Lords Sitting of 16 February 1999

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

UNESCO
Lord Judd Lord Judd asked Her Majesty's Government:
What steps they have taken to maximise the benefits both for UNESCO and the United Kingdom of the United Kingdom's renewed membership of the organisation.
Baroness Amos: My Lords, the Government rejoined UNESCO in order to support the organisation's purpose of advancing international peace through intellectual co-operation and to work with UNESCO to contribute to the international goals for poverty elimination. To that end we have maintained an active dialogue with UNESCO. We have recently put forward proposals to engage British civil society through a UK commission for UNESCO. These will be discussed at a consultation meeting on 25th February.
Lord Judd: My Lords, I thank the Minister for that helpful reply. Does she accept that the decision to rejoin was widely welcomed, not least by those of us who belong to the UNESCO forum? Does she also accept that when I attended a recent conference of UNESCO in Paris, it was good to hear senior officials speaking so positively about British participation and co-operation since we rejoined?
However, does my noble friend agree that the purpose of belonging is to enable those in the front line of education, culture and science to benefit from, participate in, and contribute towards the programmes of UNESCO? Does she therefore agree that it is most important for the new national commission to be seen to be fully representative of those communities in Britain? How will that be achieved?
Baroness Amos: My Lords, I thank my noble friend for his comments about the importance of our rejoining UNESCO. Since rejoining, we have taken a place on the executive board. We have a strong commitment to establishing a national commission but we want to get it right. We are consulting across government and with civil society. We want a commission which is cost effective and which taps into existing civil society structures. We envisage a commission which has representation from interested civil society groups, social sciences, the exact and natural sciences, environmental sciences, industry and commerce, culture and communications, and education and youth.
Lord Renfrew of Kaimsthorn: My Lords, is the Minister aware that over a year ago I asked her noble friend the noble Lord, Lord McIntosh, when we could
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expect the United Kingdom to ratify the 1970 UNESCO convention on the illicit traffic in cultural property? The noble Lord indicated that he hoped to reply rapidly. Can the noble Baroness tell us when that rapid reply will become available?
Baroness Amos: My Lords, I could say to the noble Lord, "rapidly"! However, I undertake to give the noble Lord as exact a reply as I can.
Lord Bridges: My Lords, will the Government use their influence in UNESCO to ensure that more is done to fulfil its educational mission? I understand that at present the organisation interprets education as being at university level and above and does not make the contribution it might to improving the literacy of the poorest countries in the world to which the noble Baroness referred in her first reply.
Baroness Amos: My Lords, I should like to reassure the noble Lord that education is one of the key areas in which we anticipate working closely with UNESCO, in particular as a core area of our White Paper is the elimination of world poverty. We want to look at universal primary education and the education of women and girls. We shall work with UNESCO not only in terms of higher education but also primary education.
Lord Redesdale: My Lords, taking into account that Hadrian's Wall is a UNESCO world heritage site, are the Government considering spending a great deal more on archaeological surveys of the wall and on preserving it from the ravages of tourism and neglect? A number of the outposts north of Hadrian's Wall are on the English Heritage at-risk register at present.
Baroness Amos: My Lords, the United Kingdom is seeking a place on the world heritage committee which, as the noble Lord states, does valuable work in assessing which sites should be on the world heritage list. The committee has also taken important steps to achieve a more balanced list by encouraging representation of sites in areas of the world which are poorly represented. Rejoining the committee would be a positive affirmation of our manifesto commitment to play a fuller part in UNESCO's activities. If I can give the noble Lord further information, I shall write to him.
Baroness Rawlings: My Lords, will the Minister explain why the Government are prepared to contribute around £11 million a year to UNESCO, yet—despite the noble Baroness's answer to the noble Lord, Lord Judd, and the answer of the Secretary of State on 10th November saying that it would occur "shortly"—there are still no plans to finalise the funding of the national commission secretariat?
Baroness Amos: My Lords, I return to the original Answer to my noble friend Lord Judd in which I said clearly that there is a commitment to establishing the commission. However, we want to get it right. We want to have a commission which is cost effective. We have

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consulted across government. We have also consulted with interested organisations and have received from them various indications of the kind of commission they would like to see. At the end of January this year, we wrote to a number of organisations, including the UK UNESCO forum, setting out our proposals with respect to the establishment of a commission. We intend to have a meeting on 25th February which will take us further. There have been no delays; we are interested in getting this right.
Lord Archer of Sandwell: My Lords, does my noble friend agree that this country has probably the richest network of non-governmental organisations in the world? Will the national commission be structured to take advantage of that? In particular, will it play a part in channelling this country's participation in the United Nations Culture of Peace programme in the year 2000?
Baroness Amos: My Lords, I can confirm to my noble and learned friend that it is our intention to tap into our existing NGO networks. That is a key part of the proposals contained in our document relating to the establishment of a national commission. We hope to establish a small commission which will have task groups investigating important issues. Linked to the commission will be a separate education committee, given that we focus so much on education.
As regards the Culture of Peace programme, clearly, conflict resolution and the development of peace processes form a core part of our agenda. We want the national commission involved in those issues too.
Lord Jenkins of Putney: My Lords, is my noble friend aware of widespread suspicion that the long delay in this matter is not so much to do with a desire to get it right as to do with a lack of enthusiasm? Given what she has said today, can one firmly reject those suspicions?
Baroness Amos: My Lords. I hope that I have made clear that the Government are committed to UNESCO. We rejoined UNESCO within six weeks of coming into power and the delay, if there has been a delay, has been in order to ensure that we consult as widely as possible and get it right.

Nuclear Test Ban Treaty: India and Pakistan
2.46 p.m.
Baroness Williams of Crosby Baroness Williams of Crosby asked Her Majesty's Government:
What representations are being made to the governments of India and Pakistan to sign the comprehensive nuclear test ban treaty.
Baroness Ramsay of Cartvale: My Lords, we continue to encourage both India and Pakistan to sign the comprehensive test ban treaty as it stands and
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without delay. My right honourable friend the Foreign Secretary reiterated our concerns last month to both the Indian national security adviser, Barjesh Mishra, on 20th January and to the Indian Foreign Minister, Jaswant Singh, on 4th February. My right honourable friend the Minister of State, Derek Fatchett, restated the same concern to the Pakistani Minister of State, Siddique Kanju, in Islamabad on 8th February.
Baroness Williams of Crosby: My Lords. I am grateful for that Answer. I understand that the Indian Foreign Secretary has indicated that India would not wish to hold up the coming into force of the treaty. In view of the fact that neither Russia nor the United States has so far ratified the treaty, and neither India nor Pakistan has so far signed it, does the Minister believe that the treaty is likely to come into force before time runs out in September?
Baroness Ramsay of Cartvale: My Lords, we continue to urge all states to ratify the treaty, in particular those 44 named states which have a nuclear capability and whose ratification is essential for the treaty to enter into force. Fifteen of the 44 have ratified so far and 26 have signed. Three have not even signed: they are India, Pakistan and North Korea. The UK and France were the first of the nuclear weapon states to ratify in April 1998.
The noble Baroness referred to September 1999. As provided for in the treaty, a conference will be held in September 1999 to consider how to expedite entry into force. It was always envisaged that that conference would be to review and to see how the treaty could be pushed forward.
Lord Ahmed: My Lords, is my noble friend aware that India is developing Prethvi II the long range missile which is capable of carrying nuclear warheads and that Pakistan will follow, as it did in respect of the nuclear tests? Does she agree that if the issue of Kashmir were solved in accordance with United Nations resolutions both countries could spend money on education, health and the eradication of poverty rather than wasting it on a nuclear arsenal?
Baroness Ramsay of Cartvale: My Lords, I thank my noble friend for that question. Of course, it is clear that the key to resolving conflict in the sub-continent is for there to be direct talks between India and Pakistan on all issues of possible conflict, which should include Kashmir. That is the best route for the avoidance of a costly and dangerous arms race in south Asia.
Viscount Waverley: My Lords, is the G8, encouraged by the United States, about to dilute its principal position on economic loan restrictions? If that is the case, what message does that send to neo-region states which are criticised for developing a nuclear capability for civilian benefit only?
Baroness Ramsay of Cartvale: My Lords, the restrictions imposed by the World Bank and the International Monetary Fund are very much in place and

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remain in place. We have never criticised states whose nuclear programmes are clearly intended for civilian purposes only.
Lord Dholakia: My Lords, will the Minister indicate what discussions have taken place between Britain and the rest of the Security Council members about the Comprehensive Nuclear Test Ban Treaty with reference to India and Pakistan? Will the Minister also indicate whether it is in the interests either of India or Pakistan for unilateral or multi-lateral sanctions to be continued against those countries? Such action gives the impression of coercion rather than willingness to be able to join such a treaty.
Baroness Ramsay of Cartvale: My Lords, sanctions were imposed to express international dismay and unhappiness at the nuclear tests carried out by both India and Pakistan in the summer of last year. As regards further discussion with other members of the Security Council and India, the US Deputy Secretary of State, Strobe Talbot, has now conducted eight rounds of talks with the Indian and Pakistani Governments on non-proliferation and regional security issues. The latest round was held in late January, during Mr. Talbot's visits to New Delhi and Islamabad. The Russian Prime Minister, Yevgeniy Primakov, visited New Delhi in December. The Russian Government have told us that he too urged India to sign the CTBT. France and China have also had recent bilateral contacts with the Indian and Pakistani Governments and I have indicated the British contacts with both the Indian and the Pakistani Governments.
Lord Paul: My Lords, coming from the sub-continent, I would say that both India and Pakistan are peace-loving and responsible members of the world community. I have no doubt that they want to show regard for the world community. Will the Minister make sure that the sensitiveness of their national pride is kept in mind during negotiations on the CTBT?
Baroness Ramsay of Cartvale: My Lords, Britain has a long and close relationship with both countries. Your Lordships can be assured that we will certainly keep firmly in mind all the points raised by my noble friend.
Lord Chalfont: My Lords, may I ask—
Noble Lords: Next Question

Roadside Drug Tests for Drivers
2.52 p.m.
Lord Campbell of Croy Lord Campbell of Croy asked Her Majesty's Government:
Whether the law and current technology provide adequately for police to test drivers at the roadside for drugs in quantities that might make them unfit to drive.
The Minister of Stale, Home Office (Lord Williams of Mostyn): My Lords, under road traffic law the police have strong powers to require motorists to provide specimens for laboratory analysis where they suspect that they are unfit to drive through drugs. The deployment of roadside screening technology for drugs would require a change to primary legislation. We are keeping the legislation and technology under review
Lord Campbell of Croy: My Lords, I am grateful to the Minister for his reply. 1 understand that trials on equipment are being carried out in selected areas of the country. When is it likely that the equivalent of a breathalyser will be in general use to detect both illegal substances and drugs that are prescribed for medical reasons? Will the Minister confirm that soft drugs, such as cannabis, have dangerous effects on driving ability?
Lord Williams of Mostyn: My Lords, as the noble Lord will recall, a three-year study was set up in October 1996. Therefore, it will finish its work in October of this year. We agree that there is a need for a roadside screening device of the sort to which the noble Lord referred. The difficulty is that the breathalyser focuses on one drug only—namely, alcohol—whereas, as the noble Lord rightly indicated, a variety of drugs are sometimes taken by those breaking the law. Cannabis is regularly found. It has been found in 16 per cent. of those tested so far. We need to keep this new area of technology and legislation very much in mind.
Lord Geddes: My Lords—
Lord Clinton-Davis: My Lords, will my noble friend agree that in too many cases people are stopped by the police in relation to drink and drugs on the pretext that an offence has been committed. Rather than engage in that sort of pretext, would it not be better for random testing to be introduced?
Lord Williams of Mostyn: My Lords, I believe that the police have sufficient powers to stop motorists. One has to strike a balance between infuriating the law-abiding and catching those who break the law. The police have substantial powers which can be used legitimately for the protection of the public and the prevention of that type of crime.
Lord Geddes: My Lords—
Baroness Masham of Ilton: My Lords, is the Minister aware that several years ago the All-Party Drugs Misuse Committee was shown equipment that could be used to test drugs at the roadside. The equipment was inside what looked like a briefcase. Is the Minister also aware that there is some very efficient equipment for testing diabetics? That equipment simply takes a sample of blood. With the scourge of drug-abuse, surely it is time that steps in this direction, including legislation, were taken quickly. It is a terrible problem for many people.
Lord Williams of Mostyn: My Lords, we have tested two devices. They can be used on either sweat or saliva at

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the roadside. However, there are difficulties because one is not screening for just one drug. There are prescribed drugs and unlawful drugs. We recognise that this is an important area of the law and that is why we believe that we should wait for the conclusion of the study which will be in October of this year.
Lord Geddes: My Lords, is the Minister aware—
Lord Mackenzie of Framwellgate: My Lords—
Lord Geddes: My Lords, this side! Is the Minister aware—I am sure he is—that a report of some 12 months ago by the Select Committee on the European Communities into what I broadly call the drink-drive regulations looked, at some depth, into the problem of drug-abuse and incapacitated drivers? I recommend that that is read by Members of your Lordships' House who are interested in the subject.
Lord Williams of Mostyn: My Lords, that is a valuable publication. My noble friend Lady Hayman presented the preliminary outcome of the study in February last year. Of 690 fatalities, which included 284 who had been driving, 16 per cent. had cannabis in the blood. However, the fact remains that alcohol was the major contributor at 34 per cent. I offer that as a perspective.
Lord Mackenzie of Framwellgate: My Lords, does my noble friend agree with me that the exchanges this afternoon provide compelling evidence not to legalise cannabis because of the uncertainty of technology?
Lord Williams of Mostyn: My Lords, the Home Office policy has been made perfectly plain by Jack Straw on many occasions. It is to the effect that my noble friend has identified.
Lord Cope of Berkeley: My Lords, will the Minister undertake that as soon as these highly desirable devices become available, appropriate legislative changes will be proposed promptly so that they can be put into use?
Lord Williams of Mostyn: My Lords, as I said in answer to the original Question, primary legislation would be needed. However, primary legislation and the time associated with it is not in my gift. A number of steps are being taken at the moment. There is a good deal to be said about the Strathclyde police force. That force has sent two sergeants to the United States to see what technology is available there and we have interesting lessons to learn from that.

"Decommissioning": Definition
2.58 p.m.
Lord Marlesford Lord Marlesford asked Her Majesty's Government:
Whether they will define "decommissioning" as referred to in the April 1998 Belfast agreement (Cm 3883).
The Parliamentary Under-Secretary of State, Northern Ireland Office (Lord Dubs): My Lords, "decommissioning" is the destruction of arms and explosives or their transfer, depositing or collection for subsequent destruction, in accordance with the decommissioning scheme made under the Northern Ireland Arms Decommissioning Act 1997, or in accordance with regulations and arrangements made pursuant to them by the Republic of Ireland's Decommissioning Act 1997.
Lord Marlesford: My Lords, does the Minister agree that Sinn Fein/IRA has repeatedly made it clear that it has no intention, and never has had any intention, of giving up its weapons and ammunition and that "decommissioning" to it means not using those weapons and ammunition? Does the Minister further agree that Sinn Fein/IRA intends to retain its arsenal so that, if it so chooses, it can recommission that arsenal and start to use it again? Does not that have significant implications for any possible recommendation by the Patten Commission for the future of the RUC? Frankly, would it not be better if we all stopped misleading ourselves by thinking of a peace process and recognised that whether even the cease-fire is intact is questionable?
Lord Dubs: My Lords, the Government would certainly not agree that we should question the existence of the peace process. The peace process has represented enormous progress for the people of Northern Ireland, supported by the majority of people in Northern Ireland and, indeed, in the Republic. Every party that supported the Good Friday agreement is under an obligation to decommission. That includes Sinn Fein as well as the other parties associated with paramilitary organisations. The Government expect all parties to go along with the agreement and to decommission. The issue is not whether they decommission, but when. I am not totally clear about the relationship of the noble Lord's Question to the Patten Commission. I believe that the commission will report towards the middle of the year. The Government will have to consider how to give effect to any recommendations that come from it.
Lord Pilkington of Oxenford: My Lords, how is the Minister prepared to deal with the view of Sinn Fein/IRA which equates its position with that of the RUC and the British Army, which are the representatives of a democratic state? Is the Minister prepared to say that he will stand by the rules that are given to the instruments of a democratic state and that he will not equate them with Sinn Fein/IRA?
Lord Dubs: Yes, my Lords. The Government certainly do not equate the RUC, the Army or other security forces with paramilitary organisations or the political parties associated with them. That is why I have consistently spoken about paramilitary organisations and their obligation to decommission their weapons, as have the Government.
Earl Russell: My Lords, does the wording of this Question give the Minister sympathy with the

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undergraduate who began an entry for a prize with the following words, "I will not define my terms. I do not like playing with marked cards"?
Lord Dubs: My Lords, I am not totally sure of the exact point that the noble Earl is making, but, if he is being helpful, I am most grateful.
Lord Fitt: My Lords, is my noble friend aware that only last week 81 per cent. of the people polled in Northern Ireland, right across both communities, demanded the decommissioning of weapons and that on Sunday morning when they read in the press that the Taoiseach of the Republic was demanding exactly the same thing, there was a great sigh of relief, only for that to be demolished within two hours when it appears that the Taoiseach came under tremendous pressure and then began to qualify what he had said in the interview? Does my noble friend recall, as I do vividly, all the circumstances that brought about the downfall of the Sunningdale agreement? Does not my noble friend recognise that a decided pattern is now emerging? Does my noble friend accept that the decommissioning issue could be satisfied by, for example, the handing in of Semtex—Semtex is offensive—even without the handing in of guns and that that would be a gesture to the overwhelming majority of the people of Northern Ireland? Unless the decommissioning issue is satisfactorily resolved, the whole peace process could be brought tumbling to the ground.
Lord Dubs: My Lords, I thank my noble friend for that point. As I said earlier, it is the Government's view that decommissioning must happen, and the only question is when. It is clear that a start to decommissioning would do more to create confidence between the communities than would any other single step. That is why we are urging all the paramilitary organisations to get on with it and to do it.
Viscount Cranborne: My Lords, following the question from the noble Lord, Lord Fitt, can the Minister confirm that the Taoiseach appears to have retracted his retraction and now seems, once again, to believe that it would be extremely unwise, to put it mildly, to encourage members of Sinn Fein/IRA to be members of the new executive unless decommissioning had started? If that is the Taoiseach's view once again, is it also the Government's view?
Lord Dubs: My Lords, the Taoiseach made an important statement urging the various paramilitary organisations to get on with decommissioning. I do not think that it would be particularly helpful if I tried to comment on the other statements made by the Taoiseach; I might add confusion. The Taoiseach and the Irish Government can perfectly well explain their position—and have done so consistently. The Government's view is that decommissioning must happen. We urge all the parties to get on with it. We have never said that it was a precondition—it is not,
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under the Good Friday agreement—but in terms of building confidence, it is enormously important that decommissioning begins.
Earl Attlee: My Lords, the decommissioning process must be complete in two years. Has the independent commission on decommissioning made any report to the Government on the progress of the decommissioning of illegal arms, as per the Good Friday agreement? We are now 10 months into a two-year process, so the report must be due soon.
Lord Dubs: My Lords, I am not aware of any formal report, but the decommissioning commission has had meetings with those individuals nominated by the various parties and organisations to liaise with it. That process is continuing.
Lord Craig of Radley: My Lords, in view of the Minister's definition of the word "decommissioning"—that it involves the destruction of weapons and arsenals—does he not agree that the time has come to use the word "destruction" rather than "decommissioning"?
Lord Dubs: My Lords, I think that the words mean the same. The noble Lord will recall that when the LVF recently decommissioned some of its weapons, pictures on television showed those weapons being destroyed in, I believe, an engineering workshop. We use the word "decommissioning" because that is the word in the Good Friday agreement and in our legislation.

Business
Lord Carter: My Lords, at a convenient moment after 3.30 p.m. my noble friend Lord Donoughue will, with the leave of the House, repeat in the form of a Statement an Answer to a Private Notice Question in another place on the safety of genetically modified foods.
Lord Henley: My Lords, I thank the noble Lord the Chief Whip for that statement. However, may I ask him to cast his mind forward to the business for next week? As the noble Lord and the House are aware, on Monday we are to debate the Motion in the name of the noble Baroness the Leader of the House on the White Paper on the Royal Commission and reform of this House. When I last looked at the list of speakers just before lunch it contained some 75 names and I think that it is now somewhat longer. I am sure that most noble Lords would agree that it would be regrettable if we debated such an important Motion very late into the night. Of those 75 noble Lords, who represent all sides of the House, I believe that about one third are Privy Counsellors. It is a very impressive list of speakers. Therefore, I wonder whether the noble Lord will agree now to offer the House—I think that this is what the

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House would like—an extra day for debating that important Motion.
Lord Carter: My Lords, the noble Lord is correct that the number of speakers on such lists tends to increase after lunch. I am aware of the length and the quality of that list of speakers, which now numbers 79. I am also aware that an official request has today been received from around the House for a second day of debate on the Motion in the name of my noble friend the Leader of the House which is currently scheduled for Monday. I shall need time to reflect on that request and to consider carefully the other pressures on the time of your Lordships' House and on those who wish to participate in debates. I am sure that discussions can proceed within the usual channels and in the usual way. I undertake to ensure that the House receives an answer to those requests, one way or the other, after Question Time tomorrow.
Lord Harris of Greenwich: My Lords, I thank the noble Lord for what he has just said. Will he recognise that there are many others in the House who take the view that it is essential to have a second day for this debate? With great respect to him, it would be absurd for us to attempt to have a one-day debate when in fact 79 people have already put down their names and that almost certainly a great many more will do so before the end of the week.

Access to Justice Bill [H.L.]
3.7 p.m.
The Lord Chancellor (Lord Irvine of Lairg): My Lords, I beg to move that the Bill be now further considered on Report.
Moved, That the Bill be further considered on Report.—(The Lord Chancellor.)
On Question, Motion agreed to.
Clause 13 [Advice and assistance]:
Lord Thomas of Gresford Lord Thomas of Gresford moved Amendment No. 97:
Page 9, line 27, leave out from beginning to ("or").
The noble Lord said: My Lords, these amendments are grouped with others. Their purpose is to remove from the Bill the provisions which grant to the legal services commission the ability to provide advice, assistance and representation through salaried lawyers in the commission's own employment within the criminal defence service. I find it somewhat ironic that after a full day on Report on the community legal service in which the virtues of competition, conditional fee agreements, exclusive contracted services, lawyers in civil actions taking a risk like any other business—all the virtues of privatisation—were lauded to the skies, we now turn, in considering the criminal defence service, to the virtues of nationalisation—replacing the independence of individual lawyers chosen by the client in competition with others and answerable only to the
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client and to the court—with a salaried employee of the state assigned to defend a person in jeopardy of his liberty.
On the third day of the Committee stage we spent two hours discussing the matter in terms of high principle—not least in the contributions of the noble Baronesses, Lady Mallalieu and Lady Kennedy, and my noble friend Lord Hutchinson. I myself relied on the stirring words of the Chief Justice of Australia, the honourable Sir Gerard Brennan. The reply of the noble and learned Lord the Lord Chancellor was: first, that it was an insult to the ethics of a group of people—which is not yet in existence—to assert that they could not be independent; secondly, that the choice between the independent practitioner and the salaried employee will be maintained; thirdly, that there might be a gap in the provision which a salaried defender service could fill; and, finally, that, having regard to his budget, salaried defenders might afford a useful benchmark against private practitioners in terms of quality and cost—that is to say, that his proposals will pull down the cost of defence services. In none of those matters referred to by the noble and learned Lord do I find the argument of principle fully addressed. We spent some two hours on that topic.
I now turn to the practical aspects of the proposal to see whether it will work. Article 6 the European convention guarantees the right to a fair trial in both civil and criminal proceedings. The concept of a fair trial contains many elements. At the core is the right to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Also contained in Article 6 is the right to defend oneself in person or through legal assistance, and to call witnesses.
However, as was said by the Supreme Court of the United States, mere access to the courthouse doors does not by itself assure the proper functioning of the adversary process. That court said that a criminal trial is fundamentally unfair if the state proceeds against a defendant without making certain that he has access to the raw materials integral to the building of an effective defence. Thus the Supreme Court has often reaffirmed that fundamental fairness entitles legally aided defendants to an adequate opportunity to present their claims fairly within the adversary system. To implement this principle the Supreme Court has focused on identifying the basic tools of an adequate defence or appeal and has required that such tools be provided to those defendants who cannot afford to pay for them.
The important lesson that one learns from the Supreme Court of the United States is that a state defence service in this country must provide not merely the advocate to appear in court but also the back-up team. The issue that has to be addressed is the cost to the public purse of the administration and the expense of the whole team. At present, wherever in the country a person is arrested there is available in every police station a solicitor of his own choosing to advise him. That solicitor will have his own back-up staff of legal executives and secretarial and other assistance in his own office. He will also have the physical resources to carry out the necessary investigations, the interviewing

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of witnesses, the instruction of experts—pathologists, psychiatrists, fingerprint experts and scientists specialising in fibre evidence or DNA and so forth. He must obtain the sanction of the court before he can incur such expense, whether from the court itself, the administrative staff or the Crown Court in a serious case. The independent solicitor, if he so desires, has the choice of independent counsel to act for his client in an appropriate case. He can match the level and breadth of experience of the advocate to the case before him.
A nationalised defence service will require the setting up of a central administrative office and regional offices. If the footprint of that service is to extend to the whole of England and Wales and is to cover every police station where interrogation may take place; every magistrates' court and Crown Court, clearly those regional offices of the state defence service will be numerous. If the CPS is any guide, it will require an office for each Crown Court area with the equivalent of the proposed CPS district attorney to oversee the region.
I always return to my home territory of North Wales in order to see how things work in a rural area. In North Wales the CPS employs a back-up team of about 1.5 personnel for every qualified advocate. The whole of the investigative arm of the CPS is covered by the North Wales police. They not only provide the witnesses, but they also ensure that they get to court. I expect that a state criminal defence service will require a ratio of three staff to one advocate in order to provide a comprehensive service.
Is it to be supposed for a moment that with this nationwide and expensive framework in place, with a central administrative office, regional and Crown Court offices, an accused person will for long be able to say "No, I do not want that service. I want my own solicitor to act"? If choice is permitted to continue, then the investment of so much national resources in the criminal defence service in providing the back-up team and the support staff is an enormous commercial gamble. If all defendants choose not to use the state defence service it will have nothing to do and the whole framework will be useless.
What about the workload of such a service? The American Bar Association states in Standards for Criminal Justice published in 1980,
"Neither defender organizations nor assigned counsel should accept workloads that, by reason of their excessive size, interfere with the rendering of quality representation or lead to the breach of professional obligations. Whenever defender organizations or assigned counsel determine, in the exercise of their best professional judgment, that the acceptance of additional cases or continued representation in previously accepted cases will lead to the furnishing of representation lacking in quality or to the breach of professional obligations, the defender organizations or assigned counsel must take such steps as may be appropriate to reduce their pending or projected workloads".
The American Bar Association has said that there can be no overloading of a criminal defence service and that only an appropriate amount of work can be undertaken. If the criminal defence service is like the CPS in this country, it will be a unionised body with fixed hours (nine to five), with a salaried employee who, unlike the independent barrister or solicitor, has no need to move on to the next case to improve his own income. He will
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be entitled—and no doubt will do so—to prepare his cases not in the evenings or at weekends, as we all do, but during days set aside out of court. In addition, he will require time for training and for updating, time that independent practitioners take out of their daily routine.
The first casualty of such a system in order to save costs will be independent specialist reports. It is so tempting and attractive to ask, "If the pathologist who is instructed by the police comes to a professional conclusion and he is a witness who is not there as a party to the cause but to assist the court, why should the defence have a pathologist? Why should there he more than one scientist or one psychiatrist or one expert in finger printing or in DNA?" Yet when one considers the history of miscarriages of justice in this country, one sees it is precisely in those areas that miscarriages arise due to scientific inadequacies. One thinks of the Judith Ward case and the Birmingham Six case. I know of a man who was imprisoned for 14 years clue to a miscarriage of justice when it was ultimately discovered that the scientist who had been responsible for his conviction had faked his findings.
The noble and learned Lord, Lord Archer of Sandwell, referred to the report of Messrs. McConville and Mirsky in 1980 and queried how far things had changed since then in the United States. The Department of Justice in the United States produced reports in 1986 which covered 777 defender programmes in all of the 50 states of the Union and involved public defender systems, contract lawyers and assigned counsel. Revealingly, one county in Arizona which awarded contracts to the lowest bidder was found to violate the 5th and 6th Amendments of the United States Constitution because it did not take into account the time an attorney spent in representing his clients.
Importantly, the contract system in Arizona did not provide for support costs such as investigators. It did not consider the competence or experience level of attorneys bidding on contracts, nor did it consider the complexity or seriousness of the cases being bid on. The slate simply let out contracts to the lowest kidder. The changes in the criminal justice system in the United States have now caused the Department of Justice to undertake an entirely new comprehensive national survey of indigent defence systems in order to evaluate and compare the effectiveness of services offered. One of the unsolved problems is the question of co-defendants whose interests collide; for example, where one seeks to do a deal and claim immunity in return for giving evidence against another. It simply is not possible for the same organisation to act for both defendants. No such research, consideration or consultation backs these proposals.
In the White Paper The Machinery of Justice there is reference to a single study that was carried out by an individual in 1997. There is nothing more. In my view these proposals are simply pulled out of the air as a good, money-saving wheeze. Much is made of the cost of defence legal aid. It is said that 1 per cent. takes 40 per cent. of the criminal legal aid funds in the Crown Court. That is not surprising; it is the complex, lengthy and serious cases which consume the largest resources of skill, both in advocacy and particularly in expert

