Access to Justice Bill [H.L.]

HL Deb 14 December 1998 vol 595 cc1107-27

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.

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.

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 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.] 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.

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.

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 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.

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.

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 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 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 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 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. 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.

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.

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.

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