Access to Justice Bill [H.L.]

HL Deb 11 February 1999 vol 597 cc329-84

3.33 p.m.

Report received.

Lord Lloyd of Berwick moved Amendment No. 1: Before Clause 1, insert the following new clause—

("Principles to be applied

PRINCIPLES APPLICABLE TO PART I

1. .—(1) Every person exercising functions in connection with this Part must act, so far as possible, in a way which is compatible with the objectives set out in subsection (2)
2. (2)The objectives are—
   1. (a)that persons have access to legal services and the machinery of justice which they would otherwise be unable to obtain on account of their means;
   2. (b)that such access is not to be impaired on account of disability (within the meaning of the Disability Discrimination Act 1995) or the place in England and Wales where any legal services are sought;
   3. (c)that legal services and facilities of high quality be available such that disputes may be resolved, and proceedings determined, expeditiously, fairly and with the parties placed on an equal footing.").

The noble and learned Lord said: My Lords, I beg to move the amendment standing in my name—

Baroness Farrington of Ribbleton

My Lords, I wonder whether noble Lords leaving the Chamber will do so as quietly as possible. The noble and learned Lord, Lord Lloyd of Berwick, is unable to speak to his amendment.

Lord Lloyd of Berwick

My Lords, the amendment is similar to that which I tabled on the first day of the Committee stage. It received support from all sides and perhaps more importantly, it received a favourable response from the noble and learned Lord the Lord Chancellor. I will not remind him of the assurances which he gave on that occasion because I am sure that he has them well in mind.

The main difference between the amendment now proposed and that proposed at the beginning of the Committee stage is in Clause 1(2)(b). The previous amendment required access to justice to be enjoyed without discrimination on any ground. The noble and learned Lord then pointed out that it was on the wide side and it would appear to exclude discrimination on grounds of merit, merely on the grounds that one case was stronger than another. That could not have been intended and would not be right.

The noble and learned Lord agreed with the principle that there should be no discrimination on grounds of race, gender or disability as being a principle worth stating at the outset of Part I. The amendment picks up on the word "disability". Because it may mean different things to different people, we have given it a definition.

In addition, we suggest that there should be no discrimination on what one might call geographical grounds. That is an important point. We have in mind the avoidance of all the available resources being channelled in the direction of the large conurbations. We want to ensure that access to justice is equally available to those living in rural communities. That is especially important in the case of the disabled. It may well be that a potential disabled plaintiff may be able to get to see his solicitor in his nearest town, but unable to get to see his solicitor in Birmingham, Bristol or wherever. The two halves of the amendment tie together in that way. It may be that the amendment is now too narrowly focused and that we have gone to the opposite extreme. However, I hope that as it stands it will be acceptable.

In subsection (2)(c), we have referred to the "quality" of the legal services to be provided. Throughout the debates on the Bill during Second Reading and in Committee the noble and learned Lord the Lord Chancellor rightly laid emphasis on the importance of maintaining the quality of legal services to be provided. Therefore, we have added those words in subsection (2)(c) to ensure that that is an objective under the Bill.

Finally, we have omitted subsection (2)(d), which referred to the need to ensure a strong independent legal profession. The noble and learned Lord the Lord Chancellor pointed out that that is more relevant to Part III and Schedule 5 to the Bill and is hardly relevant to Part I. I respectfully agree and propose to bring forward that proposal when we come to Part III and Schedule 5. Therefore, we are concerned only with subsection (2)(a), (b) and (c) as the objective.

I now turn briefly to the broader considerations which lie behind the proposed amendment. I am sure the whole House will be pleased to see that the noble and learned Lord the Lord Chancellor will be moving an amendment later today to leave out Clause 4 which was much attacked in Committee. Leaving out the clause will be a great improvement to the Bill.

The House will be pleased also to see that the noble and learned Lord the Lord Chancellor has gone some way to meeting the important points made in Committee on the need for a purpose clause setting out the broad objectives of the Bill. However, in place of the broad purpose clause, which some of us hoped for, we now have rather limited objectives which will be set out in Clause 5, to which. Amendment No. 29 relates; Clause 6, to which Amenclment No. 37 relates; and Clause 12, to which Amendment No. 86 relates. For my part, I do not regard those provisions, tucked away and heavily qualified as they are, as being satisfactory. No doubt that will be discussed when we reach the amendments.

My point at this stage is simply to say that what was needed and what we still do not have is a bold statement of the objectives applying to the whole of Part I such as one finds frequently in other Bills and such as we have in Section 1 of the Legal Aid Act 1988. That is surely what the Select Committee had in mind. I apologise for quoting again the part of the report to which I referred on the last occasion where it states: The policy objectives and national principles are not set out in the Bill, which contains no parameters or criteria for the exercise of his powers by the Lord Chancellor, but are simply left to be supplied by directions. We see the setting of objectives and priorities which will have such important consequences for citizens as a legislative act". One also feels sure that such a clause is what the noble and learned Lord the Lord Chief Justice had in mind in his speech on Second Reading. Your Lordships will recall that what he said on that occasion was echoed later in the debate by the noble and learned Lord, Lord Woolf, the Master of the Rolls.

If we split the objectives in the Bill in the way proposed, we shall only create problems for ourselves because some lawyer is sure to be found who will say, "Why is the objective in Clause 5 rather different from that in Clause 12? Surely Parliament must have meant this here and that there." That will lead to endless argument as to the scope of the objective in relation to a particular case. It is much better to have all the objectives put together at the start of the Bill as I had hoped the noble and learned Lord the Lord Chancellor would do.

The dismemberment of the purpose clause which is what will happen if the amendment in the name of the noble and learned Lord the Lord Chancellor is accepted and mine is not, will deprive the purpose clause of part of the point of having such a clause. I beg to move.

Lord Goodhart

My Lords, I shall speak briefly on this amendment because I have little to add. At present, there is no overriding clause in Part I. Clause 5 provides a kind of purpose clause for the community legal service and Clause 12 provides a kind of purpose clause for the criminal defence service. The original versions are still on the face of the Bill and are extremely inadequate. I accept that they are improved by Amendment No. 29 in relation to Clause 5 and by Amendment No. 86 in relation to Clause 12—those amendments being in the name of the noble and learned Lord the Lord Chancellor—but they are still not good enough. The amendment to Clause 5 is limited by the inclusion of the words, within the resources made available". That is not part of the purpose. That is a restriction on the achievement of the purpose. That restriction is unavoidable but it has no place in the purpose clause itself. The proposed new clause is an admirable statement of what should be the purpose of Part I. I strongly support the noble and learned Lord, Lord Lloyd of Berwick.

3.45 p.m.

Lord Clinton-Davis

My Lords, I rise to support what has been said by the noble and learned Lord and the noble Lord opposite because I believe that, if for no other reason, it is a much tidier way in which to approach the question of looking at the objectives of the Bill. It is better to have those objectives right at the beginning of the Bill rather than have them stated in various clauses for which one must look extremely carefully. I fail to see the logic of my noble and learned friend's resistance to what I thought was stated very positively in Committee.

Of course, I shall listen to what my noble and learned friend says. We are, however, discussing a dramatic change and one which should be stated clearly in unequivocal terms right at the beginning of the Bill. Otherwise, it loses much of its point—whether in Clause 5 or anywhere else. I hope that my noble and learned friend will respond positively to the amendment.

Lord Campbell of Alloway

My Lords, I support the amendment. "Every person" means and includes the noble and learned Lord the Lord Chancellor and it is not irrelevant to look at his proposed Amendment No. 27 in that context. And, of course, "every person" includes the commission. Those are the fundamental overriding principles which govern both the Lord Chancellor and the commission. It is absolutely essential that they should be stated at the outset of the Bill.

Lord Kingsland

My Lords, the noble and learned Lord the Lord Chancellor made a very generous statement at the outset of the Committee stage both about the incorporation of a purpose clause and about transforming into regulations the large number of powers about which he had to make directions. It must be said for the noble and learned Lord the Lord Chancellor that he has gone a long way to meeting those undertakings. I know that your Lordships' House is grateful.

However, I am a signatory to the amendment and I endorse entirely what the noble and learned Lord, Lord Lloyd of Berwick, said. It seems to me an unhappy solution to dismember the clause in the way it has been dismembered. But above all, as the noble Lord, Lord Goodhart, said, the clause itself does not contain a clear declaration of purpose. Instead it contains a heavily qualified declaration, a declaration qualified by notions of constraints on resources and the application of priorities which are themselves the substance of Clauses 1 to 12.

The noble and learned Lord the Lord Chancellor has given himself in the Bill an extremely wide range of regulation-making powers. He rightly says that to exercise those powers he will have to come to your Lordships' House. But your Lordships are well aware that, by convention, your Lordships do not vote against statutory instruments containing delegated powers. I know that that obligation is not included in the Parliament Act; nevertheless, it is the convention. Therefore, it falls upon the courts, and the courts alone, to control the executive in this matter. The courts can do that successfully only if they have a clear sense of direction on the face of the Bill.

Lord Windlesham

My Lords, perhaps I may inject a somewhat different line of thought into the discussion before the noble and learned Lord the Lord Chancellor replies. If the purpose clause—that is the phrase that has been used—at the start of a Bill or at different parts of a Bill sets out a statement of objectives, that is a useful and commendable device. But it is not the same as creating a statutory duty to be imposed upon named individuals. That surely is what the formulation so carefully worked out and eloquently proposed by the noble and learned Lord, Lord Lloyd of Berwick does. It states that: Every person exercising functions in connection with this Part"— and it would be possible to identify who those persons are— must act, so far as possible, in a way which is compatible with the objectives set out", in the latter part of the clause. So here we have a specific obligation in the form of a statutory duty.

Statutory duties are rare in legislation. The most well known is in the Race Relations Act 1976. But the issue arose again last year in the Crime and Disorder Bill which contained a statutory duty. It is for that reason that I have an interest in the matter and should like to put the question whether the creation of statutory duties is an inappropriate addition to this Bill, whereas a statement of objectives may well be justified.

The Lord Chancellor: (Lord Irvine of Lairg)

My Lords, Amendment No. 1 is broadly similar to the first amendment which we discussed in Committee and which was moved so ably by the noble and learned Lord, Lord Lloyd of Berwick. Nothing that I say in inviting your Lordships not to accept this amendment should be construed as in any way indicating that I am not in some sympathy with the broad aspirational purposes of the new clause.

In our discussions in Committee I said that I fully accepted the principles underlying the report on this Bill by the Delegated Powers and Deregulation Committee and I undertook to bring forward amendments on Report. I brought forward a great raft of amendments and believe that the broad purposes for which the community legal service and the criminal defence service exist are satisfactorily expressed in those amendments to which your Lordships will come when we consider the third grouping.

I say to my noble friend Lord Clinton-Davis that purpose clauses have no less effect if they address distinct subject matters—the two separate services—and do not appear in Clause 1 but in a later clause.

Amendment No. 1 also deals with the objectives of Part I of the Bill. The natural place for a discussion of those broad issues is within the third group, which your Lordships will consider shortly. The amendment seeks to establish principles or objectives which are to apply to the whole of Part I of the Bill. As I indicated in Committee, and I will make it good later, my preference is for separate clauses setting out the purposes of the community legal service and the criminal defence service. Why? Because that approach better reflects the different nature and objectives of the two schemes. I believe also that that will be a tighter and more effective means of defining what the legal services commission will do and what directions and orders the Lord Chancellor may give separately in relation to each scheme.

So, under the approach I shall be proposing later, all the decisions and actions of the legal services commission will have to be consistent with the defined purposes of the community legal service or the criminal defence service, as the case may be. Therefore, the Lord Chancellor will only be able to order or direct the commission to do things that are consistent with the relevant purposes.

To all that we will come more fully shortly. But perhaps I may deal briefly with the details of the objectives listed in Amendment No. 1. I repeat, I am not for one second suggesting that I am out of sympathy with the broad aspirational purposes of the amendment, but I cannot accept them as a formulation that meets what is required for the objectives of the Bill.

Objective (a) reads, that persons have access to legal services and the machinery of justice which they would otherwise be unable to obtain on account of their means". Legal aid is subject to eligibility limits and I rather think that this objective does not take account of that. It is unfortunately the case that many who have incomes in excess of the eligibility limits do not have the means to afford to commence litigation. But I doubt that the first proposed objective recognises that.

I have not ignored the words in the proposed clause, "so far as possible"; but the proposed objective is drafted unrealistically and the words, "so far as possible" are far too vague and not justiciable in context. Also, objectives of this kind are calculated to create false and unrealistic expectations. The two purpose clauses which I propose in Amendments Nos. 29 and 86 cover this issue in a way that is realistic and we will come to that argument later.

Objective (b) reads, that such access is not to be impaired on account of disability (within the meaning of the Disability Discrimination Act 1995)". I have difficulty in seeing why discrimination on the grounds of disability—though I am as great an opponent as any of discrimination on those grounds—is singled out by contrast with the other forms of discrimination which exist in society. Also objective (b) is about access and the first part of objective (c) relates to quality. I am confident that the reforms set in train by this Bill will improve both, but the two objectives could pull in different directions. In the context of the limited resources available for the community legal service, they will also have to be balanced against considerations of cost. The objective in Subsection (1)(c) is: that legal services and facilities of high quality be available such that disputes may be resolved, and proceedings determined, expeditiously, fairly"— I emphasise the next words—

and with the parties placed on an equal footing". I believe that my proposed purpose clause for the criminal defence service, which speaks of the interests of justice, covers that point adequately. As regards the community legal service, I believe that that objective may place too much emphasis on proceedings and disputes, but its underlying purpose is adequately and realistically met by the reference in my purpose clause to services that can meet people's needs.

More particularly as regards the objective in paragraph(c), the words. and with the parties placed on an equal footing", are simply unrealistic. There is no way, and it is unrealistic to suggest, that the state could put those that it assists on an equal footing with what money can buy when lawyers in the private sector command fees which the market will bear.

Therefore, with the best will in the world for the general aspirations which inspire these objectives, I cannot accept them as setting out at the outset of the Bill a satisfactory or realistic set of objectives to govern its whole purpose.

4 p.m.

Lord Lloyd of Berwick

My lords, perhaps I may mention briefly the point made by the noble Lord, Lord Windlesham. Yes, indeed, there are differences between objective or purpose causes which do not impose a.statutory duty and those which do. This one clearly does and is meant to do so. Persons who have duties to perform under Part I of the Bill will be obliged under the amendment to act in accordance with these broad objectives.

Lord Windlesham

My Lords, perhaps the noble and learned Lord will forgive me for interrupting him at the start of his winding-up speech. Is there to be any enforcement procedure and, if so, what will it be?

Lord Lloyd of Berwick

My Lords, the procedure will be the same as in any other case;that is, by way of judicial review to the High Court. If it can be shown that the person making the decision had disregarded an objective to which it was his statutory duty to have regard, that decision could be upset.

I thank the noble and learned Lord the Lord Chancellor. He is in sympathy with what he calls the aspirational purpose of the amendment. He said so on more than one occasion in his reply. For our part, we believe that we have gone all the way to meet the difficulties which he foresaw when the amendment was proposed in Committee. At present, we see no reason why he should not accept the amendment as it stands. I emphasise that this is not just a question of my words against his words. It may look that, especially to non-lawyers, but there is an important point of principle here. For that reason I seek the opinion of the House.

4.3 p.m.

On Question, Whether the said amendment (No. 1) shall be agreed to?

Their Lordships divided: Contents, 182; Not-Contents, 111.