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support services. In fact the Bar Council has agreed in most cases to accept graduated fees. That system is working well, although its effects have not been evaluated. But now these proposals involve the costs of a nationwide administrative organisation, coupled with complete uncertainty as to the extent to which its services will be chosen by the consumer—the arrested, accused defendant. Is that value for money? I do not think so. I beg to move.
Lord Clinton-Davis: My Lords, I disagree with the fundamental premise of the noble Lord's argument which has just been adduced, and I have said so before. In providing a complementary service through the private side of the profession, I believe that one should encourage the provision of a salaried service. Moreover, I think that the noble Lord grossly exaggerated the draconian effects that the introduction of such a service would have. In fact, I do not believe that would be the case at all. I believe that it could be an important process in the development of someone's professional career. I do not believe that the experience in Arizona necessarily disqualifies the introduction of this proposition in this country.
It is, with respect, something of a slur on those engaged in the Crown Prosecution Service, for example, to imply—this was not said expressly—that they will not devote themselves assiduously to engaging in the task that is before them. There is not a shred of evidence to suggest that they are simply a nine-to-five operation. There is a considerable measure of pride in the work that they do, even if perhaps they are not rewarded for going outside the usual hours of service that are expected of them, just as in the private side of the profession lawyers take pride in their work and they are not necessarily compensated for every minute that they are engaged in the work that they undertake.
When we addressed these issues at the Committee stage my noble and learned friend said that he had no intention of providing the majority of services through the salaried service. That is an assurance that the House should welcome, as indeed it should welcome the amendment tabled by my noble and learned friend that would certainly remove the suggestion that there would be some compelling reason for an individual to have to use a member of the salaried service. That is how I understand the position although my noble and learned friend will, of course, summarise the argument for himself. As I understand it, that should be a satisfactory assurance for the House.
In approaching this issue, I think it is important to ensure that the service is provided with sufficient resources to protect the rights of the individual. There is no suggestion that that would not be the case, although it is again one of the arguments that is implied by the noble Lord. It is important in this context to ensure that there is a greater parity of representation—there cannot be complete parity of representation—between the defence and the prosecution. I urge the noble Lord not to pursue this argument because, as I have indicated, I think it could be interpreted unfortunately by those
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who are currently engaged in the prosecution service and who, by and large—of course, mistakes are made—do their work well.
Lord Carlisle of Bucklow: My Lords, not having taken part in the Committee stage, one of the disciplines that one imposes upon oneself is that one is required to read it. Having done so, I am happy to say that I do not propose to repeat the arguments so eloquently made by the noble Lords, Lord Hutchinson and Lord Thomas, and by the noble and learned Lord, Lord Ackner, against the whole principle of the salaried defender. Having read those speeches one is in the happy position of being in the situation of the third member of the Court of Appeal who is able to say, "I agree and have nothing—or, in this case, little—to add".
I wish to ask one or two questions. I make it clear that I align myself with those who are opposed in principle to this proposal. The noble and learned Lord the Lord Chancellor was good enough to accept at the end of one of his speeches that there was a distinction in principle between those who favoured a salaried defence service and those who did not. I make it clear that I put myself with those who are opposed to a salaried defence or salaried prosecution service. One of the great strengths of the English criminal Bars is that lawyers both defend and prosecute. Despite the words of the noble Lord, Lord Clinton-Davis, a salaried defence and prosecution service is inevitably bound in the long run to harm the independence of those services.
What is the purpose, as the noble and learned Lord the Lord Chancellor sees it at this time, of the criminal public defender? In particular, what is the need for the introduction so quickly in the Bill? On any view, it would have been accepted by all sides of the House that we are proposing a major, fundamental change in criminal representation in this country. We know that it first saw the light of day on the face of the Bill without any form of prior consultation with the Law Society or the Bar Council. What is the hurry for its implementation?
In Committee the noble and learned Lord the Lord Chancellor made it clear that he did not envisage that it would be greatly used. He said:
"I stress that it is not our intention that salaried defenders should supplant the independent Bar or, indeed, the solicitors' profession. That will never happen. We see value in the commission having power to introduce into the system a salaried element, subject to appropriate ethical safeguards. But it will always be a mixed system in which the salaried element will by far be the smaller part".—[Official Report, 26/1/99; col. 916.]
What part does the noble and learned Lord the Lord Chancellor envisage the salaried defender will play? What is the salaried defender able to provide which the duty solicitor system at the moment cannot adequately provide? I am driven to the conclusion that the purpose must be, and can only be, the intention to try and save money. Let me make it clear that I fully accept the importance of that aim; I fully accept what the noble and learned Lord the Lord Chancellor has said on many occasions; namely, that one must be concerned about the rapidly increasing costs of criminal legal aid. Where I part company from him is in the criticism that he goes on to make of my colleagues at the criminal Bar

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without regard to the fact that almost all of those fees come through graduated fees agreed with his department.
I accept that there is a concern about the rapid increase in the cost of criminal legal aid; I accept that we should have value for money. But value for money is not the same thing as saying, "Let us provide the defence as cheaply as we possibly can". It seems to me that the only intention behind the creation, out of the blue, of the public defender—without adequate explanation of his role; without adequate consultation about the effect that it will have on the future of the legal profession in this country—is merely a demand to see how cheaply you can get the service done. I hope that when the noble and learned Lord the Lord Chancellor comes to reply to the debate, he will explain how he envisages that role, and why he believes it is necessary to bring it in now rather than in the course of separate legislation, as the noble Baroness, Lady Kennedy of The Shaws, suggested.
Baroness Mallalieu: My Lords, those parts of Clauses 13 and 14 to which these amendments relate continue to trouble many of us who practice at the Bar, some of whom are not able to be in their places today, in particular the noble Baronesses, Lady Scotland and Lady Kennedy of The Shaws.
I hope that the noble and learned Lord the Lord Chancellor will accept that that is not because our brains have atrophied into a backward-looking trade union mindset as a result of a surfeit of feather-bedding and rich pickings from the regal legal aid system—to use phrases used earlier at Committee stage—but rather because we have worked, with not a little pride, under a system which was largely shaped by those great reforming Labour Lord Chancellor's, the late Lord Gardiner and Lord Elwyn-Jones. Many of us are deeply fearful that these particular proposals, whatever the financial necessities that drive them, will result in a system which serves the public less well in the future.
Salaried defenders are not currently necessary. At present there are ample independent practitioners of the requisite skill ready and willing to carry out the workload under legal aid. I accept that that could change after the passage of the Bill. Firms of solicitors which currently carry out an element of legal aid work—often out of public spirit and at some commercial disadvantage to themselves—may no longer be prepared to do so once it becomes necessary for them to apply for franchises. In those circumstances, sadly, some areas could well find that there are insufficient legal aid practitioners available, particularly in specialist fields. But if and when such a situation arises, that surely would be the time for a proper debate based on actual need for these provisions, followed possibly by legislation to meet that need.
The underlying principle that causes many of us great concern continues—and continues despite the assurances which the noble and learned Lord the Lord Chancellor has already given. The state which makes the accusation and conducts the prosecution must neither control the defence nor appear to do so. The independent defender is the main safeguard which ensures that that does not happen. The public is rightly
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concerned about miscarriages of justice. Time and time again it has been independent practitioners—both solicitors and barristers—who, long after they have ceased to be paid to represent an accused, have continued to work and campaign at their own expense to right such wrongs, sometimes over many years.
Accepting what the noble Lord, Lord Clinton-Davis, has said about those who currently work within the Crown Prosecution Service, many of us worry whether the salaried defender will be permitted to devote the time of his employers to pursuing what were sometimes wrongly seen by others as lost causes.
I cannot support the principle behind this part of the Bill, quite simply because I do not think that it will improve access to justice; rather the reverse. I hope that the noble and learned Lord the Lord Chancellor understands the strength of feeling and, above all, the dismay which is widespread in my branch of the profession and beyond about these particular aspects of the Bill.
I hope that the noble and learned Lord will also understand that I and others are grateful to him for giving some way, and going some way, to meet concerns about the lack of choice for an accused which was raised by all sides of the House in Committee stage. In particular, Amendment No. 111—to which we will come soon—is helpful, if partial, reassurance. I hope that the noble and learned Lord the Lord Chancellor will be able to give a rather fuller reassurance before the Bill leaves your Lordships' House—namely, that every accused person will, unless it is wholly impractical, be permitted to choose whether to trust his defence to an independent practitioner rather than to a salaried defender allotted to him. Unless an accused person can do so, I am fearful that the role of the independent defender will be steadily undermined, and the underlying principle of criminal legal aid—that the very poorest should also have access to the very best—will, over time, become a thing of the past.
Lord Hutchinson of Lullington: My Lords, one of the problems about the public defender is that, this being an Access to Justice Bill, all those who speak are liable to be lawyers who are inevitably involved in the matter. That makes it very difficult for those who are riot lawyers to separate the wheat from the chaff. Because of the way the Lord Chancellor has replied to criticisms from his fellow lawyers—it has come to the fact, as the noble Baroness has just said, that any argument put forward is seen as special pleading—one has to start one's observations by showing that that is not one's attitude.
I am bound to point out to the noble and learned Lord that when, more than 20 years ago, my noble friend Lord Wigoder and I formed the Criminal Bar Association we did so in order to create a radical reforming body within criminal practitioners. That association continues and is flourishing. Indeed, I think I can say without exaggeration that it has played an influential part in all reforms to the criminal law in the past 20 years. My noble friend Lord Phillips has done

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very much the same on the side of the solicitors' branch. I really do think that we on these Benches need no lessons on reforming zeal in relation to the criminal law.
I should like to bring this matter nearer home. Anyone and any Member of this House may find himself in a police station. He may kill someone with his car. He may be wrongly identified in a public lavatory or at a demonstration. He may carry goods out of a shop and be charged with stealing. There are a hundred other ways in which any member of the public may find himself in a police station. When he gets there the routine is that he will be put in a cell, to await his production before the duty sergeant, in order to cool off or possibly to make him more amenable to making a statement.
What does that person want when he is in that cell, incommunicado, alone, frightened or indignant? He wants someone from outside; someone who will be on his side, with time to listen, to act, to restore his personal liberty and personal self-respect, and to understand his predicament. He does not want a friendly WPC, or a probation officer, or a welfare officer. He wants someone from outside. In other words, he wants an independent person, an independent lawyer. When he is awaiting trial he wants someone—this was referred to in Committee by the noble Baroness, Lady Kennedy—who is prepared to go the extra mile. In saying that, the noble Baroness was disparagingly accused of casting herself in a heroic role. It has nothing to do with heroism. It happens to be the essence of advocacy. Advocacy is not oratory, as many lawyers find in this and in another place. That is the essence of advocacy; to pursue someone's case, however long, however boring and however difficult it may be, and to establish his innocence or the probability of his innocence.
In Committee the noble Baroness, Lady Crawley, made a moderate and most thoughtful speech about this matter. As a non-lawyer, she felt that the part-time salaried advocate could provide a benchmark to measure the quality and cost-effectiveness of the advocate. I would say to the noble Baroness and to other Members of the House who think that there is something in that suggestion that it is simply not like that. Would the noble Baroness send a part-time surgeon into the operating theatre to monitor and see how the work was being done? Would she send a part-time pilot onto the flight deck to see whether the pilot's work was being done properly? Of course, any fool can do this job more cheaply, spend less time on it and cut every corner, but who is measuring the quality assurance; who is the master in that situation? It is the defendant who gives the instructions, but is the master going to be the Treasury, or the CDS or the LSC?
When it comes to trial, what does the person want when facing up to the accusation? Let us suppose that the police have put up a false case. Let us suppose that they have put in a false confession. Let us suppose that they have had a false identification or have planted drugs in the person's car, as, alas, happens only too often. What the defendant wants is, first, an independent judge; secondly, a jury randomly selected; thirdly, a fair and detached prosecutor; and, lastly, a fiercely independent advocate. All those players can be
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inefficient and incompetent, as any other professional person can be, but they form the indispensable structure which is there to resist the huge weight of authority—the lies, the corruption, the incompetence, the zealotry or even the simple human error of a person's accusers.
Governments have always sought to tamper with this structure—these awkward entities. It is said that judges are self-important and seek to control politicians. It is said that juries can be perverse, expensive and slow and that people's ability to go before a jury should be reduced in order to save money. It is said that juries are not intelligent enough to try difficult cases. In this House it is our job to be vigilant, to perceive the dangers that lie ahead and to stop the Executive when it goes too far. When a Minister, given powers, assures noble Lords that they will not be used, the warning bells ring around the Chamber and, I may say, have always done so in my time in this House.
This part-time lawyer will only fill in gaps and will never do difficult cases. Who is he? We have never been told. Where will his desk be? We have never been told. What are his job prospects? We have never been told. What will his experience be? We have never been told. A salaried defender service can be brought into existence, as the noble and learned Lord agreed, under this Bill. That is the true situation. As the noble Baroness, Lady Mallalieu, pointed out, the frank wording in paragraph 99 of the Explanatory Notes says precisely that:
"The intention is that, in time, the Commission will provide all, or nearly all, representation exclusively through contracted or salaried defenders, whom it will require to meet defined quality standards".
There you have it. I ask the House: is that what the public wants; is that what the accused person wants? Can we imagine any independent judiciary drawn from the Crown Prosecution Service and the criminal defence service? One has only to ask that question to see the mischief which could come about.
Lord Clinton-Davis: My Lords, I am obliged to the noble Lord for giving way. I well remember during my many years of doing criminal work as a solicitor that many stipendiary magistrates were drawn almost exclusively from that class of barrister who practised as a prosecutor in criminal cases. The same applied to many judges in what used to be the Quarter Sessions and is now the Crown Court. What is the difference?
Lord Hutchinson of Lullington: My Lords, the noble Lord refers to the barrister who prosecutes. Every barrister can prosecute or defend and has a practice which may do more prosecuting or more defending. Every barrister to whom the noble Lord referred was a free member of the Bar who could take briefs from any area he wished. The noble Lord knows perfectly well that when Treasury counsel are prosecuting at the Central Criminal Court they may leave that area, take on other work and become judges or defending barristers, whereas someone who is employed in a government office could never be in that situation.
The advocate is repeatedly referred to as the "quality assured provider", the "contactual provider" or the "salaried defender". No longer will we refer to the noble

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and learned Lord, Lord Falconer QC; it will be the noble and learned Lord, Lord Falconer QAP, or some other such phrase.
That is the language of bureaucracy, of the Civil Service, of control, of intellectual isolation; it is a world of codes and guidelines, those fig-leaves of control. I must tell the Lord Chancellor that from my simple inquiries at the Criminal Bar the young men and women feel at this time that those at the top of the profession are losing touch with those at the coal-face. As has already been pointed out, this idea was inserted into the Bill without any consultation with either branch of the profession or indeed with the public. I suggest that it is a dangerous concept and should be removed from the Bill.
Baroness Crawley: My Lords, the noble Lord, Lord Hutchinson, hopes that any non-lawyer can separate the wheat from the chaff. As that non-lawyer I hope that I do not disappoint him.
First, I question the assumption of the noble Lord, Lord Hutchinson, that a salaried defender service would somehow be a part-time service. He colourfully illustrated his point asking whether 1, as a non-lawyer, would want a part-time pilot on the flight deck. As a current Member of the European Parliament who travels a great deal by air, I certainly would not want a part-time pilot on the flight deck, and I would not be defending a salaried defender service if I felt that that was an accurate way of describing it.
I support the arguments put so clearly by my noble friend Lord Clinton-Davis. These amendments reflect an unnecessary anxiety in parts of your Lordships' House about the prospects of salaried defenders. As far as I can see, the concern is based on rather emotive assumptions and some, though not all, questionable anecdotal information about a salaried defender service totally lacking in independence and overflowing with second-rate practitioners. Yet, from what we know of experience around the world, the picture of the quality of salaried defenders is quite mixed with some countries coming off much better than others. Recent 1997–98 studies referred to in the White Paper are attached to the Bill.
But even that mixed picture does not need to reflect our own proposed new scheme which, from the start, will be based on exacting quality control. Anxiety is also based on good old-fashioned resistance to change which, in some ways, is to be expected. Change is never easy, particularly where traditions and ways of working have a long and distinguished pedigree. But such resistance is no real justification for not even contemplating the introduction of a choice between salaried defenders and private practitioners. The Lord Chancellor made it perfectly plain on several occasions during the passage of this Bill that it is not calling for a summary take-over by a salaried defenders' service. As my noble friend Lord Clinton-Davis said, it is seeking a complementary competitive choice for clients.
There are opportunities here that should not be missed when we contemplate the prospect of our home-grown salaried defenders; opportunities of greater career
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flexibility within the profession and opportunities of establishing—I repeat—quality bench-marking for the profession. There are also opportunities for a salaried defenders' service to be a useful and invigorating spur to competition within the profession and an opportunity to fill current gaps in access to and availability of practitioners nationwide. As I see them, the opportunities far outweigh the concerns raised in response to this part of the Bill.
Lord Campbell of Alloway: My Lords, with respect to the noble Baroness, the concern is not one that manifests itself purely in your Lordships' House. It is a concern that manifests itself in both branches of the profession and in particular on the circuits throughout the country. It is not a question of resistance to change; it is a question of the quality of the service and maintaining that quality so that, as has been put so eloquently—I shall not repeat it—the citizen who is stuck in a police cell has at least the opportunity to choose someone who is independent to look after him.
It is said that that type of independent representation will not be excluded. It may not be excluded by statute, but if we ride two systems in tandem, it may well be the case—as it is genuinely feared to be—that the duty solicitors will not be available to provide the service or the choice for the man in the cell.
I do not understand what is meant by the phrase, "quality bench-marking for the profession". Certainly the Bar maintains its quality in its own way, and has done so with conspicuous success. From the start of one's time in the circuit one learns the ropes through the discipline that is imposed by the head of chambers and the advice and discipline imposed by the judges and by the general traditions under which we operate. I do riot understand how that can conceivably be applied to people who work under contract. Contracted men are subject possibly to union rules, to government control, to regulation by a commission, or to retirement, They are subject to this and subject to that, but they are never free independent lawyers. I support this amendment. I can see no justification for the introduction of a system of state defenders.
4 p.m.
Lord Hacking: My Lords, it is important before we conclude this debate to look at exactly what these amendments seek to achieve. Amendments Nos. 97, 98 and 104 tabled by the noble Lord, Lord Thomas of Gresford, and Amendment No. 103 do no less and no more than seek to remove altogether the Criminal Defence Service. Indeed, the noble Lord even seeks, in Amendment No. 97, to remove any right of the Criminal Defence Service to give advice.
Lord Thomas of Gresford: My Lords, that is not the purpose of the amendments. They relate to people who are employed, as the noble Lord will see if he reads them a little more closely.
Lord Hacking: My Lords, I can only go by the form of the amendments tabled by the noble Lord, and he specifically excludes the provision of advice as well as assistance in his Amendment No. 97.

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The noble Lord, Lord Kingsland, has not yet spoken to Amendment No. 102. That is a more moderate amendment. If I understand it correctly, it seeks to remove the operation of the Criminal Defence Service in the higher courts.
Lord Kingsland: My Lords, Amendment No. 102 has nothing to do with me. My amendment is Amendment No. 103, which does not seek to remove the Criminal Defence Service. It simply seeks to limit its representational powers to magistrates' courts.
Lord Hacking: My Lords, I am grateful for that correction. My reference is to Amendment No. 103, which effectively seeks to remove representation by the Criminal Defence Service in the higher courts—which is of course a more moderate amendment.
There have been some very good speeches so far in this debate. I always listen with great respect to the noble Lord, Lord Carlisle, and to my noble friend Lady Mallalieu. Indeed, the noble Lord, Lord Carlisle, and I stood almost alone among the great political parties in debates on the Crime (Sentences) Bill in our firm opposition to mandatory sentencing and other matters. Similarly, in debates in this House, particularly concerning penal and social affairs, I am almost always in entire agreement with my noble friend Lady Mallalieu. I assure her that I (I do not speak for other Members of the House) do not consider that she is of addled mind, that she is a backwards looking lady or a feather-bedder, to refer to the three expressions that she used in her remarks.
The noble Lord, Lord Carlisle, was therefore right to identify one of the virtues of the present system, which is true not only of barristers but of solicitors—that we are open to representing both sides. I believe that that is a virtue and the noble Lord was right to draw attention to it. The noble Baroness, Lady Mallalieu, was right to draw attention to an essential fact in the bringing in of this new scheme; namely, to quote her words, that the state must not control the defender.
The reality is that the present system does not always work very well. We have the duty solicitor system, but sometimes very young, immature lawyers are required to do that duty and sometimes advice is in the hands of a novice. The barrister defender system in the private sector does not always go very well. For example, there is an enormous proportion of last-minute returns of brief, and barristers often have to appear in court without any proper opportunity to read their papers before the case has started.
Therefore, my noble and learned friend the Lord Chancellor is bringing forward this total review of both the criminal and the civil side, setting up the criminal defence service and bringing it into use on an "as need" basis. That is all that he is proposing. He is not proposing, as my noble friend Lord Clinton-Davis said, to abolish altogether the private defender in the system. Indeed, the system will continue to rely substantially on the independent private practitioner.
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There are rural areas where the accused is not presently well served. It is a long time since I appeared as a member of the Bar at the Bodmin Crown Court in what was then the Bodmin Quarter Sessions. However, it is my recollection that amid all the dispute about rights of audience there was a recognition in certain areas in Cornwall and Devon that solicitors should have full rights of audience to represent defendants in that area. That was before the Courts and Legal Services Act came into force. The reason was very simple: there was a shortage of members of the Bar to serve those areas. That is not to criticise the Bar; it is to recognise that there are certain areas where further assistance needs to be provided to the accused in the defence services. That is all that my nobble and learned friend is proposing.
I must say to the noble Lord, Lord Thomas of Gresford, that there is not a shred of evidence that the proposed new service will be a 9 a. m. to 5 p.m. service. In so far as that comment is based upon the work of the CPS, it is a disrespectful one.
This House can be very conservative, not only politically in its contents, but also in its judgment over innovation. The amendment that has been pressed upon your Lordships during this debate seeks to prevent us moving forward, and to prevent us even having an alternative to the present system for the defence of the accused. At the end of the day, we are here to see that the defence is well represented.
As to Amendment No. 103, tabled by the noble Lord, Lord Kingsland, I shall make just one comment. It seems to me that it is one of the advantages of the new system that, once a defence is in the hands of a member of the Criminal Defence Service, it would be thoroughly sensible, particularly, for example, in the case of a guilty plea, if the salaried defender took the case all the way through to the Crown Court. It would merely blunt efficiency if he were to be cut off from representation at the magistrates' level. For all of the reasons that I have attempted to advance, I hope that my noble and learned friend will robustly reject these amendments.
4.15 p.m.
The Lord Chancellor: My Lords, the amendments in this group seek to remove completely, or, in the case of the noble Lord, Lord Kingsland, restrict, the ability of the legal services commission to provide services by employing salaried lawyers.
The purpose of the Criminal Defence Service is to ensure that people subject to criminal investigations and proceedings receive the advice, assistance and representation that the interests of justice require. The Bill provides flexible powers to achieve that in whatever ways will secure the best value for money, consistent with the interests of justice. One of those powers is the power for the legal services commission to provide some advice, assistance and representation through its own employees. It is that modest power that these amendments seek to strike down or restrict.
I have repeatedly made it clear that it is not the Government's intention to move to a fully-employed public defender service or anything like it. But that does not deter the noble Lord, Lord Thomas of Gresford,

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from referring to a nationalised defence service. At best, it is a figment of his imagination; at worst, it is a scare story to buttress a bad argument. To make that clearer still, I have tabled Amendment No. 111, which we shall discuss later, to preclude regulations which could prescribe circumstances in which people may only choose a salaried defender. I repeat that people will always have a choice. Talk of assigned lawyers is therefore equally inconsistent with what is proposed.
The noble Lord, Lord Hutchinson of Lullington, said, with a sense of discovery—he used the words, "There you have it"—that what was intended was that all, or almost all, criminal defence services would over time be provided through contracted or salaried lawyers. What he omitted to note was that contracted lawyers are lawyers from the independent legal profession. Salaried lawyers would be the lawyers employed by the criminal defence service. It is intended that there should always he mixed provision and a choice.
Some disparaging things have been said about the lawyers who would work for the criminal defence service, which has been described as prospectively a part-time service, as if lawyers in public service would not be as committed as lawyers in independent practice. I can assure noble Lords that the dedicated Civil Servants in my own private office, who work long hours which in many other walks of life would be regarded as unsocial, do so out of a strong sense of public service.
Noble Lords: Hear. Hear!
4.15 p.m.
The Lord Chancellor: My Lords, I have no reason to suppose that committed, salaried defenders would show anything other than dedication to public service.
I firmly believe that a salaried element has an important role to play in the overall scheme. First, it can step into gaps which cannot be filled adequately by the private profession alone. An example might be a rural area with relatively few solicitors' firms undertaking criminal work. The provision of a 24-hour duty solicitor service at the police stations in that area might be too great a burden for those firms to bear alone. At present, the result would probably be excessive use of telephone advice rather than attendance and over-reliance on non-qualified representatives; in other words, the quality of the service would suffer. In future, the commission's salaried employees could share the provision of 24-hour coverage with the local firms.
Secondly, it will provide the individual with a wider choice. It is my belief that salaried defenders will be seen as providing at least as good a service as private practitioners and that they will prove to be popular. In some areas there may be a limited number of firms which meet the quality standards for a contract. A salaried defender will therefore provide additional choice.
Thirdly, a mixed system of salaried and private providers will enable the commission to benchmark the costs and quality of each against the other. That spur of competition for salaried and private defenders will help promote value for money. It is my belief—and there are
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successful systems overseas which support that belief—that a mixed system of private and directly-employed lawyers can provide better value for money than either a fully private or a fully employed system. I make no apology whatever to the noble Lord, Lord Carlisle, for seeking better value for money.
Last Thursday the Liberal Democrat Benches pressed an amendment—not their own—that was concerned with the risk that increases in the cost of criminal defence services might reduce the resources available for the community legal service. The amendment was, rightly, rejected by your Lordships. But the underlying concern is real enough: indeed, I have expressed it repeatedly myself. The answer is to ensure that we can secure the best value for money for criminal defence services consistent with the interests of justice. Many of your Lordships may therefore think that it beggars belief to find that those same Liberal Democrat Benches now seek to strike down one of the powers which will help achieve value for money.
What are the arguments against this proposal? I wonder that it has not yet been said that, like Swift, I am proposing to reduce the private Bar to such penury that its members will have to eat their children. No, the objections reduce, I think, to two. First, it is said that salaried defenders will be second-rate, under-funded and overworked. That charge is developed by anecdote, not by evidence. The many successful public defender schemes in other countries are not cited. Secondly, it is said that defenders employed by the state will be insufficiently independent.
My proposals are underpinned by a great deal of research into public defender schemes abroad. The picture is mixed. There are some very good public defender schemes and some poor ones. It has been said that salaried defenders will be overburdened by heavy caseloads. Heavy caseloads and insufficient funding go hand in hand. Caseload limits are unnecessary where services are appropriately resoursed. I accept that adequate funding is essential; but that must be true also of schemes that purchase services from the private sector. Most of the horror stories relate to public defender schemes in the United States of America. These are organised at state or, more commonly, county or court district level. They are not overseen by any federal agency nor underpinned by the kind of statutory framework proposed in the Bill. I am determined to ensure that the criminal defence service, in both its private and directly employed elements, will be adequately funded to provide the quality services that suspects and defendants undoubtedly require.
We shall, of course, seek to draw only on the best examples from other countries when establishing salaried defenders in England and Wales. We shall also be taking account of the Scottish pilot. Salaried defenders will be introduced in a measured way, involving consultation and piloting to establish how and where salaried defenders can be deployed to best effect.
Nor is there any reason to believe that only the second-rate will be willing to work as salaried defenders. Salaried employment as a criminal defender could prove an attractive proposition for many

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committed and public-spirited lawyers. Reference has been made to the hard-pressed barrister, with no pension or guaranteed income. Why should he or she not take advantage of this new career opportunity? The increased rights of audience proposed in Part III of the Bill should lead to greater career flexibility between salaried defence lawyers, crown prosecutors, the independent Bar and solicitors in private practice. Far from salaried lawyers becoming too "prosecution" or "defence" minded, this increased flexibility is likely to broaden experience and reduce that risk. At present, as all those who have spoken know perfectly well, there are many advocates in private practice who appear almost exclusively for either the prosecution or defence.
I now turn to the issue of independence. It has been argued that salaried defenders, motivated solely by crude bureaucratic targets, might collude with Crown prosecutors to find ways of shortening cases and clearing lists. Crown prosecutors and salaried defenders would work for different organisations. But the charge of collusion is never heard when two barristers from the same chambers appear on opposite sides in the same case. The assumption must be that lawyers in private practice are entirely free from any pressures that might conceivably threaten their professional ethics. That assumption is not well founded.
Is the solicitor, a partner in his or her firm, free of the pressure of the balance sheet? Are salaried solicitors in private firms immune to the pressure of the time sheet and need to impress the partners and retain valued clients? These pressures could just as easily influence judgment and actions as the pressures faced by a state-employed lawyer. In both cases it is the ethics of the profession, backed-up by vigilant judges, which ensure that the highest standards are maintained.
The pressing need for most members of the Bar is to ensure that they are briefed to appear in subsequent cases. Their livelihood depends upon it. Very many lawyers, solicitors and barristers, are largely dependent on state funding, through legal aid or prosecution work, for their financial survival. Are they really more independent than an employee? Pressures exist in many forms. The notion that lawyers in private practice are free spirits who live a halcyon existence, idyllic and free of pressures, is fanciful and unreal.
The reality is that the safeguards that will exist to protect the independent professional judgment of salaried defenders will, if anything, exceed those which apply to vulnerable barristers or profit-led solicitors. Salaried defenders will have a secure salary and a pension; they will not face the need to turn a profit case by case. They will enjoy protection from unfair dismissal.
It is most important that any salaried lawyers employed by the legal services commission should uphold the highest standards of the profession. That is why Amendment No. 122, which will be debated later, will introduce a comprehensive statutory code for salaried defenders to guarantee those standards. Clause 35 of the Bill also gives statutory force to the duty, which all advocates have to the courts before which they are engaged, to act in the interests of justice. Their duty to comply with the conduct rules of their professional body will again be underscored by statute. These duties take
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precedence over any other civil law obligation that an advocate or litigator may have, including any obligations to his or her employer. The necessary safeguards of professional ethics will be in place. I simply do not accept that salaried defenders will face greater pressure on their independence, ethics and duties to the court and their clients, than are already faced and generally successfully resisted by private practitioners.
The noble Lord, Lord Kingsland, has described shortly but not yet moved Amendment No. 103. Since it is in this grouping I shall deal with it at this stage. By this amendment the noble Lord seeks to exclude salaried defenders only from the higher criminal courts. I cannot see the logic of that restriction. It may he that a suitably-qualified and competent lawyer employed by the commission is chosen by a suspect to advise and assist him in the police station. The same lawyer would probably represent the client in the magistrates' court. Surely it is appropriate for that lawyer, if qualified to do so, to continue to represent the client if the case goes to the Crown Court, perhaps on committal for sentence. This will avoid duplication of instruction, secure value for money and, at the same time, satisfy the defendant, who is more likely to have confidence in a representative who is a familiar face.
Some noble Lords referred to the problem that affects the clients of the independent Bar arising out of returned briefs. A Crown Court survey conducted by the Royal Commission on Criminal Justice in 1992 by Professor Zandar found that one third of defence barristers said that they had their briefs on the day before the hearing or only on the day itself. Defence barristers said that the brief had been returned from other barristers in 44 per cent. of all contested cases. This causes great dissatisfaction to clients of the private Bar. I submit to your Lordships that the possibility of the engagement of salaried lawyers by the criminal defence service will break down restrictive practice, offer greater choice and improve the quality of service.
Lord Thomas of Gresford: My Lords, the noble and learned Lord the Lord Chancellor referred to the pressures on members of the private Bar and solicitors. The greatest pressure on those who are engaged in criminal practice is the ethos of the profession, which puts the interests of the defendant alone above everything else, even including advancement in a judicial career. That is what binds together noble Lords on all sides of the House for whose support in this debate I am grateful. That is what binds the noble Baronesses, Lady Mallalieu, Lady Kennedy of The Shaws and Lady Scotland, my noble friend Lord Hutchinson, the noble Lord, Lord Carlisle, and myself. One is concerned to protect the dynamics of the criminal Bar and the ethos of that profession.
The noble Baroness, Lady Crawley, said that we were resistant to change. What is the need for change? That was the question put by the noble Lord, Lord Carlisle. With the greatest respect to the Lord Chancellor, he has not demonstrated any need for change. He says that our proposals are based on anecdote, not evidence. The noble and learned Lord does not even have anecdotes to support his position; he has no evidence. No research has been carried out.

