Lords Sitting of 14 December 1998

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

Sandwich: Local Council Constituencies
Lord Pender Lord Pender asked Her Majesty's Government:
What is the reason for the proposed division of the Cinque Port of Sandwich into two electoral constituencies for district council elections.
The Parliamentary Under-Secretary of State, Department of the Environment, Transport and the Regions (Lord Whitty): My Lords, I understand that Dover District Council has made an order dividing the parish of Sandwich into two parish wards. Such decisions as to parish warding and the reasons for them are, under the statute, matters for the district councils concerned and for which the council is accountable in local elections.
Lord Pender: My Lords, I thank the Minister for that Answer. Following the voting down of this proposal by the local residents by a 3:1 margin, and the fact that the status quo was accepted by the local officers only to be overruled by the leader of Dover District Council, does not the Minister consider that that might be construed as gerrymandering?
Lord Whitty: My Lords, I do not see how the matter can be construed as gerrymandering because it has no implications for the structure of the district council itself; it simply relates to the town council of Sandwich. Although it is true that the majority of those who responded to consultation were against the measure, that did not constitute the majority of those whose views were sought. As I say, it is a matter for the district council under the legislation passed in 1997.
Baroness Trumpington: My Lords, is the Minister aware that my name is Trumpington of Sandwich? Is it usual to split electoral constituencies where the population is under 4,000? The population of Sandwich is 3,836. Is the Minister further aware that Sandwich people very much resent being bullied against their will by Dover District Council?
Lord Whitty: My Lords, in this context the town council in Sandwich is a parish council, despite its glorious history; and, as I understand it, it is quite common to have smaller parishes than is envisaged in this case. I am aware of some of the local feeling, but at the end of the day this is a matter for Dover District Council.
Lord Cocks of Hartcliffe: My Lords, I wonder whether the Minister can advise me, because it seems
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to me that this Question has no bearing on ministerial responsibility. I am anxious to get some publicity for the proposed closure of two schools in Bristol—Merrywood and Pen Park—which I think is a disgrace. However, I do not think I can ask a Question about that directly. Can the Minster advise me how I might go about this?
Lord Whitty: My Lords, I rather feel that the noble Lord has done pretty well without any advice from me. The tabling of Questions and the acceptability of Questions is a matter for the House authorities rather than for me.
The Earl of Sandwich: My Lords, further to the comments of the noble Baroness, Lady Trumpington, does the Minister agree that the sandwich has always traditionally been divided into two and what matters to the people is the filling in the middle?
Lord Whitty: My Lords, the noble Earl speaks from authority on this matter. I note his concern.

Local Council Allotments
2.40 p.m.
Baroness Sharples Baroness Sharples asked Her Majesty's Government:
Whether they will take steps to encourage local councils to promote the use of allotments.
Lord Whitty: My Lords, my department is currently working with the Local Government Association, council representatives and allotments interest groups in order to produce best practice guidance on allotments for local authorities. The Government recognise the importance of the promotion of allotments and in March placed an additional requirement on local authorities to demonstrate the active promotion of allotments before they can dispose of statutory allotment land.
Baroness Sharples: My Lords, I thank the Minister for that reply. Is he aware that in many journals, local papers and newspapers great concern has been expressed about the number of allotment sites that have been sold off for development? Is he further aware, and does he agree with it, that Birmingham City Council has been active in promoting allotments, especially for use by ethnic groups and women? I am sure that many of the women could do with the exercise.
Lord Whitty: My Lords, I accept much of what the noble Baroness said, even the last point. It is important that publicity be given to the facilities. However, at the moment the background is that the vacancies far outnumber the applications. That is one of the reasons why we asked local authorities to give greater consideration to publicity. I understand that a number are doing so.
Lord Molloy: My Lords, is my noble friend prepared to consider the possibility of helping those local

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authorities who wish to encourage people to do the work they think they can? Can the Government help in providing them with tools for the job? Without them, men who are hired or wish to make a contribution will be unable to do so.
Lord Whitty: My Lords, in so far as this relates to the allocation of allotment plots, I believe it goes beyond the terms of ministerial responsibility here. However, in certain circumstances it may be a matter for local authorities.
Lord Skelmersdale: My Lords, in his Answer, the Minister mentioned the disposal of statutory allotment sites. It used to be the law that where a disposal was in the offing, allotment holders were offered alternative sites or a new allotment. Is that still so?
Lord Whitty: My Lords, it is still the case where there is a significant number of plot holders in place. With many of the allotments which have been disposed of recently—certainly those which have come to the Secretary of State for approval—there are no extant plot holders.

Libraries, Museums and Archives: New Commission
2.42 p.m.
Lord Morris of Castle Morris Lord Morris of Castle Morris asked Her Majesty's Government:
When they propose to release the result of the Department for Culture, Media and Sport's consultation exercise concerning a possible merger between the Library and Information Commission and the Museums and Galleries Commission.
Lord McIntosh of Haringey: My Lords, my right honourable friend the Secretary of State for Culture, Media and Sport announced earlier today in another place the result of the consultation on his department's spending review. The announcement included the decision to create a new strategic body for libraries, museums and archives, to replace the Library and Information Commission and the Museums and Galleries Commission.
Lord Morris of Castle Morris: My Lords, I am obliged to my noble friend for that Answer. I declare an interest as a former and long ago chairman of the Museums and Galleries Commission, deeply honoured to be so and totally unpaid.
However, is it not a fact that in the DCMS consultation a significant majority of the respondents were entirely against any union of the Museums and Galleries Commission and the Library and Information Commission? In the MGC's own consultation exercise, the responses were three to one against any such merger. Can the Minister explain what arguments in favour of
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bringing the two sectors together were so compelling as to outweigh the clear majorities of the undoubted experts in this field?
Lord McIntosh of Haringey: My Lords, I am afraid I cannot accept my noble friend's statistics. Of the responses to the consultation on the issue, 63 were in favour, 21 were against and the remainder—a minority—were neutral or made other comments. So it is not the case that a majority of respondents were against the proposed merger.
It is true that the Museums and Galleries Commission and the National Museum Directors Conference were both opposed to the merger, but the Library and Information Commission and a large majority of local authorities were in favour.
Perhaps I may seek to go a little further than that factual reply. There are matters in common between museums and libraries as they move from a responsibility for display and conservation into the field of information and education and, generally, into knowledge and understanding. I hope that in due course my noble friend will feel that this is the direction in which all museums, libraries and archives should move.
Lord Renton: My Lords, is the noble Lord aware that many libraries accommodate museum work as well?
Lord McIntosh of Haringey: Yes, my Lords. I am grateful to the noble Lord for that observation; it is one of the considerations that we took into account. Most local authorities have departments which comprise museums, libraries and galleries. They have found the link valuable.
Baroness Rendell of Babergh: My Lords, can the Minister tell us whether there will also be a merger between the Arts Council and the Crafts Council?
Lord McIntosh of Haringey: Yes, my Lords. Another decision announced this morning is that the Arts Council and the Crafts Council will be merged, and the document which was issued, together with the announcement in another place, makes clear how the interests of the crafts, including the Crafts Council Gallery in Pentonville Road, will be protected under the merger.
Baroness Anelay of St. Johns: My Lords, perhaps I may press the Minister to give the House a little more information about the statistics he mentioned in his earlier reply. Will he confirm that the statement made by the Secretary of State in another place was, on this occasion, at 10 o'clock this morning in the Tate Gallery and not this afternoon in another place? Will he further confirm that of the 167 respondents who mentioned the proposal to establish a museums and libraries body only 52 were in favour, 85 were opposed, and the remainder reserved their position? Does that not show that the Museums and Galleries Commission proved beyond doubt that the Government's proposals today are most unwelcome?
Lord McIntosh of Haringey: My Lords, my statement about the announcement was accurate. In

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addition to the press conference at the Tate Gallery this morning, a Written Answer was placed in the Library of another place this morning. I answered a Written Question from my noble friend Lady Turner of Camden. So the proprieties have been observed, if I may put it that way.
My figures on the responses on the issue were restricted to those who specifically commented on the point. However, if there is any conflict on the evidence I shall write to the noble Baroness and place a copy in the Library of the House, since it could be of public interest.
Lord Jenkins of Putney: My Lords, can my noble friend tell the House whether there was a similar consultation concerning the Arts Council and the Crafts Council merger? Has he any similar information to that which he gave on the other mergers?
Lord McIntosh of Haringey: Yes, my Lords. The departmental spending review announcement made at the end of July included the provision for consultation on the future of the Arts Council and the Crafts Council. That consultation produced a large number of responses, mostly in favour of the merger. Since it was not specifically the subject of the Question, I do not have the figures in front of me. However, I can write to my noble friend on the point.
Lord Skelmersdale: My Lords, the Minister said that parliamentary proprieties had been observed. Will the noble Lord tell the House whether the Written Answer was placed in another place before or after the press statement this morning?
Lord McIntosh of Haringey: My Lords, I believe that they were simultaneous. It was not after.
Lord Stoddart of Swindon: My Lords, is the Minister aware that not all of us believe that the co-ordination of library, arts and museum services is not a good thing? Would it not be excellent for local authorities to be able to co-ordinate cultural matters under one heading and to allocate the finance in a reasonable and positive way?
Lord McIntosh of Haringey: My Lords, I hope that I am right in interpreting my noble friend's double negative as an expression of support. He is right that, since local authorities organise themselves in that way, they will be able to refer to the new museums, libraries and archives commission in that field. It is also true that the commission will be in a position to give strategic advice to government on all the issues which concern those local authority departments.
Although change is not proposed in the funding for national museums, they will be strongly represented on the new body and their input will be taken into account.
Viscount Mersey: My Lords, will the Minister tell the House the budget of the Crafts Council?
Lord McIntosh of Haringey: My Lords, since we are way outside the Question, I can flounder for a
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moment! The budget of the Crafts Council for this year and last year is £3.2 million, which is to rise to £3.4 million, £3.5 million and £3.6 million over the next three years.
Lord Mackay of Ardbrecknish: My Lords, perhaps I may clarify something the Minister said. He stated that a Written Answer had been made this morning in another place. The other place was not sitting. My recollection is that Written Answers cannot be published until half-past three.
Lord McIntosh of Haringey: My Lords, there are two opportunities in any day for Written Answers in another place: at 9.30 a.m. and 3.30 p.m. Therefore, I feel sure that I am correct in saying that the proprieties have been observed.

Life Prisoners: Sentencing
2.52 p.m.
The Earl of Longford The Earl of Longford asked Her Majesty's Government:
Whether they have been able to consider the views of the Lord Chief Justice about the responsibility for the sentencing of life prisoners.
The Minister of State, Home Office (Lord Williams of Mostyn): My Lords, the Government always consider carefully the views of the Lord Chief Justice on all sentencing matters, including the responsibility for the sentencing of life prisoners.
The Earl of Longford: My Lords, it is my duty to thank the Minister for that cryptic Answer. It would be an impertinence for me to tell such a highly qualified Minister that it is iniquitous that a crime once committed should be treated as worse and worse as time passes. Is my noble friend aware that under present arrangements every now and then a tariff for a crime is increased by the Government in response to imagined public outcry, self-motivated by the tabloid press?
Lord Williams of Mostyn: My Lords, I do not think that my Answer was cryptic, although it may have been Delphic. There is no question of a crime becoming worse as time passes, but the public have a legitimate interest in how the state deals with those who have committed very serious crimes; and murder is regarded in any civilised society as being a crime of the utmost gravity. I believe that the Home Office has a legitimate part to play here, but it is not exclusive. It depends on co-operation with the higher judiciary and the Parole Board.
Lord Windlesham: My Lords, is the Minister aware that many others share the reported views of the Lord Chief Justice? Does the noble Lord recall, for instance, that in the previous Parliament the Home Affairs Committee in another place, including all the Labour Members, recommended that, while the mandatory sentence for murder should be retained,

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the responsibility for setting the tariff and release decisions should be removed from the Home Secretary? Now that the Government have the power to implement that recommendation, why do they not do so?
Lord Williams of Mostyn: My Lords, because they do not believe that to be the proper policy to be adopted. The tariff in these mandatory life cases is set by the Home Secretary but only after paying careful attention to the views of the trial judge and the Lord Chief Justice of the day. I can say from my own personal knowledge that they are very carefully and scrupulously taken into account.
When the death penalty was abolished in this country, these were the constitutional arrangements arrived at. They depend upon maintenance of public confidence and the ultimate accountability of the Home Secretary.
Lord Avebury: My Lords, is not the maintenance of public confidence ensured by the arrangements whereby the Parole Board can only recommend the release on licence of a life sentence prisoner if it is satisfied that the risk of reoffending is minimal? Why do we need the tariff on top of that?
Lord Williams of Mostyn: My Lords, the tariff is not on top of that; it is quite the opposite. The tariff is set as a minimum period of time which is to be served before a mandatory life sentence prisoner is capable of being considered for release. Thereafter the Parole Board has its part to play in giving informed, detailed advice to the Home Office about risk to the public of reoffending. Nevertheless, I believe, and it is the Government's policy, that the Home Secretary should contribute to the ultimate decision. I believe that that enjoys public confidence.
Lord Ackner: My Lords, will the Minister agree that it is an issue on which the Home Secretary is at odds with my noble and learned friend the Lord Chancellor? Was the noble Lord present in this House on 24th June 1997 during Question Time when my noble and learned friend the Lord Chancellor agreed in substance with the statement that he had previously made that how long a person should spend in prison is a judicial decision to be made by a judge in open court after hearing argument, subject to a right of appeal, and that it should not be made by a politician in secret without any right of appeal?
Lord Williams of Mostyn: My Lords, what the noble and learned Lord alluded to there was the generality of judicial power. In fact the High Court judges who try murder cases have the opportunity at present to state in open court what they think the tariff should be. In 221 of the cases between 1st April and 31st October this year the trial judge at that stage exercised his power in only five. It is not a secretive process. The trial judge is consulted. The Lord Chief Justice is consulted. Their recommendations are put to the prisoner. The Parole
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Board recommendations are disclosed to the prisoner. The procedure therefore is transparent so far as concerns the prisoner.
Lord Tebbit: My Lords, the issue seems to have arisen in the context of a belief that Home Secretaries are likely to leave such prisoners in gaol for longer than judges. Is it not prudent to recollect that since the abolition of capital punishment an average of between four and five persons a year have been killed by persons previously convicted for killing and then released from prison?
Lord Williams of Mostyn: My Lords, the noble Lord is about right. If I may, I shall give the precise figures; I had half anticipated that the question might arise.
Between 1988 and 1997, 41 suspects were convicted of homicide who had previously been convicted of homicide, but that includes murder. The vast bulk of those 41 were not second time murderers. Their first offence had been manslaughter. It does not limit the gravity of the noble Lord's point. That is why I took the trouble to research the matter for your Lordships.
Lord Dean of Beswick: My Lords, as regards the crime of murder, in areas of the country where severe violence has been inflicted we are talking of a group of people who may never be released and who have probably committed the worst murders in living memory. Is the Minister aware that the Government have the support of the population, who would like to see a stricter code than that being applied by some of the judges in those cases?
Lord Williams of Mostyn: My Lords, there must be a decent regard by the Executive in the person of the Home Secretary for the informed views of the higher judiciary, but our system is not such that the higher judiciary may dictate. This was the parliamentary compromise arrived at after a good deal of struggle, heartache and thought. There are 23 prisoners in England and Wales who have whole life tariffs. However disagreeable it may be to some of your Lordships, a whole life tariff is justified for some prisoners.
Lord Waddington: My Lords, does the noble Lord agree that at the time of the abolition of capital punishment it was said time and time again by the proponents of change that a unique penalty for murder would remain on the statute book and that no one convicted of murder would be released except on the say so of the Home Secretary, who would be responsible to Parliament if anything went wrong? How would respect for the criminal justice system be enhanced if the Government now went back on all of those undertakings?
Lord Williams of Mostyn: My Lords, I do not believe that it would, as I sought to say earlier. I do not want to sound too overblown, but this was a

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constitutional settlement in a discrete area arrived at following a good deal of thought. The Government believe that they should stick to it.
The Earl of Longford: My Lords, can the noble Lord explain why he has failed to answer my Question? Why has he failed to defend the present arrangements under which, as time passes, a sentence is increased? The crime has not become any worse, but public opinion becomes stirred up by the tabloids. The noble Lord has ducked it.
Lord Williams of Mostyn: My Lords, I have not ducked any question at all. Sometimes it is very fashionable to believe that tabloid newspapers live in a reservoir of ignorance. Sometimes they get it right and are in tune with public opinion. I have not ducked any question. I put it as brutally as I may: there are some people who have been convicted of murder or murders for whom a whole life tariff is legitimately justifiable. I do not resile from that for a moment.
Lord Cope of Berkeley: My Lords, has it not become clear in the past few minutes that a very large number of people believe that what the Minister describes as the constitutional settlement is the correct way and that this particular piece of the interface between politicians and the judiciary is not one that should be reconsidered, even if other aspects of that interface are under discussion?
Lord Williams of Mostyn: My Lords, I am always willing to consider views that are put forward. But the Government are adamant in the view that the noble Lord describes. It may not be popular with all of your Lordships, but sometimes it is necessary to do things that are unpopular in the wider public interest. Where it is necessary the Government intend to do it.

Business
3.3 p.m.
Lord Carter: My Lords, at a convenient moment after 3.30 p.m., my noble friend the Leader of the House will, with the leave of the House, repeat a Statement that is being made in another place on the European Council in Vienna on the 11th and 12th December.

Liaison: Select Committee
The Chairman of Committees (Lord Boston of Faversham): My Lords, I beg to move the first Motion standing in my name on the Order Paper.
Moved, That a Select Committee be appointed to advise the House on the resources required for Select Committee work and to allocate resources between Select Committees; to review the Select Committee work of the House; to consider requests for ad hoc committees and report to the House with
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recommendations; to ensure effective co-ordination between the two Houses; and to consider the availability of Lords to serve on committees;
That as proposed by the Committee of Selection the following Lords together with the Chairman of Committees be named of the committee:

L. Allen of Abbeydale,

L. Clinton-Davis,

B. Jay of Paddington,

L. Kimball,

L. Morris of Castle Morris,

L. Rodgers of Quarry Bank,

L. Strathclyde,

L. Weatherill,

L. Wigoder,

B. Young;

That the committee have leave to report from time to time;
That the committee have power to appoint specialist advisers.—(The Chairman of Committees.)
On Question, Motion agreed to.

Standing Orders (Private Bills): Select Committee
The Chairman of Committees: My Lords, I beg to move the second Motion standing in my name on the Order Paper.
Moved, That a Select Committee on the Standing Orders relating to private Bills be appointed and that as proposed by the Committee of Selection the following Lords together with the Chairman of Committees be named of the committee:

V. Bridgeman,

V. Falkland,

L. Gallacher,

V. Hood,

E. Kinnoull,

E. Lloyd-George of Dwyfor,

L. Monkswell.—(The Chairman of Committees.)

On Question, Motion agreed to.

Science and Technology: Select Committee
The Chairman of Committees: My Lords, I beg to move the third Motion standing in my name on the Order Paper.
Moved, on behalf of the Committee of Selection, That the Lord Quirk be appointed a member of the Select Committee in the place of the Lord Phillips of Ellesmere.—(The Chairman of Committees.)
On Question, Motion agreed to.

Access to Justice Bill [H.L.]
3.5 p.m.
The Lord Chancellor (Lord Irvine of Lairg): My Lords, I beg to move that this Bill be now read a second time.
People value their legal rights highly. They feel deeply frustrated when they cannot secure them. A major component in deciding whether a state provides a decent quality of life for its citizens is the extent to which it secures for them access to justice.
There is much to admire in our justice system. Our courts strive to deliver justice in every case. Many lawyers work on behalf of the most disadvantaged members of society and sometimes offer their services free of charge. Many of the best barristers and solicitors work for the disadvantaged in our society. They provide a route into the justice systems for many who would otherwise be excluded. They work for the disempowered: refugees, asylum seekers, convicted prisoners and mental patients—not always popular causes. But, excellent though this work is, it is not enough. Access to justice remains far too limited. Basically only the rich and the poor who qualify for legal aid can afford to litigate and all the rest—the great majority—are left out in the cold.
A Times leader on 4th December 1998 recognised that,
"the case for the central reform of Britain's modern justice system is abundantly clear";
recognised the need,
"to increase access to justice, and secure better value for the spiralling costs of legal services";
and recognised the need to,
"balance the demands of giving more people greater access to justice and curbing the costs of legal aid".
In some remote areas or deprived inner city estates it may be hard to gain access to any legal advice or assistance at all. The provision of these facilities depends on the unco-ordinated activities of solicitors' firms and the voluntary sector. No consistent attempt is made to measure the need for advice nor to co-ordinate its provision.
The quality of the legal services people receive is often depressingly poor. The large number of complaints which the Office for the Supervision of Solicitors receives testifies to public dissatisfaction. The services which are available from lawyers in private practice are often disproportionately expensive or have no fixed price stated in advance so that clients know where they are.
The market for legal services is one which mercifully most people enter only rarely. It is predominantly for the legal profession to put its own house in order, but the Government, as a major purchaser of legal services, can and must do what they can to raise standards. That is a major objective of the Bill but it is not the totality of my policies. The White Paper I have laid before Parliament paints the broader picture. I ask your Lordships to note especially the programme of reforms to the civil courts which should make the cost of actions more predictable and their progress more speedy.
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The Bill will establish a legal services commission to run two new schemes: the community legal service and the criminal defence service. The community legal service will take over the existing programme of civil and family legal aid, but its goals will be different and broader.
In partnership with local funders of legal and advice services, particularly local authorities, the community legal service (CLS) will develop plans for the delivery of legal services which take account of identified needs and priorities. For the first time those who take responsibility for the availability of legal advice and assistance will come together to plan provision. Of course, I cannot guarantee that all needs will or can be met. However for the first time we will be able to base the funding of services by central and local government and others on hard information. The CLS will evaluate the service each body provides, identify overlaps, promote efficiency wherever possible by eliminating these overlaps, develop referral arrangements and ensure that the public know what body offers what. I have already invited a small group of pioneer local authorities to begin work with the Legal Aid Board and other funders. The pioneer areas are Southwark, Liverpool, Nottinghamshire, Norwich and Kirklees. I aim to have the pioneers develop with my department concordats between all relevant bodies which will set out standing arrangements for their mutual co-operation.
There will also be a community legal service fund, the successor to the existing legal aid scheme for civil and family cases. This fund will be used to secure the provision of legal services on the basis of national priorities set by the Lord Chancellor and assessments of need. The commission will draw up a funding code, which I will approve and which will set out the criteria and procedures for deciding whether to fund individual cases.
The approach will be more flexible than the existing civil legal aid scheme. Instead of rigid criteria into which all cases must fit, irrespective of their priority and nature, there will be a funding assessment under a code which will allow different criteria to apply to different cases and types of help in order to ensure that help is channelled to priority needs.
If resources are spent on low priority or relatively unmeritorious cases which can be made to fit within the existing fixed criteria, those resources cannot be spent elsewhere. If I wish to spend the resources available to me rationally, based on an assessment of need, expenditure will have to be controlled and directed.
Contracts with lawyers to provide services will have to be based on fair rates; if they are not there will be no takers. But the state could not match the huge rates some lawyers command in the private sector, where the prices charged may be vast and represent what the market will bear in litigation where often huge sums are at stake. Nor does the state need to pay these rates to dedicated lawyers committed to the public good: they should be content with fair pay for socially rewarding work.
Today, anyone who passes the eligibility and merits test can obtain legal aid through a solicitor who can carry it through from beginning to end even where he lacks the expertise to do so.

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The legal services commission will buy quality assured services mainly through contracts. It has been argued that this contracting system is impracticable because quality will go out of the window and there will not be enough lawyers who will be willing to offer their services. I disagree. It will be a guarantor of quality. The Legal Aid Board's franchising scheme has led to substantial improvements, but it remains a voluntary scheme. A new system which sets quality standards in every case can only be a major improvement. And for the efficient and competent lawyer, contracting, with its guarantee of a steady cash flow, is a benefit, not a threat. Some diminution of choice, but among quality assured solicitors only, is for the public benefit.
I want to create new avenues for justice. Courts are not the only way of solving problems, and the cost of going to court is often disproportionate to what is at stake. The community legal service will improve access to information, assistance and advice. People will be encouraged to consider the best way to resolve their disputes. More people are likely to opt for mediation or some other form of alternative dispute resolution, which will provide a quicker, cheaper and more appropriate answer to their needs. One of the benefits of mediation is that it gives both parties a stake in the outcome, which they do not always feel about court-imposed outcomes. Those who have tried mediation often report a high degree of satisfaction with their experience and they relish the sense that they are controlling the resolution process, not the other way round. The Bill will allow those services to be supported.
Where court proceedings are the best or the only option, the extension of conditional fees to defendants and people with non-money claims, by making the success fee recoverable from the losing party, will provide new ways of funding litigation and open up the courts to those who could not run the risk of litigating and losing.
I turn to restrictive practices in the legal profession. I do not believe it is right for lawyers to be denied rights of audience in court simply because they are employed, and I will ask Parliament to endorse that principle. A lawyer who is employed and salaried is not on that account ethically deficient. Those who defend restrictive practices have an unattractive habit of disparaging those who are outside the benefits of the restrictive practices. Judges are employed and salaried but their independence is unquestioned. Nor do I see any reason why the ethics or independence of lawyers employed by the CPS cannot be relied upon.
I am determined to maintain high standards in advocacy. Advocates must be well trained and observe the highest ethical standards. Defence advocates stand between the state and the citizen. They serve a vital public interest in a democracy under the rule of law. The miscarriages of justice which have marred the reputation of our criminal justice system in the recent past underscore that we must be ceaseless in our insistence on the highest ethical standards.
I am taking two positive steps in this Bill to maintain high standards. First, I am giving the new legal services consultative panel duties to enable the Government to
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play a positive role in encouraging appropriate and high quality legal education, working with universities, colleges and other institutions. The education of future advocates is vital. Secondly, I have made clear on the face of the Bill the overriding duty than an advocate owes to the interests of justice and his professional code. No other civil obligation can take precedence. I have no doubt about the ethical standards of lawyers employed throughout the public service, including the Crown Prosecution Service, or of lawyers in private practice; but I wish to reinforce the codes under which they, as well as lawyers in private practice, work. I do not see how it can be rationally argued that CPS-employed lawyers are fit to conduct prosecutions in the magistrates' courts, where 97 per cent. of criminal cases begin and end, but not in the Crown Court.
The Advisory Committee on Legal Education and Conduct is to be abolished and a simplified system of procedures set in its place. Let me explain one reason why. The most striking example of delays and problems caused by the current statutory procedure concerns that part of the Law Society's application for rights of audience in the higher courts which related to "employed" solicitors. The application took no less than six years to resolve, and was considered by ACLEC at least three times and by the Director General of Fair Trading, the Lord Chancellor and the designated judges twice. ACLEC initially gave defective advice, urging that the Courts and Legal Services Act should be amended, and had to be directed by the Lord Chancellor, my noble and learned predecessor, to reconsider the matter. When ACLEC gave its final advice, it was split down the middle. Eight members and the chairman advised against allowing employed solicitors to appear in the higher courts; the other eight members criticised the way their colleagues had approached the issue, and advised that the Law Society's amended application should be granted.
The results of six years of painfully slow debate, consultation and advice about what rights of audience employed solicitors should have in the higher courts were in practice negligible. The noble and learned Lord and the designated judges granted the Law Society's application in a very limited form, allowing employed solicitors to appear in substantive proceedings in the higher courts if they succeeded in obtaining the Law Society's higher courts qualifications, but only if led by an advocate in private practice. An employed solicitor can only appear as the sole advocate in preliminary proceedings which do not dispose of the merits of a case.
When the Green Paper which preceded the Courts and Legal Services Act 1990 was debated in this House, the voices of the prophets of doom rang around the Chamber. The alarmists were in full cry—their cases were never knowingly undersold. The noble and learned Lord, Lord Lane, said,
"Oppression does not stand on the doorstep with a toothbrush moustache and a swastika armband. It creeps up insidiously; it creeps up step by step; and all of a sudden the unfortunate citizen realises that it [freedom] has one".—[Official Report, 7/4/89; col. 1331.]

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The noble and learned Lord, Lord Ackner, said that the proposals were,
"about to do untold harm to the future quality of the administration of justice in this country".—[Col. 1415.]
On the Second Reading of the Courts and Legal Services Bill on 19th December 1989 the noble and learned Lord declaimed that:
"The ever-increasing megafirms, with their growing litigation departments…both in size and cost, with full rights of audience in all courts, will cause the Bar to wither away … The strong and independent judiciary…will be weakened by the diminishing quality of available recruits and the growing political influence in their appointments".—[Official Report, 19/12/89; col. 205.]
I ask your Lordships: has the predicted end to civilisation as we know it occurred? As at last Friday, 11th December 1998, out of over 75,000 practising solicitors in this country, a mere 730 have higher court rights of audience. On 1st October 1990, there were 6,645 barristers in private practice; on 1st October 1998, there were 9,698. We have a strong flourishing independent Bar and I see no reason why it should not continue to flourish on its merits.
This has, I think, been accepted by the Bar itself. The Vice-Chairman of the Bar, soon to be the Chairman, in a letter to the Financial Times published on 3rd December this year, wrote:
"The argument is not now about who has rights of audience, but about ensuring advocacy is provided to a consistently high standard and at a competitive cost to the client".
My proposals meet those aims.
Some, too, may argue that the control of rights of audience is so fundamental to the rule of law that it should be outside the control of Parliament and left entirely to the judiciary. I would not accept that in a democracy decisions on who may exercise rights of audience in the courts are a no-go area for Parliament. Parliament is the guardian of the public interest and the removal of restrictive practices is emphatically for Parliament.
The powers I propose are limited. The granting of rights of audience to individuals and their removal will remain for the professional bodies. The professional bodies will also remain responsible for drawing up the rules governing the rights of audience of their members, including the qualification regulations. I am merely asking Parliament to define more broadly the general categories of those who are entitled to appear before the courts, in order to ensure that it is easier for employed lawyers and solicitors to do so.
I am also asking for the Lord Chancellor to be given a fall-back power to intervene in the rules of professional bodies if they unreasonably restrict rights of audience. Any use of the powers must also be in accordance with the criteria set out in the Courts and Legal Services Act 1990 and requires approval by Parliament by affirmative resolution. The Lord Chancellor's decisions made throughout the process would be capable of being subject to judicial review. But I repeat that I do not accept that the elimination of restrictive practices in the legal profession is a no-go area for Parliament and that the judiciary, who are drawn from the profession, have any entitlement to the last word.
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The Bill will also institute reforms to the system of appeals in civil cases, based on Sir Jeffrey Bowman's report. Those will complement the existing programme of reforms in the civil courts of first instance.
As Lord Chancellor, I work with the Home Secretary and the Attorney-General to tackle crime and modernise the criminal justice system. There are two important aspects of this Bill, which are primarily concerned with criminal justice reform. First, the Bill makes a number of changes to the organisation and management of magistrates' courts. These will help develop a more coherent geographical structure for the criminal justice system and improve the management and efficiency of magistrates' courts.
Secondly, the Bill will create a criminal defence service, which will ensure that those who appear before our courts and risk imprisonment receive high quality legal defence services. The major change from the existing system of criminal legal aid is that, in future, only those lawyers who have contracts with the criminal defence service and fulfil quality criteria will be able to represent assisted clients. Those who are accused of criminal offences will have the right to choose among those who have contracts. That is a major advance: there has not previously been a general assurance for those using criminal legal aid that services provided will be of good quality.
The state, in the public interest, takes accused people to the criminal courts, where they may be deprived of their liberty. So it is right that the state should provide high quality defence services to those who cannot afford to purchase defence services for themselves. There should be equality of arms between prosecution and defence.
The criminal defence service will be able to employ lawyers—solicitors and barristers—directly. This is not intended to be a fundamental change in the way representation and assistance is provided. We shall not move towards a wholly employed public defender service. I expect to see a mixed system of private practitioners and some salaried defenders. They will enable the criminal defence service to fill in gaps in provision and to provide a cost and quality benchmark against which the private sector can be compared. I do not accept that state-employed defenders are incapable of being dedicated, effective lawyers of equal quality to those working in the private sector.
I now turn to the clauses in the Bill which give effect to those policies. Clauses 1 to 4 set up the new legal services commission to replace the Legal Aid Board and to be responsible both for the community legal service and for the criminal defence service.
Clause 5 establishes the community legal service and Clause 6 establishes the community legal service fund, which will replace legal aid in civil and family cases. Unlike legal aid, however, expenditure on the new fund will be controlled through the system for assessing need and planning priorities; through contracts which define most of the services to be provided by the fund; and through the flexible funding assessment which will help match the supply of services to the demand.

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Clause 7 introduces Schedule 2 which lists certain categories of case which are, for the time being, generally excluded from the scope of the fund. Broadly, that is the same as the existing scheme. Personal injury, but not clinical negligence, cases are generally to be excluded because those cases can generally be funded by conditional fees. A number of low priority categories—for example, boundary disputes and cases brought in the course of business—are also now excluded.
Schedule 2 may be amended, but only by affirmative procedure regulations. But flexibility is built in. I may issue directions to the commission to allow services within the excluded categories to be funded in exceptional circumstances. For example, I may direct that personal injury cases, which are generally excluded because they are suitable for conditional fees, may exceptionally be funded where there are high investigative or overall costs or where wider issues of public interest are involved.
Clause 9 requires the legal services commission to prepare a funding code which will set out the criteria determining whether particular cases should be supported by the community legal services fund. That will replace the merits test for civil legal aid and will be more flexible. The general test will be whether a reasonable person able to fund the case out of own resources would be prepared to accept the risk of pursuing it. It will be possible to apply different criteria to different categories, according to their priority; and it will be possible to change the code from time to time as priorities change. This new mechanism represents a major improvement on the current scheme. I am required to approve the code prepared by the commission and lay it before Parliament.
Clause 9 sets out a number of criteria which the commission must consider in preparing the code. Those include the wider public interest; whether the case could be funded in some other way; and the availability of resources in the fund. The code must also reflect the principle that in many family disputes mediation may be more appropriate than court proceedings. That new provision is at the heart of our reforms and the flexibility should enable the commission to focus funding onto the priorities which will have been identified.
Clauses 12 to 17 set up the criminal defence service. The scope and availability of criminal legal aid provision will remain as it is now. In time, the commission will provide all, or nearly all, advice, assistance and representation through contracted or some salaried defenders, although there is provision to continue case-by-case payments under regulations for the transitional period. This will enable the commission to set defined quality standards, which those with whom it contracts and any lawyers whom it employs, will have to meet. Defendants will have a real choice among lawyers of assured quality.
Clause 16 provides that a defendant in the Crown Court may be required to meet the cost of representation, unless he or she is acquitted. This is a change from the present system of means testing before a case is heard. The present system of means testing
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causes serious delays through adjournments while information on a defendant's means is being collected and assessed; and the cost of administering the system at £5 million is not far off the contributions received of £6.2 million. A power in the Crown Court will be cheaper to administer and eliminate delays caused by establishing a defendant's means before a trial. The change will also allow us to concentrate on recovering costs from wealthy convicted defendants.
Part III of the Bill deals with legal services. Clause 27 replaces Section 58 of the Courts and Legal Services Act. Conditional fees will continue to be absolutely prohibited in criminal cases and in family proceedings, with the exception of those family proceedings that are exclusively concerned with finance or property. The new sections also provide that a party against whom costs are awarded may be ordered to pay any enhanced fees that are part of a conditional fee agreement.
Clause 28 will enable a court, when awarding costs, to include the cost of any premium for a legal insurance policy to be recovered from the unsuccessful party.
Clauses 29 to 37 deal with our proposals on rights of audience and rights to conduct litigation. Together with Schedules 5 and 6, they will improve the statutory procedures governing rights of audience and rights to conduct litigation to make them more streamlined and quicker.
I should like to draw your Lordships' attention in particular to Clauses 30 to 33, which provide that all suitably qualified barristers and solicitors, whether employed or in private practice, have full rights of audience before all the courts.
Clause 36 puts on a statutory basis the duties which all advocates and litigators owe, first, to the court before which they are engaged and, secondly, to obey their professional rules. I hope that this provision will reassure those of your Lordships who really have doubts whether employed lawyers can be independent.
Part IV of the Bill, Clauses 38 to 48, contains provisions concerning appeals. They are designed to modernise the civil appeals system by ensuring that appeals are dealt with in a way which is proportionate to their weight and complexity and that there should only be a single avenue of appeal except in exceptional cases.
They will enable rules of court to provide that appeals in civil cases may only be made with the permission of the court; that, in unexceptional civil cases, there shall be only one appeal; and that the routes of civil appeals may be varied by order, subject to parliamentary approval.
Clauses 49 to 67 introduce a number of reforms to the organisation and management of the Magistrates' Courts Service.
The Government believe that a structure with fewer and larger magistrates' courts committees will be more efficient and effective. The number of magistrates' courts committees have been reduced in recent years and we wish to facilitate this process. Clauses 49 to 51 and 55 to 56 aim to achieve that.