Division No. 1
CONTENTS
Ackner, L.	Dundee, E
Addington, L.	Dundonald, E
Ailsa, M.	Eames, L
Alderdice, L;	Ellenborough, L
Aldington, L	Eiles, B
Alexander of Tunis, E	Ezra, L
Allenby of Megiddo, V	Falkland, V
Anelay of St. Johns, B	Fookes, B
Annaly, L	Fraser of Carmyllile, L.
Archer of Weston-Super-Mare, L.	Gage, V.
Ashbourne, L.	Gainford, L.
Astor, V.	Gardner of Parkes, B.
Astor of Hever, L.	Gladwyn, L.
Attlee, E.	Glasgow, E.
Avebury, L.	Goodhart, L.
Bath, M.	Gormanston, V.
Beaumont of Whitley, L.	Granard, E.
Belstead, L.	Gray of Contin, L.
Bethell, L.	Greenway, L.
Biddulph, L.	Halsbury, E.
Biffen, L.	Hanningfield, L.
Birdwood, L.	Harding of Petherton, L.
Blatch, B.	Harmsworth, L.
Bramall, L.	Harris of Greenwich, L.
Bridges, L.	Hayhoe, L.
Broadbridge, L.	Henley, L.[Teller.].
Brougham and Vaux, L.	Holderness, L.
Butterworth, L.	Holme of Cheltenham, L.
Byford, B.	HolmPatrick, L.
Calverley, L.	Hood, V.
Campbell of Alloway, L.	Hurd of Westwell, L.
Carew, L.	Hussey of North Bradley, L.
Carlisle, E.	Hutchinson of Lullington, L.
Carlisle of Bucklow, L.	Hylton-Foster, B.
Carnegy of Lour, B.	Ilchester, E.
Carnock, L.	Iveagh, E.
Cavendish of Furness, L.	Jenkin of Roding, L.
Charteris of Amisfield, L.	Jenkins of Hillhead, L.
Chesham, L.	Jopling, L.
Chorley, L.	Kingsland, L.
Clark of Kempston, L.	Kinloss, Ly.
Clemet-Jones, L.	Knollys, V.
Cobbold, L.	Lamont of Lerwick, L.
Coleraine, L.	Lauderdale, E.
Coleridge, L.	Leigh, L.
Cowdrey of Tonbridge, L.	Liverpool, E.
Cox, B.	Lloyd of Berwick, L. [Teller.].
Craigavon, V.	Long, V.
Cranborne, V.	Lucas of Chilworth, L.
Crickhowell, L.	Ludford, B.
Davidson, V.	Lyell, L.
Davies, L.	McColl of Dulwich, L.
Dean of Harptree, L.	Mackay of Ardbrecknish, L.
Denbigh, E.	Mackay of Drumadoon, L.
Denham, L.	MacLaurin of Knebworth, L.
Dholakia, L.	Macleod of Borve, B.
Dilhorne, V.	Mar and Kellie, E.
Dixon-Smith, L.	Mayhew of Twysden, L.
Dudley, E.	Miller of Hendon, B.

Molyneaux of Killead, L.	Rawlinson of Ewell, L.
Monk Bretton, L.	Renton, L.
Monteagle of Brandon, L.	Renwick, L.
Montgomery of Alamein, V.	Rodgers of Quarry Bank, L.
Morris, L.	Rowallan, L.
Mountevans, L.	Runciman of Doxford, V.
Mowbray and Stourton, L.	Russell, E.
Moyne, L.	St Davids, V.
Munster, E.	Seccombe, B.
Murton of Lindisfarne, L.	Sharp of Guildford, B.
Napier and Ettrick, L.	Shaw of Northstead, L.
Napier of Magdâla, L.	Simon of Glaisdale, L.
Nelson, E.	Skelmersdale, L.
Newall, L.	Strange, B.
Newby, L.	Strathcarron, L.
Noel-Buxton, L.	Strathclyde, L.
Northesk, E.	Strathcona and Mount Royal, L.
Norton of Louth, L.	Swinfen, L.
Nunburnholme, L.	Taverne, L.
O'Cathain, B.	Thomas of Gresford, L.
Ogmore, L.	Thomas of Walliswood, B.
Oliver of Aylmerton, L.	Thomson of Monifieth, L.
Pearson of Rannoch, L.	Tope, L.
Pender, L.	Tordoff, L.
Phillips of Sudbury, L.	Torrington, V.
Pilkington of Oxenford, L.	Trefgarne, L.
Platt of Writtle, B.	Vivian, L.
Plummer of St. Marylebone, L.	Waddington, L.
Quinton, L.	Warnock, B.
Rankeillour, L.	Westbury, L.
Rathcavan, L.	Wilcox, B.
Rawlings, B.	Young, B.
NOT-CONTENTS
Acton, L.	Hacking, L.
Ahmed, L.	Hanworth, V.
Ailesbury, M.	Hardie, L.
Alli, L.	Hardy of Wath, L.
Amos, B.	Harris of Haringey, L.
Archer of Sandwell, L.	Haskel, L.
Ashley of Stoke, L.	Hayman, B.
Bach, L.	Hilton of Eggardon, B.
Bassam of Brighton, L.	Hollis of Heigham, B.
Berkeley, L.	Howie of Troon, L.
Blackstone, B.	Hoyle, L.
Borrie, L.	Hughes,L.
Bragg, L.	Hughes of Woodside, L.
Brooke of Alverthorpe, L.	Hunt of Kings Heath, L.
Brookman, L.	Irvine of Lairg, L. [Lord Chancellor.].
Bruce of Donington, L.
Burlison, L.	Janner of Braunstone, L.
Carter, L. [Teller.].	Jay of paddington, B [Lord Privy Seal
Castle of Blackburn, B.
Christopher, L.	Jeger, B.
Clarke of Hampstead, L.	Jenkins of Putney, L.
Clinton-Davis, L.	Judd, L.
Cocks of Hartcliffe, L.	Kirkhill, L
Crawley, B.	Levy, L.
David, B.	Lovell-Davis, L.
Davies of Oldham, L.	McIntosh of Haringey, L
Desai, L.	[Teller]
Diamond, L	Mackenzie of Framwellgate, L.
Donoughue, L.	McNair, L.
Dormand of Easington, L.	Mallalieu, B.
Dubs, L.	Merlyn-Rees, L.
Falconer of Thoroton, L.	Milner of Leeds, L.
Farrington of Ribbleton, B.	Molloy, L.
Fiit, L.	Monkswell, L.
Gilbert, L.	Montague of Oxford, L.
Gladwin of Clee, L.	Morris of Castle Morris, L.
Glanusk, L.	Morris of Manchester, L.
Goudie, B.	Peston, L.
Gould of Potternewton, B.	Pitkeathley, B.
Graham of Edmonton, L.	Plant of Highfield, L.
Grenfell, L.	Ponsonby of Shulbrede, L.

Prys-Davies, L.	Strafford, E.
Puttnam, L.	Symons of Vernham Dean, B.
Ramsay of Cartvale, B.	Taylor of Blackburn, L.
Rea, L.	Tenby, V..
Sainsbury of Turville, L.	Thornton, B.
Scotland of Asthal, B.	Thurlow, L.
Serota, B.	Turner of Camden, B.
Sewel, L.	Uddin, B.
Shannon, E.	Warner, L.
Shepherd, L.	Wedderburn of Charlton, L.
Shore of Stepney, L.	Whitty, L.
Simon, V.	Williams of Elvel, L.
Simon of Highbury, L.	Williams of Mostyn, L.
Smith of Gilmorehill, B.	Winchilsea and Nottingham, E.
Stallard, L.	Wrenbury, L.
Strabolgi, L.	Young of Old scone, B.

Resolved in the affirmative, and amendment agreed to accordingly.

4.14 p.m.

Clause 1 [The Legal Services Commission]

Lord Clinton-Davis moved Amendment No. 2:

Page 2, line 3, at end insert— ("( ) The Commission shall include at least one solicitor, one barrister, and one representative of consumers each of whom shall have knowledge of the provision of services which the Commission can fund, appointed after consultation with the Law Society, the General Council of the Bar, and organisations representing consumers, respectively.").

The noble Lord said: My Lords, in moving this amendment it may be for the convenience of the House if we also discuss Amendment No. 5. At the outset may I very much welcome my noble and learned friend's amendment. I believe that it is what the Committee clearly wanted when we debated the matter. I hope that he will be benign as regards my amendment.

I know not with what unique cry of joy the noble Baroness, Lady Wilcox, will appreciate the amendment that she has won. She inspired the whole Committee recently with her rather unusual exclamation. Unfortunately, the Bill currently contains no provision on the part of the Government to consult representative bodies before making appointments to the commission. It is important that there should be consultation.

Perhaps I may say initially that people who are members of the commission are not there in any delegate status, but as those with expertise in their particular field just as members of the Civil Aviation Authority are not there as delegates. So it is not uncommon for committees or commissions of this character to be peopled by members of that kind.

It is very important to ensure that people who come on to the commission with the necessary expertise are people of considerable calibre. The professional and consumer bodies concerned have a particular role in helping to ensure that that objective is reached. For example, the professional bodies would become directly aware of advertisements which my noble and learned friend will place in relation to the appointments. In turn, they can play their part in ensuring, on a perfectly reasonable, equitable and competitive basis, that suitable candidates come forward. They can play a real part not only in doing that, but also in encouraging people to come forward to fill the positions. I cannot see why my noble friends should resist that. It is usually part and parcel of the process of government to engage in such consultations, so why not ensure that that duty appears on the face of the Bill. I beg to move.

Lord Renton

My Lords, on this occasion, and perhaps unexpectedly for your Lordships, I find myself sympathising more with the amendments tabled in this group by the noble and learned Lord the Lord Chancellor than with that moved by the noble Lord, Lord Clinton-Davis, and supported by others. As regards consumers, Amendment No. 5 will enable them to be inserted in Clause 1. As it is already drafted, the clause enables the members of the legal profession to be included. Indeed, in subsection (5) there is express provision saying that the members of the commission must contain those, with experience in or knowledge of— (a) the provision of services which the Commission can fund as part of the Community Legal Service or Criminal Defence Service", and, (b) the work of the courts". Bearing in mind that the Lord Chancellor will have the power to appoint as many as 12 members to the Commission, it should be kept flexible instead of tying it down, as proposed in this amendment, to at least one barrister and one solicitor and, in the next amendment, to at least two solicitors and one barrister. If I may say so on this occasion I think the noble and learned Lord the Lord Chancellor has not only got it right but from the drafting point of view, it is more succinct.

Lord Borrie

My Lords, I feel very much in accord with what the noble Lord, Lord Renton, says. It is unfortunate if one has the lack of flexibility which seems to arise from the amendment we are discussing because specific organisations are mentioned. Once you mention specific organisations to the exclusion of others, there is a reduction of flexibility. In the case of consumer organisations or—to adopt the expression that is used—"organisations representing consumers", questions spring to mind. One may say that the National Consumer Council and the Consumers' Association must be within that category. But what about the National Association of Citizens Advice Bureaux? Perhaps because their remit is broader citizens advice bureaux may not be considered consumer organisations. Therefore a problem of interpretation arises. It seems to me that the amendments of the noble and learned Lord the Lord Chancellor present a much more satisfactory solution to the problem of ensuring representation than the amendment we are discussing, and the subsequent amendment.

Lord Phillips of Sudbury

My Lords, Amendment No. 3 stands in my name and that of my noble friend Lord Goodhart. I counter the points made by the noble Lords. Lord Borrie and Lord Renton, by reference to the Courts and Legal Services Act 1990. Section 19 of that Act, which will be repealed by this Bill, specifies that the Lord Chancellor's Advisory Committee on Legal Education and Conduct should comprise up to 16 members. It sets out specifically who they will be. Of the 16, two are to be practising barristers, two are to be practising solicitors, one a judge and two, shall be persons with experience in the teaching of law". The remaining nine members of the committee were to come from, approximately speaking, the same classes of person as set out in the relevant part of Clause 1 of the Bill. What this amendment seeks to do is to put back into the, if you like, compulsory part of the composition of the legal services commission barristers and solicitors, two and two respectively in the case of Amendment No. 2, and two solicitors and one barrister in the case of my amendment. That is not in any way to reflect ill upon my brethren at the Bar but is simply a reflection of the fact that under the Bill a vastly larger number of solicitors will be engaged in the practicalities of the delivery of legal services than will be the case for barristers.

Lord Renton

My Lords, as the noble Lord was not a Member of your Lordships' House at the time, I hope he will not mind my mentioning that even lawyers who were supporters on the government side on that important statute did not agree with all the detail in that Act. Indeed, from time to time some of us moved amendments of a contrary nature. I cannot say that we did so on this matter, but I would not like to feel that that was necessarily the kind of precedent which binds us.

Lord Phillips of Sudbury

My Lords, I thank the noble Lord, Lord Renton, for that piece of history which I cannot gainsay. However, I shall not be deterred from suggesting that it is not inappropriate that up to a quarter of the commission to be appointed under the Bill should come from the ranks of practising solicitors and barristers. They carry overwhelmingly the greatest burden of delivery of legal aid services. That will not be altered even though, as we all hope, the process of bringing into the legal aid scheme some of the voluntary bodies envisaged by the Bill proceeds rapidly. Therefore, from a practical point of view, I think it is not inappropriate—I hope your Lordships will agree—that at least one anchors into this important commission four (or, in my case, three) practising members of the legal profession on whose shoulders the success or failure of the provisions of the Bill will principally rest.

Baroness Thornton

My Lords, I wish to speak in opposition to the amendment standing in the name of my noble friend Lord Clinton-Davis and that in the name of the noble Lord, Lord Phillips of Sudbury, and in support of the amendment proposed by the noble and learned Lord the Lord Chancellor, which, as we all know, originated in the amendment tabled by the noble Baroness, Lady Wilcox, which was supported by myself and many others at the time.

Consumer interests are at the heart of this Bill and their inclusion is wholly to be welcomed. The composition of the legal services commission and how it is appointed is surely intimately linked with how it discharges its job. That is why it is important not to appoint people as direct representatives of particular organisations or causes. We have all served on bodies—

Lord Clinton-Davis

My Lords, I am obliged to my noble friend for giving way. The whole purpose of what I was saying was that they would not be there as delegates or representatives. They would be there—whether as lawyers, consumers or whatever—as people with particular expertise to offer, just as happens in many other cases where bodies of this kind are set up.

Baroness Thornton

My Lords, I thank my noble friend for his comments. However, the point at issue is which way one faces when one is appointed to a body. That is the point I seek to make. It is legitimate to represent the interests of an organisation on a body to which you are appointed and indeed to fight for its corner. However, in this case we do not want people who wish to fight the corner of a particular organisation and to whom they owe their primary loyalty. Surely we need people on the commission whose primary concern is the work of the commission and its tasks. I want people who are expert and experienced in these matters, who are skilled at listening and consulting. I want people who act only in the best interests of the commission and I want people who in particular do not look over their shoulders to check whether they should or should not adopt a particular position because of the interests they serve. I fully expect, and welcome the fact, that solicitors, barristers and others will be represented on the commission, as they should be. However, I think they should be appointed through the same public appointment system as everyone else. I believe such a procedure would strengthen the commission.

Baroness Wilcox

My Lords, I support Amendments Nos. 4 and 5. The noble and learned Lord the Lord Chancellor kindly sent me the wording following the Committee stage when I withdrew my own amendment on the promise that I would get what I asked for, which I have. I am absolutely delighted by that. I have read the wording carefully. The provision now states, includes members who (between them) have experience in or knowledge of". I am happy with that. If I have calculated correctly, I believe that on line 9 of page 2 consumer affairs have been moved slightly up the list. They are not at the very bottom where I thought they would be put when I tabled my own amendment. I am pleased about that. I am sure that the House will also be pleased to note this further indication of how seriously the noble and learned Lord the Lord Chancellor is considering the input of the end users of courts and legal services. I am happy to support the amendment.

The Lord Chancellor

My Lords, with your Lordships' leave, I shall speak also to Amendments Nos. 3, 4 and 5 which are grouped with Amendment No. 2.