569
The noble and learned Lord made reference to what happened in foreign jurisdictions. In the course of my speech to your Lordships I drew attention to the fact that in the United States the Department of Justice was deeply concerned about the way in which indigent defence systems worked there. In 13 states the systems are precisely akin to that which is now proposed by the noble and learned Lord.
We on these Benches believe in value for money, but we do not interpret "value" to mean the disposal of a case. We interpret the value that is achieved for the money that is expended on defence services as the degree to which the interests of the defendant have been protected by his advocate in court, whether it be a solicitor or barrister. I am not satisfied with the answers that the noble and learned Lord has given and I seek to obtain the opinion of the House.
4.28 p.m.
On Question, Whether the said amendment (No. 97) shall be agreed to?
Their Lordships divided: Contents, 189; Not-Contents, 134.

Division No. 1

CONTENTS

Ackner, L.

Cranborne, V.

Addington, L.

Crickhowell, L.

Addison, V.

Cross, V.

Ailsa, M.

Cumberlege, B.

Alton of Liverpool, L

Dahrendorf, L

Anelay of St. Johns, B

Darcy de Knayth, B.

Annaly, L

Davidson. V.

Astor, V

Dean of Harptree, L.

Astor of Hever, L

Denbigh, E.

Attlee, E.

Dholakia, L.

Avebury, L.

Dilhorne, V.

Baker of Dorking, L.

Dixon-Smith, L.

Belhaven and Stenton, L.

Donegall, M.

Beloff, L.

Dundee, E.

Belstead, L.

Elibank, L.

Berners. B.

Ellenborough, L.

Biddulph, L.

Elliott of Morpeth, L.

Blackburn, Bp.

Erne, E.

Blatch. B.

Ezra, L.

Boardman, L.

Falkland. V.

Bridgeman, V.

Gainford, L.

Bridges. L.

Garel-Jones, L.

Brightman, L.

Geddes, L

Broadbridge, L.

Geraint, L.

Brougham and Vaux, L.

Gisborough, L.

Bruntisfield, L.

Glanusk, L.

Burnham, L.

Glenarthur, L.

Buscombe, B.

Glentoran, L.

Butterfield, L.

Goodhart, L.

Butterworth, L.

Gray, L.

Caithness, E.

Gray of Contin, L

Calverley, L.

Grimston of Westbury,L.

Campbell of Alloway,L.

Harding of Petherton,L.

Carew, L.

Harmar-Nicholls,L.

Carlisle of Bucklow,L.

Harris of Greenwich, L.

Carnegy of Lour, B.

Hayhoe, L.

Charteris of Amisfield, L.

Henley, L. [Teller.]

Chesham, L.

Higgins, L.

Clark of Kempston, L.

Holderness, L.

Clement-Jones, L.

HolmPatrick, L.

Colwyn, L.

Hooson, L.

Cope of Berkeley, L.

Hothfield, L.

Craig of Radley, L.

Howe, E.

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Hunt of Wirral, L.

Rankeillour, L.

Hutchinson of Lullington, L.

Rathcavan, L.

Hylton-Foster, B.

Rawlinson of Ewell, L.

Inglewood, L.

Redesdale, L.

Jacobs, L.

Rees, L.

Jenkin of Roding, L.

Renfrew of Kaimsthom, L.

Jenkins of Hillhead, L.

Renton, L.

Jopling, L.

Roberts of Conwy, L.

Kingsland, L.

Rodgers of Quarry Bank. L.

Kintore, E.

Russell, E.

Knollys, V.

St. Davids, V.

Lang of Monkton, L.

St. John of Fawsley, L.

Lawrence, L.

Sandford, L.

Leigh, L.

Sandwich, E.

Liverpool, E.

Savile, L.

Long, V.

Seccombe, B.

Lucas of Chilworth, L.

Sharp of Guildford, B.

Macclesfield, E.

Simon of Glaisdale, L.

Mackay of Ardhrecknish, L.

Skelmersdale, L.

Macleod of Borve, B.

Stair, E.

McNair, L.

Strathclyde, L.

Maddock, B.

Sudeley, L.

Mar and Kellie, E.

Swansea, L.

Marlesford, L.

Swinfen, L.

Merrivale, L.

Taverne, L.

Middleton, L.

Taylor of Warwick. L.

Miller of Chilthorne Domer, B.

Thomas of Gresford, L. [Teller.]

Miller of Hendon, B.

Thomas of Gwydir, L.

Milverton, L.

Thomas of Walliswood, B.

Monro of Langholm, L.

Thurso, V.

Mountevans, L.

Tope, L.

Mowbray and Stourton, L.

Tordoff, L.

Moyne, L.

Torrington, V.

Moynihan, L.

Trefgarne, L.

Munster, E.

Trumpington, B.

Murton of Lindisfarne, L.

Tugendhat, L.

Napier and Ettrick, L.

Vinson, L.

Newall, L.

Vivian, L.

Newby, L.

Waddington, L.

Noel-Buxton, L.

Wade of Chorlton, L.

Northesk, E.

Wakeham, L.

Norton of Louth, L.

Walpole, L.

O'Cathain, B.

Weatherill, L.

Onslow of Woking, L.

Weir, V.

Oxfuird, V.

Wigoder, L

Palmer, L.

Wilberforce, L.

Peel, E.

Wilcox, B.

Pender, L.

Williams of Crosby, B.

Phillips of Sudbury, L.

Winchilsea and Nottingham, E.

Pilkington of Oxenford, L.

Wise, L.

Platt of Writtle, B.

Wynford, L.

Young, B.

NOT-CONTENTS

Acton, L.

Camarvon, E.

Ahmed, L.

Carter, L. [Teller.]

Ailesbury, M.

Castle of Blackburn, B.

Alli, L.

Christopher, L.

Amos, B.

Clarke of Hampstead, L.

Ampthill, L.

Clinton-Davis, L.

Archer of Sandwell, L.

Cocks of Hartcliffe, L.

Ashley of Stoke, L.

Crawley, B.

Attenborough, L.

David, B.

Bach, L.

Davies of Coity, L.

Barnett, L.

Desai, L.

Bassam of Brighton, L.

Dixon, L.

Berkeley, L.

Donoughue, L.

Blease, L.

Dormand of Easington, L.

Borrie, L.

Dubs, L.

Bragg, L.

Eatwell, L.

Brooke of Alverthorpe, L.

Erroll, E.

Brookman, L.

Evans of Parkside, L.

Bruce of Donington, L.

Falconer of Thoroton, L.

Burlison, L.

Farrington of Ribbleton, B.

Callaghan of

Fitt, L.

571

Gallacher, L.

Molloy, L.

Gilbert, L

Monkswell, L.

Gladwin of Clee, L.

Montague of Oxford, L.

Gordon of Strathblane, L.

Morris of Castle Morris, L.

Goudie, B.

Morris of Manchester, L.

Gould of Potternewton, B.

Nunburnholme, L.

Graham of Edmonton, L.

Orme, L.

Gregson, L.

Paul, L.

Grenfell, L.

Peston, L.

Hacking, L.

Pitkeathley, B.

Hanworth, V.

Ponsonby of Shulbrede, L.

Hardie, L.

Prys-Davies, L.

Hardy of Wath, L.

Puttnam, L.

Harris of Haringey, L.

Ramsay of Cartvale, B.

Haskel, L.

Randall of St. Budeaux, L.

Hayman, B.

Rea, L.

Hilton of Eggardon,

Rendell of Babergh, B.

B. Hogg of Cumbernauld, L.

Sainsbury of Turville, L.

Hollis of Heigham, B.

St. John of Bletso, L.

Howie of Troon, L.

Sefton of Garston, L.

Hoyle, L.

Serota, B.

Hughes, L.

Sewel, L.

Hughes of Woodside, L.

Shannon, E.

Hunt of Kings Heath, L.

Shaughnessy, L.

Irvine of I airg, L.[Lord

Shepherd, L.

Chancellor.]

Sheppard of Liverpool, L.

Islwyn, L.

Shore of Stepney, L.

Janner of Braunstone, L.

Simon, V.

Jay of Paddington, B. [Lord Privy

Simon of Highbury, L.

Seal.]

Stallard, L.

Jeger, B.

Stoddart of Swindon, L.

Jenkins of Putney, L

Stone of Blackheath, L

Judd, L.

Strabolgi, L.

Kirkhill, L

Strafford, E.

Levy, L.

Taylor of Blackburn, L.

Lofthouse of Pontefract, L.

Taylor of Gryfe, L.

Longford, E.

Thomas of Macclesfield, L.

Lovell-Davis, L.

Thornton, B.

Macdonald of Tradeston, L.

Tomlinson, L.

McIntosh of Haringey, L.

Turner of Camden, B.

[Teller.]

Varley, L.

Mackenzie of Framwellgate, L.

Walker of Doncaster, L.

Marsh, L.

Warner, L.

Masham of Ilton, B.

Watson of Invergowrie, L.

Mason of Barnsley, L.

Wedderbum of Charlton, L.

Merlyn-Rees, L.

Whitty,L.

Milner of Leeds, L.

Williams of Elvel, L.

Williams of Mostyn, L.

Resolved in the affirmative, and amendment agreed to accordingly.

Business
4.40 p.m.
Baroness Ramsay of Cartvale: My Lords, before we move to the Statement on genetically modified foods, I should like to take this opportunity to remind the House that the Companion indicates that discussion on a Statement should be confined to brief comments and questions for clarification. Peers who speak at length do so at the expense of other noble Lords.

Genetically Modified Foods: Safety
The Parliamentary Secretary, Ministry of Agriculture, Fisheries and Food (Lord Donoughue): My Lords, with the leave of the House, I shall now repeat in the form of a Statement the Answer which has
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been given by my right honourable friend to a Private Notice Question in the other place on genetically modified foods. The Answer is as follows:
"The Government are fully committed to ensuring the safety of food.
"All genetically modified foods and food ingredients go through a process of very thorough scrutiny by a committee of experts, the Advisory Committee on Novel Foods and Processes, which advises Government and whose remit is to examine all novel foods. They are also scrutinised by equivalent bodies in all other member states, to ensure that no food comes onto the market unless it is safe.
"This committee, which was established in 1988, has members from universities and research institutes who are experts in their fields and are fully up to date with the latest scientific thinking. There are also two lay members whose respective roles are to advise on ethical issues and see that the experts pay attention to the concerns of the wider public. Since May 1997, it has been taking steps to become increasingly open and now publishes all its agendas, minutes and a note of the outcome of each meeting.
"The products which have been authorised have all been through this rigorous process.
"We are also committed to the principle of consumer choice. The Government are determined that all foods containing GM material should be clearly labelled. We are leading the way in Europe in this area by also requiring the provision of information in catering establishments. We are taking steps to ensure that local authorities have all the necessary powers to enforce these requirements.
"In addition, we are pressing the European Union Commission to bring forward proposals for the labelling of animal feeds as quickly as possible. But choice also means having access to alternatives. That is why we have published a list of 59 companies from which food manufacturers can obtain non-genetically modified soya. We believe that all this adds up to a system in which consumers can have confidence.
"Much of the recent debate has unhelpfully confused the two issues of safety of food and protection of the environment; and there have been many attempts to generalise from findings in laboratories at the experimental stages.
"GM is a development which has huge potential to benefit society in a variety of ways and scientists should be allowed to pursue experimental work. It is however important that end products are only put on the market after the most careful scrutiny of their effects on human health.
"We believe that we have a robust and open system for ensuring that the consumer is fully protected, but that those who wish can choose whether or not to purchase these products.
"Above all, it is the Government's first priority to ensure that the safety of consumers is fully protected and that will remain the case".
My Lords, that concludes the Statement.
4.45 p.m.
Baroness Miller of Hendon: My Lords, I thank the Minister for the Statement on GM food, a subject which has caused such concern to the public. We realise that this is not an easy matter and there are certainly no easy answers, but I wish to ask the Minister two main questions.
Is he aware that apart from the comforting Statement which he has just read, the public's confidence in the safety of food which contains genetically modified ingredients is being damaged day-by-day by the Government's mishandling of the issue and that they have a clear duty to give unequivocal guidance to manufacturers, retailers and consumers alike? Will he say what the Government are doing in respect of the fears about the use of antibiotic resistant marker genes?
Finally, does the Minister share our view that the only way to restore confidence in the safety of food and the technology which may well be very beneficial is to recognise the environmental risks; to continue with and to continue to publish all the research; to monitor progress; to inform the public of all official contacts with commercial interests; and to ensure that all are dealt with in an open and transparent way?
4.47 p.m.
Lord Clement-Jones: My Lords, I, too, thank the Minister for repeating the Statement made in another place and for giving us the current status on genetically modified foods. We on these Benches accept that there are great dangers in playing politics with the issue of food safety. However, we believe that there are legitimate questions about the Government's handling of GM foods.
Environment and food safety are linked in the public's mind, and there are concerns about matters such as scientific research being carried out as regards crop cultivation and its impact on surrounding food crops; ingredients in food; labelling; and the pressure of huge American companies being brought to bear on this Government, the EU and the US Government. We join with consumer and environmental groups and others such as the British Retail Consortium in asking a number of pertinent questions. In particular, will the Government take a clear and precautionary line on GM foods? Will they agree on a five-year freeze on the commercial planting of GM food crops? Will they also ensure that the remit of the Food Standards Agency will cover GM foods? Will they bring forward the EU proposals into UK law earlier than is proposed in the EU as a whole in respect of additives and foodstuffs and in particular in the use of GM foods in processing?
We fully accept the principle of consumer choice, but without adequate labelling it is impossible for the consumer to make an informed choice. Some supermarkets are already taking good steps with their own brands, but without adequate legislation across the board on labelling we do not believe that consumers will be well served. Does the Minister agree?
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Will the Minister review the evidence to the BSE inquiry, in particular the statements made by former chief medical officers about the definition of "safe"? What definition of "safe" is being used by the committee referred to in the Statement?
As regards the segregation of GM foods from other foods, will the Government press the US Government at the highest level to ensure that segregation takes place? As a result of the welter of comments made by current and former chairmen of supermarkets, does the Minister agree with the statement made by Malcolm Walker, the Iceland Group Chairman, who asked why there is such a rush to foist these products on the public when their long-term effects on health and the environment are unknown? Will the Minster reaffirm that the Government fully adopt a precautionary principle as regards the use of GM foods?
4.50 p.m.
Lord Donoughue: My Lords, perhaps I may deal with one or two of the deluge of questions. To the noble Baroness opposite I have to say that it takes some chutzpah to accuse this Government of any damage to confidence by mishandling this issue. The Government have done much to secure confidence in order to repair the enormous gap left by the previous administration who did virtually nothing.
We have introduced transparency in the relevant committees. We have appointed lay members to represent the consumer interest and we have required the publication of agendas and minutes. We have introduced labelling for the two main genetically modified foods which are on sale. All the genetically modified foods which are on sale and which are causing some of the fuss now were approved under the previous government. But they did not allow any proper labelling of them. They, alone in Brussels, opposed that labelling. Despite pressure in Brussels, we have managed to secure the proper and clear labelling of those foods. That restores confidence. What went on before damaged it. We are even seeking to extend the labelling to catering. Therefore, the suggestion that we are in any sense responsible really takes my breath away.
There is the issue of animal feed which may contain GM products. We are about to announce the setting up of a committee to look into that and we shall pursue that matter in Brussels. But when the previous government were advised in 1991 to deal with the issue of GMs in animal feed, they refused. In 1992, they announced that they would do so and then did nothing. Therefore, that is not a subject on which the Opposition should speak as loudly as they have done recently.
Some of the damage to confidence comes from scaremongering. We need to take and continue to take a balanced and measured approach to what is a most serious issue. Where there is genuine public concern, we need to make sure that we have adequate and rigorous methods of assessment and the provision of the maximum information to the public. That is what we are attempting to do.
I should say to the noble Lord, Lord Clement-Jones, that we take a precautionary line. We put the public health and the safety of the environment at the very top

575
of our priorities. The noble Lord referred to the food standards agency. It is clear from the published Bill that that will be responsible for GM foods and it will be advised by the Advisory Committee on Novel Foods and Processes which deals with that area.
The noble Lord referred to labelling. I agree that that is a central issue. We must deal with it through the European Union. But we are very much ahead of the game there in pressing for the maximum labelling possible. The noble Lord mentioned additives and flavouring. That is very important. We are attempting to achieve European Union action in that regard.
The definition of safety follows the principle of equivalence which the Advisory Committee on Novel Foods and Processes applies.
Segregation is an extremely frustrating issue. We cannot achieve segregation of GM and non-GM foods in our imports, especially from the United States. I should point out that when this first became a matter of concern, as I understand it, the previous government did not press the United States' government to do something about that. When we came into power, we looked into that matter but it is too late. We cannot do anything now without risking problems with the World Trade Organisation. We should not be permitted to make that a condition of refusing entry because safety is the only reason permitted in that regard. I hope that that deals with many of the points that were raised.
4.53 p.m.
Lord Jopling: My Lords, is the Minister aware that he is quite right when he says that there has been too much scaremongering on this issue? Is he aware also that many of the matters which he covered in his Statement were repetitions of what appeared in the Select Committee report of your Lordships' House which was published a few weeks ago? In particular, I am thinking of the Select Committee's recommendations about better labelling and segregation.
Will the Minister go a little further than the Statement and recall that the Select Committee report took up and supported a recommendation of the Royal Society that there are shortcomings with regards to testing and monitoring GM foods and that there is a need for an over-arching body to be set up to monitor testing and monitoring and to ensure that it is carried out more efficiently? It would be most helpful if the Government would support that recommendation, which I believe would put a stop to much of the misunderstanding and misrepresentation that there has been.
Lord Donoughue: My Lords, I thank the noble Lord for that extremely helpful contribution. Of course, he speaks with considerable experience. We have received the Select Committee report which is extremely serious and helpful. We are considering our response and there will be a response within the due time. My initial reaction—although it is not yet the Government's formal reaction—is that the suggestion of an over-arching independent body is one of great interest.
Baroness Castle of Blackburn: Would the Minister tell the House why Dr. Pusztai of the Rowett research
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institute in Aberdeen was sacked following his claim that his research showed that rats fed with genetically modified—I wanted to say manipulated—potatoes had their immunity destroyed? Could he say whether the British Government had any part in that sacking and whether the treatment of this eminent researcher is to be reconsidered in view of the fact that 20 eminent researchers have since vindicated the analysis of his research?
Finally, does the Minister agree that there will be no confidence in anything that either the Government or any major vested interest, like Monsanto, say in reassurance if there is to be any suggestion that adverse findings are to be suppressed?
Lord Donoughue: My Lords, the Government have played no role in suppressing any research. Whatever took place was a matter for the Rowett Institute. We would encourage the person carrying out the research to publish his conclusions. We would also encourage the publication of the claimed support from 20 other colleagues. We are in the curious position of that research being leaked to the press, but it was not made available to us or to our advisory committee. As far as possible we would encourage them all to publish. Our wish is to receive the maximum respectable scientific advice in this area so that we can take what are difficult and complex decisions.
Lord Taverne: My Lords, any rational person who has read the excellent report of the Select Committee of this House and the powerful evidence given to the committee, such as that of Dr. Bainbridge and Professor Mark Williamson, must come to the conclusion that broadly speaking the Government's attitude on this subject is right. Does the Minister agree that while it is important that there should be strict monitoring and regulation of new products, the likelihood is that the potential benefits of genetically modified food will outweigh the potential risks? Will the Government continue to resist the rather anti-science overtones of the hysteria that has been whipped up by certain sections of the press—with the honourable exception of the Daily Telegraph—and by certain politicians who seem eager to jump on a populist bandwagon without proper research into the evidence?
Lord Donoughue: My Lords, I thank the noble Lord for suggesting that we may be broadly right, as I believe to be the case, in taking a measured and balanced view. We do not wish to be an obstacle to scientific development. I entirely agree with him in speaking against the hysterical attitude of some of our tabloid journalism. It is regrettable that some politicians—I think in another place—have tried to climb on that very wobbly bandwagon. We wish to encourage science, but not at any risk to public health or to the environment. We have to preserve that delicate balance and that is why we try to put in place the maximum regulatory and assessment procedures possible without bringing science to a halt. We need to be convinced that

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any genetically modified food products that come on to the market have passed the maximum tests and have scientific approval.
Lord Hughes of Woodside: My Lords, is it not the case that much of the recent concern is over some perhaps informed and some perhaps ill-informed comments on work done by the Rowett Institute on genetically modified potatoes? In order to try to clear up the confusion, will my noble friend say whether the potatoes used in the experiment were genetically modified potatoes that were due to be put on the market for human consumption, or were they specially genetically modified by the researcher concerned to test the effects of some lectins on rats? It is important to know whether that was an experiment, simply as an experiment, or a check on a genetically modified food available for public consumption, or a food that is to be made available for public consumption. If a report is not published, on either side, people are free to speculate as to what research material exists and what it says. If there is a report in the hands of the Scottish Office in Edinburgh, would it not be prudent to publish that as soon as possible and to go further and make funding available so that those experiments could be openly re-checked?
Lord Donoughue: My Lords, my noble friend has put his finger on the heart of the issue. The potatoes being tested were not genetically modified potatoes. They were not potatoes that were being considered for submission to the novel foods committee or for marketing. They were potatoes of a particular kind, as I understand it—it was not government research—and they were considered appropriate to certain aspects of that research. It would help us all if those involved published the research so that it can be judged by peer groups and other scientists and so that other tests can be done in the normal scientific way. I am not aware of whether the Scottish Office has any report. I shall ask my noble friend.
Lord Alton of Liverpool: My Lords, given the importance of the project, is the Minister not being rather complacent as far as Dr. Pusztai's work is concerned? Would it not be sensible to ask Dr. Pusztai and his colleagues to appear before the advisory committee? Unless they do, it will be impossible for any of us to reach a considered conclusion about the importance of that work. Will the Minister also accept that as 22 of the 33 boroughs in London, 14 county councils in England and even the restaurants in another place have banned genetically modified food this is not just scaremongering? There is widespread public unease and the Government will be out of step with that unease if they do not allow proper, open, transparent debate and accept the advice given to them earlier. There may well be, in the light of the previous difficulties over the BSE crisis, a reason to have a moratorium for at least a limited period while the issue can be properly considered.
Lord Donoughue: My Lords, I assure the noble Lord that we have no complacency on this issue whatsoever.
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As I have said, on the Rowett situation we have urged publication by all sides. If the advisory committee wishes to summon any of those witnesses that is its choice. It is an independent advisory committee. We do not control it. I accept that there is unease. It is totally understandable that in something as profound as this members of the public should be concerned. The activities of some scaremongerers are less responsible. They are stirring up the issue and attempting to frighten people. That is outrageous. I agree that we need transparency and, as I have said, the Government have made enormous progress towards introducing transparency in this research area.
Baroness Blatch: My Lords, the noble Lord makes a good point about reassurance. If he were able to offer reassurance on a particular point, that would go a long way to diminish some of the anxiety in the community. This morning on Radio 5, the Chief Scientific Officer was unable to give reassurance on a question posed by a lady from Ely in Cambridgeshire. The questioner asked what scientific work has been done and what database is available to reassure pregnant women and nursing mothers that there is no danger whatsoever from eating genetically modified foods.
Lord Donoughue: My Lords, I have some difficulty commenting on that because I did not hear the programme and I have riot heard what the Chief Scientific Officer said. The question, "Is there absolutely no danger?", is the question, "Is it absolutely and totally safe?". There are serious problems in saying with total confidence that anything is totally safe. However, the criteria that we use—
Baroness Blatch: My Lords, what work is done?
Lord Donoughue: My Lords, I shall have to write to the noble Baroness on what work is done because, frankly, I do not know.
Lord Tordoff: My Lords, following the intervention from the noble Baroness opposite, I thank the Government for the Statement. I also thank the Government's Chief Scientific Officer for the discussion on the "Today" programme this morning. It seemed to me that he at last had brought some clarity into the discussion, whereas, as the noble Lord has already said, there has been considerable confusion and some scaremongering. In order to ensure that the debate continues in a sensible way, may I urge the Government to respond as soon as possible—clearly, this Statement is not the time to do it—to the report from the Select Committee so that we can have a full debate on it because I believe that that will assist in clarifying matters further?
Can the Minister confirm or deny the information that I have received that the active material that was used by Dr. Pusztai was of the order of 5, 000 times the normal level in potatoes? Can the Minister also confirm that the

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Select Committee report points out that if potatoes were introduced today, they would not be allowed through the normal screening process?
Lord Donoughue: My Lords, first, I should like to thank the noble Lord and all his colleagues on that Select Committee. In my observation, all such reports bring great credit to this House. I have already discussed that report with the noble Lord and I found it particularly good. I can promise the noble Lord that we shall respond within the due time. The question of a debate is for the usual channels. With regard to Dr. Pusztai, it is the case that the level of active materials used was impressively high and it could therefore be argued that it was not of practical relevance.
Lord Gisborough: My Lords, first, does the Minister accept that logic and information from the advisory committee will provide reassurance about our own foods, or should do so? To what extent do equivalent advisory committees exist in other countries where such foods are produced; such as the United States or other European countries? After all, food whether raw or processed now crosses boundaries.
Secondly, there is a possibility of some genetically modified fish, for example—except that that has not yet been done—getting out into the wild. Such foods could be produced by countries which have no or very few controls. Is pressure being brought to bear to try to bring into line countries without such regulations?
Lord Donoughue: My Lords, we are aware that the quality of our advisory committees is as high as anywhere—and is higher than in many other countries. We are not in a position to determine the quality of advisory committees in other countries. However, these matters are dealt with on a pan-European basis within the European Union. With regard to other countries, the same question arises. To a great extent, we can influence what happens within the European Union, but outside the European Union it is a question of applying the rules of the World Trade Organisation. If any other points will be helpful to the noble Lord, I shall certainly write to him about them.
Lord Hardy of Wath: My Lords, although it is clear that the Government have demonstrated a clear, continuing and much improved approach to food safety, would my noble friend care to consider the fact that a number of well informed conservationists have certain anxieties about the ecological consequences? The noble Lord, Lord Taverne, may not have noticed that in one newspaper report six of the 20 scientists quoted appeared to be offering cautionary comments, some about the ecological effects. I support the call for a debate on the matter in this House, but does my noble friend understand that the British countryside and British ecology have suffered grievous damage over recent decades as a result of agricultural changes and
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that assurances are needed, not least with regard to the transfer of genetic material from a commercial species to a wild one?
Lord Donoughue: My Lords, my noble friend makes some important points. We are very aware of the danger of transference from the commercial to the wild. The trial plantings due to take place will be geared in that direction. The broader environmental and ecological aspects are not my responsibility but rest with the Department of the Environment, Transport and the Regions. However, the two departments work closely together on these issues.
Earl Russell: My Lords, does the Minister agree that the reassurance of the public, where that is appropriate, is more easily achieved if the scientific research on which we must perforce rely is funded without strings from public funds than if it is sponsored by those who might have a commercial interest in its outcome?
Lord Donoughue: My Lords, that is a very deep issue. The reality is that a great deal of the research that is carried out has received major contributions from private interests, some of which—or many of which—could be said to have an interest in the outcome. That is why we have in place various regulatory procedures and assessment committees to consider the conclusions and much peer assessment by other scientists. Those involved must declare their interests, which have to be registered and are published. We put in place whatever process we can to ensure an independent outcome. In the end, we are dependent on the integrity of our scientists conducting this research. I do not believe that there is great evidence that they lack that integrity.
Lord Hoyle: My Lords, we have now reached the time when we must move on.

Access to Justice Bill [H.L.]
5.16 p.m.
Consideration of amendments on Report resumed on Clause 13.
Lord Thomas of Gresford Lord Thomas of Gresford moved Amendment No. 98:
Page 9, line 29, at end insert ("excpt itself providing advice and assistance").
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No. 99:
Page 9, line 29, at end insert—
("(2A) The Lord Chancellor may by order require the Commission to discharge the function in subsection (2) in accordance with the order.").
Lord Brightman: My Lords, I shall not take up more than a moment of your Lordships' time, but I wanted to question whether it is really necessary to add another subsection to Clause 13(2) to achieve that which my noble and learned friend the Lord Chancellor wishes.

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Clause 13(1) requires the commission to give legal assistance to persons arrested and held in custody. Subsection (2) states how that is to be done. The amendment seeks to add a further subsection (2A), stating:
"The Lord Chancellor may by order require the Commission to discharge the function in subsection (2) in accordance with the order".
My question to my noble and learned friend the Lord Chancellor is whether what he wants could not be achieved simply by adding eight words to line 15 on page 9 which currently reads:
"The Commission may comply with the duty imposed by subsection (1)",
and so forth. Would it not be sufficient simply to say, "The commission may and, if ordered by the Lord Chancellor, shall, comply with the duty"? That would get rid of the proposed subsection. I do not know whether my noble and learned friend is willing to refer this suggestion to his drafting team.
The Lord Chancellor: My Lords, I believe that these amendments have already been debated, but in view of what the noble and learned Lord has just said, I shall study Hansard, refer his point to the draftsman and write to him thereafter.
On Question, amendment agreed to.
Clause 14 [Representation]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 100:
Page 9, line 33, leave out from ("3") to end of line 38 and insert ("(which makes provision about the grant of a right to representation in criminal proceedings) has effect; and the Commission shall fund representation to which an individual has been granted a right in accordance with that Schedule.").
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No. 100A:
Page 9. line 40, leave out ("(2)") and insert ("(1)").
The noble and learned Lord said: My Lords, Amendments Nos. 100A, 106A and 190A are purely technical and consequential on Amendment No. 100, which has been debated already. Amendment No. 100 places the duty to fund representation in Clause 14(1) instead of its present position in subsection (2). These amendments are necessary to amend the reference to the duty where it appears in the existing Clause 14(3) and (5). I beg to move.
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No. 101:
Page 10, line 7, leave out ("or loans").
The noble and learned Lord said: My Lords, during the Committee debate I accepted Amendment No. 154 in the name of the noble Lord, Lord Goodhart. His amendment deleted the reference in Clause 13(2)(e) to loans as a method of funding individuals to enable them to obtain advice and assistance in criminal cases. The mention of loans in the clause, as currently drafted, was an anomaly resulting from common drafting elements in Clause 7 of the Bill relating to the community legal service.
The noble Lord's arguments apply equally to loans to individuals for representation in Clause 14(3)(e). Payment for representation will be required only in the circumstances described in Clause 16(2), which states:
"(2) Where representation for an individual in respect of criminal proceedings in the Crown Court is funded by the Commission as part of the Criminal Defence Service, the trial judge may, subject to regulations under subsection (3), make an order requiring him to pay some or all of the cost of the representation".
Loans for criminal defence services are never appropriate. I beg to move.
On Question, amendment agreed to.
The Deputy Speaker (Lord Brougham and Vaux): My Lords, if Amendment No. 102 is agreed to, 1 cannot call Amendment No. 103.
Lord Thomas of Gresford Lord Thomas of Gresford moved Amendment No. 102:
Page 10, line 9, leave out from beginning to ("or").
On Question, amendment agreed to.
[Amendment No. 103 not moved.]
Lord Thomas of Gresford Lord Thomas of Gresford moved Amendment No. 104:
Page 10, line 11, at end insert ("except itself providing representation").
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No. 105:
Page 10, line 11, at end insert—
("(3A) The Lord Chancellor—

(a)shall by order make provision about the payments which may be made by the Commission in respect of any representation provided by non-contracted private practitioners, and

(b)may by order make any other provision requiring the Commission to discharge the function in subsection (3) in accordance with the order.

