"I should have thought that when one has something which is highly controversial, when one needs to see how it works out and how it ought to be regulated—indeed, how it may be stopped—the requirement is for flexibility, to give this power to make regulations from time to time to condition the fee, to limit rights or to extend them in some way",—[Official Report, 22/2/90; cols. 490–1.]
In moving the amendment, the noble and learned Lord said that the fact that the matter is somewhat controversial is a very good reason for giving the Lord Chancellor power to make additional requirements if that seems to be necessary. In saying that there is no power, has the noble and learned Lord overlooked the fact that it appears that that power was taken specifically by the amendment moved on Report?
The Lord Chancellor: My Lords, your Lordships have heard what was said about that matter. It will be seen that there is no reference whatever to any suggestion of a modification of the idea that control should be by reference only to the percentage uplift.
The amendment to which my noble and learned friend Lord Ackner has referred sought to make it clear that I would have power to make requirements not only in relation to the substance of the agreement but also as to information which would be laid before the client preparatory to that agreement. I was of the view at the time, and I remain so, that it was wise to make it clear that those powers included the power to require information to be laid before the client as well as to require the agreement to take a particular form. I am absolutely satisfied that I never intended to add any power to prescribe a cap for the very good reason that I sought to devise a scheme which would answer the criticism made by my noble and learned friend Lord Hailsham of Saint Marylebone that the contingency fee system, which we were not accepting, had the disadvantage that it applied only to plaintiffs. I was devising a scheme to apply equally to plaintiffs and
1548
defendants. Therefore, it was not in my mind at any stage that a power of the kind to which my noble and learned friend has drawn attention should be added. I certainly did not have that in mind when I was moving the amendment to which he referred.
Moved, That the draft order laid before the House on 20th April be approved [17th Report from the Joint Committed]—(The Lord Chancellor.)
3.33 p.m.
Lord Ackner Lord Ackner rose to move, as an amendment to the above Motion, to leave out from ("That") to end and insert, ("this House calls on Her Majesty's Government to withdraw the draft Conditional Fee Agreements Order 1995 and re-lay it in a form which gives effect to the following recommendation of the Lord Chancellor's Advisory Committee on Legal Education and Conduct that either:
(1) the maximum permitted percentage by which fees may be increased in respect of each description of proceedings specified in article 2 of the order is 20 per cent.; or
(2) the maximum amount payable expressed in percentage terms in relation to the amount of any sums which may be recovered shall not exceed a specified figure.").
The noble and learned Lord said: My Lords, in moving the amending Motion standing in my name on the Order Paper, I should like to stress at the outset four quite distinct points. First, my Motion recognises fully that, as Parliament nearly five years ago approved the principle of conditional fee agreements, full effect must be given to that decision so as to enable such agreements to work effectively and fairly. As is apparent from the terms of my amendment, it is in no way a wrecking amendment; quite the contrary.
Secondly, the purpose of my Motion is to protect the client from, in the words of the Lord Chancellor's Advisory Committee on Legal Education and Conduct, "the glaring injustices" which could arise if the proposals of my noble and learned friend the Lord Chancellor were accepted.
The uplift of 20 per cent. which I propose, instead of 100 per cent., is not a figure which I have conjured out of the air. In fact, it was proposed originally by the noble and learned Lord the Lord Chancellor and represents double his initial suggestion.
Fourthly, my amendment, which would reduce the uplift from 100 per cent. to 20 per cent., or alternatively cap—that is, prescribe the maximum amount expressed in percentage terms; I would suggest 25 per cent.—the amount which the successful lawyer may take out of any damages or other sums which may be recovered from the litigation, represents the recommendations consistently, vigorously and forcibly put forward by the Lord Chancellor's Advisory Committee which was presided over by my noble and learned friend Lord Steyn.
In case it should be suggested that those recommendations are in any way impractical or out of touch, I should point out that among the 17 members of that committee are a recent past president of the Law Society, the head of the litigation department of one of the City of London's most respected firms of solicitors and a recent past

1549
president of the Institute of Chartered Accountants. The majority of the committee, who are laymen, were appointed by the Lord Chancellor to ensure, so we were informed, that:
"the views and interests of the users of legal services are properly and fully represented".
Perhaps I may now explain why we should be especially concerned to protect the client and why we should proceed with particular caution in this new field. Conditional fees are a species of contingency fees and were so described in the Government's 1989 Green Paper. In undertaking a case on the basis of no-win, no-pay, a lawyer is clearly involved in speculative litigation. By allowing the lawyer to have a personal financial interest or stake in the outcome of a case, it has hitherto been accepted generally that that might affect his objectivity, distort the advice that he gives and, further, might lead to improper practices, thereby undermining the integrity of the administration of justice. Of course, the greater the stake, the greater the danger. Those were the essential reasons why, since the Statute of Westminster in 1275, contingency fees were considered to be contrary to public policy and therefore unenforceable; hence Section 78 of the Courts and Legal Services Act 1990 which for the first time made an agreement to enter into that species of speculative legislation enforceable.
Of course, it is water under the bridge that the section was enacted in the teeth of opposition from seven Law Lords, the Master of the Rolls, a former Lord Chancellor, my noble and learned friend Lord Hailsham, a former Attorney-General, the noble and learned Lord, Lord Rawlinson of Ewell—who I am delighted to see in his place—and the Law Commission. But the history that I have recounted and the opposition to which I have just referred surely make it incontrovertible that in this new field one should proceed gradually and with caution. Indeed, the approaching five-year period since the enactment of that section without, as yet, the approval of the necessary order and regulations is clear confirmation of the validity of that proposition. Why else has there been that delay?
I turn now to what has been happening during the past five years since Section 58 was enacted. The prospectus under which your Lordships were invited to accept the clause which became Section 58 was fundamentally different from that which provides the basis of the current invitation made by my noble and learned friend the Lord Chancellor to approve his draft order and regulations. In 1990 the proposal was to limit the uplift to a "small" or "modest" percentage of the solicitor's proper costs. Indeed, in Committee the noble and learned the Lord Chancellor gave an example using a 5 per cent. uplift. In 1991, a year later, he issued a consultative paper in which it was proposed to set the maximum uplift at 10 per cent. The Lord Chancellor's Advisory Committee agreed that that maximum uplift appeared to be about right.
However, two years on the noble and learned Lord the Lord Chancellor proposed to double the figure to 20 per cent. But apparently that did not satisfy those solicitors who might be interested in this new field of work. In August 1993, the Lord Chancellor announced—I stress this—without further consultation with his own advisory
1550
committee, that he intended to set the maximum permitted uplift at 100 per cent; that is, 10 times the initial figure which he had proposed in his consultative paper.
The Lord Chancellor's Advisory Committee was so concerned that the practical implications of the decision should be understood by my noble and learned friend the Lord Chancellor that it issued a press notice in November 1993 stating in terms that the Committee was not persuaded that,
"the startling implications of the 100 per cent. permitted uplift have been fully appreciated".
The committee pointed out that in personal injury litigation, which will form the bulk of the litigation affected by the new proposals, the plaintiffs were often vulnerable people of limited means, the typical victim being relatively unsophisticated in both his knowledge of legal matters and his capacity to bargain over legal fees. Moreover, the rate of success in those claims is exceptionally high, most of the litigation being straightforward, with little risk of a lawyer not being paid his fee. In fact, the noble Lord, Lord Hacking, gave two examples when we debated the matter last November of victims in two railway disasters whom his firm were proceeding to act for without any fees to be paid until the matter was concluded.
If your Lordships need further confirmation, it is to be found in the remarkably low premium—less than £100—payable by a plaintiff for a policy of insurance recently negotiated by the Law Society against his liability to pay the defendant's costs and his own disbursements in the event that his action failed. As the Lord Chancellor's Advisory Committee pointed out in its press notice, it is common for a plaintiffs costs to reach an amount equal to half or even more of the damages recovered. Accordingly, if the 100 per cent. permitted uplift comes into force, the successful plaintiff may have to pay his solicitors an additional sum equal to the whole of the damages awarded to him.
Of course, if there is a finding of contributory negligence, those damages are reduced accordingly and the risk of losing everything to his advising lawyer is that much greater. Indeed, in correspondence passing between my noble and learned friend the Lord Chancellor and my noble and learned friend Lord Simon of Glaisdale (of which I was sent copies), the Lord Chancellor accepted that there may well be cases where the damages could be swallowed up even with an uplift lower than a 100 per cent. He gave examples of such a situation. It was for that reason that in its press notice the Lord Chancellor's Advisory Committee pointed out that,
"one way of eliminating some of the most glaring injustices would be to restrict the uplift to a limited part of the damages";
in other words, to cap the proportion of damages which the successful plaintiff has to sacrifice to his lawyer. Indeed, I have already referred to the 25 per cent., as has my noble and learned friend the Lord Chancellor, being the figure which the Law Society will put in a model agreement.
Following the debate that I initiated on 1st November last year, my noble and learned friend the Lord Chancellor revised the drafts of the Conditional Fee Agreements Order and supporting regulations and sent the final drafts to my noble and learned friend Lord Steyn on 13th March.
My noble and learned friend the Lord Chancellor was not prepared to restrict the uplift to a limited part of the damages. All he was, and is, prepared to do is to provide in Regulation 3 that a conditional fee agreement should state whether or not the amount payable to the lawyer is to be limited with reference to the amount of damages recovered.
While, of course, that will ensure that the question must be addressed in every case, it imposes no cap on the proportion of the damages which can be swallowed up by costs. I respectfully submit that the provision does not provide adequate protection for the client. That was the view expressed by my noble and learned friend Lord Steyn in a letter dated 24th March this year to the Lord Chancellor (of which I was sent a copy), following a meeting to discuss his current proposals. In his letter my noble and learned friend Lord Steyn said:
"The chief difficulty remains your proposal to permit a maximum uplift of 100 per cent. of the legal adviser's fee. The Committee is still concerned that such a high percentage will create far too great a risk that any damages recovered will be swallowed up in legal fees … I have to say that none of the arguments against this view appears convincing to the Committee. As you know, the Committee much preferred your original proposal of a maximum of 10 per cent. increase. However, subject to safeguards, the committee was prepared to accept that 20 per cent. maximum would be reasonable. But, for the reasons repeated above, I must leave you in no doubt that the Committee remain wholly opposed to the current proposal to permit a maximum increase of 100 per cent. The primary position of the Committee is that the maximum uplift should be no more than 20 per cent".
He continued:
"On the assumption that you might wish, despite the Committee's view, to permit an increase of 100 per cent., the Committee took the view, as set out in my letter to you of 26th May of last year, that an essential safeguard would be for the Regulation to set a limit on the proportion of damages payable towards legal fees. On this matter, too, I have to say that the Committee is not convinced by the argument that it has heard against the implementation of that safeguard".
Your Lordships may remember that in the debate on 1st November my noble and learned friend the Lord Chancellor took the point that he is taking today; namely, that he has no power to make the provision to cap. I respectfully submitted that I and a number of my judicial colleagues with whom I informally discussed the matter did not accept that view. I drew attention inter alia to his wide regulation-making power in Section 120(3) of the Act which provides:
"Any such regulations … may contain such incidental, supplemental … provisions or savings as the person making the regulations… considers expedient".
In his letter of 24th March of this year, my noble and learned friend Lord Steyn informed the Lord Chancellor that the committee did not agree that he had no power to impose such a limit or that to do so would be to attempt to modify his power to set a maximum increase in fees. My noble and learned friend gave his reasons in detail. They were as follows:
"The committee finds that in the Act no express or implied restriction on that power such as to prevent its exercise in order to limit the proportion of damages payable to the legal advisers. The Committee recalls your substitution of the words 'requirements' for 'information' in an earlier draft of the provision at the Committee stage in the House of Lords. You then explained that 'requirements' included, and went further than 'information' so as to include, for example, the power to prescribe how conditional fee agreements should define success in the action. The Committee does not agree that a limit on the proportion of damages would modify your power to set
1552
a maximum uplift. Permission to increase a fee is logically distinct from any limit on the proportion of a particular source from which that increase may be satisfied. Moreover, the argument has no reasonable limit; it could presumably be said to apply even to your own example of a prescription of the way success in the action is to be defined. Such a definition would undoubtedly affect the amount of fees the legal adviser could recover".
As I pointed out in the debate on 1st November, if the Lord Chancellor does not have the requisite power then he should obtain it. After all, nearly five years have gone by since the Act was passed and a little extra delay in ensuring that the very real concern expressed by his own advisory committee is met would be time well spent.
If the Lord Chancellor does not have the power, as the noble Lord, Lord Hooson, said in the debate of 1st November,
"for heaven's sake, he should seek it".
He added:
"I do not believe that there would be any impediment either in this House or the other place in obtaining the power".—[Official Report, 1/11/94; col. 802.]
Perhaps I may end by again emphasising that I am in no way seeking to prevent effect being given to Section 58 of the Act; on the contrary, both I and the Lord Chancellor's own Advisory Committee are concerned to ensure that the client receives proper protection from—again I quote from that committee—
"the glaring injustices which could arise",
as a result of the implementation of the draft order and regulations. Surely this is an area in which one should proceed with great caution. Why not start with a 20 per cent. uplift and see how it works? It can always be increased. If you start with a 100 per cent. uplift, the prospects of it ever being reduced are exceedingly remote.
These are the essential reasons for tabling my amendment. My noble and learned friend Lord Donaldson of Lymington, who is currently abroad, has written to me supporting my Motion. I beg to move.
3.50 p.m.
Lord Irvine of Lairg: My Lords, the noble and learned Lord, Lord Ackner, has made his arguments so fully that I can be brief. I oppose the proposal of the noble and learned Lord the Lord Chancellor that the draft order and regulations be approved and support the amendments of the noble and learned Lord, Lord Ackner. I do so not on the basis of opposition to conditional fees in principle, but in the interests of protecting consumers of legal services. I start therefore from an acceptance that Parliament has sanctioned conditional fee agreements which comply with such requirements as the noble and learned Lord the Lord Chancellor may prescribe for them. The issue therefore is what the requirements should be and what minimum floor of protection should be prescribed as mandatory terms of conditional fee agreements.
Conditional fee agreements may, in an age in which the eligibility limits for legal aid have been cut most harshly provide an alternative means of access to justice. But that must not be achieved at the expense of what might reasonably be thought to be the exploitation of litigants for the benefit of lawyers. I would add that the noble and learned Lord should use his powers under the 1990 Act to

1553
legislate for consumer protection in a way that is both clear and certain and not in a way that is dependent for its effectiveness on the good will of the legal profession.
First, "no win, no fee" does not mean exactly what it seems to say. Even under a "no win, no fee" agreement the client who does not win still has to pay the costs of the successful party and the expenses, the disbursements, which his solicitor has incurred; for example, barristers' fees. Secondly, I accept that conditional fees are not contingency fees in the full or traditional sense. A contingency fee arrangement means that the lawyers are entitled to a percentage "slice of the action"—that is, of the damages recovered—whereas under a conditional fee agreement the solicitor will be entitled if the case is won—admittedly, that is a contingency—to an agreed uplift on the amount of the fees for the work he has done above the level they would otherwise have been. So the basic question seems to be this: how much uplift is necessary, in the category of cases to which these arrangements will primarily apply, to compensate solicitors for the cases they lose where they will recover no fees for themselves?
The principle surely should be that the maximum permitted uplift in cases that win should not be disproportionate to the risk of losing. The Law Society has said that the current proposals,
"will enable conditional fees to be widely used in personal injury cases whilst also providing appropriate measures to ensure proper consumer protection".
I agree with the first part, but not the second. Personal injury cases, as the noble and learned Lord has rightly observed, are a low risk area of litigation from the standpoint of plaintiffs. In the vast majority the plaintiff succeeds in whole or part. In fact I understand that around 95 per cent. settle, to the advantage of plaintiffs, without any court order. In my view the first thoughts of the noble and learned Lord on the Woolsack on this subject were correct. A 10 per cent. or at most 20 per cent. uplift was sufficient incentive. He should have adhered to that.
I endorse also a point made by the noble and learned Lord, Lord Ackner. The fact that insurance cover against the risk of losing can be purchased through the Law Society's accident line scheme for less than £100, demonstrates that in the class of case, personal injuries, to which conditional fee agreements will primarily apply in practice, the risk of loss is very low. I therefore think that a 20 per cent. uplift for succeeding is proportionate to the low risk of losing.
It is argued—we have heard the noble and learned Lord on the Woolsack argue in this way—that a maximum success fee of 100 per cent. is necessary for lawyers to undertake on a "no win, no fee" basis cases with only a 50:50 chance of success. I could at least see that argument if 100 per cent. success fees were confined to 50:50 cases. But they are not. In any event I think that solicitors practising in the personal injuries field would be compensated for their unremunerated time in cases they lose by their 20 per cent. uplifts in the vast majority of cases where they win. I would predict that unless a 20 per cent. maximum is fixed we will be returning in future years to figures that will show that uplifts close on 100 per cent. will have been applied in a disturbingly high proportion of cases.
1554
The next question is whether the noble and learned Lord, if he is insistent on retaining a maximum of 100 per cent., should be imposing a statutory cap on the uplift of, say, 20 to 25 per cent. of the damages recovered. I regard such a cap as an essential protection for the consumer of legal services. Particularly in cases where the damages are low and the fees high, it would be possible to win but to have to pay out literally all the damages recovered in legal costs plus success fees. That would be litigation which would in practice have been conducted—this is how the public would see it—for the benefit of the lawyers alone. The Law Society itself sees the merit of such a cap because it will be recommending to its members a cap of 25 per cent. of the damages recovered. The noble and learned Lord should himself be imposing a 25 per cent. cap as the only sure means of protecting the consumer.
The noble and learned Lord maintains that he lacks the power to impose such a cap. I am not entirely clear what his position is. Is the noble and learned Lord saying that he would impose such a cap if he had the power to do so, or is he simply maintaining that he lacks the power to impose a cap which he would not wish to impose in any event?
The Lord Chancellor: My Lords, I am sorry if I did not make my position clear. My position is this. I wish to devise a scheme which is applicable both to plaintiffs and defendants and therefore I do not intend to impose a cap of this kind as part of a regulatory mechanism. I thought I had made that clear; I am sorry if I have not done so.
Lord Irvine of Lairg: My Lords, I am much obliged. I, however, for my part, do not agree that Section 58 of the Act does no more than permit the noble and learned Lord the Lord Chancellor to prescribe the level of uplift and so does not permit, or impliedly precludes, a cap being imposed on the amount of the uplift. There is no bar, in my view, on his prescribing such a cap. The issue is whether he should do so.
I believe that both prongs of the argument of the noble and learned Lord, Lord Ackner, are well founded. The issue is the protection of the consumer. Why not, I ask, in the interests of the consumer, introduce the scheme on one or other of the bases proposed by the noble and learned Lord, Lord Ackner? My preference is for a 20 per cent. uplift and then to monitor the use of conditional fee agreements in practice to see whether they turn out to be widely used in practice and have succeeded in their objective, with the consumer subject to no more than a 20 per cent. uplift.
I predict that to begin with a maximum possible uplift of 100 per cent. will be seen in future years to have sold the consumer short. Even at this late stage I urge the noble and learned Lord on the Woolsack to revert to his earlier judgment of what the maximum uplift should be.
Lord Hacking: My Lords, before the noble Lord sits down I shall be grateful if he will assist me and the House by explaining how he proposes that capping should work when the assistance is provided to the defendant rather than to the plaintiff.
Lord Irvine of Lairg: My Lords, I confess that I was addressing the situation of a plaintiff who gains a recovery and not of a defendant. However, I have made plain that my strong preference is for a 20 per cent. uplift, full stop.
4 p.m.
Lord Rawlinson of Ewell: My Lords, I felt so strongly about many provisions in the 1990 Act that, for the first time in 40 years in one House or the other, I was driven to vote against the party of which I have been a member all my life. I oppose this particular order because I cannot bring myself to accept any scheme which seeks to identify the reward of the lawyer with the result of the litigation. Parliament may have passed the 1990 Act, but that does not reconcile me to the principle. Any step which changes the English concept of the role of the lawyer is a very serious matter and one greatly to be deplored.
Many jokes are made about lawyers, but throughout the history of this country and the history of the common law the conduct of lawyers, standing for justice and principle, is something of which the country can and should be proud. Anything which alters that great tradition of the lawyer's role and his relationship with the client and the court is very serious. This is another step on the road to Americanising the English practice of the law, which is being accomplished step by step. It was commenced by a former government under a former Prime Minister who was bewitched by all things American, and whose voice is being heard again in the land engaged in the modern tradition of retired Conservative Prime Ministers of rubbishing the policies of the governments of their successors.
When I talk about the Americanising of the English law, I make it plain that I am a member of the American Bar Association. For nearly a quarter of a century I have been a Fellow of the American College of Trial Lawyers. I have great ties of family and blood with America. However, I do not admire the manner in which the Americans practise law, not only in the criminal law.
Noble Lords may have some experience of the practice of American criminal law, having seen it on their television sets recently. In the great debates five years ago about whether we should amalgamate the two professions it was said that there would be three lawyers—a QC, a junior and a solicitor—defending people. In the O.J. Simpson case I have seen six different advocates presenting the prosecution, under a prosecutor who has no command of the laws of evidence and is wholly unable to examine without asking leading questions. The conduct of the defence lawyers, the television coverage, the absence of any principles of contempt of court and the lack of authority of the judge, which is the most important aspect of all, present an idea of how the United States system can end up. That is a criminal case, but it illustrates the different attitude to the practice of law, which is founded on identification between the client and the advocate, the intimate association between the two, the planning done together, the interviewing of witnesses, the coaching of witnesses, the scheming, the PR activities and, above all, the reward identified with the result in civil cases.
1556
Compare that with the English system. The English advocate is not even allowed to interview witnesses, let alone coach or rehearse them. In the proper tradition (of course it is abused) of the English Bar and the English solicitor, counsel and solicitor are officers of justice with a duty to the court as well as to the client. The identification of the lawyer with the success of the suit by giving him a contingency interest at once alters the concept of independence and of integrity, and in this order "conditional" is the same as "contingency".
It will be said, "This is just a minor alteration. Why are you making such a great fuss? This is pursuant to what Parliament has approved. The effect will be to cut the legal aid bill", as I have no doubt the Treasury masters have told my noble and learned friend the Lord Chancellor he must. It is said that it concerns only certain cases and the civil field. Who believes that it will stop there?
If one is going to provide legal assistance and representation to people of little or no means there has always been a choice. One is the road of legal aid—publicly paid representation. It is an expensive road, but one which this country decided upon. It is a rather noble road. There has always been the other road—giving the lawyers a cut of the cake to persuade them to take on cases. That is the difference. An order of this kind, which is the first of many which will come before your Lordships' House, alters the whole concept of the practice of the law. We shall not be able to stop it now. It will progress step by step. It will be said that it saves the great legal aid bill.
There is the comical attitude of editors who say that the proposal is opposed by lawyers and that it is a very good scheme. Those editors are briefed by the legal equivalent of the "teenage scribblers" of the memorable phrase of my noble friend Lord Lawson. However, they are blind to what will ultimately happen. Inevitably there will come a time when there is the new tort of privacy and conditional fees will be available in cases of libel. Then there will be some squealing by the press as opposed to the Bar.
I shall not go into the detail, which has been dealt with by my noble and learned friend Lord Ackner. What does the uplift fee really mean? Of course it is linked to the amount of damages. First my noble and learned friend the Lord Chancellor decided on 10 per cent. Why did he do that? He had the advice and backing of his department. However, he has been driven to a 20 per cent. uplift, and then to a 100 per cent. uplift which, as The Times put it, is high enough to tempt lawyers to take on cases. What a noble prospect!
All that this order does is gingerly, gradually and piecemeal destroy the English concept of the practice of law and replace it with the system from across the Atlantic.
This is a matter of principle. It may be said that the principle has already been decided by Parliament, but in my 40 years in Parliament I have seen it change its mind sometimes. For that reason I oppose this order and shall support the amendment. That is the least that can be done to prevent a step which I feel takes the English law along a very dirty, ugly road.
4.10 p.m.
Lord Nicholls of Birkenhead: My Lords, I apprehend that the only issue before your Lordships' House concerns the terms of the draft order and the draft regulations. There are those, including Members of your Lordships' House, who have been and still are much troubled about the whole concept of conditional fees. They are concerned that whatever the care with which it is watched, this new plant—it is not indigenous to England and Wales and has not previously been grown here—will inevitably become out of control rather like rhododendrons on the Welsh hillsides. That issue is not before your Lordships, the principle having been approved by Parliament.
As I understand it, the chief concern of those who are critical of the draft order is the possibility of abuse by lawyers. They are worried that high street solicitors acting for plaintiffs in personal injury cases will charge excessive uplifts in fees not justified by the comparatively modest risks involved in acting on a conditional fee basis in such work. They are concerned that there is an unequal bargaining position between lawyer and client.
Some risk of abuse must be inherent in any new scheme such as this. However, I suggest that one should not underestimate the extent today of real competition for work among high street solicitors. House sellers and buyers shop around. That has had a marked effect on the fees which solicitors can charge for conveyancing in the domestic field; likewise, charges for making wills. I can see no good reason why high street solicitors should not find themselves competing for this new type of work. That will serve a useful purpose in curbing any tendency to charge excessive uplifts in fees and take excessive profit margins.
When solicitors were first given rights of audience in the higher courts, there were those who feared that the established legal order would be shaken to its very foundations—likewise, some 20 years ago, when solicitors' scale fees for conveyancing were abolished, and, much later, when licensed conveyancers were introduced. But what has happened? The Royal Courts of Justice building stands as sturdily as ever. The Land Registry has not been struck by lightning.
There are real risks involved in the scheme, but I suggest that they are worth taking in pursuit of increasing access to justice. In the nature of things it is not a scheme which can be introduced experimentally on a piecemeal basis for a few months in one or two selected locations like a new form of credit card. As I understand it—I shall be corrected if I am wrong—the noble and learned Lord the Lord Chancellor has indicated, or will indicate, that he intends to monitor the progress of the scheme. On that footing I am content. I suggest that the scheme is worth trying, and that we should get on with it without further delay.
4.15 p.m.
Lord Mishcon: My Lords, perhaps I may copy the beginning of the extremely lucid speech of the noble and learned Lord, Lord Ackner, by stating the points I wish to make and the reasons why I make them. The points raised by the noble and learned Lord numbered three. I apologise for enlarging upon that number; mine number four.
1558
First, it is my duty, out of sheer courtesy, to say to the noble and learned Lord the Lord Chancellor that so far as I know and have heard the legal profession much appreciates the fact that he indulged in extensive consultation before coming forward with the order. I wish to acknowledge that factor, especially in view of other remarks I shall make.
The second matter I wish to acknowledge is the disturbing gap in our system of adjudication of the law and of rights as between subjects. The poor man is covered by legal aid; the wealthy man has his bank balance and bank manager. All of us who stand in between find that our legal system is so expensive in practice that we cannot enter the gates of the courts let alone the doorways of the Savoy Hotel.
The conclusion must be that there is something wrong with our system. The answer to that must be one of the main considerations of the noble and learned Lord, Lord Woolf, at this moment. The answer might lie in more conciliation than arbitration and alternative processes. We ought to be looking closely at the way in which these heavy bills arise. I belong to a profession which is responsible for such heavy bills; I admit it at once. But that does not necessarily mean that we have to embark on a course which is contrary to a tradition which goes back over the centuries, as has been said.
Thirdly, the noble and learned Lord, Lord Nicholls, was absolutely right. I refer to a phrase used, I believe, by the noble and learned Lord, Lord Ackner. The question of whether we go ahead with the scheme is water under the bridge with regard to the principle.
However, my fourth point arises out of something the noble and learned Lord the Lord Chancellor said, at which I trembled a little. If I remember correctly, and I took a note, he used the words "with a view to extending". I find those words very ominous. They are my excuse for going a little into the rights and wrongs and results of such a scheme. I plead with the noble and learned Lord. Let this scheme not be extended beyond personal injuries and liquidation matters without a great deal of thought and much experience. It is strange—is it not?—that an issue that was contrary to public policy yesterday seems to be at least partially in accordance with public policy today. There is every reason for considering whether that transformation has taken place.
I am a lawyer. I act for a client who asks my advice as to whether he has a case. He makes clear that he has not much money. When trying to assess his chances of success in the opinion that I give, I hope that I would be honest without having at the back of my mind that in a moment I am to discuss with him an agreement in which the question of the chances of success will regulate the surplus fee I intend to charge and discuss with him. I ask this rhetorical question: can one get a better example of conflict of interest at the commencement of my interviewing the client?
What happens in the middle of a case? I have forecast to that client that I believe he has a bad case and, therefore, please, my uplift is 100 per cent. If we embark on further litigation, apart from personal injuries, I reach the stage of discovery. I find that the other side has disclosed a document which sends the chances of my winning the case rocketing. That often happens. I am unfortunate