The amendments proposed by the noble Lords, Lord Clinton-Davis and Lord Phillips of Sudbury, would add requirements to the appointment of members of the legal services commission under Clause 1(4). They are aimed at ensuring that the interests of the legal professions and consumers are represented on the commission by reserving seats on the commission for solicitors, a barrister and a consumer representative, and by introducing a specific requirement for consultation with particular bodies before such appointments are made. The only substantive difference that I can see between the two amendments is that my noble friend Lord Clinton-Davis seeks to reserve a seat on the commission for only one solicitor, while the noble Lords, Lord Phillips and Lord Goodhart, are even kinder to solicitors and seek to reserve seats for two of them. The Government's intentions on the composition of the commission are indicated in Clause 1(5).

Lord Archer of Sandwell

My Lords, before my noble and learned friend leaves that first point, I am sure he would not wish to misrepresent my noble friend Lord Clinton-Davis who said he was not concerned that the interests of the legal profession should be represented but that the expertise derived from that practice should be represented. Does my noble and learned friend agree that if one is selecting the England football team it might be wise to provide that there should be at least one person on the committee who plays football?

Lord Clinton-Davis

Certainly after last night!

4.30 p.m.

The Lord Chancellor

My Lords, I can easily distinguish intellectually between the expertise which solicitors would bring and the interests that they might serve, but many members of the public might regard that as a rather nice distinction.

The categories of expertise which are set out in subsection (5) are designed to ensure that the commission is informed about the nature of the services that will be provided under the community legal service and the criminal defence service; the interplay between the provision of services and the work of the courts; the social environment in which it will be providing legal services; and good management practice.

The Legal Aid Act 1988 requires the appointment of two solicitors to the Legal Aid Board, and points to the desirability of also appointing two barristers. But this is 1999. Times have moved on. The role of the legal services commission will be quite different from that of the Legal Aid Board. It therefore calls for a different composition. The lack of a requirement for a specified number of lawyers among the members of the commission reflects the shift in focus from the needs of providers of legal services towards the needs of users.

The Bill is drafted so as to secure that appointments to the legal services commission are appropriate to the functions of the commission. However, I can reassure my noble and learned friend Lord Archer of Sandwell that lawyer membership on the commission is by no mean precluded. Indeed, it is envisaged that he commission will include members who represent both providers and consumers of the services the commission will provide. Paragraph (a) specifically points to the desirability of including on the commission members with experience in or knowledge of the provision of services which the commission can fund. I would envisage that solicitors and barristers might well fall into that category, as indeed, equally, might advisors from the voluntary sector. I shall turn to the question of representation on the commission of someone with special knowledge of consumer affairs in a moment.

As I made clear in response to similar amendments in Committee, the Government intend that all appointments to the legal services commission will be made in accordance with the Nolan Committee's recommendations on public appointments and the Office for the Commissioner of Public Appointments' Guidance on Appointments to Executive Non-Departmental Public Bodies and NHS Bodies. There will therefore be an opportunity for professional and consumer bodies to nominate candidates for appointment, and we hope they will do so. But to require consultation with a broad range of bodies on the merits of proposed appointments prior to the appointment being made would be time consuming, costly and unnecessary and—indeed, I go further—likely to discourage applicants. On that basis, I invite the noble Lords to withdraw their amendments.

The first government amendment in this group is a drafting amendment, intended to clarify that the members of the legal services commission should include persons who. between them, have experience in, or knowledge of, the various matters specified in Clause 1(5). The second government amendment adds "consumer affairs" to the categories of experience and knowledge already set out in Clause 1(5)(a) to (d).

The first government amendment addresses a point raised in Committee by the noble and learned Lord, Lord Simon of Glaisdale. He was concerned that the current drafting of Clause 1(5) might imply that the Commission should include an individual having experience in or knowledge of all of the categories specified. I undertook to refer this point to the draftsman, and I think that the amendment now before your Lordships makes the position clear beyond doubt. I am pleased to see the noble and learned Lord nodding his head in agreement. I am grateful to the noble and learned Lord for bringing this matter to the attention of the House.

The second government amendment is in response to an amendment moved in Committee by the noble Baroness, Lady Wilcox. She put forward forceful arguments for making clear on the face of the Bill the desirability of including on the legal services commission a person with knowledge or experience of consumer affairs. Her arguments were widely supported around the House, including from these Benches. As I have said, the Government firmly intend that the focus of the legal services commission should be on the needs of users, rather than providers, of the legal services to be provided by the community legal service and the criminal defence service. It has always been our intention to reflect the interests of consumers in the membership of the commission, and for that reason we have accepted that this intention should appear on the face of the Bill.

Lord Clinton-Davis

My Lords, I do not think that there is too much between my noble and learned friend and myself. However, I think there is a grotesque misunderstanding on the part of my noble friend Baroness Thornton, who cannot recognise a situation where people come forward to serve on certain bodies like this without having any powers imposed on them or provided for them by the professional bodies to which they belong. Indeed, I do not know how she views any lawyers who might be appointed by my noble and learned friend in that regard. Would they have a prior duty to the Bar Council or the Law Society? There is no distinction about that. People play a distinguished part in committees of this kind without being delegates. I have sufficient experience of that situation, particularly in the field of aviation.

When my noble and learned friend says that there will be too many people to consult, with respect, I do not think that is right. I certainly do not think that this is a fundamental difference between us—it can be done and it should be done. I said before that the Nolan principles would apply in a fair competition. That is a duty laid on my noble and learned friend in any event. But when he says that the provision requiring consultation with professional bodies would have the effect of impairing people from coming forward from professional bodies, I really cannot accept that at all. For my purposes, I think that it would help the Government to ensure that the best qualified people come forward. It is not to embarrass the Government or to impair the choice of candidates coming forward at all. However, having said that, I certainly do not intend to press the matter to a Division. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 3 not moved.]

The Lord Chancellor moved Amendment No. 4: Page 2, line 6, leave out ("persons with") and insert ("members who (between them) have").

On Question, amendment agreed to.

The Lord Chancellor moved Amendment No. 5: Page 2, line 9, at end insert— ("( ) consumer affairs,").

On Question, amendment agreed to

Schedule 1 [The Legal Services Commission]:

Lord Simon of Glaisdale

My Lords, before my noble and learned friend rises to move this amendment, may I point out that it is grouped with a great number of other amendments, one of which, Amendment No. 26, stands in my name and raises a quite different and separate issue. It has been inconveniently grouped. It is my fault; I failed to attend the grouping conference.

It seems to me that the amendment goes also with Amendment No. 27, which is in the name of my noble and learned friend the Lord Chancellor, and probably also with Amendment No. 28, which I greatly welcome. My intervention is merely to indicate that I shall be moving Amendment No. 26 separately.

The Lord Chancellor

My Lords, that is the privilege of the noble and learned Lord in due time. At the appropriate point in the course of my speech on all the amendments in the next grouping, I shall endeavour to deal, I hope to the noble and learned Lord's satisfaction, with Amendment No. 26.

The Lord Chancellor moved Amendment No. 6: Page 51, line 32, leave out ("direct") and insert ("require").

The noble and learned Lord said: My Lords, this is a very substantial group of amendments. I propose, with your Lordships' leave, to speak to all the amendments in the group. They are Amendments Nos. 6 to 12, 14, 18, 22, 26 to 32, 35, 39, 41, 42, 46, 54, 55, 72, 76, 77, 86, 96, 99, 132, 133, 136, 137, 138, 190 and 191. I am not in the least surprised, after putting forward the grouping, that the noble and learned Lord, Lord Simon of Glaisdale, was in a little bit of a muddle as regards finding his Amendment No. 26.

In Committee I undertook to bring forward amendments with a view to giving effect to the recommendations of the Select Committee on Delegated Powers and Deregulation. The government amendments in this group redeem that undertaking. The group also includes amendments tabled by other noble Lords. I have already referred to Amendments Nos. 26 and 41. Taken together, these amendments define the broad purpose of the community legal service and of the criminal defence service separately. Having regard to our earlier discussions on Amendment No. 1, I would say at the outset that focused purposes for these distinct services with their distinct objectives are better, more precise and more helpful than broad general purposes at the outset of the Bill as a whole.

The amendments also set out on the face of the Bill the kinds of directions that the Lord Chancellor may give to the legal services commission and, where appropriate, subject those directions and the commissioners' funding code to parliamentary approval. In working out the detail of these changes, I have tried to strike the right balance between parliamentary scrutiny and administrative flexibility.

During our discussion in Committee I said, in welcoming the Select Committee's report: I support the principle underlying the committee's recommendations that powers, if I may express myself generally, of an administrative character do not require parliamentary scrutiny. But those which deal with matters of principle and substance and which are of a major legislative character should be subject to parliamentary procedures appropriate to their importance".— [Official Report, 19/1/99; cols. 483–84.] That is an important principle, but it is also important to avoid an excessive degree of scrutiny. That is not only wasteful of parliamentary time that could better be spent on other issues, but it also builds an element of inflexibility into the administration of the scheme in question, which can prevent or delay desirable improvements.

During the Committee stage several of your Lordships, in particular the noble and learned Lord, Lord Simon of Glaisdale, chided me about my use of the word "flexibility". I make no apology for using that word. Legal aid is a complex system which has to operate across the country where there is a fractured and geographically uneven range of legal services available. To rationalise and to meet geographically distinct needs calls for flexibility, not rigidity. The community legal service opens up the scheme to non-lawyer providers and will involve new methods for procuring services.

The legal services commission will therefore have substantial discretion to develop and administer the community legal service and the criminal defence service in the way it thinks best. That makes it particularly important to ensure that the commission is sufficiently independent of government. I very much agree with what my noble and learned friend Lord Archer of Sandwell said in Committee, that the legal services commission should have not just a separate legal identity but also a personality and ideas of its own. But again there is a balance to be struck. An independent body should not be able to spend substantial sums of public money virtually untrammelled by the need to have regard to the policies and priorities of the government of the day, not least because it is ultimately Ministers who must answer to Parliament for the use to which that public money is put.

I hope that your Lordships will consider my detailed proposals against this background and feel able to agree that they strike the right balance between prescription and flexibility and independence and control.

I now turn to the amendments. I shall deal, first, with those that relate to the objectives of the two new schemes. I reserve for later discussion the purpose of Part III of the Bill. Amendment No. 29 contains the purpose clause for the community legal service. As amended, Clause 5(1) would read: The Commission shall establish, maintain and develop a service known as the Community Legal Service for the purpose of promoting the availability to individuals of services of the descriptions specified in subsection (1A) and, in particular, for securing (within the resources made available, and priorities set, in accordance with this Part) that individuals have access to services of a type and quality appropriate to meet their needs". Clause 5(1A) would then list the broad range of services that fell within the scope of the community legal service, as currently listed in Clause 5(1)(a) to (e).

The amended clause establishes, first, that the overall purpose of the community legal service is to improve the availability to the public of legal services in the widest sense of that term. The structure of the clause is designed to reflect the fact that the legal services commission will play two key roles in developing the community legal service. First, it will take the lead in developing the wider community legal service by co-ordinating the efforts of various bodies which fund services to identify need and priorities, to plan the provision of funding and to assure quality.

The second part of the clause, from the words "in particular", focuses on the commission's second role of funding services directly. The words chosen are intended to encapsulate the essence of the new scheme, which is to seek to use a given amount of money to the best possible effect. I welcome the fact that in our debates at earlier stages few if any of your Lordships sought seriously to question the iron fact of life that the resources available for this purpose are limited. It follows that the scheme must be capable of identifying and targeting priorities and pursuing value for money and that the services provided should be sufficient but not excessive to meet the need effectively. The drafting is also intended to reflect that a necessary component in seeking the best overall outcome with limited resources is to strike a balance between access in the sense of geographic coverage, quality, choice and price.

Amendment No. 86 would amend the purpose of the criminal defence service in Clause 12(1) to read: The commission shall establish, maintain and develop a service known as the Criminal Defence Service for the purpose of securing that individuals involved in criminal investigations or criminal proceedings have access to such advice, assistance and representation as the interests of justice require". This makes it clear that we intend the criminal defence service to provide substantially mere than is required by our obligations under the European Convention on Human Rights. The convention, by Article 6(3)(a), requires that legal assistance is provided free of charge to people charged with a criminal offence who cannot afford to pay for it themselves, when the interests of justice require it. The criminal defence service will also encompass the provision of advice and assistance to suspects arrested by the police and in such other circumstances as may be prescribed in Clause 13(1)(b). We intend to prescribe all the relevant circumstances for which legally-aided advice and assistance is available now; including, for example, people voluntarily helping the police with their enquiries. The amended purpose would make the provision of advice and assistance in these circumstances subject to the same interests of justice principle that the European Convention applies to representation at court.

The effect of the amended clause will be that the commission must have regard to the interests of justice in all its decisions and actions in relation to the criminal defence service. This would include, for example, its decisions about the form and nature of the advice and assistance it should fund under Clause 13(1) and its actions in pursuit of value for money under Clause 17(3).

The noble and learned Lord, Lord Ackner, drew particular attention to these two clauses in Committee, but I would assure him that, given Amendment No. 86, it is neither necessary nor desirable to refer specifically to the interests of justice in these clauses. To do so there alone might throw doubt on whether the interests of justice were equally relevant in other places. The alternative would be to attach these words to virtually every proposition in Clauses 12 to 17. I feel sure that the noble and learned Lord, Lord Simon of Glaisdale, would not welcome that approach, and I imagine also that the noble and learned Lord, Lord Ackner, will be content. I rather feel that if he were not content he would be in his place, and he is not.

The overall effect of the two-purpose clauses is to constrain the actions of the legal services commission to those which are consistent with the purpose of the community legal service or the criminal defence service as the case may be. This applies equally to actions that the commission takes on its own initiative and any actions which the Lord Chancellor may direct it to take. That is why the draftsman has not found it necessary to state specifically that directions must be consistent with the purpose of the relevant scheme.

I now turn to the amendments relating to the Lord Chancellor's powers to direct the commission. As it stands, Clause 4 empowers the Lord Chancellor to give directions and guidance to the commission about any matter relating to the discharge of its functions, other than in relation to an individual case. Amendment No. 28 strikes out Clause 4 and Amendment No. 132 reinstates it at a different point in relation to guidance. Several other amendments in my name then seek to specify the Lord Chancellor's powers to require the commission to act (or refrain from acting) in a particular way, either in the form of directions or in the form of orders subject to Parliamentary approval. Amendment No. 136 makes the directions subject to the same limitations as before: that is, they may not relate to individual cases, and they must be published.

The Lord Chancellor's powers to direct or order the commission remain wide-ranging, and necessarily so. But there is no longer an all-embracing catch-all power: the Lord Chancellor may not make directions about matters which are not specified on the face of the Bill. The powers as redefined in these amendments fall into four broad categories. First, there are powers to direct the commission about purely administrative matters, such as the form of its accounts. These powers relate mainly to issues of transparency and accountability: it is not intended that the Lord Chancellor should interfere in the internal management of the commission.

As it stands, Schedule 1 to the Bill already refers specifically to three powers in this category: in paragraphs 9(4), 15(4) and 16(2). Amendments Nos. 11, 14 and 18 complete the picture by specifying three further powers relating to the commission's committees and the contents of its annual plan and report. I emphasise that the latter powers enable the Lord Chancellor to direct the commission to deal with additional matters in the plan or report: he cannot require them to leave things out. The Delegated Powers and Deregulation Committee accepted that administrative directions of this kind did not require parliamentary scrutiny.

My second category consists of directions about priorities for funding services from the community legal services fund. These powers will enable the Lord Chancellor, each year, to set the broad framework of national priorities within which the commission is to draw up its plans. Clause 7(1) allows the Lord Chancellor to set priorities in general terms; Clause 6(4) allows him to specify how much within the overall fund should be spent on particular categories of service or case; and Clause 7(7) allows him to identify unusual circumstances in which funding should be available in generally excluded categories. As I indicated in Committee, I do not believe it appropriate for decisions about the detailed allocation of money already voted by Parliament to be subject to a further round of parliamentary approval; least of all, if I may say so, in your Lordships' House. As I said then: The accountability for those matters is already adequately provided through general ministerial accountability to Parliament and, in my view, that is not appropriate for secondary legislation."— [Official Report, 19/1/99; col. 518.] I would add that directions under Clause 7(7), by which the Lord Chancellor may extend (but not reduce) scope, may often be urgent. For those reasons I believe it remains appropriate to deal with these matters in directions rather than orders. Amendment No. 41, standing in the names of the noble Lords, Lord Goodhart and Lord Thomas of Gresford, takes the opposite approach. On the basis of the explanation I have given, I ask them to consider not moving it.