(3B) For the purposes of subsection (3A)(a) representation is provided by a non-contracted private practitioner if it is provided, otherwise than pursuant to a contract entered into by the Commission, by a person or body which is neither‐

(a)a person or body in receipt of grants or loans made by the Commission as part of the Criminal Defence Service, nor

(b)the Commission itself or a body established or maintained by the Commission.

(3C) The provision which the Lord Chancellor is required to make by order under subsection (3A)(a) includes provision for reviews of, or appeals against, determinations required for the purposes of the order.").
[Amendment No. 106, as an amendment to Amendment No. 105, not moved.]
On Question, Amendment No. 105 agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No. 106A:
Page 10, line 18, leave out ("(2)") and insert ("(1)").
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No. 107:
Page 10, line 18, leave out ("making payments to") arid insert ("funding representation by").
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No. 108:
Page 10, line 27, leave out ("only one representative or").
The noble and learned Lord said: My Lords, Amendment No. 108 is grouped with Amendments Nos. 109 to 113. They relate to Clause 14(6) of the Bill, which gives power to make regulations restricting a defendant's free choice of representative in prescribed circumstances.
The issue of choice was debated at some length in Committee on 26th January. Concern centred upon salaried defenders and whether the provisions of Clause 14(6) would be used to restrict choice to salaried defenders only. That is not my intention, and I have tabled Amendment No. 111 to make that clear on the face of the Bill.
I also undertook to consider whether the drafting of subsection (6) could be clarified, and Amendments Nos. 108 to 110 and Amendment No. 113 are the result. It may be helpful to your Lordships if I first set out the intentions behind subsection (6), dealing with these drafting amendments as I go. I will take the five subsections in order of significance, rather than alphabetical order.
The White Paper, Modernising Justice, at paragraphs 6.12 to 6.24 and 6.28 to 6.30, set out the Government's plans for developing and implementing contracts for criminal defence services; the way we expect those contracts to be structured; and the relationship between contracts and the defendant's choice of representative. Our firm view is that contracting, plus a salaried element, offers the best means of providing high quality services for suspects and defendants while securing the best possible value for money.
As I explained in Committee, Clause 14(6)(c) is fundamental to those plans. It will allow the defendant's choice to be limited to any lawyer with a current contract with the legal services commission, plus a salaried defender. The scope of regulations under this subsection will he extended gradually as contracts for various types of work are piloted and rolled out generally. The first contracts will cover advice and assistance at the police station, including a share of the duty solicitor work at the local police stations and magistrates' courts. These will be extended to cover first representation in magistrates' court cases; then the work of litigators in most Crown Court cases; and then perhaps advocacy in those cases. Once contracts provide adequate coverage at each level, regulations under Clause 14(6)(c) will provide that the suspect or defendant may no longer choose a non-contracted representative.
Our intention is to ensure that suspects and defendants generally have a choice between several contracted firms, possibly plus a salaried defender. In the first round of contracting, we intend to guarantee a contract to all firms which meet quality standards. I would expect most to continue to win contracts thereafter if they continue to meet the quality standards and are prepared to participate in the duty solicitor scheme. This is important both to sustain the quality of this important service by ensuring that it does not become the preserve of firms which cannot win more lucrative contracts and
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as a key part of our plans for providing continuity of representation from the police station to and through the courts.
Separate regulations under Clause 14(6)(c) will provide for a more limited choice in categories of case—for example, fraud trials—which are typically very expensive cases and require special skills, experience and sometimes technology. In these cases, the defendant's choice will be restricted to members of a specialist panel; but this would be a choice between quality-assured lawyers who had demonstrated both the necessary competence and administrative systems to deal with these specialised and weighty cases.
I have already mentioned continuity of representation. Regulations under Clause 14(6)(e) will establish a presumption that, having once chosen a representative, a defendant may not choose to replace that representative with some other, except for good reason. The intention is to reduce delay and the cost involved in instructing a new representative. Regulations under this subsection will define what constitutes an acceptable reason for a change; for example a conflict of interest or a clear breakdown in the lawyer-client relationship. Amendment No. 110 clarifies the drafting of the subsection.
Clause 14(6)(d) deals with the number of representatives that may be chosen in a given case. Again, Amendments Nos. 108 and 109 seek to clarify the drafting. Most cases start at the police station, where the suspect will either choose a named, contracted solicitor, or offer no preference and be advised by the duty solicitor, who on any given day might be a contracted solicitor or a salaried defender. If the case proceeds to trial in the Crown Court, there will be an opportunity to exercise a second choice to select an advocate. The defendant might choose a barrister in private practice, a salaried defender or, if the solicitor-representative was qualified and willing to act in the Crown Court, that solicitor-advocate who might also be a salaried defender. As now, it would be the solicitor's duty to advise the client about the options and instruct the advocate. Initially, the choice of advocate would encompass any barrister willing to act in the case. In due course, if contracts with banisters can be developed successfully, choice may be limited under Clause 14(6)(c) to a barrister subject to such a contract.
Regulations under Clause 14(6)(d) will also prescribe the rare situations in which two advocates would be permitted, for example serious fraud trials. Closely linked to this will be regulations under subsection (6)(b) which will prescribe the limited circumstances in which the defendant will be entitled to select a Queen's Counsel.
Finally, there is Clause 14(6)(a) which provides for regulations, subject to the affirmative approval procedure, which remove the defendant's right to a choice altogether. The example I gave in Committee of the exceptional circumstances in which subsection (6)(a) might be used related to cross-examination of a rape victim on behalf of a defendant who was otherwise representing himself. In this and possibly a few other exceptional circumstances, it may be appropriate to

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assign an advocate on something like a "dock brief" basis so that a trial can proceed without delay. It will be a random matter whether the advocate who happens to be available at court is a salaried defender, a solicitor advocate or independent barrister. If more than one advocate is available, then the defendant will be able to choose his representative from among those available advocates. The circumstances prescribed under Clause 14(6)(a) will be rare indeed.
Amendment No. 113 which removes Clause 14(7) is consequential upon Amendment No. 107, which was debated earlier. I now turn to Amendment No. 111. This establishes on the face of the Bill that regulations under Clause 14(6) may not provide that a defendant may choose only a salaried defender. That was never my intention under the key Clause 14(6)(c) or under Clause 14(6)(b). The amendment precludes regulations under any part of Clause 14(6) which specifically restrict choice to salaried defenders.
I turn now to Amendment No. 112 proposed by the noble Lords, Lord Thomas of Gresford and Lord Goodhart. If both my Amendment No. 111 and this amendment stand, the new subsection in Clause 14 would read as follows:
"( ) Regulations under subsection (6) may not provide that an individual may select only a person employed by the Commission or may not select a non-contracted private practitioner who is accredited to provide services of the kind required".
I cannot accept that amendment because it would undermine the approach I have just explained. We are giving people a generous choice but not an absolutely unrestricted choice. The amendment would prevent regulations under Clause 14(6)(c) which gradually limited choice to contracted and salaried providers. Contracting, in the longer term for most or all criminal defence services, is central to the reforms envisaged by this part of the Bill. I firmly believe that contracting represents the most cost-effective mechanism for imposing quality requirements and monitoring standards. Accreditation is just one part of this.
Accreditation relates to personal competence in limited circumstances, but does not address other aspects of quality standards which we would want to see in a contract, such as managerial supervision and internal peer review. But there is more to it than that. Contracting also offers the prospect of sustained and improving value for money, through reduced case-by-case bureaucracy, earlier and more predictable payment and, in time, a limited element of competition. More specifically, it is essential to our plans for ensuring that all firms participate in the duty solicitor scheme; and for providing, wherever possible, continuity of representation throughout the case.
I apologise for the length with which I have dealt with each part of Clause 14(6) but the ability to limit the choice of those needing representation in the ways described is essential to secure quality representation at a reasonable cost. I therefore ask the noble Lords, Lord Thomas of Gresford and Lord Goodhart, to withdraw their amendment. I beg to move.
On Question, amendment agreed to.
5.30 p.m.
The Lord Chancellor The Lord Chancellor moved Amendments Nos. 109 and 110:
Page 10, line 28, after ("representatives") insert ("to ac: for him at any one time").
Page 10, line 30, leave out ("if another representative has been") and insert ("in place of a representative").
On Question, amendments agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No. 111:
Page 10, line 31, at end insert-—
("( ) Regulations under subsection (6) may not provide that an individual may select only a person employed by the Commission.").
Lord Thomas of Gresford Lord Thomas of Gresford moved, as an amendment to Amendment No. 111, Amendment No. 112:
Line 3, at end insert ("or may not select a non-contracted private practitioner who is accredited to provide services of the kind required.").
The noble Lord said: My Lords, I am grateful to the Lord Chancellor for his explanation of this series of amendments. He said that he could not accept Amendment No. 112 because it would undermine the approach that he has adopted whereby everyone who is supported through the legal services commission and the criminal defence service will either be an employed lawyer—if legislation is passed to that effect—or, alternatively, will be under contract.
One can appreciate the noble and learned Lord's aim as regards solicitors. I can see that although it limits choice in the sense that contracts may not be freely given and it may create a monopoly within a particular town or area, those services should be provided by only one firm. However, as regards the Bar. we are in a difficult and different situation which 1 totally fail to understand. The issue has been raised time and again as to whether it is intended that there should be contracts between a set of chambers, or a group of practitioners within a set of chambers, or an individual practitioner, an individual banister, and the criminal defence service.
The answer that the noble and learned Lord has so far given to this difficult problem, which seems to me to alter the whole way in which the Bar has historically worked, is, "I am sure that barristers are bright enough to work out some way in which this can happen". When changes are proposed, one would like to have a little more guidance. Suppose, for example, I contract with the criminal defence service that in the course of the next year I shall do 12 serious cases, and I am instructed to do six. I do not receive instructions to do the other six; I have only six on the plate. I have agreed to do the 12 cases for a lump sum, but I am not asked to do that. Do I get the lump sum? Do I get the whole amount because that is what I am holding myself out to do? Alternatively, suppose I am given 18 cases and I have contracted on the basis of 12. What happens then? Is there a renegotiation of the contract? Difficulties arise when I and my one colleague hold ourselves out as being prepared to do this 'work and a lump sum is presumably paid jointly to us which we in some way have to find a formula for dividing.
As regards chambers, the position is even more difficult. Let us think of a criminal set of chambers, such as the chambers of the noble Lord, Lord Carlisle of Bucklow, which I believe does little other work. I may be trespassing here but I believe it is a well known set of criminal chambers. Do they contract as one set of chambers for a figure of, say, £2 million and employ some administrative way of dividing out the work? There is no guidance. Until there is some positive suggestion to which we can respond, it seems to me entirely wrong that we should face regulations which state that you are either contracted or you are employed and if you are not, you do not get any work and you do not get paid.
This amendment is set down in a serious vein. Perhaps this is not the moment to divide on this issue but it is certainly a moment to ask for clarification once more on this extremely difficult topic. I beg to move.
Lord Carlisle of Bucklow: My Lords, I support what the noble Lord has said. I hope that the Lord Chancellor will accept that certainly I, and I believe the noble Lord, Lord Thomas, ask these questions in a genuine desire to assist. I remain bewildered to understand how the contracts which the Lord Chancellor says he wishes to see between the commission and members of the Bar will work.
When I raised this matter at the previous Report stage of the Bill, the reply that I received from the noble and learned Lord, Lord Falconer of Thoroton, was really what the noble Lord, Lord Thomas of Gresford, has just said. The noble and learned Lord said,
"The question of how the legal services commission will contract with the Bar is plainly, to a large extent, in the hands of the Bar.—[Official Report, 11/2/99; col. 396.]
With respect, surely the Bar and the House are entitled to know the thinking of the Lord Chancellor on these matters. With the greatest respect to the noble and learned Lord, Lord Falconer, he confused me further when he went on to say:
"The groupings might be chambers, people within chambers, or other groupings, including, for example. circuits".—[Official Report, 11/2/99; col. 397.]
I declare an interest as a member of the Northern Circuit; I am sure that the noble Lord, Lord Thomas of Gresford, will declare an interest as a member of the Welsh Circuit. Is it suggested that the commission can negotiate with, say, the leader of the circuit on behalf of the circuit? Can it negotiate and say that so much work will be done in that area by the Bar in exchange for a lump sum of money? If so, who then decides who does that work?
Unless one totally changes the whole ethos and present situation, the Bar consists of individuals who are in competition with each other. Where you have a group of individuals in competition with each other, who is to dictate? Is it the leader of the circuit who decides who does what case? Alternatively, is it, as at the moment, the right of the individual, through his solicitor, to go to the counsel of his choice, if he is available? This applies equally to chambers. The noble and learned Lord the Lord Chancellor has said that you could contract not
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with an individual—which is a situation I understand—but with a group of chambers. As the noble Lord, Lord Thomas, has said, how then do they get their work?
Does the Lord Chancellor's Department envisage that in future there should be direct access, or does it come through solicitors? If it comes through solicitors, then, as the noble Lord, Lord Thomas, has said, what happens if the solicitors do not brief the member of the Bar to the extent to which he has contracted to do the work? If it is a contract with a group within the chambers, who decides who should do an individual case in a profession where people are in competition with each other? Is it the group of barristers together?
Finally, and perhaps most worryingly of all, is it intended eventually that the only person who can do the work is the contracted barrister? Perhaps the noble and learned Lord can explain. As I understand it, you have a contract with a solicitor who will do a certain amount of work, which will include his disbursement for paying members of the Bar. If he chooses to go to the chambers of the noble Lord, Lord Thomas of Gresford, or the chambers in which I have my name, will he still be free to choose the barrister he wishes within those chambers, or will he be limited to one of the barristers who has individually contracted with the commission? If it is the second alternative, it seems to me that you are very substantially reducing the choice of the defendant or individual litigant. You are also making it quite impossible for people ever to start in the profession if they have to be an already contracted party before they can do any work of this nature.
I repeat, I am quite prepared to accept that the noble and learned Lord the Lord Chancellor believes that there is a great future in contracting and that it is advisable and sensible for obtaining value for money. I ask these questions because I remain genuinely bewildered about how the system will work when you are dealing with a profession where each individual is in direct competition with the other.
5.45 p.m.
The Lord Chancellor: My Lords, I have to say that on 2nd May 1997 I gave up giving legal advice, whether for reward or otherwise. I do not regard it as any part of my function at this Dispatch Box to give legal advice to those who, if I may say so, are as well equipped to give it to themselves as I am to give it to them.
I want to set the record straight. I am a friend of the Bar and I want the Bar to help itself. But I do not propose to advise the Bar how to help itself. I do not feel that I should be required to give legal advice to—of all people—the Bar of England and Wales, as to how to contract. Many years ago—indeed, in 1978—I had the privilege of being instructed by my predecessor, the late Lord Havers, to represent him in what was then called an industrial tribunal. The issue concerned whether a barrister's clerk was employed or self-employed: if he was employed, was there a contractual relationship between him and each and every member of chambers, or only with the head of chambers, or perhaps with the members of chambers for the time being as a contractual unity?

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I agree that these are difficult questions, but there is some learning available on them which I would have thought is quite accessible to the Bar. I want to set the record straight. I have been expressing a concern for the Bar. If contracting proceeds with solicitors only and not directly with the Bar, the Bar will be left perhaps in some state of mercy in the sense that the solicitor will contract for the total provision of services. The solicitor will then sub-contract with individual banisters at terms to be negotiated between the solicitor and the barrister—and the solicitor will hold the whip hand because he has the contract. I have said time and again that the Bar, with all the expertise at its disposal, should be addressing how barristers could contract direct. The doors of my offices are open and my officials will be delighted to discuss this with the Bar.
I would have thought that the Bar is in a unique position to advise itself as to how effectively to contract. The noble Lord, Lord Thomas of Gresford, asked all sorts of questions about whether the contract would be entire or whether the consideration could be apportioned. With the greatest courtesy, he must give himself his own legal advice. The short answer is that the terms of the contract, whatever they may be, will rule.
I believe that contracting is a change for the better, and that those who oppose it perhaps feel that any change for the better is a contradiction in terms.
Lord Thomas of Gresford: My Lords, I do not necessarily oppose contracts with the Bar—if only I could understand how they are to come about. I will look at the leading authority in the industrial tribunal from the 1970s about banisters' clerks to see if I can get any guidance from that.
The Lord Chancellor: My Lords, the noble Lord could look up a basic textbook on contracts.
Lord Thomas of Gresford: My Lords, of course I am a very simple criminal lawyer. That is my problem. The Lord Chancellor will be the head of the organisation which effectively holds the whip hand as the other contracting party—through the criminal defence service, and so on—but when we are looking at it in this embryonic stage we are entitled to look to the Lord Chancellor and ask him how he sees it actually working. What sort of structures can we consider and address to see whether or not they are viable? What should be our attitude? If I were to stand here and put forward some sort of structure, your Lordships would be very quickly bored and say, "Please, do this somewhere else". However, I think that we are entitled to have this kind of information so we know exactly where we are going. The noble Lord, Lord Carlisle of Bucklow, is quite right that there is no aggression in what I am saying. I am not anti-contract or anything else. I just want to know where we are. 1 do not propose to press the amendment to a vote today but I want to have some answers before we come back to it again. For the moment, I beg leave to withdraw the amendment.
Amendment No. 112, as an amendment to Amendment No. 111, by leave, withdrawn.
On Question, Amendment No. 111 agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No. 113:
Page 10, line 32, leave out subsection (7).
On Question, amendment agreed to.
Schedule 3 [Criminal Defence Service: right to representation]:
The Lord Chancellor The Lord Chancellor moved Amendments Nos. 114 to 121:
Page 56, line 9, after second ("of") insert ("any kind of").
Page 56, line 10, leave out from ("to") to end of line 23 and insert ("an individual such as is mentioned in relation to that kind of proceedings in section 12(3).
(2)A right of representation for the purposes of criminal proceedings may also be granted to an individual to enable him to resist an appeal to the Crown Court otherwise than in an official capacity.
(3)In this Schedule "court" includes any body before which criminal proceedings take place.").
Page 57, line 6, leave out from ("of') to ("and") in line 7 and insert ("any one or more of the descriptions of proceedings prescribed under section 12(3)(f), ").
Page 57, leave out lines 8 to 12.
Page 57, line 16, leave out from ("make") to ("such") in line 20.
Page 57, line 31, leave out from ("individual") to ("serious") in line 33 and insert ("would, if any matter arising in the proceedings is decided against him, be likely to lose his liberty or livelihood or suffer").
Page 57, line 35, leave out ("the case") and insert ("any matter arising in the proceedings").
Page 57, line 39, leave out from ("whether") to end of line 41 and insert ("the proceedings may involve the tracing. interviewing or expert cross-examination of witnesses on behalf of the individual, ").
On Question, amendments agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No. 122:
Before Clause 15, insert the following new clause—
CODE OF CONDUCT
(".—(1) The Commission shall prepare a code of conduct to be observed by employees of the Commission in the provision of services as part of the Criminal Defence Service.

(2) The code shall include

(a)duties to avoid discrimination,

(b)duties to protect the interests of the individuals for whom services are provided,

(c)duties to the court,

(d)duties to avoid conflicts of interest, and

(e)duties of confidentiality.

(3) The Commission may from time to time prepare a revised version of the code.
(4) Before preparing or revising the code the Commission shall undertake such consultation as appears to it to be appropriate.
(5) After preparing the code or a revised version of the code the Commission shall send a copy to the Lord Chancellor.
(6) If he approves it he shall lay it before each House of Parliament.
(7) The Commission shall publish—

(a)the code as first approved by the Lord Chancellor, and

(b)where he approves a revised version, either the revisions or the revised code as appropriate.

(8) The code, and any revised version of the code, shall not come into force until it has been approved by a resolution of each House of Parliament.").
The noble and learned Lord said: My Lords, during the Committee stage on 26th January (at cols. 880 to 892 of Hansard) the noble and learned Lord, Lord Ackner, proposed a new clause to set out a defenders' code. I agreed in principle that it is most important that the criminal defence service, including any salaried defenders engaged by the legal services commission, should uphold the highest standards of the legal profession. I said then, and still maintain, that defendants are entitled to no less. It is certainly no part of our plans that any service provided by salaried defenders should be second rate. I believe that salaried defenders will provide a bench-mark of quality and cost against which other defence lawyers can be judged.
In Committee I undertook to move a government amendment to introduce a code for salaried defenders. I drew the analogy with the code for Crown prosecutors issued by the Director of Public Prosecutions and laid before Parliament as part of his annual report to my right honourable and learned friend the Attorney-General. This amendment will ensure that salaried defenders employed by the legal services commission are subject to a comprehensive code guaranteeing minimum standards of professional behaviour. Other defenders paid by the conunission, such as banisters or solicitors in private practice, would not be bound by the code but will be bound by their own professional rules.
I have set out in an unambiguous way what must be included within the code. The code shall include:

"(a) duties to avoid discrimination,

(b)duties to protect the interests of the individuals for whom services are provided,

(c)duties to the court,

(d)duties to avoid conflicts of interest, and

(e)duties of confidentiality".

The commission will prepare the code under this guidance. The code will be published and approved by a resolution of each House of Parliament.
I hope that the amendment demonstrates that I intend the highest ethical standards to apply, and to be seen to apply, to lawyers who may be employed by the commission. I beg to move.
Lord Renton: My Lords, I wonder whether the noble and learned Lord the Lord Chancellor would be so good as to give us some idea of the conflicts of interest which are mentioned in subsection (2)(d). Taking subsections (5) and (6) together, may we be quite sure that the code will not come into operation until it has been approved by the Lord Chancellor and by both Houses of Parliament?
The Lord Chancellor: My Lords, as to the noble Lord's second point, that is certainly my intention. As to his first point, which concerns duties to avoid conflicts of interest, the one that most instantly comes to mind is where two defendants are being tried in the same trial and by reason of the nature of their defences there is a conflict between the two and it would be
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inappropriate therefore for them to be represented by the same salaried defender. That is the best illustration I can offer.
Lord Wigoder: My Lords, I am sure the noble and learned Lord the Lord Chancellor will accept that I rise to speak in no adversarial spirit but simply to ask one or two questions as I am not clear as to what the answers might be.
A code is clearly desirable and necessary. I have no particular comments to make about the code as set out in subsection (2) of the amendment. However, drafting a code is not all that difficult. Indeed, many of us in our time have drafted codes of professional conduct for various legal bodies. The problem arises when one comes to enforcing the code. It is about that matter that I want to ask some questions and I have no ulterior motive in doing so.
I take "duties to avoid conflicts of interest" as an example. With a salaried defender, whose task will it be to detect whether a fellow employee is suspected of a conflict of interest? If someone detects it or suspects that there is one, to whom will he report it? When he reports it, it presumably goes through a chain. To whom will it go? Where does the chain finish? Who will then adjudicate upon the issue as to whether the salaried defender has been in breach of his duty to avoid a conflict of interest? What sanctions will be available against a salaried defender who breaches the code in that or any other way? Is it to be a question of an employer-employee relationship and a matter eventually perhaps of an industrial or employment tribunal if someone is wrongfully dismissed; or is it to go a rather different way; and if so, how will it get there? In other words, will a solicitor salaried defender find that in some way or other the matter will reach the Law Society and it will be for its disciplinary body to deal with the issue? If he is a barrister salaried defender, will it in some way be a matter that will reach the Bar Council or his Inn of Court?
I should be grateful for assistance on these matters. As I say, drafting a code is one thing but making sure that it works is absolutely crucial.
Lord Ackner: My Lords, it will be apparent to your Lordships that, following the chiding I received from my noble and learned friend the Lord Chancellor for having spent too long winning the amendment on the fourth day of Committee, I had descended into a deep sulk. But I feel it is only right to acknowledge my gratitude to my noble and learned friend for having done what he undertook to do in producing this new clause.
I, too, would like to know the answer to the question of enforcement because that was one of the problems which was raised in Committee. But, subject to that inquiry, I repeat my gratitude to my noble and learned friend for carrying out what he undertook to do.
Viscount Colville of Culross: My Lords, I wish to say a few words because the point about enforcement is something that I envisage coming before the courts themselves. It must be of great importance that someone like myself who tries crime all the time should know

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whom to approach if there should be a breach of the code. There is a duty to the court, but what is the court to do about it? I therefore think that the noble Lord, Lord Wigoder, and the noble and learned Lord, Lord Ackner, have raised a point that should exercise the mind of the noble and learned Lord the Lord Chancellor as indeed it will exercise the minds of the judiciary.
6 p.m.
Lord Borrie: My Lords, I want to raise one small question in the light of the point made by my noble and learned friend the Lord Chancellor that this code, which I am delighted to see following the initiative of the noble and learned Lord, Lord Ackner, will apply to those employed by the commission whereas independent practitioners will be governed by their own professional requirements—presumably the Bar Council and the Law Society.
Is it the understanding of my noble and learned friend that the codes by which the independent practitioners will be governed are "similar" to the statutory code or "identical" with it? If they are only "similar", is not there a risk of discrepancy in treatment between the independent practitioner and he or she who is employed by the commission? For example, in the same case there may be a Queen's Counsel who is an independent practitioner working with a junior who is a member of the criminal defence service.
The Lord Chancellor: My Lords, I am grateful to the noble and learned Lord, Lord Ackner, for welcoming this amendment; after all, it was his idea, though I strongly supported it in principle.
I am asked about who it will bind. Primarily, the duties are duties imposed on employees of the commission—salaried lawyers employed by the commission. The new clause provides,
"The Commission shall prepare a code of conduct to be observed by employees".
I would envisage that compliance with the code would become a term of the contract of employment and would be enforceable in the same way as an employer may enforce any term of a contract of employment.
Some noble Lords drew attention to the fact that a breach of the code might, at the same time, be a breach of the professional rules either of solicitors or barristers depending on whether the employee in question was a solicitor or barrister. Enforceability would be through the contract of employment and very often it might be the case that a breach of the code would amount also to a breach of the individual's professional code.
Today, if a judge feels strongly that there has been some ethical lapse on the part of counsel before him, he is free to draw it to the attention of the head of chambers or the disciplinary body of an Inn of Court for it to consider whether or not to take the initiative. Similarly, a court would be free to communicate its concern or displeasure to the head of the criminal defence service and, likewise, could complain to the Inn of Court or the Law Society according to whether it was a barrister or a solicitor. Those are the best answers that I can give to those questions as at present advised.
On Question, amendment agreed to.
Clause 15 [Regulations about payments to representatives]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 123:
Leave out Clause 15.
On Question, amendment agreed to.
Clause 16 [Terms of provision of funded services]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 124:
Page 11, line 26, after ("made") insert ("and what that person or body is to do with them").
The noble and learned Lord said: My Lords, 1 hope I can deal briefly with what are technical amendments, relating to moneys received as a result of an order made under Clause 16(2) that an individual for whom services are funded by the Commission as part of the criminal defence service is to pay some or all of the costs of representation.
Clause 17(4) states that any amount received by the commission pursuant to an order under Section 16(2) shall be paid into the Consolidated Fund, which is the Government's principal bank account at the Bank of England.
Amendment No. 124 is necessary so that any persons or bodies other than the commission through which these sums are handled--for example, magistrates' courts or debt collection agencies—can be directed what to do with sums collected pursuant of an order. Regulations will ensure that the sums arrive in the Consolidated Fund in an efficient way, subject to proper financial controls. This might not involve payment being routed through the commission. Amendment No. 125 deletes Clause 17(4) which becomes otiose. I beg to move.
On Question, amendment agreed to.
Clause 17 [Funding]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 125:
Page 11, line 38, leave out subsection (4).
On Question, amendment agreed to.
Clause 18 [Foreign law]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 126:
Page 11, line 43, at end insert ("unless any such law is relevant for determining any issue relating to the law of England and Wales.").
The noble and learned Lord said: My Lords, in moving Amendment No. 126 I shall speak also to Amendments Nos. 127 and 128, all of which are amendments to Clause 18. The first is designed to ensure that the wording of Clause 18 does not prevent the legal services commission from providing help under both the community legal service and the criminal defence service where there are factual issues of foreign law which arise in proceedings in England and Wales.
In Committee we were fairly inundated with examples of situations where issues of foreign law might arise, and I am grateful to your Lordships for bringing those to our attention. I believe that this amendment provides for those and other similar situations, where we would wish to provide help.
The other two amendments refer to the process by which the Lord Chancellor may make exceptions to the general provisions of this clause. Clause 18 provides, in

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general, that the legal services commission is restricted to funding services under the community legal service or criminal defence service only in relation to matters of domestic law. However, the commission should be able to fund services in exceptional circumstances where it is necessary to fulfil the United Kingdom's international obligations. For example, the REMO (Reciprocal Enforcement of Maintenance Orders) agreement obliges us to provide legal aid for the enforcement in this country of child maintenance orders made in foreign courts under foreign law. Whereas previously the clause allowed the Lord Chancellor to make exceptions by direction, these amendments provide that exceptions shall be made by order subject to the negative approval procedure. That mirrors the arrangements under the existing Act.
I have always been in agreement with your Lordships on the purpose of this clause; I hope that we can now agree on its wording. I beg to move.
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendments Nos. 127 and 128:
Page 12, line 3, leave out ("directions given by him under section 4") and insert ("order").
Page 12, line 6, leave out ("by the directions") and insert ("in the order").
The noble and learned Lord said: My Lords, with the leave of the House I shall move Amendments Nos. 127 and 128 en bloc. I beg to move.
On Question, amendments agreed to.
Clause 19 [Restriction of disclosure of information]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 129:
Page 12, line 31, leave out ("apply to") and insert ("limit the disclosure or).
The noble and learned Lord said: My Lords, I think 1 can be fairly brief in speaking to these amendments, which I promised to bring forward in response to an amendment moved by the noble Lord, Lord Goodhart. in Committee which he kindly agreed to withdraw in the light of my undertaking to reconsider the drafting of Clause 19.
The noble Lord was concerned that the present wording of Clause 19(3)(c), taken with the provisions of Clause 19(1), appeared to suggest that information which was otherwise subject to client/lawyer privilege could be disclosed or be required to be disclosed. As I explained in response to the noble Lord, that was certainly not the intention of the provision. Its purpose was simply to ensure that information given by the client to his lawyer was not subject to the provisions of Clause 19 at all and, therefore, that disclosure could not render the lawyer liable to prosecution under Clause 19(5). It was not intended in any way to breach the privilege from disclosure of information given to a lawyer by his client. I agreed to ask the draftsman to consider the provisions further in order to make their intent clearer.
The group of amendments standing in my name seeks to set out more plainly the intent of the provisions contained in subsection (3). The opening words of
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subsection (3) of Clause 19 are amended to make clear that the provisions of Clause 19(1) do not limit disclosure of information of the kind described in the subsection. Sub-paragraph (c) is removed from subsection (3). A new section is added at the end of the clause which more plainly sets out that information provided to a lawyer by a client receiving funded services as part of either the community legal service or the Criminal Defence Service is not subject to the provisions of Clause 19. This information, of course, remains subject to privilege and the provisions of Clause 21(1) already ensure that the privilege is not affected by reason of the client being in receipt of funded services.
I hope that with these amendments I have met the concerns of the noble Lord, Lord Goodhart. I beg to move.
Lord Goodhart: My Lords, the noble and learned Lord has indeed succeeded in that purpose. I am most grateful to him for having taken the original draft away and looking at it again. It seems to me that these amendments deal with the problem that I raised in Committee.
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendments Nos. 130 and 131:
Page 12, line 36, leave out from ("Commission") to end of line 40.
Page 13, line 2, at end insert—
("(7) Nothing in this section applies to information furnished to a person providing services funded as part of the Community Legal Service or the Criminal Defence Service by or on behalf of an individual seeking or receiving such services.").
On Question, amendments agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No. 132:
After Clause 21, insert the following new clause
GUIDANCE
(".—(1) The Lord Chancellor may give guidance to the Commission as to the manner in which he considers it should discharge its functions.
(2)The Commission shall take into account any such guidance when considering the manner in which it is to discharge its functions.
(3)Guidance may not be given under this section in relation to individual cases.
(4)The Lord Chancellor shall either—

(a)publish, or

(b)require the Commission to publish,

any guidance given under this section.").
On Question, amendment agreed to. Clause 23 [Orders and regulations]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 133:
Page 14, line 21, after ("power") insert ("of the Lord Chancellor").
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No. 134:
Page 14, line 22, at end insert
"(1A) Before making any remuneration order relating to the payment of remuneration to barristers or solicitors the Lord Chancellor shall consult the General Council of the Bar and the Law Society.
(1B) When making any remuneration order the Lord Chancellor shall have regard to—

(a) the need to secure the provision of services of the description to which the order relates by a sufficient number of competent persons and bodies,

(b) the cost to public funds, and

(c)the need to secure value for money.