1559
enough on discovery to find documents that make my case worse, but that is a personal experience. Some of my professional colleagues are more fortunate. What is my duty then? Is it to summon the client and say, "No, the uplift we had in our original agreement was X per cent., but I can now tell you that the chances are greater. I ought therefore to alter it"? However, subsequently I receive a devastating blow. I interview a witness who, I have been told, is lucid and clear in favour of my client. I take a statement from him and find that he is a lamentable witness. I wonder whether I dare call him. Do I then summon my client back again and say, "Well, I told you we were in a far better position after discovery. I must now tell you, having interviewed this witness whom you told me about, that I am afraid that our chances have plunged. In those circumstances, shall we take out this agreement and come to another percentage?"
This proposal is supposed to be for the protection of the client. However, it is just not practical to say, "If you believe that I have unjustly charged you too high a percentage because of your chances in the case you have the right to go before the taxing master. He will adjudicate whether I have wrongly forecast your chances of success." I have a veneration for taxing masters, but they know nothing about judging the chances of success in litigation. I doubt whether some of the taxing masters, bless them, have ever conducted a piece of litigation in all their lives.
Lord Hacking: Hear, hear!
Lord Mishcon: It is pleasing to have the support of the noble Lord, Lord Hacking. Apart from the point about the taxing masters, ought I not to advise the client, "You had better go to another solicitor to argue the case before the taxing master as to whether I have charged correctly because I have an interest in it and there would be a conflict. You must go elsewhere". Will the solicitor who now takes on the case of arguing that I far too pessimistically and wrongly forecast the case be subject to a success rule? If the other solicitor manages to bargain me down and the percentage is lower, does that solicitor collect?
Unfortunately, it is something that one witnesses year after year. The legislation is turning the professions in our country into something different; it is eroding the dignity of the professions and their traditions. Only last Friday The Times carried a headline in regard to the medical profession:
"What have we done to our nice old doctors? By treating them like plumbers we are making them behave like tradesmen".
I do not want that to happen to my profession. I do not want to be turned into a bookie.
4.25 p.m.
Lord Taylor of Gosforth: My Lords, I wish to associate myself with all that has been said by the noble and learned Lord, Lord Ackner, and those who agree with him. I am sorry that it causes me to disagree with my noble and learned friend on the Woolsack, with whom I would much rather agree, as I usually do. However, as a matter of principle I am wholly in sympathy with the words that fell from the noble and learned Lord, Lord Rawlinson. It seems to me that the contingency fee is an alien creature
1560
in our justice system. I would much rather that it had never made its appearance. I believe that it will lead to speculative litigation and that, as has been graphically illustrated by an experienced solicitor a few minutes ago, there is a danger of a conflict of interest and possibly a lowering of standards.
It has been said more than once, and I accept it, that the issue of principle is now to be regarded as water under the bridge. The most important point at issue is that we should ensure that the alien creature is not allowed to run amok. The object of having the alien creature is, so we are told, to improve access to justice. We must ensure that it grants impoverished litigants better access to justice, not simply lawyers better access to fees.
I do not understand how the noble and learned Lord the Lord Chancellor reached the figure of 100 per cent. He began with 10 per cent. and when he was put under pressure he doubled it to 20 per cent. We have all had experience in the law of trying to settle cases and I never went from 10 per cent., to 20 per cent., to 100 per cent. in all the cases I ever sought to negotiate. How the noble and learned Lord reached 100 per cent. is quite mysterious. He told us that 100 per cent. has been the situation in Scotland. There are two points about Scotland. First, in so far as there have been conditional fee agreements there, they have been used minimally and have made hardly any impact on access to justice. If the noble and learned Lord knows that that is the level in Scotland, why did he start with l0 per cent. if the was going to end with 100 per cent.?
In my personal experience, the noble and learned Lord the Lord Chancellor has always shown a canny caution when it comes to money matters. It would be most unfair and improper for anyone to suggest that his caution with regard to money is confined to occasions when money comes from the Treasury, but not to occasions when it is to come from impecunious litigants. That would be unfair. However, it will undoubtedly be from the impecunious litigant that the 100 per cent. would come. I consider that it is outrageous to reach that percentage in what must be the nursery slopes of such a scheme. As has been said, one can increase by starting low. If we start with 20 per cent. or even 30 per cent. or 40 per cent., it would always be possible to increase the amount if solicitors found that it was simply not economic for them to take on that form of work. But we cannot go down from 100 per cent. My guess is that it would be easy for the solicitor in the stronger position with regard to his client to negotiate higher percentages—perhaps not 100 per cent. but higher than would be justified by the risks that have to be taken.
I wish to adopt all the arguments that were so well presented by the noble and learned Lord, Lord Ackner, and the noble Lord, Lord Irving of Lairg. I suggest that the Lord Chancellor should go back and reconsider this matter. He made a virtue of having taken the opinion of the Heads of Division and of having consulted his own advisory committee. But despite the views of both those bodies, he has gone ahead with this figure although they all advised against it. They did so not because of any desire to stifle the scheme, but simply because they are truly anxious about whether the percentage that he has in mind can really be regarded as reasonable. I ask the House to support this amendment not to defeat the whole

1561
exercise, but to ask the Lord Chancellor to go back and reconsider what would be the appropriate level at which to pitch the uplift.
4.30 p.m.
Lord Peyton of Yeovil: My Lords, if I had come here today absolutely convinced that the proposals put forward by the noble and learned Lord the Lord Chancellor were correct, I am bound to say that over the past hour or so I should have been severely shaken. I cannot conceive of the possibility, having heard the arguments advanced, of my views not being very much shifted. As things are, I did not enter the Chamber in that state of mind. I am opposed to this proposal. The mere fact that Parliament has approved it does not entirely stifle me in the wish I have to express my objection to it. We are still free to do that.
I apologise for intruding for the first time in this debate an element, if not of total unlearning, at least of very small learning. I am perhaps prompted to do so by the fact that I learned such law as I have in a prison camp in Germany, where notions of the common law did not prevail. I had the good fortune to sit at the feet of a very remarkable academic lawyer, the late Professor Hamson. I know of no one who had a greater regard for the structure of the common law than he. He taught it brilliantly. Perhaps I may say to my noble and learned friend on the Woolsack that he accompanied the instruction with a very clear rider that it was more than possible that those eminent and very learned men who sat on the Woolsack could get things very badly wrong. Today, I find myself rather daringly echoing that view.
The noble Lord, Lord Mishcon, is exceedingly persuasive. But I do not think I have ever heard him express himself quite so strongly as he did this afternoon when, in concluding his speech, he said:
"I do not want to be turned into a bookie".
Those words will stay with me for a very long time.
There is very little that I can contribute by way of experience to what has been said this afternoon. Therefore, I have just two questions. First, I am puzzled by the lack of reference to the position of the defendant. What will he know of the position of the plaintiff? I am not clear about that. It seems to me that he may well be faced with a man of straw who is engaged in a speculative case with the aid of a very bright lawyer, and the defendant will know nothing of that and will have the immense handicap of not knowing that, if he loses, he will face a very heavy bill for his own costs. My second question is a very simple one, but I am not quite sure that there is a very easy answer to it. What is the purpose of an advisory committee? The noble and learned Lord has one. He has the benefit of the advice of men of immense experience and learning, so far as I know. I have a copy here of the letter (which has been widely circulated) that my noble and learned friend wrote on this subject to the chairman of the committee on 19th April. He states:
"I understand the Committee's views on the percentage uplift, but I do not agree with them".
That is the first rejection. He continues:
"I remain persuaded that it is right to fix the maximum figure for the percentage uplift at 100%".
1562
That is the second rejection. He goes on:
"Similarly, I remain of the view that I do not have the power to impose a limit on the proportion of damages that can be taken by the uplift".
The advisory committee takes a very flat-footed view to the contrary.
On taxation, my noble and learned friend states:
"I agree that conditional fees will be a new and unusual challenge to the taxation system, but I believe that taxation does have a role to play".
That is the third rejection. He adds:
"I do not believe that there is any need to hold up the Order and Regulations … on this account".
There again, the advisory committee had suggested some delay, echoing the point made previously by the noble Lord, Lord Mishcon; namely, none of us knows what the result of all this will be, and therefore let us proceed with caution.
There were other points on which the noble and learned Lord was unable to go along with the advice that he had received. So far as the professional rules are concerned, my noble and learned friend did not agree with the committee as to whether the regulation was ultra vires. He simply states the fact that he does not agree with the analysis and is satisfied that the regulation is intra vires. My noble and learned friend goes on to say that he agrees that monitoring is important, but then appears to have very little enthusiasm for it, being prepared even at this very uncertain stage to rely entirely on sampling.
I am not sure that I know how to express myself. There is a very grave danger that with the system we have—despite what has been said by a very impressive col lection of speakers—it is quite possible that when the bells go the opinions expressed will not be reflected in the Division Lobby. I therefore make this plea, very much as a layman, to my noble and learned friend. I do hope that, bearing in mind what he has heard this afternoon, he will be broadminded and have the courage to have second thoughts.
4.40 p.m.
Lord Lowry: My Lords, like some noble Lords I must begin by declaring a bias. I have great misgivings about the whole idea of conditional fees and the rather skeleton scheme which at present we can see for bringing them into effect. But I recognise the need to try to fill the gap between the very poor who, so far at least, are able to resort to legal aid and the seriously rich who may be supposed not to require it. However, I shall put aside my prejudices for today at least and try to concentrate on the matter in hand. I have two anxieties: first, the 100 per cent. uplift which, in ordinary language, might be called the power to charge double what one's services are worth in the event of winning the case; and, secondly, the marked difference which seems to exist between my noble and learned friend on the Woolsack and his advisory committee.
The purpose of the uplift must be to induce lawyers to undertake these cases and reward them suitably overall, if excessively on the individual occasion. I dislike the idea of any uplift. A client should not have to pay and the lawyer should not receive more than the lawyer's services are worth. There again, for the sake of argument, I shall leave that point on one side.

1563
The proposal started tentatively at 5 per cent. It went to 10 per cent. on paper; then to 20 per cent.; and it is now 100 per cent. I shall try not to repeat what my noble and learned friend the Lord Chief Justice said. Like him, I have tried to settle a few cases but not on the basis described. If we were at an auction and the bidding went from 5 to 10, to 20 and then to 100, that would indeed be a brisk rise in the bidding. The committee was happy with 10 per cent., yet accepted 20 per cent.; but it still strongly disagrees with 100 per cent. I hope I am not being impertinent when I say that if 100 per cent. is the logical and proper figure, why should such a grave miscalculation have crept in at the beginning of these calculations?
The reason for the uplift is the risk of failure. Let us consider the facts for a moment. Most of the cases, as far as I can see, will be plaintiffs cases in personal injury litigation. To those with experience of that kind of litigation it ranks among the most easily predictable in a somewhat unpredictable field. That is especially true if the case is to be tried by a judge without a jury, or so it is thought. Predictability accounts for a high proportion of settlements in this field because both the plaintiffs and the defendant's advisers have a pretty good idea of the value of the case and there are a lot of settlements in this field.
I speak of personal injury cases because that field of litigation offers the best prospect of recovering money out of the damages. As we have already heard—I paraphrase what the noble and learned Lord the Lord Chancellor said on a previous occasion—there is a duty in Scotland and will be a duty here to satisfy oneself that a good case exists before it is taken on. That is a serious duty owed to the client, to the court system and to the opposite party if the lawyer is a conscientious person, as most of them are. One does not want to be starting a bad case for one's client and it is quite wrong to start a bad case against another party—the less acceptable name for that is blackmail.
We have heard that there is a modest premium to insure against having to pay the defendant's costs. That is another indication of the likely outcome of many of these cases. The statistics on which those premiums are based—no doubt that is the way in which the premiums are arrived at—support, not surprisingly, what has been said. What is the real effect of that? It is that the money is taken out of the damages of successful plaintiffs to pay for the mistakes and misfortunes of solicitors who take on bad cases. In other words, legal aid above the statutory legal aid limit is provided by the legal profession which is in turn to be reimbursed by successful litigants out of the damages which they ought to have received. That may be tolerable if the tax on success is 10 per cent. of the costs or even 20 per cent., but not, I venture to say, if it is 100 per cent.
The 100 per cent. uplift assumes a likely failure rate of 50 per cent. It is not a true comparison to say that a 50:50 case deserves to be heard and therefore the 100 per cent. uplift is needed. First, there is something like taking the good with the bad in this field; secondly, one should have regard to the overall likelihood of a practice being successfully conducted and remember that when dealing with personal injury cases the solicitor should
1564
not—and certainly does not have to—look at cases which are less than 50:50. The majority of cases he will see will have a very much better chance than 50:50. It is hard, if this is a question of a variable scale with a maximum of 100 per cent., for the solicitor to say—however honestly he is behaving and however experienced he is—just what the right tariff is.
The noble Lord, Lord Mishcon, has allowed me to shorten my speech, your Lordships will be pleased to learn, with his good examples of those chances. I shall not go into further detail in that regard therefore except to speculate whether, when he is at odds with his client in front of the taxing master and sends him to another solicitor, that other solicitor will feel that he had better have a 100 per cent. uplift.
We are told, quite correctly, that what is being said is that 100 per cent. will be the maximum and not the norm. But I share the misgivings voiced by the noble Baroness, Lady Mallalieu—who I am pleased to see in her place and from whom I hope we shall hear—and mentioned also by the noble Lord, Lord Irving of Lairg, that there is a great danger that the maximum will become the normal.
What is the machinery of control? We are told that there is no machinery of control except that the 100 per cent. is the maximum. We are also told that at present there is no means of introducing control—something I cannot quite understand. I have read what purport to be the relevant provisions. But I am not going to quibble. My experience of legislation and rule making is that one ought to decide what one wants first and then draft the primary and secondary legislation which will achieve one's object.
If there is no control, imagine the unequal position of the client, worried, ignorant and in a strange environment, and the solicitor who says, "There is no other way to success but to authorise me to take on your case and charge 100 per cent. uplift if you win". That would not arise if we were dealing with taxed fees or if we were dealing with a modest 10 per cent. or even 20 per cent. standard uplift. There would be no bargaining and no question of oppression or deception. As the chances in the case changed from hour to hour, there would be no recrimination, no feeling that this case is now a sitter or that that case could never be won. This is a very serious matter to consider—the question of the maximum figure with everything else left in the air.
Another possibility is to relate the fees to the award of damages. That is a most unattractive alternative but at least it would be clear. We must remember that costs against the defendant are awarded here in the ordinary way whereas that is not true in America, which has been responsible for the entirely different approach of the speculative lawyer in that jurisdiction. They are not necessarily alternatives. What is wrong with combining two limits: a limit on the uplift and a limit on the proportion of the damages which can be resorted to in order to satisfy fees.
So far I have tried to address the practicalities, but I do go a little further. I submit that, in any circumstances, for a professional person to take from the client a fee amounting to twice what those services rendered are worth is not only unacceptable but quite scandalous. I

1565
have long been aware that hyperbole in an advocate does not assist his case. But I can think of no adjective less emphatic to describe my view of a step like that.
I can be very brief about my second point. There are a great number of loose ends here in what is by any standard of judgment a new and controversial scheme. The advisory committee, comprising a majority of lay people and headed by a most experienced and distinguished chairman, has given clear and strong advice of which, I respectfully suggest, very great account should be taken.
4.53 p.m.
Lord Campbell of Alloway: My Lords, it is a privilege to follow the noble and learned Lord. I agree with everything that he said and in particular with the three points that he made with such total clarity. The 100 per cent. uplift—"unacceptable" and "scandalous". How could it better be put? Disagreement with the advisory committee or the loose ends—again, how could it better be put? How can one go further with this miasma of dissatisfaction and doubt, such as we have heard in this Chamber today? There is then the question of control.
I do not conceal my prejudice in this matter. I am proud to assert it. It was so wonderfully asserted by my noble and learned friend Lord Rawlinson, and even, if I may say so, by the noble and learned Lord the Lord Chief Justice, my noble friend Lord Peyton and the noble Lord—I was about to say my noble friend—Lord Mishcon, in one of the most remarkable speeches that I have ever heard the noble Lord make in your Lordships' House.
Lord Renton: That is saying something.
Lord Campbell of Alloway: And that is saying something. But your Lordships will appreciate that I have not had the privilege of hearing all of them.
I accept that one's prejudice, of which I am proud and which I shall always retain, must not cloud one's judgment. All other noble Lords who have spoken are quite used to the position of having to put aside one's own prejudice and approach the problem totally objectively. I listened with attention to everything said by your Lordships today. I listened to the argument of my noble and learned friend the Lord Chancellor, supported by the noble and learned Lord, Lord Nicholls, to which I shall come in a moment, and to every other speech in your Lordships' House. I agree with all that has been said by all noble Lords save for my noble and learned friend the Lord Chancellor and the noble and learned Lord, Lord Nicholls.
One question puzzles me, but obviously I must have got it wrong somewhere. Somehow this question of vires was introduced. But what on earth that has to do with this debate I am totally unable to understand. If my noble and learned friend the Lord Chancellor had the vires he would not use it anyway, so what is the object of arguing whether or not he has it? Perhaps I missed the main point but, at least for the moment, I am rather foxed about its relevance.
1566
With regard to the way in which the noble and learned Lord, Lord Nicholls, dealt with the matter, I accept that one has to approach the matter as to how to implement Section 58, which is established in primary legislation. The question is whether the way proposed by my noble and learned friend the Lord Chancellor or the way proposed by the very advisory committee he set up is the better way of doing it. Limiting it to PI, insolvency and the European Commission of Human Rights and the European Court of Human Rights is one thing, but to use it as a fulcrum to develop this without the question of control, which was referred to by the noble and learned Lord, Lord Lowry, is objectionable.
In any event, when the noble and learned Lord, Lord Nicholls, says, as he did, that competition between the high street solicitors will resolve the question of the 100 per cent., I ask, "Will it, my Lords?" Does the noble and learned Lord know a number of solicitors in the high street who will not take legal aid at the moment because they do not get enough out of it? Competition on this basis on the high street solicitors is so much pie in the practical sky. There is no question about that. And we are not concerned in this area with the examples of wills or conveyancing, to which the noble and learned Lord referred.
There is really nothing more that I wish to add to the merits of the argument. But it seems that the amendments to these Motions to approve the draft order and regulations are entirely well-founded. These drafts as they stand should be withdrawn and relaid in a form which reflects the recommendations of the advisory committee. These amendments moved by the noble and learned Lord, Lord Ackner, although in form amendments to the Motion, are in substance a reasoned rejection of the draft order and regulations laid. If that is so, then so be it and let them be rejected, if we have to divide on the matter.
The distinction between an amendment to a Motion and a reasoned rejection is too fine to be drawn by your Lordships. This is no exercise in confrontation and brinkmanship. We are only concerned with what is the better way of implementing Section 58 of the Act. It is entirely appropriate that if such be our opinion we should reject the method proposed by my noble and learned friend the Lord Chancellor in favour of the proposal by his own independent advisory committee. In this situation parliamentary prudence plays no part and party political affiliations do not have any direct bearing. As my noble friend Lord Peyton urged, this is a matter where, if it is the opinion of your Lordships, how can we do otherwise in this unusual situation than to reject the order and the regulations as laid? It is unusual because there is disagreement. It does not happen as a rule when subsidiary legislation comes before your Lordships, but there is disagreement between the noble and learned Lord the Lord Chancellor and his advisory committee.
The negotiations are bogged down in stalemate. If this amendment to the Motion is carried on a Division, no doubt that logjam or stalemate can be re-opened and resolved by some acceptable compromise. After all, it is ordained by statute, as some kind of parliamentary safeguard, that we either accept or reject the Motion as