Amendment No. 55 extends the scope of the power provided by Clause 7(7). It would allow the Lord Chancellor to authorise, but not require, the commission to fund an exceptional individual case in a category generally excluded from scope by Schedule 2. The amendment makes clear that the initiative would lie with the commission, which could seek the Lord Chancellor's authority when an exceptional case presented itself. This amendment is intended to ensure that provision can be made in wholly exceptional circumstances, while preserving the important principle that the Executive should not be able to interfere in individual cases.

My third category consists of directions about how the commission should, or should not, carry out its principal functions—that is to say, identifying need and planning provision to meet that need; kitemarking providers who meet quality standards; and procuring services through contracts or other means. Amendments Nos. 27, 35, 46, 96, 99 and 105 provide for orders, subject to the negative resolution procedure, about how the commission should carry out these functions. The last of these, Amendment No. 105, is not included in this group because it also deals with other issues which it will be more convenient to discuss later.

Generally, our intention is that the commission should be left to decide the best way to carry out its functions. These are, for the most part, in the nature of reserve powers for the Lord Chancellor. In practice, they may be rarely used. But it is possible to envisage a range of situations in which powers of this kind would potentially be useful or necessary. For example, when the commission is first set up it may be useful to make an order requiring it to develop its kitemarking function in a way that builds on the work that will already have been undertaken with other funders of services to develop common quality criteria. Or the Lord Chancellor may wish to order the commission to begin to pilot and develop contracts of a particular type. Similarly, the commission may wish, essentially for reasons of administrative convenience, always to incorporate the cost of advocacy within contracts with solicitors' firms, but the Lord Chancellor may think that, in some circumstances, this carries too great a risk of diminishing the quality of advocacy available and may order the commission to contract directly with barristers' chambers or other groupings of barristers. Or, again, the Lord Chancellor may use the power to limit the proportion of services in a given category that the commission can provide through its own employees.

The uses to which these powers could be put are potentially very wide. In practice, however, they would be used from time to time to promote relatively uncontroversial but useful developments in the ways in which the commission undertakes its functions. I believe that the negative procedure provides sufficient scrutiny of this kind of order whereas, because of the constraints on parliamentary time, the affirmative procedure might hold up useful change.

I pause briefly at this point to claim the attention of the noble and learned Lord, Lord Simon of Glaisdale, regarding Amendment No. 26 standing in his name. It seeks to amend Clause 3(4) concerning delegation of the commission's functions. I am sure that the noble and learned Lord intends to argue that it is an unnecessary statement of the obvious. I invite his attention to my Amendment No. 27 which also amends Clause 3(4) and seeks to make it clearer not only that the commission may delegate its functions, but also that the Lord Chancellor may make orders about when and how the commission shall or shall not do so. For example, an order might specify the monitoring arrangements and other safeguards that should be in place before the commission sought to delegate the task of making assessments under the funding code to contracted providers.

My fourth and final category relates to requirements that the Lord Chancellor may wish to impose about the contents of the funding code. He might, for example, require the commission in drawing up the code to consider additional factors under Clause 9(2)(h) or he might require it to give more or less weight to one of the existing factors in a given category of case. Requirements of this kind would relate directly to the ability of individual applicants to obtain funding and would frequently raise issues of important principle. Therefore, Amendment No. 138 makes such requirements subject to order by way of affirmative resolution.

I should mention in passing that Amendment No. 138 also applies the affirmative approval procedure to the power of the Lord Chancellor in paragraph 6(3) of Schedule 3 to add new factors or vary the paragraph 6(2) factors which must be taken into account under the interests of justice rubric.

I turn finally to the procedure for preparing and approving the funding code. I said in Committee: While I accept that certainly the first draft of the code should be affirmed by affirmative procedure, I wish to consider carefully how we can achieve proper scrutiny"— I was referring here to scrutiny of subsequent amendments to the code— of those parts of the code that are significant, without wasting the time of the House on those parts that are not significant."—[Official Report, 19/1/99; col. 486.] Amendment No. 76 requires the commission to undertake appropriate consultations when drafting or amending the code. Amendment No. 77 provides for an affirmative resolution before the code first comes into effect and again for any subsequent changes to the criteria set out in:he code. Parliamentary approval is not, however, required for amendments to the code that affect the procedures for making applications and challenging refusals applications, and any guidance to decision-makers that the code may include.

The amendment also provides for an exceptional procedure so that urgent changes can take effect without delay. This procedure is only available for changes initiated by the commission itself. All changes imposed by the Lord Chancellor by order will require affirmative resolution before taking effect. The amendment would allow the Lord Chancellor to certify a change as urgent. I have in mind, for example, changes that may be necessary to take account of a court judgment. That change would then take effect immediately but fall after 120 days if not confirmed by affirmative resolution. A similar procedure was adopted in the Human Rights Act in relation to remedial orders to amend statutes held to be incompatible with the European Convention on Human Rights.

Many of the other amendments in this group are consequential drafting changes.

I apologise to the House for the length at which it has been necessary to explain this complex set of changes but they are critical for the scheme of the Bill as a whole. On the basis of that explanation, I ask other noble Lords with amendments in this group not to move them. I beg to move

Lord Goodhart

My Lords, this massive group includes my Amendment No. 41. I wish to speak to that as well as responding to the noble and learned Lord the Lord Chancellor on his amendments.

In relation to the Bill as originally drafted there was very wide criticism of the extent of the powers of the Lord Chancellor to control the legal services commission and the community legal service without any reference back to Parliament. As the noble and learned Lord the Lord Chancellor explained, those criticisms came in particular from the Select Committee on Delegated Powers and Deregulation. On the first day in Committee the noble and learned Lord accepted the force of those criticisms and has now tabled a large number of amendments to meet them. To a large extent, we believe that his amendments meet the criticisms. For that reason, we give them a warm welcome. Indeed, we support all the amendments which the noble and learned Lord has put down in this group.

However, we also believe that there is one major omission from the amendments which Amendment No. 41 aims to correct. Clause 7(1) requires the commission to set priorities in the funding of services by the community legal service in accordance with directions given by the Lord Chancellor. There is no requirement that those directions should receive parliamentary approval. However, the setting of priorities is perhaps the most important power of all the powers given to the Lord Chancellor by the Bill. The Select Committee on Delegated Powers and Deregulation referred to the Lord Chancellor's direction-making powers under the original Bill and commented on them, in paragraph 4 of its report, as follows: The explanatory notes state … that the purpose of these provisions is to establish a flexible mechanism by which the Lord Chancellor can ensure that the Commission discharges its functions in a way that meets the government's policy objectives and, in particular, that it allocates the resources of the Community Service Fund according to 'national priorities'. The Committee sees such very wide-ranging power to give direction as a legislative power. The policy objectives and national principles are not set out in the bill, which contains no parameters or criteria for the exercise of his powers by the Lord Chancellor, but are simply left to be supplied by directions. We see the setting of objectives and priorities which will have such important consequences for citizens as a legislative act". I do not dispute that the Government are entitled to set priorities. But in doing so, they are, as the Select Committee said, legislating. It is, I believe an appropriate and necessary case for secondary legislation. Amendment No. 41 which I put down is somewhat generous to the Government in that it requires only the negative procedure. I do not know how the noble and learned Lord the Lord Chancellor envisages that he will give directions to the commission about priorities. I hope and expect that he does not envisage a stream of directions given on a daily or weekly basis to the commission. I assume that the priorities will be changed relatively infrequently.

At the Committee stage, the noble and learned Lord referred to the National Health Service as a comparable case and said that NHS priorities are not set out in regulations. That is correct, but I do not believe that the NHS is a fair comparison. NHS priorities are much less explicit and far more operational. I am not aware of any reference in the NHS legislation on the setting of priorities

The second and more important difference between the NHS and the community legal service is that the Government have a conflict of interest in deciding what are the priorities for the community legal service. For example, by directing that a low priority he given to cases of judicial review or cases under the Human Rights Act, the Government would plainly be acting in their own interest. No such conflict arises in the case of the National Health Service.

I believe it is essential that parliamentary control over the setting of priorities by the Lord Chancellor should be retained by requiring the directions which set the priorities to be given in the form of a statutory instrument. That is what Amendment No. 41 provides.

5.15 p.m.

Lord Archer of Sandwell

My Lords, I rise for two purposes: first, to thank my noble and learned friend for responding so fully to the anxieties that I, among others, expressed at Committee stage; secondly, to confess that, save as to one matter, I am content. The one matter is Amendment No. 41 referred to by the noble Lord, Lord Goodhart.

At Committee, some of us thought that the kind of policy issues with which Amendment No. 41 is concerned might have been better set out in primary legislation. I ventured to set down an amendment listing some of the objectives which I thought might be included. Quite rightly, my noble and learned friend said. first, that some might be open to detailed objections; secondly, that it was probably not the best way of approaching the subject. I am happy to accept now that it is something that can properly be done in secondary legislation.

However, as a member of the Select Committee, like the noble Lord, Lord Goodhart, I still endorse what the Select Committee said. It was that on matters of this kind which amount to legislation there ought to be parliamentary control. I hope that my noble and learned friend will think about that one matter again.

Lord Kingsland

My Lords, I support what the noble and learned Lord, Lord Archer of Sandwell, said. It seems to me that if one puts Clause 6(4) and Clause 7(1) in the context of the amendment put down by the noble and learned Lord the Lord Chancellor, Amendment No. 29 (his proposed purpose clause for the community legal service), it is difficult to understand how his direction-making powers could be subject to judicial control in any circumstances.

I listened carefully to the way in which the noble and learned Lord described the four categories of direction-making powers and why it was appropriate to retain them in the Bill. To some extent, I can see the force of his argument about the second category of those powers. Clearly, because it is linked to both financial constraints and political decisions, the establishment every year of priorities in the last resort, is a matter for a politician to decide. If the noble and learned Lord the Lord Chancellor does not think that delegated legislation rather than directions is appropriate, what other form of political control does he say he will put in place? First, if the purpose clause does not bite judicially, and, second, if there is to be no statutory instrument, then, unless there is some clear parliamentary control of a more general nature, the Lord Chancellor's discretion in the area is controlled by no one.

The Lord Chancellor

My Lords, I am not persuaded by the noble Lord, Lord Goodhart, and will not, therefore, accept Amendment No. 41. I largely agree with the way in which he approaches the issue, however. The question is whether you categorise it as a legislative matter or a day-to-day matter of administration appropriate for the executive. I make the general proposition that a parliamentary chamber would act quite inappropriately if it sought to assume executive powers over the day-to-day administration of the scheme.

What do directions about priorities deal with? The detailed breakdown between different categories of a sum of money that will already have been voted by Parliament within the scope of a scheme as defined in legislation. What it amounts to in substance is an exercise in setting budgets. That is, par excellence, an administrative act. I submit that it would be quite inappropriate for a legislative chamber to take that kind of administrative decision into its own hands. It confuses the respective spheres of a legislative chamber and the executive. Therefore, I do not accept the amendment.

Lord Kingsland

My Lords, before the noble and learned Lord sits down, does he accept that the purpose of Parliament, including your Lordships' House, is not only to scrutinise legislation but also to control the acts and decisions of the executive?

The Lord Chancellor

My Lords, the scope of the functions of the legislature is to lay down by legislation appropriate powers for the executive to exercise. That may be in accordance with standards defined by legislation. But my judgment is that here to seek to assume by affirmative means the power to regulate budgetary allocations within moneys voted by Parliament for statutory purposes is for the legislature to seek to overreach itself.

Lord Simon of Glaisdale

My Lords, does the noble and learned Lord—

The Lord Chancellor

My Lords, I do not give way yet. If your Lordships accept the amendment it would be within the powers of Parliament to pass it. My point, however, is that it would be an inappropriate assumption of legislative power over what is naturally an executive function.

On Question, amendment agreed to.

Amendments Nos. 7 to 12 agreed to.

Lord Simon of Glaisdale moved Amendment No. 13: Page 52, leave out lines 41 to 43.

The noble and learned Lord said: My Lords, Amendment No. 13 relates to Schedule 1. Paragraph 12 deals with the proceedings of the commission. The opening paragraph constitutes the legal services commission as a body corporate; that is to say, a corporation aggregate. The sub-paragraph that I seek to leave out provides: (5) the validity of any proceedings of the Commission or of any committee appointed by the Commission shall not be affected by any vacancy among its members or by any defect in the appointment of any member". That provision is completely unnecessary because there is a fundamental rule that bodies corporate (corporations aggregate) can act effectively by a majority. Obviously, as long as there is a majority it does not matter in the least if some of the members are invalidly appointed or, for that matter, there is a vacancy. The point can very easily be seen by considering the most usual form of body corporate these days: a limited liability company. No one has ever suggested—it would be quite absurd to do so—that, for example, if one of the directors had died, or a shareholder was in the course of transferring his shares to somebody else but the transaction had not been completed, the proceedings of the limited liability company would thereby be invalidated.

We come to the question of how far it is desirable to clutter up the statute book with unnecessary provisions that the existing law amply takes care of. My noble and learned friend the Lord Chancellor referred briefly to this matter in his speech on the previous amendment; namely, that if there was an unnecessary provision in one place it drew attention to, and founded an argument for, its absence from another. Apart from that, it is expensive to add words to the statute book. We go on expanding and expanding. The Government are in favour of bearing down on inflation, quite rightly, but not when it comes to the inflation of statutory language. As to that, they tend to spread themselves.

In addition to the expense of producing extra pages, drawing on the cost of secretaries, typists, civil servants, Ministers, printers and book-binders, enormous expenditure is involved if an extra volume is added to the statutes in force. They are extremely expensive. I indicated in Committee how the statute book had not only enlarged in format but increased in its number of volumes since the Renton Committee in 1975 drew attention to the prolixity and over-elaboration that had been the subject of criticism.

In addition, every unnecessary provision will found an argument. The noble and learned Lord, Lord Falconer, propounded what might be termed the Falconer syndrome; namely, that one had to think of every argument however far-fetched and fatuous and forestall it. If one places extra unnecessary words in a statute it merely gives greater scope to the Falconer syndrome. I beg to move.

The Minister of State, Cabinet Office (Lord Falconer of Thoroton)

My Lords. I thought that the whole point of this provision was to get rid of the Falconer syndrome on the basis that to put in a provision of this kind will prevent lawyers from making the appalling points that the noble and learned Lord describes. I recall that we have had this debate once before. I have been involved in it only once but it may have happened on a number of occasions.

Lord Simon of Glaisdale

My Lords, the noble and learned Lord will recall that it arose in the previous Session. I cannot be prevented from raising it again in a subsequent Session when the lesson has not been learnt.

Lord Falconer of Thoroton

My Lords, I am sorry if my tone suggests that I complain about it. I certainly do not complain about this matter being raised again. I recall that in the context of the Government of Wales Bill the issue was whether or not the proceedings of the Welsh Assembly could be affected by one or other member not being present. We debated the very same point there. The same arguments were run by the noble and learned Lord. My response to the noble and learned Lord will not be as bleak as on the previous occasion. I invite the noble and learned Lord to withdraw the amendment on the basis that I shall invite the parliamentary draftsman to consider his views. The Lord Chancellor will then consider the position once the parliamentary draftsman has given him his response. They will consider the position in relation to the question: is this provision necessary or not?

I hope that on that basis the noble and learned Lord will withdraw the amendment with a slightly greater degree of enthusiasm than he has on previous occasions.

5.30 p.m.