(1C) In subsections (IA) and (1B) "remuneration order" means an order under section 7(3A), 13(2A) or I4(3A) which relates to the payment by the Commission of remuneration—

(a)for the provision of services by persons or bodies in individual cases, or

(b)by reference to the provision of services by persons or bodies in specified numbers of cases.").

[Amendment No. 135, as an amendment to Amendment No. 134, not moved.]
On Question, Amendment No. 134 agreed to.
The Lord Chancellor The Lord Chancellor moved Amendments Nos. 136 to 139:
Page 14, line 22, at end insert—
("( ) No directions may be given by the Lord Chancellor to the Commission under this Part in relation to individual cases.
( ) Any directions given by the Lord Chancellor to the Commission under this Part may he varied or revoked.
( ) The Lord Chancellor shall either—

(a)publish, or

(b)require the Commission to publish, any directions given by him under this Part.").

Page 14, line 23, leave out ("Regulations") and insert ("Orders, regulations and directions of the Lord Chancellor").
Page 14, line 25, after ("2") insert ("or 9 or paragraph 6(3) of Schedule 3").
Page 14, line 26, leave out ("4") and insert ("5").
On Question, amendments agreed to.
Clause 24 [Interpretation]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 140:
Page 14, leave out line 36.
On Question, amendment agreed to.
Clause 27 [Conditional fee agreements]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 141:
Page 15, line 28, leave out from second ("agreement") to ("or") in line 31 and insert ("with a person providing advocacy or litigation services which provides for his fees and expenses, ").
The noble and learned Lord said: My Lords, this group of amendments makes changes to Clause 27 which I undertook to consider further in response to a number of amendments moved in Committee.
In Committee the noble Lord, Lord Kingsland, moved an amendment with the intent of ensuring that there could be no doubt that a conditional fee agreement made between a barrister and solicitor on behalf of a client was lawful and enforceable. As I explained in Committee, the concern arises because barristers do not usually accept instructions directly from the public. A barrister is instructed by a solicitor on behalf of a
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member of the public or some other body. The solicitor is considered the professional client and the member of the public or other body the lay client. The concern expressed by the noble Lord, Lord Kingsland, was whether Clause 27(2)(a) adequately encompasses conditional fee agreements made with barristers.
The first and third amendment in this group seek to meet that concern by amending the description of a conditional fee agreement so as to avoid referring to "client". The first amendment in this group changes subsection (2)(a) of Clause 27 so that it will read as follows:
"(2) For the purposes of this section and section 58A—
(a) a conditional fee agreement is an agreement with a person providing advocacy or litigation services which provides for his fees and expenses or any part of them to be payable only in specified circumstances."
The revised provision sets out more clearly the firm intention that any lawyer, whether a barrister or solicitor, may offer his services in specified proceedings as provided under Clause 27 and that any agreement made in accordance with Clause 27 and regulations made under it is lawful and enforceable. The third amendment in this group is consequential to the redrafting of Clause 27(2)(a) where the use of the term "client" has now been removed.
The second amendment in this group fulfils the undertaking I gave to the noble Lord, Lord Meston, whom I am pleased to see in his place, to consider the terms of his amendment to ensure that conditional fee agreements may not be allowed in any form of family proceedings. I do not think that I need to say more now than I did in responding to the noble Lord in Committee save to say that it pleased him when I accepted his amendment in principle and hope he will be equally pleased to see that the terms of his amendment have also met with the approval of the parliamentary draftsman.
The fourth amendment in this group reproduces that moved in Committee by the noble Lord, Lord Kingsland. It seeks to increase the discretion given to the Lord Chancellor as to which bodies in addition to the designated judges, the General Council of the Bar and the Law Society he wishes to consult before he makes an order specifying proceedings in which conditional fee agreements may be made. I agree to consider his amendment further because I believe that the provision contained in the proposed Section 58(4) of the Courts and Legal Services Act 1990 inserted by Clause 27 is too restrictive. I am pleased to say to the noble Lord, Lord Kingsland, that I am able to accept the terms of his original amendment too.
I hope that I have managed to meet the concerns of the noble Lords, Lord Goodhart, Lord Meston and Lord Kingsland, with these amendments. I beg to move.
6.15 p.m.
Lord Kingsland: My Lords, I am extremely grateful to the Lord Chancellor for responding to my amendment in the way that he has.
Lord Meston: My Lords, I am likewise grateful to the noble and learned Lord for responding so promptly and completely to the concerns of the family lawyers, who were worried about the terms of the Bill as originally drafted.
Lord Goodhart: My Lords, I, too, am grateful for these amendments.
On Question, amendment agreed to.
Lord Hunt of Wirral Lord Hunt of Wirral moved Amendment No. 142:
Page 15, line 45, after ("agreement") insert—
("( ) it must not be used in substitution for before the event legal expenses insurance cover;").
The noble Lord said: My Lords, this amendment concerns the question of conditional fee agreements. It seeks to ensure that they will not take the place of already existing insurance cover for legal expenses.
Conditional fee arrangements are of course "after the event" insurance. However, many people have "before the event" insurance but often do not realise that fact. As my noble friend Lord Renton just pointed out to me, my amendment might have been easier to read had "before the event" been in inverted commas. I should be happy to accept that amendment. I stress that the amendment seeks to ensure that conditional fee agreements must not be used—on the original Marshalled List the word "not" was omitted—in substitution for before the event legal expenses insurance cover.
I very much support the principle of conditional fee agreements, but they must be only one of the options to be considered by a claimant. A claimant's solicitor has to look at the wider picture and to recognise that there is a potential conflict of interest because there will undoubtedly be a situation where a claimant's solicitor will secure additional remuneration if a conditional fee agreement is preferred. Yet, as I understand it from recent figures, there are 17 million before the event legal expenses insurance policies in existence. Often people do not realise that. These policies may be attached to domestic, household, car or even credit card insurance policies. I very much hope that there is some way in which we can ensure that where people already have this cover the claimant's solicitor is put under an obligation to see that it is that cover which is used to make sure that the individual is properly protected rather than a conditional fee agreement.
I speak on behalf of a number of solicitors who specialise in this area of insurance, as I have myself in the past. Their organisation is the Forum of Insurance Lawyers (FOIL), the president of which, Martin Bruffell, who is an active practitioner and a partner in the well-known insurance litigation firm of
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Berrymans Lace Mawer, is quoted in one of today's legal newspapers as saying:
"It seems to us that [conditional fee agreements] are being encouraged because it allows lawyers to add an extra sum to their bill if they're successful. That way, they get more money for the same job.
We believe it is fraudulent, or even negligent, for a solicitor not to look at all possible funding options before advising a claimant on what route they should take".
I know that Martin Bruffell and his officers in FOIL are raising with the Law Society the whole question of a new professional conduct rule which would apply here.
I hope that the noble and learned Lord the Lord Chancellor will not only sympathise with the purpose behind the amendment but will actively seek ways in which my concerns can be addressed. I beg to move.
Lord Kingsland: My Lords, I rise to speak to the other two amendments in this group, Amendments Nos. 143 and 151. I seem to recall that in Committee the noble and learned Lord made a most helpful, constructive and thoughtful response to these amendments. I do not remember that just because it was the only occasion on which the noble and learned Lord responded in that way to one of my amendments. I believe the noble and learned Lord said in reply that he would be interested to receive a letter from the Law Society about the scope of the definition of "non-contentious business". The issue that the noble and learned Lord reflected on in some detail was how one could deal with, for example, a case being heard in an employment tribunal where there is no specific costs regime to which a conditional fee agreement could adhere.
I do not know whether the noble and learned Lord has had a chance to reflect further on this matter or whether he has had any exchanges with the Law Society since then. I readily accept that these amendments may not, in any case, satisfy entirely what he would wish to put in the Bill were he to be satisfied that something was necessary. It is with that series of rather open reflections that I leave the matter with him.
The Lord Chancellor: My Lords, the amendments in this group seek in different ways to provide additional conditions to those contained in the Bill which would have to apply to every conditional fee agreement.
The first amendment, in the name of the noble Lord, Lord Hunt of Wirral, seeks to insert a new subparagraph in the revised Section 58(3) of the Courts and Legal Services Act 1990 contained in Clause 27. Section 58(1) provides that where a conditional fee agreement satisfies all the conditions set out in Section 58 it shall be enforceable. Section 58(3) provides for certain conditions which must apply to all conditional fee agreements. It is in this subsection that the noble Lord wishes to insert a new subparagraph after Section 58(3)(b) which provides that the conditional fee agreement must not be used in substitution for before the event legal expenses insurance cover.

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This therefore makes a conditional fee agreement lawful only if it is not used in substitution for,
"before the event legal expenses insurance cover".
From one point of view, it must be a matter entirely for the individual to decide whether he will take advantage of an insurance product he has already purchased or whether for some reason he prefers to engage a solicitor on a basis that the lawyer will share with him the risks of litigation, and be covered specifically by insurance. As at present advised, I tend to think that this is a choice for the individual to make and not one for Parliament to make for him. On the other hand, I accept that the noble Lord has a point and I undertake to write to the president of the Law Society and enquire of him what the Law Society's view is of the duties of a solicitor who is minded to enter into a conditional fee agreement but who knows that his client already has insurance cover under a before the event legal expenses insurance policy.
I doubt that the market for legal expenses insurance is really at risk here, however. I believe that those who are inclined to insure against unspecified potential liabilities will continue to do so. If they had prudently gone to the trouble and expense of doing so, I would be surprised if they did not avail themselves of that which they had purchased when the need for it arose.
I have said, and I say again, that I wish to encourage greater use of legal expenses insurance because it is the cheapest and most prudent way—I am sure the noble Lord will be pleased to hear me say this—to provide for a potential liability for lawyers' bills. I am sure that the marketing skills of the insurance industry, if properly applied, could achieve greater awareness of legal expenses insurance and increase the use of these products.
I have said to the noble Lord that I think he has a substantial point that the Law Society should address and I have given him my undertaking to write to the president of the Law Society. When I hear from the president I shall, with his permission, pass on his views to the noble Lord.
The second two amendments in this group are related. Amendment No. 143 is substantially the same amendment as was moved in Committee by the noble Lord, Lord Kingsland, which seeks to outlaw contingency fees. Amendment No. 151 responds in part to the reply that I gave the noble Lord in Committee when I pointed out that solicitors were allowed to use contingency fees in non-contentious business as defined by the Solicitors Act 1974. This amendment builds on Amendment No. 143 so that contingency fees used by solicitors would no longer be lawful notwithstanding that the Solicitors Act approves of their use. I dealt in some detail in Committee with the amendment to outlaw contingency fees, and I do not believe that it is necessary to repeat what I said then. I have not changed from the view I expressed in Committee when I invited the noble Lord, Lord Kingsland, to withdraw his amendment on that occasion. However, I expressed my concern in Committee about the use of contingency fee agreements in cases before employment tribunals. I have taken up this matter with the Law Society and I am
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currently considering some preliminary representations that it has made to me on this matter. This is an area in which I continue to take an active interest. I repeat that I do not want to see contingency fees introduced in relation to cases before the courts. I think that there is a crucial difference between arrangements where the lawyer charges his normal fees in the event of success, together with an uplift which is subject to a statutory maximum, and arrangements where the lawyer's direct interest is an agreed percentage of the damages recovered. The two are quite different. That, too, is the view that the courts have taken and continue to take. Contingency fees are at common law unlawful and unenforceable. The Solicitors Act 1974 prevents a solicitor from using a contingency fee in contentious business before the courts. I therefore believe that, employment tribunals apart, the law is sufficiently clear on this point and I am not persuaded of the need to legislate in this area.
But I entirely accept that the situation relating to employment tribunals needs careful thought. The Government, however, are looking at their obligations under EU law and the European Convention on Human Rights before reaching any conclusions. This issue needs to be addressed in that context. As I said in Committee, we cannot simply consider the position of employment tribunals and related issues of costs or publicly-funded support to take cases to those tribunals in a piecemeal fashion. On that basis I invite the noble Lord to withdraw his amendment.
Lord Hunt of Wirral: My Lords, I thank the noble and learned Lord for his undertaking. In those circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
6.30 p.m.
[Amendments Nos. 143 and 144 not moved.]
The Lord Chancellor The Lord Chancellor moved Amendments Nos. 145 to 147:
Page 16, line 18, leave out from ("proceedings") to end of line 20.
Page 16, line 37, leave out ("to his client").
Page 17, line 5, leave out ("authorised bodies (if any)") and insert ("bodies").
On Question, amendments agreed to.
Lord Goodhart Lord Goodhart moved Amendment No. 148:
Page 17, line 9, after ("subject") insert ("to subsections (OA) and (6B) and").
The noble Lord said: My Lords, in moving Amendment No. 148 I should like to speak also to Amendments Nos. 150, 152 and 154 which stand in my name and are part of the same group. These amendments bring back a series of amendments debated at Committee stage. I bring them back because I believe that they are of considerable importance. I am aware that a number of others both in your Lordships' House and elsewhere agree with me on that. The amendments concern the right of a successful party who has been funded by a CFA to recover from the losing party both the top-up that he has agreed to pay to his solicitor or

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barrister over the normal fees that are payable and the insurance premium that he has purchased to cover the liability to pay the costs of the other side.
The Bill now provides that a costs order may, subject to rules of court, include an order for payment of enhanced fees—the top-up—and the insurance premium. They are dealt with respectively in Clauses 27 and 28. In Committee the noble and learned Lord the Lord Chancellor indicated that there should be a presumption in favour of including in the costs order the top-up and the premium. However, he also said that it was desirable to retain a certain degree of flexibility as is the case with an ordinary costs order where costs normally follow the event but there is power to direct that they should not do so. I believe that the presumption should be the other way and that the premium and the top-up fees should not be added to the costs order unless there is a clear justification for doing so. There are two reasons for this. The first, and I believe more important one, is that such a costs order will be unfair to the losing party. A claimant who has reasonable means and wishes to bring proceedings has a choice. He can accept the normal risk that if he loses he will have to pay his own costs and those of the other side, or he can in effect insure himself against that risk by entering into a CFA with his own legal advisers and by insuring against the risk of having to pay the other side's costs.
One may ask why the losing party should have to pay extra because the claimant has chosen to protect himself against the normal risks of litigation. That may result in the loser paying three sets of costs: his own, the other side's normal costs and what may be up to 100 per cent. by way of top-up, and also the successful party's premium. Not all losing parties are big corporations with deep purses. Not all losing parties have behaved unreasonably in contesting the proceedings. Indeed, the stronger the case of the unsuccessful party the more he will have to pay if he loses because in such circumstances it is likely that the claimant's top-up fee will be larger. The top-up fee is larger in difficult cases than in easy ones.
I believe that here there is a plain and simple principle that if a claimant chooses to litigate and pay to protect himself against the normal risks of litigation the defendant should not be saddled with the costs of that protection. I recognise that the claimant does not always have that choice. The claimant may not be able to afford to take the risk of losing. The claimant may have no real alternative but to enter into a CFA. In such a case it may well be unfair to the claimant to deprive him of part of the damages that he has won in order to pay the top-up or the costs of the premium. These amendments cover that.
The second reason why I believe that losers should not normally be asked to pay the top-up fee and the premium is that it will encourage people who can afford to pay their own costs to go for a CFA instead. The incentive is obvious. If one loses one pays no fees and no costs; if one wins one gets back one's own costs, the top-up and the policy premium. Therefore, it is a case of heads I win and tails you lose. But CFAs have quite serious defects. Among them is the fact that they lead
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to conflicts of interest between the lawyer and the client. The more money that lawyers have invested in working on a case the greater will be their interest in settling that case even on terms that are unfavourable to the client as long as their costs are recoverable.
Secondly, CFAs will reduce choice because many smaller firms will not want to expose themselves to the additional risks involved in CFAs, and CFA work will go to the big claims firms such as Thompson's which can spread the risk. CFAs have a useful role to play in providing access to justice, but that does not mean that they should be encouraged where access to justice is available without them.
The most serious argument against the amendments is that they will encourage satellite litigation. That is not something I would wish to see. However, I believe that with properly drafted rules there is no reason why satellite litigation should be encouraged. The main issue is likely to be whether a successful party could afford to litigate without recourse to a CFA. Someone wishing to claim recovery of top-up fees would no doubt have to submit a sworn statement of his own assets and liabilities to show that he could not have afforded to risk paying the costs. There is no reason why the accuracy of that statement should be investigated, or why there should be cross-examination on it. Of course if someone deliberately conceals substantial assets, and that fact is subsequently discovered, quite properly he would run the risk of prosecution for perjury. By giving sufficiently careful thought to the drafting of the rules, I believe that it is possible to eliminate most of the risk of satellite litigation arising.
The Bill as drafted is unfair to losing parties and will encourage the use of CFAs when they are not needed and not desirable. I beg to move.
Lord Renton: My Lords, to a great extent I agree with the noble Lord, Lord Goodhart, in his attempt to ensure the costs awarded after conditional fee decisions have been made.
I think it is only right to remind your Lordships that, apart from the circumstances of conditional fee agreements, costs in civil actions have always been at the discretion of the court and the taxing master. It is right that that should be so because there is a multitude of different factors that the court, and rather less the taxing master, are entitled to take into consideration.
I much admire the effort of the noble Lord, Lord Goodhart. However, what I have suggested is summed up in Amendment No. 154 in the new subsection (2) which states:
"An order may be made under this section only if the court thinks it just in all the circumstances".
I repeat: "all the circumstances". That is the great variety to which I referred. I suggest with all humility and respect that instead of accepting the amendments, at Third Reading the noble and learned Lord the Lord Chancellor should have a provision written into new Section 58A which makes it clear that even in conditional fee cases the court will have that full discretion which otherwise prevails.
6.45 p.m.
Lord Hunt of Wirral: My Lords, the noble and learned Lord the Lord Chancellor will know from our debate on conditional fee agreements that I welcome them in principle. I find myself in agreement with the comments of the the noble Lords. Lord Goodhart and Lord Renton.
The noble and learned Lord the Lord Chancellor may recall that I pointed out that for public bodies and public companies facing a number of actions the arrangement in effect asked for them to pay for the cases they had won through payment not only of the success fee but also of the insurance premium in those cases they lose. The noble Lord, Lord Goodhart, has introduced a further element: I share his concern. It is to some extent mitigated by the validity of the arguments adduced by the noble Lord. Lord Renton. Perhaps we should find some way of returning to the court the discretion that the court has always had to intervene in cases where it is just for the court to do so.
I speak to Amendments Nos. 149 and 153 which concern yet one further element which has caused concern to the Forum of Insurance Lawyers. Hitherto, parties to an action have usually known how the claim is funded. At the outset, a notice of civil aid through the legal aid certificate is exhibited to the court, and notice of its existence is served on the other party. I am concerned that we are now dealing with a range of possible funding mechanisms. A person facing a claim will not know how the claim is being funded. My amendments provide that notice is given, in particular where a conditional fee agreement exists.
The funding could be through legal expenses insurance, in some cases through legal aid, conditional fee agreement, trade union assistance, or private means. It could be a range of factors. The sort of person to whom the noble Lord, Lord Goodhart, has referred who faces a claim, needs that information in order to assess his chances of recovering costs. Public bodies, public companies and private individuals need that information. My comments apply to Amendments Nos. 149 and 153.
Lord Clinton-Davis: My Lords, in the course of these debates, it is rare to find myself at variance with the noble Lord, Lord Hunt. However, I have some reservations on this issue, and they are as follows. One would have to give advance notice to the opponent of the level of success fee. Who would benefit from that? It would be the insurers.
My preferred course would be to engage in more consultation on the issue before adopting the course proposed by the noble Lord. The issue may be better dealt with by rules of court or regulations. I hope that my noble and learned friend will respond to that point.
Lord Ackner: My Lords, in many ways we are in an odd position. For many decades, the conditional fee arrangement was unenforceable as it was considered contrary to public policy. All of a sudden a halo has been placed around this form of activity and if one indulges in it one receives a bonus, which is quite contrary to principle.
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If conditional fees were not available, and if (as I am sure would be the case) I could not afford the litigation upon which I am about to embark and 1 raise a large loan from my bank in order to fund it, no one would have thought for a moment that if I won the case I could include the interest which I pay on the loan. I suppose the classicist would say that res inter alia acta, it has nothing to do with the essential principles of damages and costs. That is why I resist the suggestion that there should be a presumption in favour of the premium and the uplift being repaid. That is why I put my name to Amendment No. 154, which seems to he supported by the noble Lord, Lord Renton. It provides that the court retains a discretion and, in deciding how to exercise it, has regard to the matters set out in the amendment. Accordingly, I would support that as a way of dealing with the problem.
The Lord Chancellor: My Lords, the amendments bring onto the face of the Bill considerations that the court should have in mind in determining the liability for any success fee and insurance premium that a person using a conditional fee agreement should recover from his opponent.
Amendments Nos. 148 and 150 to Clause 27 impose on the court a number of considerations before it can make the success fee recoverable, including such things as the hardship towards the person liable to pay the costs and the extent to which the case could have been funded without using conditional fees. Amendments Nos. 152 and 154 to Clause 28 impose similar constraints on a court before it can make the insurance premium recoverable.
As I said in Committee, I consider that these matters, to the extent to which they need to be dealt with at all, are matters far better suited to be dealt with in rules of court. I continue to be very concerned that they would, in effect, establish satellite litigation while arguments were made about whether, for example, a person could have afforded to take a case without using conditional fees or an insurance premium and about considerations that had led the court to its conclusion.
I am afraid that there is an issue of principle between myself and the noble Lord, Lord Goodhart. He would like the presumption to be the other way around and to provide that the insurance premium and the success fee should not be added to the defendant's liability unless there were specific justification for doing so. He says that it is unfair to the losing party.
The noble and learned Lord, Lord Ackner, comes to a similar view from a different standpoint. He says that conditional fee agreements used to be stigmatised as unlawful, but all of a sudden a halo has been put around them. Of course, the noble and learned Lord will be the first to know that Parliament sometimes has to step in and remedy the deficiencies of the common law and Parliament is sovereign. The noble and learned Lord asks, "What if there were no conditional fee agreements and I had to go to the bank and be put in funds to bring litigation forward? I would not in the ordinary way recover the interest I had to pay on the loan". Of course he is right. He says that that would be reason to res inter alia acta. Another way of looking at it might be to say,

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"The problem arises from the impecuniosity of the plaintiff and that should not be visited on the defendant. But it is possible for Parliament to take a different view and that is what we invite Parliament to do. The costs of the insurance premium and the uplift are costs that he had to incur in order to gain access to justice and they are costs incurred as a result of a wrong which has been done to him by the defendant".
For my own part, I do not see it as in any way unfair to defendants who have wronged plaintiffs to be liable for the full costs which the plaintiffs have had to incur in order to secure redress.
I believe that the simpler course would be to allow the normal rules on costs to apply. That is a presumption that costs will follow the event of the judgment, but—and I agree with the noble Lord, Lord Renton—with a discretion to the court to vary this in appropriate circumstances.
Amendments Nos. 149 and 153 in the name of the noble Lord, Lord Hunt, also seek to place provisions in the statute with which I can have sympathy in general terms, but which I believe are more adequately dealt with in rules of court. He seeks to amend the proposed Section 58A(6) so as to prevent the success fee being recoverable unless notice has been given as prescribed by rules of court and to amend Clause 28 in a similar way in respect of the recovery of the insurance premium.
If it assists the noble Lord, I am quite sure that it will be necessary to specify in the rules of court not only that a notice that a conditional fee agreement is being used and backed up by an insurance premium must be given to an opponent, but also when that must be given and when a person using a conditional fee will be required to set out in a notice to his opponent the success fee that is being claimed and the amount of the premium incurred. That is why the provisions of subsection (6) and Clause 28 are expressed so that recovery is subject to rules of court. For those reasons, I do not believe that the additional words he seeks to include are necessary.
I am prepared to consider further the concerns which lie behind the amendments contained in the group when drafting the necessary rules of court. As I have made plain, there is simply a difference of principle and judgment between myself and the noble Lord, Lord Goodhart. I abstain from speaking to Amendment No. 155 because the noble Lord, Lord Kingsland, has not spoken to it in this group. For those reasons, I invite the noble Lord to withdraw the amendment.
Lord Goodhart: My Lords, I am grateful for the support which my amendment has received from other Members of your Lordships' House. In response to the noble Lord, Lord Renton, I would be entirely happy had the noble and learned Lord accepted my amendment to the extent suggested by him and no further. Unfortunately, the noble and learned Lord is not prepared to go even as far as that.
However, the noble and learned Lord the Lord Chancellor has said that Parliament is entitled to impose an obligation on a losing party to pay the top-up fees of
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the successful party. That is beyond question. It certainly has the power to do so. The real question is whether it is fair to impose such a rule and I must say that nothing the noble and learned Lord has said has induced me to change my view that it is not fair to do so.
Although my views have not changed on this issue and I still believe it to be both serious and important, I do not intend to press it to a Division. I can only hope that the rules will be drafted in a way which gives the courts power to do justice. In my view, justice will involve not requiring a defendant to pay a top-up where, for example, the successful party is clearly a person of considerable wealth who has chosen to go for a CFA rather than run the risk of paying the cost of litigation which he can well afford.
Amendment, by leave, withdrawn.
7 p.m.
[Amendments Nos. 149 to 151 not moved.]
Clause 28 [Recovery of insurance premiums by way of costs]:
[Amendments Nos. 152 to 154 not moved.]
[Amendment No. 155 not moved.]
Clause 29 [Replacement of ACLEC by Consultative Panel]:
The Minister of State, Cabinet Office (Lord Falconer of Thoroton)The Minister of State, Cabinet Office (Lord Falconer of Thoroton) moved Amendment No. 156:
Page 17, line 31, at end insert—
("( ) In appointing persons to the Consultative Panel the Lord Chancellor shall have regard to the desirability of securing that the Consultative Panel includes persons who (between them) have experience in or knowledge of—

(a)the provision of legal services;

(b)the lay advice sector;

(c)civil or criminal proceedings and the working of the courts;

(d)legal education and training;

(e)the maintenance of the professional standards of persons who provide legal services;

(f)the maintenance of standards in professions other than the legal profession;

(g)consumer affairs;

(h)commercial affairs; and

(i)social conditions.").