1567
it stands. If in our honest opinion, having considered all that has been said, we feel today that it should be rejected, then reject it we should. In any such situation I shall support the amendment proposed by the noble and learned Lord, Lord Ackner.
5.3 p.m.
Lord Cocks of Hartcliffe: My Lords, when I saw the list of speakers for this debate I felt that I had to check once again with the Clerks of the House as to whether it was in order for a layman to speak. Fortunately, I have had that reassurance so I shall add a few words. The noble and learned Lord, Lord Nicholls, spoke about bringing competition into the profession. I am happy to be able to tell him that I have already told the House about my appointment card for Chelsea and Westminster Hospital, which has on the back an advertisement by a solicitor seeking custom in personal injury cases. He may or may not think that this is appropriate.
Throughout this debate and in the literature, which I have tried to read conscientiously, there has been a great argument about uplift and whether it should be 10 per cent., 20 per cent., 50 per cent. or 100 per cent. Nowhere have I seen any mention at all about the amount which is; being uplifted. The question of fees being charged by some members of the legal profession I have mentioned before. I am astonished that a debate of this nature can take place with no reference to it whatsoever.
I shall not weary the House at length on this. I have mentioned before the Written Answer I had from the noble and learned Lord, the Lord Chancellor, on 10th October 1994 about Dr. Jawad Hashim. The answer states that Mr. Colin Ross-Munro had already drawn £671,111 and Mr. Hugo Page, £438,523. It concludes,
"Final costs will not be known until final bills have been submitted and the bills have been taxed".—[Official Report, 10/10/94; col. WA 94.]
The noble Lord, Lord Mishcon, made some rather censorious remarks about taxing masters and suggested that they might never have conducted proceedings in court. But, in my very limited experience, taxing masters have been vindicated. I refer to the appeal proceedings on 1st December 1993, when the noble and learned Lord, Lord Templeman, speaking about the challenge to a taxing master's decision, said to the appellants,
"The amount of fees you and your leader were claiming for a four day case would have hired three very competent headmasters for a year".
He went on to say—
Lord Mishcon: My Lords, I wonder whether, with his usual courtesy, the noble Lord will give way. I want to make it clear that I said that I venerated taxing masters. Quite apart from that, I said that, if they were being asked to adjudicate as to the chances of success of an action, I felt that that was a field in which they had had little or no experience.
Lord Cocks of Hartcliffe: My Lords, I am very much obliged to the noble Lord. But, inexperienced though this particular taxing master was, the noble and
1568
learned Lords, Lord Templeman, Lord Keith of Kinkel and Lord Goff, all found in his favour. The noble and learned Lord, Lord Templeman, said,
"These fees would have been unheard of even three or four years ago. The whole thing has come across from America and it has just gone up and up and up".
I believe that a noble and learned Lord made that point earlier on.
Such reticence on the part of the legal profession about their own money does not extend to other people's money. Only yesterday we were told by the Sunday Times that Mr. Mears was calling in his presidential manifesto for a £100 levy to make up the cost of the appeals and the damages compensation fund which they run. He goes so far as to suggest that £100 should be added to conveyancing bills. Clearly, the electorate to which he was appealing was not that of the usual house purchaser.
In the Mail on Sunday there was a report about lawyers' calls for cash for victims, saying that the Bar Council was,
"against the proposals in the Criminal Injuries Compensation Bill".
There is a quotation from Mr. Robert Latham, who sits on several victim support committees. He said,
"We urge you to show two fingers to this new scheme".
This is where a layman is at a disadvantage because the phrase "two fingers" is clearly some sort of legal technical phrase with which I am not familiar.
The serious point is that it seems to me, with the greatest respect, that these debates are conducted in a vacuum. There are some unfortunate children who suffer from what is called SCID, which is severe, combined immune deficiency. It means that they must be kept free of any possible source of infection. Their early life is lived in a bubble where their victuals are passed into them. It seems to me that some of the debates about legal matters held in this House and in another place are conducted without any relationship to the world outside.
I shall try briefly to make a little clearer what I mean. The scheme we are talking about today extends to personal injuries. There appeared in The Times an extremely interesting article by Michael Baum, who is an eminent cancer specialist at the Royal Marsden Hospital. The article was called, "Does Screening Really Work?". He pointed out,
"Something like 80 per cent. of men dying of other unrelated diseases in their eighties will be found to have prostate cancer at post mortem".
The tenor of his remarks was that there are many cancers which are never discovered unless there is a post mortem because they do not develop to a stage where they can be diagnosed. He said that it is possible that testing can be overdone.
That was reinforced in The Times on Saturday 10th June in an article by the health correspondent, Jeremy Laurance, who wrote that fear of litigation makes smear-test staff over-cautious. Dr. Angela Raffle claimed:
"Staff live in fear of being blamed for failing to prevent cases of invasive cancer. The desire to avoid over-diagnosis, which in the past kept the detection rates low, has now been outweighed by the need to avoid any possibility of being held responsible for missing

1569
The report goes on to state that 5,500 women were referred for further investigation and treatment,
"for a disease that would never have troubled them and are being left with problems that include lasting worries about cancer, difficulties in obtaining life insurance and worries concerning the effect of their treatment on their subsequent reproductive ability".
I shall not weary the House with more details of that, but we are talking about people in the caring professions now who are becoming worried about the increasing tide of litigation. We have to think forward to people who are contemplating what to do with their life. If the situation deteriorates very much further, people will be reluctant to enter the caring professions. I believe that such considerations should have equal prominence when we are discussing these other matters.
5.11 p.m.
Lord Coleraine: My Lords, I spoke in the debate on 1st November which was initiated by the noble and learned Lord, Lord Ackner, and I have come here today to renew the support that I offered then to my noble and learned friend on the Woolsack. I do not propose to go over old ground again, except to the extent that it is made necessary by the amendments in the name of the noble and learned Lord, Lord Ackner, which raise again two issues about which he spoke in November. I suggest that neither amendment should command our support.
First, the noble and learned Lord asks the House to agree that the maximum costs uplift should be 20 per cent., not 100 per cent. As my noble and learned friend on the Woolsack suggested—it seems a long time ago now—fixing that low figure would deprive the injured plaintiff, with only about a 50:50 chance of success, of the opportunity to proceed with the benefit of a conditional fee agreement. Those 50:50 cases are cases where there is a good chance of success but at the same time a real possibility of failure. Those are cases which deserve support.
Judge Michael Cook, in an article in The Times of 6th June which I expect many of your Lordships read, makes particularly hard-hitting points about the amount of uplift. He writes:
"The Lord Chancellor originally proposed a maximum uplift of 10 per cent., but the Law Society argued that this would require solicitors to win ten out of 11 cases merely to break even".
The judge is a serious commentator, but he is wrong. As I understand the position, the actual objection to the 10 per cent. uplift was simply that the cases to which it might apply were cases in which there was almost no chance of the plaintiff losing—in other words, the scheme (if so limited) would simply not reach many of those plaintiffs who need conditional fee agreements.
The article goes on:
"When an increase to 20 per cent.—reducing the odds for breaking even to five wins out of six—still did not satisfy the Law Society, the Lord Chancellor weighed in with a massive 100 per cent. uplift. The Law Society welcomed the proposal and revealed that 92 per cent. of personal injury claims, to which conditional fees are to apply, succeed. A 100 per cent. uplift had been secured for an eight per cent. risk".
That tendentious argument is, with all respect to the judge, more than a little misleading. The regulations cannot reasonably be read as permitting the maximum
1570
uplift for open and shut cases, but that is what the passage is implying and what the noble Lord, Lord Irvine of Lairg, seems to think when he says that the maximum uplift will not be confined to 50:50 cases, and it is what the noble and learned Lord, Lord Lowry, also thinks. However, the maximum uplift will and should be applied in only those cases where there is a good chance of success but also a real chance of failure—the 50:50 cases. All that Judge Cook's meagre statistic shows is that 50:50 cases may be relatively few in number, but nothing can be made of that in relation to the amendments tabled by the noble and learned Lord, Lord Ackner, or in relation to the comments of the noble and learned Lord, Lord Taylor of Gosforth, about the low take-up in Scotland. It may be that there are not all that many people who require such assistance in 50:50 cases, but that is not a reason why they should not have it.
As to the amendment requiring that there should be a cap on fees, I would consider the compulsory imposition of a cap at best unnecessary but at worst in some respects operating against the interests of litigants. Indeed, I do not find myself in entire agreement with the Law Society, whose brief advises me that the Law Society will recommend to practitioners that,
"A cap should normally be included in agreements".
There are obviously cases where a solicitor would recognise that the offer of a cap was appropriate to his client's financial and other circumstances. The noble and learned Lord, Lord Ackner, referred in November and today to the example of the damages in an otherwise successful claim being so reduced by a finding of contributory negligence that the uplift left the plaintiff out of pocket. It is on that sort of basis that he recommends the compulsory cap. But under the draft regulations, any solicitor offering a cap would be able also to offer an agreement without a cap, and it stands to reason that the uplift without the cap would probably be smaller than the uplift with the cap. The noble and learned Lord would remove from the plaintiff the element of choice, and leave him only the cap and the higher uplift. I consider that the imposition of a compulsory cap would be a retrograde step to take in this matter, and so I oppose it. It is inherent in litigation that even a successful plaintiff may be out of pocket at the end of the day. I have not heard either side of the profession—barristers or solicitors—recommend that when that happens the lawyers should forgo their fees in an effort to make things right for their plaintiff client. What is important is that there should be choice, and informed choice, and that honest proposals should be put by the lawyer to the client.
That leads me finally to say a word in relation to the amendments about a point which John Mark Taylor, the Parliamentary Secretary, brought out in the Commons in the debate on 15th May. It is a most important point which it is easy to overlook. There will be an undenied and binding legal duty imposed on a solicitor, in preparing and advising on a conditional fee agreement, to give the right and proper advice to his client; otherwise the agreement will be struck down at the end of the day as an agreement entered into by the client

1571
under the undue influence of the solicitor. In the last resort, that is what is going to make the regulations and the order work.
We should be looking to the future now. I am sorry that the noble and learned Lord, Lord Ackner, is still fighting the battles of 1990. I remind the House that the order and the regulations have been passed by another place. I commend to the House the Motions in the name of my noble and learned friend the Lord Chancellor and I hope—
Lord Boardman: My Lords, I am most grateful to my noble friend for giving way, but as he is well versed in the Law Society's figures, I wonder whether he can say how it managed to secure insurance cover against the other party's costs for less than £100 if the risks of losing were so substantial.
Lord Coleraine: My Lords, I am not in the cognisance of the Law Society on that matter. I consider that the question of insurance is a complete irrelevance. Whether or not they get insurance is entirely up to the clients. The only effect of the insurance is, if it is correct, to make it possible for litigants to litigate without risk. I am not sure that that is a good idea. I do not know the answer to my noble friend's question, but 1 hope that the House will reject the amendments and support my noble and learned friend on the Woolsack.
Lord Campbell of Alloway: My Lords, before my noble friend sits down, does he also consider irrelevant the difficulties explained in some detail by the noble Lord, Lord Mishcon, as regards the assessment of risk, which is fundamental to the scheme? Does my noble friend consider that irrelevant?
Lord Coleraine: My Lords, no, indeed I do not. I recognise that there will be cases where it is difficult to find an acceptable conditional fee agreement. On the other hand, there will be many cases where it is possible to do so. I am asking the House to let this proposal go forward. As it works out, we shall discover where it is necessary to amend it and what type of agreements are practical and what are not.
5.20 p.m.
Lord Allen of Abbeydale: My Lords, I am not a lawyer and like the other two lay Members who ventured to intrude into this lawyers' paradise, I can claim no expert knowledge of the subject. So it is with some diffidence that at this late stage of the debate I make a modest contribution. I derive some comfort from the fact that it is, after all, the non-expert, the non-lawyer, the ordinary person, who is intended to be the beneficiary of the proposals put before us by the noble and learned Lord on the Woolsack.
It could not be denied that most of today's critics intensely dislike the whole concept of conditional fees. That has been made abundantly clear. It is true that it has always been followed by the disclaimer that one has to accept the will of Parliament, but the melody, as it were, lingers on.
It is perhaps not surprising that the detailed implementation of a policy of which those critics profoundly disapprove turns out not to be to their taste.
1572
It looks rather different if one is just an ordinary person who is not poor enough to qualify for legal aid and not rich enough to embark upon litigation with equanimity. To people like that—to people like me—it seems that at last there is some prospect of access to justice becoming more open.
I looked back at the debates on the Bill leading to the 1990 Act, and I see that not only did I welcome the relevant clause but also that I incurred the grave displeasure of some of my legal friends by rather rashly moving, without success, an amendment which would have given the Lord Chancellor even greater powers. I therefore greatly welcome the order and regulations laid before us today, with only the regret that we have had to wait so long and possibly also with the feeling that they might have covered rather more types of case.
As it is, almost the whole argument has centred on just one category—namely, personal injury cases—and that, too, from the point of view of the plaintiff only. The arguments which have been put forward with considerable forensic skill—that if there is to be a mark-up, 20 per cent. would be better than 100 per cent.—have lamentably failed to convince me at all; 100 per cent., just on the arithmetic, strikes me as being unobjectionable in a 50:50 case. There is some weakness in the argument that that is too much because in the vast majority of cases personal injury claims are straightforward and almost always succeed, since it seems to me that the argument disguises the fact that a number of cases which are not so clear and which might indeed be 50:50 are never brought under the present circumstances, and that is one of the points at which the proposals are aimed.
It has been suggested that 100 per cent., or something near it, might become the norm. I do not believe that that will be possible. With all deference to the noble Lord, Lord Campbell of Alloway, I believe that there is something in the argument that the citizen would be able to shop around. We know that when there is competition, as in conveyancing, even legal fees can come down quite a bit.
One can hardly expect the noble and learned Lord the Lord Chancellor to welcome the other part of the suggestion made by the noble and learned Lord, Lord Ackner, for a specific cap on the proportion of damages which can be taken by way of fees, when he takes the view that the statute gives him no power to do that. In a long life in public affairs, I have found that on the whole it pays to take advantage of the legal views reached by the Lord Chancellor.
A good deal of the problem is met by the provision in the regulations that the amount payable to the lawyer is to be limited with reference to the amount of damages recovered, or that there is power for that to be provided in the agreement, which at any rate will ensure that the matter is discussed between the lawyer and the client. Although some scorn has been poured on the taxation arrangements, the fact remains that they provide some safeguard. The arguments, very skilfully put, as one would expect, by the noble Lord, Lord Mishcon, would apply, it seems to me, to any form of uplift and are not conclusive on the question of whether one would go for 20 per cent. or 100 per cent., which is the main issue

1573
raised in the amendment tabled by the noble and learned Lord, Lord Ackner. There will be cases too where the client will be as much interested in clearing his name as in obtaining some money.
There is one crucial difference between this scheme and the American scheme which is not to be overlooked and which has only just been touched upon. That is that the American contingency fee system works only if there is a prospect of damages from which the lawyer's fee can be deducted, whereas the Lord Chancellor's scheme works on both sides of the litigation. So the citizen who finds himself as a defendant in a personal injury claim will be able to make use of it. Indeed, I would not be all that surprised if the insurers for their part got round to seeing considerable merit in the scheme.
I recognise that the question of costs, which has been touched on from time to time, presents a problem which does not arise in the United States. The possibilities again will have been discussed between lawyer and client before the agreement is signed, and, although it is not a complete answer, the insurance scheme worked out by the Law Society, which I do regard as relevant, can go some way towards coping with that problem. It will apply only when the solicitor's firm is a member of the Law Society's accident line scheme and is an approved participant in the insurance arrangements. That incidentally should ensure that the client is helped by lawyers who know their way around. It will not cover some types of case, including medical negligence and pharmaceutical drug and tobacco-related actions, but where it is applicable cover will be provided for a pretty modest premium.
There is just one other point. I noticed that on previous occasions—I believe on one occasion this evening also—reference has been made which suggests that the speculative fee arrangement in Scotland, which hears a family resemblance to what is now proposed, has fallen into complete disuse. I have made some inquiries, and my understanding is that those reports of the scheme's demise are considerably exaggerated and that it is not the case that it has been found to be generally unacceptable.
As a conscientious Cross-Bencher, I naturally support the Government when the Government are right. It is not my fault that so often they prove to be wrong. However, tonight I believe that the Government's proposals are right. Much as it grieves me to differ from my fellow Cross-Bencher, the noble and learned Lord, Lord Ackner, I hope that the House will reject his Motions and approve the order and regulations.
5.30 p.m.
Lord Hacking: My Lords, almost every participant in the debate has acknowledged that Section 58 is in the Courts and Legal Services Act and that Parliament has decreed the introduction of conditional fees. However, it is clear from most speakers today that there is deep opposition to conditional fees and that if they are to be introduced they should have minimal effect. That will be the consequence of the House agreeing the amendments
1574
tabled by the noble and learned Lord, Lord Ackner. As was rightly said by my noble friend Lord Coleraine, the scheme would reach almost no one whom it is designed to help.
We would then be left with, as was described by the noble Lord, Lord Mishcon, the disturbing gap—I would describe it as the ever-increasing disturbing gap— between the poor man covered by legal aid and the rich man supported by his bank balance. When your Lordships debated the matter in November I quoted certain figures as regards the fall in eligibility for legal aid. I told your Lordships that at the beginning of the 1980s about 70 per cent. of families within the jurisdiction of England and Wales were eligible for legal aid. By the end of the 1980s, that figure had fallen to about 50 per cent. and has been falling ever since.
The Consumers' Association in a survey dated June 1993 ascertained that one-third of people in this country who considered taking legal action did not do so and that a significant factor in that was concern about the cost of legal proceedings. Therefore, the question is: what is to be done? Alas, the answer cannot come with a revival of the legal aid scheme as I remember it as a young member of the Bar in the early 1960s.
We therefore have before us the proposals of the noble and learned Lord the Lord Chancellor. Your Lordships may not like the proposals but I say firmly that many outside the House support the scheme; members of the Consumers' Association, members of the Law Society and others who come face to face with clients and the issue of costs.
Being also a member of the Bar of the State of New York, I am tempted to address your Lordships on the contingency fees system and perhaps that alien creature to which the noble and learned Lord made reference. However, I shall turn to what I believe to be the vital issue before your Lordships; it is the curious situation which we now face in this debate. The consumers clearly support the proposals. The opposition comes almost entirely from the lawyers—from some sections of the legal profession and the judiciary—on the grounds, I emphasise, that lawyers will abuse the system by dishonest practices because of financial interest in the outcome—
Lord Ackner: My Lords, the noble Lord has overlooked the fact that the main criticism as articulated has come from the advisory committee of the noble and learned Lord the Lord Chancellor. At the noble and learned Lord's insistence under the Courts and Legal Services Act, the majority of the committee are laymen. Therefore, to lay the blame for the criticism on the lawyers is hardly consistent with that situation.
Lord Hacking: My Lords, I am of course aware of the composition of the advisory committee. However, any of your Lordships who have listened to the debate and heard comments outside the Chamber will know that there is substantial opposition from the lawyers on the ground that the lawyers will abuse the system by dishonest practices because of their financial interest in the outcome of cases and by manipulating the uplift percentages so that costs will swallow the damages.

1575
I have greater faith. There has always been an incentive to win cases. The noble and learned Lord, Lord Ackner, was a prominent and successful member of the Bar. Although he may be too modest to remember, I am sure that clients went to him and said words to the effect, "You have a great reputation for winning cases. I would like you to take on my case and do your best to win it". If clients went to the noble and learned Lord with those words, they were well judged, because my recollection from my early days at the Bar is that the noble and learned Lord was, indeed, very good at winning cases—
Lord Boyd-Carpenter: Hear, hear!
Lord Hacking: My Lords, there has always been an interest in winning cases. Secondly, lawyers have always had some financial interest in the outcome of a case. I ask former and present members of the Bar to recall the many occasions on which they have had to advise a client whether to settle. Of course a lawyer has a financial interest in the continuing of a case; that is especially so for a member of the Bar who has cleared his diary for three to six months with no other court work booked.
The simple answer is that when faced with such issues there is only one judgment to make—what is in the best interests of the client. I suggest that that is the judgment which the noble and learned Lord, Lord Ackner, used when he was at the Bar and I suggest that it is the judgment that any self-respecting barrister or solicitor makes—
Lord Campbell of Alloway: My Lords, will my noble friend give way?
Lord Hacking: My Lords, I shall not give way now. I am moving on to the next point, which is costs swallowing up damages. That is already a problem. I am cautious about citing cases in which I have been involved because the noble and learned Lord, Lord Ackner, will proceed to recite them back to me in our next debate. However, I was recently involved in a case in which I was conducting a personal injuries claim on behalf of a client and in which considerable costs were involved because of a substantial and complicated loss-of-future-earnings claim. At a late stage the plaintiff received and accepted most generous redundancy retirement proposals. As a result, the loss-of-earnings claim went out of the window. My client was therefore left with a small personal injuries claim; so small that under taxation the uncovered costs would have exceeded the remaining damages.
I saw my client and told him that the good news was that he had won the case and that he had achieved damages of some £15,000. But I did not tell him that, in view of the uncovered costs, the bad news was that he would not benefit at all. I could have composed a letter which would have run something along the lines, "Dear Client, I am glad that I represented you in that case and it was a great pleasure to win it for you. However, that pleasure will result in you paying me because all the damages have been swallowed up and there are still costs owing".
1576
No self-respecting lawyer would behave in that way. If he did so it would be highly damaging in the relationship between client and lawyer. It would quite likely visit upon him serious professional discipline. I remind your Lordships that under the Law Society code it is wrong and a breach of the Law Society rules to take advantage of a client or to overcharge for work done. Under those rules, it is also a requirement to give impartial and frank advice to clients. In any event, there is power in taxation to reduce or remove the uplift altogether. More fundamentally, the regulations and the Law Society model agreement will require these matters to be properly considered between the solicitor and the client as set out in writing.
When we last debated the issue the Opposition supped with a long spoon. I had hoped that today they would shorten that spoon by recognising the need for the scheme and by having greater faith in the professional behaviour of our fellow lawyers and in our professional bodies in exercising discipline. It was therefore with alarm that I heard the noble Lord, Lord Irvine of Lairg, say that we should not—I hope that I repeat his words accurately—rely on the good will of the legal profession for the scheme is for the exploitation of litigants for the benefit of lawyers. Is that the way we should he behaving?
Lord Campbell of Alloway: My Lords, I apologise for interrupting the noble Lord in the middle of his reading his autobiography. But I wish to ask him whether he thinks it is quite fair to criticise members of the Bar, of whom he was once one, by saying, "Well, if you do not have any work, you have to fight the case, hut of course, if you are very busy, you settle because it is much better to settle and get on with the next case". That is just not a fair criticism of the profession of which he was once a member.
Lord Hacking: My Lords, my noble friend misjudges the comment that I made. As regards his reference to reading from my autobiography, one of the most important contributions that we can make in your Lordships' House is to give the benefit of our experience, and I willingly do that.
5.40 p.m.
Lord Renton: My Lords, I did not put down my name to speak and did not intend to do so. I venture to intervene now only because one important matter occurs to me which I feel obliged to raise and which has so far not been mentioned.
The order before us relates to proceedings before the European Commission of Human Rights and the European Court of Human Rights and says that they should be specified proceedings for which conditional fee arrangements may be made with, if necessary, a 100 per cent. uplift. Section 58 of the 1990 Act does not mention any proceedings before an international court. Therefore, it seems to me that it may be that a question of ultra vires arises in relation to making this order put forward by my noble and learned friend the Lord Chancellor.