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Clause 52 unifies the metropolitan and provincial stipendiary benches. In future, all stipendiary magistrates will have jurisdiction throughout England and Wales and will be renamed district judges (magistrates' courts) to reflect their status more accurately.
Clause 53 removes the requirement for lay magistrates to sit in the Crown Court on cases committed for sentence by the magistrates' court. Because of a change in the law, this has become much more frequent and magistrates have been hearing more serious cases which are outside their normal range of experience. On the other hand, I intend to retain the magistrates' role in the Crown Court on appeals from the magistrates' courts. These are cases of a kind they hear on a daily basis and where they have a real contribution to make in the Crown Court.
Clause 57 creates a Greater London Magistrates' Courts Authority to run all the Greater London magistrates' courts and to replace the existing 22 magistrates' courts committees.
Clauses 59 to 62 are intended to split the role of justice's clerk and justice's chief executive. We wish clearly to separate the important function of advising lay magistrates, which falls to justices' clerks, and the efficient and effective administration of the courts, which falls to the justices' chief executives, who need not be legally qualified.
Clauses 63 to 67 will enable the transfer of responsibility for the execution of warrants from the police to magistrates' courts committees. This should help restore public confidence in the effectiveness of fines and community penalties.
Clauses 68 to 74 contain provisions which change the circumstances in which costs can be awarded against justices of the peace, justices' clerks and their assistants and general commissioners of income tax; and further provide that general commissioners, and their clerks, and coroners, should be indemnified against any costs they incur in certain proceedings. It is a general principle that those exercising judicial authority on behalf of the state should not be personally liable for any costs arising out of an action taken against them.
We are not undertaking these reforms to save money or get justice on the cheap. Over the next three years we will be spending on average £1,600 million every year on legal aid. But we are starting with the proposition that resources will always be finite and that those resources must be used to best effect. The system of legal aid which was appropriate in 1949 will not meet modern needs. Resources must be targeted and focused according to need.
Between 1991–92 and 1997–98, expenditure on civil and family legal aid rose from £330 million to £634 million, an increase of 92 per cent. This was a much greater increase than the increase in GDP of 18 per cent. But in the same period, the number of people helped fell by 10 per cent. On the criminal side, 1 per cent. of cases consume 40 to 50 per cent. of the criminal legal aid budget. We must bear down on these costs.
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Under the existing legal aid system, criminal and civil, the Government have no effective means of controlling the rate at which costs increase, no means of directing resources to the areas of highest priority, and few means of ensuring the quality and value for money of the services for which it pays. That is no basis for maintaining, let alone expanding, access to justice for all. Legal aid is for the benefit of the public, not vested interests. The reality is that the funds available for civil legal aid are those left over after the prior demands of the criminal defence budget have been met. So these costs must be contained.
Our proposals are a realistic and fair way of using scarce national resources to the best effect to maximise access to justice. Their objective is not to maintain any particular structure or distribution of lawyers' businesses, but to benefit the public. I commend this Bill to the House.
Moved, That the Bill be now read a second time.—(The Lord Chancellor.)
3.38 p.m.
Lord Mackay of Clashfern: My Lords, I thank the noble and learned Lord the Lord Chancellor for his explanation of the Bill. I am not sure that we are all aware that we are participating in an historic occasion. This is the first time, while the House is sitting, that the Lord Chancellor has addressed the House from the Government Dispatch Box rather than from the Woolsack. I am sure that the researchers will be interested to know whether the noble and learned Lord has found it more comfortable to have his back to his friends or his back to the Throne.
The subject of access to justice, with which the Bill deals, has occupied Lord Chancellors over the years. The Title of the Bill is certainly appropriate and most parts of the Bill have some bearing on the subject. The title is, I am sure, an improvement on the title of the White Paper, Modernising Justice, which happens to be blue. Daily, when the House sits, we pray for justice. The prayers have been the same for many generations. The principles of justice are timeless and it cannot be possible to modernise justice. It may be possible to modernise access to justice, which is the concern of the Bill.
I propose to make only a few observations. The speakers' list is long and many noble Lords on it have great experience of the system with which the Bill deals. A small part of the Bill deals with Scotland and so far it has not figured in the explanation. As the noble and learned Lord who is to reply also has Scottish origins no doubt that matter will be dealt with later.
The first part of the Bill covers the setting up of the legal services commission, the community legal service and the criminal defence service. As the noble and learned Lord explained, that is a development from the Legal Aid Board and its authorities, which have their origins in the 1949 arrangements. It is clear that those arrangements need to be substantially overhauled.
This may be the first occasion on which a government have introduced a new body with the provision for splitting it into two bodies without further recourse to

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primary legislation. However, there is substance in the view that it may be wise to separate the criminal from the civil system at some time. It is explained that it is done in this way to facilitate transfer from the Legal Aid Board. I well understand that.
I also join the noble and learned Lord the Lord Chancellor in his tribute to the efforts that the legal profession has made over the years to provide services for the disadvantaged. The Free Representation Unit, which is funded by the Bar, has been in existence for a long time. The pro bono groups of barristers and the pro bono groups of solicitors, more recently funded, are also an important development and they give the lie to the idea that the legal profession as a whole is out to feather its own nest with no regard to the public. I do not believe that people enter the legal profession with that kind of spirit.
The two systems to be funded by the legal services commission are referred to as the community legal service and the criminal defence service. As far as the community legal service is concerned, apart from the word "community" appearing in its name, I do not think that the word appears again in the description of it in the Bill. I wonder which "community" is in question. Is it the nation? If so, is it "the national legal service", or is it some other idea of "community"?
Some years ago we had a debate in the Chamber on matters concerned with legal aid and there was strong support for the view that local initiatives have to be supported. I consider it important, in a community legal service, to try to build, so far as possible, on what the community itself has provided. I welcome the working party with local authorities, to which the noble and learned Lord the Lord Chancellor referred, which seems to have that in view. Tremendous work has been done by those centres in communities. One of the difficulties which has been experienced in the past—the noble and learned Lord must have an answer to this—is that while government funding became available, local authority funding tended to be reduced, so the units were no better off. The contracting arrangements, which had been piloted with them, have helped to deal with that matter. I certainly would be interested to hear how that subject matter has been dealt with.
The most important aspect of contracting, to my mind, is the securing of quality in the contractors. The Legal Aid Board has been seeking to work on that for a long time. I hope that before the provisions of this Bill are implemented it will have reached a stage where reliance can be placed upon it.
One other matter on this part of the Bill is that the noble and learned Lord the Lord Chancellor spoke of the flexibility of a new criteria for the grant of legal aid. I can see the advantages of flexibility, but I can also see that, if there is to be fairness, there is a need for criteria that are known and approved. I should have thought that there is a good deal to be said for the view that the criteria should be approved by Parliament as part of the general and primary legislation.
Some of your Lordships may remember in 1988, when I introduced the Bill that became the Legal Aid Act, the late Lord Elwyn-Jones, whom we all sadly
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miss, speaking from the Labour Front Bench, criticised the Bill on the number of devolved powers that it contained. If he were to speak on this Bill he may have more grounds for that complaint. I regard it as important that this is the subject of primary legislation, particularly in relation to matters such as judicial review. It has been said that local authorities tended not to be keen to fund local centres if the result of the local centres' advice was on action seeking a judicial review against the local authority. I am sure that the Government would not wish to be accused of any partiality on that basis. So far as concerns the ultimate decision on whether or not a particular class of case is to be funded, or a particular criteria in relation to the Government, there is, at least, a risk of that.
Passing over the legal aid provisions for Scotland, I turn now to the provisions dealing with legal services, and to the abolition of the Lord Chancellor's Advisory Committee on Legal Education and Conduct. I agree, of course, that the procedures under which that body operated in the past could now be improved. Indeed, the Bill introduces proposals to improve the procedures; for example, to make it possible not to refer every application, but only the important ones, for advice. I do not see that as a reason for getting rid of the body altogether. The explanations given were that the advice took a while to develop, that it was slow, and that, in the end, so far as employed solicitors were concerned, the amount of development was rather small.
The number of solicitors in private practice—700-odd as at last Friday—is small. Is that evidence that the standards are wrong? Is that the inference to be drawn from the way in which it is described in the White Paper, that the standards are too high? If not, we need an explanation of why it is thought that that is something on which adverse comment can be made.
Another point relates to ACLEC. I pay tribute to all the distinguished judges who headed it over the years and the distinguished people who took part in it. They dealt with issues of considerable importance. I happen to have views of my own about a number of those, but I acknowledge the fact that many distinguished people, with great experience of the system, have a different view. The fact that the committee was split, sometimes narrowly, surely is an indication of how important and difficult those issues were. I am not sure whether I would prefer to be a member of a committee or of a panel, but I have the impression that the panel is intended to be a slight demotion of the present committee arrangement. In creating the Lord Chancellor's Advisory Committee on Legal Education and Conduct, I sought to build on what had previously existed in the shape of an advisory committee on education.
The clause on rights of audience for employed lawyers seems to raise the question of whether rights of audience are automatically conferred on those who are solicitors, whether or not they are now qualified. Is the effect of the clause to be that, immediately this Act comes into force, all solicitors are to be entitled to rights of audience in the higher courts? If that is not what the

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clause means, does it mean that the 700-odd who already have those rights will simply continue to have them and that no particular advance is thereby created?
I turn now to the magistrates' courts. I very much support the proposal to give magistrates immunity in respect of costs. Some years ago they were given immunity in respect of actions. The Bill seeks to extend that. When we gave immunity in respect of actions we thought that the discretion of the court would protect magistrates sufficiently. It has not quite turned out that way, so I strongly support the proposal. I am not certain whether the proposal intends one to look back to the old law before deciding whether an order can be made against the Lord Chancellor. It says something like, "If the award is prevented by the earlier subsection, this award can be made". I should prefer there to be a general discretion, without requiring one to go back to the old law. May I ask whether the provisions, which now cover commissioners of income tax, magistrates and coroners, deal with all judicial persons who are liable to be subjected to personal awards of costs against them?
I am glad that justices are to be retained to deal with appeals. I recognise that the changes which have occurred may require that justices will no longer serve on cases dealing with remit for sentence. The explanation that such cases are more severe than those with which magistrates normally deal does not strike me as a particularly good reason for making the change. There should be continuity in sentencing. When magistrates are considering lesser sentences in their own courts, it is good that they should have some sense of what merits a more severe sentence in the higher courts and, conversely, that those who are sitting in the higher courts on a case where, at the moment, they have a magistrate with them, should benefit from the magistrate's experience in dealing with less serious cases. The change in the Court of Appeal criminal division, allowing circuit judges to serve as members of the court, has proved to be a valuable assistance not only to those judges and to the circuit Bench, but also to the consideration that the Lords Justices and the justices who form the other members of that court give to such cases.
I am sure that we shall want to discuss other matters in Committee. I believe this to be a very important Bill, substantial parts of which are built on work which was done, as the White Paper makes clear, when I had the privilege of holding the office which the noble and learned Lord the Lord Chancellor holds now.
3.53 p.m.
Lord Goodhart: My Lords, it is common for Ministers to describe their Bills as "far-reaching and radical" when the Bill is simply tinkering and cosmetic. Nobody could possibly say that this Access to Justice Bill is tinkering and cosmetic; it is unquestionably the greatest shake-up of legal services since the original Legal Aid Act 1948.
Perhaps I may start with three comments which do not go to the substance of the Bill, before commenting on its contents. First, the White Paper was published on
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1st December. The Bill and the Explanatory Notes were published the following day. That was only 12 days ago. Some proposals in the Bill—for example, on rights of audience and conditional fees—were preceded by consultation papers, but many key proposals were not subject to prior consultation and the time provided for the study of the Bill has been wholly inadequate. Organisations such as the Law Society, the Legal Action Group, Justice—I should declare that I am a council member—and the Bar Council have had the time to produce only very limited briefings. The National Association of Citizens' Advice Bureaux, which is one of the key players in this area, has been unable to produce a briefing at all in the time available. For that reason, I am unwilling to comment on Parts V or VI, which contain the changes to the magistrates' courts system, because they are not within my experience and I have been unable to obtain adequate briefing on them. This is a prime example of a Bill which should have been published in draft for discussion. It is essential that adequate time should now be given for considering and tabling amendments. If that is to be achieved, it means that the Committee stage must not begin until at least the second week after the end of the Recess.
Secondly, this is not one Bill, but three. Parts I and III are really a legal services Bill; Part IV, which deals with appeals, is an administration of justice Bill, and Parts V and VI are a magistrates' courts Bill. The reason for that is no doubt that it is easier to get one slot than three in the legislative timetable. However, those very diverse issues make a well ordered debate difficult and will make the later stages of the Bill's progress far too long drawn-out.
Thirdly, the compliance statement, under Section 19 of the Human Rights Act, is wholly inadequate. I do not challenge it, but it is plain that the Bill raises convention issues, especially under Article 6 of the European Convention on Human Rights. It is desirable that a much fuller explanation should be given of the reasons why the Bill is believed to be compatible. That explanation should be given in the Explanatory Notes—at least until a Select Committee on human rights is established which can comment on the human rights implications of Bills in the same way as the Select Committee on Delegated Powers and Deregulation comments on the powers in Bills to make secondary legislation.
I turn now to the contents of the Bill. I do not propose to comment at any length on Part IV, relating to appeals. I suspect that that will be one of the less controversial parts of the Bill. The details may require scrutiny in Committee, but the proposals seem broadly acceptable. For the reasons that I have already given, I shall not comment on Parts V and VI. Part II relates to Scotland, on which I have no qualifications to speak. That leaves only Parts I and III, but there is enough material in those parts alone to justify a speech for far more than my allotted time of 15 minutes.
Part I destroys legal aid as we know it and replaces it with a wholly new system. This party has always had a deep commitment to the Legal Aid Act. In its 50 years of life, it has done an enormous amount to improve access to justice for the disadvantaged. However, we must recognise its defects. It has become too expensive.

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To a large extent, that is because of the increasing cost of legal services generally. However, there have been failings and abuses. Legal aid has been granted in cases where it was not justified. The fact that any barrister or solicitor willing to take legal aid work could be funded from the Legal Aid Fund meant that money was wasted on incompetent practitioners. There has been insufficient control over the fees charged by legal aid practitioners. We recognise that some change is therefore inevitable.
We do not oppose the creation of the legal services commission, the community legal service, or the criminal defence service. We particularly welcome the proposals to improve the advisory services. We hope that that will be an improvement on the present haphazard system of advice and assistance through citizens' advice bureaux, law centres and more specialised advice centres, which are often the preferred first point of contact with the legal system for someone who has a legal problem.
We agree that accreditation is desirable to ensure that lawyers who are providing publicly-funded services are indeed competent to provide them. But accreditation must be objective and must not be withheld from those who are competent to provide legal services. That is certainly something that we shall wish to come back to at Committee stage. We accept that it is reasonable for the Government to be allowed to negotiate fees directly with legal service providers. We accept that the merit criteria need to be tightened and priorities for legal aid and assistance established.
However, we also see many serious problems in Part I of this Bill. We object to the Lord Chancellor's power to give directions to the legal services commission. This is a very sensitive area. The separation of powers, particularly between the Executive and the judiciary, is a matter of the highest constitutional importance. We believe that it would be wrong for a community legal service and the criminal defence service to be run directly by the Lord Chancellor's Department. The legal services commission is therefore an important buffer between the Lord Chancellor and the legal system. We believe that it is most important that the legal services commission should be independent in implementing government policy as expressed in legislation. Guidance by the Lord Chancellor, yes: directions, we say, no.
We have serious concerns about the contracting system for both civil and criminal cases. We see very great dangers in the creation of exclusive contracts. Contracting must not be used so as to eliminate services in remote areas or to reduce choice where choice is now available. My noble friend Lord Phillips of Sudbury, whose experience may well be unrivalled in your Lordships' House in this field, will go into this in more detail later.
The maintenance of choice is a matter of particular importance in criminal cases. Article 6 of the European Convention on Human Rights confers on a defendant the right to legal aid and the right to defence by a lawyer of the defendant's choice. We do not believe that the Bill itself contravenes Article 6, but it could easily be implemented in a way which does. We believe that enormous care must be taken to ensure that it does not.
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We strongly object to the creation of a public defender system through lawyers employed by the criminal defence service. Public defenders in other countries, especially in the United States of America, are an example of what not to do in that field. They are notorious for incompetence and inadequacy. As matters now stand, we have a good system of independent defence lawyers. We must not undermine that system. I believe that the creation of employed defence lawyers—anything in the nature of a public defender system—would create that danger.
We regret that the Bill does not contain a proposal to set up a separate public interest fund to cover costs in cases which raise issues of major public importance. Such cases may very well not be brought because they do not qualify for assistance from the community legal service fund. For example, there may be cases which do not confer a great benefit on any one individual and will therefore not justify granting legal representation to a particular individual; but at the same time, in aggregate, they may be matters of very great importance for the community as a whole. The noble and learned Lord the Lord Chancellor expressed interest in the idea of a separate public interest fund in his speech to the Law Society's annual conference in 1997. We very much regret that he has not pursued it further in this Bill.
Finally, I turn to Part III of the Bill on legal services, which deals with conditional fees, rights of audience and the powers of the Lord Chancellor to order changes in the rules of professional bodies. Conditional fees have many drawbacks, as can be seen by the effect that their close cousins, contingency fees, have had on litigation in the USA. There are dangers to professional integrity if lawyers have a direct and personal financial interest in the success of their cases. On these Benches we have reluctantly accepted that conditional fees should be allowed where the alternative is a denial of access to justice. Clearly, it is unrealistic to expect that free legal aid should now be extended to the middle income group which cannot afford any form of serious litigation on its own. For that group it may well be that conditional fees are better than no access.
But the Bill contains provisions which, I believe, encourage litigation on conditional fees even where it is not essential that conditional fees be made available. We believe that those provisions should be removed from the Bill. We welcome the statement in the White Paper at paragraph 3.30 that the Government would take powers to make it possible to establish a self-financing contingency legal aid fund. But we believe that such a fund, usually known as CLAF, is a much better alternative to conditional fees and that the Government should not only take powers to do so, but should proceed with a pilot scheme on this subject as soon as possible.
I now turn to rights of audience. As a barrister, I think now, as I have thought for many years past, that solicitors' rights of audience should be extended. So indeed now does the Bar Council. I believe that an independent Bar provides a service which, as has happened in Australia and New Zealand, can and will exist without the need for protection by restrictive rules.

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However, we have concern about the extension of rights of audience in the Crown Court to employees of the Crown Prosecution Service. Indeed, some of my noble friends believe that the rights of audience of the CPS should not be extended at all. Others of us would not go quite that far, but all of us are agreed that if rights of audience are extended in the case of the CPS, those rights should be controlled so that a substantial part of the prosecution work still goes to independent advocates.
The powers of the Lord Chancellor to impose rule changes on professional bodies raise very serious issues of constitutional propriety. There has been powerful criticism of the proposals made in speeches outside this House by the noble and learned Lords, Lord Steyn and Lord Ackner, and by Mr. Sydney Kentridge, a most distinguished lawyer with an impeccable liberal pedigree.
I am glad that the noble and learned Lord the Lord Chancellor has recognised some of the force of this criticism by accepting that any change in the rules of the professional bodies which is imposed by the Lord Chancellor must be made by an order passed by the affirmative resolution procedure. However, it is doubtful whether that of itself is a sufficient safeguard. A Government with a majority of 179 in the Lower House and with an Upper House which, by convention, does not defeat secondary legislation under the affirmative resolution procedure have no check on their powers. In any event, the affirmative resolution procedure is the absolute minimum which is needed to make that power acceptable. We shall certainly need some persuading that it is sufficient of itself.
Therefore, we have many criticisms of the Bill and we shall press hard for changes at its later stages. Over the past 50 years legal aid has provided access to justice for many to whom it would otherwise have been denied. It has perhaps been the victim of its own success. At any rate, it is clear that the system now does need a major overhaul, but, in doing so, the vision of access to justice for all must not be lost in the course of making the necessary corrections.
4.10 p.m.
Lord Bingham of Cornhill: My Lords, as the noble Lord, Lord Goodhart, pointed out, this Bill has been heralded as the biggest shake-up in legal services for 50 years and as changing the legal landscape. There is, I believe, truth in those claims and, accordingly, an obvious need for very thoughtful consideration of what the Bill proposes. It would be as wrong for your Lordships' House and for those professionally involved in the administration of justice to embrace these proposals with uncritical enthusiasm because they are new as to resist them unthinkingly for the same reason. Our concern must surely be to ensure that, while blemishes are removed and necessary improvements made, the virtues of our existing system—and I hope that I can describe them as "great virtues"—are preserved.
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I regard it as wholly desirable to co-ordinate and publicise the invaluable work done by a host of non-governmental agencies which offer advice, help and sometimes representation to the citizen—sometimes, but not always, in very specialised fields. It seems to me wholly desirable to encourage and support the resolution of disputes outside the courtroom by ombudsmen schemes, by mediation and by other forms of additional dispute resolution. Subject to questions of detail, I welcome the proposed changes to appeal procedures which carry forward a process that has been developing over several years.
I welcome in principle the proposal to rationalise the administration and organisation of the magistrates' courts. I know, from a number of personal visits to benches of justices in England and Wales, that the lay justices feel threatened. I hope that these proposals are another sign that the Government's aim is not to marginalise or undermine the role of the lay justices but to strengthen and support it. As magistrates' courts are the only courts which the great mass of the population ever see, I regard this as vitally important. It is high time that the important contribution of the stipendiary magistrates was recognised by a change of title, even though the new title is not that which I myself would have chosen.
However, there are three matters central to the Bill on which acute concern is felt by my judicial colleagues. The first is civil legal aid. Here I echo something of what the noble Lord, Lord Goodhart, said. In recent years, legal aid has been a favourite target of criticism as being expensive, demand-led, out of control, ill-focused, used to support unmeritorious claims, unfair to unassisted parties and a ready source of outdoor relief for not very indigent lawyers. There is some truth in most at any rate of those criticisms. To my knowledge, no one contends that the scheme should continue entirely as it is. It now has few friends.
We should, however, recall that over the past century the legal aid and advice scheme has given millions of our fellow citizens the benefit of legal protection which they never would otherwise have enjoyed. The Act was enacted at very much the same time as the National Health Service Act, with a similar aim; namely, to make legal protection, like health, available to all who really needed it and could not afford it. This is not an argument for perpetuating the scheme in its present form. I have always supported conditional fee agreements as a means of increasing access to justice. I see obvious virtue in reliance on legal expenses insurance. I see, with deference to those who think otherwise, no reason why the Government, who provide the money, should not have an important say in how that money is spent. But I am very anxious indeed that the withdrawal and redirection of legal aid should march hand in hand with the availability of other sources and means of support in appropriate cases.
As yet, conditional fee agreements, although familiar in the personal injuries field, have a somewhat tenuous existence in every other. The market in "after-the-event" legal insurance is still in its infancy. It is not at all clear how the interests of defendants will be protected. My plea is for a change-over sufficiently gradual that the

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most vulnerable members of our society are not excluded from legal protection until alternative sources of protection are available.
The second area of acute concern to many—indeed, probably most of my judicial brethren—relates to Part III of the Bill. I refer to the proposals to abolish the Lord Chancellor's Advisory Committee; to alter the role of the designated judges from that of decision-makers to that of consultees; to extend rights of audience, in particular to Crown prosecutors and employed lawyers; to introduce, perhaps, depending on the Scottish pilot, salaried defence lawyers; and, above all, to concentrate the power of decision on rights of audience in the hands of the Lord Chancellor alone. I believe that those arguments will be fully and strongly put to your Lordships' House in due course and I shall not elaborate them. However, I make clear that they represent a strong judicial view that there should be an independent body with the same broad functions as the advisory committee; that a power of veto should be preserved, at any rate for a majority of designated judges or the Judges' Council; that any wide extension of rights of audience should not undermine the standards of skill and integrity on which the administration of justice critically depends; that all advocates should be subject to the same code, as, perhaps, should salaried public defenders; and that there should be a level playing field to ensure that competition between advocates is fair. Another concern is that Crown prosecutors and employed lawyers may lack the objectivity and independence which every advocate should enjoy while the proposal to entrust these powers to the Lord Chancellor is regarded as repugnant on the grounds that no Minister, however eminent and greatly respected, should enjoy such power.
These are apprehensions which must command attention and respect. However, I have to say that it is an unfortunate fact that I do not by any means fully share them. While successive chairmen, members and staff of the advisory committee have done their utmost to fulfil the mandate which Parliament gave them, the resulting procedure has been correctly characterised as complex, bureaucratic and slow. Although it is true that the judges have historically decided who should have the right of appearing before them, in recent years this has been a largely formal power. For my part, I do not think that this is an area into which Parliament and the Executive should be forbidden entry, but I would of course hope that any decision takes account of the views that the judges express. After all, the Lord Chancellor plays a very prominent part in choosing the most senior judges and it is reasonable to hope that he chooses those whose judgment he broadly respects and those whose advice he is likely to take notice of.
Six years' experience as one of the designated judges—I have perhaps longer experience in this matter than anyone except the noble and learned Lord, Lord Mackay, and I am not far behind him—persuades me that the existing regime is unsatisfactory. I see no satisfactory alternative other than that proposed. While others disagree—and, I must make it plain, disagree very strongly, even passionately—I do not agree that Crown prosecutors, members of a service led by a very
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distinguished advocate answerable to an Attorney-General who has made clear his belief in the independence of the prosecuting function, would be likely to exhibit in the higher courts vices of which no complaint is made in the lower.
Above all, it seems to me right in principle, subject to appropriate safeguards to which I shall return—and subject, certainly, to appropriate consultation—that the final power of decision in these matters should rest with the Lord Chancellor. In the last analysis, it is he alone who is answerable to Parliament and to the public for the exercise of these powers. As a former Lord Chief Justice—not, it is fair to say, one of the most universally admired—wrote in a different context:
"All experience shows that nothing is more dangerous in public affairs than that nominal responsibility should belong to one person while real authority rests with another".
The third area of concern, closely linked with the second, is that there are throughout the Bill occasions too numerous to attempt to list where the conferment of powers and the right to make decisions and to give directions are entrusted to the Lord Chancellor alone. The apprehension is again that which I have mentioned. As I have indicated, my opinion is that in the final analysis the responsibility and the authority should be in the same hands, which should be those of the Lord Chancellor.
But—and I regard this as an important "but"—it seems to me desirable, to allay fears and to ensure that fundamental principles are followed and borne in mind when decisions are taken, that these principles should be clearly set out on the face of the Bill. Such, indeed, we find concerning the duties of advocates in Clause 36; such we also find in the statutory objective set out in Section 17(1) of the 1990 Act and the general principle set out in Section 17(3), both of which remain operative. These guiding rules could, in my view, be supplemented by a clear statement of certain other fundamental principles, not in themselves controversial but calling for explicit endorsement at a time of radical and far-reaching change. I have in mind such principles as that the independence of the judges—and I would include justices' clerks—should be inviolate; that Her Majesty's subjects should, in proper cases, so far as practicable, if other means of dispute resolution fail, be afforded access to Her Majesty's courts; that a strong, independent and self-regulating legal profession should be preserved; that rights of audience should be exercised only by those who possess the required knowledge, skill and integrity, and who are subject to a common code of conduct and discipline; and lastly—although, no doubt, the list could be supplemented—that no advocate acting as such should be made the subject of any penalty or adverse discrimination on the grounds of any honest, reasonable and careful exercise of judgment.
The Lord Chancellor has, with undoubted sincerity, affirmed his belief in almost all of these principles on more than one occasion. I hope that he and his colleagues may see merit in an explicit statement of these overriding principles. If, inadvertently, he or one of his less distinguished successors were to propose a course which infringed any of the principles, then he or she would be amenable to judicial review. That,coupled

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with legislative oversight, for which provision is made in the Bill, would, I believe, go far to meeting the anxieties which undoubtedly exist.

Business
Lord Hunt of Kings Heath: My Lords, before we move to the Statement on the European Council, I remind the House that the Companion indicates that discussion on a Statement should be confined to brief comments and questions for clarification. Peers who speak at length do so at the expense of other noble Lords.

European Council, Vienna, 11th-12th December
4.26 p.m.
The Lord Privy Seal (Baroness Jay of Paddington): My Lords, with the leave of the House I will now repeat a Statement being made in another place by my right honourable friend the Prime Minister. The Statement is as follows:
"With permission, Madam Speaker, I will make a Statement about the meeting of the European Council on 11th and 12th December which I attended in Vienna along with my right honourable friends the Foreign Secretary and the Chancellor of the Exchequer and my honourable friend the Minister of State, Foreign and Commonwealth Office. The Council conclusions have been placed in the Library.
"The Council concentrated on employment and economic issues, Agenda 2000, enlargement, the future development of Europe and a number of foreign policy questions.
"At Vienna, the last Council before the introduction of the euro by 11 member states, we confirmed and strengthened the strategy on economic reform and employment agreed at Amsterdam and Luxembourg last year and reinforced at Cardiff earlier this year. Macro-economic stability provides the essential basis for long-term growth. Supply side reform must go hand-in-hand with this. Member states have now submitted national progress reports on reform of product and capital markets. These will be subject to rigorous peer review in the first part of next year.
"There will be a parallel review of national employment action plans, the first set of which were submitted during the UK presidency. At Vienna, we agreed revised employment guidelines on which next year's national action plans will be based. The new guidelines fully reflect British priorities. They place particular emphasis on tackling long-term unemployment; promoting equal opportunities; making a reality of life-long learning; fully exploiting the potential of the service sector; creating the right climate for entrepreneurship; reviewing tax and benefit systems to provide incentives for the
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unemployed to take up work or training; promoting social inclusion; and examining regulations to ensure that they reduce barriers to employment. This work will be carried forward under the German presidency to produce an employment pact, within the framework of a wider process aimed at employment, growth, stability and economic reform.
"Jobs remain Europe's top priority. The strategy developed over the past 18 months is beginning to bear fruit, with over 1 million new jobs created in the EU in the last year, including over 250,000 in the UK, and the overall rate of EU unemployment falling below 10 per cent. for the first time since 1992. But member states need to step up their efforts to implement real reforms in their labour markets, learning from one another. It was noteworthy that representatives of small businessmen were included in the dialogue between heads of government, employers and unions for the first time at Vienna.
"Also in the economic field, we agreed new measures to complete the internal market, not least in financial services, improve innovation, increase the availability of risk capital and strengthen investment in infrastructure. We agreed on the gravity of the challenge posed by the millennium bug and the particular need to protect national and international infrastructure.
"We also discussed the desirability of better economic policy co-ordination. A small part of this discussion concerned tax policy. The Council agreed that co-operation in this area is not aimed at achieving uniform tax rates or preventing fair tax competition; rather its aim is to reduce harmful distortions in the single market, prevent excessive losses of tax revenue, and encourage employment-friendly tax structures. Work will continue on long-standing proposals on energy taxation and on taxation of savings, with a view to reaching agreement by next December. The UK Government will ensure that British interests—including those of the City of London—are fully protected and promoted in those discussions.
"On a separate tax matter, I and others called for a review of the 1991 decision to end duty-free sales in Europe from next year, not least since the proposed successor arrangements risked ridicule. The Council asked the Commission and finance ministers to examine by next March possible means of addressing the problem, including a limited extension of the transition arrangements. Unanimity is required to secure a change, but a door which seemed firmly closed is now at least half open.
"The council endorsed the finance ministers' report on external representation of the euro area. The UK's essential interests are protected: our membership of the G7 and other international fora will continue as before. We also confirmed an agenda for reform of the international monetary and financial system very much in line with the ideas which my right honourable friend the Chancellor and I have been arguing for—more transparency in international and

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national financial markets, better co-operation between the IMF and other actors, strengthened prudential and regulatory standards.
"Much of the discussion in Vienna was about Agenda 2000. This is a wide-ranging and important negotiation embracing the reform of the common agricultural policy to help the consumer, create a more efficient and competitive agriculture sector and reduce the burden to the taxpayer; and reforms to the structural and cohesion funds to ensure that they are fair and affordable, including after enlargement. On future financing, the UK is among a large group of member states arguing for stabilisation of expenditure at current levels by the year 2006. Vienna confirmed the political objective of reaching overall agreement at a special meeting of the European Council on 24th and 25th March.
"As for the British budget rebate, I repeat what I said in Vienna. The rebate is still fully justified and will remain. Even with it, the UK is the fifth largest net contributor in per capita terms, while we are ninth or tenth in terms of GNP. We still pay far more than countries such as France, with the equivalent population and slightly higher national income.
"On enlargement, the European Council welcomed the fact that the first practical results have been reached in negotiations with Cyprus, Hungary, Poland, Estonia, the Czech Republic and Slovenia. It also welcomed progress made by Romania, Slovakia, Latvia, Lithuania and Bulgaria; welcomed the reactivation of Malta's application; and recognised the importance of implementing the EU's strategy to prepare Turkey for membership. Work in all these areas will intensify next year.
"In the UK presidency my right honourable friend the Deputy Prime Minister led work in the EU on integrating environmental policy into other community polices. The Austrian presidency carried forward this work in the fields of transport, energy and agriculture. At Vienna we agreed that it should be developed further into the areas of international development, the internal market and industry.
"At Cardiff, I launched a debate on the future development of the EU which was carried forward at the informal summit in October. We agreed in Vienna further steps to make a reality of subsidiarity and improve the effectiveness of EU institutions. We will issue a millennium declaration setting out the Union's priorities for the period ahead at the end of next year, to coincide with a new Commission taking office.
"At the informal summit in October, I urged the strengthening of the EU's foreign policy, not least by backing it with a credible capability for military action in regional crises where the US or NATO as a whole does not wish to be engaged. The joint declaration agreed with the French at St. Malo on 4th December gave us a sound basis on which to build this initiative. It was widely welcomed by partners at Vienna. We agreed that work should be taken forward under the German presidency. There is of course no question of undermining NATO in any way. Strengthening European defence capability will strengthen NATO.
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"On current foreign policy issues, we underlined the urgency of bringing the parties in Kosovo to a political agreement and the importance of the EU continuing its political and economic support for the Middle East peace process. We repeated our readiness to help Russia overcome its present severe difficulties, and agreed that Russia should be the subject of one of the first CFSP common strategies when the Amsterdam Treaty enters into force.
"The Vienna Council made useful progress on the economic and employment points, and above all laid a solid foundation for the difficult Agenda 2000 negotiations in the next three months. Britain's interests were safeguarded and promoted without difficulty. We defended our positions, in a constructive way, just as others defended theirs.
"In the days before Vienna we issued joint statements with Spain on structural reform, with Sweden on social policy, with France on defence and with Germany on tax. All of these were welcomed in the discussion and reflected in the conclusions. At Vienna itself we helped shape the debate on economic and employment issues, on Agenda 2000, on enlargement and other issues in sensible directions, fully consistent with our interests.
"This Government have transformed Britain's relations with the rest of the European Union since they took office. It is in the fundamental interests of this country that we remain fully engaged in the debate on the development of the EU. On this side of the House we have the confidence in our arguments, and in our ability to build support for them, to believe that we can win the debates in Europe in favour of economic reform, and an open and decentralised Europe.
"Those who would end up by taking us out of Europe, or so far to its margins as to eclipse any serious influence in Europe, would profoundly damage this country. This Government will not be swayed from their positive and constructive European policy. I have no doubt that this is the right course for Britain's future."
My Lords, that concludes the Statement.
4.36 p.m.
Lord Strathclyde: My Lords, I thank the noble Baroness the Leader of the House for repeating this important Statement and wish to go on to ask her some questions and make some comments about the issues that she has raised.
First, though, does she recall that, after the so-called informal Council that took place at Poertschach some weeks ago, my noble friend Lord Cranborne and I pressed for a Statement to be made in the House on the undertakings given on European defence integration, on tax harmonisation and on closer integration? Does she agree that at the time no Statement was given to this House because of the disinclination of her right honourable friend the Prime Minister to make a Statement in another place? Does the noble Baroness now agree that, in the light of what has taken place at the Vienna summit, it is clear that substantial efforts