Lord Simon of Glaisdale

My Lords, since the last Session, the noble and learned Lord has had ample time to consider whether the point is good. I am grateful for his offer to write to me, and I am glad that the Lord Chancellor and the parliamentary draftsman will consider it. However, it is simply not good enough. No one knows better than the noble and learned Lord—he is an admired lawyer—that the provision is entirely unnecessary because the law takes care of it.

I understood the noble and learned Lord to chide me because I again raised the point. I do not apologise for doing so because after time a lesson is learnt. When I gave evidence to the Renton Committee, I drew its attention to the extraordinary provision in the National Insurance Act 1946. It stated: For the purpose of this Part of the Schedule a person over pensionable age, not being an insured person, shall he treated as an employed person if he would be an insured person were he under pensionable age and would be an employed person were he an insured person". I happen to know the very able draftsman who drafted that statute. Knowing him, I believe that he understood what he wrote. However, I am quite certain that no one else did. One does not stop there. That provision was repeated in national insurance Act after national insurance Act and still no one understood what it was about. But after much hilarity, it disappeared from the statute book in subsequent national insurance Acts—and no one was a penny the worse. No one sought to argue, as the noble and learned Lord, Lord Falconer, so much fears, that its disappearance would give rise to a new series of arguments. I apologise for completing my sentence. I give way.

Lord Falconer of Thoroton

My Lords, the noble and learned Lord chides me for not having a view on this issue having had the holidays to think about it since the last Session. It is a matter for the Lord Chancellor's Department. It would like to convey the point that had the noble and learned Lord put down his amendment before yesterday he might have had a firmer response.

Lord Simon of Glaisdale

My Lords, I apologise that I raise it a further time. I put down the amendment only when I saw the amendment of my noble and learned friend the Lord Chancellor on the schedule. It prompted me again to raise the point. However, I fancy that the noble and learned Lord knows perfectly well the answer. He knows that the provision is unnecessary because a vacancy in a body corporate cannot possibly affect the validity of its proceedings providing there is still a majority.

Having derived comfort from what happened in the National Insurance Act, I cannot promise that I shall not continue to raise the point until any government manage to summon up their courage and get rid of this unnecessary provision. In the meantime, although full of hope, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord McIntosh of Haringey moved Amendment No. 14: Page 53, line 12, at end insert— ("( ) The Lord Chancellor may by direction require the Commission to deal with the matters specified in the direction in reports, or a particular report, under this paragraph.").

On Question, amendment agreed to.

Lord Archer of Sandwell moved Amendment No. 15: Page 53, line 12, at end insert— ("( ) In relation to services funded from the Community Legal Service Fund the report shall specify—

1. (a) a detailed breakdown of the types of case for which advice and assistance was granted, and the implied hours worked,
2. (b) the number of applications for assistance received,
3. (c) the number of cases for which assistance was granted or refused, and on what grounds,
4. (d) the number of appeals against refusal, and the outcome of such appeals,
5. (e) financial information about eligibility and contributions.").

The noble and learned Lord said: My Lords, in moving the amendment, it may be for your Lordships' convenience if we debate Amendments Nos. 16, 17, 19, 20 and 21. We seem to have reached my amendment in what I think I detect as a period of rising governmental "receptivity". I can only hope.

The legal services commission will be required to publish an annual report. That is very much to be applauded. But its utility depends upon the information it contains. Paragraph 14 of Schedule 1 sets out what it is to contain. I paraphrase. The information required is how the commission has funded services from the community legal service fund; how it has funded services as part of the criminal defence service; and how it has exercised its other functions. That is a widely embracing provision but it can hardly be said to be specific. At present the Legal Aid Board publishes an annual report which is very informative and extremely helpful. It tells us the types of case in which aid and assistance have been granted, what applications were refused, and on what grounds. We are told the numbers and types of case where certificates were issued, the numbers of applications received, which were refused, on what grounds, the number of appeals against refusal and the outcome of the appeals. There is detailed financial information about eligibility and contributions, details about the outcome of cases, average costs, and the operation of the statutory charge. There are details about the implied hours worked.

That has greatly helped everyone, in particular the NGOs and academics, to monitor the workings of the system. From the year 2003 all legal aid work will be done under exclusive contracts, as I understand it. One consequence of that is that many of the decisions now taken by the Legal Aid Board—and, when the Bill is first introduced, by the legal services commission—will in effect be devolved to individual suppliers. For example, under contracts negotiated on a fixed cost per case basis the supplier may decide that he can make the contract pay only by a process of cherry picking. Clients who may occupy more time may not be offered assistance. My noble and learned friend Lord Clinton-Davis—

Lord Clinton-Davis

I am not "learned".

Lord Archer of Sandwell

My Lords, I apologise to my noble friend for calling him "learned". Technically, I agree he is not "learned". He, and the noble Lord, Lord Phillips, at an earlier stage of our deliberations, warned of that possible outcome. I do not say that that will necessarily happen, but we do not know. My noble and learned friend the Lord Chancellor does not believe that it will. He says, and repeated it a few moments ago, that if it does he will take action. But how will we know unless we have the information collected centrally in a statistical form?

The Legal Aid Board in its paper Legal Aid—Targeting Need, which it produced in response to the previous government's Green Paper, stated at page 58: Contracted suppliers should be required to record decisions to reject an identified client's case together with the reasons for doing so. Such decisions could then be monitored…to provide the Board with information about the extent to which clients were being turned away". I hope that my noble and learned friend will recognise the need for this information, if only so that he can be satisfied that he was right all along and that our anxieties were groundless. I beg to move.

Lord Goodhart

My Lords, this group of amendments includes Amendment No. 17 standing in my name and that of my noble friend Lord Phillips of Sudbury. I shall speak briefly because it is not the most important amendment we are discussing tonight.

Under Clause 5(4), the commission must inform itself about the need for services and must plan what can be done towards meeting that need. Under paragraph 15 of Schedule 1, the commission prepares a plan setting out how it intends to fund the services in the community legal service fund, plus the criminal defence service and the exercise of its other functions. That will then be published. Since it then has a duty to prepare a plan for publication, surely it would be appropriate to require that plan to include the assessment of need upon which the plan is based.

5.45 p.m.

The Lord Chancellor

My Lords, with the leave of the House, I shall speak to Amendment No. 15, to Amendments Nos. 16, 19, 20 and 21 standing in my name, and to Amendment No. 17 in the name of the noble Lords, Lord Goodhart and Lord Phillips of Sudbury. They deal with the annual report and annual plan of the legal services commission. The amendment tabled by my noble and learned friend Lord Archer of Sandwell would require the legal services commission to provide in its annual report specified information in relation to services funded from the community legal service fund. Although as I develop the submission your Lordships will find evidenced a rising governmental receptivity, it has not yet arisen because I believe that the amendment would lead to an unnecessary amount of detail on the face of the Bill on the content of one part of the annual report.

Included in the. large group of amendments we recently debated was an amendment giving the Lord Chancellor power, by direction, to require the commission to deal in its annual report with matters specified in the direction. This direction-making power will ensure that the commission's annual reports provide necessary and relevant information about its performance of its functions. I envisage that the commission's annual reports will provide a level of detail similar to that currently provided by the Legal Aid Board in its annual report, but tailored to the particular functions of the commission. No details for the annual report of the Legal Aid Board are set in statute. I envisage that much of the information specified in my noble and learned friend's amendment would be provided in the commission's annual report, as would other information which he has not specified.

There will clearly be a need for the commission's annual report to give details of the services it has provided and its use of different methods of funding across its areas of responsibility. It will also provide other information, such as comparison of planned and actual use of the commission's resources. However, to specify on the face of the Bill the particular matters mentioned in the noble and learned Lord's amendment would imply that those matters had particular weight, when there is other information which we would wish to see provided which should be given equal or greater weight.

Furthermore, some of the particular further information he has specified is not quite in the form that we would wish to see and some others cause problems of definition. For example, a requirement for information about implied hours worked would preclude some methods of contracting which might otherwise provide good value for money for the taxpayer, but not be based on an assumed number of hours or an hourly rate. Information about grounds for refusal of assistance might be difficult to ascertain for cases which do not proceed beyond a very early stage when it might be unclear whether or not they have entered the system. Financial information about eligibility and contributions might relate to national estimates or factual information about individual applications. For those reasons, it is preferable for the content of the commission's annual report to be dealt with under the direction-making power to which I have referred. On that basis, I invite my noble and learned friend to withdraw his amendment.

The first government amendment in the group to which I speak with your Lordships' leave would make clear that the commission will publish its annual report once it has been laid before Parliament. This will ensure that the annual report is Trade widely available by the commission, as is now the case with the annual report of the Legal Aid Board.

I turn to the commission's annual plan. The amendment in the name of the noble Lords, Lord Goodhart and Lord Phillips of Sudbury, would add a specific requirement for the commission to set out in its plan the results of its assessment of the need for services to be provided through the community legal service. It has always been our intention that the annual plan should summarise the findings of the regional legal services committees' "regional strategies", which will themselves have been published in full following wide consultation, and it seems to me to be desirable for this intention to be reflected on the face of the Bill. However, I would wish to have an opportunity to seek the draftsman's view on the precise wording and then to table a government amendment in accordance with the principle of the noble Lords' proposed amendment.

In response to an amendment moved by the noble Lord, Lord Kingsland, in Committee, I undertook to table amendments to require the Lord Chancellor, when laying the annual report of the legal services commission before Parliament, to accompany it with a statement of his reasons for departing in any material respect from the commission's draft plan. The remaining government amendments in this group are intended to achieve that objective and so to provide greater transparency for the Lord Chancellor's role in the commission's planning process.

The amendments would put in place a procedure for the Lord Chancellor's approval of the commission's annual plan which avoids unnecessary delay, but delivers the degree of transparency I undertook to provide. Under this procedure, the commission would prepare its plan and send it to the Lord Chancellor. The Lord Chancellor would then either approve the plan and lay it before Parliament before the commission published it, or, if the Lord Chancellor did not approve it, he would direct the commission to revise it by way of a published direction setting out his reasons for not approving the plan. The commission would then make the revisions and send the revised plan to the Lord Chancellor who would lay it before Parliament before the commission published it. I envisage that the published plan would have appended to it any directions under which it had been revised. With that amendment, I apprehend that the noble Lord, Lord Kingsland, will be content.

Lord Archer of Sandwell

My Lords, I was going to offer my noble and learned friend a deal. I would welcome his amendments and he would accept mine. But he has indicated that it is hoped we shall get our information even though it is not in the Bill. My fly did not attract a salmon but I shall settle for a sea trout. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Carter

My Lords, before we move to the next amendment, it may be for the convenience of the House if I say that at a convenient moment after 7 p.m., my noble friend Lord Gilbert will, with the leave of the House, repeat a Statement that is being made in another place on Kosovo.

The Lord Chancellor moved Amendment No. 16: Page 53, line 14, at end insert ("and the Commission shall publish a report once it has been so laid.").

On Question, amendment agreed to.

[Amendment No. 17 not moved.]

The Lord Chancellor moved Amendments Nos. 18 to 22: Page 53, line 25, at end insert— ("( ) The Lord Chancellor may by direction require the Commission to deal with the matters specified in the direction in plans, or a particular plan, under sub-paragraph (1)."). Page 53, line 28, leave out from ("shall") to end of line 29 and insert ("lay a copy before each House of Parliament and the Commission shall publish the plan once it has been so laid."). Page 53, line 30, leave out from ("shall") to ("it") in line 31 and insert ("by direction require the Commission to revise it in accordance with the direction; and the direction shall include the Lord Chancellor's reasons for not approving the plan. ( ) When the Commission has revised the plan"). Page 53, line 33, at end insert ("and the Commission shall publish the revised plan once it has been so laid."). Page 53, line 38, leave out ("direct") and insert ("specify by direction given to the Commission").

On Question, amendments agreed to.

Clause 3 [Powers of Commission]:

Lord Simon of Glaisdale moved Amendment No. 23: Page 2, line 37, at end insert ("in such manner as is available to a trustee").

The noble and learned Lord said: My Lords, this pursues a matter I raised in Committee. This is partly a probing amendment. Clause 3 deals with the powers of the commission and subsection (1), putting it broadly, says that it can do anything. Subsection (2) says that in particular it shall have power in paragraph (d) "to invest money" and subsection (3) says that that does not extend to a, power to borrow money or to acquire or hold shares in bodies corporate Amendment No. 23 seeks to add to the words "to invest money" the words, in such manner as in available to a trustee". Amendment No. 25, which is grouped with this amendment, seeks to excise the words, or to acquire or hold shares in bodies corporate". Practically the only thing which is certain is that the Bill as it stands is wrong. It gives the commission power to invest in everything without exception except shares in bodies corporate, including blue chip shares. Apparently, it can invest in futures in Singapore or property during a property boom which brought another merchant bank almost to its knees. Although it can invest in, for example, metals on the Metal Exchange, on the face of it it cannot invest in blue chips.

My noble and learned friend Lord Brightman tells me that as regards trustees the governing authority is still the 1961 Act for which I was parliamentarily responsible. I have had plenty of time to forget whatever I knew then. Until then a trustee could only invest in gilt-edged shares. That was very much to the detriment of the remainder man, although it was safe for the life tenant. So roughly what the 1961 Act did was to allow a trustee to invest half in gilt-edged and half in trustee securities, including, for example, blue chip shares. That is what is suggested here.

My noble and learned friend the Lord Chancellor very helpfully wrote to me on the matter. I received the letter only just before this stage. He seems to suggest that although my description is right and the commission can invest in virtually anything other than shares, nevertheless it was safe because the accounting officer of the commission is bound by a Treasury directive not to speculate.

If that is the only sanction, that simply will not do. It means that what we are doing on the face of the statute is to confer unlimited powers and then to rely on an official, subject to a Treasury direction, not to exploit the powers given. We are legislators and as a Parliament we are bound to get it right on the face of the statute. I beg to move.

Lord Brightman

My Lords, I support this amendment. I find Clause 3 most peculiar. I object to it as a matter of drafting. It says that the commission may invest money except in the shares of companies. As a matter of judicial interpretation, it is clear that to invest money means to apply money in the acquisition of any asset, an asset of any description, with a view to income or capital appreciation. It follows, as my noble and learned friend said, that the commission is given power, for example, to invest in the units of an emerging markets unit trust; for example, a unit trust specialising in Russia or Indonesia. Such trusts would qualify for the commission's spare money. But the commission would have no power to invest in the shares of ICI. The commission would have power to invest in soya bean futures but not in the shares of British Gas.

I do not suggest for a moment that the commission would be so dotty as to invest in soya bean futures. I am merely saying that as a matter of drafting, Clause 3 is very peculiar. What is the point of forbidding equities if you authorise unit trusts? What is the logic behind the power so drawn? Would it not be better to give the commission a power of investment equivalent to the statutory power of investment available to trustees, as suggested by my noble and learned friend.

I am not sure what power of investment is needed. I should have thought it would be sufficient for the commission's spare money to be put on deposit at the bank so that it is available when needed. But I suggest that we do not want to send Clause 3 to the other place saying, "We think this is right; this is the best we can do". I ask the noble and learned Lord the Lord Chancellor to consider referring this matter back to his drafting team.

6 p.m.

Lord Falconer of Thoroton

My Lords, these amendments relate to the powers of the legal services commission to invest money. Amendment No. 23 would limit the commission's power to invest money so that it could do so only in such manner as is available to a trustee. Amendment No. 25 would remove from the Bill the restriction which would specifically prevent the commission acquiring or holding shares in bodies corporate.

In Committee, the noble and learned Lord, Lord Simon of Glaisdale, questioned the reason for preventing the commission investing in equities. He suggested that the commission should have powers to invest similar to those of a trustee. He also suggested that, given that the Bill does not prevent the commission investing in property, it would be odd if it prevented it investing in shares in bodies corporate. The noble and learned Lord the Lord Chancellor considered carefully the points made about the commission's powers to invest, and wrote to the noble and learned Lord, Lord Simon, setting out his views.