1577
Quite apart from the narrow scope of Section 58, it seems to me that we have no power in our Parliament to make an order governing the rules of conduct, fee arrangements made, and so on, before an international court unless there has been at least consultation with the judges of that international court, just as there has been consultation with the Heads of Divisions in our country. I ask my noble and learned friend the Lord Chancellor whether there has been any such consultation and if so, what was the outcome of it.
But beyond that, we should think further. The question arises whether we have power to make such arrangements for conditional fees before an international court unless the other courts and parliaments which established that court by treaty, duly ratified, have been consulted, have agreed that we should do so, and, indeed, agreed that they would do so. Perhaps my noble and learned friend would be so kind as to comment on that.
Of course, if this order is in part ultra vires for either of the two reasons which I have given, it would seem to me that the whole order is ultra vires unless we amend it in addition to the way suggested by the noble and learned Lord, Lord Ackner. Perhaps I may say in passing that I fully agree with him.
There is only one other point which I wish to mention with regard to the proceedings before the European Court of Human Rights, and so on. "Specified proceedings" in the order in relation to our own courts are actions for damages for death or personal injury and winding up in liquidation proceedings. I believe that it is just possible to get an action going in the European Court of Human Rights for damages in some things but it is never heard of that that court has considered liquidation for winding up proceedings. Therefore, in the order we must turn to paragraph 2(1) (f), the last point, which refers to:
"proceedings before the European Commission of Human Rights and the European Court of Human Rights established",
as described. It seems to me that all the proceedings before such a court can be made subject to a conditional fee order. I have not had the experience of appearing before international courts in the way that some noble and learned Lords, and others, have, but it seems to me a very strange situation, bearing in mind the very wide jurisdiction which the European Court of Human Rights has—almost going into moral matters—that we should have those conditional fee arrangements in operation, with the possibility of a 100 per cent. uplift.
Therefore, we must be very careful and I should be grateful if my noble and learned friend would let me have the answers to those important questions.
5.47 p.m.
Baroness Mallalieu: My Lords, I wish to speak very briefly from the Back Benches and, therefore, I speak before the noble Baroness, Lady Hamwee, and with her consent.
I wish to speak in favour of the amendments tabled by the noble and learned Lord, Lord Ackner. Some of us share the intrinsic dislike expressed by the noble and
1578
learned Lord, Lord Rawlinson of Ewell, for the idea of conditional fees. But, as the noble Lord, Lord Coleraine, said, this is not the time to revisit the battle of 1990.
Surely it must now be for Parliament and in particular for your Lordships' House, which has a wealth of both legal experience and expertise, to fight a battle in 1995 to try to ensure that this order and the regulations which go with it provide the best possible scheme for the public.
The time has passed when legal aid was available to virtually all those who needed it, and it will not come again in the foreseeable future. Other methods must be found to fill the gap which, as many other noble Lords have already said, is denying access to our system of law for those who are deemed to be too rich to qualify for legal aid but who are too poor to pay for it.
The noble and learned Lord the Lord Chancellor has been somewhat beleaguered this evening. In fairness to him, he has had to perform a difficult balancing act in trying to determine the correct level of the uplift by which fees may be increased. If he makes the uplift too low, solicitors will not bother to offer the scheme to the public. If he makes it too high—I use another technical expression like the one used by the noble Lord, Lord Cocks—the public will find that the scheme is a con.
To put it frankly, "no win no fee" sounds mightily attractive, but if the result is to win and no damages or virtually no damages are received because the lawyer has pocketed the lot, dissatisfaction with both the lawyers and the legal system will rightly increase.
As others have said, the noble and learned Lord, Lord Mackay, proposed initially a 10 per cent. maximum uplift which he then raised to 20 per cent. In this order, he raises it to 100 per cent.; in other words, adopting double or quits. He maintains, as he did at the outset in introducing the order and regulations, that he has no reason to suppose that 100 per cent. will be the norm. He says that he has no power to impose a cap and if he did have power, he would not do so. He says that it is open to the parties to discuss the matter and reach their own agreement. But a lay litigant who is desperate for help is not in a strong position to bargain with a lawyer who he is anxious should pursue his case with energy and enthusiasm. If there is no cap and the uplift maximum is 100 per cent., there is no safeguard that that maximum will not become the norm and there is no safeguard that the whole of the damages will not be taken in costs and legal fees.
We were reminded by the noble and learned Lord, Lord Ackner, that the Lord Chancellor's Advisory Committee (which is independent of Parliament and of the legal profession with a majority of non-lawyers) says that 20 per cent. is the correct level to attract solicitors and to protect the public. These agreements must benefit the public and not the lawyers. It is because I am afraid that, as presently drafted, the order and the regulations do not do so that I must oppose the proposals of the noble and learned Lord the Lord Chancellor and support the amendment moved by the noble Lord, Lord Ackner.
5.50 p.m.
Baroness Hamwee: My Lords, I should first declare an interest as a practising solicitor and a partner in a firm of solicitors. I do so because I believe that the

1579
protection of the client is to the benefit of the reputation of my profession. The noble Lord, Lord Cocks, reminded me very vividly this evening that the reputation of lawyers is almost as bad as that of politicians. Therefore, some of us tonight will not win.
When the matter was debated on 1st November last, my noble friend Lord Hooson said that the basic problem which faced the House was put to him by a "solicitor colleague" who said:
"This is more a consumers' than a lawyers' issue. At present, lawyers often cannot be afforded … I believe that if people like me can't afford people like me, then the system needs changing".—[Official Report, 1/11/94; col. 800.]
I was the solicitor colleague, but my noble friend put the matter even more cogently than I could. I believe that legal costs are too high. I share the concerns expressed, among others, by the noble Lord, Lord Mishcon, that one must look at all possible measures to reduce them. I hope that the noble and learned Lord, Lord Woolf, will find alternative processes that will help to do so.
It is because I want the conditional fee scheme to succeed that I support the noble and learned Lord, Lord Ackner, this evening. My concern arises partly from my own experience. I accept that anecdotal evidence is often poor evidence, but it is only human to rely upon it to some extent. In negotiating the settlement of a dispute with an American lawyer I had the experience to find that the dispute was settled in a manner which I thought was very much to the disadvantage of his client. The lawyer—and he more or less told me this—wanted to settle the case because he wanted to get his fee. Although I accept that there is no intention to transfer the American system lock, stock and barrel here in this country, one must at least recognise the fact that some lawyers will be affected by matters of cash flow, if not matters of amount, when forming a view and giving advice to their clients.
My other recent experience took place while I was negotiating, on behalf of an English client, a conditional fee agreement with another American lawyer. I should point out that it is such an agreement, although it has some elements of contingency. It has taken weeks to negotiate the agreement, necessitating pages of documents. It is so complicated that I believe it well shows the absurdity of the need for another lawyer to negotiate on behalf of a client with his overseas lawyer.
In mentioning the question of the agreement, I see from the monitoring arrangements proposed that it is anticipated that the agreement can be varied during the course of the proceedings. Indeed, there is a reference to that in the arrangements. However, I wonder about the effect of the possibility of renegotiating an agreement during the proceedings. Most of all I share the concern expressed about the maximum uplift and the possibility that it may quickly become the norm. We have talked about 100 per cent. and perhaps it would be appropriate to remind ourselves that the 100 per cent. is not a matter of doubling profit. I say that because the base fee, which may be doubled, contains in itself an element of profit. I would not like to mislead myself in that respect. I am sure that your Lordships will have taken the point, but I have tended to forget that it is in fact more than a question of an extra 100 per cent. profit.
1580
As I said, I agree with the approach of trying 20 per cent. to see how it works and then, if necessary, looking at an increase. I agree with the noble and learned Lord, Lord Nicholls, about the effect of the market, although I am not convinced that shopping around to the extent practised by some clients is in fact to their benefit. My noble friend Lord Wigoder commented to me that there is perhaps an analogy with doctors in Harley Street: they do not seem to have reduced their fees even though there is quite a market in the area.
We have talked about taxation and its role in ensuring that fees are appropriate and proportionate. However, with taxation being assessed after the event I cannot help feeling that hindsight will be too tempting on some occasions to ignore. As regards the question of the cap, I am not convinced that it should be ruled out because it is more difficult, perhaps impossible, to apply in the case of a defendant. An attempt should perhaps be made to apply it where it can be applied for a plaintiff to see how it works.
There is also the question of insurance. I share the scepticism about insurance that has been voiced by some speakers. I would add to that the dangers that many of us will have experienced of an insurer finding a way to get out of paying what one thought was a certain sum of money from a policy that one thought would provide protection. There has been much experience recently in another field; namely, that of mortgage protection. House owners have tested their insurance arrangements only to find them wanting because the small print tends to protect the insurer more than it does the person who has taken out the policy.
I should be most unhappy if your Lordships were to think that I was suggesting that my firm would take advantage of clients. However, I shall report a conversation that I had this morning with a litigation colleague. I asked him what his view was about the proposals. After expressing concern about the unequal bargaining power between client and lawyer, he said, "If the system had been in operation for a while, I would have retired by now". In these days of charters, I hope that we shall see the best possible charter for the client and not what the public might regard as another charter for lawyers.
5.57 p.m.
The Lord Chancellor: My Lords, I believe that your Lordships would be surprised if I were deliberately to introduce a system under which lawyers could properly exploit clients to the clients' disadvantage. In introducing the scheme it is not my purpose to do so. It has been said that the Advisory Committee that I appointed and whose services I greatly value—although not all of your Lordships who spoke today valued the committee in advance—has required me to examine closely the problems that it has raised. That I have done. It is one of the reasons why I have taken some time in arriving before your Lordships with the proposals, which, as I said, passed through the other place without a Division.
My noble and learned friend the Lord Chief Justice reminded your Lordships that I started off at 10 per cent., then went to 20 per cent. and finally went to 100

1581
per cent. He said that that would not be a way to settle an action. Well, of course, I was not settling an action; indeed, I certainly have not settled this particular action. What I was doing was responding to the consultation which Parliament enjoined me to have with the Law Society, with the designated judges and with the Bar Council. I also consulted the advisory committee.
I saw—and my noble and learned friend Lord Lowry addressed the point—that there was a great danger that, if one did not approach this as a matter of principle, the uplift would be regarded as a tax. That is the way that my noble and learned friend approached it—that successful litigants would be taxed at some rate, 20 per cent. for example, in favour of the unsuccessful. That is not what this scheme is about. This scheme is about fixing an uplift for the particular case which is appropriate to that case.
The first point of my noble and learned friend Lord Ackner, seeking to reduce the uplift to 20 per cent., is not a device that will protect clients. It is a device that will limit the application of the scheme to cases in which the chances of success are of the order that would justify 20 per cent. I can see no justification for doing that at all. I learnt that as a result of the consultation, and I have heard no answer in principle to that this afternoon.
Obviously if I wanted a quiet life, which I must say I am as keen on as anyone else, I would have gone along with this. But surely I have to approach this as a matter of principle, and the principle is that the uplift should be related to the chance of success.
The noble Lord, Lord Mishcon, with his characteristic flair for advocacy, does not want to be a bookie. I can understand why. But the courts have had to evaluate the chances of success in actions. If a solicitor by chance forgets to raise an action in time, the amount of the damages will have as one of the factors the chances of success in the action as well as the amount of damages that the action would have incurred if it had succeeded. Therefore this idea that one has to evaluate the chances of success in an action is nothing new in the law. The noble Lord, Lord Mishcon, says it is new for taxing masters. If it was as easy as the question of my noble friend Lord Boardman would suggest, it would not be very difficult for a taxing master to see that, if one could get insurance for £100 against costs of £100,000, the chances of success must be pretty good.
This brings me to another fact. It has been said that the insurance covers all personal injuries. The insurance is a matter for the Law Society's negotiators who negotiated with an insurance company. But my understanding is that it does not cover all actions of personal injuries. It would be surprising if it did. It covers only some. Obviously, as the noble Lord, Lord Irvine of Lairg, said, a lot of personal injury actions are successful, which is why I was talking about a minimum originally. But there are other actions for personal injuries where the chances of success are doubtful. What is the correct measure of the limit to which one should go in allowing doubtful actions under this scheme? Surely it is that of 50:50.
1582
Recently the Bar Council has given guidance to the profession about how it evaluates claims for the purposes of legal aid, because one of the fundamentals in legal aid is to find out what the chances of success are. The Bar Council put it in this way in its recent guidelines:
"A barrister should estimate the prospect of a successful outcome by reference to one of the following categories, namely, very good, 80 per cent.; good, 60 to 80 per cent.; reasonable, 50 to 60 per cent.".
My submission to your Lordships is that it is absolutely proper for a lawyer to take an action in which the prospects of success are reasonable. If he does so and judges that the prospects are 50:50, he should charge that client what his services are worth. My noble and learned friend Lord Lowry said it should not be twice what they are worth. I say no because one has to take account of the risk which the lawyer is carrying, and therefore the services have to take account of that risk because if the risk turns out against the lawyer and the client, then the answer will be that the lawyer gets paid nothing based upon the chances of success in that particular case.
In my submission, as a matter of principle the maximum uplift that should be allowed, in the light of all the consultation, is 100 per cent. I have heard nothing that justifies reducing that. Of course I understand perfectly that, if someone charges a 100 per cent. uplift when it is a sure-fire case in which one can get insurance for £100, that is highly undesirable. I entirely agree with that. It is equally undesirable that he should charge a 20 per cent. uplift if that is the situation. There is nothing in a 20 per cent. uplift—it makes it a little smaller perhaps—that justifies charging 20 per cent. if it is a sure-fire case. The argument of my noble and learned friend is obscuring this principle. The principle has to be that the actual uplift is measured by the chances of success in that particular case. Anything that obscures that and tries to spread it over the whole range of personal injuries, as if it were a statistic, is just nonsense. All of us who know anything about statistics know that statistics do not apply to the individual case. It is only if one has a large number of cases that the statistics apply.
The noble Lord, Lord Mishcon, for whose views, as he knows, I have great respect, gave us a most interesting argument, which of course is equally applicable to any form of the scheme. Your Lordships may recollect the argument, which was interesting and fascinating at the time but applies to any form of the scheme because I, and I think he, have the ultimate control of the taxing masters as regards any form of the scheme. As I said, the advisory committee took this view. I have of course discussed it with the committee. But the matter is one of principle and I am seeking to explain to your Lordships today what that principle is.
I hope that your Lordships will go along with the principle because, if you in any way fudge the principle, you will be teaching the legal profession that, instead of looking at the risks of the particular case, they should take the view that this is in the nature of a reasonable tax and a reasonable tax should be about 20 per cent. I am all in favour of reducing taxation, as your Lordships

1583
know, but this is not a tax. It is the reasonable charge which the client should suffer who has this particular type of case where these are the odds.
The idea that the lawyer becomes a bookie if he gives odds seems to sit badly with the advice that the Bar Council has given to the banisters' profession that I read out to your Lordships. It is essential to be able to give a view about what the chances of success are. It is utterly wrong to suggest that insurance is available in cases where the outlook is of a 50:50 success rate.
My noble and learned friend the Lord Chief Justice asked: if the arrangement in Scotland is 100 per cent., why did I not start with that? I thought I had explained that, perhaps before my noble and learned friend was able to be in his place. I pointed out that the decision of the court in Scotland came in August 1992. I did not have sufficient vision to know exactly what it would decide under its powers. However, I was convinced by the argument and I thought that one of the aims of consultation was that, if a good argument was put to me, I was supposed to listen to it and give effect to it. That is what I have done. I went along with a principle and I would strongly ask your Lordships to be good enough to support me in that.
I understand all this about fudging. It is unfortunate that a lawyer should profit at 100 per cent. But if that is the lawyer's fair right, he should get it. I do not for a moment condone people taking more than they are entitled to. I think my record of trying to make changes in your Lordships' House to the legal aid system would bear that out. I am in favour of the client, but I am in favour of the client being able to take a case at 50:50 if the client wants to do that and is properly informed about the risks. I see no reason in the world why my scheme should exclude such clients, which is what in effect the scheme of my noble and learned friend Lord Ackner does. Of course it is always possible for a lawyer to take a 20 per cent. uplift in a 100 per cent. case. But then, if he is going to remain in business financially, he will have to recover that money from other people. That is the unfairness that I see in the fundamentals of what is proposed against me. It is utterly unfair to the clients who have a sound case to have to pay in this way.
The arguments that I have heard against me this evening—and I have discussed the arguments with the committee—are all based on that assumption. In my submission to your Lordships, it is a wrong assumption. It is a mistake in principle and it is damaging to fairness to the individual client in the cases to which the scheme will apply.
On the subject of the cap, I have taken the view that it is extremely difficult to apply a cap generally by regulation. I instance the case of the structured settlement. Your Lordships will know that a structured settlement is one in which a capital sum is payable immediately, with income payments made over a period. As an illustration, it would be difficult to apply a cap of 25 per cent. of the damages unless one gave the lawyer a pension. That would be an unworkable arrangement.
It may be that a cap is right in a particular case, but the merit of what I propose—which recognises the concerns of my advisory committee—is that the client
1584
and the solicitor will have to sit down and examine that matter before agreement is reached. The lawyer may say at the beginning, "Are you willing that the uplift I take may use up all your damages?" The client may say, "No, I am not. I would like it to be not more than half." On the other hand, there may be a matter on which the client feels that his honour is at stake. For example, relating to an accident at work he says one thing and another employee says the opposite and the question is which is truthful. The honour of the plaintiff is at stake. Your Lordships will have experience of that happening. For the sake of being vindicated, the client may be willing to go a fair distance in that matter. Why should I prevent him?
Those are the points of principle that I want to put before your Lordships. As my noble and learned friend Lord Hailsham of Saint Marylebone said in earlier debates, I believe that fairness requires that the system I propose should apply equally to plaintiffs and defendants. All the skill of the noble Lord, Lord Irvine of Lairg, was not able to show how the cap could apply in respect of defendants, unless it applied to costs alone. That would not be a fair arrangement if the plaintiff could incur costs up to damages plus costs and the defendant only costs. That would be utterly unfair.
Therefore, as a matter of principle, I have approached this as a matter of fairness. The 100 per cent. figure in Scotland was fixed by our judicial colleagues there. It is my understanding that the Scottish speculative system, with 100 per cent. uplift, is used to a considerable extent. The amount varies, but on Friday three leading firms in Edinburgh had between them 30 or 40 actions on this basis. The great thing about the scheme is that I have never known of a complaint.
That brings me to the last point that I want to make. The agreement is made at the beginning of the litigation. It is capable of being altered by agreement. It cannot be altered unilaterally once it has been made, but it can be altered by agreement. The kind of case to which the noble Lord, Lord Mishcon, referred would certainly be one which might arise for renegotiation. That already applies in relation to legal aid. A solicitor who suddenly discovers a cast-iron statement against him is supposed to advise the legal aid authorities so that they may reconsider whether legal aid should be granted. Noble Lords will know how often that happens.
Renegotiation is possible, but ultimately the only time the person has to pay out any money and anything is done to the detriment of the client is after the case has been successful. Therefore, the client has succeeded before that arises. In that connection, I want to remind your Lordships of a fundamental point; namely, this is an agreement between solicitor and client. If there is anything in it which is disadvantageous to the client, since the solicitor is always regarded as having influence over the client, unless the solicitor can prove that the agreement was a fair and proper one he cannot succeed in enforcing it on the ground of undue influence. Therefore, at the stage at which that arises, the client will have succeeded and, if the agreement is disadvantageous to the client, the burden of proof will rest on the solicitor to justify it. If he cannot justify it he will not get the benefit of the uplift.

1585
I have dealt with the matters of principle. I ought to deal with the question of my noble friend Lord Renton. My understanding is that the law in this country disadvantages a lawyer who makes an agreement about going to service a case either in the European Commission or in the European Court of Human Rights. It is the law of this country which is dealt with. My orders are intended to deal with that aspect of the matter; namely, the enforceability of such an order in this country. Obviously, people could go from Scotland to the court in Strasbourg on the basis of the law there if the agreements were made there.
Lord Renton: My Lords, before he sits down, will my noble and learned friend confirm that he is therefore saying that when, for example, a London solicitor makes an agreement with a British subject who happens to be abroad at the time in relation to conditional fee arrangements before the European Court of Human Rights, the terms of the order which my noble and learned friend is asking the House to approve would not apply?
The Lord Chancellor: My Lords, I am saying that if the conditional fee agreement in question falls to be judged by English law then these regulations will apply if the agreement is covered by the regulations.
Since the point has been raised, perhaps I should say that I originally intended to limit the conditional fee regulations to personal injury cases. However, the Law Society and insolvency practitioners pointed out special problems in that regard, to which I need not refer in detail, and others concerned with European legislation pointed out problems there. It seemed to me relatively easy to deal with those problems. However, I have limited the scheme. It does not apply to all forms of action which are permissible. As my noble and learned friend the Lord Chief Justice said, I have approached the matter with a degree of canniness in relation to the types of proceedings which can be covered.
It would be wrong for me to detain your Lordships further. I strongly suggest to your Lordships that what I propose here is correct in principle and that your Lordships should approve it in principle. Otherwise your Lordships would be approving a kind of fudge which would only encourage people not to treat these as individual cases but as if we were allowing a form of modest taxation on all successful plaintiffs in order to service the claims of those who fail.
I invite your Lordships not to support the amendment of my noble and learned friend Lord Ackner.
6.18 p.m.
Lord Ackner: My Lords, I have appeared in this House on a number of occasions on matters relating to legal subjects. This is clearly an important debate because I have never seen the House so well attended on any legal issue. It is an important debate because if the noble and learned Lord the Lord Chancellor has got it wrong, then very serious injustices, which his committee warned him about, would come about.
At the outset I wish to thank noble Lords who have taken part in the debate, particularly those who have supported my amendment. It is fundamental to the whole
1586
of the submission of the noble and learned Lord the Lord Chancellor that the uplift should not be disproportionate to the risk. The strange thing is that one finds no reference to that in the order or the regulations. The uplift features in the very last paragraph in the order which states:
"For the purpose of section 58(5) of the Courts and Legal Services Act 1990 the maximum permitted percentage by which fees may be increased in respect of each description of proceedings specified in article 2 is 100%".
That is all. No indication is given as to when one should charge what.
My noble and learned friend the Lord Chancellor says, "We are giving thought to taxation so that we have a method of dealing with the situation." Why has it taken nearly five years for thought to be given and for nothing to be achieved? The noble Lord, Lord Mishcon, indicated the practical problems with regard to seeking to relate the uplift to the proportion of the risk, and, once an agreement has been reached, how difficult it is to challenge.
My noble and learned friend the Lord Chancellor has a detailed letter from his own advisory committee dated 7th April, 1995. It is a long letter stating that the committee remains gravely concerned that taxation will not in practice prove an effective safeguard. The letter states that there will be clear difficulties regarding a taxing master who is not an expert on assessing risk in actions and who will have considerable difficulty in knowing at what stage he should reach that decision. However, an important comment is made on page 2 that it will undoubtedly be argued, and probably successfully, that Parliament has sanctioned increases across the personal injury field of up to 100 per cent., that the client agreed the increase and that no reduction is therefore warranted. But taxation does not follow as night follows day. It could do so if the Lord Chancellor looked upon that method as being the system to provide such vital control. He could provide in the regulations that taxation must take place in every case. He could do better still. Instead of leaving it to a taxing master post hoc to seek to unravel the degree of proportionality to the risk, he could provide that before every agreement is put into effect it should receive the approval of a master of the High Court who would be expert in such matters. The written agreement would be handed in to the master with any supporting statements, and he would be asked to approve it. There one has the control.
However, we do not have obligatory taxation, and taxation is expensive. If the litigant demands taxation— he will have to demand it, the solicitor will not offer it— he will be told, quite rightly, "This can be a very expensive operation and if you do not accept what I am telling you about the reasonableness of my uplift, then you go ahead. But if you fail you will pay a costly figure for querying my judgment."
This matter has not escaped the attention of the Lord Chancellor's own advisory committee. If I were standing before your Lordships saying, "Would you please implement my views on what is appropriate and my views as to how to protect the litigant who is often vulnerable and at a difficulty?", I could understand the situation. But the Lord Chancellor has had the consistent, definite and quite firm advice—firm enough for the committee to feel so concerned that it published such advice in the press— that what is being done is fraught with danger for the

1587
litigant. That committee of 17, presided over by a Lord of Appeal in Ordinary, includes judges and other experts and has a majority of laymen. I have already described how the committee—so that it should not be thought to be in any way out of touch—has among its members a past president of the Law Society, a partner of the litigation department of one of the most experienced firms, and a past president of the Institute of Chartered Accountants.
Its detailed criticism is brushed aside as fudging. Some committee to fudge in the way in which the noble and learned Lord the Lord Chancellor suggests! The committee is concerned with one essential feature. If you bring in this new concept, as must happen—it is accepted—of conditional fees you have to take great care to ensure that the litigant is properly safeguarded.
I have dealt with taxation. Perhaps I may now turn to the question of the cap. As the committee said to the Lord Chancellor, "If you will not come down to 20 per cent. and insist on 100 per cent., the only way of safeguarding the litigant from having the whole of his damages swallowed up in the 100 per cent. figure"— a situation which the Lord Chancellor has conceded in correspondence can easily happen—"is to impose a limit from which the damages can be resorted to".
Perhaps I may deal with the points raised. First, my noble and learned friend Lord Nicholls accepts that there is potential abuse available, that the 100 per cent. could be an excessive figure. The figure of 100 per cent. without abuse can still absorb all the damages; it does not have to be a "guilty" 100 per cent. It is a question of figures. However, the noble and learned Lord accepts that there is potential for abuse. The idea of the cap is to prevent that abuse. Therefore, why not have it?
Secondly, there has been reference to the fact that the conditional fees are designed to apply not only to a plaintiff but to a defendant. How can one operate a cap on a defendant? The answer to that is perfectly simple. A cap has no relevance to a defendant. A cap protects damages or other sums recovered from being swallowed up. The defendant is present, unless he has a counter claim, in order to resist the claim. When he has resisted the claim successfully, there is no cap and therefore the risk of damages being swallowed up does not arise in any way.
The reason that the damages aspect is so important is this. The Law Commission brought out a short paper representing its views on the conditional fees and other proposals made by the Lord Chancellor in his Green Papers in 1989. One of the observations that the paper made was that to require the litigant—this must be the plaintiff—to pay any significant sum out of his damages detracts from the fundamental principle of English law that the courts strive to put a wronged person back into the position in which he would have been had he not been wronged. One writer said that any time a litigant has to pay representation expenses from his award, justice is not done. Those were the views recorded by the Law Commission. The cap seeks to face up to the position that the uplift will come out of the damages, but it will not wipe out the damages. That is its function; that is its principle. That is why the Lord Chancellor's own advisory committee has stated consistently that if one wishes to hang on to the 100 per cent., the only way
1588
to avoid a situation in which the litigant receives nothing, or virtually nothing, is a cap. What on earth is against that? I wave to one side the absence of power. It can be obtained. I do not accept, and nor do others who have considered it, that there is no power. What is against it? There is the reference to the defendant. It is an irrelevant concept to cap the defendant.
The other point is structured settlements. There can be an exception in regard to structured settlements. We spent five years contemplating the regulations and it is not beyond the wit of man to allow an exception. The noble Lord, Lord Coleraine, obviously realised that it is a difficult point. It is significant that a cap of 25 per cent. appears in the model agreements drafted by the Law Society. Why has the Law Society said in those agreements that there should be a cap of 25 per cent.? Because it realised the injustice of the applicant winning and then being left with under 75 per cent. Even 25 per cent. would not give him 75 per cent. because there is a difference between the costs that he receives by order of the court and what are called indemnity costs which he has to pay to his solicitors. So the cap is the opportunity to safeguard the situation.
I have had the greatest difficulty understanding the constant firm resistance of the noble and learned Lord the Lord Chancellor. The suggestion that he had no power came late in the day and it is followed similarly late in the day with structured settlements. It is now said that the defendant's position would produce an anomaly. That is not so.
There have been references to the consumer and consumer organisations and what they wish. I have received briefs from such organisations for the purpose of the debate and they all accept that the cap provides an enormous amount of protection. One said that if matters did not work out by the optional opportunity, then legislation would have to be considered. But the concept of the cap is obvious. It provides the protection. If, as the Lord Chancellor's committee suggested, the noble and learned Lord insists on 100 per cent., this is the appropriate compromise.
I make only one point about Scotland. If I had realised that point would be raised, I would have brought the document with me. There was a Bar meeting not long before our debate on 1st November when either the dean or the vice-dean informed the company present that conditional fee agreements were not being used. On Thursday or Friday I spoke to the Lord President about the experience in Scotland. He said that there was a small take-up and explained why. It was because the 100 per cent. was kept down. Because of the base fee, as he called it, to which the 100 per cent. could be applied, the method of taxation and fixing fees which can be obtained is quite different. Those were not his words but generally the base fee being screwed down meant that the 100 per cent. was of little advantage. Perhaps it is not a useful analogy to draw between the two countries. They are in an entirely different situation with regard to the supply and demand of that form of litigation.
I respectfully but, I hope, not too emphatically emphasise that if my noble and learned friend's proposals come into force without the cap being

1589
available, there will be occasions when this country will exceed the worst excesses of the United States. Let me make that proposition good. In the United States matters differ from state to state but the fee that is earned on the conditional fee basis is a percentage of the damages— 30 per cent., 40 per cent. But one cannot obtain more than 40 per cent. So the litigant is always left with 60 per cent. of the damages that are recovered. But, as the Lord Chancellor's advisory committee pointed out, what the noble and learned Lord proposes without a cap—as he has conceded over and over again—can result in the litigant who has won obtaining nothing at all. In my respectful submission, that situation is worse than the American system. Not only is it worse. To introduce such a situation would do a great disservice to the administration of justice in this country.
In the edition of The House Magazine of 22nd May, there is an article by the noble and learned Lord the Lord Chancellor vigorously defending some of his law reforms. The penultimate paragraph contains this sentence:
"If on any aspect of my reform proposals they can suggest improvements, I would be most grateful and delighted to consider them".
While, of course, I accept without hesitation the sincerity of the noble and learned Lord's expression of gratitude and delight—which no doubt applies to this debate—his lack of sensitivity to the weight of argument not only in this House but to the continued representation by his own advisory committee obliges me to seek the opinion of the House on my amendment.
6.37 p.m.
On Question, Whether the said amendment shall be agreed to?
Their Lordships divided: Contents, 100; Not-Contents, 105.