The noble and learned Lord said: My Lords, this amendment sets out criteria which must be taken into account when appointing members of the legal services consultative panel. It is substantially the same as the amendment on this subject moved by the noble Baroness, Lady Wilcox, in Committee.
As the Lord Chancellor said in that debate, we would expect in appointing members to the panel to have very much in mind the factors suggested by the noble Baroness, and he accepted that that was an omission in the Bill as drafted. We are genuinely grateful to the noble Baroness for her assistance on this point, and indeed her valuable assistance on the similar matter of the composition of the legal services commission. The Lord Chancellor promised the noble Baroness in Committee to move a government amendment to bring

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about the same effect as her own, and I am grateful for her prior indication that she is happy to accept what is proposed.
The noble Baroness spoke persuasively on that occasion about the need for such criteria, and I need not repeat what she said. She said it very eloquently. I agree that the panel will need a balance of experience and expertise among its membership, including knowledge in consumer affairs, in order to carry out its duties effectively and with due regard to the needs of all users of legal services.
I turn now to the differences, such as they are, between the noble Baroness's amendment and the government amendment. In Committee, I mentioned one flaw I found in her amendment. That was the technicality that one criterion referred to the maintenance of professional standards among banisters and solicitors. Of course, authorised advocates and authorised litigators are not limited to banisters or solicitors. That particular criterion has now been redrafted to refer to,
"persons who provide legal services".
On consideration, it has also been decided that there is another gap that needs to be filled. Therefore I have added another criterion: that it would be desirable for those with experience in, or knowledge of, legal education and training to be represented on the panel. The reason for this is that the panel will have a key role in maintaining and developing standards in the education and training of providers of legal services. It will have an ongoing programme of work to provide recommendations on legal education, as ACLEC does now. The panel will be far better equipped for this task if it includes members with actual experience in or knowledge of this area.
The eagle-eyed will also have spotted a small difference in the first line. This now refers to,
"the desirability of securing that the Consultative Panel includes persons who (between them) have experience in or knowledge of",
the specified areas, rather than,
"the desirability of appointing persons who have experience in, or knowledge or,
those areas. This is a drafting amendment designed to clarify that there is not statutory requirement for all of the members to have knowledge of or experience in all of the specified areas. I beg to move.
Lord Renton: My Lords, I have reason to support the amendment but there are two points on it on which I should be grateful for the attention of the noble and learned Lord. The first concerns why a provision has been included and the second why something has been omitted.
Paragraph (f) refers to:
"the maintenance of standards in professions other than the legal profession".
That is a huge subject. One can think of all the other professions that there are and the different circumstances which prevail in those other professions. I believe that it is asking almost the impossible to appoint someone with such knowledge. I believe that that provision should be left out.
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Secondly, in training people in legal education, which is what this is about, we must bear in mind that although our legal profession has to an inevitable extent been centralised upon London, nevertheless, decentralisation has become a great feature of it in the past 50 years. I am glad to say that work which was frequently done in London is now done out on circuit. I cannot think of the exact phraseology, but some knowledge of the work of the profession outside London, out in the provinces--in Wales and so on—is desirable among members of the consultative panel. Perhaps that could be included at Third Reading.
Baroness Wilcox: My Lords, although I have written a letter to say that I agree with this proposed amendment, as I am in my place I wish to support Amendment No. 156. As we have heard, we now have user views represented on the body which is making decisions about meeting legal needs—the legal services commission—and we also have guaranteed user representation on the body advising the Lord Chancellor on the education and conduct of those providing legal services; namely, the consultative panel.
I am indeed grateful to the noble and learned Lord the Lord Chancellor that those three important voices will be heard on the two new bodies created by the legislation. Indeed, that completes my set. I shall not quibble about the technical points and in view of the points made by my noble friend Lord Renton, I must not stay on my feet too long in case someone snatches my points away from me. Therefore, on the two issues with which I am particularly concerned, I commend the amendment to your Lordships.
Lord Clinton-Davis: My Lords, I have a good deal of sympathy for the point made by the noble Lord, Lord Renton. If issues were to arise in relation to the maintenance and standard of other professions, some information or evidence could be garnered in order to satisfy the consultative panel's requirements on that particular issue. But I fail to see why it is necessary to have someone who has experience or expertise of the standards of other professions represented on the consultative panel.
I am delighted for the noble Baroness who has obviously had unique success in these deliberations. Good luck to her.
Lord Falconer of Thoroton: My Lords, perhaps I may deal with the two points raised by the noble Lord, Lord Renton. First, he asked why paragraph (0 is included. He asked why we are saying that people on the consultative panel should have,
"(between them) experience in or knowledge of … the maintenance of standards in professions other than the legal profession".
It seems to us that in judging what should be the standards of the legal profession, it is appropriate to ensure that they are at least as good as the standards in other professions. It seems to us to be right also that one should have regard to how other professions are dealing

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with the problems which may face our profession. It would be helpful to have a broader perspective. That is why that provision has been included.
Lord Clinton-Davis: My Lords, I understand that it may be necessary to acquire evidence about those matters but it seems to me that the provision is extremely wide. The number of professions involved is immense and certainly it would be virtually impossible to have somebody who would be in a position to speak for the standards of so many professions. Is it not better to leave it, as suggested in my earlier intervention, on the basis of garnering evidence where necessary?
Lord Falconer of Thoroton: My Lords, the effect of paragraph (f) is not that every single other profession must be represented. It is sufficient that there is some knowledge of other professions. Although one may hear evidence, one tends to know rather more about matters of which one has personal knowledge. We are merely saying that when lawyers think about their own profession, there should be representation by somebody who has some knowledge of other professions. It seems to me that that is sensible and preferable to relying upon the giving of evidence to the panel.
On the second point made by the noble Lord, namely, should one make a reference about the provision of legal services outside London, we regard the words,
"(a) the provision of legal services",
as covering the whole of England and Wales. It would be inappropriate to have on the panel people who are aware of the provision of legal services if their knowledge did not extend to knowledge of the provision of services, not in every part of England and Wales, but in London, the provinces and the system as a whole.
I hope that that meets the point that was made. We do not intend to return with any other amendments. We are aware of the point. We think it is important and we hope and believe that it is covered. I think that that deals with all the points. We are grateful for the support of the noble Baroness, Lady Wilcox, the progenitor of the amendment and for my noble friend's support.
On Question, amendment agreed to.
7.15 p.m.
Lord Phillips of Sudbury Lord Phillips of Sudbury moved Amendment No. 157:
Page 17, line 45, after ("services);") insert—
("( ) the duty of giving such advice as it thinks appropriate to the Lord Chancellor, after consultation with the Civil Justice Council established under the Civil Procedure Act 1997 with a view to ensuring that conditional fee agreements are being implemented fairly and in the interests of justice;").
The noble Lord said: My Lords, if passed, this amendment would insert into Clause 29 an express duty on the part of the legal services consultative panel, in effect, to monitor the effects of conditional fee agreements.
As the noble and learned Lord, Lord Ackner, said, it was an established principle of our system until very recently that conditional fee agreements—a form of contingency fee agreement—were considered to be contrary to the public interest. One of the classical summations of that principle was made by Lord Esher in a House of Lords case in 1895, where he said that such arrangements were incompatible with the "honour and honesty" of the legal profession.
Before the Lord Chancellor under the previous government introduced a measure of conditional fee arrangements, a considerable investigation into all aspects of conditional fees was carried out by the Bar Council. In 1990 the council produced a long and considered report that came down clearly against the introduction of conditional fees on the basis that they would,
"promote conflict of interest and a relaxation of ethical standards",
in the profession. At present, there is a working party set up by the Institute of Advanced Legal Studies, on which I serve, which is looking at the ethical aspects of conditional fee arrangements. A considerable amount of work has already been done and it is fair to say that the views of those in that working party are extremely wide and include a considerable level of concern about the potential effects of conditional fees upon the probity of the litigation process.
The two main areas to worry about, as has been said, are, first, conflict of interest and, secondly, malpractice. Conflict of interest is struck down almost every month in the courts in other situations and in an amendment earlier today it was included as one of the matters to be part of the code of conduct—that is to say, a duty to avoid conflict of interest. However, we have some acute conflicts of interest which are simply inescapable in conditional fee litigation.
First, there is an acute conflict between a solicitor and client in setting the amount of the uplift. In those circumstances, most clients will be in the hands of their solicitors, who will have all the knowledge and experience of the law and will be in an overwhelmingly strong position to get their way. The limited amount of research done by the Policy Studies Institute (PSI), at the behest of the Lord Chancellor, indicates that of the 197 cases at which it looked, it thought one-third of them gave signs of an exaggerated uplift on the part of the solicitors' firms involved. One of my colleagues told me only yesterday that it is also quite possible for clients to be inclined to pervert the system by refraining from telling a solicitor, to whom they go for a conditional fee arrangement, crucial facts in relation to the claim in the hope and anticipation of depressing the amount of the uplift.
There are also equal and opposite conflict risks in the course of the litigation process especially concerning how quickly or slowly one strikes a deal with the other side. Given that a solicitor may be on double fees, in certain circumstances if the case is a strong one, an unscrupulous solicitor could string out the litigation, knowing that ultimately he is bound to win and that the longer he strings it out the more the double fee will be worth. In other circumstances, it can work the other

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way. For a solicitor to accept a low offer of settlement from the other side in circumstances where the case is very uncertain, and therefore the risk of going into court is grievous on the part of the solicitor, can work in the direction of encouraging a solicitor of weak character to recommend a settlement to a client that should be refused.
The malpractice side is simple and gloomy. There is a temptation to suppress evidence that is inconvenient to the case, particularly if it arises rather late in the day. There could be a letter, a report or a witness who, after a vast amount of input by the solicitor, would scupper the case if such evidence were revealed to the other side. It puts grave temptation in the way of that solicitor, especially when egged on by the client, to allow the conditional fee arrangement to work as it does.
There is also considerable temptation to fabricate evidence, most particularly oral evidence; to hone, polish and embellish oral testimony in a way that ultimately becomes a perversion of justice. Again, one must realise that the temptation is not all on one side. In that circumstance, the client too has a strong temptation to manipulate the solicitor at the start of the case and to connive with the solicitor en route. That represents a conspiracy by solicitor and client against the public interest and justice as a whole.
It is not as if the era in which we live is one in which solicitors and banisters are unaware of the commerciality of the work that they do. The whole tenor of the development of "lawyering" in the late 20th century is towards an extremely hard-nosed business approach, in which winning has become paramount, to the danger of the judicial and litigious process. I suggest that we are not in a climate where one needs extra incentives for solicitors to do a proper job. An irony of the conditional fee arrangement is that the Government have put it forward as being needed in terms of preventing lawyers spinning out cases improperly and of taking on bad cases when they should not. It is strange that the moral turpitude which they say justifies conditional fee arrangements will he stimulated and given wider scope by those conditional fee arrangements.
Like a number of people both inside and outside this Chamber, I should like to express a great deal of unease about the impact of conditional fees over time. Perhaps I may make it clear that there will be no sudden lapse of probity and honesty within the profession. I am a great admirer of the degree to which high standards are upheld. Equally, it is fruitless to pretend that there will not be pressure on probity and that, as time goes by and does its work, little by little that pressure on probity could lead to a serious collapse in the very high standards which we currently enjoy in this country. It is, in effect, to keep an eye on that and to prevent a sort of dry rot starting in the litigation process that this amendment is directed.
I emphasise that my wish, and the wish of those who have put their name to this amendment—I refer to the noble and learned Lords, Lord Ackner and Lord Archer of Sandwell—is to put on the face of the Bill
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a specific duty on the part of the panel to keep an eye on the development of the conditional fee arrangements and, in so doing, to work with the Civil Justice Council which was established two years ago under the Civil Procedure Act. I hope that the Lord Chancellor will accept that the proposed wording of Clause 29, which seeks to incorporate a new Section 18A into the Courts and Legal Services Act 1990, is not adequate to ensure that that monitoring takes place with sufficient certainty and priority. The wording of what will be new Section 18A(2)(a) does not make it clear that the duty of the consultative panel can extend to anything which is not part of the "programme of work", as it is called, approved by the Lord Chancellor.
I am aware that the next amendment. Amendment No. 158, has been tabled by the Lord Chancellor in an attempt to improve the position somewhat. However, I venture to suggest that it does not. I repeat that the requirement to publish recommendations made by the consultative panel can extend only to those brought forward by it in relation to a programme of work approved by the Lord Chancellor of the day. We are saying that this is a sufficiently important matter that it requires a specific duty to be placed on the face of the Bill. It is on that basis that I beg to move Amendment No. 157.
Lord Clinton-Davis: My Lords, I have expressed in the past, in Committee and earlier on Report, some apprehension about conditional fee agreements, but much more about their availability and about ensuring that access to justice is realised than about some of the considerations which the noble Lord, Lord Phillips, has introduced into the debate. It is true that I have referred to some of those considerations, but I feel that the noble Lord has taken an unduly gloomy view on the issue of probity and the profession. There are some concerns, which I share, that cases may he settled when it is seen to be more in the interests of the lawyer than of the client, but one must not gainsay the fact that at present lawyers give their clients the most careful advice on such issues, particularly with regard to payments into court.
Having said that, I am concerned to ensure that the most careful invigilation and monitoring are undertaken with regard to the way in which CFAs may evolve. They are still at the embryonic stage of their development. It is most important that the question of the availability of adequate insurance is included in that.
I join the noble Lord, Lord Phillips, in seeking to ensure that we arrive at a situation whereby the Lord Chancellor is able fully to appraise the position himself, with the benefit of his advisers. Even more important than that is the fact that we, the public, should have some knowledge so that we can ensure that access to justice is not being inhibited but is being improved as a result of the enhancement of this still new development in the law.
It is clear that anomalies could be thrown up during an investigation and that they will need to be addressed. It is right that Members of both Houses of

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Parliament should be aware of that. However, it may well be that what my noble and learned friend is suggesting in Amendment No. 158 will cover such issues. I am not entirely satisfied that the wording covers the anxieties which have been raised by the noble Lord, Lord Phillips, and myself. However, I am concerned with the practical consequences as much as, if not more than, with the ethical considerations with regard to monitoring.
Lord Ackner: My Lords, I should have thought that the noble Lord, Lord Phillips, is pushing at an open door here. The Lord Chancellor chided me from some three or four days ago, so he will no doubt forgive me if, in response, I tease him. I know that he will feel that this is grossly out of date, but on 7th April 1989 he addressed his predecessor's suggestion of contingency fees. He said this—it is very short, very impressive and is really the last word on this subject in relation to this amendment:
"The Green Paper's sole suggestion to improve access is to promote the idea of speculative actions by lawyers on some contingency basis. I regard contingency fees in any shape or form, however diluted, as abhorrent".
Then Hansard records noble Lords saying, "Hear, hear!". No doubt encouraged by that support, the noble and learned Lord went on to say:
"The argument that professional standards are so high that there would be no risks does not impress. Lawyers are ordinary human beings. No lawyer at the front end of litigation should be in the position that the ability to pay next month's mortgage turns on the outcome of the case. Litigation turns on advocates being trusted by the courts and by one another to play fair. Flirting with contingency fees is another gimmick to avoid state responsibility and to secure justice on the cheap. Like so many bargain basement practices, the lawyers would be no exception to the risk that shoddy standards would result".—[Official Report, 7/4/89; col. 1326.]
I think that that is deuce to the Lord Chancellor!
7.30 p.m.
The Earl of Dartmouth: My Lords, I had not intended to speak this evening. I had intended only to listen and perhaps to learn a little. However, I was absolutely astonished by the noble Lord's speech on what purports to be a detailed amendment. In fact, that speech was entirely opposed in principle, and at some length, to the whole concept of conditional or contingency fees. I was a parliamentary candidate 25 years ago and I am well aware that the Liberal Democrat Party, of which the noble Lord is a nominee, is extraordinarily blinkered. It is astonishing that someone should make a serious speech on the subject of conditional fees—he accurately described them as contingency fees—without even mentioning the United States, which has a large and important economy. It operates a common law system which is very similar to our own and where contingency fees have successfully operated for a very long time.
I lived and worked in the United States for eight years of my adult working life. The point that the noble Lord and others who think like him should seek to understand is that the great advantage of
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contingency or conditional fees is that it is possible for anyone to obtain redress from the courts. There was an example last week. A smoker successfully sued one of the biggest and most powerful corporations in the world; namely, Philip Morris. I certainly agree with the judgment that the settlement was much too large. But because there are contingency fees it is possible for anyone in the United States to obtain redress in the courts.
However, in this country there are no contingency fees and the losing side pays the costs. It means that people without legal aid do not have access to the court. That is one of the crying scandals of British justice. I remember a good old joke being told 25 years ago that the British courts are rather like Claridges. It is open to everybody, but one must be able to afford the fees.
I do not wish to make a very long speech, but I wish to make two quick points on what the noble Lord said. He quoted Lord Esher in 1875. The noble Lord is shaking his head, but that is what he said.
Lord Phillips of Sudbury: My Lords, I said 1895.
The Earl of Dartmouth: My Lords, I am sorry and I stand corrected. The noble Lord quoted Lord Esher from 1895. The point is that very powerful mores were operating at that time. There was a very powerful and explicit code of behaviour which meant that people behaved in such a way that the courts rarely had to be used. Therefore, in consequence of that code of behaviour, which no longer exists, we have a system which assumes that most litigation is vexatious. In turn that means that there is a bias against all litigation. That is something which this Bill seeks to put right.
The noble Lord also quoted the 1990 Bar report. He said that it was critical of conditional fees under two heads; first, the relaxation of ethical standards and. secondly, a conflict of interest. I do not know what that Bar report actually said, but I can certainly assure the noble Lord that he did not prove his case under either of those points.
I praise the noble and learned Lord the Lord Chancellor for bringing in conditional fees. To some extent it does something to redress the fundamental problem with the British court system, which is that it is open to very few people unless they are legally aided. This amendment seeks to dilute to the point of destruction the concept of conditional fees. To be fair, the noble Lord, Lord Phillips of Sudbury, made that abundantly clear. I strongly urge that the House does not approve this amendment.
Lord Goodhart: My Lords, before the noble Lord sits down, is he really suggesting that we should copy a legal system in which one can obtain damages of a couple of million dollars or a contingency fee, for spilling a cup of hot coffee over oneself?
The Earl of Dartmouth: My Lords, there are certain excesses in the American legal system. The point is that it is possible for an individual to gain redress against

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even the most powerful corporation. The case to which the noble Lord referred involved an unemployed housewife who managed to sue McDonald's successfully.
Lord Clinton-Davis: My Lords, will the noble Earl be kind enough to apologise to the Ritz Hotel to which his reference applied and not Claridges?
The Earl of Dartmouth: My Lords, I stand corrected.
The Lord Chancellor: My Lords, when I listened to the noble Lord, Lord Phillips of Sudbury, moving this amendment, I became progressively more depressed. He seems to have a much dimmer view of the ethics of his own profession than I have myself. But towards the end of his speech I was encouraged because he seemed to perk up a little and expressed a more optimistic view about the ethics of his profession.
He made the specific point—I do not know how much truth there is in it—that clients have a tendency to mislead their solicitors under conditional fee agreements in order to secure agreement to a lower uplift. It is possible that clients mislead their solicitors when they try to get legal aid. It may be that solicitors will he even more astute in their own interests to assess the true strength of cases when they are considering whether, and under what terms, to enter into conditional fee agreements than perhaps to protect the Legal Aid Fund.
I welcomed the intervention of the noble Earl, Lord Dartmouth. It is salutatory to remind the House that lying behind all this is the expansion of conditional fee agreements, which signals a colossal expansion of access to justice. I welcome the noble Earl putting that on record again.
I am delighted that the noble and learned Lord, Lord Ackner, has had such affection for my speeches over the years. I had the impression that he must have a complete library of them. I am ready to be quite flattered. I never knew that he cared so much.
He described what I said in 1989. I am minded to invoke what I believe a Victorian judge said when taxed with a previous decision he had made from which he had intellectually parted company in his own mind when sitting in an appellate court. He said something along the lines, "That is how it appeared to me then, but it is not how it appears to me now". If great judges can get away with that, mere Lord Chancellors can as well.
I have no difficulty in accepting the principle that the operation of conditional fee agreements should be kept under review to enable us to know that they are working well and are serving the interests of justice. I am very happy in principle for the panel to give me advice. I doubt that we need this amendment on the face of the Bill. However strong our concerns are today, they will not necessarily be the concerns of tomorrow. In five years' time conditional fees may be of little concern. They may be a familiar part of the
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geography of our legal system with their operation accepted as part of legal services. That is my view of what will happen.
I do not see any point in imposing a duty in perpetuity on the panel to monitor conditional fee agreements. But I am willing to give a commitment to the noble Lord, Lord Phillips of Sudbury. I shall ask the panel to give advice on the operation of conditional fee arrangements as part of its first year's programme of work. I shall also ask it to consult the Civil Justice Council and to continue to review its work on an appropriate regular basis until we can all be assured that conditional fee agreements are working as well as we intend and in the interests of justice. On that basis I hope that the noble Lord will withdraw his amendment.
Lord Phillips of Sudbury: My Lords, I am disappointed that the noble and learned Lord the Lord Chancellor will not incorporate this amendment because, as I endeavoured to explain, the present wording of Clause 29, in so far as it introduces new Section 18A(2)(a) into the 1990 Act, does not extend to a compulsory duty on the part of the panel to give the advice.
The noble Earl, Lord Dartmouth, made an extremely good speech on a point that I had not made. I was not arguing whether conditional fee arrangements are good or bad. We have them and that is a fact. The only issue is whether we have regard to the potential for their undermining the probity of the litigious process. If he wants to harp on America, I think that would be one's most vivid concern as to what contingency fees or conditional fees can do to the whole process. Over a million contingency fee cases were started in America last year. The level of reward for the lawyers is such that the American Bar Association and the American Trial Lawyers' Association go into rabid overdrive when, as occasionally occurs, an American citizen seeks to bring a referendum to strike down contingency fees, as happened in California two years ago. It is precisely because these conditional fees will prove to be extremely popular with my profession, for whom I repeat I have the highest regard, that I know that there is an acute public interest in the maintenance of the honesty of the litigious process. It is extremely easy for a few rotten apples to become a greater number of rotten apples.
I say again to the noble and learned Lord the Lord Chancellor that I am disappointed. I am mildly comforted by the fact that he will instruct the panel to look at these matters. I would like to think that his prognostication was right. However, I suspect we shall find that conditional fees will grow and grow as a proportion of our total legal workload. Indeed, I hazard a guess now that contingency fees, full and unabated, will be before this House before five years are out. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Farrington of Ribbleton: 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 8.42 p.m.
Moved accordingly, and, on Question, Motion agreed to.

Northern Ireland Arms Decommissioning Act 1997 (Amnesty Period) Order 1999
7.42 p.m.
Lord Dubs Lord Dubs rose to move, That the draft order laid before the House on 1st February be approved [8th Report from the Joint Committee].
The noble Lord said: My Lords, first, I congratulate the noble Lord, Lord Redesdale, on his appointment to the Liberal Democrat Front Bench. I had excellent co-operation with the noble Lord, Lord Holme, and I trust that there will be a similar level of co-operation with the noble Lord, Lord Redesdale, even though I expect that his comments on government policy will at times be robust and forthright.
The order appoints 24th February 2000 as the date before which the amnesty period identified in a non-statutory decommissioning scheme must end.
The amnesty period is the time during which firearms, ammunition and explosives can be decommissioned in accordance with the scheme, thereby attracting both the amnesty and prohibitions on evidential use and forensic testing of decommissioned items provided by the Northern Ireland Arms Decommissioning Act 1997.
Section 2 of the 1997 Act requires that a scheme must set out the amnesty period and that it must end before 27th February 1998 (the first anniversary of the Act's passing) unless the Secretary of State, by order, appoints a later day. My right honourable friend the Secretary of State made such an order last year and, under that order, the amnesty period will expire at midnight on 26th February this year.
The day appointed in any order must not be more than a year after the making of the order or more than five years after the passing of the 1997 Act. The day appointed by the present order is 24th February 2000.
Since last year's order was made, a great deal has happened in Northern Ireland. More political progress has been achieved than many people would have thought possible a year ago. This culminated in the Belfast agreement which was reached by the Northern Ireland parties on 10th April last year. All the parties to that agreement reaffirmed their commitment to the total disarmament of all paramilitary organisations. They also confirmed their intention to work constructively and in good faith with the Independent International Commission on Decommissioning, and to use any influence they may have to achieve the decommissioning of all paramilitary arms within two years of the agreement being endorsed, that is by May 2000.
In the agreement, the two governments undertook to take all necessary steps to facilitate the decommissioning process, including bringing the relevant schemes into force by the end of June last year, which we duly did. If we are to fulfil our commitment under the agreement it is essential that we extend, by this order, the period during which the scheme may declare an amnesty.
In December 1998, the Loyalist Volunteer Force (LVF) became the first paramilitary group to make use of the scheme, decommissioning what the independent commission described as a "small but significant" quantity of weapons. The Government welcomed this positive gesture: it represented another step towards a peaceful long-term future for Northern Ireland. The bulk of the weapons, however, remain in the hands of the paramilitaries. This is clearly unacceptable.
The Government have made clear to Sinn Fein and to the Loyalist parties that decommissioning is an obligation under the agreement and that it must happen. It is time for violence and the threat of violence to be taken out of politics for ever and for all sides to demonstrate that they are totally committed to peaceful and democratic means. That is what the people of Northern Ireland voted for; that is what the people long for.
We are now entering a crucial phase in the political process leading up to the transfer of powers to locally elected politicians in the Northern Ireland Assembly. Decommissioning, more than any other single step, would help to build the confidence necessary for these new institutions to operate. The way to achieve that objective, of course, is for the agreement to be implemented in full and for all the parties to live up to their obligations.
That is what the Government have been doing since last May. In that time, we have accomplished much: the assembly has been established; the reviews of policing and criminal justice have begun; the Northern Ireland Act has been passed; the Human Rights Commission and the Equality Commission are being set up; the accelerated release of paramilitary prisoners is being taken forward and there has been a steady but prudent normalisation of security measures.
Taken together, this represents a tremendous amount of progress, demonstrating beyond doubt the two governments' commitment to implement all aspects of the agreement. It is now essential that all parties move quickly to fulfil their commitments. That will mean a start to decommissioning; it will mean the executive committee being set up; it will mean early meetings of the North-South Ministerial Council and the British-Irish Council. None of this is going to be easy. Difficult decisions will have to be made, but I have no doubt that the will of the people is for these difficulties to be tackled and tackled now.
As I said, the Government remain totally committed to the full implementation of the Belfast agreement. As part of that commitment, it is essential that we continue to provide the means by which terrorist weapons can be taken out of circulation. This amnesty period order is central to those arrangements. I commend it to the House. I beg to move.
Moved, That the draft order laid before the House on 1st February be approved [8th Report from the Joint Committee].—(Lord Dubs.)
Lord Mayhew of Twysden: My Lords, everyone who wishes to see the destruction of illegally held arms under the scheme provided by the Act to which the Minister has referred must surely wish to agree to this order, because unless the order is approved the scheme will lapse and there can be no means by which decommissioning—that is to say, the destruction and the taking out of use of these weapons—can take place. To that extent there is, of course, no contest.
However, for my part, I do not think that this occasion should be a pure formality. I suggest to your Lordships that there are two matters at any rate that ought to be referred to. The first, of course, has already been mentioned by the Minister, and that is that with one exception—welcome, but small, in the case of the LVF—no decommissioning has taken place at all. As we all know, this is undermining confidence. It is immensely serious. It cannot be claimed that the terms of the scheme are other than very generous and very comprehensive. The safeguards which the scheme provides go further than could reasonably be expected by anybody who had signed up to the agreement in good faith.
The retention of these arms is in conflict with the dominating theme of the Good Friday agreement, which appears on the very first page on the declaration of support. The theme is that all participants commit themselves, totally and absolutely, to peaceful means of resolving issues of political import. That is the dominating theme. It ran through all the discussions and is really the core of the agreement. You cannot claim that you are subscribing to that and fulfilling that commitment if you are, at the same time, retaining arsenals of weapons to fortify yourself.
I appreciate that the agreement is silent upon any specific date by which decommissioning has to begin. But, 10 months later, what prospect do the Government see of securing further decommissioning—in other words, what answer do the Government foresee to their repeated question of not whether, but when? Is it not a fundamental principle of the agreement that decommissioning shall take place? What is the remedy if it does not take place? Alternatively, put another way, what is the sanction if it does not take place? I have good reason to realise how difficult these judgments are and tonight does not give scope to the noble Lord to provide comprehensive answers. But the need for answers is burgeoning and cannot much longer be postponed if confidence is to be saved.
One other matter should be mentioned. It is surely right to salute this evening the dedicated, impartial and resolute efforts of General John de Chastelain, the chairman of the international independent commission set up under this scheme for the purpose of decommissioning. He has spared no effort over all this time in meeting the sensitivities of all those who hold these weapons and in getting decommissioning started. It is no fault of his that his efforts have been almost entirely spurned. I suggest that he deserves the greatest
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credit and admiration—just as those who fortify their arguments with arsenals of illegal weapons deserve the most forthright condemnation.
Earl Attlee: My Lords, I am grateful to the Minister for his explanation of the need for and the background to the order. The 1997 enabling Act was taken through this House by my noble friend Lady Denton of Wakefield during the time of the previous government. Because of the nature of the legislation--it is effectively an amnesty and severely limits the ability of the authorities to collect forensic and other information--there are strict time limits on the life of the order and on the Act itself, as explained by the Minister. Next week we will have the opportunity to debate the implementation of the Belfast peace agreement in detail. I therefore do not propose to say too much at this stage, but I welcome the comments of my noble and learned friend Lord Mayhew.
I have no doubt that the order needs to be renewed without delay in order to keep alive the hope of an early start to decommissioning by all paramilitaries. I say "all" because it is not just the Republican groups which are failing to take advantage of the provisions of the decommissioning order. The so-called Loyalists have just as much to answer for. Indeed, if they all started to decommission as the Loyalist Volunteer Force did last year—a point mentioned by the Minister and my noble and learned friend Lord Mayhew—the position of the IRA would become rather more stark. On the other hand, it might mean that the IRA would also find it easier to start decommissioning.
I would like to restate one of the principles from the report of the international body chaired by Senator George Mitchell. It was that the decommissioning process should suggest neither victory nor defeat; and my noble and learned friend Lord Mayhew touched on the sensitivities of decommissioning. The report went on to explain:
"The ceasefire and the peace process [that we arc now enjoying] are the products not of surrender but rather of a willingness to address differences through political means. This essential fact should be reflected clearly in the modalities of the decommissioning process, which should not require that any party should be seen to surrender".
In the event of effective decommissioning we would see a commitment to democratic and exclusively peaceful means of resolving political issues.
We on these Benches welcome the Taioseach's helpful clarification of his position with regard to decommissioning. This afternoon in the Dail he said that there has to be decommissioning. We will not get an executive until that reality is faced.
In conclusion, we fully support the order and look forward to it bearing fruit and leading to a lasting peace in Northern Ireland.
Lord Redesdale: My Lords, I wish to thank the noble Lord, Lord Dubs, for his kind words. I hope that I carry the House in paying tribute to my predecessor, my noble friend Lord Holme of Cheltenham, who spoke from these Benches for the past nine years, a period in which the situation in Northern Ireland has been transformed.