It is true that there is no specific provision in the Bill which prevents the commission investing in property. But, under Clause 3(1), the commission's powers, including its power to invest money, exist only in the context of the discharge of its functions. Under the principles of government accounting, the commission's accounting officer would be responsible for ensuring that the funds for which he or she is responsible are applied only to the extent and for the purposes authorised by Parliament. I can foresee no circumstances in which speculative investment of any kind, whether in equities, in property or otherwise, could be shown to assist the commission in discharging its functions, and therefore to be for a purpose authorised by Parliament. Indeed, it is a matter of general principle that non-departmental public bodies, such as the commission will be, should not put Exchequer funds into speculative investments; this would not be consistent with the general requirement on NDPB accounting officers for "prudent" administration, set out in Treasury guidance. Any form of speculative investment by the commission would therefore be quite improper.

Lord Simon of Glaisdale

My Lords, it would be improper but it would be legal on the face of the statute, would it not?

Lord Falconer of Thoroton

My Lords, it would be subject to judicial review if the commission began to invest speculatively. To that extent I would say, tentatively, that it would not be legal.

I cannot accept the noble and learned Lord's amendment to give the power of a trustee. That would specifically envisage investments, albeit safe, by a trustee of a speculative nature and that is plainly not what is being considered. The noble and learned Lords exchange knowing glances.

Lord Simon of Glaisdale

My Lords, my noble and learned friend Lord Brightman shook his head.

Lord Falconer of Thoroton

My Lords, any movement of the head of the noble and learned Lord, Lord Brightman, is to be regarded with some significance. I will defer to anything the noble and learned Lord, Lord Brightman, says, but it seems to me that a trustee is entitled to invest in appropriate equities with a view to making money out of the investment and in conditional terms that may be a speculation, in the sense that there is a risk that the shares may go up or down. That is not something that is forbidden to a trustee.

The position of the commission will be quite different from that of a trustee; it will have responsibility for administering a sizeable sum of public money, forecast to be £1.67 billion in 2000–2001. It must do so prudently; that means that speculative investment of any kind, such as that open to a trustee, is not open to the commission. I therefore invite the noble and learned Lord to withdraw his first amendment.

In the light of the further consideration resulting from the point the noble and learned Lord made, the Lord Chancellor thought again about the restriction currently contained in Clause 3(3) of the Bill, which is the subject of Amendment No. 25. While it is correct that the commission must not acquire or hold shares in bodies corporate, a specific restriction on the face of the Bill is unnecessary because of the general requirements on NDPBs to which I have already referred. Indeed—I believe this is the point made by the noble and learned Lord, Lord Brightman—the specific restriction is perhaps misleading, because there are other forms of speculative investment in which it would be equally improper for the commission to be involved: speculative investment in property, for example. I am therefore content that, in the interests of clarity, consistency and brevity, the specific restriction regarding the acquisition or holding of shares in bodies corporate by the commission should not appear on the face of the Bill. That and similar matters can be dealt with satisfactorily in the Financial Memorandum between my department and the commission. I therefore accept Amendment No. 25 and hope that I have managed to meet the concerns of the noble and learned Lord.

Lord Simon of Glaisdale

My Lords, I am grateful to the noble and learned Lord for accepting Amendment No. 25 and for, as always, the extremely agreeable way in which he replies, even when he does not accept the amendment. I believe he realises that on the point where my noble and learned friend—who is a transcendent expert on this matter—shook his head, the noble and learned Lord, Lord Falconer of Thoroton, was not right.

I am not wedded to the term "a trustee" but it must be wrong, for the reasons that my noble and learned friend Lord Brightman gave, for us to be legislating to give almost unlimited powers and relying on a Financial Memorandum from the Lord Chancellor's Department to the commission, and the Treasury guidance that governs all accounting officers, to limit what is given on the face of the statute.

I shall seek to return to that matter because I hope that my noble and learned friend the Lord Chancellor will reconsider it and try to bring the powers that are given into line with the powers that are needed and that will be operated. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Clinton-Davis moved Amendment No. 24: Page 2, line 43, at end insert (", and (h) to pay fees and disbursements on account by way of loans to solicitors and barristers.").

The noble Lord said: My Lords, Amendment No. 24 seeks to ensure that the legal services commission will be able to go on making payments on account to solicitors and barristers in respect of work done and disbursements incurred. It is different from other amendments with which we shall be dealing later, though it, too, deals with disbursements.

The payments on account, as I indicated in earlier debates and as is known to practising lawyers in the House, were introduced because it was considered to be unreasonable to make lawyers wait until the end of a case before receiving any payment. It was an imposition upon their ability to function effectively without undue overdraft facilities, and so on. Indeed, it replicated the practice in privately funded cases, which still goes on, whereby disbursements are invariably collected by the solicitor from the client. When the legal services commission enters into contracts with practitioners, those contracts may well provide for payment on a regular basis, at regular stages, rather than requiring lawyers to wait until the conclusion of the case before payment is made. In my submission, it is important to ensure that payment on account can be made in cases funded on an individual basis. This provision would put the matter beyond all doubt.

This is a matter of considerable importance to those who presently practise in the area of legal aid work. By and large, they are not practices which are well capitalised. The requirement in the Bill would add to the need to obtain overdraft facilities—it would duplicate that—and would indirectly create a burden for the client as well as for the solicitor. I am not suggesting the amendment in order simply to reward the solicitor in some misbegotten way; what I am suggesting is an essential element of being able to carry on a practice in the sort of firms to which I have alluded in earlier debates. I refer to high-street firms which would be severely embarrassed if the amendment is not passed. I beg to move.

Lord Borrie

My Lords, with due respect to my noble friend, I should like to express a feeling of some discomfort about the amendment. I know that my noble friend did not emphasise the word "loans", but that word does appear in the amendment. The purpose of the clause is the use of public funds to enable people to finance their legal claims, not to assist the providers of legal services.

In so far as loans may be made by the commission to solicitors or barristers, I ask: at what rate? If loans are to be made at the commercial rate, I point out that lawyers, assuming that they are always (or almost always) credit-worthy, can obtain loans in the normal way, just like anybody else. If, on the other hand, my noble friend is suggesting that a rate lower than the commercial rate should be charged, that would be a subsidy to lawyers at public expense. As I have said, the purpose of these provisions is to enable taxpayers' money, through the commission, to be made available to people who might otherwise be unable to pursue claims; it is not to assist lawyers.

In an effort to be constructive, perhaps I may ask my noble friend whether he has considered the Credit Unions Act 1979. In a consultation paper, the Government propose to make that law and the creation of credit unions more flexible. Even under the present law, there is surely no doubt, to use the words in the Act, that solicitors have a common bond between them. Surely barristers have a common bond. Perhaps my noble friend would consider that as a constructive way in which loans at rather less than normal commercial rates obtainable from banks might be available to solicitors and barristers.

I am not expressing outright opposition to a proposition which my noble friend puts forward on a reasonable basis, but I am questioning whether it has been adequately thought through.

6.15 p.m.

Lord Meston

My Lords, I declare an interest as someone who is a grateful beneficiary of the payment-on-account scheme. I do not regard this as a debate about loans, but see this as an opportunity (provided by the noble Lord, Lord Clinton-Davis, and his amendment) to ask for confirmation from the Government that the payment-on-account scheme, or something like it, will be preserved under the Bill. It is a fact that many lawyers in practice depend on the scheme for their existence and credit arrangements. For many of us, it is, frankly, the lifeblood by which we are able to continue in practice. I hope, therefore, that the Government will give an indication—either with regard to this amendment or at some other appropriate point—that the payment-on-account scheme will continue in existence.

Baroness Crawley

My Lords, like my noble friend Lord Borrie, I am hesitant about the amendment. If I understand it correctly, the amendment, which stands in the names of my noble friend, Lord Clinton-Davis, and my noble and learned friend Lord Archer, would require the legal services commission to act as a banker to private solicitors and barristers. Given the reluctance of my bank to loan me anything other than an ear, the amendment, if passed, would act as an inducement to me to take up the legal profession as a late career move.

It is rather a tall order to expect, within the reforming context of the Bill, limited public funding to be made available to solicitors to "sub" them when they are left a bit short in the course of their professional work. Therefore, I cannot support the amendment.

Lord Clinton-Davis

My Lords, does my noble friend realise that, as the noble Lord, Lord Meston, said, with legal aid, moneys are paid on account of profit costs and in respect of disbursements? That is the current situation.

Baroness Goudie

My Lords, I am totally against the amendment and agree with my noble friends Lord Borrie and Lady Crawley. I understand fully the present situation as regards legal aid whereby solicitors and barristers are enabled to obtain fees on account of costs, but that is after the work has been done and the disbursements spent, not before.

The amendment makes it clear that it is asking not for money on account of costs, but, on account by way of. loans". That is completely different. It would be a disgrace if public funds were used in that way.

Lord Carlisle of Bucklow

My Lords, I rise to support briefly the noble Lord, Lord Meston. Are we not in danger of getting bogged down by the words "by way of loans" when what was asked for, perfectly reasonably, was an undertaking from the Government that they will continue to pay fees on account both to the Bar and to solicitors in appropriate cases, as happens at the moment with legal aid?

Lord Mishcon

My Lords, perhaps I may say a few words in praise of the previous contribution. I look askance at the noble Lord, Lord Borrie, whose wisdom, I know, is such that he must have realised that he was making a bad point.

This is protection for the commission. The fact that fees on account are asked for and that the disbursements made are to be repaid means that, unless the words "by way of loans" are included, the commission can never say, "Well, those fees were not earned. We made a mistake when we paid the account. The disbursements were not properly incurred". There is no question of interest here; there cannot be. Under the amendment, the commission would be asked to pay sums to solicitors and barristers about which subsequently the commission could say, "Now, we merely lent you that money, you know. It wasn't paid to you as a final payment. Would you please, in the final account, take it for granted that we merely lent you the money and that now you must properly account for it and ensure that you didn't overcharge and that you incurred this disbursement properly?". With all his vast experience, the noble Lord, Lord Borrie, must have known that. However, he made his point so eloquently that I cannot really grumble.

Lord Windlesham

My Lords, this short debate provides an opportunity to put a general point to the House and perhaps to the Front Bench opposite in particular. It is not specifically directed in support or in criticism of the amendment of the noble Lord, Lord Clinton-Davis. Do not the differences of opinion that we have heard illustrate the difficulties that arise when a mass of detail is put into a statute setting up a new departmental public body? The legal services commission is going to be a very important public body. It is right that its purposes and powers should be stated. But as we have heard in earlier debates, the Lord Chancellor will have considerable reserve powers of regulation to make directions on a whole range of matters. We have page after page of what the commission can do and is prohibited from doing. I hesitate to say so, but it is open to almost any noble Lord, or any special interest represented by a noble Lord in this House, to run his own hobby-horse and have it included or, conversely, to get something excluded. Therefore, what is the case for having this degree of detail in this part of the Bill?

Lord Hacking

My Lords, the noble Lord, Lord Windlesham, has made a very good point. I would not wish for this amendment to be included in the Bill. Indeed, I do not believe that my noble friends would wish for this amendment to be approved by the House provided that we can have confidence that there is going to be continuity in the present system. That system is not working just for the benefit of lawyers: it is to make sure that lawyers, who have not got unlimited means, cannot act as bankers for their own clients for very large sums of money. The purpose of this amendment is to focus on the need of the lawyer so that he can serve his client and have some form of interim funding. In Clause 3(2)(c) there is already the power "to make loans".

If that is sufficient to cover this issue, then I am sure that my noble friends do not want to press this amendment and to clutter the Bill with detail which the noble Lord, Lord Windlesham, had advised us against. All we want from my noble and learned friend the Lord Chancellor, is for him to say that there is provision in the Bill to deal with this problem when the need arises.

The Lord Chancellor

My Lords, this entertaining amendment in the name of the noble Lord. Lord Clinton-Davis, has provided us with a little sound and fury, but even more fun. It has been sound, fury and fun about nothing.

The trouble arises from the amendment in which it is proposed, to pay fees and disbursements on account by way of loans to solicitors and barristers". The amendment muddles up the idea of payment on account with that of a loan. Of course, a payment on account is the payment of a reasonable sum, being a genuine estimate of the value of the services already rendered. Therefore, it is quite inconsistent with a loan. The noble Lord has quite inadvertently confused the House. But to the extent that he is seriously proposing that there should be payments made to lawyers by way of loans by the legal services commission, I believe that most people would regard it as an extraordinary proposition that lawyers in business should have loans from the public purse to cover ordinary business costs.

However, as the White Paper made plain, we envisage that contracting will in time provide for earlier and more certain payment for services actually rendered than the present system of payment on account by the Legal Aid Board, the latter having absolutely nothing to do with making loans available to lawyers, quite exceptionally by the state, for their businesses. Therefore, I invite the noble Lord to withdraw the amendment.

Lord Clinton-Davis

My Lords, I thank noble Lords who have participated in this debate. Naturally, I thank those who supported what I was seeking to probe from the Government rather more than other noble Lords. Least of all, I thank the noble Lord, Lord Borrie who is not immune from making mistakes, as my noble friend Lord Mischon pointed out, despite his very considerable career.

The fact of the matter is that this was an attempt to probe the Government. I had no intention of dividing the House on this issue at any time. My noble and learned friend has referred to the consultation paper issued by the Legal Aid Board. I was particularly concerned that he spoke of litigation support. I took it to mean some sort of assistance with disbursements in cases which would otherwise be outside the scope of legal aid.

It has been important to canvass from my noble and learned friend what he has in mind on the subject. It is absurd to suggest that it is a grandiose scheme for the legal aid commission to act as a banker for solicitors in practice. My noble and learned friend knows that very well. But he took it upon himself to poke fun at the matter in that way. With great respect, I believe that it was an unworthy way of responding to this debate. I do not intend to provoke my noble and learned friend for whom I have considerable regard—as he knows—except on this issue.

I do not agree with the noble Lord, Lord Windlesham, that it is a question of imposing too many requirements on the new body. It was simply a way of trying to find out what it is. Some mystery remains in that respect. I am not at all sure that my noble and learned friend's response—even deliberately humorous in parts—cast a great deal of light on what is happening on this matter. But having raised it, I do not believe that there is any great point in repeating arguments that I have already addressed to the House. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Carter

My Lords, I mentioned earlier that the Statement on Kosovo will be taken at a convenient moment after 7 p.m. The noble Earl, Lord Lytton, has kindly agreed to postpone the debate in his name, which was the business for the dinner break. Therefore, the Statement will become the business dealt with in the dinner break. I suggest that the House returns to the Access to Justice Bill one hour after the Statement has been taken.

Lord Simon of Glaisdale moved Amendment No. 25: Page 3, line 2, leave out from ("money") to end of line.

On Question, amendment agreed to.

Lord Simon of Glaisdale moved AmendmentNo. 26: Page 3, line 5, leave out from ("functions") to end of line 8.

The noble and learned Lord said: My Lords, I apologise for yet again inflicting an argument on your Lordships, though I believe that this is my final amendment. It was grouped with a very large number of amendments which were dealt with by my noble and learned friend the Lord Chancellor in a speech of marvellous lucidity. I agreed with his general thrust and with most of the points that he made. It is concerned with the powers given to the Minister and to the parliamentary control of those powers.

But perhaps I may say this, repeating what I said in Committee. It is, I think, a matter of alarm that as the Bill was pronounced it gave quite inordinate power to the executive. I draw on a report of the Delegated Powers Committee—a report of a severity that I cannot remember since the very inception of the committee.

This Government are not alone in arrogating power to the executive. Indeed, in the previous Parliament there was the major matter of the Child Support Act which stripped away a whole jurisdiction from magistrates and gave it, with disastrous consequences, to a new statutory body. But I think this Government are going further still in what they have called their hands on policy—of which this Bill is a notable example—and, to use a common phrase, control freakery.