Division No. 1

CONTENTS

Ackner, L. [Teller.]

Fisher of Rednal, B.

Addington, L.

Gladwin of Clee, L.

Archer of Sandwell, L.

Gould of Potternewton, B.

Astor of Hever, L.

Greene of Harrow Weald, L.

Barnett, L.

Grey, E.

Beaumont of Whitley, L.

Hamwee, B.

Belhaven and Stenton, L.

Harris of Greenwich, L.

Beloff, L.

Hayhoe, L.

Birk, B.

Healey, L.

Blackstone, B.

Hilton of Eggardon, B.

Bridge of Harwich, L. [Teller.]

Hollick, L.

Bruce of Donington, L.

Holme of Cheltenham, L.

Campbell of Alloway, L.

Houghton of Sowerby, L.

Clanwilliam, E.

Howell, L.

Coventry, Bp.

Howie of Troon, L.

Craigavon, V.

Hylton-Foster, B.

Darcy (de Knayth), B.

Jeger, B.

David, B.

Jenkins of Putney, L.

Dean of Beswick, L.

Kennet, L.

Dean of Thornton-le-Fylde, B.

Kilbracken, L.

Desai, L.

Kinloss, Ly.

Dilhorne, V.

Lauderdale, E.

Donaldson of Kingsbridge, L.

Leigh, L.

Elis-Thomas, L.

Lloyd of Berwick, L.

Farrington of Ribbleton, B.

Longford, E.

1590

Lowry, L.

Seear, B.

McGregor of Durris, L.

Sefton of Garston, L.

McNair, L.

Serota, B.

Mallalieu, B.

Shaughnessy, L.

Mar, C.

Shaw of Northstead, L.

Marlesford, L.

Shepherd, L.

Masham of Ilton, B.

Simon of Glaisdale, L.

Mayhew, L.

Strafford, E.

Monkswell, L.

Strathcarron, L.

Napier and Ettrick, L.

Taylor of Gosforth, L.

Nicol, B.

Templeman, L.

Norrie, L.

Thomas of Gwydir, L.

Oliver of Aylmerton, L.

Thomas of Walliswood, B.

Park of Monmouth, B.

Thomson of Monifieth, L.

Pearson of Rannoch, L.

Tope, L.

Perry of Walton, L.

Tordoff, L.

Peyton of Yeovil, L.

Varley, L.

Plant of Highfield, L.

Waverley, V.

Rawlinson of Ewell, L.

Wedderburn of Charlton, L.

Rees, L.

Whaddon, L.

Renton, L.

Wharton, B.

Rodgers of Quarry Bank, L.

White, B.

Roskill, L.

Wigoder, L.

Russell, E.

Winchilsea and Nottingham, E.

Sandwich, E.

Young of Dartington, L.

NOT-CONTENTS

Addison, V.

Henley, L.

Ailsa, M.

Hives, L.

Aldington, L.

Hogg, B.

Allen of Abbeydale, L.

HolmPatrick, L.

Allenby of Megiddo, V.

Hooper, B.

Annaly, L.

Howe, E.

Ashbourne, L.

Inglewood, L. [Teller.]

Astor, V.

Jeffreys, L.

Balfour, E.

Jenkin of Roding, L.

Blaker, L.

Johnston of Rockport, L.

Blatch, B.

Kenilworth, L.

Borthwick, L.

Kimball, L.

Boyd-Carpenter, L.

Kinnoull, E.

Brabazon of Tara, L.

Kirkhill, L.

Brougham and Vaux, L.

Lane of Horsell, L.

Butterworth, L.

Lindsay, E.

Byron, L.

Long, V.

Cadman, L.

Lucas, L.

Caithness, E.

McColl of Dulwich, L.

Campbell of Croy, L.

McConnell, L.

Carnock, L.

Mackay of Ardbrecknish, L.

Chelmsford, V.

Mackay of Clashfern, L. [Lord Chancellor.]

Chesham, L.

Clark of Kempston, L.

Massereene and Ferrard, V.

Cochrane of Cults, L.

Merrivale, L.

Cocks of Hartcliffe, L.

Mersey, V.

Coleraine, L.

Miller of Hendon, B.

Colville of Culross, V.

Milner of Leeds, L.

Colwyn, L.

Milverton, L.

Courtown, E.

Monteagle of Brandon, L.

Cranborne, V. [Lord Privy Seal.]

Mottistone, L.

Munster, E.

Crathorne, L.

Nicholls of Birkenhead, L.

Crickhowell, L.

O'Cathain, B.

Cumberlege, B.

Onslow, E.

Denham, L.

Orkney, E.

Downshire, M.

Orr-Ewing, L.

Dundonald, E.

Oxfuird, V.

Elles, B.

Pender, L.

Erne, E.

Rankeillour, L.

Erroll, E.

Rawlings, B.

Fanshawe of Richmond, L.

Renwick, L.

Fraser of Carmyllie, L.

Rodger of Earlsferry, L.

Gray of Contin, L.

St. Davids, V.

Gridley, L.

Savile, L.

Hacking, L.

Seccombe, B.

Harding of Petherton, L.

Shannon, E.

Harman-Nicholls, L.

Sharples, B.

1591

Skelmersdale, L.

Trumpington, B.

Skidelsky, L.

Wakeham, L.

Westbury, L.

Stanley of Alderley, L.

Whitelaw, V

Stewartby, L.

Wise, L.

Strathclyde, L. [Teller.]

Wolfson, L.

Resolved in the negative and amendment disagreed to accordingly.
On Question, Motion agreed to.

Conditional Fee Agreements Regulations 1995
The Lord Chancellor: My Lords, I beg to move.
Moved, That the draft regulations laid before the House on 20th April be approved [17th Report from the Joint Committee].—(The Lord Chancellor.)
On Question, Motion agreed to.

Criminal Appeal Bill
6.47 p.m.
Baroness Blatch: My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved, That the House do now again resolve itself into Committee.—(Baroness Blatch.)
On Question, Motion agreed to.
House in Committee accordingly.
[The BARONESS HOOPER in the Chair.]
Clause 18 [Power to require appointment of investigating officers]:
Lord Scarman Lord Scarman moved Amendment No. 32:
Page 14, line 19, leave out from ("may") to end of line 20 and insert ("either themselves appoint an investigating officer to carry out the inquiries or, if they think it appropriate, require the appointment of an investigating officer as provided in section 19.").
The noble and learned Lord said: I propose to be very brief in moving this amendment, because the proposal contained in it has been the subject of so much discussion and debate both inside and outside Parliament. Indeed, very considerable disquiet has been expressed, again both inside and outside Parliament, over the fact that the commission does not itself have power to conduct an investigation, and thus invariably consults by requiring the appointment of an investigator, himself a policeman, who will be selected by a chief of police. That being the situation, I ask myself why it is that the commission has been denied the power of conducting an investigation. Why must it invariably use the police?
As the Bill stands, the commission can only "require" the appointment of an investigating officer and the investigation must be carried out by that officer, that officer being himself a policeman appointed by the chief of police of the force where the trouble arose. It is true that the commission has the right to veto the appointment; it has the right to direct and supervise the conduct of the inquiry; but it does not have the right to appoint an investigating officer and conduct the investigation itself.
I accept that in the majority of cases the commission will go to the chief officer of the police force concerned and require the appointment of a police officer as the investigating officer. I accept that in most cases that is an admirable way of conducting the investigation. The trouble is that inevitably, from time to time, cases will be referred to the commission in which public confidence will be damaged if the matter is made subject to a police investigation. That is not a reflection on the quality of our policemen; it is merely that there will be cases—perhaps sensational cases—where the police role has been such that, if the commission is to be able to act independently and strongly in the eyes of the public, it needs itself to conduct the investigation and appoint its own investigating officer. In principle, therefore, there is a strong body of opinion that we give the commission, in a case referred to it which needs to be investigated, the right to appoint its own investigating officer and itself to conduct the inquiry.
A number of objections have been raised. I shall mention only two, but they are both important. The first is, simply, that it will be too expensive. There has been no study of the cost. I see no reason why it should be more expensive to do it by an investigating officer and the staff of the commission, with the assistance of others who may well have investigating experience. As we know, both the membership of the commission and no doubt the membership of its staff, will include a number of persons highly qualified in the type of investigation that the commission would undertake from time to time. I cannot see why that should be more expensive than when the police do it. Until such time, therefore, as we see a detailed cost analysis, we should disregard that aspect, particularly as what is being argued is not a matter of finance but a matter of principle and a commission is being set up which must be seen to be strong and independent. "Independent" means, in a proper case, being independent of the police.
The other objection which I understand has some force is that it is said that only the police possess the powers to carry on an investigation of this type. It is said that members of the staff or others who are not in the police who may be required by the commission to conduct the investigation or participate in it do not have the powers of the police. Again, that position should be analysed. Of course they do not have the power of arrest. But under the Bill the commission possesses certain important powers of investigation. If Amendment No. 40 is accepted by the Committee, it will be given further powers. Let me briefly relate those powers to your Lordships.
First, under the Bill the commission can call for documents to be produced—documents which are in the possession of a public body. It can retain those documents and take copies of them. Also, the commission has the ordinary powers of investigation, which perhaps are not legal powers but they allow it to ask questions, to ask people for help and so forth. If Amendment No. 40 is accepted—this is important—the commission will be able to obtain a warrant which will operate against private persons in possession of a document, requiring them to produce that document. More important still, the amendment contains the

1593
suggestion that the power should be given to magistrates to issue a warrant allowing the commission to enter premises, to search for documents, to take possession of them, copy them and so forth. Here perhaps I should correct something I said earlier. I said that Amendment No. 40 also covered the right to question. That right is already in the Bill.
The commission therefore will possess adequate powers for carrying out its investigation and it should have no difficulty in ensuring that the members it appoints to carry out the investigation, and the investigating officer himself, have the sort of experience needed. I suggest therefore that it is essential to give the commission the support of this amendment; that is to say, if it wishes to investigate a matter itself, for one reason or another, it should possess this reserve power to do so without in any way derogating the importance of what the Bill provides in the ordinary case; that is, for the investigating officer to be appointed by a chief of police upon the requirement of the commission. I beg to move.
7 p.m.
Lord Merlyn-Rees: I wish to speak in support of the views of the noble and learned Lord, Lord Scarman. I shall do so briefly because we discussed the matter at Second Reading, and, if nothing else, I hope we can be clearer as to how the system will work. At a later stage we shall deal with the matter of "direct" and "supervise" with regard to the new commission. In the old days, C3 in the Home Office certainly did not "direct" and "supervise" in this sense so it had no great powers to "direct" and "supervise" what the police were doing.
I am sensitive to the views of the noble and learned Lord, Lord Scarman, but the noble Viscount, Lord Runciman, whose report instigated the Bill, said:
"Although the Royal Commission envisage investigations being carried out by a designated police force under the direct supervision of a new review body, that body should not be precluded from recruiting on to its own staff trained investigators who would not necessarily be police officers".
Why not? Given the powers of the new commission, which will be far greater than those of the old C3—this is the new concept of how to deal with miscarriages of justice—why should there not be on the commission trained investigators who would not necessarily be serving police officers? The noble and learned Lord, Lord Scarman, has argued that normally the investigation would be conducted by a police force. There are questions to be answered—perhaps at a later stage—about how investigators would be appointed and how they would be controlled, but I agree that there ought to be reserve powers to provide that they would not necessarily be serving police officers.
Viscount Runciman of Doxford: Before I speak in support of the amendment, which stands also in my name, I have been asked by the noble Lord, Lord Alexander of Weedon, to convey his apologies for not being able to be present this evening due to a speaking engagement which has to have priority. He also asked me to say that he would have spoken in support of the amendment in his capacity as chairman of the
1594
organisation Justice, whose arguments on this very point are well known. I should like to add that the experience of that admirable body, which was of great help to us at the time the Royal Commission was sitting, lends strong support to the arguments in favour of the amendment and the arguments which have been very forcefully and eloquently advanced by the noble and learned Lord, Lord Scarman.
We considered this matter very carefully on the commission and, as I think your Lordships are all aware, we were quite clear that we were not recommending the creation of a kind of Pinkerton's army of police directly employed by the new review authority. We expected (this seems to be common ground) that in the majority— I would be prepared to say the very great majority—of cases the powers which the Bill provides for the review commission to supervise investigations carried out by a police force, and if necessary by a police force selected in effect by the review commission in consultation, as appropriate, with the inspector of constabulary, would be all that would be required to enable the commission to place before the Court of Appeal its conclusions as to whether the Court of Appeal needed to consider whether a miscarriage of justice might have taken place.
I do not have very much to add to the arguments, all of which I endorse, which the noble and learned Lord, Lord Scarman, put before the Committee. I would, however, like to add that unfortunately I was abroad at the time of the Second Reading debate but I read that debate extremely carefully. I understand the concerns which Ministers voiced as to why there are arguments— and, indeed, there are—against giving the new commission this power, but I should like to endorse the view, if anything more strongly than the noble and learned Lord, Lord Scarman, that these fears are groundless.
We on the commission were careful not to attempt to lay down exactly how the new review authority, as we called it, would operate. We thought it was very important that before legislation was introduced there should be widespread consultation with all interested parties so that by the time a Bill came before Parliament all the relevant arguments should have been canvassed by interested parties and by those best qualified to make recommendations as to how the new body could best do the work for which it was to be created. But, as I envisage it, in the rare minority of cases where the review commission—or, in practice, someone who, for the sake of argument, I would call the case controller who will be in charge of looking at a particular case— has reason to think that the interests of justice require that an independent investigator directly employed by the review commission should be put on to a particular investigation, I cannot see an argument against it.
It is quite unrealistic to suppose that that is the thin end of a wedge which would lead to those who staff the new review commission using their own investigators to duplicate, interrupt or impede the normal run of investigations. I envisage the investigators directly employed by the commission only being used—this again is common ground—where there is a particular reason to think that the investigation will be more effectively carried out by that route. The particular cases

1595
that are well documented by Justice, the organisation which the noble Lord, Lord Alexander of Weedon, chairs, show precisely the types of case which in themselves constitute perhaps the most powerful argument for the new commission being given this power.
There are a very small number of cases but they are those—and they will continue in the future to be those— which quite rightly arouse the greatest public concern. It is not simply, as the noble and learned Lord, Lord Scarman, said, that it must be seen that the new commission is independent and can demonstrate its independence in contentious cases of this kind. It is also that the most disturbing cases on record are those where it turns out that a would-be appellant has been serving several years of a prison sentence for a crime which someone else in fact committed. In a small number of cases the reason why it has taken so long to discover that a miscarriage of justice has taken place can be directly traced to the conduct—not necessarily the misconduct, although it may be so—of the police force initially concerned in the inquiry and to what was done or not done when it should have been by that force which led to a conviction at the court of first instance.
Surely that, above all, is what we in this House and in the other place would like to see the new review commission rendering as unlikely as possible in what we all recognise will continue to be an imperfect world. I very much hope that the Government will be willing to recognise the force of the arguments and to accept the amendment.
Lord Rodgers of Quarry Bank: The noble and learned Lord, Lord Scarman, said that there had been so much discussion and debate on this issue that he intended to speak only briefly. But, as always, he did so most persuasively. The question which we must ask ourselves is this. In view of the arguments of the noble and learned Lord, Lord Scarman, the noble Viscount, Lord Runciman, and others who have already contributed to this debate, why in the limited circumstances that they anticipate this different procedure being followed should Ministers so far remain obdurate? We must always hope that the arguments themselves this evening will make the Minister change her mind or, better still, that having taken wise counsel in the interval since Second Reading, she will be able to make an announcement tonight. Were that not to be the case, it is reasonable for us to ask ourselves what is in the minds of Ministers which means that they are unable to make a concession of this kind.
As has been said before in this House, when this Bill was first referred to in the debate on the Address last November, the Home Secretary in another place made it clear that he hoped that it would receive Cross-Bench support. It has received it, but if we are obliged to make concessions to the Minister in so far as the Bill is not quite what others may have drafted, it is reasonable to expect concessions from her in view of the arguments which took place at Second Reading and which we are hearing now.
So what are the objections to this concession, if one can try to read the minds of Ministers? The first one referred to by the noble and learned Lord, Lord
1596
Scarman, is cost. Without in any way seeking to suggest that the Minister has misled the Committee in that respect, would it really be as expensive as has been implied to have this fall-back reserve position? It is reasonable for the Committee to ask, as it was asked at Second Reading, for at least some figures to sustain that argument.
I find it very surprising indeed that some Figuring has not been done within the department about the present cost that falls on the police forces. Indeed, it would be irresponsible not to make some assumption of what an inquiry of this kind would cost in view of the very tight budgets with which most of our police forces work at present. I am not saying that it is possible to give a detailed figure. It would depend on how many inquiries were undertaken. But surely some information must be available from the police forces themselves about the cost which has fallen on them in the past for the Minister to tell the Committee what significant additional costs might be involved if these inquiries were undertaken by the commission.
There is a further point which is relevant to forming any view. If indeed the police forces were relieved of an inquiry from time to time because the commission carried that responsibility itself, surely it would be simply a matter of transferring costs from where they fall now on the police force to the commission, and it would be no more than that. I fully understand that the Treasury is always reluctant to see these sorts of transfers or to admit that they would take place. The Treasury would much rather see the cost of these inquiries lost, as it is lost now, apparently, in the overall cost of the police forces which undertake them. We have a right to ask either for figures or for transparency of some kind if the Minister is seriously to argue that cost is a major consideration, or even a significant one, in ruling out this option.
Beyond the question of cost there are two other factors which may well be in the minds of Ministers. The first is something which is subtle but very real. In the absence of a better description I call it the orthodoxy of government. By that I mean the orthodoxy of all governments and not simply this one. It is what happens when Ministers are required to find a method of following a new course to achieve new objectives. It is always the safe way which is adopted: it is to use the tramlines on which other things have been done in the past. The great advantage of that is that, if criticism were to arise, officials who advised that course and Ministers who adopted it would be able to say, "We simply followed precedent. We followed the practice which has been found adequate before". I believe that an element of orthodoxy has come into this because, if the method indicated in the Bill is followed, the department will at least feel that it has some control and understanding of how the process has been gone through.
The third point is one on which we must all give the Minister the benefit of the doubt in so far as the Minister will say, "We do not know that this procedure will work but we believe it to be the best one". That is a perfectly reasonable position to adopt. But, as I suggested at Second Reading, the Minister does not know whether this procedure is the best one and the House does not

1597
know either. The commission, which has not yet been appointed, cannot know either. It may well be that in the experience of the commission, after perhaps a relatively short period of time, it will take the view— and Ministers may be persuaded by the commission that it is the right view to accept—that, as both the noble and learned Lord, Lord Scarman, and the noble Viscount, Lord Runciman, said, in a very small minority of cases that may be the right course to adopt.
If the Minister and her colleagues genuinely believe that this is the most effective way, will they at least concede that they could be wrong and that the views expressed in this Committee may be the ones which turn out to be right? In those circumstances it would be easy to accept the amendment of the noble and learned Lord, Lord Scarman. All he is asking the Committee to do is to accept a reserve power. It will not often be exercised, but it will be there. I would have thought it very reasonable to ask the Minister to make that one minor concession. Nothing will be lost. There would certainly be no loss of face. Unless we have evidence to the contrary, there will be no significant additional item on the total bill.
7.15 p.m.
Lord McIntosh of Haringey: I support the noble and learned Lord's amendment but I am puzzled at the Government's attitude to this matter at Second Reading. The arguments for this amendment and for an independent power of investigation for the commission have been put with great authority by the noble and learned Lord and the noble Viscount, Lord Runciman, and I do not need to repeat them. But what puzzles me is that in these clauses generally the Government are taking a very sensible and rational line.
In Clause 19 in particular the Government are providing for very wide powers of supervision of investigations by the commission's staff. My noble friend Lord Merlyn-Rees teased some of those out at Second Reading and he got some very good and satisfactory answers from the Minister. Therefore, the more reasonable the rest of the arguments are—and I believe that they are reasonable—the more this particular restriction sticks out like a sore thumb. I beg the Government to realise that the unanimity of view which has been expressed, and in particular the evidence from the chairman of the Royal Commission, means that it would be perhaps a small step for the Government, but quite a big one in asserting the independence of the new commission, if they were to accede to this amendment or to something very like it.
Baroness Blatch: The noble and learned Lord, Lord Scarman, who has a reputation second to none as a guardian of justice, has introduced an interesting and stimulating debate on one of the most important parts of the Bill. Two propositions have come through very strongly in all the debates here and in another place on investigations by the commission: first, that police forces have played a valuable and respected role in uncovering evidence of wrongful convictions and that the commission must be able to draw on that expertise,
1598
skill and commitment; secondly, that there must be a strong, independent element in miscarriage of justice investigations, which should not simply be handed over to police forces to carry out alone. The Government agree with both these propositions. There is no great gulf between any of us on the principles involved here. The question we are debating is how best to achieve that balance of police work and independent skills and resources.
In drawing up the Bill we thought a lot about that balance, and we have listened carefully to what has been said about it in debates both here and in another place. Where we have concluded that improvements could be made, we have introduced amendments, and I have tabled further amendments to do with the commission's investigations, to which we shall come later.
Words like "investigation" and "inquiries" can have a very wide meaning and, with your Lordships' permission, I should like to go over in some detail what the commission's investigations are likely to entail in practice. In some respects investigations of this kind are similar to other criminal investigations; in some respects they are different. One difference is that a good deal of the investigation in a possible miscarriage of justice case is likely to be about re-evaluating material which is already available, or which has recently become available, rather than looking for new material. This important work of gathering and analysing the available evidence is something the commission can be expected to do itself and it will have substantial resources to enable it to do so. Under Clauses 16 and 17 it has the power of access to all the relevant documents and other material including physical evidence. It does not need to look to a police force or to anyone else to achieve that.
The commission may decide, after an initial look at a case, that some fresh inquiries are needed. Scientific tests, or the opinion of a psychiatrist or psychologist, may be called for. In a fraud case there may be reason to engage an accountant to apply his expertise to a trial of financial dealings. All this the commission will be able to do without going through a police force or any other intermediary.
Another need which commonly arises in such cases is for new witnesses to be interviewed or old witnesses to be re-interviewed. Here, as I believe has consistently been recognised on all sides during the passage of this Bill, there is advantage in the commission being able to harness the skills and experience of detective officers employed by police forces. There are other ways in which such officers could be of considerable assistance to the commission: the tracing of witnesses who may be hard to locate, particularly in older cases; the search for evidence that may either support or contradict what is asserted by a witness; questions of who could have seen or done what at which particular times; the use of sophisticated police technology and databases. Those are all matters on which experienced, trained detectives with up-to-date experience of a wide range of investigations will be ideally placed to assist the commission in its task.
Clauses 18 and 19 of the Bill exist to enable the commission to harness that assistance. I would understand better the criticism that has been made of