1131
were already in train at that earlier summit to give new momentum to European integration and that it would have been better to have made a Statement? Indeed, does she accept that the Prime Minister might have been in a stronger position at the Vienna summit if he had had the reaction and support of the British Parliament behind him? Will she therefore give the House an assurance that, as this process develops, Statements will in fact be given in this House on important informal summits such as the Poertschach meeting?
Turning now to the substance of the issues decided in Vienna, I welcome the reaffirmation of the need to take action against the scandal of Community fraud. Will she accept, however, that the problems of fraud have long been identified and that we on this side will find it disappointing to read that a review in Council of the fight against fraud will not take place until December 1999? Is she aware that we also welcome the restatement of the aim to widen membership of the Union? But has she also noted that, while the Presidency Conclusions speak of "new momentum on integration" and "a new impetus towards a defence role for the European Union", they refer only to maintaining momentum on enlargement? Can the noble Baroness inform the House whether the Government's prime strategic objective is to widen the Union or to deepen it? If widening the Union is the objective, what specific success can she report for British influence in Vienna?
I welcome the underlining of the commitment to subsidiarity and the reduction of unnecessary regulation. This is something for which my right honourable friend Mr. Major, when he was Prime Minister, laboured long and hard. Will she give the House examples of Community legislation that has been modified or repealed under this agreement as a result of the British Government's initiative?
So much for what we can welcome. Will the noble Baroness note our concern and disappointment as regards the overall outcome of the summit? Is she aware that the pronouncements of the Prime Minister on the issues before this summit were somewhat confused, and that they have not become any more convincing or consistent the more often they are repeated? Does she agree that the Prime Minister tends to emphasise a different line depending on where he is speaking? Did she note his remarks on GMT when he said that my noble friend Lady Thatcher was right to stand firm for Britain's interest, but that on the other hand she was wrong to stand so firm? Is the Prime Minister standing anywhere on his European policy except on his head?
What did the Prime Minister mean when he said that the UK rebate was up for negotiation? Is it, and what were the conclusions of Vienna on this? What did the Prime Minister mean when he wrote in The Times today that there is a genuine debate on aspects of tax harmonisation? Is the noble Baroness aware that the Prime Minister agreed in Council to pursue work on a directive on taxation of savings and a directive on interest and royalties? In that work what do the United Kingdom Government rule in and what do they rule out?
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The Council emphasised the need to combat harmful tax competition. What tax competition do the UK Government consider harmful? The Council agreed that it wished to get national tax structures,
"to develop in a more employment-friendly way",
and commissioned a study on company taxation. What will the UK Government say to UK business on this? What are their objectives in agreeing to it? What is the Government's policy on a Europe-wide withholding tax?
The Presidency Conclusions talk of a new impetus on European defence integration following the Poertschach meeting. How far are the Government prepared to go in dismantling the Western European Union? Will the noble Baroness the Leader of the House allow a debate in government time and explain what specifically they see as the long-term role of the European Union on defence?
I believe that the Government have come to a crossroads. The rhetorical plaster that the Prime Minister has put over his incoherent policy on Europe is coming off. The European Council conclusions—endorsed by the Prime Minister—proclaim new momentum on European integration. The train is on the move. Are the Government on the train, or off it? Are they trying to apply the brakes, or propel it forward? I think that this House needs to know the principles guiding the Government's policy on Europe. I hope soon we shall be told that.
4.42 p.m.
Lord Rodgers of Quarry Bank: My Lords, while I thank, as always, the noble Baroness the Leader of the House for repeating the Prime Minister's Statement, I hope that I am not alone in looking forward to the day when reports of the European Council will be seen as too routine to deserve such formal prime ministerial Statements. In practice, the report was of a relatively quiet weekend in Vienna, despite the predictions of stormy and difficult negotiations. Almost all there is to know has already been said in the communiqué, in press briefings and on television. In that respect I certainly do not intend to follow the noble Lord, Lord Strathclyde, in discussing yesterday's television programmes or, for that matter, today's newspapers. I shall limit my remarks rather rigorously and show discipline by dealing with the Statement itself.
I hope that there is much for all of us to endorse. As regards enlargement, certainly I think we can endorse what the Statement says, although the process of enlargement is much too slow. I do not think Vienna accelerated the pace in any way at all. As regards the British budget rebate, we have been told what we always knew—despite the noise which was made by the Conservative Party in advance of Vienna—namely, that it was never seriously at risk. As regards strengthening the European Union's foreign policy with a credible capacity for military action, I think that step was widely endorsed in both Houses of Parliament only a week ago. It is good to hear that jobs remain Europe's top priority and I hope they still remain a top priority here and we shall not always be carried away with regard to the

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percentage or the decimal point of inflation. I think we all know that the common agricultural policy remains a great unsolved problem with which the European Union must continue to battle.
I cannot work up nearly as much passion as the Prime Minister on duty-free sales and I wonder whether that was entirely a wise use of prime ministerial time. However, I may be an exception on that matter, even in your Lordships' House, and therefore I rest my case. As regards tax harmonisation, despite all the excitement that was a dog that did not bark. I welcome the fact that the Statement acknowledges, properly, that there is a place for reform to reduce distortions in the single market. It was necessary and inevitable that certain tax matters should be looked at in the light of the single market and its proper functioning as a level playing field.
The noble Baroness the Leader of the House repeated—as it was proper to do—the Government's claim to have transformed Britain's relationships with the rest of the European Union since they took office. There is at least an element of hyperbole in that. I do not doubt that the Government have created good will and optimism and I think that we on these Benches greatly welcome that. However, it is too soon to say whether they have delivered a whole new way of treating Europe, or if they are willing to explain to the nation as a whole exactly the nature of relationships within the European Union. They need to describe the whole negotiating process; that is, that negotiations inevitably involve statements of position, give and take and compromise when 15 nations properly seek to defend their own interests. They need to say also that, whatever the short-term problems may be—and sometimes difficult short-term concessions—the objective must always be the long term and where Britain's long-term interest lies. As we see the matter from these Benches, it lies unequivocally with active participation in the European Union.
My only question is one which I think the noble Baroness would describe as rhetorical. Is not the real choice for any government today between sharing fully in the move towards the development of the European Union, declaring now their intention to participate in the euro at a specific early date—that is one possibility—or effectively to move into a semi-detached position (as Her Majesty's Opposition appear to be doing) with the logic of becoming a lame duck member of the Union or getting out altogether? Will the noble Baroness endorse my view that these are the two historical alternatives which shine through all the detail of the weekend in Vienna?
4.47 p.m.
Baroness Jay of Paddington: My Lords, I am grateful to both noble Lords for their contributions and for their general welcome of the Statement. I accept that the final question of the noble Lord, Lord Rodgers, is largely rhetorical. However, he referred—I think the Statement also reflects this—to a division in understanding on the long-term future of European commitment as between this side of the House and his Benches and those in the main opposition party.
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However, I say to the noble Lord, Lord Strathclyde, that that underlines the difference of principle. Although I would not go quite so far as the noble Lord, Lord Rodgers, in advocating the immediate, or at least time-limited adoption of the euro, we share his main sentiments and they certainly underline the principles behind much of the Government's attitude to European discussion.
The two noble Lords appear to differ on whether this Statement should have been made at all. As regards the report to Parliament on the informal earlier summit, I say to the noble Lord, Lord Strathclyde, that I am, of course, aware of the correspondence between his predecessor and myself on this subject. I have taken advice on this matter since the noble Viscount, Lord Cranborne, raised it at an earlier stage. I understand that it is extremely rare—I believe there has been only one such occasion in the past decade—to report informal summits to Parliament. I believe this is also relevant to the position that the noble Lord adopted on the question of holding another debate on some of these issues in government time. I point out that recently there has been not only your Lordships' debate on the Strategic Defence Review but also a whole day on the debate on the humble Address. Those debates covered many of the subjects. There have been opportunities recently to look at them in general terms and I do not feel that the House has been left uninformed, as discussions have proceeded. I am sure that through the usual channels that situation will continue.
The noble Lord raised specific points about tax harmonisation. As I said in repeating the Statement, the issue did not attract controversy at the summit because it became a matter on which the issues which the noble Lord sought to describe as being of some immediate concern, were not addressed. I quote directly from the conclusions:
"Co-operation in the tax policy area is not aiming at uniform tax rates".
The UK will not support any action at the EU level or anything which does damage to business competitiveness or jobs. There is no question of tax changes being imposed upon the UK. If we consider the taxation proposals which might be in Britain's national economic interests, there are obviously some in which interesting discussions and developments may arise at the EU level. We have long supported action within the G7, the EU and the OECD to combat harmful tax competition. That action will continue.
The noble Lord also raised questions of welfare and employment. Those, too, are matters where agreements at Vienna continued the policies which had been established in the immediately preceding summits. The noble Lord was concerned that the discussion on fraud would only come to fruition later in the year. I hope he agrees that some of the substantive decisions on ways of combating fraud, and the joint activities between the European partners which have led to much more detailed discussion both of the possibilities of investigating fraud within the individual countries and within the European institutions, are to be welcomed. I am sure they will be taken forward with vigour.

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In response to the noble Lord's questions, I end by saying that he asked me to define the position of the Government in the long term. I need only repeat that the welfare of the United Kingdom will be vigorously pursued by the Prime Minister and all members of the Government who engage in discussions with the European Union at every possible level. However, we believe that the prosperity and security of this country can be achieved and advanced through the European Union. We see it as part of the mature development of European politics to which we hope all parties agree.
4.53 p.m.
Lord Shore of Stepney: My Lords, I echo my noble friend's thought that the Statement was excessively long on words and extremely short on acts and decisions. Those will be left to the Council when the Germans take on the presidency at the beginning of this coming year.
I wish to raise two points with the noble Baroness at this stage. The first is on taxation, which the Government's press spokesmen have underplayed almost as ludicrously as some hysterics have overplayed it in the press. After all, no fewer than five separate taxes are on the agenda and were discussed. I wish to ask the noble Baroness about two taxes: those on which directives are being prepared and those which are expected to be agreed by the Helsinki council in six months' time. Have we reached an agreement on the two taxes? I refer to the tax on savings and the tax on interest and royalties.
That apart, I have one short question on which I seek reassurance from my noble friend in regard to the section on external relations. Euro-land, with its euro, will be represented on the IMF and the G7—those major forums. Is it really the case that, as the communiqué states, not only is it desirable for the Community to speak with one voice but that the Community must speak with one voice? Does that mean that Britain's independent voice and vote on the IMF and G7 is now to be brought to an end?
Baroness Jay of Paddington: My Lords, I am grateful for my noble friend's questions. As to the timetable on specific questions regarding taxation on savings and interest, although, as he rightly said, there is continuing discussion on them, it is only discussion. There has been no agreement to reach a decision at a particular point. There is all still to play for. As I said in reply to the noble Lord, Lord Strathclyde, the United Kingdom will not support action that will damage business competitiveness or jobs.
On our representation in the international organisations, the UK retains its seat on the IMF and at the G7 and other important bodies which discuss issues in the international forum. We have been successful in obtaining, and we always intended that there should be, an important distinction between those issues which would be considered as relating to the 11 euro members and the wider concerns of the 15. I hope that that reassures my noble friend.
Lord Waddington: My Lords, can the Leader of the House assist me? I gather that on tax harmonisation the
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Council said that the object of the exercise was not to bring about uniform tax rates but to stop, among other things, excessive loss of tax revenue by a country. Did anyone explain when a loss of tax revenue is acceptable and when it becomes excessive? Did the Council say who is to judge whether any loss of tax revenue is excessive and when it is acceptable?
Baroness Jay of Paddington: My Lords, I may be leading the noble Lord astray, but all I can do is to repeat to him the words in the communiqué:
"Co-operation in the tax policy area is not aiming at uniform tax rates and is not inconsistent with fair tax competition but is called for to reduce the continuing distortions in the single market, to prevent excessive losses of tax revenue or to get tax structures to develop in a more employment-friendly way".
I read that because I thought it was the most sensible way to be explicit about the points raised by the noble Lord.
Lord Wallace of Saltaire: My Lords, referring to what was left out of the report, there was a quite substantial Austrian presidency paper on further development in justice and home affairs, particularly on immigration and asylum. If I understand it correctly, so far there are four European councils calendared for 1999. One of them, in Tampere in October, is to be devoted almost entirely to justice and home affairs. Was that not a subject on which the European Council spent time? If it is to be one of the major issues—and it is already one of the major activities of the European Union—could it be a subject for a government Statement on the British attitude, and perhaps a debate in this House?
Baroness Jay of Paddington: My Lords, a debate in this House would obviously be a matter for the usual channels. However, it has a resonance to which many noble Lords would agree.
The position on the action plan on justice and home affairs which was originally proposed by the Austrian presidency did not find agreement. Therefore, it was not discussed in the summit. But there has been a little confusion. I understand that there was also in circulation—and it was widely reported in the British media—a paper called Corpus Juris intended to take forward some of those matters. As I am sure the noble Lord knows, it was simply an academic institution paper and was not designed to reflect any of the positions to be taken either by the UK Government or by the Council of Ministers.
Lord Barnett: My Lords, I wish to take up two points with my noble friend. The first is on taxation. Does she accept that any rational Member of your Lordships' House would welcome and support the points made in the Statement? I refer to the aim to reduce harmful distortions, prevent excessive losses of such revenue and encourage employment-friendly tax measures. I hope that the noble Baroness will ignore those who laugh at these matters and accept that there would be no point in arguing with anyone who irrationally disagrees because they are no longer sensible.

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On enlargement, will the Minister state that, despite the welcome of the negotiations which have started, there is likely to be a long delay due to the lack of agreement—in particular, on those areas on taxation under CAP—and that those who plead for greater enlargement know that it will not occur at least for a very long time?
Finally, I recognise that there has been no real progress in Vienna. I doubt whether many people expected it. However, do I take the more euro-friendly tone of the Prime Minister to mean that it is now a matter of when we join rather than if we join?
Baroness Jay of Paddington: My Lords, my noble friend invites me to tread difficult waters as regards his latter point and his invitation to question the rationality of some Members of your Lordships' House in raising points—as I am sure they have always done—perfectly legitimately.
Although I know that there has been some speculation that the enlargement process has run out of steam and was not given an enormous push at Vienna, there are clear understandings behind the Statement and the communiqué that fast progress is expected under the German presidency to maintain the momentum, and that there should be new dynamism in and with those countries which are not yet in the formal negotiating process. Therefore, I do not necessarily agree with his understanding that there has been no progress in that field. I am sure my noble friend would not expect me to respond immediately.
Lord Pearson of Rannoch: My Lords, I wonder whether I can ask the noble Baroness the Leader of the House about two highly dubious claims in the Statement. The first is the claim that the EU's employment strategy is beginning to bear fruit, especially through new internal market measures in financial services which are supposed inter alia to increase the availability of risk capital. How do the Government square those claims with the loss of jobs and the damage to our economy which we are starting to suffer in, for example, our international art market and in our mergers and acquisitions industry in the City of London from harmonising EU legislation? If I am wrong about that, and the Statement is honourable in that area, can the Minister assure the House that we are indeed to escape from the effects of the VAT directives, droit de suite, and the takeover directive?
The second claim is at the end of the Statement and is even more absurd, I should have thought. It is to the effect that it would be profoundly damaging for this country to leave Europe. I suppose that it depends what the Government mean by the word "Europe". What do the Government mean by that word? Do they mean the common market, the single market, the Treaty of Rome, or the Europe of nation states? Presumably it is common ground that we do not want to leave the common market. But we would not damage the 15 per cent. of our economy which takes place with the EU if we left the Treaty of Rome. That would be profoundly beneficial to the remaining 85 per cent. of our economy which takes place in the United Kingdom and with the rest of the world.
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In short, why would it be disastrous to leave the treaty but to stay in the common market?
Baroness Jay of Paddington: My Lords, I am grateful to the noble Lord for his comments. The art market is a specialised area. I hope that he will forgive me if I do not respond immediately. I shall discover the answer to the points he made on that specialised area and will write to him about the VAT matter.
I simply say that it is in the Statement. Although I realise that there are difficulties in various economic and employment sectors throughout the UK, and in other parts of the EU, nonetheless over 1 million new jobs were created in the EU in the past year and over 250,000 of those were in the UK. The overall rate of EU unemployment has fallen below 10 per cent. for the first time since 1992.
As regards which part of Europe we are discussing, and how we define it, I think that when the Prime Minister, and indeed any Member of the Government, refer to leaving Europe they refer to the European Union.
Lord Bridges: My Lords, the Statement referred to the forthcoming entry into force of the Treaty of Amsterdam. Can the Minister say when she expects that to be? Have we deposited our instrument of ratification of the treaty? Perhaps I may remind the Government Front Bench that in the course of our debate a few weeks ago on the report of the Select Committee on the Treaty of Schengen I suggested that the Government should make a further communication to Parliament before deposit of our instrument of ratification. I still await a reply to the question that I put twice in that debate, I think to the noble Lord, Lord Whitty.
Baroness Jay of Paddington: My Lords, as the noble Lord will be aware, not all countries have yet ratified the Treaty of Amsterdam. Therefore, it is not possible to assess an exact date for its overall implementation. I shall follow up the noble Lord's inquiries to my noble friend Lord Whitty. I am sure that he will respond very shortly.
Lord Bridges: My Lords, the Minister did not reply to my specific question as to whether we had deposited our instrument of ratification of the treaty.
Baroness Jay of Paddington: My Lords, I am advised by my noble friend from the Foreign Office, and as regards my briefing from the Foreign Office, that that has not yet happened.
Lord Stoddart of Swindon: My Lords, I might have been able to give a welcome to the Statement that the Government believe that we are on the road to an open and decentralised Europe if I could believe that to be true. However, is it not true that the Statement is centralist; and is not Europe going in the direction of a centralised, closed and secretive European Union rather than the reverse?

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I ask the Minister one question on the rebate. Is it not incongruous that countries such as Spain, Greece, Portugal and Ireland should be demanding an end to the British rebate while at the same time holding out their begging bowls for even more money than they already receive? Is it not a fact that after the rebate this country is still paying £2.6 billion net? Can I have the assurance that under all circumstances the Prime Minister will resist the ending of our rebate or any diminution of it?
Baroness Jay of Paddington: My Lords, I am sure my noble friend will not expect me to agree with the general sentiments he expressed at the beginning of his intervention.
Although my noble friend may be referring to statements reported by the media in the countries he mentioned, there was no formal discussion of the rebate during the Vienna Summit. Therefore, the Prime Minister's strong position on maintaining the UK's determination to continue that rebate stands.
The Earl of Carlisle: My Lords, while welcoming the desire of the European Union to assist the Russian Federation through its severe difficulties, many of which have been self inflicted, will the Council bear in mind that the smaller nations of central Europe, such as Latvia and Lithuania, have not yet been invited to start negotiations? Will we ensure that the technical aid which goes to the Russian Federation is matched by the technical aid to those two nations whose environment has been severely affected by the Russian Federation and its predecessor, the Soviet Union?
Baroness Jay of Paddington: My Lords, I am grateful to the noble Earl for again raising the question of those particular countries. I hope he will have taken the point from one of my previous responses that, following the Vienna Summit, it is hoped that during the German presidency there will be an acceleration of discussions with those countries who have not yet entered into formal negotiating positions so that the dialogue can be continued in a productive way. As to aid, the Vienna Summit had a particular concern to ensure that some of the difficulties in previous years, when aid had been given to Russia and there was doubt about where it had ended up, should not be repeated. There have been some very important discussions as to how aid should be distributed. In regard to the absolute amounts being matched as between Russia and other countries, I am afraid that I am unable to give the noble Earl that assurance.
Lord Beloff: My Lords, the Leader of the House will be aware that her right honourable friend the Prime Minister has blamed the press for some of the anxieties that are being expressed about events within the European Union. Does she agree that it is enormously important for the press to report in full, to an even greater extent than it does at present, statements made by leading figures in continental countries? That, incidentally, would help to explain the point, made by
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the noble Lord, Lord Barnett, that there is a discrepancy in the views on whether it is desirable that enlargement should be a first priority of the European Union.
Baroness Jay of Paddington: My Lords, before I respond to the noble Lord, Lord Beloff, perhaps I may correct one earlier comment. I am delighted to announce that my noble friend Lady Symons has confirmed that we have now formally ratified the Treaty of Amsterdam, although this has not brought it into being. I apologise to the House for my earlier incorrect statement.
To come to the comments of the noble Lord, Lord Beloff, on the position of the newspapers, it is important to encourage open debate on all of these subjects, and that point has been made, but that is very different from the simple assertion of facts that are incorrect. Some of the assertions in the past few weeks in the British media about the supposed discussion on tax harmonisation have not assisted mature general debate, which I am sure the noble Lord wants to see developed. I refer to the comments in yesterday's Observer by the right honourable gentleman Mr. Kenneth Clarke, the former Chancellor of the Exchequer. He dismissed discussion of some of the issues about tax harmonisation as hysteria and farce. It is not simply those on this side of the House who believe that some of the discussion has been distorted. The noble Lord is right that there should be open discussion, but I hope that the debate on enlargement will be more factually informed than some of the recent discussion on tax harmonisation.

Access to Justice Bill [H.L.]
5.13 p.m.
Second Reading debate resumed.
Lord Clinton-Davis: My Lords, the four speeches that noble Lords have heard so far have been quite outstanding. I shall now put an end to all that. The speech delivered by my noble and learned friend the Lord Chancellor outlining the purposes of the Bill was inspired by very careful thought. If I disagree with my noble and learned friend in some respects it does not indicate any criticism of the overwhelming purpose that he set out at the beginning of his speech. I urge my noble and learned friend to consider very carefully the point made by the noble and learned Lord, Lord Bingham, that the principles that he enunciated should be set out on the face of the Bill. That is an answer to some of the criticisms made about the exercise of his powers, which, as he will be aware, figure very substantially in a number of the briefings that have been issued to noble Lords prior to today's debate.
I declare one or two interests. First, I am a solicitor. Secondly, with my noble and learned friends the Lord Chancellor and Lord Archer of Sandwell, I am joint president of the Society of Labour Lawyers. My noble and learned friend has played a notable part in that society in seeking to advance the cause of law reform for very many years. The society is soon to celebrate its

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50th anniversary. Thirdly, for many years I was involved in running a solicitor's practice in a working class area of London. Indeed, like my noble friend Lord Mishcon, with whom I was an articled clerk, I did precisely that kind of work. Not only did I undertake a large volume of legal aid work but I believe that I worked overwhelmingly in the interests of ordinary people who desperately relied upon that form of work.
My practice was in east London. I have not been connected with it for about 20 years. However, such practices certainly cannot be regarded as being of the "fat cat" variety; they are the "lean cats" of the profession. They undertake work that provides access to justice for thousands upon thousands of people who would otherwise have little or no advice when needing it and little opportunity to obtain redress in the courts. While others have chosen more lucrative practices, as they are entitled to do, many outstanding lawyers have chosen to dedicate their lives to an area of the law that does not provide them with a very adequate living. It is right to pay tribute to those who have decided to devote themselves to this area of the law. I hope that nothing that we do will deflect young lawyers who come into the profession from their determination to provide exactly the same kind of devotion to service in the cause of justice. We must be very careful about the way in which we proceed as far as concerns this Bill lest we endanger that prospect.
Although I no longer practise in this area of the law, I understand that there has been virtually no increase in fees for the past four years, even taking into account inflation. Partners in those firms are responsible personally for the debts of the practice. They are not able to form limited companies and they are usually very substantially under-capitalised. I am not sure that that background is always perceived by the public outside.
Having said that, I agree with the objectives outlined by my noble and learned friend the Lord Chancellor. It is necessary to review the present system of legal aid, to identify and reduce excessive cost in the system, to reduce delays, and to deliver even greater access to justice. In parenthesis, in calculating the costs one does not often see a reference to the recovery of costs from defendants, particularly in personal injury cases, and the recovery of very substantial sums of money that go back to the Department of Health and Social Security as a result of the claims made.
While I support many of the proposals in the Bill I have serious anxieties about others. I propose to concentrate on my anxieties in the hope that they may be allayed by my noble and learned friend Lord Falconer in his reply, or, more particularly, during later stages of the Bill.
The replacement of the present position of all solicitors providing legal aid if they wish by a system of contracts between quality assured solicitors and the new legal services commission is a substantial change. It is obviously right that we should concentrate on providing efficient legal aid services. I do not accept any suggestion that the majority of the legal profession providing these services do not operate efficiently. From
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the many years of practice I had, I would say that the contrary is true. Of course there are some who fail to live up to the necessary standards. That applies in all professions and, of course, the legal profession is not immune. What I do ask is: why should all firms, having attained the standards of competence established by the Government's own criteria and having obtained a franchise, not be entitled to a contract in relation to those areas of the law to which their franchise applies? Is it to be the case that only firms with family, mental health or immigration franchises are to be eligible for a contract? What about those involved in social welfare law, housing, employment, welfare benefits and so on? I do sense a degree of inconsistency; perhaps I am wrong in coming to that conclusion. If so, I hope that my noble and learned friend will put me right.
Presumably the Government's response in part is that these matters can be dealt with virtually exclusively by agencies. I admire the work of most of these agencies but in my own experience I have come across quite serious instances where there has been a failure to provide proper legal advice, for example, in housing cases by citizens advice bureaux, or in cases involving notice to quit which used to be a matter of profound complexity and possibly still are. These are areas where a good degree of legal expertise is required, yet I found that on a number of occasions this simply was not forthcoming and the damage done was often irrecoverable. Perhaps this is not too serious a matter but I think it would be wrong to place too much emphasis on the work that can be done by agencies rather than by lawyers. There needs to be a blend between the two. Indeed, I believe that was a point made by my noble and learned friend at the very outset.
Undoubtedly, the number of firms doing work subject to the contract is going to be massively reduced—according to the figures, by something like 4,500 to 5,500. What are to be the consequences of that in the shorter term? Perhaps a situation will emerge whereby mergers will take place, but that takes time. I hope that in the meantime people who are vulnerable will not be exposed too suddenly to the changes that are going to take place. Time is needed for the situation to settle down.
Is there not also the risk of clients who are perceived to be more difficult to deal with and who take up a greater part of the solicitor's time being placed in some jeopardy? I give as an example the inarticulate. I well recall having to deal with, and trying to understand, for over a year someone who suffered from the most terrible speech impediment. It took a great deal of time trying to see the points he was attempting to make. Usually I had to ask him to write them down. But that was not very easy either. Would such a person fail to receive the advice to which he ought to be entitled?
Is there likely to be a caseload maximum imposed and, if so, are any overflow arrangements contemplated? All these are matters to which we will turn in the course of discussion in Committee and afterwards. I hope that they will be taken on board.
I turn to the question of the community legal service. It is of course important to enable the Government to give priority to legal services and to ensure that they are

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properly focused as envisaged in the White Paper and the Bill. But why is a discretionary system needed to replace the current objective test of entitlement? Evidently it is connected with the capping of the community legal service budget. I wonder whether that is a correct conclusion.
As far as criminal defence services are concerned, the majority of publicly funded services of this kind will also operate by way of a contract with private practices. I do not have any great problem with that, but the argument that in setting an appropriate fee practitioners must take the rough with the smooth may not always be the correct way of looking at matters. It could have damaging and unsettling consequences. In a complex criminal case those who practise in this field would agree that totally unforeseen situations can occur; for example, the critical need to employ a forensic expert which one may not have foreseen at an earlier stage of the case. Would it not be wholly inequitable if that cost were to fall directly on the solicitor involved? Should there not be a provision, therefore, that disbursements of this category should be separately accounted for and that perhaps the test should be determined by the trial judge in pre-trial directions or at some other stage during the case when the issue arises?
The noble and learned Lord Chief Justice put in a much broader perspective the issue of the Lord Chancellor's powers. I would very much appreciate hearing from my noble friend Lord Falconer his response to the great deal of criticism that has emerged.
I have one or two miscellaneous points. On the question of conditional fees I am not at all sure that sufficient research has been done. I am not sure that research has been done into the question of insurance, which was a point raised by the noble Lord, Lord Goodhart. I do not think that conditional fees can be applied successfully in the wide variety of cases in which my noble and learned friend seeks to put them. It reminds me of the memorable statement by Dan Quayle, the former American Vice-President, that if you do not succeed you run the risk of failure. I do not know how in some cases, for instance, matrimonial cases, a solicitor can be expected to undertake this aspect. I may be wrong, but how attractive is all this to the insurers themselves? What research has been done to enable us to come to satisfactory conclusions? Although it is true that insurance premiums are recoverable under Clause 28, they have to be paid for in the first place. As I understand it, they could be very heavy indeed. An inability to pay the premium could have the most dramatic and serious consequences for a litigant. We are talking about the lower income groups and the most vulnerable. What happens to them in that situation?
My noble and learned friend has certainly tried extremely hard to come to the right conclusions. Having said that I do feel that we need to look at this matter, reflect on it with great care, and not impose the system too rapidly. While some of the criticisms that I have read are, I believe, misplaced, in particular, about the criminal defence service and its lack of independence—I do not think it will work out that way—nevertheless, perception is all important in relation to litigants.
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I hope that the objectives which my noble and learned friend has outlined will be fulfilled. Above all, I hope that none of this will divert young people who wish to devote themselves to the less well paid parts of the profession from coming into it because without them the service which the profession can offer to the most vulnerable in society will be seriously impaired.
5.30 p.m.
Lord Windlesham: My Lords, this is a large and timely Bill and one which is particularly suited to begin its passage through Parliament in this House. I shall confine my remarks to one aspect only; that is, the establishment of a criminal defence service for the stated purpose of:
"protecting the interests of individuals involved in criminal investigations or criminal proceedings".
That is in Clause 12 of the Bill and although it falls short of a statutory duty, nevertheless, it is welcome as a statement of intent.
A comprehensive defence service is a completely new concept hitherto unknown in our criminal process. It is also something of a surprise. It does not appear to have been the subject of any prior consultation with the professional bodies whose co-operation will be critical to its success. In a letter published in The Times on 5th December, the Chairman of the Bar Council, Heather Hallett, Q.C. said:
"The White Paper boasts that its proposals are based on substantial consultation. Yet, the first we knew of the establishment of this new service, replacing the criminal legal aid system and with powers to represent a defendant from arrest to trial, was when the White Paper was published on December 2nd".
That was the same date on which the Bill was introduced for the first time in your Lordships' House.
Why was that? Was it because of a shortage of time? Was it a last-minute decision? Was it, perhaps, fear of allowing time for opposition to intensify? Yet other parts of the Bill, some of them highly controversial, such as those regarding the rights of audience and rights to conduct litigation, had been published in advance, and there had been a discussion paper available before the Bill was published. So why was not the same done in the case of the proposed criminal defence service?
In his opening speech the noble and learned Lord, the Lord Chancellor, said that he did not envisage a move towards a criminal defence service staffed wholly by salaried employed lawyers. He added that this statement was intended to reassure those who doubted whether employed lawyers can be genuinely independent. That doubt has already been forcefully expressed in the debate this afternoon by the noble Lord, Lord Goodhart, who objected to anything approaching a public defender service, citing as his reasons a lack of independence and American experience.
Let us pause for a moment and consider the implications of those two criticisms. They will be made again in the course of the debates we shall be having over the next few weeks on the Bill, and they will be made—indeed they have been made—outside the House.

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As to independence, we have heard the noble and learned Lord, Lord Bingham, the Lord Chief Justice, speak earlier this afternoon. The construction of his speech was of such subtlety that I may not have caught every nuance, but I doubt that I am the only person in the House to be left with a clear impression that he did not share all the "apprehensions" (the word he used) which some senior members of the judiciary have expressed. It may be that we shall hear more of them in the debate this afternoon, particularly as regards rights of audience.
We look forward also with particular interest to the speech which we shall hear shortly from the noble and learned Lord the Master of the Rolls. Earlier in his very distinguished career, the noble and learned Lord, Lord Woolf, had some experience of working as an employed lawyer in the armed services. I hope that I reveal no breach of confidence in disclosing this to the House. I do so only because we can be quite certain that any case with which the noble and learned Lord, Lord Woolf, was concerned as an employed lawyer would not have suffered from any restraint whatever as regards the independent judgment which he brought to bear.
Next, I turn to the American experience. Over a period of years, I have had an opportunity to make a thorough study of the system of criminal justice in America and have been able to publish on that subject. I have learnt that although there are many outward similarities, the actual operation of the system of justice, and the forces which motivate it, are very different from what we know in this country. And so it is with public defenders. They vary in quality from state to state and between state and federal jurisdictions, from the very best to the very worst. Moreover there are two factors in the American practice which make any comparison invalid. The first is the existence of capital punishment and the handling of capital cases—prisoners held on death row—over a period which may be up to 10 years or more while challenges are made by way of habeas corpus applications before the courts. The second is the power of the prosecution to plea bargain. That is certainly something that we should avoid at all costs. Neither of those factors apply in this country.
It is for those reasons that I am sceptical about the claims made about lack of independence and the relevance of American experience. Consequently I do not share the hostility towards the Government's proposals that in future all qualified lawyers should have full rights of audience before any court, subject only to meeting reasonable training requirements. Indeed, it seems to me that the new defence service could be developed in such a way as to widen opportunities for that parity of advocacy skills found most often, although not exclusively, at the Bar. I add that comment in the presence of some distinguished solicitors. The noble Lord, Lord Mishcon, in particular has the respect of the whole House. We can all agree that such skills are the key ingredients of an adversarial criminal trial.
Of course, it is likely that money as well as professional competence will bear on the fairness of the criminal process. The White Paper envisages that most of the criminal defence service work will be done by
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solicitors. I note that Clause 17(1) provides that the overall expenditure is not to be cash limited. That is an important provision. In the majority of routine criminal cases it will be for the solicitor to decide whether to retain the services of a barrister. When he does, the barrister will be paid out of money received under a contract negotiated with the Legal Services Commission.
There must be a risk in that arrangement. In some cases, even if they are only on the borderline, an experienced professional advocate might be desirable but the solicitor administering the contract may be tempted towards a cheaper alternative. Such a result might be regarded as a legitimate response to market pressures, but would it conform to the requirements of justice?
I repeat that although there are critical arguments to be advanced against a number of features of the Bill, it seems to me to offer a solution to the long-standing problems of finding a way to curtail the apparently open-ended demand on public resources with which my noble and learned friend Lord Mackay of Clashfern had to grapple for so long.
The requirements of efficiency and value for money must not be allowed to take precedence over the interests of justice. Where clashes arise, as they will, who will reconcile them? I see a role for a strong director of the new service, supported by a staff of talented, public spirited employed lawyers. The core group of salaried defenders might be located in the same areas as the reformed and, we must hope, strengthened Crown Prosecution Service and establish similar links with the police and other agencies.
I have seen what can be done by inspired leadership in setting up new institutions which fulfil the highest ideals of public service. Since Lord Hunt died so recently, perhaps I might be allowed to mention his name as a shining example. He was the conqueror of Everest and the founder chairman of the Parole Board. If handled with skill and imagination—such qualities exist in Whitehall, although they are sometimes submerged—the new criminal defence service offers an opportunity to take a decisive step forward in the administration of justice. It could be, and it ought to be, treated as a counterweight to a reorganised Crown Prosecution Service.
In conclusion—and I pick up something mentioned twice by the noble Lord, Lord Clinton-Davis; once at the beginning of his speech and once at the end—as more and more young people are attracted to careers in the law this could be an opportunity to recruit some of the most adventurous and idealistic of them to take an active part in the creation of a brand new public service in which they, and we, could all take pride.
5.43 p.m.
Lord Sawyer: My Lords, I rise to speak with some trepidation as I am not a lawyer. I am a potential consumer of such services and will not make a lawyer's speech. However, I believe in the law, in particular that access to the law and to justice is too important to be left to lawyers. That is why I am speaking briefly in this debate.