This amendment does not affect the power of the executive. What it does is to seek to eliminate a provision which is beyond question unnecessary. Clause 3(4) states that the commission may make such arrangements as it considers appropriate for the discharge of its functions". Then, it adds quite unnecessarily, including the delegation of specified functions, and shall make such arrangements for the delegation of functions as may he prescribed". that is, prescribed by the Lord Chancellor.

That is unnecessary because every body has a power to delegate functions unless it has itself had power delegated to it. I did not understand my noble and learned friend to be controverting that in Committee. Indeed, I should have thought that it is hornbook law that a body can delegate except when it is itself a delegate. That is a good example of the idiom that the exception proves the rule because a delegate cannot sub-delegate. It proves that other persons can delegate. Therefore, this provision is unnecessary and should be removed.

I have no objection to the next amendment of my noble and learned friend, which gives him power to require the commission to delegate or not to delegate and to make arrangements as to delegation. That seems to me perfectly acceptable within the wide powers that my noble and learned friend is seeking to take into his hands. However, the previous provision, the one which is the subject of Amendment No. 26, is quite unnecessary. Unnecessary provisions give rise to unacceptable and dangerous argument. I beg to move.

6.30 p.m.

The Lord Chancellor

My Lords, I have already spoken to Amendments Nos. 26 and 27 in the context of our debates on all the amendments in that group.

Lord Simon of Glaisdale

My Lords, the argument put forward was that this provision is unnecessary. I have not, I confess, heard that replied to. In fact, I think that in Committee my noble and learned friend accepted that it was unnecessary but said it made clear that there was a power to delegate, accepting that without the statute there was still a power to delegate. It is highly unsatisfactory that a serious argument should be brushed aside. There is no limit if we are to try to make clear everything that is already clear in the common law. There is no end to the expansion of the statute book. But I shall certainly return to the matter at a later stage. I hope that my noble and learned friend will have second and better thoughts. In the meantime I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Lord Chancellor moved Amendment No. 27: Page 3, line 5, leave out from second ("of") to end of line 8 and insert ("any of its functions. ( ) The Lord Chancellor may by order require the Commission—

1. (a) to delegate any function specified in the order or to delegate any function so specified to a person (or person of a description) so specified,
2. (b) not to delegate any function so specified or not to delegate any function so specified to a person (or person of a description) so specified, or
3. .(c) to make arrangements such as are specified in the order in relation to the delegation of any function so specified.").

On Question, amendment agreed to.

Clause 4 [Directions and guidance]:

The Lord Chancellor moved Amendment No. 28: Leave out Clause 4.

On Question, amendment agreed to.

Clause 5 [The Community Legal Service]:

The Lord Chancellor moved Amendments Nos. 29 to 32: Page 3, line 21, leave out from ("Service") to end of line 22 and insert ("for the purpose of promoting the availability to individuals of services of the descriptions specified in subsection (1A) and, in particular, for securing (within the resources made available, and priorities set, in accordance with this Part) that individuals have access to services of a type and quality appropriate to meet their needs. (1A) The descriptions of services referred to in subsection (1) are—"). Page 3, line 33, leave out subsection (2) and insert— ("(2) Services which the Commission can fund as part of the Criminal Defence Service do not fall within subsection (1A)."). Page 3, line 36, leave out ("(1)") and insert ("(1A)"). Page 3, line 39, leave out ("(1)") and insert ("(1A)").

The noble and learned Lord said: My Lords, I beg to move Amendments Nos. 29 to 32 en bloc.

On Question, amendments agreed to.

Lord Falconer of Thoroton moved Amendment No. 33: Page 4, line 3. at end insert— ("and the Commission shall notify the Lord Chancellor of what it has done under this subsection.").

The noble and learned Lord said: My Lords, I wish to speak to Amendments Nos. 33, 37, 43 and 48.

These amendments are designed to strengthen the requirement on the Lord Chancellor to consider the needs for services before making directions about the funding of services or the way that services should be funded. Amendments of this type were suggested by, among others, the noble Lord, Lord Goodhatt, during the Committee stage of the Bill and I am grateful to him.

I hope that your Lordships will agree that these amendments ensure that the need for services is to be considered throughout the funding process. In each case need for services is defined in terms of the types of help listed in Clause 5.

Amendment No. 37 requires the Lord Chancellor in making his determination of the sums to be paid into the community legal service fund to have regard to the need for services described in Clause 5 identified by the commission under Clause 5(4). The amendment also makes it clear that the Lord Chancellor may also take account of any other factors he considers relevant. This reflects the fact that the budget for the community legal service fund will be set as part of the general public expenditure planning process. This takes account of the general state of the economy and the competing needs of other public spending programmes.

Amendment No. 33 is consequential on Amendment No. 37. The Bill has already placed a duty on the commission at Clause 5(4) to inform itself about the need for the services described and about the provision and quality of the services available. This amendment extends the duty to ensure that the commission informs the Lord Chancellor of the results of its investigations, ensuring that he has as much information as possible about the need for services. Amendment No. 37 ensures that, when setting the priorities for the funding of services, the commission takes account of the need for those services described in Clause 5.

Amendment No. 48 was inspired by the noble and learned Lord, Lord Mackay of Clashfern, who I am sorry to note is not present. He suggested in Committee that the use of the word "communities" instead of "areas", would give the community legal service a kind of local community connection"—[Official Report, 19/1/99; col. 565.] I accept that the commission should be able to respond as flexibly as possible to the needs of different communities, whether that different need arises as a result of geographic location, ethnic or religious background, or otherwise. I therefore propose that the text should be amended to read: The commission may fund as part of the Community Legal Service different descriptions of services or services provided by different means in relation to different areas or communities". I hope that your Lordships agree that that provides for the greatest possible flexibility. I beg to move.

Lord Simon of Glaisdale

My Lords, I have only one question. It concerns Amendment No. 37. Does my noble and learned friend, or the noble and learned Lord, Lord Falconer of Thoroton, really think that it is necessary to stipulate by statute: In making any determination under subsection (2) the Lord Chancellor shall take into account (in addition to such other factors as he considers relevant) the need for services of the descriptions specified in subsection (1A) of Section 5 as notified to him by the Commission under subsection (4) of that section"? If that was not there, would my noble and learned friend really take no notice of what the commission thought was required?

Lord Falconer of Thoroton

My Lords, I cannot say whether it is legally necessary or not. It seems to me entirely sensible that it should say that. It provides a focus of what should be considered and it places the emphasis in the right place.

On Question, amendment agreed to.

Lord Falconer of Thoroton moved Amendment No. 34: Page 4, line 5, leave out from ("subsection") to end of line 6 and insert ("(1A). (6) In particular, the Commission may accredit, or authorise others to accredit, persons or bodies providing services of the descriptions specified in subsection (1A); and any system of accreditation shall include provision for the monitoring of the services provided by accredited persons and bodies and for the withdrawal of accreditation from any providing services of unsatisfactory quality.").

The noble and learned Lord said: My Lords, in moving Amendment No. 34, I shall speak also to Amendment No. 95. The amendments build upon the powers in Clause 5(5) and Clause 12(5) respectively that the legal services commission may set and monitor standards in the community legal service and criminal defence service, or authorise others to do so.

Clause 5(5) empowers the commission to set and monitor standards of service, and to accredit, or authorise others to accredit, persons or bodies providing relevant services. Amendment No. 34 will place a duty on the legal services commission to ensure that any accreditation system it may establish includes provision for monitoring all those providing accredited services and withdrawing accreditation from any who provide services of an unsatisfactory quality.

I believe that the amendment improves Clause 5 as it puts beyond doubt that the commission, or other authorised bodies, can and will monitor the provision of services by accredited providers and, if necessary, withdraw that accreditation.

Providing consumers with an assurance of quality is a key feature of the Lord Chancellor's plans for the community legal service. The conditions for accreditation will initially be provided by the Legal Aid Board's franchising specification, which will become a requirement of all contracts that the legal services commission makes with providers. But the noble and learned Lord the Lord Chancellor intends in future that franchising will be integrated into a wider community legal service kitemark on which both the commission and other funders of legal services can rely. A common system of accreditation should reduce the administrative burden on providers who seek funding from a number of sources and currently have to satisfy several different sets of quality criteria. It should also encourage referrals between different types of service provider, reduce the burden on funders of developing separate quality requirements, and generally strengthen public confidence in the quality of service provision.

To develop details of the kitemark, the noble and learned Lord the Lord Chancellor has set up a quality task force which includes representatives of all the major organisations concerned with the quality of advice. The aim of the quality task force is to identify and agree the core quality criteria which providers should be expected to comply with and which could form the basis of a community legal service kitemark.

Amendment No. 34 also ensures that subsection (5) and the new subsection (6) refer to subsection (1A), as inserted by Amendment No. 30, which lists the descriptions of service available, rather than to subsection (1), which will set out the objectives of the community legal service.

Amendment No. 95 makes a similar change in relation to the commission's powers to accredit providers of criminal defence services. I beg to move.

6.45 p.m.

Lord Renton

My Lords, I do not object to the amendment, but I wish for some enlightenment. The word "accredit" has not previously been used in the Bill. It can mean different things in different circumstances. It is an unusual word to find in a statute anyway. I wonder if the noble Lord can be more precise and tell your Lordships exactly the application of it in this context.

Lord Falconer of Thoroton

My Lords, "accreditation" in this context means ascribing to a particular person or body a certain quality standard.

On Question, amendment agreed to.

Lord Falconer of Thoroton moved Amendment No. 35: Page 4, line 6, at end insert— ("( ) The Lord Chancellor may by order require the Commission to discharge the functions in subsections (4) to (6) in accordance with the order.").

On Question, amendment agreed to.

Clause 6 [Funding of services]:

[Amendment No. 36 not moved.]

Lord Falconer of Thoroton moved Amendment No. 37: Page 4, line 16, at end inser— ("( ) In making any determination under subsection (2) the Lord Chancellor shall take into account (in addition to such other factors as he considers relevant) the need for services of the descriptions specified in subsection (1A) of section 5 as notified to him by the Commission under subsection (4) of that section.").

On Question, amendment agreed to.

Lord Clinton-Davis moved Amendment No. 38: Page 4, line 16, at end insert— ("( ) In determining the amount appropriate for the funding of services as part of the Community Legal Service, the Lord Chancellor shall not take into account the level of expenditure expected for the Criminal Defence Service.").

The noble Lord said: My Lords, I am very concerned about the subject matter raised in this amendment. I hope that it will give the Government an opportunity to define their purposes or to reconsider what has previously been said. That is the purpose of the debate that I subscribe to.

I take the view that there is a serious risk involved if the level which is appropriate for the community legal service may not be determined on its merits. The influence of the level of expenditure on criminal cases is likely to impact upon this issue very seriously.

The noble and learned Lord the Lord Chancellor has said before that his intentions are that the community legal service should operate subject to a cash limit in contrast to the situation where civil legal aid has previously been based on an entitlement benefit. The previous situation—to which my noble and learned friend objects—was that all applicants had to satisfy the merits test. Their financial circumstances would make them eligible for assistance or entitle them to legal aid. One of the merits of the situation was that it provided for a measure of consistency to apply in different parts of the country. Now that we are moving to a cash-limited system, that consistency might be very difficult to achieve. A requirement of the Lord Chancellor to take account of identified need before settling the funding for the commission could help to mitigate that risk.

At the Committee stage my noble and learned friend argued that funding for help in civil cases should be regarded as subordinate to funding in criminal cases; that, indeed, funding for civil cases should be what is available after the prior claims of criminal cases had been met. I do not disagree with the Lord Chancellor exempting assistance in criminal cases from cash limiting because of the need to meet the obligations under the European Convention on Human Rights. But should that mean that any unexpected expenditure in criminal cases automatically leads to a corresponding reduction in the civil field without any regard to the merits of the case and in the context of public expenditure generally? This is a serious matter. I am anxious to hear from my noble and learned friend whether he has reflected further or whether he adheres to the point he made previously. I beg to move.

Lord Goodhart

My Lords, I support the noble Lord, Lord Clinton-Davis. I regard this as one of the most important amendments to the Bill; in all probability the most important. We have long been aware that one of the purposes of the Bill is to cash limit civil legal aid. We recognise that in recent years, although not perhaps in the past two years, the cost of civil legal aid has mushroomed. We have therefore reluctantly accepted the need for capping.

We were glad to see in the Bill that criminal legal aid was not to be capped. What we had not realised until Committee stage was that the noble and learned Lord the Lord Chancellor intended in effect that there should be a single block grant to cover both criminal and civil legal aid so that the more that was spent on criminal legal aid the less would be available for civil legal aid. Nothing in the Bill or in the Explanatory Notes makes that clear. Indeed, Clause 6(2) states: The Lord Chancellor … shall pay to the Commission the sums which he determines are appropriate for the funding of services by the Commission as part of the Community Legal Service". We recognise that the Lord Chancellor's decision as to what is appropriate must take into account the Government's targets for public spending and the demands from other claimants for funds. However, as I read the Bill, the needs of the community legal service constitute a free-standing claim to which public funds are allocated on the basis of the merits of that claim as the Government see them and the right to whatever is left over after the criminal defence service has been funded is something entirely different. I see no reason whatever why the two should be linked. Indeed, I believe it is highly arguable that the Lord Chancellor would be in breach of his duty under Clause 6(2) if he decided that what was appropriate funding for the community legal service was whatever was left over after funding the criminal defence service. That could be nothing at all.

Criminal legal aid is part of the cost of maintaining law and order in this country. Civil legal aid is intended to give access to justice to people who cannot afford to pay for it themselves. The cost of criminal legal aid has gone up over the years, to a large extent because of the increase in crime. That may or may not continue. I hope it does not. But if it does, the cost of paying for the defence of accused persons will necessarily go up too. Why should that increase in cost be paid for by depriving other people of access to justice?

I believe it is essential to prevent that happening. I trust that the Lord Chancellor will either accept the amendment or render it unnecessary by giving an undertaking that the funding of the community legal service will be considered independently of the funding of the criminal defence service. I find it difficult to believe that the noble and learned Lord the Lord Chancellor could have accepted of his own volition a proposal so damaging to access to justice by people in need.

Lord Carlisle of Bucklow

My Lords, I wish to briefly to add my support to the amendment moved by the noble Lord, Lord Clinton-Davis. It would be extraordinary if the amount of money to be made available for civil legal aid were to depend entirely on the amount of money spent on criminal legal aid. How can it be said that appropriate money is being provided for one service when we have just had an amendment which says that the Lord Chancellor, in deciding what is the appropriate amount of money to fund the community legal service, shall take into account the needs of that service, and then, having taken that into account, the amount of money available is affected by powers totally outside the control of the community legal service; namely, because of the amount being spent on criminal legal aid? I cannot see that there is any greater relationship between these two individual parts of the funding of legal aid, civil and criminal. It is like saying, for example, that if you have to spend more on defence then, automatically, you will reduce the amount spent on schools or something of that nature.

Clearly, the Government are entitled to cap the amount of money they wish to spend on legal aid as a whole, but to make one general cap and then say that the amount provided for civil legal aid is wholly dependent on what is spent on criminal legal aid is totally illogical.

Lord Hunt of Wirral

My Lords, I wish to support the noble Lord, Lord Clinton-Davis. It is wrong to allow funding for the community legal service to be adversely affected, in the way that would occur without this amendment, by the amount of spending on the criminal defence service. There may be a problem here. I hope that the noble and learned Lord the Lord Chancellor will share with us whether or not the pass has already been sold. If he has agreed with the Chief Secretary that there will be one block, that was a bad decision for all those who are relying on the community legal service to meet needs right across the country.

I know that the Chief Secretary drives a hard bargain. My noble friend Lord Carlisle will remember in his negotiations with the Treasury that wherever there was an argument a cash limit was involved. It is important to fight those cash limits, to ring-fence them, and to ensure that where there is a needs-led budget a reasonable assessment is placed on the amount that will be required and it should not eat into other parts of the budget which are right to observe and which ought to be met.