1599
those clauses if they merely required the commission to hand over its examination of the case to a police force and wait for the investigators to report. However thoroughly and conscientiously the investigators applied themselves, that might well not inspire sufficient public confidence in the conduct of the case as a whole. But that is emphatically not the approach in the Bill. To begin with, the commission will have the power to approve or to veto the choice of investigating officer; to require that officer to be appointed from an outside force; and, if your Lordships agree to amendments which I have tabled in order to strengthen the commission's powers still further, it will have the power to approve or to veto the choice of force if it has stipulated an outside force.
The commission's powers go further, however. The Bill empowers the commission to direct what inquiries should be made, and to supervise the conduct of those inquiries. What will those powers mean in practice? The answer is that they can be exercised as flexibly as the commission sees fit. The commission may direct, for example, that a particular witness be located and interviewed, and that particular questions be put to that witness. By way of supervision, a member of the commission or of its staff will be able (if they see fit) to attend such an interview; to accompany the investigating officer to an examination of the scene of the crime; to hold a conference with the officers at which the progress of the investigation is reviewed and its emerging results discussed—indeed, as the Bill precisely says, to take
"any steps which they consider appropriate"
for supervising the inquiries which are being made on the commission's behalf.
Those are entirely new powers in miscarriage of justice cases. For sound constitutional reasons, it is not open to the Home Office to take such an active part in investigations. But no such constraints need bind the commission, and that is one of the major advances secured by this Bill, powerfully reinforcing the excellent work done by police detective officers with a new, independent oversight which will both add a fresh dimension to the pursuit of these inquiries and at the same time promote the confidence which all of us wish to see.
I find it hard to see that such an approach will not meet the needs of almost any investigation which the commission might wish to undertake where detective work is called for. Nevertheless, it would be wrong to deny the possibility that, in some exceptional circumstances, the commission might itself wish to take a statement from a witness privately, for example. There are good reasons why in the general run of criminal cases we look normally to trained police officers to undertake the questioning of witnesses especially where there may be any possibility of the witness incriminating himself or another person. Nevertheless the commission will have among its members and staff people such as lawyers and those with investigative experience who could properly undertake such a task if it became necessary; and nothing in the Bill precludes the commission from proceeding in that way. That is
1600
already clear from Clause 20 in the Bill as it stands; but in order to put the matter absolutely beyond doubt, I have tabled Amendments Nos. 43 and 44.
I have sought to explain that the powers in Clauses 18 and 19 are an important part, but only a part, of the means which the commission will have at its disposal to investigate cases. The powers to appoint an investigating officer, and then to supervise and direct that officer's inquiries, are necessary because, without them, the commission would not be in a position to harness police expertise to its advantage. But that, as I have explained and as Clause 20 makes clear, does not preclude the commission from pursuing other means of investigation according to the needs of the case, and doubtless in many cases it will wish to use a variety of means to examine the matter. With respect to the noble and learned Lord, Lord Scarman, it is unnecessary to provide for the commission to appoint its own staff as investigators, because that is what its staff are there to do. If the commission needs to look for assistance outside itself and other than under the terms of Clauses 18 and 19, then it will need to contract the service required and will be able to settle the terms of the assistance in the contract.
The noble and learned Lord, Lord Scarman, raised a number of other points. He said in particular that other investigators would not have police powers. As the noble and learned Lord said, the commission has important powers of its own but, for reasons that I shall explain when we come to Amendment No. 40, I doubt whether it is desirable to confer coercive powers on people other than police officers when those can be exercised by the police themselves. Indeed, such powers are not often needed in miscarriage of justice cases.
The noble Lord, Lord Merlyn-Rees, and the noble Viscount, Lord Runciman, referred to having trained investigators on the commission's staff. The Government intend that there should be three or four people with investigative experience on the commission's staff. Therefore, we see no reason why they should not be, for example, police officers on secondment; but we believe that such people would be best used in assisting the commission to plan, direct and supervise investigations by the police and others rather than conducting investigations for the commission itself.
Reference has been made to rare cases which could require an independent investigator. The police have an excellent track record in investigating alleged miscarriages of justice. The cases of the Birmingham Six, the Guildford Four and the Darvell Brothers are all examples of convictions quashed following referral. Patient, thorough police work turned up the evidence in each of those cases to justify the referral. We are not aware of any case in which an investigation by the police at the Secretary of State's request has been anything less than thorough and effective.
A major change from the current arrangements will be the use of police investigators working under the active direction and supervision of the commission. That, and the power of the commission to insist on an outside force, provides the necessary independent element in such investigations. The difficulty with complex and rare cases is that those are just the cases

1601
in which we need police expertise. Their knowledge is necessary if such cases are to be investigated properly. We believe that, with the supervision of the commission, we are providing the right balance to ensure both the independence and the expertise that is required.
The noble Viscount, Lord Runciman, referred also to cases of a miscarriage of justice attributable to police misconduct. No one denies that there has been misconduct in some original police investigations, but we are not aware of any case in which there has been malpractice when the police have looked into a case again at the request of the Home Office—that is even without the commission's powers to direct and supervise.
Having explained the approach in the Bill in some detail, it is important that I should also make clear what the Bill will not do. The Bill does not provide for the establishment of a sizeable in-house team for the purpose of carrying out the sort of detailed, on-the-ground investigations that are currently carried out in a number of these cases by police forces. There are reasons both of practicality and of principle for our decision not to put forward such a proposal.
The advantage of the approach in the Bill is that detective officers based in police forces can, in effect, be co-opted to work for the commission but on a flexible basis. Suitable officers can be made available to the commission and then returned to their general duties, with the minimum of delay and disruption at either end of the process. If, by contrast, an in-house team were to be set up, how large would it have to be in order to be both flexible and effective? By what criteria would it be decided that a case should be looked into by the commission's own force of investigators rather than by officers serving in a police force? Would not there be a danger of a two-tier system developing, with applicants whose cases were investigated by the "ordinary" police being left unsatisfied because they had not been attended to by the in-house team? And what would be the effect on police investigators in the cases they were permitted to investigate under the commission's superintendence, knowing that the applicant would be likely to regard that inquiry as a second best option? On top of those difficulties, the creation of an in-house force large enough to make any kind of impression would add significantly to the administrative and resource burden on the commission in terms of accommodation and other overheads, personnel management, training and discipline, whereas under the Bill those responsibilities would remain in police forces which have to exercise them in any case.
There are also good reasons of principle for not divorcing the responsibility for police work in miscarriage of justice cases from criminal investigation generally. If we were to do that, I believe we should be sending entirely the wrong message to police forces. We should be saying to the police service, "Your job is to investigate the original offence as well as you can and not to worry too much about what happens after that. If something has been missed or gone wrong, whether it was your fault or not, don't worry. It is not your responsibility to help sort it out, although we may allow you to try your hand at some of the more routine cases".
1602
We must ask ourselves the question: which approach is most likely to help prevent miscarriages of justice in the future? Is it the approach which shuts police officers off in some of the most important cases, telling them this is a specialist matter and not for them, or is it the approach in the Bill whereby detective officers from police forces can work closely as part of a team with the independent members and staff of the commission, benefiting from their guidance and supervision and learning lessons which they can apply in their general criminal work?
None of that is to deny that the commission will benefit from having some in-house investigative expertise. We intend to provide for that. Experienced investigators employed directly by the commission will help it to make the best use of its powers and facilitate communication between the commission and outside investigators, working, as it were, on the nitty-gritty of inquiries on the ground. But once again we have to confront the question of what will best serve the commission's purpose. Is it to have a group of experienced investigators who are for ever away from the commission, buried in detailed inquiries in one or two cases, or will their contribution be more effective if, as we propose, it takes the form of advice to the commission on a wider range of cases according to the needs and priorities of the moment?
I am grateful to the noble and learned Lord, Lord Scarman, for initiating this debate on one of the most important facets of the Bill. I have sought to explain how the Bill empowers and enables the commission to investigate cases by a number of different means, and I have explained why we do not believe a sort of shadow police force located in the commission would be either practicable or helpful to the cause of preventing and remedying miscarriages of justice.
Costs were mentioned by the noble Lord, Lord Rodgers of Quarry Bank. As I said in a previous debate on the Bill, it is difficult to estimate the cost of an in-house investigative team as it is difficult to establish its size or training needs, but it is clear that it would add to the commission's costs in terms of staffing, accommodation and training if it were to take on its own staff. So whatever the costs, and whatever concerns the noble Lord has, we know that that proposal would add to those costs.
The team that was taken on directly would have to be given extensive training in investigative work and kept in touch with any new developments. That training would have to be given by the police. The commission would have to pay the cost of the training, while the training would place an extra burden on the police. It would not be as cost effective as using police officers who would receive that training as part of their job.
The noble Lord, Lord Rodgers, said that it is just a matter of transferring costs from the police to the commission: we just hand one job over to the other body. It is not as simple as that. Where police forces investigate, they use officers whose training, accommodation and other such costs are already paid for as part of the force's general costs. An in-house team in the commission would require all of those costs to be borne afresh, in addition to the costs of the police forces.
The noble Lord, Lord Rodgers, said also that the Government are merely following orthodoxy. The noble Lord is known for his hostility to government and

1603
government thinking, but that is a remarkable statement given that the Bill gives the commission powers to direct and supervise police officers, which the Home Office does not have now and which have not existed before in these miscarriage of justice cases.
I hope very much that as a result of these explanations the noble and learned Lord will not consider it necessary to press his amendment. However, if he were to do so, I have to say that it would make both an unnecessary and a misleading addition to the Bill, and I therefore cannot advise the Committee to agree with it.
Lord Scarman: With much of what the Minister has said I am sure that all Members of the Committee will agree. She made a speech in which she included many of the Bill's virtues, and she has shown herself—I hope that it adequately represents the spirit of the department— anxious to conciliate and to meet our various points. Yet why does not she trust the commission with this reserve power? We are not shutting out the police from the investigation into miscarriages of justice; on the contrary, we are saying that almost every case will be examined by the police, some of them supervised and directed by the commission, some of them without that need.
No one here supporting the amendment, I venture to say, is suggesting that we come here because we do not trust the police. Of course we trust the police. They have done extremely well. One has only to think of some of the miscarriage of justice cases which have been revealed and dealt with. They were the consequence of admirable police inquiry. What we are saying is that we believe that the commission should have this reserve power. We are not suggesting that it should be used every day of the week or every day that there is a case referred to it which requires some investigation. What we are saying—one cannot possibly visualise what will happen until it happens—is that there may be cases which have a tremendously disturbing effect upon the public, in which suggestions are made that the police have been guilty of this, that or the other misconduct. The police of course strongly deny that.
Why cannot we trust the commission, which is supposed to be a strong and independent body, to say, "Well, this is the sort of case in which, to satisfy public opinion, we will depart from our normal practice and ourselves investigate"? Surely the commission has the judgment, strength and independence to conduct an investigation, to appoint its own investigating officer and, in such rare cases, to do so without the aid of the police. It is important not only that justice should be done but, in cases of alleged miscarriages of justice and so forth, that justice should be seen to be done to the satisfaction of the public. One does not want to go into the detail.
The noble Baroness, the noble Lord, Lord McIntosh, and I have pointed out the many ways in which the Government have come forward with sensible suggestions and sensible amendments. Cannot they see that they are not introducing anything but what is exceptional? Surely the body, coming into existence as a result of a strong recommendation from the Runciman Commission, can be trusted to handle this reserve power so that in the unusual case, which I fear sooner or later will arise, the public can see that there has been an absolutely
1604
independent inquiry—not because the police are dirty beggars but because the police are, so to speak, possibly an interested party.
I was delighted with much of the noble Baroness's speech. I liked its sentiments, its manner, its understanding and its approach. However, we have one point on which, flattered as I am by the approach of the noble Baroness, I regret to say I do not feel likely to give away.
Before I sit down I wish to associate myself with what was said by the noble Viscount, Lord Runciman, about the Justice written observations on the amendment. I commend the whole of it to the attention of the Ministry. I am afraid that I now beg to move the amendment—
Baroness Blatch: I wonder whether before the noble and learned Lord sits down he will allow me to pose one question. In saying that we need a reserve power in the Bill, does he agree that Clause 20 contains a reserve power for the commission to make inquiries of its own without the need for this present amendment? Does he also agree that even where the police are carrying out inquiries it is possible to accompany them, to question independently and to carry out as much of the independent inquiry as is necessary to make sure that people are not left believing that the police are investigating themselves alone and unaided by the commission?
Lord Scarman: Yes, that power is given to the commission but why cannot the Minister take her courage in her hands, go the whole way and say that in the exceptional case which demands it the commission is empowered to go the whole way in the investigation of the matter? To give it this power, that power and the other power is marvellous but we are dealing with an exceptional situation. It is exceptional in the sense that we may have to wait a long time before it ever arises but I am afraid that it will arise one day. Although I am a very old man, I am quite certain of that. I beg to move.
7.45 p.m.
On Question, Whether the said amendment (No. 32) shall be agreed to?
Their Lordships divided: Contents, 68; Not-Contents, 76.

Division No. 2

CONTENTS

Addington, L.

Elis-Thomas, L.

Airedale, L.

Farrington of Ribbleton, B.

Alexander of Weedon, L.

Fisher of Rednal, B.

Archer of Sandwell, L.

Gallacher, L.

Barnett, L.

Gladwin of Clee, L.

Birk, B.

Gould of Potternewton, B. [Teller]

Blackstone, B.

Carmichael of Kelvingrove, L.

Graham of Edmonton, L. [Teller.]

Carter, L.

Craigavon, V.

Greene of Harrow Weald, L

Dean of Beswick, L.

Hamwee, B.

Dean of Thornton-le-Fylde, B.

Harris of Greenwich, L.

Desai, L.

Haskel, L.

Diamond, L.

Healey, L.

Donoughue, L.

Hilton of Eggardon, B.

Dormand of Easington, L.

Hollis of Heigham, B.

Dubs, L.

Howell, L.

1605

Hughes, L.

Richard, L.

Irvine of Lairg, L.

Rodgers of Quarry Bank, L.

Jeger, B.

Runciman of Doxford, V.

Kilbracken, L.

Russell, E.

Kirkhill, L.

Scarman, L.

McIntosh of Haringey, L.

Seear, B.

Mallalieu, B.

Sefton of Garston, L.

Masham of Ilton, B.

Shepherd, L.

Mason of Barnsley, L.

Sherfield, L.

Merlyn-Rees, L.

Stoddart of Swindon, L.

Milner of Leeds, L.

Templeman, L.

Monkswell, L.

Tordoff, L.

Monson, L.

Turner of Camden, B.

Morris of Castle Morris, L.

White, B.

Nicol, B.

Williams of Crosby, B.

Plant of Highfield, L.

Williams of Elvel, L.

Prys-Davies, L.

Williams of Mostyn, L.

Redesdale, L.

Winchilsea and Nottingham, E.

NOT-CONTENTS

Addison, V.

Inglewood, L. [Teller.]

Ailsa, M.

Jenkin of Roding, L.

Aldington, L.

Johnston of Rockport, L.

Allenby of Megiddo, V.

Kenilworth, L.

Annaly, L.

Kingsland, L.

Astor, V.

Lane of Horsell, L.

Balfour, E.

Leigh, L.

Beloff, L.

Lindsay, E.

Blaker, L.

Long, V.

Blatch, B.

Lucas, L.

Boardman, L.

Lyell, L.

Brabazon of Tara, L.

McColl of Dulwich, L.

Braine of Wheatley, L.

McConnell, L.

Brougham and Vaux, L.

Mackay of Ardbrecknish, L.

Butterworth, L.

Mackay of Clashfern, L. [Lord Chancellor.]

Carnock, L.

Chalker of Wallasey, B.

Marlesford, L.

Chesham, L.

Miller of Hendon, B.

Coleraine, L.

Moyne, L.

Colwyn, L.

Newall, L.

Courtown, E.

O'Cathain, B.

Craig of Radley, L.

Oxfuird, V.

Cranborne, V. [Lord Privy Seal.]

Peyton of Yeovil, L.

Rankeillour, L.

Crathorne, L.

Rawlings, B.

Cumberlege, B.

Renwick, L.

Dilhorne, V.

Rodger of Earlsferry, L.

Dixon-Smith, L.

Seccombe, B.

Downshire, M.

Sharples, B.

Dundonald, E.

Shaw of Northstead, L.

Dunrossil, V.

Skelmersdale, L.

Fraser of Carmyllie, L.

Stanley of Alderley, L.

Hacking, L.

Stewartby, L.

Harding of Petherton, L.

Strathclyde, L. [Teller.]

Henley, L.

Thomas of Gwydir, L.

Hogg, B.

Torrington, V.

HolmPatrick, L.

Trumpington, B.

Hooper, B.

Vivian, L.

Howe, E.

Westbury, L.

Resolved in the negative, and amendment disagreed to accordingly.
7.53 p.m.
Baroness Blatch Baroness Blatch moved Amendment No. 33:
Page 14, line 38, leave out ("such other police force as the chief officer thinks fit") and insert ("another police force selected by the chief officer").
The noble Baroness said: In moving this amendment, I shall speak also to Amendments Nos. 35 to 38 and I suspect that the noble Lord, Lord McIntosh, will address his Amendment No. 34.
Some concerns were expressed during Report and Third Reading of the Bill in another place that the commission's powers under Clause 18 would be insufficient to enable it to prevent the situation from arising where two forces would be mutually investigating one another on behalf of the commission. It was suggested, for example, that the commission could decide to look into a particular West Midlands case and in issuing a requirement to the chief officer of that force to appoint an investigating officer require him to bring in someone from another force. The chief officer of the West Midlands force could then appoint an officer from the West Yorkshire constabulary. That might be undesirable if the West Midlands force was already investigating a West Yorkshire case for the commission. Although such a scenario seems a little improbable, not least because our current experience would suggest that an outside force is needed in relatively few cases, we nevertheless think it best to enable the commission to prevent it if it thinks fit. Amendments Nos. 33 and 35 to 38 therefore empower the commission to approve or disapprove the outside force—or, in the case of an offence investigated originally by another public body, the outside public body—to be brought in.
The amendment to the amendment tabled by the noble Lord, Lord McIntosh of Haringey, would have the effect of giving the choice of outside force to be brought in to the inspectorate of constabulary. This would represent an entirely new role for such inspectors and one which would fall outside their existing remit. Inspectors of constabulary play no part in allocating people to operational duties. The Government believe that it would be wrong to add such a task to their responsibilities. I have to say to the Committee that we cannot therefore accept the noble Lord's amendment. I beg to move Amendment No. 33.
Lord McIntosh of Haringey Lord McIntosh of Haringey had given notice of his intention to move, as an amendment to Amendment No. 33, Amendment No. 34:
Line 2, leave out ("chief officer") and insert ("Inspector of Constabulary").
The noble Lord said: The Minister will be aware that I tabled Amendment No. 34 before she tabled her Amendments Nos. 33 and 35 to 38. Therefore, whatever may be the defects of trying to extend the role of inspectorate of constabulary, I hope and believe that the purpose of my amendment is the same as government Amendment No. 37, which I take to be the really important amendment in this group. I am grateful to the Minister for the amendment and for the assurances that she has just repeated that the commission will have the power to disapprove the selection of another police force by the originating police force. To that extent the need for my amendment is less than it would otherwise have been.
However, the route seems an awfully long way round. The originating police force has a choice in the matter but if either the originating police force or the commission thinks it is appropriate to go elsewhere the originating police force must then make its choice and the commission may then refuse that choice and make another choice. The purpose of giving the role to the

1607
inspectorate of constabulary was deliberate. In general, nobody outside the police service knows what is the availability of resources in different police forces. The Government are now proposing that the commission shall embark on a trial and error supposition. For example, the West Midlands force says that it wants the job to be done by West Yorkshire; the commission says that it does not want that to happen and that its choice is the Devon and Cornwall constabulary. The originating police force can then say that it does not want the job done by Devon and Cornwall but by another force. At some stage a decision must be made as to who is available and suitable to do the work. It seemed to us that it was not a very great extension of the inspectorate's role to make sure that the choice was made within the police service but not, as is agreed to be undesirable, by the originating police force.
However, those are relatively minor matters. In the circumstances, it is not appropriate for me to move Amendment No. 34 as an amendment to Amendment No. 33.
Lord Harris of Greenwich: I am glad that the noble Lord, Lord McIntosh, takes that attitude because although I share most of his views on the Bill I should not have been happy about accepting his amendment. Inspectors of constabulary have entirely different responsibilities. In my view acceptance of the amendment would have created a high degree of confusion. The inspectorate is not staffed to carry out such responsibilities. It has area and subject responsibilities and it would feel a great deal of tension were the responsibility proposed in the amendment to be passed to it. I am sure that there would be very little enthusiasm within the inspectorate for carrying out those responsibilities.
The noble Lord has indicated that he does not wish to move his amendment and therefore I say no more about it save that it would be an error to have entrusted responsibilities of this sort in the way the noble Lord proposed.
[Amendment No. 34, as an amendment to Amendment No. 33, not moved.]
On Question, Amendment No. 33 agreed to.
Baroness Blatch Baroness Blatch moved Amendments Nos. 35 to 38:
Page 14, line 44, leave out ("such police force, or in such") and insert ("a police force, or in a").
Page 14, line 46, leave out ("as the appropriate person thinks fit") and insert ("selected by the appropriate person").
Page 14, line 48, leave out from ("direct") to end of line 2 on page 15 and insert ("—

(a) that a person shall not be appointed, or

(b) that a police force or other public body shall not be selected,

under subsection (4) or (5) without the approval of the
Commission.").
Page 15, line 11, leave out from ("appointed") to end of line 13 and insert ("without the approval of the Commission.").
On Question, amendments agreed to.
Clause 18, as amended, agreed to.
8 p.m.
Clause 19 [Inquiries by investigating officer]:
[Amendment No. 39 not moved.]
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 40:
Page 15, line 19, at end insert:
("(2A) The Commission may at any time, if they think there is good reason to do so, authorise an investigating officer directly appointed by the Commission, on producing (if so required) evidence of his authority, to require any person to produce to him forthwith any document in his custody or power which the investigating officer may reasonably require.
(2B) A justice of the peace may issue a warrant under this section if satisfied on information on oath given on behalf of the Commission, or by a person directly appointed by the Commission, to exercise powers under this under this Part, that there are reasonable grounds for believing that there are on the premises documents the production of which has been required, and which have not been produced in compliance with this requirement.
(2C) A warrant under this section shall authorise the investigating officer together with any other person named in it—

(a) to enter the premises specified in the information, using such force as is reasonably necessary for the purpose;

(b) to search the premises and take possession of any documents as appear to be the documents mentioned in subsection (2A) or (2B), as the case may be, or to take, in relation to any such documents, any other steps which may appear to be necessary for preserving them or preventing interference with them;

(c) to take copies of any such documents; and

(d) to require any person named in the warrant to state where they may be found.