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The order extends for another year the amnesty period for handing in weapons owned by former paramilitaries. The original Act of 1997 went to great lengths to ensure that there was no possibility of forensic evidence being taken from any weapons which were handed in. We on these Benches accepted that as a necessity in 1997, and we accept it now. Stopping these weapons being used in the future is of overriding importance in these matters.
The Good Friday agreement took this matter forward and led to the establishment of the international body on decommissioning headed by General de Chastelain. As we all know, the agreement called for complete decommissioning of all paramilitary weapons within two years. So, although it is acceptable to extend this legislation for another 12 months, when we come to renew the amnesty next February we do not envisage that it will be necessary to extend it for a further 12 months after that. We believe that the amnesty should be extended only as far as the deadline for decommissioning, as set out in the agreement.
In December, a very public decommissioning of weapons by the LVF led to the legislation being put into practice for the first time. I understand that it was a close run thing. For various reasons, the handover was delayed and the licence to transport the weapons was due to expire only a few hours before the weapons were handed in. Nevertheless, weapons were handed in; they were decommissioned and no forensic evidence was taken. The paramilitary LVF, when it gave up its weapons, went from being the pariah of Loyalist terrorist groups for having been so slow to call their ceasefire, to being one of the most respected groups. The whole operation gave the process in Northern Ireland a very welcome boost of confidence. Decommissioning can work, and it is working.
I mention the circumstances of the LVF handover in December for two reasons. First, to show that this legislation does work; all the mechanics of the decommissioning process were successful. For this we owe a considerable weight of thanks to General de Chastelain, who has done some very important, low profile work on the practicalities of the matter, as was pointed out by the noble Earl, Lord Attlee, and the noble and learned Lord, Lord Mayhew.
My other reason for recounting the circumstances of the LVF handover is to explain that the process worked politically. The LVF was not laughed at or mocked for surrendering its weapons. In London and Belfast newspapers that day the word "surrender" did not appear at all. The LVF was not criticised or blamed. Instead, it was the object of much acclaim. Its actions were regarded as honourable and were very widely respected. It is a terror group that did not call a ceasefire until after the Good Friday Agreement. It is now viewed with esteem, which was unimaginable a few months before.
Decommissioning is not an easy business, practically or politically, for the manner in which the LVF decommissioned showed how both these matters have been resolved to the satisfaction of the terror groups. That is the message for Sinn Fein. It has everything to gain by decommissioning and everything to lose if it
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does not. It should start to decommission sooner rather than later. Already every party in Westminster and every party in the Republic, except Sinn Fein itself, has called on the republicans to make a start on decommissioning. Even the Taoiseach, Bertie Ahern, who has done so much to bring Sinn Fein back into the process, has called for a start to decommissioning.
If Sinn Fein is unsure about the best time to decommission, it should consider it in this way. If it decommissions just a few weapons before 10th March, it will take up its place in the executive amid a torrent of goodwill. If it delays a start to decommissioning until the deadline in the agreement for completing it, the process is sure to be in a much worse state than it is now. If it does not decommission and abandons the agreement that it made last year, the whole business could return to the dark days and the republicans would lose as much as everyone else. So it is in the republicans' own interests to start decommissioning sooner rather than later. I hope that they take heed of this debate and realise that at this point progress is in their gift and, I believe, in their gift alone.
Before I conclude, it is appropriate to mention loyalist decommissioning, as mentioned by the noble Earl, Lord Attlee. The absence of progress from the UVF and the UFF is as disturbing as the absence of progress from the Provisional IRA. They are out of the spotlight only because their political associates are not destined for a place in the executive. But we expect prompt action from them, too. If the IRA decommissions some weapons, loyalists should be aware that the clamour for them to decommission will be even stronger than the clamour for republicans to do so now.
Lord Rathcavan: My Lords, as the noble and learned Lord, Lord Mayhew, said, there is little ground for not agreeing to the order as it is essential to the continuation of the peace process. As I shall not be able to attend the forthcoming debate on Northern Ireland, perhaps I may be excused for making some brief comments on the decommissioning issue.
Those of us who live in Northern Ireland know that the huge majority of both communities in Northern Ireland want peace, prosperity and a normal life and are fed up with the posturing and the semantics of decommissioning. I ask the Minister this question. Is it not time that the Prime Minister took a cue from the interview in the Sunday Times with the Taoiseach in which Mr. Ahern, as the noble Earl, Lord Attlee, pointed out, clearly indicated that the new power-sharing executive should not proceed without substantial decommissioning? In a further interview in the Irish Times today, he dissented from only one word in that interview. He certainly did not depart from the essential point that was clearly reported. Should not the Prime Minister now join the Taoiseach in confirming that real decommissioning, as defined by the Minister at Question Time today, is the only way forward in fulfilling the wishes and aspirations of that vast majority of people in all parts of Ireland?
The principal physical parties are now so entrenched in putting their parties before the peace process that one of them thinks that decommissioning is surrender and

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the other one thinks that decommissioning is the road to democracy, power-sharing, devolved government and non-violence. In real life, everyone knows that decommissioning is neither of those, as modern technology in terrorist armouries and other easy access to weaponry offer many routes back to violence, if that is really what the tiny minority want to inflict on the majority in Northern Ireland and indeed on the people of Great Britain and the Republic of Ireland. It is time to end this charade and escape from the decommissioning cul-de-sac.
For the sake of future generations, the moment has now arrived, after months of prevarication, to appeal to all to compromise, to dig deeper for a solution and to seize this unique opportunity for genuine peace. The decision on decommissioning cannot be postponed much longer without disastrous consequences.
Lord Hylton: My Lords, I am entirely happy with the order as it stands. Nevertheless, it occurred to me during Question Time earlier today that it was perhaps just possible that this House was treading into slightly dangerous areas and was perhaps not quite exercising its usual prudence.
We need to bear two points clearly in mind. First, the Belfast agreement provides for a two-year period during which decommissioning can take place. That two-year period is a considerable way from being completed. Secondly, I think it would be unwise to try to establish unnecessary linkages between one set of circumstances and one process and another.
It does not quite become us to try to be the interpreters of remarks made by a neighbouring and friendly Prime Minister. What is important is that the two governments, in this country and in the Republic of Ireland, should continue, as they have now been doing for some time, to stand shoulder to shoulder and to see this process through to a successful conclusion.
Lord Nunburnholme: My Lords, can noble Lords count on their fingers and toes how many bullets and how many weapons have been handed in by the IRA since the Good Friday Agreement?
Lord Dubs: My Lords, I am grateful to all noble Lords who have taken part in this debate. Perhaps I may deal with the specific points that were mentioned. The noble and learned Lord, Lord Mayhew, asked about the prospects for more decommissioning taking place. We know of no immediate intention on the part of any paramilitary group to decommission. But to prove their commitment to peace, they must do so. As I have said on a number of occasions, it is not a question of whether they will do so; it is a question of when. All the parties are committed to decommissioning because they subscribe to the Good Friday Agreement. It is up to them to prove that commitment in deeds, by decommissioning, and to do so soon.
The noble and learned Lord went on to ask what sanctions the Government have if there is not proper progress towards decommissioning. It was clear under the agreement that all the parties to it were committing themselves to decommissioning of arms, to be
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completed in two years. If any aspect of the agreement is not working, there are provisions for a review of the agreement. But the Government are clear that this is not the time for such a review. It would not be appropriate to carry out a review at the present time. It is clearly something for which there is scope within the agreement if it was felt that that was the best way forward.
I entirely agree with the noble and learned Lord, Lord Mayhew, in relation to the work and commitment of General Chastelain. He has shown a commitment in difficult circumstances. He has dealt with the people appointed by the various parties and groups as their link and I very much hope that he will soon have some successes to demonstrate. He certainly deserves our thanks for his commitment and dedication in what he is seeking to do.
I agree with the noble Earl, Lord Attlee, in relation to paramilitaries. Of course, it is not only one paramilitary group that must decommission; they must all do so. That is the commitment into which they entered and that is the demand we have the right to make upon them.
The noble Lord, Lord Redesdale, mentioned that the LVF had already decommissioned and it is gratifying that it did so. But we want it to decommission the rest of its arms and all the other paramilitary groups to do likewise.
The noble Lord, Lord Rathcavan, urged that there should be real decommissioning and that the Prime Minister should take his cue from the Taoiseach in making statements. The Prime Minister has committed himself publicly on many occasions about the need for decommissioning. He has shown a commitment to achieving peace in Northern Ireland unprecedented in a Prime Minister of this country. That commitment remains and I know that he is ready to throw himself into this matter in any way that will help. It is not necessary for him simply to repeat anything that is said by the Taoiseach. His position is very well known and will continue to be stated clearly.
I am grateful to the noble Lord, Lord Hylton. for reminding us of some of the key aspects of the agreement and indeed it is proper that we should not seek to create linkages where none exist. That would not be the right thing to do, given that we have subscribed completely to the agreement. But that is not to say that we should not press the paramilitaries to decommission and to start doing so now.
In reply to the noble Lord, Lord Nunburnholme, we have not had any decommissioning; there has not been a single bullet decommissioned by the IRA. It is a demand of them and the other paramilitaries that they should do so. As the noble and learned Lord, Lord Mayhew, said, this order makes it possible for decommissioning to happen. It is a precondition for further decommissioning for the next year and therefore it is necessary to have it so that people can hand in their guns and explosives. I hope very much that they will do so as soon as possible. I commend the order to the House.
On Question. Motion agreed to.
Baroness Farrington of Ribbleton: My Lords, I beg to move that the House do now adjourn during pleasure until 8.42 p.m.
Moved accordingly, and, on Question, Motion agreed to.
[The sitting was suspended from 8.13 to 8.42 p. m.]

Access to Justice Bill [H.L.]
Consideration of amendments on Report resumed on Clause 29.
The Lord Chancellor The Lord Chancellor moved Amendment No. 158:
Page 18, line 5, at end insert—
("( ) The Lord Chancellor shall publish—

(a)any recommendations made to him by the Consultative Panel in performance of the duty in paragraph (a) of subsection (2); and

(b)any advice provided to him by the Consultative Panel in performance of the duty in paragraph (b) of that subsection.").

The noble and learned Lord said: My Lords, this amendment obliges the Lord Chancellor to publish any recommendations and advice made to him in the course of pursuing its statutory duties under subsections (2)(a) and (2)(b) of the new Section 18A which is inserted into the Courts and Legal Services Act 1990 by Clause 29 of the Bill. That is to say, any advice or recommendations made to him by the consultative panel about maintaining standards in professional conduct, and in legal education and training, made as a result of the panel's programme of work, or as a result of a specific request from the Lord Chancellor to consider an issue.
This amendment reflects a commitment made in Committee on 28th January (at col. 1212 of Hansard) to the noble Lord, Lord Kingsland, who was good enough to withdraw his amendment on this subject in order that I might bring my own. Subparagraph (a) of this amendment has the same effect as the noble Lord's amendment. Subparagraph (b) extends the requirement to publish any advice given by the panel in response to ad hoc requests by the Lord Chancellor. I said in the earlier debate, and I say again, that I believe it right in principle to accept the proposal of the noble Lord, Lord Kingsland, and indeed to go further. The wording of the amendment as a whole has been expanded, to put it beyond doubt that there is a clear and specific requirement for the Lord Chancellor to publish such advice and recommendations from the consultative panel.
This Government strongly believe in open government. It is right in principle that an independent state-funded body should publish its advice. That is especially the case where the body's views may differ from those of its sponsoring Minister—in this case the Lord Chancellor. It is right that interested parties should be able to satisfy themselves that the body is giving reasonable and independent advice. The noble Lord, Lord Kingsland, made this very point on the first day of Committee on 19th January (at col. 510 of Hansard).
In the case of the legal services consultative panel, I do not believe that there are likely to be any public interest considerations that might make publication of its advice undesirable. I therefore have no hesitation in seeking a statutory duty for the panel to publish advice and recommendations which it gives under these provisions. I beg to move.
Lord Kingsland: My Lords, I am delighted that the noble and learned Lord the Lord Chancellor has responded in this generous and refreshing way to my amendment. He has improved on it and widened its scope. As he said, he has struck another blow for open government and I thank him.
On Question, amendment agreed to.
Clause 30 [Barristers and solicitors]:
Lord Ackner Lord Ackner moved Amendment No. 159:
Leave out Clause 30.
The noble and learned Lord said: My Lords, among the many qualities that the noble and learned Lord the Lord Chancellor has and enjoys is that of a very shrewd politician. Occasionally he adds a magic touch. That is when he is at his most dangerous. His illusions then become almost credible. That is the position in regard to Clause 30.
What are the Government seeking to achieve in the long run by Clause 30? It is surely this. The Government wish to reduce substantially the cost of legal aid, and one of their main methods of achieving that is by block contracts. Solicitors tender for these contracts, many of which will oblige them to undertake cases from start to finish, including advocacy in the higher courts where that is the appropriate venue, at pre-determined costs. That will involve a considerable increase in the demand for solicitor advocates before higher courts.
What is then the problem? Since December 1993, when solicitors in private practice were granted by the Lord Chancellor and the designated judges rights of audience in the High Court, less than 1 per cent. of the profession—about 730 solicitors out of more than 78, 000 in private practice—have obtained those rights. To obtain those rights it was necessary to comply with tests or requirements laid down by the Law Society. When I moved that Clause 30 should not stand part of the Bill, the noble and learned Lord, Lord Falconer, responded to those figures by saying, with his usual understatement:
"In my book, that does not signal a huge appetite by solicitors to become specialist advocates".—[Official Report, 26/1/99; col. 996]
The Law Society had set the standards which, again in the words of the noble and learned Lord, Lord Falconer, had weeded out those who were no good.
On the third day of Committee (Hansard, col. 993), I drew attention to the very low pass rates by solicitors. For example, in 1995 the pass rate for civil tests was 28 per cent. I also drew attention to the statement of Professor Scott in 1996, when he was the Law Society's advocacy training adviser. that in his view,
"the papers that the test board has produced have provided a fair test on matters that advocates going into the high courts really ought to know about … Those who failed have in my view deserved to

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fail. Indeed, often 1 have been astonished at the ignorance of some candidates, especially those doing poorly in the criminal test".— [OfJicial Report, 26/1/99; col. 994.]
Quite apart from the poor exam results and the fact that many of those who had achieved the necessary standard did not exercise the rights of audience which they had obtained, the Lord Chancellor's advisory committee was concerned by the slow take-up of the opportunity available to solicitors in private practice to appear in the higher courts over the past five years.
In Committee I drew attention to the research commissioned by the Lord Chancellor's advisory committee and to the important reasons which appear to have been established: first, the uncertainties of listing of cases and results and the loss of time spent hanging around in law courts; secondly, the insufficiency of the volume of advocacy work; and, thirdly, the fact that barristers were generally cheaper than solicitors for most routine work.
This is where the magic of the noble and learned Lord came into play. How can more solicitors be encouraged to take up advocacy? Indeed, how can more solicitors be encouraged to obtain the appropriate rights of audience? In order to premedicate the great British public, upon whose hostility to lawyers one can always rely, a discussion paper was produced by the noble and learned Lord the Lord Chancellor in June 1998. In his foreword the noble and learned Lord stated:
"We accept that entry to the legal profession needs to be controlled, in order to ensure the maintenance of high standards which protect the public. But the right to maintain properly high entry standards to a profession must not be misused to impose restrictive practices for the benefit of those already established in the profession. There is a public interest in ensuring that properly qualified lawyers can practise their profession without being subject to unnecessary restrictions. The Government believes that unnecessary and unjustified obstacles still prevent solicitors and employed barristers from obtaining and exercising rights of audience in the higher courts".
The noble and learned Lord the Lord Chancellor did not reveal to what restrictive practices he was referring, the "unnecessary restrictions" or the "unjustified obstacles". They certainly did not exist in relation to solicitors in private practice.
The foreword went on:
"The time has come for more radical change. Our view is that all qualified barristers and qualified solicitors should in principle have the right to appear in any court. We accept that the professional bodies, the Bar and the Law Society should be able to ensure that their members are properly trained to exercise these rights, and that they should be able to impose any rules of conduct necessary to maintain high standards. However, any such requirements should be tested against the public interest in allowing access to the courts, and ensuring that no unjustified restrictions are placed on the exercise of rights of audience".
What were these "unjustified restrictions", which the noble and learned Lord the Lord Chancellor did not think it was appropriate to identify?
The foreword continued:
"The independence of the legal profession helps guarantee civil liberties for the public. But this independence is not a justification for immunity from public scrutiny, or for the preservation of outmoded structures or practices".
Once again, there is no identification of the "outmoded structures or practices". There certainly were none in relation to solicitors in private practice. No one reading
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that foreword would have suspected that there were in fact no unnecessary and unjustified obstacles preventing solicitors in private practice from exercising rights of audience in the higher courts. In particular, there were no outmoded practices or structures preventing the solicitor in private practice from enjoying rights of audience.
This line of reasoning—or unreasoning—was developed in the subsequent pages of the paper:
"In practice, however, only 624 solicitors, out of more than 70, 000, have so far obtained the Law Society's Higher Courts Qualification. Thus, barristers in private practice have retained an effective monopoly in the higher courts, and litigants there have no effective choice other than to employ their services"—
that is certainly not the fault of the barristers—
"As far as possible the choice of which lawyer represents a litigant in court should depend simply on the best interests of the litigant and on value for money; the choice should not be limited by out of date restrictive practices".
Again, there is no identification, the statement is unjustified and there is suppression of what was the true position on the ground; namely, that it is possible for solicitors in private practice who are competent and interested enough to obtain rights of audience in the higher courts.
I read on:
"The Government accepts that rights of audience should not become the subject of a 'free for all', and that these rights must generally be reserved to qualified members of the legal profession. However, the present position is over-restrictive".
One asks: in what way is that the case? Why were the Government so coy in the consultative paper about identifying the true position?
I read on in paragraph 2.5:
"The Government does not agree that the majority of qualified lawyers should in most circumstances be debarred from appearing in the higher courts, which is currently the case [paragraph 2.5]".
The debarring was self-imposed in relation to solicitors in private practice. Nowhere do the Government state the true position and explain that solicitors in private practice are either not interested in advocacy or do not have the competence to pass their own society's reasonable tests; nowhere is there any reference to the research work that the Lord Chancellor's own advisory committee has commissioned. All this material, which was suppressed, was to ensure the great illusion created by the Lord Chancellor that the Bar was operating,
"the worst kind of restrictive practice—designed simply to protect the work and incomes of privately practising barristers, with no shred of benefit to the public".
Those were words which the noble and learned Lord, Lord Falconer, so ill-advisedly quoted from his brief when seeking to support Clause 31 which made reference to employed lawyers.
The drafting of Clause 30 masks its true intent. This was rumbled by the noble and learned Lord, Lord Mackay of Clashfern, who on the third day of Committee stage (on 26th January) referred to his correspondence with the Lord Chancellor on this matter. That is referred to in the Official Report at col. 998. This established that Section 30 was there to enable the Law Society to reduce its standards substantially in order to encourage the

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reluctant to qualify for right of audience. In their memorandum to the Royal Commission presided over by Lord Benson the judges submitted:
"That which weakens or detracts from the standards and quality of the advocates necessarily, in the long run, weakens and detracts from the quality and standard of the judges".
I turn to the statutory objective set out in Section 17 of the Courts and Legal Services Act 1990 which is:
"the development of legal services in England and Wales (and in particular the development of advocacy, litigation, conveyancing and probate services) by making provision for new or better ways of providing such services and a wider choice of persons providing them"—
I stress the next words—
"while maintaining the proper and efficient administration of justice".
In my submission, the Government in promoting Clause 30 are in breach of that statutory objective because they would be failing to maintain,
"the proper and efficient administration of justice".
I beg to move.
9 p.m.
Lord Goodhart: My Lords, I am afraid that I am unable to support the noble and learned Lord. Lord Ackner, in his amendment. I say that with a good deal of regret because he has supported a number of the amendments that I have moved. Indeed, in other respects I have supported some of his amendments. But I believe that the change in the law that results from Clause 30, while I doubt that it will do much good, is equally unlikely to do any harm and therefore it is not a matter that I feel it necessary to oppose.
In 1990 when rights of audience in the High Court were first made open to solicitors there was a fear in the Bar that solicitors would take over much of High Court advocacy and that leading firms of solicitors would pay in effect large transfer fees for successful members of the Bar to transfer to them and set up their own advocacy departments. That simply did not happen. Very few barristers have become solicitors in the past few years even though they can take with them their rights of audience if they do so. Some leading solicitors have joined the Bar.
The reason why more solicitors have not qualified as advocates—in this respect I entirely agree with the noble and learned Lord, Lord Ackner—is that basically they do not want to do advocacy. There are real advantages to solicitors' firms in employing banisters rather than setting up substantial advocacy departments of their own. I recall once asking a partner in a medium size London firm who were good clients of mine—it had perhaps 30 to 40 partners—how many different barristers the firm instructed during the course of a year. The answer was about 250. That meant that the existence of an independent Bar gave it access to a wide selection of expertise that not even the biggest firm of solicitors in the City could provide for its clients.
The experience of the past eight years has shown that the Bar is not at serious risk from the extension to solicitors of rights of advocacy. The Bar Council is not
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opposed in principle to Clause 30. Speaking for myself, I have always believed that the Bar can stand as an independent branch of the profession without having exclusive or preferential rights of audience. That is the case in Australia and New Zealand, and I see no reason why it should not be so here. I do not see any great advantage in the change proposed by the noble and learned Lord the Lord Chancellor. However, I do not believe that it will do any harm and I am therefore unwilling to oppose it.
Lord Mayhew of Twysden: My Lords, before making up my mind on how I shall vote on this interesting amendment, I shall be interested to hear the answer of the noble and learned Lord the Lord Chancellor, or the noble and learned Lord, Lord Falconer, if he is to reply, on what seems to me a significant assertion in the speech of my noble and learned friend Lord Ackner. He referred to correspondence that had passed between the noble and learned Lord, Lord Mackay of Clashfern, and, I think, the Lord Chancellor. The noble and learned Lord, Lord Ackner, asserted that it was conceded that attempts had been made to encourage the Law Society to lower the standards of the examinations which they apply to solicitors who wish to acquire rights of audience in the higher courts. If that is so, it is a serious development and one on which I shall be interested to hear the Lord Chancellor's reply.
If the Law Society is not to be the most appropriate judge of the standards to be applied, who is? The same is true of the Bar. I have always held rather heretical views for someone who has held the title of Leader of the Bar and has had the honour to be Attorney-General. I felt that on the whole the Bar overestimated the degree of challenge and danger to an independent Bar if solicitors were allowed to acquire rights of audience in the higher courts. I held that view because I believe advocacy to be a profession, a skill and an art which one has to practise every day if one is to be at the top of one's form. In addition, I did not think that solicitors would find it sufficiently remunerating. I have always held that somewhat heretical view as someone who is a devoted admirer of the Bar and an upholder of the virtues and values of an independent Bar.
It is extremely important to know whether, in order to get more solicitors qualified, the Lord Chancellor has encouraged their professional body to lower standards of examination which it felt right to impose. I shall listen with great interest to that part of the Lord Chancellor's reply.
The Lord Chancellor: My Lords. the noble and learned Lord, Lord Ackner, asks your Lordships to delete Clause 30 from the Bill. He has already persuaded noble Lords to delete the former Clause 31 from the Bill. On that occasion, he succeeded, I rather think it is worth noting, because of the votes of hereditary Peers, and because the Liberal Democrat Peers were unable to decide what to do given the deep split in their ranks between those who really belong to the banisters' party, QCs' section, and the remainder who are the true heirs of Cobden and Bright. I was not quite clear as to the

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way the noble Lord, Lord Goodhart, veered today, but it appeared to me to be reluctantly in the direction of Cobden and Bright.
Conservative Peers seem to have voted on the basis simply that it was an opportunity to vote against the Government regardless of the merits of the argument. I wonder whether any of them experienced a pang of regret once they realised what they had voted for. They had not been long enough in the Chamber to know. 1 note that the noble Lord, Lord Tebbit, is not in his place now. I had not previously thought of him, for example, as a leading defender of the privileges of the private Bar. But there it is.
And now I have my eye firmly on the Liberal Democrat Benches. On the previous occasion, the noble Lord, Lord Goodhart, made it clear that his party had no policy on how it should vote on the rights of audience issue; and he recommended it to abstain. So there is not a party policy other than to abstain. And even the policy to abstain cannot be adhered to because of the priorities of the noble Lord, Lord Thomas of Gresford, as a member of the barristers' party, QCs' section. He drove them into the Lobbies with the noble and learned Lord, Lord Ackner. If even at this hour of the night, the noble and learned Lord seeks to test the opinion of the House, I suppose we shall see consistently the noble Lord, Lord Thomas of Gresford, dutifully following the noble and learned Lord into the Lobbies, and the noble Lord, Lord Goodhart, following the Government.
I wish to acknowledge that there was one notable exception to the conduct of the Conservative Opposition on the previous amendment. My noble and learned predecessor Lord Mackay of Clashfern voted for the Government, contrary to how his party voted—
Lord Henley: My Lords, I am grateful to the noble and learned Lord for giving way. He has confirmed my belief that the vote he is speaking about was the one which took place at the Committee stage, which the Government lost and we and some of the Liberal Democrats won. Will he remind the House that on that occasion only 75 members of his party and others voted for the Government? It was only 6.30 on a Thursday evening and the Opposition put in only about 85 Peers to vote. I do not remember seeing the noble Baronesses, Lady Scotland and Lady Kennedy of The Shaws, in the Chamber. I am sure that they had a certain interest in the matter, but perhaps they wanted to be away on that occasion.
The Lord Chancellor: My Lords, I do not quite understand the relevance of that intervention to the proposition that my noble and learned predecessor, who perhaps has some expertise in these matters—expertise which the 80-odd Conservative hereditary Peers who went into the Lobbies by definition did not have because they had not even listened to the debate—voted with the Government. I want to take this opportunity of expressing my gratitude—
Noble Lords: Order!
The Lord Chancellor: My Lords, I will give way when I choose. I want to take this opportunity of
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expressing my gratitude to the noble and learned Lord, Lord Mackay of Clashfern, for his consistency and his characteristic unwillingness to engage in political opportunism. I now give way.
Lord Ackner: My Lords, my noble and learned friend is spending much time and much energy—
Lord McIntosh of Haringey: How long did you speak!
Lord Ackner: I spoke with success and I did not muddle up the two clauses. I intervened to say that my noble and learned friend the Lord Chancellor is spending time and energy on a battle we have already won, which is Clause 31. I am interested in his reply to Clause 30. With all his salutations to his predecessor, he overlooks the hostility of the noble and learned Lord, Lord Mackay of Clashfern, to Clause 30. It was in relation to Clause 30 that the noble and learned Lord, Lord Mackay, went on to draw attention to the correspondence which he had with the Lord Chancellor demonstrating his anxiety that the result of Clause 30 was designed to reduce the quality of the restrictions on rights of audience. Perhaps my noble and learned friend the Lord Chancellor might consider at some stage dealing with that which relates to Clause 30 and not battles past and won.
The Lord Chancellor: My Lords, I think that this really must be a first for the noble and learned Lord, Lord Ackner. This is the first time in 12 years in this House that I have heard him praise my noble arid learned predecessor Lord Mackay of Clashfern. And it has not escaped my attention that he has done so arid prayed in aid the noble and learned Lord only in order to criticise his successor.
Before I leave the battle which the noble and learned Lord has temporarily won, I will take this opportunity to say to your Lordships that the Government will seek to reverse that defeat in another place. I await with interest to see how the Opposition parties vote there.
Perhaps the Conservative Party wishes to be seen as a friend of the Bar and will again oppose the Government. If it does so, it may well be misunderstanding the true position of the Bar. I believe that the Bar Council is realistic and accepts the inclusion of the former Clause 31 in the Bill. It is only the noble and learned Lord who wants to defend the indefensilble. The present chairman of the Bar stated in his letter to the Financial Times of 3rd December:
"The argument is not now about who has rights of audience but about ensuring that advocacy is provided to a consistently high standard and at a competitive cost to the client".
With that, I agree. The Bar now needs to be protected from its would-be friends who want to remove essential clauses from the Bill.
I have a vision of the noble and learned Lord, Lord Ackner, emerging from the deep like some kind of latter-day LaocoÖn, declaring to the Bar, "I am still your friend", and the Bar replying timorously, "But

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Desmond"—and they would say "Desmond" because one is wise to be cautious with LaocoÖns—"I do not really want to be your friend on this".
Most of Clause 30 is a simple re-enactment in a different form of provisions which are already in force under the Courts and Legal Services Act 1990. The 1990 Act put rights of audience and rights to conduct litigation on a systematic statutory basis for the first time. It provided that professional or other bodies could be authorised under a statutory procedure to grant those rights to their members. Authorised bodies were also given the power to regulate the exercise of those rights by their members, subject to the requirement that their rules and regulations and any alterations to them should be approved.
At the time that the 1990 Act was passed, there were already two bodies whose members had rights of audience or rights to conduct litigation, or both—the Bar Council and the Law Society. Therefore, special provision was made for both of those bodies. The Act made both of them authorised bodies for the purpose of granting rights of audience and made the Law Society an authorised body for the purpose of granting rights to conduct litigation. Existing members of both bodies were deemed to have been granted the rights they already had and the existing rules of both bodies were deemed to have been approved. That was the effect of the legislation of our predecessors.
Clause 30 essentially continues those arrangements with one significant difference in relation to solicitors, with which I shall deal in a moment. The clause inserts a new Section 31 into the 1990 Act. Subsection (1) of the new Section 31 provides that all barristers are deemed to have been granted a right of audience before every court in relation to all proceedings. That is already the case under the existing Section 31 of the 1990 Act.
All barristers, including employed barristers, are currently deemed to have been granted full rights of audience when they are called to the Bar. But barristers can exercise those rights only in accordance with the rules of the Bar. Subsection (1) preserves that position. It provides that rights of audience are exercisable only in accordance with the qualification regulations and rules of conduct laid down by the Bar Council and approved under the 1990 Act.
Subsection (1) means, for example, that a barrister who has not undertaken pupillage may not exercise the full rights of audience that he theoretically has because he has not met the requirements of the Bar's qualification regulations. Similarly, a barrister may not exercise his full rights of audience as a barrister in private practice if he is not a member of chambers because he would not then be complying with the Bar's rules of conduct.
At present, the position of solicitors differs from that of barristers in that they are given rights of audience in the lower courts only on their admission to the Roll of Solicitors. They are granted rights of audience in the higher courts only when they have obtained the Law Society's higher courts qualification. If they obtain such a qualification, they are retrospectively deemed to have
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been granted full rights of audience on admission to the Roll of Solicitors. But a solicitor who has not obtained the qualification does not have theoretical rights of audience to exercise in the higher courts unlike a banister in the equivalent position.
Despite that theoretical difference, banisters and solicitors are really in the same position as regards the exercise of rights of audience in the higher court. They may exercise such rights only if they have met the requirements of the relevant qualification regulations and comply with the relevant rules of conduct of their professional bodies.
Clause 30 will not disturb that position; on the contrary, it will make it explicit. However, Clause 30 will alter the theoretical basis on which solicitors exercise rights of audience by putting them on a par with banisters.
I understand the point of the noble Lord, Lord Goodhart. He might ask, "What is the point of doing that?" The answer is simple. The current position is a relic of the time when solicitors were thought of as second class legal citizens who could not be trusted to appear in the higher courts. There is no reason whatever why solicitors should not be put on the same theoretical footing as banisters. That change of emphasis may in itself encourage more solicitors to think of themselves as potential higher court advocates. However, Clause 30 will not, in itself, lead to any solicitor exercising rights of audience in the higher courts who does not already have such rights.
Subsection (2)(a) of Clause 30, therefore. provides that all solicitors are deemed to have full rights of audience in all the courts, but they may exercise those rights only if they comply with the qualification regulations and rules of conduct imposed by the Law Society.
I have said many times that I am as opposed to professional rules in relation to rights of audience which may be too lax, as I am opposed to rights of audience in accordance with rules that may be too restrictive.
This provision is not money-driven, although I have no objection to saving public money. It is quite untrue that my rights of audience reforms are driven by a desire to save money or, as the noble and learned Lord, Lord Ackner, put it, are driven by the Treasury. That is disproved by the fact that legal aid spending will remain at about £1.6 billion for the next three years.
The noble and learned Lord, Lord Ackner, spoke at some length about the failings of solicitors as advocates, about how many of them have failed the test for becoming a higher court advocate, and so on. I gently say to the noble and learned Lord that if barristers were initially confined to appearing in the lower courts and had to take similar tests before appearing in the higher courts, it might be interesting to compare their pass rate. However, of course, they do not have to take such tests. The day on which a barrister finishes his or her pupillage, he or she is eligible to appear before the Privy Council or the House of Lords in its judicial capacity or in a murder trial or a rape trial, regardless of his or her experience.