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I also believe that, for the wider community, the most exciting and radical step in the Bill, and the step which will promote real and improved access to justice for that wider community, is the community legal service. It will bring access to justice to many disadvantaged people who at present have legal rights in theory but cannot exercise those rights in reality.
During the last election, I worked for the Labour Party. I worked for the introduction of a community legal service as part of its manifesto commitment and I look forward to its implementation. I know that arguing for manifesto commitments in your Lordships' House can be a sensitive issue, but I hope that on this occasion we have an issue for which we can have majority approval.
I recognise that many individuals and organisations do their best to help disadvantaged people to assert their legal rights whether in the field of housing, employment, immigration, welfare or complaints against their local authorities. There are individual lawyers, citizens advice bureaux, advice centres and law centres all making an important contribution. However, not only is there a shortage of funds available to meet those needs, but there is a clear lack of co-ordination among the organisations which are doing their best to assist.
Moreover, the provision of legal services is itself fragmented. In some parts of the country there are solicitors who specialise in welfare law as well as high quality advice centres. But in other parts of the country there is a serious shortage. They are well described by some as legal advice deserts where there is nothing for those in greatest need.
It is surely wrong that in 1998 there are still huge gaps in our legal provision. It is wrong that in our developed democracy, in which we are all supposed to live equal under the law, large numbers of our fellow citizens are not in practical terms able to assert their basic rights under the law.
I support the Government's intention to put that right and to adjust the legal aid system so that more public resources can be moved to assist those who so far have suffered from little or in some cases no access to justice.
In an important way, the introduction of the community legal service is part of the Government's plan to modernise the welfare state. For too long, the most disadvantaged of our fellow citizens have fallen behind the rest of us, whether that be in terms of income, life style, housing or general quality of life. That also applies to a right to assert their legal rights. The Government are determined to change that and I welcome the Bill as a significant step in making Britain a more genuinely equal country.
5.47 p.m.
Lord Hutchinson of Lullington: My Lords, as a lawyer no longer in practice—I know nothing about the criminal procedures of the living law—I am firmly of the view that octogenarian legal eagles should fold their wings and settle back in their nests, well feathered or not, unless a real matter of principle arises to which perhaps their long experience might contribute.
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In the Bill, I see three such principles arising. There is very much in the Bill to admire, and "access to justice" is an inspirational title. For one who practised at the criminal courts and met a larger cross-section of the general public probably than in any other form of court, it has always been my aim that access to the best should be available for the least favoured and the most stressed. Indeed, during those many years, what a long way we have come from the dock brief and what we use to call the PPD—the poor person's defence.
However, I must say to the noble and learned Lord that in his emersion in the intellectual stratosphere of the human rights jurisprudence he seems to have lost sight a little of the mundane area where human rights are mainly abused, which is in the criminal courts. I recognise that he is a Lord Chancellor in a hurry. Indeed, the way in which he presented the case exhibited that. However, Exhibit 31—Clause 31—extends the present limited rights of audience of state employees, prosecutors for the CPS and government departments to the higher courts for judge and jury trials.
I speak as a practitioner in those courts. I believe I am the first person in this debate to speak in that capacity. There has been a great deal of talk of what goes on in those courts from persons—I say this with the greatest of respect—who have never, ever conducted a prosecution or a defence in a magistrates' court or in a Crown Court.
My opinion is that it is of fundamental importance that prosecutions in those courts should be in the hands of advocates who are wholly independent of the police, the state and any prosecuting authority and should appear to be so. That is an essential protection of the preservation of the rule of law and our freedoms under a democracy.
Such prosecutors should not be perceived as promoting the interests of the state. They should not be appointed and paid as civil servants working daily, as they must, in the closest co-operation with the police, subject to all of the pressures of that involvement, the pressures of preferment, of success rates, of performance related pay, where the only yardstick of success is the number of convictions obtained and the throughput of cases. That is not what the public want, whether as jurymen, witnesses or defendants, particularly those who are pressured by an ever-powerful state.
I must say that I was somewhat astonished when the noble and learned Lord said that there is no rational reason why employed prosecutors who operate in magistrates' courts should not do the same in higher courts. Of course, 96 per cent. of crime is tried in the lower courts. Thousands and thousands of trivial motoring offences, including speeding offences, are tried there. We are talking about the 3 or 4 per cent. of cases to be tried in the Crown Courts, before a judge and jury: cases which involve long terms of imprisonment; cases which affect for ever the reputation of members of the public; and cases involving enormously important points of law which arise from day to day and affect the freedom of the individual. Advocacy in those courts has nothing whatever to do

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with advocacy in magistrates' courts. An appeal from a magistrates' court trial is a retrial, a safeguard, whereas an appeal from the Crown Court is allowed only on special grounds of appeal to the Court of Appeal.
Following Clause 31, of course, we have Clause 32. As the independence of the prosecutor is swept away, there emerges—10 days ago—predictably undiscussed, without warning to the public or to the profession, what I would call the sinister figure of the salaried state defender, paid, selected and controlled by the state. That fine warrior is to be sent out to do battle on the field of liberty and human rights, with his opposite number, his local colleague in arms, the salaried state prosecutor—an all-state contest. As many others have long predicted, introduce a state prosecutor and the state defender follows as night follows day—the dark night of dependence and control, the other side of the coin.
What next? Instead of the interests of justice being paramount, the culture of negotiated justice will prevail. With respect to the noble Lord, Lord Windlesham, plea bargaining behind closed doors will arise. Plea bargaining already exists, but not behind closed doors. However, there will be plea bargaining behind closed doors, pressures to abort trials, cosy relationships between prosecution and defence to maintain the conviction count and the volume of cases and to minimise the cost. That cosiness will soon extend to the court itself, which will be anxious to rid itself of the stubborn and determined advocate who wastes the judge's time.
We shall see a system—this is not far-fetched—of salaried prosecutors under the control of the DPP, supervised by the Attorney-General, defendants directed to the public defender's department and the rules governing the conduct and procedures of the advocates in court regulated under Schedule 5 of the Bill by the Lord Chancellor of the day.
That is the picture. The one thing that matters for the freedom of the individual and human rights in this country is the independence of the judiciary and the independence of the advocate. With the greatest of respect, and a modicum of dismay, I must advise the noble and learned Lord the Lord Chancellor that, at first sight, the new consultative panel, appointed entirely by himself and acting within the terms of Schedule 5, looks to me more like a consultative poodle than a consultative panel.
In this country it is the tradition that prosecutors do not press. They present the evidence as ministers of justice. They have to disclose matters favourable to the defence. They must exercise independent and objective judgment in the interests of justice alone. By definition, and with no disparagement or personal attack upon them, employed prosecutors cannot be, nor perceived to be, independent. No code of practice could alter that. There must be conflicts of interest between duty to the court and duty to the employer. There must be pressures from above, overwhelmingly from the police. There must be a personal interest in the outcome. Success rates affect preferment and are all-important. From time to time, the Serious Fraud Office announces proudly its
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percentage of success. A young man in my Chambers who announced a percentage of success in prosecutions would have his knuckles severely rapped.
State prosecutors never defend. They lack the essential balance and experience that that work brings and therefore disqualify themselves from preferment to the Bench.
The Glidewell Report on the CPS suggests joint units between prosecutors and the police, to be set up in police stations, to facilitate the charging of members of the public. Is that what the noble and learned Lord the Lord Chancellor described as "objectivity" and "independence"?
All that can be illustrated by a short look at the Matrix Churchill trial, the subject matter of the Scott Report, which we debated in this House not very long ago. Your Lordships will remember that the managing director of a company was charged with making false statements in licence applications to export goods for military use in Iraq. The Attorney-General forced Ministers, who knew quite well what was going on, to issue public interest immunity certificates to prevent disclosure of documents which would establish the defendant's innocence. Prosecuting counsel was instructed by the DPP to urge the judge to uphold those certificates and to prevent disclosure. Counsel for the defence blew open the duplicity of Ministers in that case. Counsel for the prosecution (who, I am glad to say, is now a High Court judge) despite pressure from the Attorney-General and from the Director of Public Prosecutions, exercised his own independent judgment and, as Scott found, entirely properly abandoned the prosecution and the case in the interests of justice. Had those advocates been paid by the state—been civil servants—do we really think that the outcome would have been the same?
The noble and learned Lord the Lord Chancellor says that advocates should be chosen for their skill and not because they belong to one part of the profession. Surely that is tautology. Are not specialist surgeons and neurologists part of the medical profession?
The noble and learned Lord also says that he is disappointed that only 1 per cent. of solicitors have become advocates since 1990 and that barristers still maintain their monopoly. Again, do not surgeons, air pilots and engineers have monopolies also, which are fiercely controlled so that the public can be sure that they are properly and sufficiently qualified? That 1 per cent. is obviously explicable. Advocacy is an extremely difficult and prolonged line of learning, taking years and involving heavy responsibilities. No one man can prepare cases and then present them in court. Advocacy is a full-time job. Advocacy cannot be put on like a hat or a wig. Solicitors, who have heavy work to do in their offices, do not want to become advocates—full-time, independent persons presenting cases in court. All professions must have restrictive rules to guarantee competence and reliability. Those rules are not facilely to be described as "restrictive practices".
In his White Paper, The Way Ahead, the Lord Chancellor states in the foreword:
"There are no 'no go areas' in the Government's determination to modernise our country".

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Those words seems to echo the memorable statement of a previous great Labour lawyer, the noble and learned Lord, Lord Shawcross, who in earlier days said, "We are the masters now". I suggest to the noble and learned Lord, once more with the greatest of respect, that possibly he is mistaken. Jury trial, the independence of the judiciary and the independence of the advocate are areas where politicians should fear to tread. They are three pillars of our democracy—and they should not be undermined or tampered with.
6.5 p.m.
Baroness Crawley: My Lords, I very much welcome the Second Reading of this Access to Justice Bill and I am glad of the opportunity to reiterate the words of appreciation of my noble and learned friend the Lord Chancellor to all those—and there are many of them—who bring such commitment, integrity and sheer hard work to the British legal profession.
As a non-legal person, a novice, speaking in such a debate, while preparing for it I looked up "law" in the Penguin Dictionary of Humorous Quotations, and I saw that the writer John Mortimer was quoted as saying that no brilliance is needed in the law; that nothing is needed but common sense and relatively clean fingernails. I have the clean fingernails, but that is about it.
Although not pretending to possess in any measure the skills and qualifications of my legal friends and colleagues in this debate, I have had 15 years' experience of representing Birmingham people as their local Member of the European Parliament. Because of that experience, I know that real access to justice is at the heart of people's drive for dignity and respect, and that, as my noble friend Lord Sawyer said, it is fundamental to a healthy democratic society. I know, because I have been made aware of it by my constituents, that so many people feel intimidated and insecure in seeking justice. I know that what might seem a simple procedure to many of us, of finding the right legal advice or walking into a solicitor's office, is a chasm of complexity, bewilderment and doubt for so many people. I know that, although some have no problem in knowing—and, indeed, in working—the system for very many others, the system, as it is, is failing them. In many ways, this Bill represents a long-overdue reform and modernisation which, at its best, will be a liberating force for millions.
Although the Bill's contents include reform of the funding of legal services, rights of audience, appeals, magistrates' courts, the civil courts and the criminal courts, I shall concentrate on that aspect of the Bill which covers the community legal service.
On 2nd December, in announcing the publication of the White Paper, Modernising Justice, the Lord Chancellor introduced the new legal services commission to oversee two new services: the community legal service and the criminal defence service, and to take over the £1.6 billion annual spending on legal aid. As we know, the commission will
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replace the Legal Aid Board. In that announcement, my noble and learned friend Lord Irvine, stated that:
"A Legal Services Commission will enable us to focus legal aid money on the people who most need help and get real value for money for the taxpayer. With the Community Legal Service—for the first time—we will be able to assess the grassroots legal needs in our communities and develop the services people really want".
The Lord Chancellor went on to say,
"We will be able to put money into innovative, alternative ways of resolving disputes. Going to court is not always the best answer".
At its best, I believe that the community legal service will open up access to justice to many more communities than is the case at present. I welcome the fact that such access to justice will be delivered through a new, cohesive network of service providers of consistently measurable high quality. Those seeking legal advice for their difficulties should now find the most appropriate help that they need.
The community legal service will not, of course, begin life in a vacuum, but will find partners in other existing funders of advice and information services in order to create a local, regional and national map of provision where priority needs are accurately pinpointed, and where common criteria are quality assured. These aspects of the Bill are very much welcomed by groups such as the National Consumer Council. The possibilities that the new community legal service offers for new ways of assessing cases is particularly exciting and should offer a much higher quality of choice to consumers and act as a downward pressure on consumer costs, which has to be welcomed.
I understand that the implementation of the community legal service is to be piloted in five local authority areas from January 1999. I know that that experience will be invaluable in assessing how best to partner existing CABs, law centres and advice centres within the new framework of the Bill.
As a non-lawyer, I was hesitant to take part in this debate today alongside such able legal practitioners as my friends and colleagues. I am reminded, in my audacity to take part, of the time many years ago when I rang my mother to tell her that I had agreed to become treasurer of my local Labour Party branch. Her immediate reaction was, "Oh! Christine, why did you do a thing like that; the Labour Party has always been very good to you".
However, I want to take this opportunity to welcome the Access to Justice Bill as a very important part of this Government's mission to make justice open, inclusive and equitable. There is a film starring Paul Newman called "The Verdict"—it was made in his later period—in which he plays a lawyer fighting a seemingly hopeless case. At one point he talks about the justice system in which he works. He concludes that that system does not actually provide justice, but provides only the chance of justice. This Bill could offer to a great many people the chance of justice, which they have been unable to grasp until now.
6.12 p.m.
Lord Woolf: My Lords, I follow the elegant words to which noble Lords have just been listening, conscious

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that it was my intention to focus not on some of the issues which have inspired such heat in the debate so far, but to deal with the assistance that this Bill gives to the general programme of civil justice reform which is taking place in this country at the present time. However, in deference to the comments of the noble Lord, Lord Windlesham, perhaps I may at least make this clear. As regards the general aspects of the Bill to which I have just referred, I am conscious, as is the Lord Chief Justice, that very many members of the senior judiciary have very great concerns. However, like the Lord Chief Justice, I do not share those concerns to the same degree.
In particular, as regards rights of audience, with which this Bill deals, I am conscious that it does so in two ways. It makes specific proposals concerning employed lawyers and extends rights of audience as regards employed lawyers. On that subject, although I have been a designated judge for a shorter period than the Lord Chief Justice, I am totally convinced that the present machinery for dealing with rights of audience of that kind is inappropriate. The result of the present procedures produces only stalemate. I am quite convinced that the time has now come when this very important subject should be discussed by Parliament and it should reach a decision on it.
The arguments which can be advanced are finely balanced. There are dangers which one anticipates if one has grown up, as I have, in the law and for a time both prosecuted and defended criminal cases. One knows how important is independence. But as the noble Lord, Lord Windlesham, indicated, during my national service I had an opportunity for a very short period to see how professional, employed prosecutors appeared before courts martial and showed the independence which I regard as absolutely critical, notwithstanding the fact that they were serving officers and did not have the support that any independent member of the Bar has when faced with difficulties in knowing that he does not have only one source of work.
If Parliament takes a decision about the role of the employed lawyer, then it seems to me that much of the difficulty goes out of the whole subject of rights of audience because the question of whether employed lawyers should have rights of audience is the solely important subject which yet remains for determination. Of course, there will be specialist bodies who will seek rights of audience, but they are not going to create the same issues as the question of employed prosecutors and defenders do. Equally, I venture to suggest that in the civil field the use of employed lawyers does not raise the same acute concerns which arise in the criminal field.
That being so, it seems to me that the proposals contained in the Bill requiring the Lord Chancellor to consult and then to proceed by way of statutory instrument, subject to the affirmative process, provide the only appropriate safeguards that are needed. I have heard of no alternative which would be more satisfactory. I saw a handout from the Law Society on the subject and a suggestion that perhaps it should be a task for the Master of the Rolls to perform. I am flattered by the suggestion, but I do not believe that that is practical. As the Lord Chief Justice said, it is part of
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the responsibility of the Lord Chancellor in our constitutional framework and he must take that responsibility.
Turning away from that high ground to more modest proposals contained in the Bill, I particularly welcome the proposals made in relation to the Court of Appeal for which I am responsible. As to these proposals, there was the required consultation. I am glad to say that the concerns which were expressed by members of the Court of Appeal have been taken into account in the proposals which are now made.
The proposals are designed to achieve greater flexibility in the use of judicial resources and also to achieve more sensible and proportionate appellate tracks for appeals; they are needed. The Court of Appeal will have to face additional work of considerable proportions as a result of the proposed civil procedure reforms which come into force next April. In addition, there will be the impact of human rights as a result of the Human Rights Act. We are fortunate in the calibre of the judiciary in the Court of Appeal, but the latter cannot be made more effective merely by increasing the number of judges. That being so, we have to find ways of dealing with cases which are proportionate to the issues involved.
It is most important that those who have small cases which are not complex not only have a proper form of trial at the first instance but also have an appropriate form of trial on appeal. In many situations, what is needed is a form of local review at a local court rather than those cases having to come, as at present, to London. The reforms contained in Part IV of the Bill are designed to give the necessary flexibility.
Another small reform which is included in the Bill is one to which I attach importance; namely, the question of conditional fees. At present, conditional fees are providing a means of obtaining access to justice in a small range of cases, which was not available before their introduction. Conditional fees are not a panacea; someone has to pay the uplift involved in using conditional fees. Someone also has to meet the insurance premiums involved.
One of the problems faced by those who bring proceedings within the area now covered by conditional fees is that, all too often, defendants—and by "defendants" I want to make it clear that I am really referring to insurers—do not dispose of those cases as early as they should. As a result, considerable distress is caused to members of the public who often have to wait substantial periods of time before their litigation is concluded. In many cases the latter is concluded on the day that the case is listed before a court when, for the first time, a sensible offer is made.
The proposal that those who have to resort to a conditional fee in order to have the benefit of legal representation should be able to recover the uplift and also the insurance premium must surely be a just and sensible suggestion. It is my belief that it would help to bring about a change in the culture which we would like to see; namely, that when claims are put forward they are disposed of much more rapidly, much more sensibly and, indeed, much more appropriately than they are now.

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There are other matters in the Bill to which I attach importance. Here I particularly refer to the legal services commission. I endorse most strongly what the noble Baroness, Lady Crawley, said on that subject. If we are to have a service provided by the civil courts which meets the needs of the public, it is very important that the public should be able to obtain the representation which they need. Alas, as the noble and learned Lord the Lord Chancellor pointed out in his introduction to the Bill, legal aid is reaching fewer people at greater expense. That process cannot continue; we have to find other methods. It seems to me that a new body, such as that proposed, should be able to take initiatives which will achieve greater availability of the necessary legal advice for those who are in need in a better way than is possible under the rather rigid structures provided by legal aid at present. There is a great need for the use of new technology and there is a great need for the unbundling of legal services so that those who want to receive the benefit of legal advice can receive it in a way which they can afford and, if they cannot afford it, in a way which can be provided by the state.
When the Human Rights Act comes into force it will be of little value if it is not able to be used by the public at large. It is no use having rights if you are not in a position to enforce them. Reference has already been made to the need for an independent fund to allow public interest cases to be advanced. I very much hope that the legal services commission will be in a position in due course to take that matter forward. It is perhaps one of the shortcomings of the Human Rights Act that it does not make provision for a human rights commissioner, although that shortcoming could be met if in fact the legal services commission can do what is necessary.
However, in regard to the legal services commission, I must confess that I do have concerns that there should be an unrestricted power on the Lord Chancellor to give directions. For other aspects of the Bill, it seems to me that he has put in place appropriate mechanisms to ensure that there is a required process of consultation and that that consultation will take place in a way which will enable the Lord Chancellor's decision to be scrutinised. Whereas I could understand that the Lord Chancellor should have power to give directions to the Legal Aid Board, I urge that reconsideration should be given as to his ability to give directions without first undergoing a process of consultation to the legal services commission. I believe that that commission has a wider power than that enjoyed by the board which it will replace.
As I see this Bill as being one which takes forward the general thrust of the reforms to the justice system that we all wish to see, I commend it to your Lordships. I recognise that there are matters of detail which require improvement. However, I am sure that great care will be taken in Committee to examine each of the provisions contained in the Bill. But, in general, I hope that the Bill is one which will commend itself to your Lordships.
In regard to the detail of the Bill, I cannot resist pointing out to noble Lords that I am conscious of my historic relationship with the solicitors' side of the
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profession as Master of the Rolls. I am therefore rather surprised to see that Schedule 6 provides that, if after consulting the designated judges—of whom I am one—the Lord Chancellor decides to disregard their advice, I am deemed to consent to what he is proposing. I do not feel that that is perhaps the appropriate treatment of my role in relation to the solicitor side of the profession.
6.30 p.m.
Baroness Kennedy of The Shaws: My Lords, my noble and learned friend the Lord Chancellor is right when he says that access to justice is one of the measures of a true democracy. A high quality legal service, available to all, is essential. I therefore support the principle behind the Bill of creating a more coherent system for the funding and delivery of legal services. The creation of the legal aid system was one of the great achievements of the post-war Labour Government, but the present legal aid system has not always been able to deliver a service of consistently high quality, nor has it been able to control escalating costs. The time is right to reconsider legal provision and its funding. Like others, I am very happy to see that the noble and learned Lord the Lord Chancellor has listened to those of us who were concerned that conditional fees may not work out as planned, particularly with regard to the poorest plaintiffs, and that he intends taking reserve powers to create a contingency legal aid fund to make up for any failures in the new system. I am also pleased to see that he has recognised the need to protect public interest work. I am also delighted to see the steps that he has taken to provide greater coherence in the services to the community through the community legal service.
However, I, too, have some concerns and queries about this Bill. First, I am concerned that, in seeking to drive down costs, quality will be sacrificed. There is clearly a potential conflict between the objectives of cost control and quality. I regret that the emphasis in the Bill appears to be on the first. For example, in paragraph 3.18 of the White Paper, which sets out the Government's objectives in contracting, three of the bullet points relate to cost control and only one to quality control. In paragraph 3.21, the incentives in the new scheme are said to address speed of action and the rejection of unmeritorious claims. No mention is made of quality.
There can be no objection to the Government seeking to use public money responsibly and effectively, nor to the argument that the present funding system provides no proper mechanism for the control and assessment of costs before the event. However, this needs to be balanced with the requirement to provide services of proper quality—and any quality service costs money. I am concerned that the current focus is on assessment of office and management systems within firms of solicitors seeking franchises.
Where are the questions which address themselves as to whether or not those firms of solicitors will fight hard for their clients? Where are the questions which address whether no stone will be left unturned in preparing the case. Where are the questions about the standards of legal research which will be undertaken in preparing cases, the quality of advocacy, or the point at which the

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solicitors will seek the assistance of specialist advocates rather than keeping a case in-house to save money? Where is the question addressing whether or not the solicitors will seek out the right expert for a case? All of these matters concern me in relation to the issue of quality. I would therefore urge that the legal services commission should include a requirement to ensure that the legal services it funds are of adequate quality and sufficient to meet the importance and complexity of cases.
I also have queries about some aspects of the block contracting system of the criminal defence service. How do you ensure that specialists who are suited to the case are brought in? Will the block contracting system relate only to run-of-the-mill cases? What happens with the unusual or specialist case? To what extent are we sacrificing choice to efficiency in terms of cost?
I remember, in my early days at the Bar, my clerk referring to the importance of horses for courses. I discovered that most clerks in chambers are betting men. When they talk about horses for courses, they are really talking about the importance of getting the right barrister for a particular case. Will there be space in the block contracting system for the securing of the right barrister for a particular case? Will it be possible for any solicitor up and down the country to pursue the well-known advocate who is a leader in the field of prisoner rights if he is not on the solicitor's normal block contract list of counsel? If the solicitor has a case involving mental health, will he be able to secure the specialist advocate who deals with mental health cases and has taken many of them to the Court of Appeal and the House of Lords? Will the solicitor be able to secure the counsel who have been at the heart of so many of the miscarriage of justice trials? Will the solicitor be able to seek out barristers who have specialist knowledge and understanding of, for example, domestic violence? Or will the contract system confine the solicitor to those included on the special block contract list?
The danger this poses to the service and to the client is considerable. I say to my noble friend Lady Crawley that we are left with exactly what we saw in the Paul Newman film—a chance at justice but perhaps very little more.
I share the concerns of the noble Lord, Lord Hutchinson, about my greatest horror of all. The idea of introducing a criminal public defender system into Britain fills me with great alarm. I have direct experience of the public defender system in the United States. I have seen it in action. I have a friend working within that system even now—a young black lawyer, working in Washington, who is handling cases which no lawyer of his age and experience should handle. I have seen the pressure that that puts him under. A talented, brilliant young lawyer, who was the clerk to one of the justices of the Supreme Court of the United States, he still speaks of his desire to have a legal aid system like ours operating there.
We hear that there is a pilot scheme operating in Scotland to consider whether a public defender system might be effective and cost efficient. I can say now that the noble and learned Lord the Lord Chancellor will
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discover that it is very cost efficient. But surely in justice we are concerned with more than that? The horrifying levels of plea bargaining in the United States will almost certainly visit themselves upon our courts if such a system is introduced.
What happens with such a system? The young and the older but less able work within it; the turnover is incredibly high and lawyers quickly become beaten down. Collusion becomes part of the system—collusion between lawyers on both sides, prosecution and defence, with the court in order to get through the bulk of cases as quickly as possible.
Is that really the route that we want to go down? I know that our Lord Chancellor is committed to human rights and I hope that that will be his legacy to our legal system. But might he also be creating another legacy—the introduction of a system which can only disadvantage the many, particularly the poor?
Finally, I suggest that the noble and learned Lord the Lord Chancellor is addressing only half of tile problem. The general public pay for legal costs through much more than legal aid. The government departments and public bodies have to pay for lawyers out of taxpayers' money. To whom do they pay that money? To the private sector lawyer who is charging the huge fees to which the noble and learned Lord the Lord Chancellor referred, the ones that he said were based on what the market could bear. Why should the taxpayer be paying those sums of money? Is not the taxpayer, or the general public ultimately, out of pocket because of the fees that are being paid to the commercial sector? Where is the urgency on the part of the Lord Chancellor to curb and regulate the commercial sector, from which he himself has come? Is not the greed of lawyers in the privately funded parts of the profession part of the problem? Insurance companies, banks, National Health Service trusts and others all get their money to pay legal costs ultimately from the public, through enhanced premiums and charges which we all bear. So when my noble friends speak to the importance of creating community legal services and to the importance of improving services to the public, let us not be unprepared to say that commercial lawyers are the people who have driven up fees across the board and have had a shameful role in all of this.
There are many good things in the Bill. I congratulate my noble and learned friend the Lord Chancellor on introducing them in this piece of legislation. I congratulated him at the beginning of my speech on his willingness to listen. I hope that will continue in the processes which follow from today.
6.41 p.m.
Lord Mayhew of Twysden: My Lords, we can surely all agree that the Bill administers, as my noble and learned friend Lord Mackay of Clashfern said, a tremendous shake-up—perhaps the biggest shake-up—in the provision of legal services since the war or at least since 1949. Equally, I am sure we can agree that at this late hour the very scope of the Bill precludes a speech that is more than a very selective one. Applying that

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principle, I shall forgo following, as I should like to do, the speech to which we have just listened, save to say that I agree with much of what the noble Baroness said.
While there is much that is good in the Bill—most noble Lords have agreed on that—and no doubt there is more that can be made better, I propose to focus on provisions in Schedule 5 to and Part III of the Bill that are so dangerous that they could hardly be made worse. But, at the end, if I do not permit myself to tilt at the windmill of the speech of the noble Lord, Lord Hutchinson, it will only be for considerations of time. I hope to give notice that I intend to do so a little later, meanwhile, as it were, marking down the windmill upon my register of targets.
I declare an interest. Although I am no longer in practice, I remain a member of the Bar of England and Wales, which I had the honour to lead for five years. During some of that time—it seemed to be rather a long time—the Government wrestled with the difficult issues of competition and of fostering competition on the one hand and the need to maintain the independence of the Bar in the context of rights of audience on the other. It is no secret—it was not a secret at the time—that within the government there were conflicting views as to how these interests should be balanced and as to where the public interest lay. We were a strongly reforming government and we believed in maximum competition. We were also a strongly constitutional government, upholding the separation of powers. My noble and learned friend Lord Mackay of Clashfern valiantly strove to bring forward a reconciling balance and in doing so he attracted a good deal of flak from opposing quarters. But that is the lot of those who seek, as they have to do, to reconcile conflicting interests. The result was contained in Sections 29 and 30 of and Schedule 4 to the Act of 1990.
None of us would claim that that outcome was perfect. It certainly is an unwieldy outcome. It can be speeded up, as I think all noble Lords have agreed and as others outside have agreed as well. But it is not a process which by its nature ought to lend itself to being railroaded, and it did preserve free from the exclusive control of the executive what are after all the core functions of any profession—certainly the core functions of the profession of the Bar; namely, the formulation of its rules of conduct and the formulation of its rules governing qualification for membership.
The reason that we preserved those core functions from the exclusive control of the Executive was simple. It was well understood in every quarter of the government that in a free society, just as the judiciary has to be independent, the Bar has to be independent. The Executive must be denied control of the core functions of the Bar, which services with advocacy the courts that the judiciary operates.
I do not recall hearing the contrary being argued even by the driest and highest of the high priests in the Treasury. Certainly their concern was to get more competition; certainly their concern was to get lower costs. Those are patently concerns of the present Government. But they knew better than to seek exclusive control over the matters which now are affected by the schedule to which I have referred. They knew that that
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would be incompatible with the need for the public to have access to fearless advocacy and to fearless representation on the part of the Bar.
In those days, the recent speech by Mr. Sydney Kentridge QC, reference to which many noble Lords will have seen in some briefing, had not been delivered. It is worth citing a few lines from it. He said:
"If I may be permitted an anecdotal recollection, during the years of apartheid in South Africa, there were frequent threats from the Government to place the Bar under the control of a central council with Government-nominated members. This proposal was consistently and successfully resisted by the whole of the Bar, including the many members who normally supported the Government in its policies and legislation. It was well understood that to remove the control of the profession from the provincial Bar Councils and the General Council of the Bar would have meant the end of the independence of the profession. What was also well understood was that the independence of the Bench was inextricably linked with the independence of the Bar".
If those words had been, as it were, in the public domain at that time, the previous government would certainly have endorsed them. But we did not need them. I am afraid it is plain that the present Government do need them, because tucked away in Schedule 5 to the Bill are provisions which allow the Lord Chancellor alone to decide who can appear in court, who can conduct litigation, what rules of conduct there shall be, what qualifications lawyers can have, and more besides of a fundamentally important nature.
The noble and learned Lord the Lord Chancellor described these provisions as streamlining. I hope I shall not cause offence if I say that I thought his reference to them in the course of his speech was fairly streamlined itself. The Lord Chancellor's purpose in bringing forward these proposals is stated with almost Orwellian clarity in the admirable Explanatory Notes with which we have been provided. Paragraph 146 states:
"This power will enable the Lord Chancellor to change on his own initiative unreasonable or restricted rules on the part of a professional body".
What is the purpose of bringing in this extraordinary interference with the ability of a profession to govern itself? What are the shortcomings that lead him to guard against unreasonable or restrictive rules? Who is to test the Lord Chancellor's notion of what is reasonable? It is no good saying the judges will do so because the judges have that jurisdiction at the moment but it is to be swept aside by Part III of the Bill. The answer is that no one will be available to test that. Only Parliament will give consideration to an affirmative resolution, by which alone the Lord Chancellor will have to seek, as it were, validation. As we all know, with a large majority in another place, affirmative resolutions take up—no doubt, most inconveniently—as much as one and a half hours of Parliament's time. When they come to this place, what can we do? We can bring to bear such expertise as we have by virtue of the convention already alluded to by the noble Lord, Lord Goodhart. However, we cannot overturn such a measure. This is what we are confronted with. It is introduced in the most streamlined way that one can imagine. Clause 35 simply states,
"Schedule 5 (which substitutes new provisions for sections 29 and 30 of, and Schedule 4 to, the Courts and Legal Services Act 1990) has effect".
When one reads Schedule 5, one's hair stands on end!