I hope that the noble and learned Lord the Lord Chancellor will come clean about whether or not he has already negotiated a settlement which makes this amendment impossible. I very much hope that that is not the case. It would be very regrettable if we were to find, through some unforeseen demand on the criminal legal aid service, that the amount available for the community legal service was savagely cut.

Baroness Thornton

My Lords, I wish to speak against the amendment proposed by my noble friend Lord Clinton-Davis. In the almost 20 years of our friendship I cannot remember ever disagreeing with him. But now I am doing so twice in one day. I suspect that he may once again feel that I do not understand the issue. I prefer to think that we have a different understanding of it.

The idea that no cash limits should be imposed in this area—this area alone of all areas of government expenditure—is extraordinary. The Government have to be able to decide their priorities and they have decided that those priorities are health and education. That is the real world. There are real constraints on the Government's budget and priorities. The funding of legal services has to be part of that process. It cannot be outside the process. In fact it is desirable that it should be part of the process. No one is suggesting that restrictions or reductions are on the cards. No one is saying that these provisions are not very important and would not be fought for. However, a balance has to be found. I think it right that this budget heading takes its place in negotiations along with all others.

Lord Ackner

My Lords, I do not follow how it can be sincerely emphasised that one of the main purposes of this legislation is to improve access to justice when legal aid for civil litigation is in the vulnerable state that has been described here. I therefore support the amendment.

7 p.m.

Lord Hacking

My Lords, those of us who have practised law for as long as I have, for over 30 years, will be fully aware that there is great need for support for civil law, as there is for criminal law. We have also become aware of the enormous cost to the state in defending in criminal cases. My noble and learned friend has repeatedly said since becoming Lord Chancellor that he is paying attention to that and taking steps to bring those costs into order.

We are also aware that the Government have limited resources and that they have to take an overview. It seems to me that in taking an overview the Government have to decide how much they are going to allocate to education, health, the legal services and the like. They also have to go through the rationality, when looking at legal services, of deciding how much they will allocate to civil legal services and to criminal legal services.

Therefore, although I understand the concerns that have been expressed I have to say that this amendment is unacceptable, because in the real world the noble and learned Lord has to take account of the cost of expenditure of the criminal defence service at the same time as considering the community legal service. May I add that at the same time he has to do it "vice versa". By approaching it in that way, it seems to me that this amendment, although it gives us a convenient opportunity to express your Lordships' concern, is not one which can possibly be accepted by my noble and learned friend.

Lord Kingsland

My Lords, I rise to support the amendment of the noble Lord, Lord Clinton-Davis, as well. When the noble and learned Lord the Lord Chancellor replied to the debate on the first amendment this afternoon, initiated by the noble and learned Lord, Lord Lloyd of Berwick, he was at pains to point out that one of the reasons why he could not accept that amendment was because he felt that two purpose clauses rather than one should be inserted into the Bill: one purpose clause for civil legal aid and one purpose clause for criminal legal aid.

At no stage did he say that the dominating purpose clause should be the criminal legal aid clause and the subservient or subsidiary purpose clause should be the civil legal aid clause—because that is the effect of making civil legal aid the acolyte of criminal legal aid. In my submission, were that position to be maintained it would be in breach of the noble and learned Lord the Lord Chancellor's own Amendment No. 29 as it stands, which I believe your Lordships have already adopted.

Of course we all accept that expenditure on legal aid has to take its place alongside expenditure on defence, on the health service and on educational services, and it has to fight its corner. There has to be an overall constraint. I might add that over the last four or five years the increase in the overall legal aid budget has been well within the cash constraints laid down first of all by the previous government and now by this Government. I recall the noble and learned Lord the Lord Chancellor, when he was Shadow Lord Chancellor, saying that the only circumstances in which he would be prepared to accept cash limits would be if there was or had been an explosion in legal aid.

However, at no stage was there any suggestion, until the Second Reading, that one part of the legal aid budget was dependent on the other. I can find no parallel in other parts of public expenditure which mirrors this proposal. For example, there is nothing in the health budget that suggests that just because general practitioners exceed their budgets there should be a corresponding reduction in the budget for surgery in hospitals. It seems to me, in exactly the same way, that no such constraint should apply to legal aid.

Lord Phillips of Sudbury

My Lords, I think the House may need reminding that never before have legal aid budgets been capped and that, as we have heard tonight, within that cap there has been, if you like, a "double whammy" for the civil system by reason of the fact that criminal legal aid is going to have absolute priority. I think it needs saying, because sometimes a contrary impression is given that the legal aid budget is now under control.

It is fair to say that it was out of control, but last year just short of 3.5 million of our fellow citizens received assistance under the legal aid scheme, civil and criminal, and that represented 3.2 per cent. more cases than in the previous year, with only a 1.2 per cent. increase in the cost to the taxpayer. The budget for this year is very little different from that of last year and I think I am right in saying that projections for two years ahead show an absolute decline in the amount of legal aid expenditure.

On top of that, in this Bill the Government are seeking to ensure that the legal services commission and indeed the Lord Chancellor of the day will have a panoply of powers and discretions so as to ensure that the projections that they make for the provision of legal services are met. They can turn the tap on and off with regard, for example, to the means test, the merits test, the amount of spend in the regions, and so on.

In other words, ultimately this is surely a fundamentally political issue. Is civil legal aid, which we are talking about, so important to our fellow citizens that it deserves protection against the double capping, if I can call it that, which currently is inherent in this Bill? In an age when every one of us year by year is ever more dependent upon an ever-increasing panoply of laws—the complexity of which is beyond the wit of the vast majority of us—I suggest that, in that general environment and at this stage for the first time in our history, it is simply unacceptable to impose, first, an overall cap and then leave civil legal aid with what is left after the criminal take. It should be unacceptable to everyone in this House and to everyone in the other place. I hope therefore that there will be great support for this amendment

The Lord Chancellor

My Lords, this amendment seeks to ensure that when considering the amount of public money available for the funding of services as part of the community legal service, no account should be taken of the level of expenditure expected for the criminal defence service. I have to tell noble Lords who advance that position that it is simply unrealistic and that they are not willing to accommodate themselves to the world in which we live. In considering the amount of public money to be spent on any service, it is the duty of Ministers collectively to consider all the demands that will be made upon the public purse. So we cannot consider the public funding of legal services without considering the amount to be spent on teachers' salaries or the amount needed for nurses' salaries, for road building or any other call on public funds.

I have to say firmly to noble Lords on the Benches opposite—and I am looking firmly in the direction of the Liberal Democrat Benches—that the Prime Minister won the last election on an oft-repeated statement that schools and hospitals came first. He did not win the election on the proposition that legal aid came first—

Lord Goodhart

My Lords, did he put forward the proposition that access to justice should be cut?

The Lord Chancellor

My Lords, he put forward the proposition, in fact all the propositions, which were in a winning manifesto. The purpose of this Bill is not to cut access to justice but to enhance it. However, the adherence of some to the vested interests of lawyers is the principal objection to achieving that sensible outcome. To ring-fence one area—the criminal defence service—and exclude it from this type of consideration is utterly unrealistic. The noble Lord, Lord Kingsland, is in Cloud-cuckoo-land when he says that if too much is paid to doctors that does not entail less being paid for surgery. That is simply to be unwilling to accommodate oneself to the reality of the world which all the rest of us occupy.

All services funded by the Government are funded by the taxpayer. The Government must be free to consider competing priorities for the finite resources that are available. Those who indulge in amendments of this kind play politics, but do not accept realities.

Lord Harris of Greenwich

My Lords, perhaps I may draw the noble and learned Lord's attention to the fact that this amendment was proposed by one of his noble friends.

The Lord Chancellor

My Lords, I appreciate that it was proposed by one of my noble friends, and he will remain one of my noble friends, but the enthusiasm of noble Lords opposite for an erroneous position does not encourage me.

Criminal legal aid has become a greedy Leviathan. Between the financial years 1991–92 and 1997–98 the cost of criminal legal aid in the higher courts rose by 87 per cent.; that is almost 70 per cent. above the rate of inflation. Average payments have increased by 65 per cent., again well above the rate of inflation. In the Crown Court the most expensive 1 per cent. of cases continue to consume more than 40 per cent. of the budget—all this when the number of people actually helped has fallen by more than 9 per cent. This is the budget that noble Lords wish to see ring-fenced.

Lord Kingsland

My Lords, I am grateful to the noble and learned Lord for giving way. He mentioned that 1 per cent. of criminal cases absorbed over 40 per cent. of the legal aid budget. Does he agree that if he were able to target successfully that 1 per cent. of cases and control that money, that would be a simple and straightforward way of solving the problem that he is asked to confront by this amendment?

The Lord Chancellor

My Lords, would that it were so simple. I look forward to the noble Lord's strong support for my undoubted attempts to bring that part of the budget under control. The only people who could possibly be attracted to a ring-fenced budget for criminal cases would be lawyers. It would be of no benefit whatever to the public. On the other hand, our international obligations must be fulfilled. As I said earlier this afternoon when speaking to Amendment No. 86, we are going beyond the minimum of these obligations and we are going to increase access to justice.

I do not seek to conceal—and I apprehend that I shall have the support of the principal Opposition party—that I shall come down hard on excessive prices for legal services in criminal cases. I welcome the support of the noble Lord, Lord Kingsland, for that position.

My principal method for gaining control will be through contracting with the providers of legal services in criminal cases. Through monitoring and controlling the contracts I shall bring downward pressure on excessive fees. I make no secret of this fact. I must bear down on this budget if I am to have the funds that I want to be able to develop the community legal service, and I am determined to do so.

My earlier comments in Committee recognised that the criminal legal service fund budget must have a higher priority than civil when budgets are set because of the absolute nature of our international obligations, to which I imagine the noble Lord, Lord Goodhart, is as enthusiastically committed as I am.

The white Paper states expressly in paragraph 6.10, that the Criminal Defence Service budget and the community legal service budget are separate. However, your Lordships should know that I must live within an expenditure settlement that is now settled for the next three years. In that context the proposal in this amendment to ring-fence one or both budgets is not to live in real world politics.

However, it is not ultimately a rigidly controlled budget. Circumstances could arise whereby it might be appropriate to make a claim on the Exchequer, but I should have to press my claim, perhaps in competition with others, on the Chancellor of the Exchequer.

Lord Clinton-Davis

My Lords, one reassuring point has emerged; namely, that there is a continuum, according to my noble and learned friend, in the personal relations between us totally unsullied by anything that I have done during this debate.

The debate has been interesting. It has demonstrated the real dilemma confronting my noble and learned friend, which he has explained vividly. On the other hand, people are at least now aware, theoretically, of the problem confronting civil legal aid. It is to be subordinate.

Theoretically, a situation could arise whereby no money is available for the provision of civil legal aid. Realistically, I do not believe that that is a measurable risk. I am aware, and have been for a long time, of my noble and learned friend's position; he is not reticent in stating bluntly where he stands on most issues.

While it is true that the Government have limited resources, it is plain, having listened to this debate, that my noble friend is sensitive about the situation on civil legal aid. Therefore, I do not imagine that the draconian consequences spelt out by the noble Lord, Lord Goodhart, are likely to be as calamitous as he suggested.

I tabled the amendment because I wanted to probe the Government's intention in this regard. It is not my intention to divide the House. I therefore beg leave to withdraw the amendment.

The Deputy Speaker (Viscount Allenby of Megiddo)

My Lords, is it your Lordships' pleasure that the amendment be withdrawn?

Noble Lords

No!

7.18 p.m.

On Question, Whether the said amendment (No. 38) shall be agreed to?

Their Lordships divided: Contents, 54; Not-Contents, 86.

Division No. 2
CONTENTS
Ackner, L.	Hooson, L.
Addington, L.	Hunt of Wirral, L.
Alderdice, L.	Kingsland, L.
Alexander of Tunis, E.	Kinnoull, E.
Astor of Hever, L.	Leigh, L.
Attlee, E.	Lindsey and Abingdon, E
Bridgeman, V.	Liverpool, E.
Carlisle, E.	Ludford, B.
Carlisle of Bucklow, L.	Lyell, L.
Carnegy of Lour, B.	McNair, L.
Clanwilliam, E.	McNally, L.
Clement-Jones, L.	Maddock, B.
Colwyn, L.	Meston, L.
Cross, V.	Monk Bretton, L.
Dixon-Smith, L.	Morris, L.
Falkland, V.	Mountevans, L.
Gardner of Parkes, B.	Napier and Ettrick, L.
Goodhart, L. [Teller.]	Norrie, L.
Hamwee, B.	Oxfuird, V.
Harris of Greenwich, L.	Phillips of Sudbury, L.[Teller.]
Henley, L.	Renton, L.
Hogg, B.	Rodgers of Quarry Bank, L.

Russell, E.	Thomas of Walliswood, B.
Shrewsbury, E.	Tordoff, L.
Stewartby, L.	Vivian, L.
Taverne, L.	Wallace of Saltaire, L.
Thomas of Gresford, L.	Winchilsea and Nottingham, E.
NOT-CONTENTS
Acton, L.	Hoyle, L.
Ahmed, L.	Hughes, L.
Allenby of Megiddo, V.	Hughes of Woodside, L.
Alli, L.	Hunt of Kings Heath, L.
Amos, B.	Irvine of Lairg, L.[Lord Chancellor.]
Ampthill, L.
Archer of Sandwell, L.	Jay of Paddington, B. [Lard Privy Seal.]
Bach, L.
Bassam of Brighton, L.	Macdonald of Tradeston, L.
Blackstone, B.	Mclntosh of Haringey, L. [Teller.]
Borrie, L.	Mackenzie of Framwellgate, L.
Bragg, L.	Merlyn-Rees, L.
Brooke of Alverthorpe, L.	Milner of Leeds, L.
Brookman, L.	Molloy, L.
Brooks of Tremorfa, L.	Monkswell, L.
Carter, L. [Teller.]	Montague of Oxford, L.
Chandos, V.	Morris of Castle Morris, L.
Christopher, L.	Morris of Manchester, L.
Clarke of Hampstead, L.	Paul, L.
Clinton-Davis, L.	Ponsonby of Shulbrede, L.
Crawley, B.	Puttnam, L.
Currie of Marylebone, L.	Ramsay of Cartvale, B.
Dean of Thornton-le-Fylde, B.	Randall of St. Budeaux, L.
Desai, L.	Rea, L.
Donoughue, L.	Sainsbury of Turville, L.
Dormand of Easington, L.	Sawyer, L.
Dubs, L.	Sewel, L.
Evans of Watford, L.	Shepherd, L.
Falconer of Thoroton, L.	Simon, V.
Farrington of Ribbleton, B.	Simon of Glaisdale, L.
Gilbert, L.	Simon of Highbury, L.
Goudie, B.	Smith of Gilmorehill, B.
Gould of Potternewton, B.	Stone of Blackheath, L.
Graham of Edmonton, L.	Strabolgi, L.
Grenfell, L.	Symons of Vernham Dean, B.
Hacking, L.	Thornton, B.
Hanworth, V.	Turner of Camden, B.
Hardie, L.	Uddin, B.
Hardy of Wath, L.	Walker of Doncaster, L.
Haskel, L.	Warner, L.
Hayman, B.	Wedderburn of Charlton, L.
Hilton of Eggardon, B.	Whitty, L.
Hollick, L.	Williams of Mostyn, L.
Howie of Troon, L.	Young of Old Scone, B.

Resolved in the negative, and amendment disagreed to accordingly

7.23 p.m.

Lord Hunt of Kings Heath

My Lords, I beg to move that further consideration on Report be now adjourned. In moving this Motion, I suggest that the Report stage begins again not before 8.25 p.m.

Moved accordingly, and, on Question, Motion agreed to.

Lord Hunt of Kings Heath

My Lords, before we move to the Statement on Kosovo, I should like to take the opportunity to remind the House that the Companion indicates that discussion on the 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.