(2D) Any documents of which possession is taken under this section may be retained for as long as is reasonably necessary.
(2E) If in the case of a warrant under subsection (2B) the justice of the peace is satisfied on information on oath that there are reasonable grounds for believing that there are also on the premises other documents relevant to the investigation, the warrant shall also authorise the actions mentioned in subsection (2D) to be taken in relation to all such documents.
(2F) A warrant under this section shall continue in force until the end of the period of one month beginning with the day on which it is issued.
(2G) Any person who intentionally obstructs the exercise of any rights conferred by a warrant issued under this section or fails without reasonable excuse to comply with any requirement imposed in accordance with subsection (2C) (d) is guilty of an offence and liable to a fine.
(2H) In this section "document" includes information recorded in any form.").
The noble Lord said: I believe that I should move the above amendment because it was referred to at some length in the debate on Amendment No. 32. Its purpose is to show that it is perfectly possible to give an investigating officer directly appointed by the commission—and I still think that we may have to return to the matter at a later stage because, as the Minister rightly said, it is one of the most important issues in the Bill—the power which is necessary, and no more than that, to carry out investigations which would otherwise be carried out by the police or by other public bodies with investigative powers.
I move the amendment knowing that I shall withdraw it because of what the Minister said as regards Amendment No. 32. She said that she found the powers provided in Amendment No. 40 to be too coercive. I was puzzled by that; I did not feel that we had gone any further than the powers which are provided for many investigators who are not part of the police—for example, the DTI investigators or those from Customs and Excise. Indeed, there are many other examples of

1609
comparable powers. It would be useful to have on the record the Minister's arguments so that we can combat them when we return to the issue of independent investigation at a later stage. I beg to move.
Lord Merlyn-Rees: Perhaps I may use the occasion to raise a matter which has been discussed tonight and which no doubt will be discussed again. I noticed that my noble friend used the word "coercive". I was very pleased both at the earlier stage of the Bill and tonight with the words that the Minister used as regards "direct" and "supervise"; indeed, they are very powerful words. But I do not really know what they mean. I do know that C3 did not direct or supervise.
Let us suppose that the West Yorkshire police are asked or appointed to carry out an inquiry, and someone in the commission is to supervise them as regards what they are doing. If the exercise is taking place in the Midlands, does it mean that someone from the commission moves to the area and asks "What have you done today? Have you looked into this?, followed by, "Because I have read the papers, I direct you to go and have a look at what is going on over there", and then supervises the proceedings? In other words, that person asks later, "What have you done? Have you carried out my instructions?"
I genuinely do not understand what the words "supervise" and "direct" mean in that respect. As I said, they are most powerful words. Perhaps we can use this occasion to clarify their meaning.
Lord Rodgers of Quarry Bank: In view of the remarks made by the noble Lord, Lord Merlyn-Rees, I should like to make a contribution. I am very glad that the noble Lord, Lord McIntosh, has moved the amendment so that we may explore and illustrate how the principle of an in-house investigating team could work. I return for a moment to an earlier discussion. I must say that I find it difficult to understand why, under the terms of the Bill, the commission shall be empowered to employ police officers to supervise an investigation but not be empowered to employ those who carry out the investigating. That is exactly the provision in the Bill as drafted.
I was grateful to the Minister for spelling out in a great deal more detail how the process would work. In fact, she reassured me in a number of respects. But, nevertheless, given the Minister's argument for flexibility, I believe that the terms of the amendment where it says that the,
"Commission may at any time, if they think there is good reason to do so",
set out exactly the sort of tone which would be reflected in the provisions of the Bill.
At one stage in our previous discussion—and I am sure that I recall this correctly—the Minister said that we must ask the question: what best suits the commission's purpose? Of course, the Minister is right to ask that question, but I believe that what best suits the commission's purpose is for the commission to decide. The argument that we had earlier, and to which the amendment refers, is whether this place, or more particularly the Government, or, indeed, the commission
1610
should decide what best suits the commission's purpose in achieving the Bill's objectives. The noble and learned Lord, Lord Scarman, asked why we could not trust the commission. That is a most important question. If this place cannot trust the commission, how can we expect the commission to be trusted by the public once it has been established?
Baroness Blatch: The amendment would give sweeping powers of unprecedented scope for the commission and its agents to enter premises and search for and remove documents. Although apparently modelled on provisions in the Companies Act 1985, the present amendment goes far wider than the powers in that Act, which relate to very specialised offences and circumstances.
Parliament has rightly been cautious about extending invasive and coercive powers of regulation and investigation. It has insisted that there should be a genuine need which cannot be met by less draconian means; that there should be strict control over who can exercise such powers and in relation to what kinds of material; and that there should be sufficient safeguards and assurances of accountability. I have to say that I am doubtful that the present amendment satisfies any of those important conditions.
The powers in the Companies Act are there because of the special nature of the investigations involved and the special position of those being investigated. The powers relate only to material sought in connection with a limited range of financial offences which it would be exceptionally difficult to prosecute without unusual powers to obtain evidence of the trail of transactions involved. By contrast, the present amendment would extend similar powers to the commission in relation to any material whatsoever across the whole range of its cases, however great or small, and whatever the nature of the matter being investigated.
Further, the amendment appears to enable the commission to appoint anyone it likes to exercise those powers, even in the case of the first subsection, without applying for a justices' warrant. No indication is offered as to who might be an appropriate person, or what qualifications or standing the commission or, indeed, the justices should look for. It is difficult to see how accountability for the exercise of those invasive powers could be effectively maintained in those circumstances.
Powers of entry and search, especially when, as here, they may be exercised against private citizens in their homes, are normally confined to police officers, for very good reasons to do with training, discipline and public accountability. Even when it is necessary for the powers to be exercised by someone with special professional knowledge, there is generally provided the added safeguard—as in the Companies Act—that that person should be accompanied by a constable. The amendment, on the other hand, does not even make that requirement.
Amendment No. 40 also sets up a dangerous anomaly. It attaches no restrictions to the type of material that could be seized, including material which is unlikely to be admissible in evidence, such as that protected by legal privilege—that is, communications between a lawyer and his client in relation to legal advice

1611
requested by and provided to that client. Moreover, the conditions for obtaining access to sensitive material under the amendment are less stringent than those set out in Schedule 1 to the Police and Criminal Evidence Act 1984. The amendment would, therefore, impose fewer safeguards and restrictions on those powers of investigation than apply to those exercised by the police. We cannot sensibly have two standards applying at different stages of the criminal justice process.
No doubt the proposed amendment could be tempered to meet those points if it were thought that the commission needed additional powers of that kind, but I have heard nothing to suggest that it does. I am not aware of any case in the experience of the Home Office in which existing means of investigation—including the exercise of normal police powers—have proved insufficient to locate documents necessary to consideration of a case. The Royal Commission rightly recognised this, and recommended that the need for extra powers should be kept under review—not that they should be provided on the off-chance they might be needed one day.
The noble Lord, Lord Merlyn-Rees, posed an important question—namely, whether the commission could go to the Midlands—in trying to tease out precisely how "direct" and "supervise" would happen in practice. First, I should say, yes they can. What we would envisage in practice is that the initial prescriptive direction would come from the commission to the investigator of a particular case. If the commission at any time was concerned about the way that investigation was taking place and if it was unhappy about the service it was receiving from either an individual police officer or a police force, it is within the powers of the commission to call that person or indeed the force off the investigation, but it is also within its powers to accompany a police officer during an investigation and to direct the questions that are asked of a particular person. All the safeguards are there for the commission to satisfy itself that the police service is providing the service which is prescribed in the first place by the commission. I think the noble Lord, Lord Merlyn-Rees, together with myself, would accept that the police in almost all cases will deliver a quality service to the commission. But, should it not in a particular case, then the commission has powers to do something about that.
Lord McIntosh of Haringey: That was a fascinating answer and I shall read it with great care. I am temperamentally sympathetic to the idea that we should be cautious about extending powers of entry and police powers. Therefore, quite apart from the fact that the Committee decided earlier not to give the commission its own investigative powers, I believe the Minister is right as regards the extent to which we propose to extend such powers in this amendment. I was encouraged to hear her say that no doubt a more modest amendment could be devised. Those were not her words but I think that that was what she was driving at. If, as I hope and believe, we persuade the Government or the Chamber that the commission should have its own investigative powers, I am sure that we can come up with a series of powers
1612
which would be appropriate without being unduly coercive, as I am now convinced the present amendment appears to be. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
8.15 p.m.
Baroness Blatch Baroness Blatch moved Amendment No. 41:
Page 15, line 45, leave out ("and opinions obtained, and any reports commissioned,") and insert (", opinions and reports received by him").
The noble Baroness said: I spoke to Amendment No. 41 with Amendments Nos. 27 to 30. I beg to move.
On Question, amendment agreed to.
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 42:
Page 15, line 47, at end insert:
("( ) The Commission shall issue a Code of Practice giving guidance on—

(a) the duties of an investigating officer,

(b) the nature and extent of the supervision of inquiries to be exercised by the Commission, and

(c) the general conduct of inquiries.").

The noble Lord said: Amendment No. 42 was intended to plug another of the possible holes in the argument for Amendment No. 32 for investigative powers for the commission. However, looking at it, despite the earlier decision of the Committee, I rather think that Amendment No. 42 stands in its own right and deserves the support of the Committee regardless of what we said previously. My noble friend Lord Merlyn-Rees referred to the difficulty of understanding what is meant by direction and supervision. I am sure he is right. Inevitably, if a distinguished ex-Home Secretary finds difficulty with that, I think the commission and those responsible will be feeling their way as regards the quite wide powers of direction and supervision of investigations which, as the Minister reminded us, have never been held before by C3 for perfectly good constitutional reasons.
Therefore it seems to me sensible that we should attempt to codify the extent to which there should be rules for an investigating officer, and the degree of supervision and direction which is to be imposed, because if we are feeling our way in these matters and if these powers are as extensive as they appear to be, surely it is desirable that as soon as possible—perhaps not immediately; we do not set down any date for the introduction of a code of practice—they should be set out in a form which is available to the public, the police, the legal profession and, of course, for the commission's own benefit. The analogy we should draw is with the code of practice which the Crown Prosecution Service has published for Crown prosecutors. To that extent, although the original motivation for the amendment no longer exists, I hope that the Government will feel that it has merit in its own right and that the Minister will be sympathetic towards it. I beg to move.
Lord Harris of Greenwich: There is a powerful case to be made for the amendment. I suspect the noble Baroness will say that it is unnecessary on the grounds that the police know perfectly well what their duties are when carrying out investigations of this character. However, a further reason why, in my view, it is desirable is to inform the public of the responsibilities of the police

1613
in matters of this sort. After all, why do we have this Bill? We have the Bill and we will have the commission because of a series of major miscarriages of justice. It seems to me highly desirable that the commission should be in a position to publish some form of code of practice not only for the benefit of the police and for police training, and for other reasons which are special to the police service, but so as to indicate to the general public what sort of service they expect the police to carry out on their behalf. The case for the amendment is, I think, a strong one. Although the noble Baroness no doubt has on her briefing papers at the top left hand corner the word "Reject", I believe that there is a good case to be made for incorporating the proposal in the Bill.
Baroness Blatch: I see the virtue in openness and transparency in the commission's operating procedures, which the noble Lord advanced. The question is whether a statutory requirement in the amendment is either necessary or even helpful. Like other non-departmental public bodies, the commission will be subject to the code of practice on open government and there will therefore be an expectation that it will make available information about its procedures and policies, including those relating to inquiries and investigations.
The amendment seems to me to raise a number of difficulties. It seems curiously circumscribed. By applying only to inquiries under Clause 19, does it imply that clear, transparent policies and procedures are somehow less important in other areas of the commission's work? That seems a very worrying implication.
It is apparent that the code envisaged by the amendment would deal not only with matters of conduct and propriety but also with policy and possibly with efficiency as well. It may not necessarily be most helpful for these very different things to be covered in the same way or in the same document. We must allow the commission a reasonable scope to determine how best, and in what form, to make available information about the way it will carry out tasks which are complex and which will develop over time.
As I said, the commission will be bound by the same principles of openness that apply today in other areas of public administration. Furthermore, the Bill provides for the commission to report annually to the Secretary of State. Its report will no doubt describe the manner in which cases have been investigated over the reporting year. The report will be laid before Parliament and the Chamber will have an opportunity to debate the issues it raises if it so wishes. The commission can be examined by Select Committees of Parliament. The Bill also provides for the commission to keep proper accounts and for these to be audited by the Comptroller and Auditor General and laid before Parliament. Again it will be open to the Chamber and to the Public Accounts Committee to consider the commission's report and accounts. It is hard to see therefore what more is needed to ensure that the commission's methods are open to scrutiny.
I hope that this reassures noble Lords that the commission will be both open about its procedures and properly accountable. I appreciate the spirit in which the amendment was moved but the proposal in it seems to risk
1614
producing a requirement on the commission which is curiously narrow, inflexible and obscure. Despite the fact that I am inviting the Committee to reject the amendment, I believe the answer I have given has intellectual validity.
Lord Harris of Greenwich: I must say with great respect to the noble Baroness that that is a deeply unpersuasive contribution. It seems to me that she read out a speech which she had prepared in advance assuming that the arguments would have a different character to those that were deployed. It is deeply disappointing. I hope that she will think about the matter between now and the next stage of the Bill.
We are talking not about the annual report of the commission which, as she rightly said, may be discussed, considered and debated in Parliament, or the position of the Comptroller and Auditor-General. We are talking about a code of conduct which, in my view, will be of benefit to the police service and to the general public, who would know what the commission expects of the police service when carrying out its responsibilities. That seems to me to be highly desirable. I would find it remarkable were the commission to take the view that that would be in any way damaging to its general responsibilities laid down in this statute.
I hope that the noble Baroness will look at this matter again because she has adopted a position of inflexibility on the amendment, which deserves more consideration than it has so far been given.
Lord McIntosh of Haringey: I, too, found that a very strange answer. My first reaction was that you cannot win. We are accused of being too broad in the powers that we seek for investigation in Amendment No. 40, and then accused of being too narrow in the terms of the code of practice. The Minister appeared to suggest that there were other clauses than Clause 19 which required a code of practice and it was peculiar for this code of practice to apply only to that clause. I do not understand that.
Clause 19 is the clause which describes the inquiries by the investigating officer. Clause 18 deals with the issue of who the investigating officer shall be. Clause 19 lays down all of the complex new issues of supervision of the investigating officer and the investigating force by the commission. Everybody, not least my noble friend Lord Merlyn-Rees but also the Minister herself, has recognised that there is a great deal of new practice to be discovered in the early period of the commission's existence. Therefore, we have set out here relatively simple, but not particularly inflexible, provisions covering, first, the duties of the investigating officer; secondly, and perhaps most important, the nature and extent of the supervision of inquiries to be exercised by the commission; and, thirdly, the general conduct of inquiries. That fits in very well with the content of Clause 19, which is the most important area in relation to which the commission will have to find its feet and learn to operate effectively.
Secondly, as the noble Lord, Lord Harris of Greenwich, rightly said, it is important that the code of practice should be in the public domain and that the commission should have accountability beyond that which is available from other government regulations and other open government provisions in this new area of government activity.

1615
I do not doubt the sincerity of the Minister in saying that there are other ways of achieving accountability to the public. However, a code of practice specifically designed for this purpose, relating to the most difficult areas in the Bill, and put on the face of the Bill is of considerable importance and virtue. Those virtues, and the provisions suggested in the amendment, have a validity which I do not believe has been overturned in any way by the Minister's arguments.
If it were not for the lateness of the hour I would be inclined to seek the opinion of the Committee. As it is, I shall consider what further action is needed on this point. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 19, as amended, agreed to.
Clause 20 [Other powers]:
Baroness Blatch Baroness Blatch moved Amendment No. 43:
Page 16, line 2, leave out from ("steps") to ("which") in line 4.
The noble Baroness said: In moving Amendment No. 43 I shall also speak to Amendment No. 44.
The Bill gives the commission a range of powers to assist in its task, including the important powers in Clauses 18 and 19, to harness the expertise and knowledge of detective officers in the police under its independent direction and supervision. Clause 20 makes it clear that none of the powers specifically conferred on the commission by the Bill are to be read as limiting its ability to take other steps to investigate cases.
The question has been raised in earlier debates in this Chamber and in another place as to whether the commission is invariably bound to undertake inquiries through a police force or other public body. The purpose of the present amendments is to make it clear that the commission is not constrained in this way. The commission will no doubt want to consider very carefully which kinds of inquiry it is best placed to make itself and which are best undertaken by police officers or others on its behalf. There are good reasons why the questioning of witnesses, for example, is normally carried out by trained police officers, but the commission would not want to be precluded from undertaking that task itself in an exceptional case, nor from undertaking other forms of inquiry.
I hope that the amendments are acceptable. I beg to move.
On Question, amendment agreed to.
Baroness Blatch Baroness Blatch moved Amendment No. 44:
Page 16, line 5, at end insert ("including, in particular—

(a) undertaking, or arranging for others to undertake, inquiries, and

(b) obtaining, or arranging for others to obtain, statements, opinions and reports.").

On Question, amendment agreed to.
Clause 20, as amended, agreed to.
Clause 21 agreed to.
8.30 p.m.
Baroness Mallalieu Baroness Mallalieu moved Amendment No. 45:
After Clause 21, insert the following new clause:
("Availability of legal aid
. The Secretary of State shall make regulations to amend the Legal Advice and Assistance Regulations 1989 made under the Legal Aid Act 1988 to ensure that in appropriate cases persons who have been convicted of offences have advice and assistance from solicitors to assist them with any necessary communications with or representations to the Criminal Cases Review Commission.").
The noble Baroness said: The purpose of the new clause proposed in Amendment No. 45 is to ensure that legal aid can be made available in an appropriate case—and I stress that that is to be determined by the Legal Aid Board—to provide legal assistance where it is necessary to a prisoner before he or she applies to the commission and, where necessary, to prepare the submission for consideration by the commission and, where necessary, to assist the prisoner with any subsequent negotiations or correspondence with the commission.
At the Second Reading of the Bill a number of noble Lords, notably my noble friend Lord Mishcon, expressed doubts as to the adequacy of the present legal aid provisions in relation to the new commission. In her reply, the Minister said:
"Legal aid through the green form scheme will continue to be available to those wishing to make representations to the commission—whether initially to the commission or at a later stage in the light of the results of any investigations by the commission—but no additional provision is needed, because once the commission looks into a case it will of course be doing any necessary investigations".—[Official Report, 15/5/95; col. 329.]
I hope to persuade the Committee and the noble Baroness that the provisions of the green form scheme simply do not begin to meet the needs that are likely to arise. Perhaps I may indicate initially, as I am sure the noble Baroness will accept, that it is likely that the majority of people wishing to place applications before the commission are serving sentences of imprisonment. It follows that many of those will be if not illiterate at least not trained lawyers and certainly not skilled in the ways of preparing documents for consideration by legal and other minds.
At present a prisoner in such a position has four possible sources of outside help open to him. He can try to attract the attention of an author or journalist to take up his case, but necessarily those sources are limited. He can try to persuade the solicitor who acted for him, or some other solicitor, to take up his case and act for him. That may be extremely time-consuming. I understand that the solicitor who was involved in the Birmingham Six case estimates that she did approximately one month's work every year for 10 years before the outcome of that appeal. He can try to interest an organisation such as Justice to take up his cause, but a vast number of applications and limited resources mean that only a certain number of those can be adopted.
Alternatively, he can rely on his friends and family to do what they can by contacting Members of Parliament, pressure groups and so on. His last resort is to write. As many Members of this House and another place know, large numbers of letters come from people in custody anxious that their cases should be reviewed.
As I understand it, the green form scheme is available in connection with this commission and would continue to be available following the establishment of the commission. However, there are problems connected

1617
with its use which I ask the noble Baroness to consider. It seems to us on these Benches that the green form scheme simply cannot fit the bill.
First, a solicitor can carry out only two hours' work under the scheme. If he wishes to undertake more than that, he has to go to the Legal Aid Board to ask for grant of an extension. But that has to be done in advance of the work to be done. An extension can be granted only after the green form has been signed by the applicant. That cannot be done through the post; it has to be signed in the presence of a solicitor. Therefore the solicitor must travel to see the prisoner in order to have the form signed. Usually—certainly in my experience as counsel going to interview prisoners, in particular those serving long sentences—the journey time alone to the prison is likely to use up the two hours paid for under the green form scheme.
Unless the solicitor has read the papers before he sees the prisoner, he is in no position to give properly informed advice about the merits of the case. Yet under the green form scheme this can be paid for only up to the two hours' limit and only after completion and signing of the form. In other words, there is a hopeless and inadequate Catch-22 situation. A solicitor needs, first, to be able to give proper advice to the applicant as to whether he has any valid grounds; secondly, if the applicant has such grounds, the solicitor needs to be able to take steps to ensure that the commission has all the relevant papers; and, thirdly, he needs to be able to assist in, perhaps even to draft a precis of, the case which will direct the attention of the staff of the commission to the real point in the case. Unless he is able to do that, it seems to us that cases in which there is a valid point will be missed and a number of cases which ought to have been sifted out by short, proper advice at the outset will burden the commission—unmeritorious cases which a solicitor, acting properly having read the papers, could have advised had no chance.
The staff of the commission will face a difficult, if not impossible, task in sifting the wheat from the chaff. Unlike the solicitor who was previously involved in the case, the staff will come fresh to the case. Without some help in a complex case, they cannot reasonably be expected to go straight to the point made by the complainant.
In many of these cases a number of steps will have to be taken before any meaningful application can be made. For example, if the Government maintain the position expressed last week in Committee that only applications involving fresh evidence or fresh argument are to be entertained, it may be necessary to seek the recollection of counsel and solicitor about what went on at earlier hearings. It may be necessary to obtain transcripts of parts of those earlier hearings. It may be necessary to interview potential witnesses. It is only necessary to say that to see how undesirable it is for witnesses to be interviewed perhaps by friends or associates of someone serving a lengthy prison sentence rather than a solicitor.
All those matters need to be covered properly by legal aid. Extensions of the green form scheme are granted, as I understand it, but area officers vary in their practice. In other words, there is no uniformity. However, the real disadvantage of extensions to the green form scheme are
1618
these. In any case each extension has to be for a specified number of hours and for a specific purpose. That may involve repeated applications for extensions which result, as one knows when seeking a quick extension of legal aid to gain an additional expert's report, in those applications being bogged down in a quagmire of bureaucratic delay which may be entirely understandable.
The green form scheme was designed in essence to allow preliminary work to be done before a full legal aid certificate was granted in appropriate cases or, indeed, to knock on the head those cases which had no chance of success by giving appropriate advice at the outset. Full legal aid will be available, I understand, once the case has been referred by the commission to the Court of Appeal. But it is that initial submission of evidence and arguments to the commission which is likely to be crucial in the decision as to whether a reference is later made. If proper legal assistance is not available in appropriate cases—and I stress that factor; it is a matter for the Legal Aid Board to consider—to provide help where it is needed in those cases, it seems to us that miscarriages of justice could well remain uncorrected because the essential point has not been pin-pointed and may be missed by the commission. For all those reasons, I beg to move.
Baroness Blatch: I am aware of concerns which have been expressed during the passage of the Bill that people who wish to make representations to the commission should be able to obtain legal aid so that they may be advised on their application. The effect of this new clause would be to require the Secretary of State to amend the Legal Advice and Assistance Regulations 1989 which are made under the Legal Aid Act 1988 to ensure that advice and assistance under the green form scheme would be available to applicants wishing to communicate with or to make representations to the commission.
We believe that the proposed new clause is unnecessary. Legal advice and assistance through the green form scheme are available to those who are financially eligible on any matter of English law, with the exception, of course, of certain matters which are specifically excluded from the scheme by regulation. No one is proposing that the relevant regulations should be amended to exclude advice and assistance on making representations to the commission. Therefore green form advice and assistance will be available to people wishing to make such representations provided they satisfy the financial eligibility conditions of the scheme.
Once an application has been made to the commission, it will be for the commission to pursue any inquiries, as I said at Second Reading. The commission will be investigative rather than adversarial. It will not be necessary therefore for applicants to be legally represented while the investigation is in progress.
As the Committee knows, the Bill will allow the commission to disclose the results of its inquiries to applicants so that in the interests of fairness they can make further representations in the light of matters that the commission has found. Again legal advice and assistance through the green form scheme would be available to those eligible to assist them in preparing any further representations that they may wish to make. Legal

1619
assistance will similarly be available to those wishing to make new representations to the commission, even where the commission has previously refused to refer their case.
Where a case has been referred to the courts, the appellant may apply for legal aid for the appeal in the usual way.
The noble Baroness, Lady Mallalieu, referred to legal aid being needed for investigations. I have some doubt about the idea of legal aid being used for extensive investigations, given that this work would overlap with the work for which the commission is set up and resourced to carry out. However, perhaps I may refer to the problems to which the noble Baroness referred. With regard to the two hours' limit on the green form scheme, our belief is that the scheme works effectively in relation to prisoners and other applicants. However, I am willing to look carefully into the difficulties that she outlined in moving her amendment. Perhaps she will allow me to do so without prejudice to the outcome. Perhaps I may consider the matter between now and the next stage of the Bill. Alternatively, no doubt the noble Baroness will present the House with another amendment.
Baroness Mallalieu: I am encouraged by what the Minister said. There are obvious and clear difficulties in using the green form scheme in its present form for such cases. I believe that the noble Baroness understands that there is an advantage, first, in having properly presented cases sent to the commission, and, secondly, in having some filter so that everyone in prison does not immediately seek to obtain their papers and send them. In those circumstances, I beg leave to withdraw the amendment. I look forward to further discussion with the noble Baroness perhaps before the next stage.
Amendment, by leave, withdrawn.
Clause 22 [Offence of disclosure]:
[Amendment No. 46 not moved.]
Clause 22 agreed to.
Clause 23 [Exceptions from obligations of non-disclosure]:
Baroness Blatch Baroness Blatch moved Amendment No. 47:
Page 17, line 39, at end insert:
("( ) in order to assist in dealing with an application made to the Secretary of State for compensation for a miscarriage of
justice,").
The noble Baroness said: The amendment inserts a further gateway into Clause 23 through which the commission may disclose information gathered in the course of its investigations. It empowers the commission to disclose information to the Secretary of State and to the assessor to enable them to deal with an application for compensation when a miscarriage of justice has occurred.
The provision will allow the commission, for example, to give the Secretary of State and the assessor copies of the transcripts of proceedings in their possession and the results of their investigations where relevant so that they do not need to make their own inquiries to obtain the same information before making their respective decisions. I beg to move.
Lord McIntosh of Haringey: This amendment comes in the second of two complex clauses on disclosure, Clauses 22 and 23. Some of the issues of disclosure were
1620
already debated when we considered amendments to Clause 17, although that is a different kind of disclosure. We do not oppose Amendment No. 47, which is an increase in the gateways, as the Minister calls them. To that extent, it is to be welcomed. We shall consider the issue of compensation when we take the Government's Amendment No. 52.
However, I cannot let the amendment pass without saying that the architecture of Clauses 22 and 23 seems curious. Instead of having the presumption of disclosure, we start by defining in some detail in Clause 22 an offence of disclosure. In Clause 23 we go on to consider exemptions from the obligations of non-disclosure. The Minister has given assurances for which we have been grateful that disclosure to applicants shall not be worse than the standard applied by the divisional court in the case of ex parte Hickey and others in November last year. That will be a considerable relief to those concerned with miscarriages of justice. However, it is still the case that the way in which the Bill has been structured means that the presumption is against disclosure, with exceptions for disclosure rather than the other way round. I still find that curious and although I have not been able to work out to my own satisfaction the best way to tackle the matter in the form of amendments—I am not prepared with a whole series of Committee stage debates—it is a matter to which we may wish to return at a later stage. However, as the amendment stands we do not oppose it.
On Question, amendment agreed to.
Clause 23, as amended, agreed to.
Clause 24 agreed to.
8.45 p.m.
Clause 25 [Extension of power of courts in England and Wales]:
Baroness Blatch Baroness Blatch moved Amendment No. 48:
Page 19, line 10, at end insert:
("( ) After that subsection insert—
"(1A) The power conferred on a magistrates' court by subsection (1) above shall not be exercisable in relation to any sentence or order imposed or made by it when dealing with an offender if—

(a) the Crown Court has determined an appeal against—

(i) that sentence or order;

(ii) the conviction in respect of which that sentence or order was imposed or made; or

(iii) any other sentence or order imposed or made by the magistrates' court when dealing with the offender in respect of that conviction (including a sentence or order replaced by that sentence or order); or

(b) the High Court has determined a case stated for the opinion of that court on any question arising in any proceeding leading to or resulting from the imposition or making of the sentence or order."").