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There is much in this Bill which is admirable. However, I cannot forgo one little tilt at some of the observations made by the noble Lord, Lord Hutchinson of Lullington. I should, I suppose, declare an interest in that it fell to me to set up the Crown Prosecution Service all those years ago. It is worth reminding your Lordships why, right across the political spectrum, there was pressure for an independent prosecution service. It followed from the report of the Royal Commission headed by Sir Cyril Philips, which drew attention to scandal after scandal that obtained when the chief constable in every force took prosecuting decisions right the way through to the conduct of trials. That is why there was said to be a need for an independent prosecution service.
I believe that we need to be fair. Of course we have listened to a brilliant forensic speech, as those who know the noble Lord, Lord Hutchinson of Lullington, would have expected. However, I am not one of the host who approach these matters without ever having undertaken this kind of work. I, too, have put up my flag and sought dock briefs. I knew perfectly well what PPDs stood for. I was jolly grateful for dock briefs and PPDs in my time. I also knew—if we are going to be fair about this—that there were members of chambers who never did anything except prosecute. As regards some of those rare but nonetheless important instances, one would look at them a long time before one was put in mind of the concept of total independence.
As I say, there is much in this Bill that is admirable. But finally I must say—before I turn my donkey about—that I believed that what the noble Lord said about my successor as attorney-general at the time of Matrix Churchill demonstrated less than his usual fairness. I hope to revert to that if it is necessary to do so at a later stage in the Bill. Although much is good in the Bill, I am afraid that there is a good deal that is dangerous. However, there is nothing more dangerous and more important than Schedule 5, which is profoundly unconstitutional and wrong. I hope that by the time the Bill leaves the House it will have been fundamentally amended.
6.54 p.m.
Baroness Goudie: My Lords, I wish to concentrate on three main aspects of the Bill: the responsibility of the new legal services commission to take the lead in establishing a community legal service in co-operation with local, regional and national plans to match the delivery of legal services to identified needs and priorities; the funding of services; and the reform of the system of appeals in civil cases. As the White Paper, Modernising Justice, states, a co-ordinated system for planning and funding legal services must take account of the views of local people. It will be successful only if local authorities, the bodies mainly responsible for meeting the needs of local communities, are closely involved.
We should not seek to re-invent the wheel. We must build on existing mechanisms. These include local law centres, which have existed for almost 30 years. These centres came about following the pamphlet of the Society of Labour Lawyers, Justice for All, in 1968, the
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principal author of which was the great lawyer, Morris Finer. Some 30 years on, Justice for All must still be our aim now.
Law centres make legal services available to individuals who would not otherwise have access to them, and they have a broad interest in their local communities. Often they are located exactly where they are needed, where traditional practitioners are most thin on the ground. But there are far too few law centres, and those that exist sometimes have a precarious existence. I therefore welcome the proposal in the Bill to establish a legal services commission and for functions to be conferred upon it relating to the community legal service. The commission must establish, maintain and develop such a service with a view to making a range of legal services available to members of the public.
The commission must inform itself not only about the unmet demand for, and existing provision of, such services but also about the quality of the services provided. It must co-operate with local authorities and other bodies and persons to plan what can be done towards meeting the demand. It must facilitate the planning by others of what can be done by them to meet the demand. More is required, but quality is also of vital importance. The Bill therefore rightly recognises that the commission will have a role in setting and monitoring standards.
I turn to funding. There is general recognition that changes are needed in the way the system of civil legal aid operates. There are at present abuses and anomalies. Disputes arising in the course of business cannot be regarded as a priority. Legal aid is not available for companies. It is right that it should not be. But a trader who is not incorporated can currently get legal aid to pursue a business dispute. This is despite the fact that businessmen have the option of insuring against the risk of having to bring or defend legal proceedings. The taxpayer should not meet the legal costs of businessmen who fail properly to insure themselves.
There are other areas which do not have sufficient priority to justify public funding. These include boundary disputes between property owners, and matters concerned with the law relating to trusts and partnerships. Consideration also should be given to whether there are better ways than litigation of resolving a particular dispute and, if not, whether the dispute could be funded by ways other than legal aid.
The existing so-called merits test does not ensure that resources go to the cases with the highest priority. A flexible funding assessment is required. Public money should be directed to the most deserving cases. I am glad that priority cases include those involving social welfare and the care of children. Targeting resources on priority areas is essential.
I move from Part I to Part IV of the Bill. I welcome the reform of the workings of the appeals system. As the White Paper states, an effective system of appeals is an essential part of a well functioning system of civil justice. At the same time appeals produce uncertainty about how long the litigation process will take, and what it is likely to cost.

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No doubt there are other reforms that can and should be made in modernising justice in the Court of Appeal that do not require legislation. Present practices grew up when the proceedings were entirely oral. Now appeal hearings are preceded by an exchange of written arguments. It makes one wonder whether there should now be only one speech on either side. The elimination of a right of reply for an appellant should shorten proceedings. It might also be fairer. At the moment one side has all the advantages of the first word and the last word and twice as many speeches as the other side. We must strike the right balance between justice and workability. I welcome the proposals in the Bill for less complexity and greater efficiency.
The Bill is based on sound principle. Someone who wishes to appeal should be required to show reasonable grounds. In most circumstances, more than one appeal cannot be justified. Appeals should not be heard at a higher level or by more judges than is appropriate.
I return, by way of conclusion, from the particular to the more general. Before the last general election, the Society of Labour Lawyers published a book: Law Reform for All. The present Prime Minister wrote a foreword. He wrote that legally enforceable rights and duties underpin a democratic society and access to justice is essential in order to make those rights and duties real. He described Labour's goal of improving access to justice as an essential part of its commitment to social justice. He referred to proposals for extending access to justice which included developing a community legal service which would be more responsive to the needs of the consumer rather than the lawyer. We are now seeing those ambitions brought forward as legislation. I am happy that while the Society of Labour Lawyers will be celebrating its founding by Gerald Gardiner and others half a century ago, this Bill makes a reality of access to justice in the ways I have described.
7.1 p.m.
Lord Phillips of Sudbury: My Lords, it may well be that I am the only solicitor in the House whose firm has a legal aid franchise at the moment. I am certainly the only lawyer on these Benches who was one of those who laboured to produce the document to which the noble Baroness, Lady Goudie, referred: Justice for All. It is true that it has proved an inspiration for the improvement in legal services with which we are bound up tonight.
I shall concentrate my remarks around the impact of the Bill on legal aid via the services of solicitors. It is sometimes forgotten that of the 3.5 million acts of assistance under legal aid last year, well over 95 per cent., I suspect, were delivered by solicitors in private practice.
It has already been said, and is only too true, that the Bill is skeletal and that the devil will be in the detail. But there has been a plethora of documents emanating from the Legal Aid Board. The White Paper itself makes plain what is currently proposed vis-à-vis a radical reduction in the number of solicitors who will be able in the future to provide legal aid.
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Perhaps I may clear up one point raised by the noble Baroness, Lady Kennedy of The Shaws, in her admirable speech. The White Paper makes clear that in fixing prices for solicitors who will be asked to tender for these new exclusive contracts it will include, "any advocates' fees". So in some way the firm that puts in a tender for legal services in a particular branch of whatever it is in a geographical area will have to sort out just what it will have to say on that score.
However, the new regime we contemplate hinges around a classic business school model. If you, a solicitor, give me, the legal services commission, a fixed price quote for the provision of legal services; and if you then win the tender, I, the legal services commission, as it will then be, will give you, the solicitor, a geographical monopoly of the relevant legal aid services for up to three years in that area.
I must say I thought that the sale of monopolies had gone out before the Civil War, but it is back here with a vengeance. This "come-on"—the exclusive contract, as it is not called in the White Paper; and I wonder why, because at no point does the document face up to the fact that these are exclusive contracts, given that the Legal Aid Board's last consultation document was called Exclusive Contracting—is bargaining on the fact that, with an exclusive contract "come-on", the commission will get solicitors (some of them quite desperate to hang on to the legal aid work they are doing) to tender at prices which are "what the market will bear", to use the phrase given by the noble and learned Lord the Lord Chancellor. It will be a rather rigged market. If you are one of the 11,000 solicitors firms doing legal aid and if it is an important part of your practice, to be suddenly told that you will not be able to do any more at all unless you win one of the exclusive contracts is a strong concentrator of the mind on the price at which you will wish to bid in order to get the franchise or the contract.
For those of your Lordships who may not have read the vital White Paper, a flavour of it may be enlightening. On exclusive contracting, it says that,
"all contracts will include quality standards and the work that providers do will be monitored. Wherever possible, contracts will fix the price which will be paid for work under them, and (where relevant) the number of cases to be done … Fixing price and caseload will enable the Legal Services Commission to control spending, and place positive incentives on providers … Fixed prices create an incentive (for solicitors) to deal with cases more quickly and efficiently. Fixed caseloads will remove the incentive to take every possible case, regardless of merit".
So much for our professionalism.
I wondered, as I read this and much more like it, how the good, noble and learned Lord the Lord Chancellor and the equally good, noble and learned Lord, Lord Falconer of Thoroton, would have reacted to the imposition on them in their glory days at the Bar of such a regime. But then, I am not so sure that either was strong in the legal aid field.
Also pause, my Lords, to consider the prospect from the point of view of the 11,000 solicitors' offices currently doing legal aid and how they will fare under the new system. Under the panoply of powers given to the legal services commission under the Bill, its

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conscientious bureaucrats (among whom you will not find one who has hands-on experience of doing solicitors' work, by the way) will, the White Paper assures us, require cases to be dealt with more quickly and efficiently than now, at a lower price than currently prevails—that is clearly anticipated—and at improved quality standards.
That would be all very well if legal aid solicitors were living off the fat of the land. The truth, however, as I am sure I do not need to impress upon your Lordships, is that legal aid practitioners are the packhorses of our legal system. I think they are like the good old lay justices, they do all the work and get none of the praise. They work extremely hard doing largely unglamorous work, for which they get little or no public esteem or thanks in return for modest—sometimes very modest—profits of roughly half what comparable non-legal aid firms make.
So let us not confuse them with the thoroughbreds of the commercial firms or the fat cats, as the noble and learned Lord the Lord Chancellor is fond of calling them. As I remarked in what I said in response to the gracious Speech, trainee solicitors in the City are paid more or are charged at more per hour than an experienced solicitor advocate gets currently for standing on his or her hind legs doing demanding magistrates' court defence work.
No, the new world anticipated by the Legal Aid Board in its October report to the noble and learned Lord the Lord Chancellor understands everything about free market forces in theory, but not nearly enough in my view about professional realities. You can lay down all the criteria, the quality standards, the performance-related indicators and franchise specifications in the world. You can monitor, compare and measure until you are blue in the face. But if what you are offering by way of remuneration is poor by market standards (and I mean by comparison with private client work) and if the bureaucratic regime of oversight is laborious and demotivating, you might as well save your breath.
The latest three consultation drafts put out by the Legal Aid Board recently, vis-à-vis exclusive contracting, runs to a total of 350 pages. That comes on top of a whirlwind of earlier consultation papers.
Many, if not most solicitors find all this onerous and demoralising. In some respects they will simply prove unworkable. I give one example.
The qualifying standards and requirements for supervisors, as it is called, under the proposed exclusive contracts demand, among a host of other things, that the solicitor concerned does as least 50 per cent. of his or her work in the area of supervision. That will be a knock-out blow to many smaller firms including those with existing franchises and developed expertise. In response to the gracious Speech, I quoted the chair of the current Legal Aid Practitioners Group who has remarkable expertise in social security law and will have to give up because of that condition.
The effect of that proposal, and of the bureaucratic overburden of the arrangements, involving a veritable paper chase of steps, procedures, records and so on,
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is that most small and smaller solicitors' firms are likely, if not certain, to be squeezed out of legal aid altogether. Yet they are often the firms which are keenest to do it and at the keenest prices. One of the inexorable laws of legal practice—as I am sure all noble Lords will know—is that the proportion of fees devoured by overheads rises in step with the growth in the size of the firm. In short, small equals value for money.
Another consequence of the new arrangements will be to cut out literally thousands of firms which now undertake a modicum of legal aid work, typically £10,000 to £20,000 worth a year, often because they think they have a duty to undertake some legal aid even though their real profit is little or none. My office in London is a case in point. We are not a legal aid practice in the square mile, but we have a legal aid franchise for immigration work. It is extremely uncertain whether we shall be able to retain it. We have a highly skilled family law department with scarce expertise in handling cross-frontier children's work. My colleagues are almost certain that we shall have to give up that work much though they want to do it, and much though it feeds rare expertise into the system.
There is another potentially damaging side effect of the exclusive contracting proposals. The proposed concentration of legal aid work in the hands of 3,200 firms, or thereabouts, compared with the current 11,000 offices will involve a considerable increase in the amount of legal aid work to be done by the winners of the new contracts. I imagine that the Legal Aid Board think that that will be a great "come-on". However, many of those firms are not sure that they want a significant amount of extra legal aid work. They will have to take on more staff; and it will disturb the fine balance which exists not uncommonly between two-thirds private client work and one-third legal aid work. That is true of my Sudbury office. Since the private client work is typically charged at up to double the legal aid rate, it is not at all clear that such a firm will want to tilt the practice in the less profitable direction. Research by the Law Society demonstrates that the more legal aid undertaken the less the profit made.
But that is not all. The winners of the new competitive tenders will have to contemplate losing the work when the tenders come up for review. By then legal aid may have become the major part of their work. However, to return to the nub of it all, 11,000 legal aid offices are to be contracted to 3,200 plus 200 charity providers of legal services. (And that is a great advance in the proposals of the Lord Chancellor.)
The claim made for this radical concentration of legal aid work is that there will be economies of scale, more specialism, and quality will be tightly controlled; and that all those factors will improve the status quo. The fingerprints of the Treasury are, I need hardly say, everywhere apparent.

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With a glibness which will surely come back to haunt it, the Legal Aid Board (which will transmogrify into the legal services commission) reported to the Lord Chancellor only two months ago that,
"while the proposals to concentrate the contracts on a smaller group of quality suppliers would reduce the number of individual access points, we do not believe that the proposals would lead to problems of access per se".
The gaps—and they will be huge in rural areas—will be plugged by a combination of exclusive contracts for citizens advice bureaux and other charity suppliers of legal services, telephone advice (and much is made of that) and other unspecified "outreach services". As the Labour Party used to understand, the problem of legal access is not just about cash and physical proximity—although for poor people, mothers with children, and the elderly and disabled, that is real enough in an age of disappearing public transport—there is also a psychological deterrent for which telephones are no alternative.
It is not my job, or the wish of those on these Benches, to defend incompetent or lazy lawyers. The public have a right to a good service at a fair rate. As the Lord Chancellor said in the introduction to his White Paper, and as he reinforced today, he is seeking "a fair and efficient system of justice". Fairness, I am sure he will agree, cuts both ways or in the long run does not cut at all.
I have to say, however, that many high street solicitors feel that they are becoming the whipping boys of the legal system. As I have sought to explain, the rewards for legal aid work are in most cases poor, and, in truth, in order to earn a decent living many legal aid practitioners have to handle too many cases—too many if they are to deal with them all with the same degree of efficiency and effectiveness that they and their clients would wish. The reforms brought forward by the noble and learned Lord, Lord Woolf, may well make that dilemma infinitely more acute.
All one can say is that at present the vast majority of clients would far rather have sometimes slow and less than perfect service than none. By contrast, as I have sought to explain, the somewhat triumphalist assumptions behind the White Paper could make access and quality worse unless the proposals are reconsidered and significantly recast.
We shall be encouraging the House to make amendments to Clause 9 of the Bill by adding criteria to the code to be prepared by the legal services commission which will frame the terms of service with solicitors and other service providers.
In conclusion, the very proper preoccupation of the White Paper with quality and quality assurance will not become actuality simply by the imposition of ever increasing numbers of codes, inspections, forms, and so on. Many noble Lords will be aware that the system developed over recent years does nothing to check the quality of the work in the way it is conducted and the outcome. In the consideration that the Lord Chancellor and his colleagues will give to the Bill, I hope that that important point will be remembered. I fear that for many
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solicitors the taste for the legal aid scheme has been, and is being, undermined to a point where many of them, conscious though they are of their public duty to take the rough with the smooth, may no longer wish to take part in the new regime.
7.17 p.m.
Baroness Scotland of Asthal: My Lords, I, too, welcome and applaud the holistic approach adopted in the Bill and the objectives behind it. Many of those objectives have already been referred to by other noble Lords. Your Lordships will be relieved to know that I do not intend to recite any of them.
I listened with great care to the concerns expressed in many speeches, not least that of the noble and learned Lord the Lord Chief Justice who reflected so many of those of the judiciary. I am sure that the noble and learned Lord the Lord Chancellor will heed them with care. The noble Lord, Lord Clinton-Davis, and the noble Baroness, Lady Kennedy, made powerful speeches in relation to the difficulties facing your Lordships' House in considering the Bill. I find myself echoing many of those concerns. I am confident that the noble and learned Lord the Lord Chancellor will also have listened with care to their comments. I am sure that he will be sensitive to the need for further consultation and mature reflection.
A large number of the matters debated today will be the subject of detailed comment during the Committee stage. That is the most appropriate time to discuss them. As indicated by the noble and learned Lord the Lord Chief Justice, we should ensure that the virtues of the existing system are preserved and valued. One of those virtues is the integrity of the legal profession which is rightly envied elsewhere in the world. It should be jealously protected and valued and not taken for granted. The point has often been emphasised to me by visiting European and American judges who are frankly amazed by how much our judges are able to rely upon the advocates who appear before them and the level of trust that is invested in them. As one American federal judge stressed to me, we undervalue that at our peril and we do not truly understand the pearl we have. The comment was made after she and other Supreme Court judges had had the benefit of watching our procedure in operation. She watched advocates assisting the judge, identifying issues and matters of that kind. We must listen to that echo and not undervalue what we have, which is a very British thing to do. It is rather like the comment of Groucho Marx. No one wants to be the member of a club that is happy to have that individual as a member.
The complexion of our legal profession has changed for the better. Currently, there is a wide cross-section of society reflected within the legal profession that is available to assist all sections of the community. The profession is no longer the preserve of the privileged. I hope that nothing within these proposals will prevent this process from continuing.
It has been accepted by many that the question of costs is crucial. There are many ways in which costs can be contained. I am sure that this is another subject that we shall spend a good deal of time debating in

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Committee. I am comforted by what has been said about the preservation of a level playing field and that the same rules will apply to all advocates.
I am not in the least concerned by—indeed I welcome—the increase in competition in the legal profession because that must be advantageous to the litigant who seeks redress. But what does it mean? At the moment the Bar adheres to the taxi rank principle which obliges each member to take whatever brief is offered provided it falls within his or her field of expertise. Is that to be preserved? If not, why not? If it is to be preserved, how? At the moment there is parity of opportunity for the litigant by virtue of the fact that the advocate is obliged to take the first brief in time irrespective of the fee attached to it. Therefore, if a legal aid brief arrives before a privately paid brief it is one's duty to take the first in time. On the basis of that principle, it is to the public advantage that it should be so.
I emphasise that peculiarly in this jurisdiction a legally aided litigant, when faced with the might of a large institutional body or rich opponent, can be equipped with a better lawyer or team of lawyers even though the market indicates that the institution or body is paying considerably more for its representation. In our system David can still overcome Goliath with a little help from his friends.
The words that spring to mind when reviewing the Bill are "caution" and "balance". I hope that when we come to debate the Bill in detail we shall have the courage to jettison that which detracts from the undeniable and honourable aims and objectives of the Bill. I echo the words of many other noble Lords. There is much in the Bill to applaud, to be grateful for and in which to rejoice, but there is also much that should make us extremely cautious. We must guard jealously our justice system because once it has gone it has gone.
7.24 p.m.
Lord Hunt of Wirral: My Lords, how right is the noble Baroness to utter the words that she has. I could not agree more. When the noble and learned Lord the Lord Chancellor opened the debate he said that access to justice remained far too limited. In that context we welcome the Second Reading of the Access to Justice Bill. Although I intended to comment only on the civil justice reforms, I am moved by the speeches of the noble Baroness and the noble Lord, Lord Phillips of Sudbury, to say a word about access. I believe that the overwhelming message that has come through in the speeches thus far is that the Bill is the Limiting Access to Justice Bill. That must surely be a worry for us all.
I believe that when the noble Lord made reference to 11,000 firms being in receipt of the legal aid franchise and that the figure would be cut to 3,200 it produced a feeling in us all of serious concern. I agree that it is necessary for quality to be paramount in handling cases on behalf of litigants on whatever side of the argument. But, surely, the recent announcement by the Law Society of the Lexcel Quality Accreditation scheme and all the measures that have been taken is enough to
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reassure people. The message that comes out of the speech of the noble Lord, Lord Phillips of Sudbury, is that it is essential that all firms who have reached the franchise standard should be entitled to a contract in the area of law to which their franchise relates. The noble Lord, Lord Clinton-Davis, made the point earlier, and I hope that the noble and learned Lord the Lord Chancellor will reflect upon it.
In many ways the provision of legal aid could become a lottery. The noble Lord, Lord Sawyer, said that one had to stop legal aid deserts. Surely, to restrict it to these firms—I shall turn in a moment to the reforms of the noble and learned Lord, Lord Woolf, which I greatly welcome—and to concentrate on multi-track civil trial centres in certain parts of the country, thus producing a number of firms that group around those courts, means that in large areas of the country it will be impossible to find a lawyer who has an exclusive contract and also the expertise to bring one's case. These are whole areas in which needy people in particular will be unable to find local solicitors who are allowed to take on their cases.
I believe that the reduction in the number of firms franchised to carry out legal aid work will alter the economics of practice. The noble Lord said that there will be fewer larger firms. That does not mean that they will be cost-effective. I fear that there will be a period during which the public in large (perhaps outlying) communities will be unable to locate appropriate solicitors.
I turn to the voluntary sector. As president of my local citizens advice bureau I can hardly wait to hear the evidence of the national association. Having been involved in many voluntary organisations, perhaps I may pause for a moment to reflect that these bodies cannot be expected to fill the gap, particularly when they do not insure against the consequences of negligent advice. Therefore, there is no remedy available to a member of the public who in effect will be without protection. I hope that the House will forgive me for deviating for a moment from the main purpose of my speech, which is to talk about the civil justice reforms, by asking the noble and learned Lord the Lord Chancellor to find some way to ensure that access to justice is improved.
I congratulate the noble and learned Lord the Lord Chancellor on addressing constructively the failure of the system to deal with private disputes between citizens. Those failures have built up over many years. Of course the noble and learned Lord is carrying forward the reforms to civil justice started by my noble and learned friend Lord Mackay of Clashfern.
The problems identified some years ago in the Civil Justice Review were expense, delay and complexity. Those problems are felt as keenly as ever by the users of the system, whether private individuals, companies (particularly small firms), insurers or public bodies. I do hope that the Government will take account of the very constructive response to reform which is now coming from all branches of the legal profession. I hope that Ministers will accept that the profession has fully taken on board the need for change and has contributed to the

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debate. The few objections which there have been to the planned changes are carefully thought out and merit consideration.
As the noble and learned Lord, Lord Woolf, will know, I applaud the contribution he has made, without which we would not have proceeded at the pace we have. He will have heard me in the debate on the new civil procedure rules last summer when I explained the concern expressed by many practising lawyers about the timing of the implementation of the new rules and the resource which is available to support the new reforms both generally and with specific reference to information technology. The rules have now been signed but there are those who believe that they still contain some detailed provisions which will cause difficulties in practice. Moreover, as the focus has now moved on to practice directions, which support and clarify the rules, it is a matter of some concern that only towards the very end of this process some of the key drafts are now for the first time entering the public domain.
Nevertheless, we are all gearing ourselves up to make the new rules a success. The Law Society, with the support of many involved in developing the new system, has just completed a round of seminars aimed at raising awareness. Indeed, as those practising solicitors participating in this debate know, all of us in our own firms are doing detailed work to ensure that 26th April 1999 is going to be a day when the reforms will from the outset be a considerable success. The ripples are spreading across the legal pond. Solicitors are doing their best to make sure that their clients, from individuals to major corporations, and also public bodies, as mass users of the civil justice system, are aware of the changes and the implications for themselves and their businesses and organisations.
It has become apparent that one major problem for insurers will be educating individual policyholders who, for example, may have a road traffic accident about how the new procedures will affect them. I urge Ministers to consider whether or not there is need for a more extensive advertising campaign as a matter of public information. I say those magic words knowing full well, as do those who were previously Ministers, that there is always money available somewhere for a public information campaign. I am sure there is one called for here.
I applaud the concept of proportionality which Part 1 of the new rules introduces to the civil justice system, but I do not think it should be assumed that the public at large will do so without some information to enable them to understand the concept, in particular when they discover what it is going to mean in practice. I do hope that there will be no delay in ensuring that the necessary support systems are in place.
I hope that Ministers will read tomorrow's The Lawyer. I mention that periodical just as the noble and learned Lord the Lord Chancellor referred to it in the last debate we had on this subject. A front page article under the headline, "Part-time judges face delay over Woolf training", states:
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"The 1,250 part-time county court judges in England and Wales, who sit for at least 20 days per year, will not begin training in the new rules until 19 April."
I hope that that is not true. I look forward to the Minister confirming in his response that it is incorrect.
On the question of funding, I want to say a word about conditional fees. The replacement of the old "merits" test for legal aid is to be welcomed. Solicitors in practice know that this test very rarely results in the refusal or withdrawal of legal aid. The White Paper identifies three key questions which will feature in the new funding assessment. I believe the criterion concerning the availability of a conditional fee agreement is not strong enough. Surely, once conditional fees are established, as we all hope they soon will be, it should be made clear that the availability of that funding mechanism in principle should be an absolute bar to state funding. I cannot see why the state should ever accept a lawyer's opinion that it should fund litigation which that lawyer is not prepared to risk himself.
Secondly, it must not be thought that conditional fee agreements are that ideal, long-thought-impossible, free lunch, because they are not. The rules which have protected the position until now existed to protect the public from the dangers of lawyers sharing too closely in the financial outcome of their clients' cases, which reminds us that there is a wider dimension here. The primary duty to the court is now going to be put on a statutory basis and it is unlikely that the vast majority of legal professionals will find that that enhances in any way the moral imperative under which they have always operated. For the few who are tempted, it remains to be seen whether the new statutory duty outweighs the vastly increased financial pressures. I share a number of noble Lords' concerns about that.
I have spoken already about the hidden cost in the new funding package which relates to the recovery of the insurance premium and the success fee. That represents completely new money in the system and an additional cost which will have to be borne by the insurance industry and the public purse where the defendant is a public body. I am not sanguine about the view expressed that the insurance industry will be keen to develop cheaper legal expenses insurance in the face of this additional cost. As the industry consolidates, legal expenses insurers and liability insurers increasingly are the same people. I still oppose what I believe to be an unfair provision but if the Government win the day I hope special emphasis will be given to monitoring and controlling the level of success fees and insurance premiums at the end of each case. Any laxity in this area will see the level of legal costs increase sharply to the detriment of what must be one of the fundamental principles behind the entire process: reducing the cost of obtaining justice.
I hope these are matters that the noble and learned Lord the Lord Chancellor will bear in mind. In addition to the 75,000 to 80,000 lawyers mentioned in the White Paper there are many tens of thousands more employed in the legal services industry. A significant part of the £8 billion worth of annual fees of legal firms are represented in services supplied to clients overseas,

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contributing to the economic health of the country. I hope he will bear all this in mind in the search for some way of managing not only the biggest upheaval in legal aid we have ever seen but also the largest ever reform of the civil justice system. We will have to tread more cautiously to ensure that we do not end up by limiting access to justice.
7.38 p.m.
Baroness Thornton: My Lords, in rising to speak in this debate I can say two things for sure. The first is that I will be brief because, due to seasonal croakiness, my voice will not hold out for very long and, after four-and-a-half hours, some may say that is just as well. The second is that I shall not at this moment be straying into the territory of audiences, fees and related matters already occupied so eloquently by so many of the legal profession here today.
Many lawyers have spoken today and perhaps even more, I suspect, are holding their fire for yet another occasion. Quite rightly, there is enormous and sometimes passionate interest which colleagues in the legal professions have and will show in the Bill. It is important that those of us who are consumers of the law and who have experience of other kinds of advice-giving should also be heard in this discussion.
I have worked as a probation officer. I have worked in a girls' remand home. I helped to run the citizens advice bureaux and law centres of north London for a time. Indeed, I was a member of the management committee of the greater London CAB service under the chairmanship of the then Lord Ponsonby.
I wish to say a few words about the proposals in the Modernising Justice White Paper and the Access to Justice Bill before us today concerning the community legal service. It is not a new aspiration to attempt to provide a comprehensive front-line legal service which guarantees consistent quality. Indeed, it has been an aspiration of many of us who have been involved with citizens advice bureaux and law centres for many years. What is different and why it is such an important matter here today is that the Government have placed access to legal services at the heart of their reforming legislation and have made a commitment to an holistic approach which involves all providers in that sector.
Surely the key to success in the new proposals rests in their comprehensive nature, people's access and a guarantee of the quality of legal information. As my noble and learned friend the Lord Chancellor said, at present the provision of legal advice services is patchy. Many communities, often those which need advice most, do not have access. I am thinking particularly about the homeless and vulnerable young people who have no access because they have nowhere to live. The lack of standard measures of quality of advice sometimes leads to bad advice and distressing outcomes.
I am aware that there are those in the legal profession who are concerned—and some have expressed those concerns today—about the provision of front-line advice being provided by non-legal experts. It is important to remember that duff advice, if I may use that expression, can come from anywhere. Recently, an acquaintance of
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mine was given completely the wrong advice by her solicitor about the very important issue of her landlord. Even I knew that the advice was wrong and, in fact, the local CAB provided correct and helpful information. I am aware that one example does not make a general case but in answer to my noble friend Lord Clinton-Davis, I should say that it shows that bad advice can be given from different quarters. That is why the Bill's commitment to the quality of information and the development of kitemarks is to be wholly welcomed.
I am pleased to learn also that the development of core quality criteria will involve all the parties—local government, the voluntary sector, law centres as well as government departments and the Legal Aid Board. Many of my friends are lawyers and I have the highest regard for them. Indeed, some are very close to me! But as a profession, it does not always place the value on the views of non-lawyers that it places on those of itself. I make a plea to my colleagues in the legal profession: when you have discussions with other agencies—CAB services, voluntary agencies and so on—to develop a uniform set of standards, I recommend that you use the strength and diversity of that sector to help to inform the provision which is ultimately developed. It will be greatly strengthened by that. There are people who have experience of delivering services in the most deprived and difficult communities and to groups and societies shunned by many. Above all, they have experience of how and when to deliver services. I believe that they will provide an extremely valuable insight into the process. I hope that that insight will be used.
7.44 p.m.
Lord Lane: My Lords, no one questions the importance of making justice more efficient; indeed, as efficient as it possibly can be. Of course, efficiency comprises a large number of aspects—speed, low cost and, perhaps above all, fairness. But I suggest with deference and hesitation that some of the proposals for efficiency in this Bill are to be bought at too high a price.
The prime examples are those which have already been mentioned by my noble and learned friend Lord Mayhew and the noble Lord, Lord Hutchinson of Lullington. They are mostly contained in Clauses 30 to 35 and, in particular, in Schedule 5. The three most important are that standards of education and training for advocates, their codes of conduct and their rights of audience in the High Court, should be decided by the Lord Chancellor untrammelled, as it seems, by any other restraints save for the necessity of consulting but not being bound by the views of the designated judges.
Those are grave inroads into the authority and the long-standing independence of the judiciary and the Bar. They are a serious erosion in the constitutional principle of the separation of powers, at a time when that principle is of particular importance.
The Government have a large overwhelming majority. The Opposition are correspondingly weak and very largely ineffective. That means that there is almost a free power in the hands of the Executive and it is the Executive role which the Lord Chancellor is acting or

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going to act. In other words, the scene is well set for what the noble and learned Lord, Lord Hailsham, on an earlier occasion described as a parliamentary dictatorship.
It is that point at which the separation of powers becomes so important; that is, the separation between the legislature, the Executive and the judiciary. The only check on the unrestrained power of the Executive is the law administered by the judges, assisted by an independent Bar. They can try to ensure, by judicial review, that the Executive does not exceed its legitimate power. If the judicial power is eroded or, even worse, is manipulated by the Executive, then the ordinary citizen is in trouble. It is a sad fact that judicial protection is a benefit which is not missed until it is lost.
Is it too much to ask that the noble and learned Lord the Lord Chancellor will not forget that he has a judicial as well as an executive obligation? If he forgets that, the consequences may be more drastic than he realises.
I wish only to add this. It was surprising, to say the least, and disappointing for me to hear the noble and learned Lord the Lord Chief Justice and the noble and learned Lord, Lord Woolf, the Master of the Rolls, depart from the views which have been expressed by the judges in their care. I suggest respectfully that the views of those judges in the care of the Master of the Rolls and the Lord Chief Justice are to be preferred.
7.50 p.m.
Lord Borrie: My Lords, my noble friend Lady Goudie referred to the former Labour Lord Chancellor, Lord Gardiner. I recall that about 30 years ago Lord Gardiner was receiving the first fruits of the work of the Law Commission whose creation is generally regarded as his most lasting achievement. The Law Commission had a considerable programme of law reform, statutory consolidation and the removal of obsolescent law from the statute book. I am pleased that a couple of weeks ago my noble and learned friend the Lord Chancellor was able to reassure the noble and learned Lord, Lord Wilberforce, that he has every intention of bringing forward a number of Law Commission reports for implementation. The White Paper before us today states clearly that up-to-date law allows legal disputes to be resolved more effectively.
However, it goes on to recognise, as does the whole of today's debate—that improving people's legal rights, no matter how important, is a vain endeavour unless they can enforce those rights effectively with reasonable dispatch and without bankrupting themselves.
The Bill is broad, but I shall confine myself to civil justice. Surely we all agree that there needs to be affordable access to dispute settlement machinery for people from all walks of life. Not many of your Lordships have referred to the matter, but I believe that government policy rightly promotes many models of dispute resolution which in recent years have grown up as alternatives to the traditional court system. I refer to mediation, arbitration and ombudsmen. I am pleased that the Government's draft financial services and markets Bill puts much stress on a comprehensive unified ombudsman scheme outwith the court system.
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One of the great benefits of the Law Commission is that it is a standing body keeping the law under continuous review. Until now we have not had such a body in continuous, permanent existence dealing with the administration of justice as distinct from the substantive law. Instead, during the past 40 or 50 years we have had frequent ad hoc inquiries. Most recent and most importantly for today's discussion is the inquiry by the noble and learned Lord, Lord Woolf, into the civil justice system. I regard it as excellent that not only are the Woolf reforms being implemented, but that the standing body (the civil justice council) to monitor the changes is being created with the noble and learned Lord as its first chairman.
The first element of access to justice, which the Bill rightly emphasises, is the ready availability of information and advice. I need not develop that argument because several of my noble friends have spoken of the various ways in which the Bill's provisions seek to co-ordinate the existing patchwork of advisory services to develop a core criteria of quality and to create a community legal service. I say to the noble and learned Lord, Lord Mackay of Clashfern, that those services are at the local level but mix and bring together the skills of lawyers and the interests and willingness of enthusiastic volunteers.
I welcome the extension of the availability of conditional fee agreements in Part III. I, too, accept that it is not a panacea, but we all know, that except for the rich and the legally-aided poor, pursuing a civil case today is too often an unpredictable and certainly an unquantifiable gamble. The proposal to enable a court to include any success fee, which is payable under a conditional fee arrangement, and any insurance premium paid among the costs that it orders a losing party to pay to the winner is also welcome. I was delighted that the noble and learned Lord the Master of the Rolls also welcomed those provisions.
Many questions need to be answered and pilot schemes can assist in that regard. I refer to the willingness of solicitors to undertake conditional fee work and the availability of insurance, as pointed out by my noble friend Lord Clinton-Davis. But surely my noble and learned friend the Lord Chancellor was right not only today but in the debate on the gracious Speech, in earlier speeches and in the consultation process to explain his views on these matters.
I believe that cultures can be changed. I would not have predicted that, for example, Mr. Peter Carter-Ruck, would so soon offer his services in defamation cases on a conditional fee basis. On the subject of conditional fees, and on the erosion of lawyers' monopolies as mentioned by the noble Lord, Lord Hutchinson, I praise the noble and learned Lord, Lord Mackay of Clashfern. When he was Lord Chancellor in the late 1980s he came in for a great deal of unfair criticism over the Green Papers. I recall, as did the noble and learned Lord the Lord Chancellor with appropriate quotations, the somewhat immoderate language, used even by noble Lords in this House, condemning the proposals of the then Lord Chancellor for ending some of the restricted practices engaged in by the legal profession.

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Some restrictive practices are justified in the interests of maintaining the quality of service to clients and ensuring proper protection to clients against rogues and incompetents. However, so often the restrictions adopted by the profession—not only the legal profession, but that is the one we are discussing today—have gone beyond that. Self-regulation has often operated more in the interests of members of the profession than in the interests of the public. Your Lordships may know that in the 18th century the lawyers of New York had a monopoly on court practice. They passed a resolution to admit no more apprentices into training for the next 14 years—except for their sons! No doubt the citizens of New York were solemnly reassured that that measure was essential in the public interest.
That was a long time ago and it was not in this country. But not so long ago in this country only a solicitor could engage in conveyancing; all publicity as to the services which a lawyer could give to the public were banned; and only a barrister could appear in the higher courts. Changes were made in particular by the Courts and Legal Services Act 1990. But they were hedged around with conditions and exceptions and, not surprisingly, the impact of the changes was small. Fewer than 1 per cent. of solicitors currently have rights of audience in the higher courts.
The most extreme condition has been the veto on the change which can be exercised by the Lord Chief Justice, the Master of the Rolls, the Vice-Chancellor or the President of the Family Division, or any one of them. That most extreme quadruple veto is altered by the Bill to a consultative role. It was most interesting to us all to hear today the views of the noble and learned Lords the Lord Chief Justice and the Master of the Rolls of the present day. As a result, I have a feeling that I should prefer that the so-called designated judges had a role rather than the other judges. Perhaps that is simply because of the views expressed by the senior judges who have spoken today. Of course, I am glad that the consultative role of the Director-General of the Office of Fair Trading is retained. As a former holder of that office, perhaps I am expected to say that, but his office is experienced in weighing up, in many areas, the often conflicting benefits of competition and other public interest claims. Whatever the case, I certainly hope that in the future clients will have a wider choice of quality people providing legal services, as long as they satisfy basic training requirements.
I do not believe that competition from others will destroy the role of the self-employed barrister. They may be fewer in number, but the Bar will continue to be valued by solicitors and their clients as an independent source of advice, advocacy and specialist knowledge, with the benefit of low overheads available to all solicitors, large and small, throughout the country. It is unlikely that the higher courts will be flooded with solicitor-advocates, if only because most solicitors practise in such a way that court appearances cannot be fitted in conveniently as an everyday function.
It has been pointed out that the period of existence of the National Health Service and legal aid are about the same, as it is 50 years since the Legal Aid and Advice
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Act 1949 was passed. Last week, in a debate on the National Health Service, the point was made that whatever may have been the case in the past the patient, not the practitioner, is at the centre of our concerns. This Bill helps to put the client at the centre of our legal and judicial process.
8.1 p.m.
Lord Gisborough: My Lords, in 1690, a great political philosopher, John Locke, said:
"It may be too great a temptation to humane frailty, apt to grasp at power, for the same persons who have the power of making laws, to have also in their hands the power to execute them. whereby they may exempt themselves from obedience to the laws they make, and suit the law, both in its making and execution, to their own private advantage".
There is no liberty if the judiciary power be not separated from the legislative and executive. Joined-up government, avoiding a fragmented and piecemeal approach, is one thing. Co-ordinated and planned strategies, based more on performance indicators than justice, are quite another. The ability to dispense justice fairly and efficiently will be called into question if the objectives of the police and Crown Prosecution Service are too closely aligned with disposal rates set by the Lord Chancellor's Department in relation to the courts. Government policies, which are implemented in a coherent and consistent way across all agencies, have the potential to call in question the impartiality and independence of those involved in judicial decision-making which, in turn, could very well lose public confidence.
That is evidenced no more so than in the provisions which relate to magistrates' courts. The Government's stated intention to allow for the first time an administrative body answerable directly to the executive arm of the Lord Chancellor, the magistrates' courts committee, to determine judicial issues such as the allocation of cases (recognised by all judges as a judicial matter) and the deployment of justices is an example.
Clause 55 will allow the Lord Chancellor, by statutory instrument, to extend the remit of a court's committee into the judicial arena, a function which is not currently enjoyed. Increased default powers of the Lord Chancellor, together with the ability to appoint an unlimited number of non-magistrate members, many of whom could be local politicians, would call into question judicial independence and politicise, either nationally or locally, the operation of magistrates' courts.
Alterations to petty sessions' areas must, in my view, be a matter of great concern. The Lord Chancellor appears to be intent on changing the concept of local people dealing with local issues. The result of all that means that magistrates will no longer be responsible for organising cases which come before them. Administrators will be able to pick and choose the composition of the tribunals in circumstances where the liberty of the individual is at stake. Such decisions have the potential to be based more on performance indicators than justice.
Steps must be taken to ensure the continued integrity of local benches which maintain judicial control over jurisdictional issues, such as listing of cases. In the Lord

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Chancellor's paper, Modernising Justice, reference is made to the Crown Prosecution Service being made responsible for listing, thus manifesting an appearance of bias.
One other area which threatens judicial independence at its very roots is the provision relating to the extending role of the justices' chief executive. The Government's intention to produce a performance charter, which will include targets to reduce delay and improve fine enforcement, will compromise the judiciary if the chief executive is permitted to direct the justices' clerks in all matters, except giving advice in individual cases.
The Magistrates' Association already has examples of chief executives interfering with sentencing and fine-enforcement measures. Defining all the justices' clerk's functions, apart from certain limited circumstances, as merely administrative in Clause 61, when the other duties include giving advice to panels at general meetings and dealing with the grant of legal aid, is a very dangerous view to take.
It needs to be made abundantly clear in statute that the chief executive must not and cannot direct the justices' clerk on any legal issue concerning the bench, or in relation to his or her own judicial or legal powers. Section 8 of the Justices of the Peace Act 1997 has proved to be deficient in ensuring the integrity and independence of the justices' clerk. Allowing chief executives to direct justices' clerks, when performing statutory duties in relation to legal issues under Clause 60, is a fundamental breach of constitutional law.
It would appear that the noble and learned Lord the Lord Chancellor is becoming prescriptive in relation to his directions. Take, for example, the directions to advisory committees on the appointment of justices of the peace, which no longer allow the committees to use their own initiative and judgment. Here he is becoming prescriptive in relation to judicial matters through a justices' chief executive.
I understand that there was to be a period of consultation which dealt with the role of the justices' clerk. The period for submissions ended on 30th November 1998, yet the Bill was published on 2nd December 1998. The Government pride themselves on being a listening government. In this respect they have listened only to themselves.
8.6 p.m.
Lord Ackner: My Lords, the noble and learned Lord the Lord Chancellor recently assured us that if he were permitted certain sartorial concessions he would do his job more efficiently. I suppose, like interest rates, that takes some time to work its way through the system. We must be patient. I am deeply disappointed at his failure, not merely to deal with, but to disclose the very serious constitutional principles which relate to Part III. I propose to take this as the principal point, as the cardinal point, or perhaps I should say as "the cardinal's point". It has a significant Wolsey undertone.
Some nine years ago, in a Green Paper, the Conservative government proposed that in future the Lord Chancellor should make the final decision on
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standards of education and on conditions for training advocates, and that he should prescribe the principles to be embodied in codes of conduct for advocates and be empowered to make decisions on rights of audience in the High Court and the Court of Appeal by means of subordinate legislation. The judges, who were carefully defined as the Lord Chief Justice, the Master of the Rolls, the President of the Family Division, the Vice-Chancellor, the Lord Justices of Appeal and Justices of the High Court, responded robustly. In their written response they said:
"If the proposals are adopted, he—
that is, the Lord Chancellor—
"will be the final arbiter in all these matters. He will have the power, which no Government Minister has hitherto had, and no Government has hitherto sought, to exercise ultimate control over the profession of advocacy in the Courts. We regard this as a grave breach of the doctrine of separation of powers even though it does not directly threaten the independence of the judges themselves. The obvious risk which gives rise to our concern is that some future Lord Chancellor could use these powers to control the conduct of advocates in such a way as to deter them from representing the interests of unpopular minorities or those who are seeking to challenge decisions of the government of the day".
I intervene to say, "Compare the position of Malaysia at the moment". The quotation continues:
"This may be unlikely to happen for many years to come but once the power is given the risk that it may be so used by some future government (which might contain a Minister of Justice), cannot be disregarded. The Government should recognise that it has gone too far in making these proposals and should accept that such powers as the Lord Chancellor may require should only be exercised by him with the concurrence of the Judiciary. In this way the necessary separation of the proper powers of the Judiciary and those of the Executive would be preserved".
The Government rightly gave way and the Courts and Legal Services Act 1990, and in particular Schedule 4, obliged the Lord Chancellor to obtain the concurrence of all four of the designated judges to any alteration to rights of audience and to standards of education and conditions of training for advocates.
Prior to the issue of the White Paper, The Way Ahead, the Lord Chancellor introduced legislation designed to enable him to have as the Permanent Secretary in his department some other civil servant than had been prescribed by the Supreme Court (Officers) Act; namely, a member of his department who was a lawyer or who had been there for at least five years. In the debate on the Supreme Court Offices Bill, the Lord Chancellor said:
"The Lord Chancellor is at a critical cusp in the separation of powers between Parliament, government and the judiciary".
I leave out one sentence.
"Under the previous government the public were disturbed that the separation of powers was not alive and well because the judiciary and the executive appeared to be at war. It is for the Lord Chancellor to ensure that the public can have continuous confidence that our system, based on the separation of powers, is working".—[Official Report, 25/11/97; col. 934.]
That makes it even more surprising that when the Lord Chancellor issued his White Paper, The Way Ahead, there was no reference at all to that doctrine or to the fact that the Lord Chancellor was intent on breaching it. It provided a very short consultation

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process and, I expect to the surprise of the Lord Chancellor who was expecting an easier ride, the judges provided written memoranda on this very subject.
As the leaders of the judges, both in the High Court and in the Court of Appeal—namely, the Lord Chief Justice and the Master of the Rolls—have sought to dissociate themselves from that advice, perhaps I may be permitted to refer to what the judges said because I think that they have been treated in a very cavalier fashion. The lengthy paper which accompanies the issue of the Bill does not refer to the judges' responses. They are ignored and it appears that their proposals are not worth seeking to deal with in any way.
However, perhaps I may draw them to your Lordships' attention. The High Court judges said in terms:
"The predominant view is to reiterate the opinion expressed in the Judges' Response to the 1989 Green Papers".
They then set out what I have read to your Lordships, and continued:
"Whether properly viewed as a constitutional issue or not, the High Court Bench strongly support the suggestion of the Court of Appeal in this regard, to the effect that it is insufficient for the Lord Chancellor only to consult the Judges. It is recognised that a veto is unacceptable: a system for identifying majority approval must be established".
In its written response, the Court of Appeal said, inter alia:
"We accept that the traditional role of the Judges as being the sole arbiters of those who should be entitled to appear before them is no longer practical or desirable. We also accept that the need for the unanimous agreement of the designated Judges may repose too much power in the hands of any one designated Judge. But what we do not find acceptable is that the designated Judges should be relegated to a purely consultative role. The separation of powers is still an important constitutional process: and the position of the Lord Chancellor as head of the judiciary and a government Minister is anomalous. While the Lord Chancellors are, and should be zealous to maintain the independence of the Judiciary, like all spending Ministers they are subject to Treasury constraints. There is an inevitable conflict between the desire and need, which we recognise, to contain the costs of justice and the equally important need to maintain standards …
It is quite untrue that Judges are concerned to preserve the monopoly of the Bar in the Higher Courts because they themselves came from the Bar. It is our view that it is insufficient for the Lord Chancellor only to consult the designated judges. He ought not to change the rules without the concurrence of the majority of them".
There was also a response from the Council of the Inns of Court, which stated,
"We understand why it may be considered wrong that a single designated Judge, however eminent, should have the power to veto changes to the grant or exercise rights of audience approved by the Lord Chancellor and the other three designated Judges. But we do not understand why it should be necessary to go to the opposite extreme and relegate the Judges to the role of consultees only. We agree with the views expressed by Mr. Sydney Kentridge QC in the memorandum dated July 29, 1998 annexed hereto.
As Sydney Kentridge QC points out, the powers the Lord Chancellor proposes to take would be exercised by him not as head of the judiciary, but in his ministerial and executive capacity. Such powers would increase the power of the Executive over the judicial process and would erode the independence of both the Bench and Bar. We also agree with the view expressed by the High Court Judges in paragraph 9 of their response to the consultation paper".
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If that was not good enough, there was a wide-ranging speech made by my noble and learned friend Lord Steyn, a Lord of Appeal in Ordinary, who virtually started his speech with this cautionary observation:
"When the Government has a massive majority in the House of Commons the Executive becomes all powerful and Parliamentary scrutiny of the acts and intentions of the Executive is not always as careful as it ought to be. That is when the constitutional principle of the separation of powers becomes more important. In its judicial capacity the House of Lords has emphasised that the British Constitution is firmly based on the separation of powers".
I shall not weary your Lordships with further excerpts, but there is a paper in the Library, of which I was the author, published in the New Law Journal of 19th October, which has the great merit of not setting out my views, but the views of the judges to whom I have made reference.
On the second day of the debate on the Address the noble Lord, Lord Kingsland, raised the issue of the separation of powers and back came this very odd observation by the noble and learned Lord the Lord Chancellor. He said,
"So far as rights of audience go, I can reassure the noble Lord, Lord Kingsland, that there will be no violation of the separation of powers because, in the unlikely event that I, as Lord Chancellor, having consulted with the judges and with the professions, have to exercise a fallback power to impose rules upon the profession … I would not do so without the support of an affirmative resolution of both Houses of Parliament".—[Official Report, 25/11/98; col. 127.]
That shows a remarkable misunderstanding of the entire doctrine. It presupposes that the Lord Chancellor has removed from the judges their existing powers and. having done so, he then makes a decision which they do not like. In order to get further authority for his Executive act, he goes to Parliament for an affirmative resolution. As it has been pointed out, we all know that affirmative resolutions are never scuppered except in one case which related to sanctions during the Rhodesian affair. As my noble and learned friend the former Lord Chancellor, Lord Mackay of Clashfern, may recall, I sought to attack his order relative to conditional fees and I very nearly won. I lost by five votes. I would have won if the convention had not been adhered to of the Front Bench spokesmen urging on their troops, but resiling from voting themselves. If they had voted I would have won by ten votes. So the attempt which my noble and learned friend the Lord Chancellor sought to make to quieten the anxieties of the noble Lord, Lord Kingsland, seems to me to be far off the mark.
As it now stands, the position under this Bill is that the Lord Chancellor can decide who can appear in court; who can conduct litigation; what rules of conduct lawyers can have; what qualification regulations lawyers can have; whether lawyers can change their rules and whether they can change their qualification regulations.
We all know that the noble and learned Lord the Lord Chancellor enjoys the exercise of power. He has told us that he is chairman of no less than five committees of the Cabinet. My noble and learned friend, the former Lord Chancellor, was the chairman of none during his final year. But the Lord Chancellor must be prepared not only to exercise powers but to share them.

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Unless and until he does so he has seriously breached a very important constitutional issue designed to protect the man in the street from excessive Executive power.
8.25 p.m.
Lord Meston: My Lords, I apologise for any discourtesy in not being present during the earlier part of this debate. I was exercising a right of audience elsewhere. I should also declare an interest as a barrister who does, and who hopes to be allowed to continue to do, legal aid work. I welcome the acknowledgement, despite its guarded understatement, in paragraph 1.4 of the White Paper where it says that most lawyers are decent and hard-working people of integrity and commitment and who do not all become rich.
If I was left with any emotion during the long debates leading to the passing of the Courts and Legal Services Bill, it was of some pride at being an advocate adhering to the cab rank principle and willing to do legal aid work. In passing, I welcome the commitment in paragraphs 1.14 and 1.15 of the White Paper to law reform, including continuing statutory consolidation and pruning, because surely access to justice requires accessible law.
But this Bill is concerned with wider questions to which I suggest two basic propositions. The first is that the right to conduct litigation and to appear in court involves the provision of a public service; and, secondly, that the public, both the users of legal services and the taxpayers who fund their provision, are entitled to effective quality control. In that respect I would like to say how much I agree with everything said by the noble Baroness, Lady Kennedy of The Shaws.
So the questions to be confronted in considering this Bill are these: what degree and standard of quality control should there be, and where should it come from? Clearly, the professional bodies should have primary responsibility for these matters. I do not believe that they will fail to meet that responsibility. Perhaps I may add one further observation. Lawyers are now much better trained than I was when I qualified. The growth of accreditation schemes initiated by specialist legal associations will maintain and raise standards, without the need for Executive interference.
Much reference has been made to Clause 35 and Schedule 5 to the Bill, which give the Lord Chancellor the power to make and break the rules of the professional bodies. The purpose, which is clearly stated in the White Paper, is to ensure that professional bodies cannot frustrate the Government's objectives. No doubt the Government would say that these powers are to be regarded as a last resort, and so they must be. But I would seriously question whether in reality their exercise will ever be necessary. Certainly as regards the Bar, I do not foresee any attempt to exploit a monopolistic position, and yet I would expect the professional bodies to reserve the right to argue for the maintenance of standards, which is the proper concern of those who work daily in the courts.
In the White Paper there are repeated references to parliamentary approval being required of the changes, if any, to the rules of the professions. I do not find that
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requirement set out in the Bill itself. I ask whether I am correct in assuming that the affirmative resolution requirement derives not from the Bill but from the Courts and Legal Services Act 1990, which this Bill will amend, even though, as the noble and learned Lord, Lord Ackner, indicated, the affirmative resolution procedure may be an inadequate safeguard.
I turn briefly to Clause 36 of the Bill, which states the overriding duty of advocates to the court and also the duty to comply with professional rules of conduct. That emphasises what most of us take for granted. The Explanatory Notes to the Bill state that the purpose is to protect the independence of all advocates and litigators. In reality, it is designed to make clear to employed advocates that these basic duties prevail over any duty to those who pay them. I question what sanctions exist for the breach of those duties.
Presumably one of the sanctions must be punishment for contempt of court. If that is correct, should it not be on the face of the Bill? More importantly, will the powers of the court to deal with breaches of these fundamental duties extend beyond the employed lawyer who has acted through misplaced loyalty to, or under pressure from, his or her employer? Will it extend to the employer himself who exerts that pressure and who may not himself be a lawyer or otherwise answerable as an officer of the court?
I turn briefly to the question of appeals. The rules concerning appeals at various levels have become increasingly complicated and impenetrable. The rules in the Court of Appeal, supplemented by practice direction after practice direction, occupy a disproportionate part of the White Book. I hope that the Master of the Rolls will not mind my saying so.
However, I only wish to raise a concern about Clause 39 and the restrictions on second appeals. I can see that the expression in the Bill "some other special reason" will become one of those phrases which take on a life of their own, generating a considerable body of case law. More importantly, while there is clearly an argument for restricting a second appeal when the first appeal substantially upheld the first instance decision, it is less obvious that there should be such restrictions when the first appeal overturned the original decision. The originally successful party should not be deprived of the benefit of that success by a flawed first level appeal, coupled with an inability to meet the requirements presently stated in the Bill. I suggest that there should be a lower threshold, at least when the first two decisions are not pointing in the same direction.
Finally, I believe that we shall need to look critically at the introduction of conditional fees in family cases. I welcome the recognition that work concerning children is manifestly unsuitable to conditional fee agreements. It is a platitude that there are no winners or losers in such cases, except perhaps the children themselves. But in matrimonial financial and property cases the law is not providing compensatory damages; it is redistributing finite family resources which are often barely enough to support the family when it is together, let alone when it breaks up.

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The statutory scheme under the Matrimonial Causes Act 1973 requires first regard to be given to the interests of the children. Moreover, the law requires a sometimes complex discretionary exercise dealing with actual and prospective assets—the past, the present and the future—dealing with prospective interests; dealing with domestic and business assets of varying degrees of liquidity and illiquidity; and nowadays dealing with pensions. It is not just concerned with assets but also with responsibility for the liabilities left when a marriage has broken down.
The latter requires a great deal of skill and care in unravelling fairly the joint financial lives of parties who have very often been together for a long time. It is, therefore, not obvious in such cases who wins and who loses. Moreover, practitioners are encouraged not to think in terms of winning and losing. Similarly, they are not encouraged to allow their clients to think in those terms; but rather there is very properly nowadays an emphasis on mediation and conciliation, not only encouraged by the legal associations to which most of us belong but also by the court system itself. In particular I doubt very much that insurance, which underpins conditional fee agreements in ordinary civil litigation, would be available to meet the costs of the successful party if the client who is subject to such an agreement loses the case in whatever terms that may be described.
I can also see the difficulties which presently exist with the legal aid statutory charge on former matrimonial assets—which can last for many years—being replaced by charges in favour of the legal profession. It is very difficult to envisage how this will work in practice and even more difficult to see how it will be a benefit to clients.
8.35 p.m.
Lord Hacking: My Lords, if I may say so—and no one else has said this so far in the debate—my noble and learned friend the Lord Chancellor is looking absolutely splendid without his breeches. He has every right to be pleased at the good reception that the Bill has received from all quarters of the House. This is a good Bill. For a long time there has been a denial of access to justice for an increasing number of our population not poor enough to be able to obtain legal aid and not rich enough to avoid the cost and risk of litigation. Therefore, my noble and learned friend is absolutely right to overhaul the entire system for civil and criminal cases and; in doing so, to set up a new legal services commission coupled to a new community legal service. That will mean that the right resource can be delivered in the right quarter at the right value.
I believe that the innovation of legal aid was very important. It is something of which my party still has every right to be proud. It was introduced in 1949 and it worked well for many years. This, in one particular regard, is relevant to Clause 5(1)(a), under which the new community legal service is under a duty to provide,
"general information about the law and legal system and the availability of legal services",
and must do so in a clear and lucid way.
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I should tell my noble and learned friend that only last Friday at the Queen Elizabeth II Conference Centre the Legal Aid Board received a prize at the "Plain English" awards ceremony. Indeed, it received a gold award for the clarity of the explanation of the function of legal aid in its leaflets. I do not want to move my noble and learned friend too quickly on to the subject of his right honourable friend the Home Secretary but, at the same gathering, the Home Secretary received a gold award for gobbledegook. However, he received it most humbly and said that it would be an encouragement for him and his officers to follow—he did not say emulate—the example of the Lord Chancellor's Officers. It would serve as an encouragement for the Home Office to do better in the future.
I can well remember sitting on legal aid committees in the 1960s. I particularly remember sitting on the legal aid committee in Nottingham. By and large—and this is some 35 years ago—the legal aid system worked well. However, times have changed. Therefore, my noble and learned friend is quite right not only to act but to do so decisively and radically in order to deal with the serious problem of denial of access to justice. Therefore, I congratulate him not only on the Bill but also on the White Paper, although we were not given as much time to study it as I am sure he would have liked us to have. Moreover, I should congratulate him on the 60 or so pages of printed Explanatory Notes which accompany the Bill. Indeed, this is my first recollection, after many years in this House, of a department having gone to such care to prepare information about a Bill. We should all be most grateful to my noble and learned friend in that respect.
My noble and learned friend is also quite right to make provision of state funds for civil and criminal cases more flexible and cost-effective, as well as pressing forward—I say this in the presence of the noble and learned Lord, Lord Ackner—with the conditional fee arrangements. I have never considered that the legal profession could not be trusted with conditional fees, any more than I consider now, in the proposal contained in the Bill, that the employed lawyer cannot be trusted to carry his proper responsibilities to the court.
I am also very pleased with the new provisions on the rights of audience and the right to conduct litigation, which are to be found in Clauses 30 to 36 of the Bill. They repeal the earlier rights of audience provisions of Sections 31 to 33 of the Courts and Legal Services Act 1990. Now there is to be an even playing field between barristers and solicitors—both have the rights of audience and the right to conduct litigation. It was particularly pleasing to read the memorandum supplied by the Bar Council and to learn that it supports this proposal in principle. As the noble and learned Lord, Lord Mackay of Clashfern, will remember, this was a very contentious matter in many debates during the passage of the Courts and Legal Services Bill.
I am quite happy with the provisions of Schedule 5, under which the noble and learned Lord the Lord Chancellor has a duty to consult the appropriate body and then has a duty to put his proposals forward on the affirmative procedure. I noted that the noble and learned

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Lord the Master of the Rolls also supported the provisions in Schedule 5. I was sorry to learn from the noble and learned Lord, Lord Lane, that other judges take a different view. But we have heard the very clearly expressed views of the noble and learned Lord the Lord Chief Justice and the noble and learned Lord the Master of the Rolls, and I am wholly satisfied with their views.
I remember very well the circumstances of the Advisory Committee on Legal Education and Conduct set up by the noble and learned Lord, Lord Mackay Clashfern. He did his very best to control its size but, as it went through the Houses of Parliament, it grew like Topsy and became much larger than the noble and learned Lord originally would wished. Now it has become a stalemate and something has to be done. The best example of how much of a stalemate it has become lies in the words of the noble and learned Lord in opening this debate, when he drew our attention to the six-year delay over the consideration of employed solicitors' rights of audience.
I have two caveats. The first is the application of Clause 18 of the Bill, which denies the provision of legal aid (if I may so refer to it; I know the legal aid system is going and I use it as a colloquial term) for services relating to any law other than that of England and Wales, except when it appears to the Lord Chancellor that a foreign law is being imposed by a treaty obligation.
I had a close connection with the passage of the Civil Aviation (Amendment) Act 1996. I hope your Lordships will not think that I am boasting, but that Act, before it came to the statute book, was born of a joint opinion which I wrote with Mr. Robert Webb, QC. I have drawn to the attention of my noble friend, who will be winding up, that in that Act, in order to establish a defence to committing a criminal act on a foreign aircraft arriving in the United Kingdom, the defendant is entitled to take the point that while the act he performed in that aircraft might have been an offence under English law, it was not an offence under the law of the country in which the aircraft was registered. Indeed, he has a duty under the Act to serve a notice stating the facts upon which he believes this requirement has not been met, and show the grounds for that opinion. I would be grateful if my noble and learned friend would look at that. Perhaps we could deal with that with a suitable amendment during the Committee stage.
The second matter is perhaps more substantial. Under the provisions of Clause 7(5) and Schedule 2 all legal aid is being withdrawn from all personal injury cases, that is to say cases arising out of motor car accidents. I believe that is a mistake. We should not go that far at this stage. The personal injuries system has worked quite well. I am told that there has been £520 million in compensation for 76,670 legal aid victims. The net cost to the public is £34 million. I refer to the year 1996–97. There have also been £90 million in benefits repaid to the DSS by insurers arising out of payments that the DSS has had to pay out. There have also been savings for the National Health Service.
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The poor litigant who would be entitled to legal aid has, under the conditional fee system, to pay an insurance premium and then pay out disbursements. It is quite possible that the very poor would not be able to launch a conditional fee arrangement because their resources would not be enough to pay even that limited amount of money.
Having made those two observations, I very much believe that the noble and learned Lord the Lord Chancellor is carrying forward the work of his predecessor. I supported his predecessor throughout the passage of the Court and Legal Services Bill and I wish to support my noble and learned friend throughout the passage of this Bill. It is a most welcome Bill. I say again, it is a good Bill.
8.48 p.m.
Lord Thomas of Gresford: My Lords, certain important principles have been stated by the noble and learned Lord the Lord Chancellor. We welcome—perhaps not with the enthusiasm of what one might call the metaphorical red scarf and rattle of the noble Lord, Lord Hacking, a few moments ago—that government resources should be targeted efficiently to areas of greatest need; that more people should have access to justice; that areas covered by pro bono work or by law advice centres should be properly funded.
We agree that the provision of legal support in such areas as refugees, asylum-seekers and the disempowered, to which the noble and learned Lord the Lord Chancellor referred, is haphazard. We welcome in particular the commitment of the Lord Chancellor to maintain the same level of resources as at present for the provision of legal services, even if the organisation and targeting in those resources is to be changed. For that reason, we welcome reform of the legal aid system and the introduction of a legal services commission with a broader and more flexible remit.
The interests of the consumer of legal services must be paramount, but it is very much in the interests of the consumer that there should remain a strong, skilled body of lawyers whose professional expertise, exercised on behalf of the consumer, is adequately rewarded. As the noble and learned Lord said, while it is true that the state cannot match the private rates of lawyers, the gap between those who are remunerated privately, by commercial concerns and insurance companies who, as the noble Baroness, Lady Kennedy, said, in themselves derive their funds from citizens as ordinary consumers or premium payers, must not be so large as to divert talent away from serving the generality of the public.
In the clash with authority in judicial review applications—whether with local or national government, with various courts, or with insurance companies on behalf of clients injured in personal injury cases, it cannot be right that the consumer, the ordinary citizen, should be served by second-rank lawyers. There has to be equality of arms. But the way of the world is such that those attracted into the bureaucracies may well be adventurous, idealistic youngsters, as the noble Lord, Lord Windlesham suggested; but, unhappily, adventurous, idealistic youngsters fail to become tenants in chambers or partners in solicitors' firms.

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We are here not to support or maintain any existing structure of the legal profession if it is failing the public. That is the question: is it failing the public in any sense other than that it is expensive? Is the quality of justice today not being served by the lawyers who are practising?
It is worthwhile spending a moment considering the qualities of the profession as it exists. I of course declare an interest, having practised for five years as a solicitor and for about 20 or 30 years at the Bar. Quality at the Bar has been and is assured by high standards of entry and by intense competition for pupillage, for tenancies and then for work. The ultimate test of success as a lawyer is, "Can you persuade the tribunal before which you are appearing? Have you the trust of that tribunal?". Another assurance of quality is that instructions are received not from lay people who cannot choose between individuals but from professionals who can pick and choose those who are most likely to persuade in the particular kind of case, or who have recognised and earned expertise for the purpose of specialist advice. The cab rank principle, to which my noble friend Lord Meston referred a moment ago, is an important principle in ensuring fairness and the distribution of quality between cases and between members of the Bar.
All this is supported by a strict and pervasive disciplinary code, a code that derives from the pressure of colleagues, from the need to preserve a reputation for one's self and for one's chambers, from the views of one's seniors, particularly the head of chambers, and of course from the disciplines exerted by the judges, the Bar Council and, in the very last resort, by the noble and learned Lord the Lord Chancellor's secret files, to which none of us has access. There is a tradition of independence in which the duty of the advocate to a wider concept of justice comes first, then duty to the court and then duty to the client, whether it is a prosecuting authority or a lay client.
I do not believe that this existing quality of representation can be assured by the mission statement in Clause 36 of the Bill. Nor do I believe that a bureaucracy, such as is provided by the Crown Prosecution Service or the proposed defence service, can ensure it. In answer to the noble Lord, Lord Windlesham, who I see is now in his place, the Crown Prosecution Service has had a series of strong directors backed by a talented group of lawyers, but many believe that the size of the organisation and the extent of the bureaucracy have militated against efficiency. Furthermore, its decisions and the decisions of the Serious Fraud Office have not been without controversy. It is rather strange that an extension to the role of the CPS is proposed at a time when urgent reforms have been brought to that service—to regionalise it, to provide the equivalent of district attorneys, and so on.
When one looks at the existing organisation of the legal profession, one has a country-wide service. Around 11,000 legal aid outlets are provided by solicitors with access to the highest expertise. That is the service which the Bar provides. A solicitor can go to the most qualified barrister in the particular area. That may arise perhaps only once in his career. The structure
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is something like a pyramid. In advocacy terms, the base is the solicitors who do the preparation; the advocate, the sole practitioner, leads in court; in a heavy cast, junior counsel provides in valuable research, support and advice; and the lead advocate concentrates upon presentation and argument.
That structure has not grown up by chance. When we hear talk of restrictive practices, the suggestion is that the legal profession is a crusty out-of-date organisation. The fact is that it has arrived at an efficient and economic way of presenting litigation. It does not pay an ordinary solicitor, whose hourly rate is much greater than that of the vast majority of counsel, to hang about in court waiting for cases to come on. On the other hand, as counsel are not supporting a large bill for staff costs, their charges are lower and they can move quickly from case to case and gain in expertise.
I have never opposed the removal of restrictions on solicitors' rights of audience. Those solicitors who can compete at the highest level should compete. But the economics of the whole profession do not make it possible for them to do so. It is not worth their while. It is far better to have a young advocate to do that kind of work than for the solicitor to attend court himself.
In the course of the debate today three issues have given rise to the greatest controversy. Perhaps I may refer to them briefly. The first is block contracting. My noble friend Lord Phillips of Sudbury asked a question to which I should welcome an answer. Is it proposed that the block contract will be an exclusive contract; that is to say, a contract for a geographical area for a fixed period of years? Does it envisage a block of cases at a fixed price, inclusive of advocates' fees? If that is the case, there is the geographical problem of having one firm of solicitors in, for example, the area in north Wales where I have practised as a solicitor. If there is only one designated firm and legal aid is needed on both sides, to which firm does the other party to the dispute go? The system provides no room for the unexpected, a point made by the noble Baroness, Lady Kennedy. It shifts the advantage to the insurer or to the large defendant who can ambush with procedural applications and delays and exhaust the budget that has been given to any particular case within that block contract. It will also see the end of mixed practices—a point to which my noble friend referred—the kind of practices where perhaps only 10 or 15 per cent. of the work is legally aided. Clearly, that kind of expertise will no longer be available if exclusive block contracts come in. We shall be examining that issue with considerable care.
The second issue is rights of audience for the CPS in all the courts. Successive Directors of Public Prosecutions have called for the extension of the right of audience in the higher courts to their staff. The motivation has always appeared to be, to me at least, improvement in the standard of recruitment, retention and morale. That ought not to be a major factor influencing policy. Those who accept employment with the CPS do so for the security of a salary, pension and employment rights. Their promotion depends on performance. As the noble Lord, Lord Hutchinson, said, there is no yardstick of performance in prosecution work