The noble Baroness said: With Amendment No. 48 I shall also speak to Amendments Nos. 50 and 51. As many Members of the Committee may know, magistrates in England and Wales may vary, or rescind, a sentence or other order imposed or made by them within 28 days of the sentence or order being imposed or made. Similarly, they may only order a rehearing within 28 days of the date a person is found guilty and only where that person did not plead guilty. There are no such provisions at present in Northern Ireland.
It is generally agreed that the time limit is too restrictive. It means many minor matters go to the higher courts on appeal, or to the Secretary of State to consider a recommendation that the Royal prerogative of mercy be exercised. This is time-consuming and expensive.
The provisions in Clauses 25 and 26 will enable magistrates to reopen a case at any time, and regardless of the original plea, but only where it is in the interests of justice to do so. However, the removal of the time limit means that a case could be reopened by the magistrates after an appeal has been determined in the Crown Court or the High Court (by way of case stated) in England and Wales, or in a county court or the Court of Appeal in Northern Ireland. This cuts across the principle that a lower court should not interfere with the decisions of a higher court. We wish to maintain that principle.
Amendments Nos. 48 to 51 ensure that where the higher court has determined an appeal, whether against sentence, order or conviction, that case cannot be reopened by the magistrates and nor can any sentence be varied by them.
We anticipate that the amendments will affect very few cases. The vast majority of applications for rectification will remain in the magistrates' courts. Magistrates will be able to review a case at any time, in the interests of justice, unless the case has been appealed to a higher court and the appeal has been determined. If an appeal to the higher court is dismissed and the defendant then, for example, Finds evidence that indicates that he was not guilty of his conviction, he should approach the criminal cases review commission for his case to be further considered.
I hope that the House will agree that these are sensible amendments which are necessary to preserve an established principle which will not disadvantage a defendant. I beg to move.
On Question, amendment agreed to.
Baroness Blatch Baroness Blatch moved Amendment No. 49:
Page 19, line 16, at end insert:
("( ) After that subsection insert—
"(2A) The power conferred on a magistrates' court by subsection (2) above shall not be exercisable in relation to a conviction if—

(a) the Crown Court has determined an appeal against—

(i) the conviction; or

(ii) any sentence or order imposed or made by the magistrates' court when dealing with the offender in respect of the conviction; or

(b) the High Court has determined a case stated for the opinion of that court on any question arising in any proceeding leading to or resulting from the conviction."").

On Question, amendment agreed to.
Clause 25, as amended, agreed to.
Clause 26 [Introduction of power in Northern Ireland]:
Baroness Blatch Baroness Blatch moved Amendments Nos. 50 and 51:
Page 19, line 31, at end insert:
("( ) The power conferred on a magistrates' court by paragraph (1) shall not be exercisable in relation to any sentence or order imposed or made by it when dealing with an offender if—

(a) the county court has determined an appeal against—

(i) that sentence or order;

1622

(ii) the conviction in respect of which that sentence or order was imposed or made; or

(iii) any other sentence or order imposed or made by the magistrates' court when dealing with the offender in respect of that conviction (including a sentence or order replaced by that sentence or order); or

(b) the Court of Appeal has determined a case stated for the opinion of that court on any question arising in any proceeding leading to or resulting from the imposition or making of the sentence or order.").

Page 19, line 36, at end insert:
("( ) The power conferred on a magistrates' court by paragraph (2) shall not be exercisable in relation to a conviction if—

(a) the county court has determined an appeal against—

(i) the conviction; or

(ii) any sentence or order imposed or made by the magistrates' court when dealing with the offender in respect of the conviction; or

(b) the Court of Appeal has determined a case stated for the opinion of that court on any question arising in any proceeding leading to or resulting from the conviction.").

On Question, amendments agreed to.
Clause 26, as amended, agreed to.
Baroness Blatch Baroness Blatch moved Amendment No. 52:
After Clause 26, insert the following new clause:
Assessment of compensation for miscarriage of justice
. In section 133 of the Criminal Justice Act 1988 (compensation for miscarriages of justice), after subsection (4) insert—
"(4A) In assessing so much of any compensation payable under this section to or in respect of a person as is attributable to suffering, harm to reputation or similar damage, the assessor shall have regard in particular to—

(a) the seriousness of the offence of which the person was convicted and the severity of the punishment resulting from the conviction;

(b) the conduct of the investigation and prosecution of the offence; and

(c) any other convictions of the person and any punishment resulting from them."").

The noble Baroness said: In speaking to Amendment No. 52 I shall also speak to Amendment No. 68, which is consequential upon it.
From time to time, usually in regard to an individual case, there is some confusion and even misunderstanding among the public as to how the current compensation arrangements work. This modest amendment seeks to cast some light on the matter and to enshrine current good practice into statute.
The Committee will know that it was in this House, during the passage of the Criminal Justice Act 1988, that an amendment was introduced to place compensation for miscarriages of justice on a statutory footing. The wording of Section 133 follows closely that of Article 14.6 of the International Covenant of Civil and Political Rights, ratified by the United Kingdom in 1976. The gist of Section 133—forgive me if I do not cite the exact words—is that compensation for a miscarriage of justice shall be paid: if a conviction is quashed on an out-of-time appeal; or if a conviction is quashed after the case has been referred to the Court of Appeal by the Secretary of State; or if a pardon is granted. In each case it is where new evidence has arisen the non-disclosure of which at an earlier stage is not wholly or partly attributable to the applicant.
The new clause proposed makes no changes to the entitlement to compensation under Section 133. Nor will it, of course, affect our international obligations. What it does is to indicate the main factors which the assessor will take into account. Section 133 extends to Scotland and Northern Ireland where an assessor is appointed on an individual case basis. The current assessor for England and Wales is Sir David Calcutt, QC. Again, this amendment will not affect Sir David's method of work or that of the other independent assessors; it simply places on a permanent footing the approach which he and they take to calculate the amount of compensation payable in any case to which Section 133 applies.
Amendment No. 68 makes a consequential change to the Long Title of the Bill. I beg to move.
Lord McIntosh of Haringey: The Minister was good enough to write to me and to a number of my colleagues about the amendment when she first tabled it. I accept her assurances that it does not affect the scope of Section 133 of the Criminal Justice Act; nor does it affect our obligations under international law. To that extent the amendment is satisfactory.
However, there is more than one aspect to compensation. There is the statutory aspect that is provided under Section 133 and which is compatible with the seventh Protocol for the Protection of Human Rights and Fundamental Freedoms. But there is also the ex gratia part of compensation payments, as outlined in November 1985 by Douglas Hurd when he was Home Secretary. That limits other payments to those cases where there has been a serious default on the part of a member of the police force or some other public authority. That is not statutory. Perhaps Members of this House should have been more on the ball when we considered the Criminal Justice Bill in 1988, but we were not. The result is that part of the compensation process is an executive decision of the type which the European Commission recently criticised. So compensation is of a civil character, and it ought to be determined in accordance with Article 6(1) of the Convention, which states:
"everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law".
Executive decisions of the kind that make up the ex gratia part of the compensation scheme are not covered in that way and may not—I am not saying that they are not—always be impartial and independent. So there are defects in the procedures of the ex gratia part of the compensation system.
There are also defects in the coverage. As I understand it, the ex gratia system does not cover misdirections by trial judges on questions of law. Therefore defendants who have been substantially acquitted on appeal are not necessarily entitled to compensation. In the absence of new or recently discovered facts, compensation is left to the determination of the Home Secretary in accordance with the statement that I quoted from 1985. This situation is not satisfactory. Compensation to those whose convictions were quashed under some of the more famous miscarriages of justice cases is still under negotiation, and is indeed the subject of considerable argument and disagreement. Although we shall not oppose this amendment, it must be made clear that it does not deal
1624
with the major anomalies which still exist in cases of compensation for miscarriages of justice. This, again, is a matter to which we may have to return at a later stage.
Lord Airedale: The new subsection 4A that is proposed refers to,
"suffering, harm to reputation or similar damage".
What do those words "or similar damage" mean? What do the Government have in mind as to damage which is similar to harm to reputation? To what do those words "similar damage" refer?
Baroness Blatch: On that particular question, I assume that these are the kinds of consideration that are made by anybody considering the damage. I should have to take advice as to how a judge or somebody adjudging such a situation would determine "similar damage". The reason it is given to people with those particular skills is for a judgment to be made about damage or similar damage. Quite a lot is set out in the tariff as to what should be considered a similar injury. I do not know whether that will satisfy the noble Lord. If he would like to discuss the matter with me, or with my officials, after this particular amendment has been discussed, then I should be glad to do so.
Perhaps I may address the point made by the noble Lord, Lord McIntosh of Haringey. First, I hope he will agree that this particular amendment impacts on Section 133 and that it sets out on the face of this Bill the particular aspects that have to be taken into account when considering compensation. But it would not be appropriate for compensation to be available as a rule in cases which are satisfactorily dealt with by the normal trial and appeal process, since well-founded and justified prosecutions may fail simply on a technicality, all because the high standard of proof was not met. But an application for ex gratia compensation will always be carefully considered on its merits.
Again, I should like to think more about what the noble Lord said in the course of speaking to this amendment. If there is anything more that I can say on the matter or if any modification needs to be made to accommodate the point, again, without prejudice, I should like to go away and read what has been said.
Perhaps I may return to the point on "similar damage". I am told that hurt feelings, embarrassment or a sense of outrage are examples of similar damage.
I turn to the point that was raised by the noble Lord, Lord McIntosh, on the European Convention on Human Rights. There is no limit to the payment that may be made under the ex gratia scheme. They are exceptional payments where there is no entitlement in law to compensation. For that reason, there is no question of civil rights or obligations. I am advised that the European Convention on Human Rights is not relevant—
Lord McIntosh of Haringey: I am sorry, but that really is not a satisfactory answer. We know, of course, that the ex gratia payment scheme has been made to work for the past 10 years; and we know that it works on the basis of guidelines from the Secretary of State. But what the European Commission is saying is that executive decisions of this kind are no substitute for statutory rights. Far too much of the compensation for miscarriages of

1625
justice is in the form of ex gratia payments rather than in the form of statutory rights. I would have hoped that the opportunity would have been taken when an amendment of this kind was being put down to extend the scope of statutory rights and to reduce the scope for executive decisions and ex gratia schemes. That is the kind of thing that I was looking for. I am grateful to the Minister for saying that she will consider the matter further. Perhaps we can talk about it between now and a later stage.
On Question, amendment agreed to.
Clauses 27 to 32 agreed to.
Schedule 1 [The Commission: further provisions]:
[Amendment No. 53 not moved.]
Baroness Blatch Baroness Blatch had given notice of her intention to move Amendment No. 54:
Page 21, leave out lines 36 to 43 and insert:
("(1) The Commission shall—

(a) pay to members of the Commission such remuneration,

(b) pay to or in respect of members of the Commission any such allowances, fees, expenses and gratuities, and

(c) pay towards the provision of pensions to or in respect of members of the Commission any such sums,

as the Commission are required to pay by or in accordance with directions given by the Secretary of State.").
The noble Baroness said: In speaking to this amendment, I should like to speak also to Amendments Nos. 61 and 63.
As the Committee may know, the Treasury has now decided to assume a more strategic role in relation to the oversight of non-departmental public bodies and in relation to their funding and pay arrangements. As part of this process it is looking at ways of withdrawing from its current role in approving the pay arrangements and so forth of such bodies. With this aim in mind it does not wish to acquire any responsibility in this respect for any additional NDPBs.
Amendments Nos. 21, 23 to 27 and 29 therefore delete the references to the consent of the Treasury in relation to the proposed arrangements for paying the commission and its staff, the numbers of staff that the commission may employ and their terms and conditions of service. In preparing the amendments to make the necessary changes, we came to the conclusion that there was no reason why the commission should not in fact handle the calculation and processing of the salaries and pension arrangements of its members. Amendment No. 21 therefore also makes this change—
Lord McIntosh of Haringey: Is there some confusion about the numbering? We are talking about amendments in the 50s. Is the Minister referring to page 21?
Baroness Blatch: The noble Lord is absolutely right, but I have to say that I do not have the relevant brief with me. I do not know whether the Committee is sufficiently indulgent as to allow me to go on to speak to Amendment No. 62 and return to this amendment, or whether that is not allowed.
9 p.m.
Lord Harris of Greenwich: What will happen? We are in a state of mild confusion and difficulty. What exactly is it suggested that we should do?
Baroness Blatch: I am advised that the best I can do now is not to move the amendments and return to them at the next stage of the Bill if that is agreeable.
[Amendment No. 54 not moved.]
[Amendments Nos. 55 to 61 not moved.]
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 62:
Page 23, line 22, at end insert:
("( ) In every report made under sub-paragraph (1) the Commission shall, on the basis of their investigations into cases and references to the Court of Appeal, make such recommendations to the Home Secretary as they consider necessary for changes in law, procedures and practices.").
The noble Lord said: This is a modest amendment, as befits its place in a schedule rather than the main body of the Bill. I hope that the Minister will feel that it is a reasonable but small extension of the responsibilities of the commission in compiling its annual report.
At the moment the schedule is entirely vacant in what it says should be included in the annual report. But from the public point of view, and that of ensuring that the improvements in the criminal justice system which are supposed to be brought about by the Bill actually come about, it is a matter of great concern. No body is better qualified than the commission to make recommendations for such further consequential changes as may be necessary. Only the commission has the control, supervision, direction—or whatever word we choose to use—of the investigations and can therefore bring together the case experience of its work and of the submissions it makes to the Court of Appeal for public consideration by means of its annual report to the Home Secretary.
One can imagine a number of examples of the opportunities that it may have and the contribution it may make; for example, the application of the complex rules of the Police and Criminal Evidence Act formulated in codes of practice which we agreed in this Chamber only a couple of months ago. They are enormously complicated. They evolve over time—without any criticism being made of those who devise them in the first place—and whether or not they work will be more apparent to the commission than to any individual police force.
A less happy example perhaps is the provisions of the Criminal Justice and Public Order Act 1994. Some of us, as the Minister will know, felt at the time that short cuts were being taken in the Act, notably the increase in comment that might be made on the exercise of the right to silence, which posed a serious danger to the criminal justice system. Many of the changes have only come into force in the past month or two. But over time and during the early life of the commission, we shall need evidence in regard to the extent to which the changes introduced by the 1994 Act have affected the risk of miscarriages of justice. The possibility cannot be ruled out that miscarriages of justice may be greater as a result of the 1994 Criminal Justice and Public Order Act than they were before.
The Minister does not have to agree with that analysis of the 1994 Act, but I hope that she will agree that it will be in the interests not only of the commission but also of the criminal justice system and the public as a whole for the commission to be positively encouraged, as it is in Amendment No. 62, to make recommendations in the context of its annual report on matters upon which the commission knows far more from detailed investigation than anybody else. I beg to move.
Baroness Blatch: I hope that I shall be able to allay the fears of the noble Lord because the point he makes with regard to informing the Secretary of State is important. I appreciate the intention behind the amendment and agree that if the commission comes across some aspect of the criminal justice system which causes concern it should draw it to the attention of the Secretary of State and no doubt will do so from time to time.
The Bill as drafted does not preclude the commission from doing that. Indeed, the requirement that it places upon the commission to produce an annual report on the discharge of its functions affords it the opportunity to do so if necessary. But that is a different matter from requiring the commission to make recommendations for change in its annual report. Placing the members of the commission under a duty to make recommendations would have the effect of extending the commission's role and require that part of the commission's resources to be devoted to monitoring current arrangements and developing proposals for change.
The commission is not intended to be a watchdog on the criminal justice system and its individual components. Its role is to investigate possible miscarriages of justice and refer those cases, which in its view meet the criteria for referral, to the courts. Its resources must be devoted to that task. It is absolutely essential that where it believes that points are coming through about which it would wish to recommend changes to the law it is absolutely free to convey that to the Home Secretary. To alter the commission's role in the way proposed would not be right and I cannot therefore commend the amendment to the Committee.
Lord Harris of Greenwich: If a form of words was devised which gave a clear indication that the commission would be encouraged to do precisely that, would that be acceptable to the Government?
Baroness Blatch: My understanding of statute is not that it is words of encouragement. That can be given in guidance or by other forms of exhortation. As I understand it, legislation relates to duties and obligations.
Lord Harris of Greenwich: I understand that the role of the commission is that in appropriate cases it draws to the attention of the Secretary of State what it regards as a defect in the law following its consideration of a case. Were such an approach to be put forward, is the noble Baroness prepared to indicate that she will consider it?
Baroness Blatch: I have made it absolutely clear that the commission can do that. There is absolutely nothing to prevent or preclude the commission from giving the Secretary of State advice about possible changes to the
1628
law. If one accepts the Pepper v. Hart guidance, then the words are now on the pages of Hansard, or will be by tomorrow morning.
Lord McIntosh of Haringey: The amendment does exactly what the noble Lord, Lord Harris, is asking for. It says that,
"the Commission shall"
I admit that it says "shall" rather than "may"—
"make such recommendations to the Home Secretary as they consider necessary for changes in law, procedures and practices".
Therefore, all of what the Minister said about putting all these terrible obligations on the commission is quite wide of the mark. If it does not want to make any recommendations, if it does not think it is necessary, it does not have to do so. All we are doing is seeking to take advantage of the unique position of the commission to understand the way in which miscarriages of justice occur all over the country and to say to it, "As you go about your day-to-day work of investigation, think always what it means and how it might be possible to take advantage of your knowledge in order to reduce the occurrence of miscarriages of justice in the future".
The Minister has said that nothing precludes the commission from saying that—on that basis, I shall not press the amendment to a vote—but she is quite wrong in saying that there is anything unusual in putting an obligation of this kind on a commission of this kind. It is the commonsense continuation of the work it is doing on a day-to-day basis. It is a way of ensuring that it does so under the eye of the cosmos, so to speak, and that it does so in full consciousness of the implications of its work in a wider sense. Indeed, I should have thought that the Government would have welcomed an opportunity to encourage the commission actually to seek a reduction in its workload by improving the law, improving practice and improving procedures in order to make sure that fewer cases have to come before it in future years. I do not know whether the Minister wants to add anything to what she has said.
Baroness Blatch: I believe that the commission can do that. If the commission feels that it wishes to give advice to the Home Secretary, it can do that. The amendment says:
"In every report made under sub-paragraph (1) the Commission shall",
and so on. All we are saying is that there is very little between us in that we should do nothing to inhibit the commission from giving the Home Secretary advice about its view of improvements to the law.
Lord Harris of Greenwich: I see the point that the noble Baroness has made and I am encouraged to hear that she thinks there is nothing between us on this matter. I am sure that the noble Lord, Lord McIntosh, and I both hope that there is not anything between us. However, I hope that between now and the next stage of the Bill the noble Baroness will agree to look at this matter. I take her point about the use of the words "in every report" and the use of the word "shall". But having made that concession at her direction, I really do hope that she will consider this matter.

1629
It seems to me that the noble Lord, Lord McIntosh of Haringey, is absolutely right. It is highly desirable that this should appear on the face of the Bill. The noble Baroness is quite right in saying that the commission can, if it so chooses, make any representation it wants to any Minister. But we are talking here about an important new commission which has been established because of major miscarriages of justice. In that situation it is highly desirable to try to reach some common agreement on this point. All I am saying to the noble Baroness is that I hope that she will agree to look at this matter between now and the next stage of the Bill to see whether in fact we can reach some form of agreement.
Lord Monkswell: I hesitate to rise in this debate but one of my concerns, which I am sure is shared by other Members of the Committee, is the reference which the Minister made to Pepper v. Hart. In effect she was saying that what is written on the face of the statute does not matter and that as long as it has been uttered by a Minister it is okay and that is the interpretation the courts will make of it. It is one thing to enable the courts to interpret statutes which may be difficult to interpret in later years with regard to what Parliament wanted to see happen. It is quite another to say, "We do not need to write this on the face of the Bill because a ministerial statement has been made and therefore Pepper v. Hart will sort it out". It is quite important that wherever possible we write things clearly on the face of Bills.
Lord McIntosh of Haringey: I do not accept the interpretation of my amendment given by the noble Lord, Lord Harris of Greenwich. He said that we ought perhaps to consider having "any report" instead of "every report" and "may" instead of "shall". However, the amendment is absolutely clear. It says that the commission shall,
"make such recommendations … as they consider necessary".
The commission can leave them out if it wants to. I do not think the Minister has made a good case. It is desirable for the instructions to the commission not only to be administrative instructions, as they are in Schedule 1 and, indeed, to a lesser extent in Clause 8, but that the commission should be reminded in public of the opportunity that it has to make progress and to undertake preventive as well as remedial action on miscarriages of justice. To that extent I disagree with the Minister's reply. It may be a matter I shall want to return to at a later stage.
Lord Harris of Greenwich: Perhaps I may have a reply from the noble Baroness. I asked her whether she is prepared to do what the noble Lord, Lord McIntosh, suggested; namely, to look at this matter between now and the next stage of the Bill to see whether it is possible to get some agreement on it. I am not asking her to commit herself finally, but it would be extremely helpful were she to say that she will look at the matter again.
Baroness Blatch: It is my practice to consider everything very carefully. I shall look particularly at that point.
Amendment, by leave, withdrawn.
Baroness Blatch Baroness Blatch had given notice of her intention to move Amendment No. 63:
Page 24, leave out lines 2 to 4 and insert:
("11. The Secretary of State shall defray the expenses of the Commission up to such amount as may be approved by him").
The noble Baroness said: In not moving this amendment I apologise profusely to the Committee. Now that I have composed myself, perhaps I may say that I spoke to this amendment but simply used the wrong number, which threw all Members of the Committee.
[Amendment No. 63 not moved.]
Schedule 1 agreed to.
Schedule 2 [Minor and consequential amendments]:
Baroness Blatch Baroness Blatch moved Amendments Nos. 64 to 67:
Page 24, line 25, at end insert:
("( ) In section 5 (disposal of appeal against conviction on special verdict), in subsection (1), for "by a person in whose case" substitute "in a case where".").
Page 25, line 2, at end insert:
("The Costs in Criminal Cases Act (Northern Ireland) 1968
(c. 10 (N.I.))
. In section 4 of the Costs in Criminal Cases Act (Northern Ireland) 1968 (costs awarded by Court of Appeal), at the end insert—
"(5) Where section 47A of the Criminal Appeal (Northern Ireland) Act 1980 (death of convicted person) applies, any reference in this section to the appellant includes the person approved under that section."").
Page 26, line 8, at end insert:
("The Prosecution of Offences Act 1985 (c.23)
. In section 21(1) of the Prosecution of Offences Act 1985 (interpretation of Part II), before the definition of "defendant's costs order" insert—
""accused" and "appellant", in a case where section 44A of the Criminal Appeal Act 1968 (death of convicted person) applies, include the person approved under that section;".").
Page 26, line 31, at end insert:
("The Legal Aid Act 1988(c.34)
. In section 21 of the Legal Aid Act 1988 (availability of representation for the purposes of criminal proceedings), after subsection (10) insert—
"(10A) Where section 44A of the Criminal Appeal Act 1968 (death of convicted person) applies, the reference in subsection (1) above to the convicted person shall be construed as a reference to the person approved under that section."").
The noble Baroness said: I spoke to these amendments with Amendments Nos. 12 to 17. I beg to move.
On Question, amendments agreed to.
Schedule 2, as amended, agreed to.
Schedule 3 agreed to.
In the Title:
Baroness Blatch Baroness Blatch moved Amendment No. 68:
Line 6, after ("section;") insert ("to amend section 133 of the Criminal Justice Act 1988;").
The noble Baroness said: I spoke to this amendment with Amendment No. 52. I beg to move.
On Question, amendment agreed to.
Title, as amended, agreed to.
House resumed: Bill reported with the amendments.
House adjourned at seventeen minutes past nine o'clock.