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save for the number of convictions that are obtained. There is no open competition. Those are the forces which at the independent Bar ensure quality.
I have seen in Hong Kong how the system adopted by the Attorney-General's chambers can breed difficult prosecutors who will over-charge—that is to say, put in a higher charge in the hope of a lower plea. The case of Hui Chi Ming is an example of that. It is noteworthy that in a forthright letter which he wrote to The Times some time ago, Mr. Michael Thomas QC, who was Attorney-General of Hong Kong and head of the prosecution service, firmly opposed the concept of having a similar service in the United Kingdom. If the proposals of Lord Justice Glidewell produce a two-tier Crown Prosecution Service, which consists of a pool of trial advocates who are serviced by a base of instructing lawyers and support staff, what is being gained? If, on the other hand, it is not organised in that way, and each lawyer carries a caseload which consists both of preparation and advocacy, how often will that individual lawyer appear to conduct a serious case at Crown Court level, much less appeals to the higher courts?
The noble and learned Lord, Lord Woolf, referred to his experience in the Army Legal Service. I have perhaps a little more recent experience of courts martial in the Army Legal Service. I have noted a disadvantage as regards those able and competent lieutenant-colonels and colonels in the Army Legal Service—about whom I cast no aspersions—in that they may perhaps deal with one murder case in a year or in two years. In other words, they do not have the day in, day out, high responsibility of heavy cases. Problems have arisen from that situation.
The third area of controversy is that of the criminal public defender system. With my colleagues on this Bench, I believe that it is a matter of principle that the state should not control the defence of individuals who are themselves charged with criminal offences by the state. But even if one were to have such a system, it would have all the problems that I have mentioned in relation to the Crown Prosecution Service; namely, bureaucracy, no competition and no independence. I accept entirely what my noble friend Lord Goodhart said; namely, that experience in the United States shows that these public defender systems are notorious for incompetence.
Public confidence in the criminal justice system is essential. It impinges upon more people than any other area of the law and its consequences for them and for their families are, by and large, more dire. Victims will not report crime; witnesses will not come forward; and juries will not convict if confidence in the criminal justice system is diminished. Nothing is perfect. There have been miscarriages of justice under our present system. However, I believe that the unlimited extension of rights of audience to the CPS and the creation of a state Crown defender service will destroy independence and impose a bureaucracy which, in my view, will be to the detriment of justice.
I refer to the cardinal principle—as the noble and learned Lord, Lord Ackner, has termed it—which appears to us to be a serious breach of constitutional
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principle. I can understand the impatience of the noble and learned Lord the Lord Chancellor to move forward on the issue of rights of audience. I have shared that impatience. I have spoken on the topic and the noble and learned Lord the Lord Chancellor will remember that he supported me when I moved an amendment to extend the rights of audience of solicitors in the higher courts in some of the earlier legislation in the previous term. Although he may be impatient to move forward on the rights of audience, why does he require for that purpose sole power to alter the qualification regulations and the rules of conduct of the Bar and of the Law Society?
It has been said that the affirmative resolution procedure is of little value as a safeguard in your Lordships' House. I agree with that. I heard what the noble Lord, Lord Hacking, said in full support of Schedule 5 to this Bill. I wondered what on earth was wrong with the clauses upon which he expressed his reservations. It seems to me that this matter must be carefully considered by the whole of your Lordships' House. We on these Benches welcome some of the principles which are contained in the Bill.
9.4 p.m.
Lord Kingsland: My Lords, we have now debated this Bill for nearly six hours and I think the kindest thing I can do for your Lordships is to speak briefly. I have just four points to make.
The first concerns the nature of the Bill. The Bill is a skeleton Bill. It contains no fewer than 17 new powers for the Lord Chancellor to exercise either in the form of statutory instruments or in the form of directions. It will be extremely difficult to scrutinise this Bill properly in Committee unless the noble and learned Lord can give us some indication of the content of those instruments and directions. I hope therefore that between now and then he can be as helpful as possible in this regard. If I mention Clause 9 and the approval he has to give to the funding code, I refer to only one of the most important ones.
It is not exclusively the fault of the present Government that far too many of the Bills of the past decade have been of the same nature. I would not like to suggest for the moment that one of the reasons the Bill is in this form is that the noble and learned Lord has not yet made up his mind about what he wants to put into it. I shall assume that it is all in his head and the homework will be easy to complete by the middle of January when the Committee stage starts.
The second point that I want to make relates to the interventions made by the noble and learned Lords, Lord Ackner, Lord Lane and Lord Mayhew, and, I think, by a number of other noble Lords, too, on the separation of powers. The separation of powers is both the most important and the least visible part of our constitution. Its principle is simple. The legislature and the Executive do not interfere in the conduct of the courts, and the judiciary does not interfere in the conduct of the legislature. For about 200 years this principle guaranteed freedom in this country before we had democratic elections. Nowadays, when in another

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place it is no longer possible to control the executive by the democratic process, the only way in which executive decisions by Ministers are controlled is through the courts, through the judges, and through the submissions made to those judges by the Bar.
The courts, the judiciary, the Bar, and the solicitors who instruct the Bar, are therefore at the very centre of the individual liberties of the citizen of this country. It is no wonder, therefore, that many noble and learned Lords are concerned about the treatment of the separation of powers in the Bill.
It is my submission that if the Lord Chancellor insists on approaching the matter in the way that he explained to me in the debate on the gracious Speech, he will be in breach of our constitution. He may continue to disagree with me, but I hope that he will reflect carefully on the matter over Christmas and the New Year.
The third point I wish to make concerns the definition of "competition" in regard to legal services. Here I was struck by a number of excellent speeches from noble and learned and noble Lords. For example, the noble Lord, Lord Phillips, pointed out that as a result of the Bill there is likely to be a substantial reduction in the number of solicitors who would be the beneficiaries of block contracting. The noble Lord, Lord Thomas, underlined the point.
In the excellent briefing I received from the Law Society, I understood that the figure was to drop from 11,000 to 6,000; but the noble Lord, Lord Phillips, suggested that the fall would be even more alarming. I am aware that the noble and learned Lord intends to use other ways of providing legal services to those citizens in need of them. It may be that the difference between 3,000 and 11,000 will be made up by other providers of legal services. We need to know the answers to those questions.
We also need to know what happens when a provider of legal services runs out of money but still has clients who fulfill the funding criteria. I do not know whether the noble and learned Lord, Lord Falconer, will be in a position to respond immediately; but at Committee stage we shall have an opportunity of dealing with the matter in more detail.
The next point about the provision of services was brilliantly made by the noble Baroness, Lady Kennedy. It is the importance of defining the quality of the provision of those services in the block contracts. It must be right that in the Bill, whether in a main clause or an annex, or even in a direction made under it, there is a clear definition of what is expected of those who benefit from public money in providing the services to the public. That is the crucial issue which was extremely well explained. I shall not attempt to embellish it.
A further point I wish to make in respect of the provision of services is about the profession itself. The noble and learned Lord the Lord Chancellor frequently draws parallels between the legal profession and the medical profession in order to explain how much more money members of the legal profession receive than the medical profession. That may or may not be true; but what is true about the medical profession is that it is divided between generalists and specialists, general
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practitioners and consultants. To become a consultant, one has to study and serve apprenticeships of between 10 and 15 years after one qualifies as a doctor. How does the noble and learned Lord see the future of the legal profession in the light of his decision to give rights of audience not only to solicitors but also to employed lawyers? Does he still see the legal profession as a profession divided into generalists and specialists along the lines of the medical profession? Alternatively, does he have some other vision?
In my submission, it would be a great mistake to allow the profession to develop in a different direction from the way it has developed so far. I can quite understand the merits of solicitors being able to compete equally with barristers in order to become specialists; but I can see no value in allowing the high standards the profession has had throughout the centuries to fall or, to use the contemporary expression which I do not much like but which is effective, to be dumbed down. I would not like to see cheapening of the standards as a result of the changes. I am sure that the Bill can be amended in such a way as to ensure that that does not happen.
I am not an enthusiast about CFAs. My main reason is that it turns lawyers into speculators. It also tests the ethics of the members of the profession to the limit. If their livelihood depends on the outcome of a case, there will be a terrible temptation to all of them—to which I hope none will give in—not to disclose documents which would have a crucial bearing on the outcome of the litigation.
I am also unhappy about the extent to which the noble and learned Lord has been able to research the availability of insurance at the right price. Nor do I think we are yet sufficiently well informed about the degree of risk aversion of those solicitors who will be responsible for doing CFA work. I am extremely pleased, therefore, to see that the noble and learned Lord has caught a whiff of those concerns and allowed for them in Clause 7(7) of the Bill. I shall be most interested to hear at Committee stage how he views the relationship between that clause and the main provision in Schedule 2.
Finally, there seems to be a movement towards the nationalisation of the legal profession. It is quite clear that the noble and learned Lord is enthusiastic both about the availability of state employed defence advocates and state employed advocates for the prosecution. I am bewildered by that for two reasons: the first is ethical, and the second is practical.
The ethical reason was made outstandingly well by the noble Lord, Lord Hutchinson of Lullington. I shall make no attempt to improve on that. It is clear that state prosecuting organisations have particular policies about prosecution; and those must conflict with the duty of an independent advocate to represent the case for the Crown in a court. I find it hard to understand how that cannot be so. In any case, as we all know from the Glidewell Report, the prosecution service has many other worries of an administrative nature which might make it extremely difficult to add the task of advocacy to its role.

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It may well be that, so far as concerns the defence service, state defenders are simply employed to fill up gaps in the system left by the operation of independently employed private barristers and solicitors. The Bill is not clear on that and I would welcome clarification from the noble and learned Lord, Lord Falconer.
The system that we have at present has lasted for 50 years. On the whole I agree with the noble Lord, Lord Thomas of Gresford, when he says that it has served us extremely well. It may not be as cost-effective as the system which will replace it—if we get the system right. But we should not decry the enormous achievement of what was one of the central planks of the welfare state. I should be loth to see its departure unless I were satisfied that what was going to replace it was much better.
9.16 p.m.
The Minister of State, Cabinet Office (Lord Falconer of Thoroton): My Lords, we have had an extremely good debate. Not only have many distinguished lawyers and judges taken part but also a significant number of noble Lords who are not lawyers or judges. Every single one of those noble Lords from both sides of the House who is not a lawyer or a judge has greeted the proposals of the Lord Chancellor with enthusiasm.
It is worth pointing out why we have introduced the Bill. The position at present—I do not think that anyone seriously denies it—is that many people are put off obtaining help for legal problems because they think, in many cases rightly, that the legal system is slow, expensive, difficult to understand and unresponsive to their problems. Only the very poor now qualify for legal aid. Many of the very poor who qualify for legal aid do not know that they have a legal problem and have no realistic means of discovering whether they have a legal problem.
By the Bill we seek to create a new legal aid system and a new community legal service which will try to ensure that the needs of individuals are properly assessed and that public funds are spent in providing the help that people need in a cost-effective way.
We think that many people do not need to go to court to solve their problem. What many people need is help in dealing with an organisation or a body that is causing them a problem—a benefit agency, a housing association or a local authority. That is why we are committed to developing a community legal service which will improve access to information, assistance and advice services. Those who get into a confrontational situation may be better helped by mediation rather than by going to court. Those who need to go to court will be helped, we think, by the progressive introduction of conditional fees which will provide new ways of funding litigation and of opening up civil justice to those who are currently denied it.
We hope—very much thanks to the noble and learned Lord, Lord Woolf—that the modernisation of the civil justice system will mean that court procedure will be quicker, simpler and less expensive. We also believe
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that the taxpayer has been paying more and more for legal aid while fewer and fewer people have been helped by it. We believe that contracting for legal services will introduce competition to the market and help to ensure that public funds are spent in a controlled way on quality assured legal services. We hope that if the system works public funds will be targeted on cases of highest priority and that cases will not go to court if there is a better way of resolving the problem.
Throughout in preparing these changes we have been motivated by the needs of the users of legal services. We believe that to be the correct way to approach it. In the course of the debate no one sought to take issue with those principles. The few attacks on the Bill were related to points of detail or high principle. I shall not deal with every point that was made but with the main threads of the debate.
The first suggestion made with great force by a number of speakers, in particular the noble and learned Lords, Lord Mayhew of Twysden, Lord Lane and Lord Ackner, and to a lesser extent the noble Lords, Lord Kingsland and Lord Thomas of Gresford, that it was a constitutional insult for rights of audience to be determined by the Lord Chancellor and that it offended against the separation of powers in this country. I deal first with the constitutional argument and then the argument based on practicality and utility. The noble and learned Lords to whom I referred elided the independence of the judiciary with the question of who had the right to determine who could appear in court.
Historically, there is no justification for the assertion that it is the judiciary, and only the judiciary, that determines right of audience. I have a long list of Acts of Parliament that go back to 1836 in which Parliament has determined rights of audience. I shall not weary the House with all of them. Section 2 of the Trials of Felony Act 1836 allowed barristers and attorneys rights of audience in the magistrates' courts. In 1846 Parliament legislated to enable barristers to appear in the Court of Common Pleas, which had traditionally been reserved to sergeants of law. When the Crown Court was established in 1971 the Courts Act enabled the Lord Chancellor to direct that solicitors should be able to appear in any description of proceedings that he might specify. Rights of audience in the county court were dealt with in the County Courts Act 1984 and before that in the Acts of 1934 and 1959. These are not newfangled introductions by the Executive.
As early as 1574 the Privy Council issued instructions to the Inns of Court on various matters including rights of audience. The order giving that direction was signed not only by Sir Nicholas Bacon but also by Lord Burghley, the then Lord Treasurer and ancestor of the late lamented noble Viscount, Lord Cranborne. Historically, there is no constitutional bar on Parliament determining rights of audience.
What is the present position in relation to rights of audience? They are determined and governed by the Courts and Legal Services Act 1990 which designates the Bar Council as an authorised body to determine who may appear in court and permits the Lord Chancellor, with the designated judges, to determine changes in

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rules that determine who has the right of audience. Historically, there is absolutely no basis for what the noble and learned Lord, Lord Mayhew of Twysden, said set his hair on end. That is the historical and constitutional position. What about the practical position? In 1990 this Act was introduced. Between 1990 and 1998 every single application that was made to try to extend rights of audience led to a form of guerrilla warfare that ended up with a complete stalemate in relation to any extension.
Lord Mackay of Clashfern: My Lords, I believe that the noble and learned Lord is so carried away by his eloquence that he has somewhat exaggerated the position. The rights of audience for solicitors in private practice did not result in a stalemate. Although they did not come immediately there was no stalemate. We have been told that 700 people have rights of audience in that respect. I await anxiously to hear whether the standards to be applied to solicitors in the future will be greater or less than those standards.
Lord Falconer of Thoroton: My Lords, I am grateful to the noble and learned Lord for his intervention, and I stand corrected. He was right; I was being carried away rather by my eloquence. What I was meaning to refer to in relation to that was that there was an issue about employed lawyers and the extent to which they could appear in court. The position in relation to that was described at some length in an earlier Green Paper relating to rights of audience and the position was that the matter ping-ponged to and fro between the committee, ACLEC and the various professional bodies and the Lord Chancellor over a period of six years. In my respectful view it showed that the system did not work. It was an ineffective way of determining the extensions of rights of audience. That is a view that the Lord Chancellor took. It is not without significance that it is a view that the two designated judges who have spoken in this debate—namely, the noble and learned Lord, Lord Woolf, and the noble and learned Lord, Lord Bingham—have also taken.
As a matter of practicality I would respectfully suggest that the system is not working and needs to be changed. Why is it not working? Because there is in effect a stand-off—not an unpleasant stand-off but an inability to agree—between the Lord Chancellor on the one hand and the designated judges or ACLEC on the other. There therefore needs to be some form of change. The most sensible way to change it must be to give the Lord Chancellor the power to determine—
Lord Ackner: My Lords, I am grateful to the noble and learned Lord for giving way. There was no stand-off. What occurred in regard to employed lawyers was, first of all, a suggestion emanating in many ways from the then DPP that the use of audience by the CPS should be limited in quantity, and that went back to the Lord Chancellor and the designated judges, who pointed out that it was not the function of ACLEC to suggest amending the Act. It then came back to ACLEC for further consideration. There was a change in the constituent members of ACLEC, and that took some
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little time, but ultimately the Lord Chancellor and the designated judges settled on a compromise, which was that the members of the CPS should act rather like juniors in large cases and in due course they would get the experience and no doubt that would justify full rights of audience. That was not a stand-off; that was a compromise. It was a firm decision, and I imagine it has been used.
I should also point out perhaps that in the 18 months before that decision was made it lay in the—
Lord McIntosh of Haringey: My Lords, I think the noble and learned Lord is abusing the right of intervention.
Lord Ackner: My Lords, perhaps I may put it this way. Does the noble Lord and learned realise that in the 18 months before the final decision the papers remained in the office of the Lord Chancellor without anything being done, and I raised three Parliamentary Questions in the hope of getting a decision?
Lord Falconer of Thoroton: My Lords, I am grateful to the noble and learned Lord for describing the procedure over the period of time. I cannot comment on where the papers lay for 18 months, but, even if they did lie for 18 months in one place rather than another (which I do not know), that means that it took four-and-a-half years (ignoring the 18 months) to reach the compromise that he described, which in my respectful submission tends to make out the case that the system was not working as effectively as it might have done.
In my respectful submission, in order to make progress on this matter, we need to have a system which works effectively. The Lord Chief Justice said that in his view the most appropriate course was that there should not be formal power in one place but actual power in another. The most appropriate circumstance and the only real solution is ultimately to give the Lord Chancellor, after the professional societies have proposed changes in the rules, the limited power to alter it if he thinks those rules are too lax or too restrictive in relation to rights of audience.
There are two safeguards in relation to that. First, it must be approved by an affirmative resolution of both Houses of Parliament. Although the noble and learned Lord, Lord Ackner, may regard that as of no importance at all, it is plainly the way our parliamentary system works, for better or for worse.
Secondly, the Lord Chancellor can propose changes to the rules of professional societies only to meet the objectives of the Courts and Legal Services Act 1990. If it goes beyond that—for example, towards the South African fears or the autocratic fears which have been referred to in our debate—then there is the power of the judges judicially to review such an exercise of the power. Therefore, with the greatest respect, I believe the position to be not at all as it has been described by the noble and learned Lord in the course of the debate and that a sensible solution has been reached.

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The second point put with an equal degree of vigour and venom was in relation to employed advocates. The most eloquent exposition of that was by the noble and learned Lord, Lord Hutchinson of Lullington.
Lord Hutchinson of Lullington: My Lords, I am not "learned", unfortunately.
Lord Falconer of Thoroton: My Lords, I apologise to the noble Lord. He basically put the proposition, supported by a number of other noble Lords, that one cannot have an employed advocate who is independent because he would owe duties to an employer as well as to the court. With the greatest respect, I do not accept that that is the position. As was pointed out, 97 per cent. of criminal cases in this country take place in the magistrates' courts. In the main, the prosecution is undertaken by members of the Crown Prosecution Service. Those cases are not only driving cases. They include important cases which may affect people's reputation and may lead to them going to prison. There is no suggestion that members of the Crown Prosecution Service are not able to deliver the standards of propriety as well as the standard of independence which would be required from an advocate.
I do not believe that it could be suggested for one moment that Dame Barbara Mills or Mr. David Calvert-Smith, the last two Directors of Public Prosecution, lost their ability to be independent from the moment they came to be employed by the Crown Prosecution Service. Equally, I do not believe that the position of, for example, Treasury counsel at the Old Bailey, who are plainly independent and plainly act in the best traditions of the Bar in relation to independence, could be said to have lost their independence because their sole financing comes from one source.
Lord Hutchinson of Lullington: My Lords, that is completely wrong. Treasury counsel are entitled to take on defence work, if they wish to, and to do other work, if they wish to. Therefore, it is not their sole source of income.
Lord Falconer of Thoroton: My Lords, the noble Lord is right to say that they are entitled to be that, but as a matter of practice they rarely do more than one other case a year, apart from the cases which they present at the Old Bailey. Nobody would suggest for one moment that the fact that they receive all their instructions from one source in any way undermines their independence.
The Attorney-General is an employed member of the Government, as is the Solicitor-General. Nobody for one moment would suggest that thereby they lose their independence. I do not accept the proposition that employment undermines one's independence. History shows us that one can be independent and fulfil the best traditions of the Bar, even though one may be employed.
Lord Thomas of Gresford: My Lords, does the noble and learned Lord not agree that the Attorney-General and the Solicitor-General are at the
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top of the tree? The problem is not perceived to be with the people who have made it. The concern is in relation to those who are on the way up.
Lord Falconer of Thoroton: My Lords, I would not regard the CPS in the magistrates' court as at the top of the tree. I do not regard its independence to be in any way defective as a result of the fact that its members are employed. There are significant numbers of chambers in this country in which senior members of the Bar undertake only prosecution work. I do not regard them as in any way having their independence compromised by that. With respect, the fear is exaggerated. From my experience of the Crown Prosecution Service when I was Solicitor-General, I can say that its standards of propriety and independence were extremely high.
As regards public defenders, the Bill proposes that the criminal element of the legal services commission will be able to employ directly people who in certain circumstances would be able to act as defence advocates for people in court. It is not intended that that circumstance should apply to the great majority of cases. It will more likely be filling gaps and, for example, providing defence services in the magistrates' court. I do not believe for one moment that that would lead to a compromise of justice. Nor do I believe that it would lead to "more negotiated" justice. We know from experience that defence and prosecution counsel are often in the same chambers. No one for one moment regards that as an indication that justice is compromised. Again, I believe that fear to be exaggerated.
It was suggested that there was a danger in exclusive contracting. It was put most eloquently by the noble Lord, Lord Phillips of Sudbury, that exclusive contracting meant the new arrangement involved one firm of solicitors for each geographical area. Perhaps I may make it absolutely clear that that is not what was intended. Exclusive contracting means that the only people from whom one can obtain legally-aided services are those who have an "exclusive" contract. But it is not exclusive in the sense of being one for each area. It means that the base for legal aid practitioners will be exclusively those who have a contract. We should have made that clearer at an earlier stage, but it meets the essential point which the noble Lord, Lord Phillips of Sudbury, was making, backed up by the noble Lord, Lord Hunt of the Wirral. I hope that I can reassure the noble Lord that it is not the intention that there should be only one firm of solicitors in the area. What is intended is that in so far as it is possible there should be a choice in as many areas as possible throughout the country.
Lord Phillips of Sudbury: My Lords, is it not the case that according to the figures produced by the Legal Aid Board there has been a remarkable reduction in the number of solicitors firms which will in future be available to undertake legal aid work? If the figures I mentioned earlier are remotely correct, will that not mean that in some parts of the country there will be only one firm available?
Lord Falconer of Thoroton: My Lords, there will be a reduction in the number of firms which undertake

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legal work. However, one should not misread the figures. A large number of the firms which will drop out undertake only a small amount of legal aid work at present. I believe that 11,000 firms were referred to. Of those, only 2,000 or 3,000 undertake the great bulk of legal aid work in this country. The remaining 8,000 do some but only a small amount. A reduction in the number of those firms will not be taking that much capacity out of the legal aid system in this country.
I cannot guarantee that there will not be some parts of the country where only one firm has a contract in relation to legal aid. I believe that such firms will be few and far between. It will probably be the result of the area being geographically remote rather than anything else. Therefore, with respect to the noble Lords, Lord Phillips and Lord Hunt, although the point is well made and well taken, the position is not exactly as they described it.
The point was made that there was too much focus on cost cutting and too little focus on quality. The provisions of the Bill make it clear that one of the legal services commission's focuses must be on quality. It is there as an obligation for it to consider. One can do no more in relation to it than that.
We are keen to ensure that quality is maintained. That would be achieved not just by the obligation on the legal services commission but also by the fact that firms which receive a legal aid contract will have to satisfy certain quality conditions, those conditions relating not only to management and process but also to legal ability.
In a number of respects that is quite a good thing. It will ensure, for example, that when members of the public have a problem raising a medical negligence issue they will know to what sort of firm they should go. Many firms could be confronted, quite legitimately, with such a case and, although not experienced enough to deal with it, may not be willing to pass it on. Under the new arrangements, it would have to be dealt with by a firm that was authorised to carry out legal aid work.
There are many more points that I could deal with, but those are the main ones raised in the debate. We shall have to come back to many other points in Committee. I believe that the Bill makes a genuine contribution to making justice more accessible to the general public than it is at the moment. It achieves that by giving the Lord Chancellor, the Legal Aid Board and the legal services commission power to direct more effectively the legal aid resources where they are needed most, which is not the position at the moment. I commend the Bill to the House.
On Question, Bill read a second time, and committed to a Committee of the Whole House.

Town and Country Planning (Minerals) (Scotland) Regulations 1998
9.41 p.m.
The Minister of State, Scottish Office (Lord Macdonald of Tradeston)The Minister of State, Scottish Office (Lord Macdonald of Tradeston) rose to move, That the order laid before the House on 25th November be approved [2nd Report from the Joint Committee].
The noble Lord said: My Lords, I begin by recording my sincere appreciation for the opportunity to address your Lordships in the House for the first time. Planning matters are not part of my portfolio but, because of the importance of the minerals industry, I have taken an interest arising from my business responsibilities.
I wish to set out briefly to your Lordships the effect of two sets of regulations for Scotland, both of which pertain to minerals development. Equivalent regulations are already in force in England and Wales.
First, the Town and Country Planning (Minerals) (Scotland) Regulations are technical and non-controversial, updating existing regulations which date from 1971. Statute has long recognised that minerals development is different from other types of development. Successive planning Acts have contained a power enabling regulations to be made that modify provisions in primary planning legislation, relating to development consisting of the winning and working of minerals.
The Town and Country Planning (Scotland) Act 1997 contains a number of provisions which either apply to developments which involve the use of land, or apply exclusively to operational development. The nature of mineral development is such that it does not fit exclusively into either category. While the winning and working of minerals is regarded as operational development, the depositing of mineral waste is regarded as a use of land.
The purpose of the regulations is, therefore, to prescribe how the relevant provisions of the 1997 Act, relating to use of land, apply to mining operations. The regulations update the statutory references in the 1971 regulations and repeal, by omission, those provisions which are now redundant.
The regulations do not, with one exception, contain any substantive change in policy or effect. The exception is the repeal of regulation 5 of the 1971 regulations. That provided that in relation to mining operations an enforcement notice for breach of planning conditions or limitations could be served within four years of the non-compliance with planning controls coming to the notice of the planning authority. The repeal of Regulation 5 means that the time limits for enforcement action in respect of a breach of planning control set out in Section 124 of the 1997 Act will now apply unmodified to minerals development. In effect, this means that enforcement action can be taken at any point up to four years after the operations were substantially completed. That is also consistent with the principle of the arrangements in Section 74 of the Town and Country Planning (Scotland) Act 1997, which makes provision for the periodic review of all old mineral planning permissions.
I now turn to the Town and Country Planning (Compensation for Restrictions on Mineral Working and Mineral Waste Depositing) (Scotland) Regulations. As the regulations are technical, it may be for the convenience of the House if I do not go into a great deal of explanatory detail.

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The regulations update, replace and simplify the existing regulations which date from 1987. They update the compensation arrangements which apply when a planning authority exercises its powers to revoke, modify, suspend, prohibit or discontinue mineral working. The arrangements in the existing 1987 regulations are inconsistent with those which apply under a scheme originally introduced by the Environment Act 1995 for the periodic review and updating of old mineral permissions.
All modern mineral permissions have operating and restoration conditions attached to ensure that operators meet modern environmental standards. Most old permissions have inadequate operating and restoration conditions.
The Environment Act 1995 required mineral permissions to be reviewed and updated periodically. The Act provided for compensation to be paid to owners and operators only where new conditions, other than restoration and aftercare conditions, restricts the working rights. That ensures a level playing field between old and new permissions.
However, periodic reviews take place only every 15 years and planning authorities may need to use their existing order-making powers to take action in urgent cases between statutory reviews.
The current 1987 compensation regulations provide for compensation to be paid where an order modifies any existing planning condition, although the amount of compensation can be abated in certain circumstances.
The new regulations will ensure that compensation entitlements following orders are consistent with those applicable at the time of periodic reviews as introduced in the Environment Act 1995. As such, they are consistent with the existing statutory framework and do not introduce further policy changes.
Both sets of regulations have received the consent of the Treasury. They have been the subject of consultation in Scotland with all those with an interest and there was widespread support for their effect. The regulations represent a useful and timely modernisation of the planning controls over minerals development in Scotland. I beg to move.
Moved, That the order laid before the House on 25th November be approved [Second Report from the Joint Committee].—(Lord Macdonald of Tradeston.)
9.45 p.m.
The Earl of Courtown: My Lords, I thank the noble Lord, Lord Macdonald of Tradeston, for his excellent explanation of the regulations and I congratulate him on his fine maiden speech. We must not forget the noble Lord's major contribution to the shipbuilding industry on the Clyde, nor the great commitment that he has shown to STV and the Scottish media. What is less well known is the noble Lord's dedicated and sympathetic support for the Gaelic College in Skye, the library of which has benefited from his generosity.
I must apologise to the noble Lord because although before the debate I warned him of some of the questions that I was going to ask, another has just come to mind.
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Will the regulations have any impact on the application for the super-quarry on Skye? Can the Minister say when that decision will be made? If the noble Lord would prefer to answer that in writing, I should very much appreciate that.
The Earl of Mar and Kellie: My Lords, I too congratulate the noble Lord, Lord Macdonald of Tradeston, on his slightly unheralded or covert maiden speech. I welcome him as the 11th noble Lord from Scotland to become a Member of this House since the general election.
I should declare the fact that I have a possible pecuniary interest in an opencast colliery development and also that I shall be living next door to it as well as being surrounded by four nodding donkeys from a coalbed methane project. I have also become a member of the Scottish Environmental Education Council.
These regulations are welcome. They certainly tidy up issues which have developed from the reviews of the older mineral commissions within the context of increased environmental protection requirements and expectations of enhanced reinstatement.
The second regulation clarifies the availability and extent of compensation, sorting out problems currently found between mineral operators and local authorities who are taking part in the review process. The order certainly spells out exactly what compensation can be claimed. I am sure that both sets of regulations will resolve the issues of use, modification, discontinuance, resumption and suspension of commissions. The inclusion of the huge piles of temporary waste will be very necessary and helpful.
At the end of the day success in these issues will depend on getting the balance right between efficient mineral extraction, which is a necessary activity within our economy producing raw materials and fuels, and achieving ever higher standards of environmental protection during the working phase and in the reinstatement phase afterwards.
It is certainly a big issue in the wee county of Clackmannan where there are many opencast mines and quarries in operation and in embryo. That is despite Clackmannanshire being the smallest county in the United Kingdom. But living in the immediate vicinity of a quarry or opencast mine can never be inconsequential for those who have to do so. Every effort should be made to mitigate the effects. I hope that these regulations will contribute towards that.
Lord Selkirk of Douglas: My Lords, may I from the Back Benches issue a word of welcome to the new Minister and congratulate him warmly on these orders. I should mention that my brother's companies have had an interest in mineral rights and the company of which I am unpaid director has had in the past, and it is not impossible it might have in the future. There would be considerable interest if the Minister could say something about the current situation of the Glensanda quarry in the Western Isles because a great many people have a general interest in that subject, especially the islanders of the Western Isles.

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I congratulate the Minister on a very positive first performance. We look forward to many more contributions from him in the future.
Lord Macdonald of Tradeston: My Lords, I am very grateful to the noble Earl, Lord Courtown, for his kind remarks. I shall certainly bear in mind what he said about the quarry in Harris. I am advised that the situation is that it is not appropriate to connect the super-quarry with this legislation. The Secretary of State will be able to advise as soon as he himself receives the reporter's final submissions on this matter. I thank the noble Earl also for his comments about my contribution to the Gaelic college in Skye. The contributions would have been scarcely possible without the good offices of the noble Lord, Lord Selkirk of Douglas. I also bear his comments in mind.
I turn to the remarks of the noble Earl, Lord Mar and Kellie. The regulations do not impinge in any significant way on the current policy review on opencast coal. Consultations on the consultative draft new policy guidance for opencast coal ended on 11th December. The responses are currently being considered and the conclusions will be announced in due course.
I take the point made earlier by the noble Earl. I hope that he will accept that this legislation is very similar to that already in place in England and Wales and that it has been consulted upon very widely in Scotland with local authorities, industry and other interested parties. Indeed, we received 34 responses in total and the vast majority of those responding confirmed that they were content with what was proposed. Although a number of technical points were made, they did not necessitate the regulations being amended. Therefore, as the provisions are working well in England and Wales, I hope that the noble Earl will accept that there is no reason why the situation should be different in Scotland. I commend the order to the House.
On Question, Motion agreed to.

Town and Country Planning (Compensation for Restrictions on Mineral Working and Mineral Waste depositing) (Scotland) Regulations 1998
Lord Macdonald of Tradeston: My Lords, I beg to move.
Moved, That the regulations laid before the House on 25th November be approved [2nd Report from the Joint Committee].—(Lord Macdonald of Tradeston.)
On Question, Motion agreed to.

Functions of Traffic Wardens (Scotland) Order 1998
9.55 p.m.
Lord Macdonald of Tradeston Lord Macdonald of Tradeston rose to move, That the draft order laid before the House on 5th November be approved [48th Report from the Joint Committee, Session 1997–98].
The noble Lord said: My Lords, perhaps I may begin by providing noble Lords with some of the background which has led to the order now before us. In 1993 the Home Office amended the Functions of Traffic Wardens Order 1970 by the Functions of Traffic Wardens (Amendment) Order 1993 to give new powers to traffic wardens. Following consultation with the Association of Chief Police Officers in Scotland, it was agreed that the functions of traffic wardens in Scotland should similarly be extended. However, in view of the changes made by the Home Office and the changes made to road traffic legislation since the Functions of Traffic Wardens (Scotland) Order 1971 was made, it was necessary to completely re-make rather than simply amend that order. Therefore, the Traffic Wardens (Scotland) Order 1998 brings us in line with England and Wales.
Traffic wardens already play a significant role in parking enforcement and the order will allow wardens to be of greater assistance to the police in the enforcement of parking offences, thereby releasing police time for more essential duties. The order, if introduced, would be available to all police forces in Scotland. It would, however, be for individual chief constables to decide when to make use of it. I shall explain as simply as I can what changes the order will make.
Traffic wardens in Scotland presently issue fixed penalty tickets to vehicles parked in contravention of local parking orders, issue fixed penalty tickets to vehicles not displaying valid excise licences, and direct traffic. All of the offences currently dealt with are non-endorasable. The Functions of Traffic Wardens (Scotland) Order 1998 will allow them to exercise the additional functions of the interim removal of illegally parked vehicles and the immobilisation of illegally parked vehicles. This is similar to the powers presently available to police officers under terms of the Removal and Disposal of Vehicles Regulations which are currently being amended in tandem with this order. For example, vehicles causing an unnecessary obstruction will be a non-endorsable offence. For the first time, traffic wardens will be able to issue a fixed penalty notice for endorsable offences, these being dangerously parked vehicles and vehicles parked in breach of pedestrian crossing regulations. There will also be the power to require the production of a driving licence and, in certain cases, a statement of date of birth if there is cause to believe that one of the endorsable offences has been committed.
The new functions proposed in the order provide chief constables in Scotland with the means to increase the role of their traffic warden forces in day to day parking enforcement. Police officers will be able to focus their time on duties of greater priority. However, we and the police recognise that it is important that the new duties to be carried out by wardens are discharged in a proper way and that training of traffic wardens in the new duties is essential. We shall stress the importance of training to chief constables in the advice that we issue to them about the new order. I believe that the new arrangements have a significant contribution to make to the police service. I beg to move.

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Moved, that the draft order laid before the House on 5th November be approved [48th Report from the Joint Committee, Session 1997–98].—(Lord Macdonald of Tradeston.)
Lord Steel of Aikwood: My Lords, I join with others in welcoming the noble Lord, Lord Macdonald of Tradeston, to his new role. I do not want to take up time, but there are one or two points I wish to make about the order. First, although the noble Lord has given a list of the extension of powers of traffic wardens, I hope that he will accept that they fall into two distinctive categories. I do not think that anyone would query the extension of powers for traffic wardens to act as parking attendants or school crossing officers and so on, but the second category is quite different. It is a new concept in Scotland that someone other than a police officer could demand the identity of a driver or the production of a driving licence, or could issue a fixed penalty in respect of an endorsable offence. That is a major extension of the role of traffic wardens. It should not be entered upon lightly without some cross-examination.
For example, the question of whether a vehicle is dangerously parked is a matter of opinion. A police officer with training is perfectly capable of advancing that opinion if the matter came to court. I am not so sure that that is true of a traffic warden. I wish to press the Minister to be more explicit as to what training will be given before these extra powers are brought into effect.
Secondly, in England, though not yet in Scotland, I understand, some traffic warden services have been privatised. I would like to be reassured that none of the powers in the order will be transferred to privatised traffic warden services. These have proved somewhat unpopular in some parts of England.
My last point is this. As the Minister said, these powers are permissive to chief constables. It is therefore possible that we could have different police forces in Scotland implementing these powers differently. This could cause some difficulty where people who are used to police officers having the powers in one area of Scotland travel to another area where traffic wardens have the powers. If there is a case for the powers, they should be introduced uniformly across the country and not in a piecemeal manner in different areas where they could give rise to confusion and some public anxiety. I hope that the Minister feels that these are reasonable questions I raise.
The Earl of Courtown: My Lords, I thank the Minister for explaining the order. I am particularly pleased that it will enable the police to concentrate on other areas of their activities.
As the noble Lord, Lord Steel of Aikwood, said, it is important that wardens receive extra training to carry out these functions. Can the Minister say what the extra cost will be and whether it will be recouped from the extra fines raised? I also agree with the noble Lord, Lord Steel of Aikwood, about the order being voluntary. Why
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is this so? Why is it not mandatory? Can the Minister explain whether this is the situation in the rest of the United Kingdom?
Lord Macdonald of Tradeston: My Lords, in reply to the noble Lord, Lord Steel of Aikwood, these new powers have not been entered into lightly. He will be aware that in Scotland police forces have traditionally been reluctant to increase the powers of traffic wardens in areas which they feel should remain within the domain of the police. It was not until four years after the Functions of Traffic Wardens (Scotland) Order 1971 came into operation that police forces reviewed their opposition to its implementation. The training of wardens is a matter for the police and for chief constables. That should give the noble Lord some assurance.
The order is permissive and it will be for chief constables to decide whether they wish to introduce the powers in their areas. Despite the concerns of the noble Lord, it is better to go with a tradition of pragmatism and flexibility in this matter, and I would rely on the good sense of the Scottish police forces.
On the point raised by the noble Earl, Lord Courtown, our belief is that there will be no extra costs. In fact, what costs there might be should be defrayed by the fact that the wardens controlled by the police will allow the police to undertake duties of greater priority. Therefore, overall, there should be a saving to the public purse.
As to the noble Earl's more general question, I believe that the position in Scotland follows that in the rest of the United Kingdom in terms of the proposed new powers. On the basis of experience to date, we believe that the new powers in Scotland will be a welcome and beneficial advance.
Lord Steel of Aikwood: My Lords, before the noble Lord sits down, will he deal with my point about the franchised or privatised warden service for parking in London? Is it contemplated that such powers will be available in Scotland?
Lord Macdonald of Tradeston: My Lords, I am not aware of any plans to emulate what has taken place in London. I believe that it is possible in Scotland for local authorities to hire people on parking attendant duties. It would also be possible for them to recoup some of the expenses. But I hope and trust that, with the good sense of Scottish authorities and with the advice of the police, the powers will be used in a practical and positive way rather than in the punitive way the noble Lord implies.
On Question, Motion agreed to.

NATO
10.6 p.m.
Lord Kennet Lord Kennet rose to ask Her Majesty's Government to what extent they think NATO actions "out of area" must be in accordance with United Nations and Organisation for Security and Co-operation in Europe resolutions and international law.
The noble Lord said: My Lords, in an abrupt change of subject, I regard with unconditional horror and loathing the organised slaughter which humanity commits each day and would conceive my life to have been wasted if I had not done what I could to reduce it. That is why I come back and back again in this House to the dialectics of war and peace and of order and chaos.
The organised slaughter has usually been among sovereign states though at the moment it is more within than among states. It was thus that in 1945 one could feel sure that the foundation of the United Nations was not only the best, but was the only hope for the peace, if not the survival, of the human race in the nuclear age. In the UN the states of the world could meet, argue, vote and decide in rough imitation of the model which had proved so successful in some of the single states: the democracies. It was, and still is, the nearest we have got to Tennyson's "Parliament of Man".
And, the supreme element of that great hope, the Americans, were there. The League of Nations had failed because the Americans were not there. They, or rather an enlightened minority of them, had been its midwives. But the Republican Party pulled out before it came alive. The rest of the world did as best it could without them.
After the victory over Nazism, in which the US played a belated but splendid part, the world returned to the League principles. We had learnt the lessons of Versailles—generosity towards those we had defeated, lest the war continue in their hearts and re-emerge later to defeat us all. During the next half century, people were able to hope that the UN would in time be permitted to achieve the virtually eschatological purpose for which it had been set up; and many times over wars were averted or ended, sometimes even by armed force; multilateral treaties were signed, including disarmament measures; subordinate specialised agencies were created; and missions, missions, missions, which, when they could not succeed by private appeal to reason, often succeeded by public exposure to obloquy. War was not banished but a universally valid think-tank, mediator, reporter and, in the last resort, policemen, was present.
In the age of ideological self-importance after 1950 the two super-powers cancelled one another out. They wasted their own and each other's wealth on the grandest and most useless scale, and terrified everyone. On the Soviet side the Cold War provided an excuse for occupying other people's countries; on the American side for developing arms of a horror and expense undreamed of by former generations, and also for more or less occupying other people's countries. One side produced lasting political resentment, the other produced lasting distortion of scientific research and investment. It also produced NATO, to which an anthem was written in the early 1950s. This promised undying loyalty, etc., and was recommended to be sung in schools. It did not catch on.
NATO was a necessity then, but it may soon be a danger. I have often set out here in the past few years why I think this is so. The United States wants NATO to spread round the entire globe, picking up members as it goes, and flexing its military muscles. It would be the
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arbiter of disputes within and among its members and in the rest of the world alike and would defend "our shared interests and values" against all corners anywhere. The United States would remain in command and would define the interests and values.
How does this fit with the UN in the American view and in our view? When we in this country consider American foreign policy nowadays we often say, "The Administration is good, it is only Congress under Senator Helms that is bad. The President has a lot of difficulty with the Republicans". That is of course true, and we must sympathise with President Clinton. But however it is arrived at, the foreign policy of a country is what comes out at the end of the pipe and that is what affects the rest of us. The US is a single nation, and presidential smiles butter no parsnips. It is the Senate which today determines the foreign policy of the United States, and this we must recognise. We share few of the values of the present Senate majority, and many of the interests they proclaim, pursue and pass into American law, we must strongly oppose.
Let us indeed continue to co-operate with the United States' Administration whenever we can, but not when it proposes to break or ignore the law, by which I mean international law, including the UN Charter, UN resolutions, conventional law and the United States' own international commitments.
For instance, just what has been happening in UNSCOM, whose American deputy director has apparently been in London to fund and plan with Iraqi oppositionists to topple Saddam Hussein, which is against British law and against international law? We in this House were recalled for an emergency session in the middle of the summer to pass a law precisely against that. Was the gung-ho attack on the pharmaceutical factory in Khartoum not enough egg on both our faces, America's and ours?
The rule of law is necessary for the achievement of justice, and justice is necessary for peace. It is thus necessary—using the word in the strictest possible sense—that the rule of law be at the heart of NATO's new strategic concept. Unambiguous support of international law is not now American policy. Senator Helms, the progenitor of the United States' current proposals for the strategic concept, imposed—as the House knows—a legally binding duty on the US which points quite another way. We discussed this earlier this year when the Helms' conditions first appeared and Ministers responded that this was a matter internal to the United States. It is not at all internal to the United States, and it is now central to our own approach to world affairs. It is central to the significance of, for instance, our defence review.
In spite of Helms, the US has not actually left the United Nations. It is grossly in arrears with its debt and dues. Its arrears add up to more than those of all other countries put together. The US is also indirectly in debt to this country, because the United Nations is unable to pay us a portion of what is due for our part in various peace-keeping operations.
Senator Helms has produced this situation. He has also refused to pass any aid appropriation from the US to any country which will not ban abortion. He also

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refuses any US contribution to any subsidiary UN body. One recent refusal banned funds for the UN population fund which deals with family planning and, therefore, with AIDS—a scourge which is once more exploding in poor countries. The senator then jeers at the weakness of the United Nations.
The United States does not belong to UNESCO, to which we have now fortunately returned after the Conservative years. Today, unexpectedly, UNESCO is crucial to the future of humanity. A slow-moving crisis is far advanced in the world over the status of patents in biotechnology, including both human and plant genetics and the International Bioethics Committee, which comes under UNESCO, is the right place to discuss this. The chairpersons of the national bioethics committees of the world have recently had an emergency meeting. They are at their wits' end for a forum in which they can grapple directly with the Americans. At present they simply cannot attract attention.
The dominant opinion within the Washington Beltway is profoundly nationalist, irresponsible and ignorant. In the country at large, as polls show, this is not the case. Most Americans have more faith in the United Nations than in their own judiciary. But the Beltway climate shows itself every week in routine decisions on international affairs: Iraq, North Korea, China, Japan, Russia, Turkey, Israel, Sudan, France.
Our otherwise nice, kind and sensible government, as I have pointed out so often, still believes a sleepy and uncritical cheer is the right response. Is President Clinton not a fellow believer in what New Labour believes? There has been one quite striking example in recent weeks of the sleepy cheer which has not hit the headlines. It is this. At the meeting of the North Atlantic Assembly in Edinburgh last month there was a draft general resolution before the final plenary which was to be the contribution of the alliance's only democratic body to the formulation of the new strategic concept. Its main thrust was that NATO should now routinely undertake out-of-area operations, which were forbidden by the original Cold War treaty, but are now permitted by a treaty revision. The question was, with what authority?
In the draft of the final resolution at Edinburgh, the familiar view was re-stated: the freedom of NATO to go outside its area was subject to UN or OSCE authority. This seemed obviously right; it stated no more than what must be the case. International law and international assemblies and tribunals exist, and the mightiest military entity in the world must obviously set an example to all others by its scrupulous observance of them.
But an amendment was proposed to this peaceful and normal draft: there was a division and it was carried. The amendment deleted that condition; it deleted the words making out-of-area expeditions subject to UN or OSCE approval. It thus left the partial military alliance called NATO subject, in its own eyes, to no other authority and thus potentially master of the world.
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In context, the passage it amended bore a relation to the new concept of "overwhelming humanitarian necessity". This is a useful description of a thing which may happen, does happen, and morally requires whatever remedy we can apply. But, as my noble friend Lady Symons confirmed recently, it is not known to international law. It is glaringly obvious that if it is to be any use in licensing the despatch of armed force, what constitutes an overwhelming necessity must be open to discussion in and confirmation by an international authority, as happened, for instance, with the threat NATO issued to Milosevic a month ago. The amendment I speak of was, in short, a direct blow at the rule of international law.
The proposers of the amendment were two American and two British parliamentarians. The two British proposers were the chairmen of the Defence Committee and the Foreign Affairs Committee of the House of Commons. I have given them notice that I would raise the matter here today, and I ask my noble friend what discussion preceded this extraordinary action? Were they briefed by the Foreign Office to go with the US in deleting the authority of the United Nations over the actions of NATO; and to do so in the only democratic organ in NATO in the course of its contribution to the formulation of the new NATO strategic concept?
Has the Foreign Office, or whoever was behind this shameful action, failed to note that it is not nice, preoccupied President Clinton, not sparky Mrs. Albright, not the excellent Ambassador Vershbow, least of all the American people who are behind the anti-United Nations, anti-Europe, anti-human proposal to set NATO above the UN: it is the same spirit of ignorant pride which drew the United States back from the League of Nations 70 years ago and back from the International Criminal Court and the Landmines Convention this very summer. In its present incarnation that spirit is Jesse Helms, US Senator, chairman of the Senate Foreign Relations Committee, and in foreign policy far more powerful than the President. He is friend neither of Europe nor of peace.
We owe a loyalty of friendship to the American people, not to the present Senate majority, and for their sake as well as our own, and for the sake of all our children, our best support must go to protecting and building up the rule of international law, and to protecting and building up the United Nations.
10.21 p.m.
Lord Wallace of Saltaire: My Lords, this was an important subject and I regret that so few of us are discussing it at so late an hour.
I do not entirely share the views of the noble Lord, Lord Kennet, of the United States as edging towards isolationism. Nor do I entirely share his view of the Washington lead as ignorant. He is correct in saying that a certain arrogance of power has invaded the Washington policy elite. But that is different from the attitude of the Republican Right, and in particular of Senator Helms and his friends in the US Senate. I noted that in the last congressional elections the Republicans

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did much worse than they had expected. Senator Helms has particular views. He is an extremely elderly man, but he will in time go.
We have to maintain a close dialogue with our American friends. One of the reasons that I and my party welcome so warmly the Government's initiative on closer European defence co-operation is that it seems to us that one needs a more equal dialogue with the United States. On a number of occasions in the past few months when involved in transatlantic discussions I have been struck by the extent to which we are dealing with a benevolent hegemony which has come to assume that it is a righteous nation and that it knows what is best for the world. If I had been French or Italian a hundred years ago I would probably have felt the same about the British. There is a certain overriding self-righteousness within the American policy elite which one has to watch. The remedy for that is clearly a stronger European pillar within NATO, a stronger European dialogue and a more equal European relationship with the United States.
I share some reservations with the noble Lord, Lord Kennet. However, I have two opposite sets of reservations on the Motion. I share much of his unhappiness with the current mood within the United States—for example, the extent to which the Republican dismissal of the UN has now seeped through to so much of the policy elite. I note that the draft of a foreign relations report on the future of transatlantic relations due to be published in the new year does not mention the United Nations at all until the last four pages. There is an underlying assumption, even in part of what Madeleine Albright says about the future of NATO and world order, that a transatlantic partnership that is entirely outside the United Nations will come to maintain world order.
The American mood towards the United Nations is unavoidably negative. Clearly, it is something on which the United Kingdom and its European allies should continue to remonstrate with the United States. I recall that one of the earlier activities of Robin Cook as Foreign Secretary was to remonstrate with Senator Helms on this very point and thereupon the latter abruptly terminated the meeting.
The American attitude to international law is also ambivalent. There is resistance to acceding to the Convention on the International Criminal Court. The extent to which the US Supreme Court in its current formation with a number of Republican nominees is inclined to resist international law as a relevant factor in taking US decisions on the grounds that the United States is the world's most democratic country and has the most perfect system of law is something that should worry us all. There are also undertones within the United States in the debate on NATO which imagine an America that maintains an American-led world order with Europeans in support. That is something that our Government, together with our German, French, Dutch and other European allies, should be careful to guard and advise against.
American triumphalism at the present moment is very strong. American dismissal of Europe is exaggerated. Therefore, we must address the balance. There are
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concerns here that feed into our worries about discussions on NATO's new strategic concept and getting into the serious business of trying to draft something for publication next April. I worry about American assumptions as to what "out of area" means and new concepts like the "Greater Middle East" or NATO as extending western power across Eurasia, meaning Central Asia, with its oilfields, and the Greater Middle East seen very much through Arab-Israeli eyes with rogue states beyond.
However, on the other side I also worry about the problems of organisations that are blocked by minorities or vetoes of particularly important states. Within the United Nations and the Security Council we repeatedly suffer problems with the Russians and Chinese who are unwilling to go along with collective action. I note that in last Thursday's Financial Times there was a report of a discussion between NATO and Russian Ministers on Kosovo in which it was said:
"Mr. Ivanov reiterated Moscow's view that NATO should have received United Nations Security Council approval for their air strike alert. But he sat in silence as NATO Ministers explained that they had only sidestepped the UN because Russia had blocked action in the Security Council. that the NATO decision had not been taken lightly and that Kosovo would not set an automatic precedent for future NATO action".
That seems to me to be exactly the right balance to strike; namely, that we use the UN when we can and should bypass it only when it is blocked by the veto of a particular great power.
I wish that I could agree with the noble Lord, Lord Kennet, that the United Nations has now become the parliament of man. Sadly, it is not a parliament but is still a collection of governments, some better than others and some, sadly, a lot worse than others.
Lord Kennet: My Lords, with all politeness and some grief, perhaps I may correct the noble Lord. I did not say that I believed that but that it was possible to believe it in 1945.
Lord Wallace of Saltaire: My apologies, my Lords.
Similarly in the OSCE there was a large question which perhaps the Minister will answer: what is the future relationship between the OSCE and NATO in maintaining order in Europe?
One of the problems with the OSCE is that, given the current state of Russian politics and the various divisions within the Russian state, we cannot entirely guarantee that the OSCE itself will be able to act as a maintainer of order, a vehicle through which one can prevent conflict within the wider European space. We have also, after all, seen problems with minority vetoes even within the European Union and the common Parliament security policy, with Greece blocking progress towards resolving the Turkish relationship with Europe, towards resolving the Cyprus problem, and the United Kingdom and others going into smaller groups—contact groups of one sort or another—in order to evade that veto.
There is no easy answer either way. There is no formula which can answer all of our needs. We do, however, need to maintain a close alliance with the

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United States. It may be a flawed super-power, but it is better than a world without a benevolent and democratic super-power. This is the case of a stronger European presence within NATO and within world affairs as such, for a more institutionalised Europe which plays a much more central role in managing the security of its own region.
10.31 p.m.
Lord Moynihan: My Lords, as we draw ever closer to the 50th anniversary of NATO's foundation, I would like to congratulate the noble Lord, Lord Kennet, on securing this debate, although I anticipate and hope that we will have further opportunities to debate NATO issues in advance of the 50th anniversary summit to be held in Washington in April.
This evening's debate has provided a timely opportunity to examine the appropriate legal basis under which NATO should take action in today's geopolitical landscape which increasingly poses "out of area" security and stability challenges. It also provides an opportunity to explore the achievements of the relationship between NATO, the UN and the OSCE as interlocking institutions which provide a global framework for respect to human rights, fundamental freedoms, the rule of law, security and common liberty.
NATO as an organisation has enlarged, evolved and adapted over the five decades of its existence. The founding fathers of NATO sought to safeguard the freedom and security of all its member countries through political and military co-operation in accordance with the principles of the United Nations Charter. NATO's essential purpose, as set out in the 1949 Washington Treaty and reiterated in the London Declaration, pointed towards the establishment of a just and lasting peaceful order in Europe.
However, changing times have brought changes to NATO's functions. In the Cold War years the alliance was focused on the development and maintenance of collective defence and territorial integrity of its member states, enshrined in Article 5 of the Treaty of Washington, and on overcoming the fundamental political issues dividing Europe. At the beginning of this decade NATO underwent a process of far-reaching change to adapt itself to the new challenges of the post-Cold War world and the transformation of the European security environment. In many respects NATO's new strategic concept was introduced at the Rome summit of November 1991. It called for structures which would enable the alliance to respond effectively to the changing security environment by providing the forces and capabilities needed to deal with a wide spectrum of risks and contingencies. This included the capability to undertake crisis management and crisis prevention operations, including peacekeeping, while continuing its core mission of collective defence. This was because, in the words of the US Secretary of State, Madeleine Albright, a ballistic missile attack using a weapon of mass destruction from a rogue state is every bit as much an Article V threat to our borders now as a Warsaw Pact tank was two decades ago.
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Largely as a result of this new strategic concept, the alliance has developed procedures and mechanisms for closer co-operation with its partner countries, for example, through Partnership for Peace, the Euro-Atlantic Partnership Council, the NATO-Russia Founding Act and the NATO-Ukraine Charter, as well as increased co-ordination and co-operation with other international institutions, such as the United Nations, the OSCE, the Western European Union and the agreement to make NATO's assets and experience available to support international peace-keeping operations.
Against that background, we are all agreed that it is vital to have a common vision of NATO for the 21st century and to equip NATO to make the maximum contribution to peace and democracy in a Europe that is truly free.
The Washington summit next April provides an opportunity to make sure our road map is leading us to the goal of a NATO strengthened by new members; a NATO capable of collective defence; a NATO committed to meeting a wide range of threats to our shared interests and values; and a NATO acting in partnership with others to ensure stability, freedom and peace in and for the entire transatlantic area.
We are all agreed that today's world of diverse and multi-directional risks poses a very different set of challenges to NATO than the world of 50, 20, or even 10 years ago. Threats to our security are less likely to result from calculated aggression against the territory of NATO allies. Instead, the serious economic, social and political difficulties, including ethnic rivalries and territorial disputes faced by many countries in central and eastern Europe, have the potential to undermine European stability and to lead to armed conflicts, as we have seen in Bosnia and in Kosovo. Those conflicts could spill over into NATO countries and could have a direct effect on the security of the alliance.
There is no doubt that the allies' security is inseparably linked with that of the other states in Europe, underlining the importance of dialogue and co-operation within all of Europe to help defuse crises and to prevent conflicts. There is no doubt that events beyond NATO's borders can affect vital alliance interests. That is why NATO acted in Bosnia, and that is why NATO must be prepared to act in Kosovo. There is no doubt that if such threats are not addressed early and effectively they could grow into Article 5 threats.
In those new circumstances, the increased opportunities for the successful resolutions of crises at an early stage must be grasped. The question facing NATO today is how it can fine-tune its political and military structures to be able to defend alliance interests in the future as effectively as it has defended alliance territory in the past.
Does the Minister agree that the future success of NATO policy will require a coherent approach determined by the alliance's political authorities choosing and co-ordinating appropriate crisis management measures as required from a range of political and other measures, including those in the military field? Does the Minister agree with the US Secretary of State who has called for an updated

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strategic concept to deal with instability when it is at arm's length rather than when it is knocking on our door? What assessment have the Government made of fears in some European member countries that the United States' stated desire for NATO,
"to be able to act in the area that it now acts in and able to have missions out of area that affect the interests of NATO members",
is indeed an attempt to create a global NATO or an American-led policeman of the world guided primarily by US global security interests which, accordingly, would downgrade the security of Europe in its lists of priorities? The matter was explored in some detail by the noble Lord, Lord Kennet? That raises the issue of mandates for missions beyond NATO's periphery. Article 1 of the Treaty of Washington makes it clear that NATO is bound to act according to the principle of the United Nations as set out in its charter. But can the Minister say what flexibility the Treaty of Washington, by which NATO was founded, offers to adapt the alliance to the realities of the new strategic environment? What assessment has the Minister made of the suggestion that NATO should not need the backing of a United Nations resolution for out-of-area operations, most recently expressed by the US Secretary of State in an interview with the French newspaper, Le Monde, last week, following the meeting of NATO foreign Ministers in Brussels. In a statement to the North Atlantic Council, Mrs. Albright stated that:
"NATO will—in all cases—act in accordance with the principles of the United Nations Charter, while continuing to address this issue on a case-by-case basis".
Does the Minister agree that this is very different from accepting that NATO should only act out of area when backed by a Security Council resolution? Does the Minister agree that NATO should pledge to respect international law, but that the mandate of the UN Security Council resolution should not be compulsory? Can the Minister clarify the position of the Government on this absolutely critical issue which has major implications for future NATO operations.
In response to the crises such as Iraq and Kosovo, time after time the UN Security Council has fractured down familiar lines of dissent. We know from experience that indecision, disagreements, prevarication, even mere shades of opinion within the Security Council can he exploited by the leaders of rogue regimes in a dangerous game of divide and rule. The end result is deeply detrimental to the diplomatic and moral authority of the international community and risks the erosion of its credibility. Does the Minister accept that the requirement for a UN Security Council resolution would make any NATO action vulnerable to vetoes from China and Russia and could threaten to paralyse the western alliance, fatally weakening its effectiveness?
Perhaps I may pursue the example raised this evening by the noble Lord, Lord Wallace of Saltaire, in Kosovo. During the summer, while Kosovar-Albanians were being murdered in their hundreds, we witnessed months of dithering, delay, disunity and disarray on the part of the international community. Sanctions were imposed, relaxed, then reimposed. In the Security Council there was deadlock with Russia, already dissociated from some of the Contact Group's wider economic sanctions.
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Even NATO's response was hesitant, unenthusiastic and sluggish. Having finally drawn up contingency plans for military intervention, its members operated a talking shop for months on the possibility of a preventive deployment force to the Kosovar-Albanian border and bickered over the legal basis for NATO military action. Russia's Foreign Minister, Igor Ivanov, told the UN General Assembly in September that NATO military action could provoke a big war in Europe and he repeated threats that NATO air strikes would be ruinous for international peace and could provoke a return to years of the Cold War. The speaker of Russia's Duma, Gennady Seleznyov, threatened that the Duma could try to rescind the Russia-NATO founding Act if NATO military action was taken.
How far does the Minister believe that Russian Government statements, such as the one on 6th October that:
"the use of force against a sovereign state without due sanction of the UN Security Council would be an outright violation on the UN Charter undermining the existing system of international relations"
were bluster for domestic consumption? How far does the Minister believe that NATO air strikes without prior UN approval, which would be unprecedented although the circumstances demanded such action, did indeed risk splitting the alliance and polarising relations with Russia?
It is no wonder that President Milosevic, scenting weakness and division, ignored all the apparently ritual denunciations by the West and instead chose to tough it out in defiance of the international community until late in the day when his bluff was finally called. The fractured international response and the disjointed policies of NATO and the UN allowed him a window of murderous opportunity.
Kosovo remains the critical test not only for NATO but for Europe's largest security structure. There is consensus that we have a political interest in promoting a peaceful resolution to the crisis in Kosovo based on the fundamental principles of democracy and respect for human rights, while we have a humanitarian interest in seeing an end to the bloodshed and the pain of innocent people. I would be grateful if, in considering this example, the Minister could outline the Government's policy on the legal basis under which NATO may take action out of area, given that its policy must be reconciled with the need for unity within NATO, for without unity the alliance will not have credibility and that it must be consistent with NATO's fundamental objective.
In conclusion, I want to turn to the critical issue of preserving NATO as the linch-pin of European security. NATO is the embodiment of the transatlantic partnership between the European members of the alliance and the United States and Canada. It is the permanent link between the security of North America and the security of Europe. It is not an over-statement to say that NATO is the most successful defence alliance the world has ever seen. Its unique military capabilities, and its politically stabilising framework have given its members unprecedented peace since its foundation in 1949.

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On that note, what assurances have the Government given to the United States that the St. Malo declaration will contribute to NATO's vitality and will preserve its prerogatives? What assurances have been given that the Government's initiative on European defence will avoid the US Secretary of State's three Ds: the diminution of NATO, discrimination and duplication? Finally, what assurances have the Government sought from the United States that NATO and the transatlantic link will continue to have the highest priority in America's overseas security commitments?
Lord Wallace of Saltaire: My Lords, before the noble Lord sits down, may I add that I heard Carl Bildt talking on this precise issue. He said that there is a fourth D which is also important to avoid, and that is "domination".
10.46 p.m.
The Parliamentary Under-Secretary of State, Foreign and Commonwealth Office (Baroness Symons of Vernham Dean): My Lords, I thank my noble friend Lord Kennet for the opportunity to debate this important subject. I am very grateful to your Lordships for the interest which the House has maintained in the affairs of the North Atlantic Treaty Organisation, the Western European Union and, of course, the emerging debate on European defence capabilities to which the noble Lord, Lord Moynihan, referred.
That kind of involvement by Parliament and by the public is essential if our defence forces are to enjoy the support—both political and financial—that they must have if they are to do their jobs properly. Thanks to the Strategic Defence Review, the United Kingdom knows in what direction it is heading. We have a clear foreign policy perspective within which to take decisions relevant to our security interests. This process will be mirrored within NATO by the drafting of the new strategic concept, as indicated by the noble Lord, Lord Wallace of Saltaire. This important document will convey a clear vision of NATO's likely role in the first years of the 21st century. It will then enable the right decisions to be taken on the kind of forces with which the alliance needs to fulfil this role.
That is precisely the debate that the Prime Minister has initiated within the European Union—what foreign policy role do we want the EU to play'? That is a debate which the noble Lord, Lord Wallace of Saltaire, has been kind enough to welcome in your Lordships' House on previous occasions. What procedures and military capabilities are needed to put those policies into operation?
I believe that it is undisputed that NATO will continue to provide the guarantee of the collective defence of the United Kingdom and of the other European members of NATO and, of course, our transatlantic partners.
I say to the noble Lord, Lord Moynihan—I am sure that he will expect me to say this—in answer to the specific point that he raised, that NATO is the
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cornerstone of our defence policy. The St. Malo declaration specifically makes that clear. It is being discussed with the United States and the United States has said that it welcomes what it describes as burdensharing, and we shall, of course, continue to discuss the ideas put forward in the St. Malo declaration both within the EU and, naturally, with our defence policy partners elsewhere in the world.
But the world has changed greatly since the last strategic concept was drawn up in 1991. There are new challenges. Bosnia and Kosovo are the clearest examples of the sort of situation that NATO—and the EU—are now called upon to face.
As all three noble Lords have said, Article 5 of the Washington Treaty provides for the defence of any member of the alliance which is subjected to armed attack; any such action would be an exercise of the right of individual or collective self-defence recognised by Article 51 of the Charter of the United Nations.
NATO involvement in peacekeeping activities is possible with the consent of the parties concerned; this could be given, for example, within the framework of the Organisation for Security and Co-operation in Europe. As committed members of the United Nations and one of the P5, we also recognise the UN's invaluable role in peacekeeping operations, many of which have been supported by British assets.
In other cases, a Security Council resolution under Chapter VII of the UN Charter may authorise the use of force. In Bosnia, NATO led the multinational force that deployed after the Dayton Agreement in 1995. The 60,000 strong implementation force (IFOR) stopped the fighting, separated the warring parties and began the crucial task of overseeing arms reductions.
The legal basis for the implementation force was provided by the Dayton General Framework for Peace and by the UN Security Council Resolution 1031, which was passed in 1995.
In December 1996, after a year-long deployment, the implementation force was replaced by the 50,000 strong stabilisation force (SFOR), provided for in Security Council Resolution 1088. This established SFOR for a period of 18 months; this was renewed in June this year in Security Council Resolution 1174. We envisage a further renewal of the mandate in June 1999.
The IFOR/SFOR deployment has been highly successful, with some 36 nations, including Russia and other NATO/Partner countries, participating.
As I told the House on 16th November, cases have arisen (as in northern Iraq in 1991) when, in the light of all the circumstances, a limited use of force was justifiable in support of purposes laid down by the United Nations Security Council, but without the council's express authorisation when that was the only means to avoid an immediate and overwhelming humanitarian catastrophe. These cases are exceptional and it is not possible to say whether NATO would be involved.
The noble Lords, Lord Kennet, Lord Wallace and Lord Moynihan, all gave examples relating to Kosovo. In its response to the crisis in Kosovo, NATO played a

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fundamental role in averting a humanitarian disaster of appalling proportions. Given Bosnia's history, there was a huge incentive not to let Kosovo follow suit. In October, there were still 50,000 people living in the mountains and woods of Kosovo, without access to shelter. That month, NATO issued an activation order for limited air strikes, giving NATO a credible threat of use of force against the former Republic of Yugoslavia (FRY). This made a crucial contribution to the ceasefire and reduction in FRY forces in Kosovo as required in Security Council Resolution 1199, thus helping to avoid a humanitarian disaster. The UN High Commissioner for Refugees has reported that there are now no such refugees living in the open.
The people of Kosovo remain at risk of the humanitarian crisis returning as long as there is no lasting political settlement. Meanwhile, the alliance's enhanced state of military readiness continues.
NATO's actions over Kosovo, as with Bosnia, have been and remain in accordance with international law. They have the strong support of the OSCE and the two organisations continue to co-operate closely together.
The noble Lord, Lord Wallace, asked about the future relationship. I hope that there will continue to be such co-operation. I believe that what we have seen in Kosovo is an indication of that.
The important point is that all NATO operations must have a proper basis in international law. In answer to the specific point raised most cogently by the noble Lord, Lord Moynihan, this need not always be a United Nations Security Council resolution. The legal basis in any particular case is bound to depend on the circumstances. We have to judge each case on its merits and act accordingly.
The noble Lord, Lord Wallace of Saltaire, raised the issue surrounding the relationship of the UK and the US. I thought that what he described was a caricature of that relationship. The Government are wholeheartedly committed to the United Nations. We believe that it is essential that the authority of the Security Council is maintained and that all member states act in accordance with the UN Charter and international law. As a permanent member of the council, Her Majesty's Government take those responsibilities extremely seriously. To suggest that we are somehow subverted in that by our relationship with the United States is definitely incorrect.
Lord Wallace of Saltaire: My Lords, the noble Baroness misheard me. I was not suggesting that we were in any way subverted.
Baroness Symons of Vernham Dean: My Lords, I mean the noble Lord, Lord Kennet. I hope that the noble Lord will forgive me. It is the lateness of the hour that led to a moment's confusion. I believe that the suggestion was made by my noble friend. He was also anxious about what has happened in relation to the amendment which he tried to move at the North Atlantic Assembly meeting in Edinburgh last month. I understand that his amendment did not attract the support that he would have liked. He was concerned lest
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Her Majesty's Government had perhaps brought pressure to bear on Mr. George and Mr. Anderson who opposed his amendment. I assure my noble friend that the FCO officials gave a written, factual briefing to all members of the UK delegation on all resolutions. That included factual advice on a legal basis. But there was no conspiracy involved. The fact is that those members who did not feel able to support my noble friend and his amendment believed that they were doing the right thing. It was not because undue pressure had been brought to bear on them by Her Majesty's Government.
Lord Kennet: My Lords, the point that I raised was nothing to do with any amendment proposed by me; it was an amendment proposed by Mr. George and Mr. Anderson. The effect of that amendment, as I specified in my speech, was to delete reference to UN authority for NATO action "out of area". My question was whether they had government backing in moving that amendment and deleting the UN from the governing text of NATO.
Baroness Symons of Vernham Dean: My Lords, the noble Lord may find this painful, but the fact is that Her Majesty's Government did not agree with my noble friend's perspective on this and neither did other members of the delegation. I hope I have assured my noble friend that the other members of the delegation were given factual information. It was not some kind of conspiracy or put-up job. They reached their own conclusions about what they believed was the right thing to do.
The noble Lord, Lord Moynihan, asked about the Government's view on US suggestions that NATO would defend common US-European interests in other parts of the world. Since the end of the Cold War the allies have recognised that fulfilling the purpose of security around the world depends not just on the defence of allied territory but, as the noble Lord indicated, on efforts to promote security and stability more widely that in NATO's borders. As the noble Lord said, we live in a very different world these days and the fact is that what happens on the other side of the world as regards weapons of mass destruction is bound to have an effect in parts of the world which could be said to be "out of region." It is hard to know what "out of region" actually means when we are talking about those kinds of weapons. NATO's wide-ranging programme of political and military co-operation with non-members through Partnership for Peace is one way that we are trying to address these issues.
The noble Lord, Lord Moynihan, also pointed to what he believed were the shortcomings of NATO in Kosovo; indeed, if I may say so, he put forward a very different perspective from that expressed by my noble friend Lord Kennet. I can assure the noble Lord that NATO has not and will not lower its guard in relation to Kosovo. The NAC is keeping the situation on the ground under constant review. If NATO sees evidence of substantial non-compliance with the resolutions of the UN Security Council, it will be ready to use force. Actors for limited operation are still in place and NATO

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intends to keep up the pressure on President Milosevic. I hope that that gives the noble Lord the unequivocal assurance which I believe he was seeking.
The noble Lord also asked about the position regarding Russia. NATO does want a real partnership with Russia. We recognise that Russia has some legitimate security concerns and we believe that the signing of the Founding Act in 1997 established the basis of a greater co-operation. I hope that the noble Lord will be reassured to learn that NATO and Russia met at ministerial level in Brussels on 9th December and that there was a highly constructive session; indeed, a very good discussion on serious topics at that time, including Kosovo, NATO's strategic concept and CFE. I hope that that serves as an example of how that relationship between NATO and Russia has developed to one of growing trust in the sort of dialogue that can be had.
I have on many occasions been able to assure noble Lords that this Government are committed to NATO as the cornerstone in establishing and preserving security in Europe. By replacing the previous system of national defence policies in Europe with a strategy of collective
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defence, NATO has for the past 50 years transformed security in Europe. During the Cold War, NATO stood steadfast against the threat and challenge of the Soviet Union and did so with remarkable success. Since 1945, the countries of the alliance have enjoyed peace in Europe.
However, the world has changed and NATO has had to change with it. NATO will shortly welcome three new members to the alliance—the fourth enlargement since 1949. NATO's door remains open for further enlargement. We welcome the interest of aspirant candidates and we, with other NATO members, are committed to helping them grow closer to NATO through practical assistance.
The tasks of the alliance grow more diverse with the changing international circumstances. I believe that the new NATO is capable of meeting those challenges with the help and co-operation of existing and, indeed, new members; and, of course, with NATO's partners. We are committed to peace and security in Europe. Her Majesty's Government will continue to work for that goal.
House adjourned at three minutes past eleven o'clock.