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Such arguments are, in any case, strictly speaking irrelevant to this clause, as the clause leaves all the existing solicitors' tests in place. It is open to the Law Society now to propose changes to those tests, or to propose alterations in the way in which solicitors are trained. I say to the noble and learned Lord, Lord Mayhew of Twysden, that it will remain open to them to do so after the Bill is passed. Contrary to what the noble Lord suggested, everything that I have said is in accord with my own hostility to rules which are too lax governing the acquisition of rights of audience.
Let me make it absolutely plain that I have no wish to see insufficiently qualified or incompetent advocates practising in the higher courts or anywhere else. The position under subsection (2)(a) will still be that solicitors can appear in the higher courts only if they have met the requirements which the Law Society imposes, just as at present. Solicitors will be in the same position as banisters. They will have full rights of audience in principle, but whether they can exercise them fully in practice will depend on whether they have complied with the relevant rules.
I believe that a specialist Bar will prove to be the most efficient means of providing specialist advocacy services in the courts. The experience of New Zealand and of Australia proves that. The Bar does not need to be cosseted by restrictive practices. In my view, it will go from strength to strength on its own merits. I am as proud of the profession from which I come as is the noble and learned Lord, but I have greater confidence than he in its capacity to flourish without restrictive practices. On that basis, I invite the noble and learned Lord to withdraw his amendment.
9.30 p.m.
Lord Renton: My Lords, before the noble and learned Lord sits down, perhaps I may agree with a great deal of what he has said, but there is one matter which, historically, I think that he should try to get right. My memory goes back as far as 1933, when I started practising at the Bar, and I was first elected to the Bar Council in 1938, so my knowledge of those times is not entirely inadequate. I assure the noble and learned Lord that in those days the assumption was that barristers should stick to what they were trained to do and should not usurp the functions of solicitors and that solicitors should not have a right of audience in the High Court because they were not trained to advocacy.
The Lord Chancellor: My Lords, there is much to be said for sticking to your last, but I also believe that one can learn to work new lasts.
Lord. Mayhew of Twysden: My Lords, before the noble and learned Lord sits down again, may I redirect his attention to the question of fact which both I and the noble and learned Lord, Lord Ackner, asked him? The Lord Chancellor may have been constructing his entertaining notional conversation between the General Council of the Bar and Desmond arid it may have slipped his attention, but I asked him whether it was the case that he had urged upon the Law Society, or encouraged it, to reduce its standards for the higher courts qualification, perhaps in
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the context of only 1 per cent. of its number having qualified. There may be very good reasons for his having done so and the noble and learned Lord dealt at some length with his views about rules of qualification being too lax or too severe, but he did not answer the question of whether he has encouraged the Law Society to reduce its qualification standards. I believe that the House would be greatly helped if he were to do so.
The Lord Chancellor: My Lords, I seem to recall that I sent a letter on this to the noble and learned Lord, Lord Mackay of Clashfern. I do not have it before me and so I wish to express myself very cautiously. I seem to recall that in that letter I said that the Law Society might well want to seek to change its rules but that, for my part, I would ensure that standards were maintained. Tomorrow morning I shall look out a copy of my letter to the noble and learned Lord, Lord Mackay, and 1 shall send a copy to the noble and learned Lord, Lord Mayhew.
Lord Ackner: My Lords, I can give a little assistance on that very subject because at col. 998 of Hansard of 26th January, which was the third day in Committee, the noble and learned Lord, Lord Mackay of Clashfern, said:
"The point I am really anxious about is the next sentence"—
that is, of the letter from my noble and learned friend the Lord Chancellor—
"which states,
'I also expected that the Law Society will wish to propose changes to the requirements of its higher courts qualifications, in order to encourage more solicitors to take up rights of audience in the higher courts'.
What does that mean? How is one going to encourage more solicitors to take up rights of audience in the higher courts, having regard to the history which my noble and learned friend Lord Ackner has described? One way of doing it is to reduce the standard marginally or more than marginally. The noble and learned Lord the Lord Chancellor and the noble and learned Lord, Lord Falconer, say that they want to have competent people. I am not quite clear how changes in the qualification regulations will encourage more solicitors to take up rights of audience unless these changes reduce the threshold or the standard. I should say in fairness to the noble and learned Lord that his letter continues,
`Having said that, neither the Law Society nor I have any desire to see badly trained or incompetent advocates let loose in the higher courts, and I will ensure that this does not happen"'.—[Official Report, 26/1/99; cols. 998–9.]
By my Motion I am seeking to return to the status quo, which involves solicitors adhering to the standards which have been laid down with the approval of the Lord Chancellor's Advisory Committee. I do not believe that that committee will be relevant in the future. I do not know whether the new organisation has to give its sanction to any regulations which the Law Society makes as regards rights of audience.. I think riot. I believe that that lies within the powers of the Lord Chancellor, hence my anxiety.
In reply to the other matters raised, the noble Lord, Lord Goodhart, overlooked one very important factor in referring to the fact that the Bar survived, despite its anxieties in 1990 and thereafter. It only survived because of the recession. That prevented solicitors from embarking on what they realised was going to be a loss-making activity for two or three years. By opening an advocacy department they would not be able to

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employ, consistently and sufficiently, the QCs whom they engaged for some little time to come. When the recession came they had enough on their plate in coping with large rents, and by a whisker the Bar was saved.
I have listened with sadness to the fact that the Liberal Democrats will not support me. I believe that at this time of night the Loyal Opposition is likely to be otherwise engaged and, being a realist, in those circumstances, I do not propose to pursue my Motion at this stage.
Clause 30 agreed to.
Clause 31 [Employers of Legal Services Commission]:
[Amendments Nos. 160 and 161 not moved.]
[Amendment No. 162 not moved.]
Schedule 5 [Authorised bodies: designation and regulations and rules]
[Amendment No. 162A not moved.]
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 163:
Page 66, leave out line I and insert ("If the Lord Chancellor has decided to refuse the application he shall also").
The noble and learned Lord said: My Lords, this group of amendments is a series of minor, and, I believe, fairly uncontroversial amendments to Schedule 5. They are all brought forward in response to points made in Committee. They are designed to refine the procedures contained in the Bill for dealing with the authorisation of bodies to grant rights of audience and rights to conduct litigation; the approval of applications by such authorised bodies to alter their qualification regulations or conduct rules; the use of the call-in power to alter the rules of authorised bodies; and the revocation of a body's authorisation to grant rights of audience or rights to conduct litigation.
I shall deal with four of these amendments, Nos. 163, 165, 171 and 173, together. They go to the same point and are all brought forward in response to a commitment which I made to the noble Lord, Lord Goodhart, to consider strengthening the Bill as regards transparency of decision-making under the schedule. The noble Lord moved a group of amendments originally which had much the same effect as these. They require me to give reasons automatically if I refuse an application for authorisation; refuse an application for alteration of conduct rules and qualification regulation; use the call-in power to order alterations to be made to the rules of an authorised body; or revoke the designation of an authorised body.
My expectation is that, generally, applications for authorisation and for rule alterations will be sensible, and that they will be approved, in accordance with the statutory objective. Similarly, my expectation is that authorised bodies will not seek to impose unduly restrictive rules regarding rights of audience and rights to conduct litigation on their members, nor that they will become unfit to retain their authorisation. So I will not, therefore, in the normal course of events, need to exercise the powers to impose rule changes or revoke authorisation. If I do so, it is right that I should be obliged to give my reasons. I agree with the noble Lord, Lord Goodhart, who made the point in Committee that
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such decisions may affect the relevant body, or its members, adversely, and that the reasons should be immediately available to enable affected parties to consider, for example, taking action by way of judicial review.
These amendments standing in my name are drafted slightly differently to those moved originally on this subject. The first three amendments have identical effect to their predecessors—the changes are ones of style only. The fourth amendment, which deals with the obligation to give reasons when giving notice of my intent to revoke an authorised body's authorisation, goes slightly further than its predecessor. The original would have required me to give reasons for revocation if the authorised body in question applied in writing. There is no reason, however, why the Lord Chancellor should not be required automatically to give his reasons, as he would be in the case of the first three amendments. He has therefore redrafted the amendment accordingly.
I turn now to Amendments Nos. 168 and 169. These fill a gap left by an earlier group of amendments moved by the noble Lord, Lord Goodhart, which provided that the Director General of Fair Trading and the panel would be obliged to publish the advice they gave on applications made under the new Schedule 4. I was happy to accept the amendments. However, they did not cover Part III of the new Schedule 4, and the noble Lord accepted that Part III should be amended to achieve consistency with the other parts of the schedule.
I turn now to Amendment No. 164, which provides that the Lord Chancellor may not refuse to approve an authorised body's application to change its conduct rules or qualification regulations, unless it has been referred to the panel for advice. This arises from an amendment moved originally by the noble Lord, Lord Goodhart. As I said in Committee, the purpose of bypassing the consultation procedure is to expedite the processing of an uncontroversial application. Were the application controversial—and by definition it would be so if the Lord Chancellor were minded to refuse it—it would be appropriate to refer it to the panel. It was always the intention that this would happen in practice, and I am happy that this should be put on the face of the Bill. I did not accept the amendment in Committee because we were unsure whether the drafting might not need revision. Two drafting amendments have been made to the noble Lord's original amendment, for clarity: "may" has been substituted for "shall" and "received advice" for "sought the advice". I beg to move.
Lord Goodhart: My Lords, I am most grateful to the noble and learned Lord, Lord Falconer, who at times during the course of his speech appeared to have become the noble and learned Lord the Lord Chancellor. I wondered whether that was the purpose of the rather brief discussion on the Front Bench a minute or two ago; namely, that the Lord Chancellor was handing over his duties. But be that as it may, in whatever capacity the noble and learned Lord, Lord Falconer, was speaking, I am most grateful for the amendments which have been made. I am glad that the additional transparency will be provided for.
On Question, amendment agreed to.
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendments Nos. 164 and 165:
Page 68, line 36, at end insert—
("( ) The Lord Chancellor may not refuse the application unless he has received advice from the Consultative Panel.").
Page 68, leave out line 39 and insert ("If the Lord Chancellor has decided to refuse the application he shall also").
The noble and learned Lord said: My Lords, I have already spoken to these amendments. I beg to move Amendments Nos. 164 and 165 en bloc.
On Question, amendments agreed to.
9.45 p.m.
The Lord Chancellor The Lord Chancellor moved Amendment No. 166:
Page 69, line 4, leave out from ("Chancellor") to ("he") in line 6 and insert ("considers—

(a) that any of the qualification regulations of an authorised body may unduly restrict a right of audience or right to conduct litigation or the exercise of such a right, or

(b) that any of the rules of conduct of an authorised body may unduly restrict the exercise of such a right, ").

The noble and learned Lord said: My Lords, the purpose of Amendment No. 166, which stands in my name, and of Amendment No. 167, which stands in the names of the noble Lords, Lord Kingsland and Lord Goodhart, is to clarify which rules of conduct and qualification regulations of the authorised bodies may be subject to the use of the call-in procedure, set out in Part 3 of Schedule 5 to the Bill.
As my the noble and learned friend Lord Falconer of Thoroton indicated in Committee, in response to a previous amendment on this point by the noble Lord, Lord Kingsland, the Government agree that the call-in procedure should only apply to qualification regulations and rules of conduct which relate to rights of audience. But my noble and learned friend Lord Falconer of Thoroton—and there is no confusion of roles here—continued:
"the Lord Chancellor would go further than the amendment [tabled by the noble Lord, Lord Kingsland]. He has already said that he will look further at how the call-in power may be restricted, not to rules and regulations related to rights of audience … but to those which are "unreasonably" restrictive of rights of audience and rights to conduct litigation".—[Official Report, 28/1/99; col. 1212.]
He noted that this was a point raised by the Select Committee on Delegated Powers and Deregulation.
Amendment No. 166, which stands in my name, is the Government's response. It will ensure that the call-in power may only be invoked if the Lord Chancellor considers:
"(a) that any of the qualification regulations of an authorised body may unduly restrict a right of audience or right to conduct litigation or the exercise of such a right, or
(b) that any of the rules of conduct of an authorised body may unduly restrict the exercise of such a right, ".
As my noble and learned friend Lord Falconer emphasised in Committee on 28th January at col. 1213 of Hansard, provisions in the Courts and Legal Services Act 1990 restrict the definition of Rules of Conduct and Qualification regulations, for these purposes, to rules and regulations which relate to rights of audience or rights to conduct litigation.
There is one crucial difference between my Amendment No. 166 and the noble Lords' Amendment No. 167. My amendment will make it clear that the Lord Chancellor may only invoke the call-in procedure if he considers that the appropriate rules or regulations (defined, of course, in relation to rights of audience and rights to conduct litigation) "may unduly restrict" those rights. In this respect it goes much further than the noble Lords' amendment. 1 note in passing that the noble Lords are content to give the Lord Chancellor a wider power. For my part, I think that it is right that the call-in power should be limited in the manner l have indicated.
Apart from that, I think the intention behind the noble Lords' Amendment No. 167 is very much the same as mine. However, with respect, I think that my amendment, as drafted, better accords with the terminology of the 1990 Act, into which Schedule 5 will be inserted as new Schedule 4. To take one small example, the amendment refers to
"a requirement as to the education and training",
whereas the amendment standing in my name refers to "qualification regulations". The rest of the schedule makes reference to "qualification regulations", which are defined in the 1990 Act as regulations as to the education and training which the members of the body must receive in order to be entitled to any right of audience or right to conduct litigation granted by the body. I therefore think that the first reference in the schedule should be to the generic term.
But the drafting points are small compared to my fundamental objection, which is that the noble Lords' amendment does not go far enough in restricting rne. Amendment No. 166, standing in my name, meets the commitment made by my noble and learned friend Lord Falconer of Thoroton in Committee. I therefore beg to move the amendment.
I understand that if the House accepts my Amendment No. 166, the noble Lords will not be able to move their Amendment No. 167. But I hope, for the reasons I have given, that they will be able to support the amendment standing in my name.
The Deputy Speaker (Baroness Turner of Camden): My Lords, I have to inform your Lordships that if Amendment No. 166 is agreed to, I cannot call Amendment No. 167.
Lord Kingsland: My Lords, the noble Lord, Lord Goodhart, and I would be foolish not to take full advantage of the noble and learned Lord's enlightened generosity. In those circumstances, we shall not be pressing our amendment.
On Question, amendment agreed to.
[Amendment No. 167 not moved.]
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendments Nos. 168 and 169:
Page 69, line 35, leave out ("may") and insert ("shall").
Page 69, line 44, leave out ("may") and insert ("shall").
On Question, amendments agreed to.
Lord Goodhart Lord Goodhart moved Amendment No. 170:
Page 70, line 28, at end insert—
("( ) The Lord Chancellor shall not decide to make the alterations unless at least two of the designated judges have advised him that the alterations should be made.").
The noble Lord said: My Lords, in moving Amendment No. 170, I wish to speak also to Amendment No. 172. With these amendments we come to what I believe are the last controversial amendments on the Marshalled List. They are, nevertheless, amendments of very considerable importance. Therefore, despite the lateness of the hour, I feel that I should speak to them, I hope fairly briefly.
The background will be familiar and I can outline it very shortly. Schedule 4 to the Courts and Legal Services Act 1990 conferred three powers on the Lord Chancellor; first, the power to confer rights of audience and rights to conduct litigation on members of bodies other than the Bar Council or the Law Society; secondly, to veto proposed rule changes by the authorised bodies—that is, the Bar Council, the Law Society and other bodies authorised under the previous power—and, thirdly, to revoke designation as an authorised body of any body designated under the first power. However, the first and third of those powers could be exercised only by Order in Council adopted by the affirmative resolution procedure and, as matters now stand, all three powers can be exercised only with the agreement of each of the four designated judges who are the holders of the four senior judicial offices other than that of Lord Chancellor.
The Bill adds a fourth power, the power to impose rule changes on authorised bodies, and that also requires an order approved by the affirmative resolution procedure. However, the Bill also removes the power of veto of the designated judges, giving them no more than a power to advise. It is now generally accepted that giving each of the four designated judges an independent veto was a recipe for deadlock, but removing the veto altogether is another matter.
At the Committee stage amendments were moved to retain the judicial veto where at least three of the designated judges were opposed to the Lord Chancellor's proposals. Those amendments applied to all three of the powers that now exist under the 1990 Act and to the new one introduced by this Bill. The amendment is now being brought back in relation to only two of those powers; that is, Part III of the new schedule, which contains the power to order rule changes, and Part IV, which contains the power to revoke designation. I accept that the power to designate new authorised bodies raises constitutional issues of less importance and that the Lord Chancellor's veto over the rule changes means, at worst, that the rules remain unchanged. But issues do arise over the power to impose rule changes and over the power to revoke the status of a body as an authorised body.
On the power to impose rule changes, I accept gladly that Amendment No. 166, which has just been adopted by the House, constitutes a great improvement on the original draft. The unamended Bill gives power to the Lord Chancellor to alter the rules of conduct of an authorised body wherever he thinks it appropriate to do
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so and in any respect. The new amendment allows those rules to be changed only to widen rights of audience or rights to conduct litigation. That, I think, is much better. But I am still concerned with the issue of principle. The separation of powers and especially the separation of powers between the Executive and the judiciary is an essential principle of our constitution—a principle we shall be debating again tomorrow. The independence of the judiciary involves its control of its own courts and the right to control who can and who cannot exercise rights of advocacy before them. That right is not absolute. As the noble and learned Lord the Lord Chancellor pointed out in Committee, rights of audience have been conferred by statute since at least 1836. But, so far as I am aware, in no case before 1990 have rights of audience been conferred by secondary legislation.
Transferring control from primary to secondary legislation involves a substantial transfer of power from Parliament to the Executive. The noble and learned Lord the Lord Chancellor well knows that. Secondary legislation cannot be amended; it is debated briefly even in the case of the affirmative procedure and by convention is not rejected by your Lordships' House. The Courts and Legal Services Act created a right to alter rights of audience and rights to conduct legislation by secondary legislation. But, in doing so, it applied a double key system. The judiciary, through designated judges, retained a right to block secondary legislation—not primary legislation, of course—which affected its control over its own courts. It is that second key which is being removed by this Bill. I do not believe that that is right, either in the case of imposed rule changes or in the case of revocation of statute.
The power to say that members of a body are to remove rights of audience is indeed draconian. I accept that the rules of the Bar Council or the Law Society would require primary legislation, but, even so, if the Lord Chancellor proposed to remove, let us say, the rights of ILEX, and three of the four designated judges thought that those rights should be retained, I would strongly suggest that primary legislation was needed and should be required. I ask the Lord Chancellor to accept that there is an important constitutional point here and that, even after Amendment No. 166, a modified right of judicial veto should be retained for Parts III and IV of Schedule 5. I beg to move.
Viscount Dilhorne: My Lords, I support the amendment of the noble Lord, Lord Goodhart. I can be very brief in this matter. The procedures contained in the Bill to implement these powers are said to be simpler than those presently in existence, which are contained in the 1990 Act. That seems superficially attractive. But the facts are, first, as the noble Lord, Lord Goodhart, said, that they contain no requirement for the designated judges to approve an application before it can succeed. Secondly, in the case of any application to become an authorised body, the Lord Chancellor has only to consult with the Legal Services Consultative Panel and the Director General of Fair Trading. Again, there is no requirement that he must follow their advice or opinion. Thirdly, in the case of an application to amend an authorised body's regulations. the Lord Chancellor will

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decide whether or not he needs to consult the Legal Services Consultative Panel and the Director General of Fair Trading. And again, there is no requirement that he must follow their advice or opinion.
We then come to the question of the power to revoke a body's authorisation—all of this concerns designated judges, who are the subject of this amendment—which has never been used. Under the present system, the Lord Chancellor may revoke a body's authorisation but he is required to seek the advice of his present Advisory Committee on Legal Education and Conduct, which has the power, until this Bill is passed, on its own initiative to recommend revocation under the present regime. Each of the approved designated judges must approve any proposed revocation before an order can be made. The proposals before the House remove that requirement.
Advice of the DGFT and the LSCP will be required to be obtained by the Lord Chancellor. Any revocation of a body's authorisation will continue to be subject to parliamentary approval. However, the noble and learned Lord the Lord Chancellor proposes to bestow on himself a new power to amend the qualification regulations and rules of conduct of an authorised body if he considers it desirable to do so. He is required to consult the Legal Service Consultative Panel, the DGFT and the designated judges before doing so. And his order will be subject to parliamentary approval. Accordingly, by this proposal, and entirely on his own initiative, the Lord Chancellor will be able to change any rules or regulations of any authorised professional body.
In this vital constitutional area, no proper reason or justification has been given as to why the Lord Chancellor needs these additional powers over a self-regulating profession which has been guilty of no transgression. Neither of the two legal professional bodies opposes the granting of audience rights to properly qualified and experienced persons. No proper reason or sufficient justification has been given as to why the Lord Chancellor is dissatisfied with any of the present rules of conduct or rights of audience that are presently operating. or as to why he needs such a general open-ended power as he presently proposes.
It seems strange that the Lord Chancellor—and it contradicts what he said earlier in the day—who was recently so successful and such a longstanding and reputable practitioner (he still is a reputable practitioner) should be so dissatisfied with his former profession that he has not mentioned that dissatisfaction to the Bar and given its members a chance to respond positively to the concerns that he raises.
The indisputable fact, as it seems to me, concerning Amendments Nos. 170 and 172 is that this proposed legislation will empower the Lord Chancellor, should he so choose—he may not so choose, but the power is there to be exercised by subsequent Lord Chancellors who may so choose—to reject all the advice that he may receive and to impose rule changes on the authorised bodies. All that the Bill does is to give the noble and learned Lord an option only to consult the Legal Services Consultative Panel, the DGFT and the designated judges.
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It therefore seems to be the case that, in the face of the formulation of a new code, or the calling in of the rules, or of a revocation of the authority to grant rights of audience, or the enforcement of changes on a professional body, the only restraint that could be imposed in Parliament would be by affirmative resolution, and then only in respect of certain rules.
These procedures breach hallowed fundamental constitutional principles which safeguard against the concentration of power in the executive. That safeguard has been in existence since time immemorial. It separates the functions of the judiciary on the one hand and Parliament and the Government on the other. The proposed measures will cause that distinction to become blurred and will centralise power in the hands of that high office, the Lord Chancellor's office, if they become law. The concentration of power will, although not immediately, at some time be abused and misused whichever party is in power. Such power should therefore not be given solely to the Executive to be wielded by the noble and learned Lord, who will in effect be acting as a Minister and a judge, causing the role of the existing judges to be reduced to that of formal consultees whose advice may be ignored according to the whim of the executive.
I urge my noble friends and noble Lords on the Government Benches, the Cross-Benches, and the Liberal Democrat Benches to support the amendment proposed by the noble Lord, Lord Goodhart. It is important and fundamental. I believe that most of the parties here wish to see the Government's desire to reform and streamline the present system achieved; but they wish it to be done without breaching constitutional principles. Accordingly, the noble Lord, Lord Goodhart, has proposed that the four judicial heads should act as a body and that the majority, with the Lord Chancellor, should prevail. I support the amendment.
The Lord Chancellor: My Lords, I suppose that I must have been a reputable practitioner if the noble Viscount, Lord Dilhorne, says so. I am very grateful to him.
We have debated before what role the designated judges—the Lord Chief Justice, the Master of the Rolls, the President of the Family Division and the Vice-Chancellor—ought to play in the arrangements set out in the new Schedule 4 to the Courts and Legal Services Act 1990 which will be substituted by Schedule 5 to this Bill. Part I of the new Schedule 4 governs the approval of new bodies authorised to grant rights of audience or rights to conduct litigation to their members; Part II relates to the approval of alterations in the rules of authorised bodies; Part III relates to the exercise of the new power to order alterations in the rules of authorised bodies; and Part IV governs the revocation of the designation of authorised bodies in certain circumstances. The powers to authorise new bodies, to order alterations in the rules of authorised bodies and to revoke the designation of authorised bodies can only be exercised with the approval of both Houses of Parliament, given under the affirmative procedure.

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At present, decisions under the 1990 Act are taken by the Lord Chancellor jointly with the designated judges, each of whom has a veto over every decision. That system is not now defended by anyone, as far as I am aware. The effect of these two amendments would be that decisions in relation to Parts III and IV of the schedule would be subject to the requirement that the Lord Chancellor could only act if at least two of the designated judges agreed with him; that is, three designated judges would have a veto.
As I have explained, the Lord Chancellor's decision in these cases is already subject to the requirement of parliamentary approval. I do not consider it necessary or appropriate that his decision should also be subject to approval by two of the designated judges. Parliament is sovereign and the Lord Chancellor is responsible to Parliament as a Minister. In my view, no issue concerning the separation of powers arises. I believe that it is appropriate that Parliament should have the final say about rights of audience in the Queen's courts.
This view is not mine alone; it is shared by the Lord Chief Justice and the Master of the Rolls, as they indicated at Second Reading. We weigh, as well as count, our supporters. The provisions in the Bill will still require the Lord Chancellor to take the advice of the designated judges in every case, and any Lord Chancellor would give great weight to that advice. I certainly shall. But the long and unsuccessful history of that cumbersome body ACLEC has persuaded me that radical change is essential. In the end, the buck must stop somewhere, and that somewhere is not with the judiciary but with the Lord Chancellor and, ultimately, with Parliament. On that basis, I hope that the noble Lord will agree to withdraw his amendment.
Lord Goodhart: My Lords, I am most grateful to the noble Viscount, Lord Dilhorne, for the support which he gave to our amendments. As the Lord Chancellor will not be surprised to hear, I am disappointed by his reply. I believe that there is an important constitutional issue here. I believe that the settlement reached in 1990 was correct in principle, even if not in detail, and that the double key procedure set up in 1990 was the price that was properly paid for giving the Lord Chancellor power to do by secondary legislation what up until then could be done only by primary legislation.
However, it is now late at night. The supporters of the opposition parties have gone to find more entertaining ways of spending their evening. I notice the Government's duty squad sitting on the Government Benches. In those circumstances, I have no intention of pressing this matter. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 171:
Page 70, line 39, leave out from beginning to ("or) in line 40 and insert ("If the Lord Chancellor has decided to make the alterations he shall also notify the authorised body").
On Question, amendment agreed to.
[Amendment No. 172 not moved.]
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 173:
Page 73, line 21, at end insert ("and of his reasons for recommending that it be made").
On Question, amendment agreed to.
Clause 35 [Overriding duties of advocates and litigators]:
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 174:
Page 20, line 27, after ("act") insert ("with independence").
The noble and learned Lord said: My Lords, the Lord Chancellor promised the noble and learned Lord, Lord Lloyd, on two occasions during Committee stage to consider how Clause 35 might be strengthened to emphasise the obligation on advocates and litigators to act independently. I therefore move Amendment No. 174 and speak to the other amendment in the group which amend Clause 35 so that it now provides explicitly that those who exercise rights of audience or rights to conduct litigation must do so with independence. I am aware that the noble and learned Lord's original amendment to Schedule 5 was intended to result in a wider statement of principle being included on the face of the Bill. That provided that the Schedule 5 powers should be exercised by all involved compatibly with the principle that a strong, independent and self-regulating legal profession should be preserved.
However, I have not changed my view that an amendment in such wide terms is unnecessary and would in any event not have the hoped-for effect. As the Lord Chancellor has said often before, he is committed to an independent and self-regulating legal profession. I hope that I have demonstrated that the principle of self-regulation does not come under threat from the Bill. The powers that are given to the Lord Chancellor by this Bill to change the rules of authorised bodies are strictly circumscribed as we discussed earlier in relation to Amendments Nos. 166 and 167. They can be exercised only after an exhaustive process of consultation with the explicit agreement of Parliament through an affirmative resolution. They may be used only in accordance with the general principles set out in Section 17(3) of the 1990 Act.
We remain of the view that those principles are well founded and comprehensive. We are committed to the principle that all advocates and litigators should be independent in the exercise of their professional duties. That is why Clause 35 has been included in the Bill. Clause 35 already places on a statutory basis the duty which all authorised advocates and litigators have to the court before which they are engaged to act in the interests of justice and the duty to comply with the rules of conduct of their professional body. However, I accept that the feeling of many of your Lordships is that there should be a signpost, as the noble and learned Lord the Master of the Rolls described it, to demonstrate that this statute is framed with the maintenance of independence in mind. I accept it is right that the Bill should include on its face an explicit commitment to the principle of independence, and I beg to move this amendment accordingly.
On Question, amendment agreed to.
Lord Hacking Lord Hacking moved Amendment No. 175:
Page 20, line 32, at end insert—
("(2B) Where any person who exercises before any court a right of audience granted by an authorised body is employed as an advocate and is dismissed from his employment, then he shall be regarded for the purposes of Part X of the Employment Rights Act 1996 as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that he acted in a manner which was not consistent with the best interests of the employer, or otherwise failed in his duty to his employer, when such action or failure to act occurred by reason of his compliance with either or both of the duties described in subsection (2A)."").
The noble Lord said: My Lords, noble Lords will recall that particularly in relation to an amendment moved by my noble friend Lord Borrie the House considered the position of employed lawyers and their right to represent their clients in court. I do not want to repeat the argument advanced then. But noble Lords may remember that the noble and learned Lord has some hesitation about giving rights of audience to employed lawyers in consultancy companies, accountants companies and the like. I still hope that I shall be able to persuade my noble and learned friend to extend the rights of audience also to those employed lawyers.
We have had the temporary demise of Clause 31 of the Bill. Therefore we have somewhat of a lacuna at present. Noble Lords opposite nod their heads. That is why the amendments have been attached to Clause 35; they marry naturally to the temporarily demised Clause 31.
In the amendments we seek to give further independence to employed lawyers in an interesting way: by making it a ground for unfair dismissal if those lawyers have been acting not in the best interests of their employers but, following their primary duty, to the court. Under amendments to the employment rights legislation, there are serious consequences for dismissing an employee unfairly. I can read at some length the penalties for unfair dismissal but perhaps noble Lords will accept them from me. I am glad to see the noble Lord, Lord Phillips, nods his head vigorously.
The purpose of the amendments is to assist my noble and learned friend the Lord Chancellor to uphold the rights of employed lawyers. The noble and learned Lord, Lord Ackner, is not in his place; I am not inviting him to come back. I feel strongly that lawyers, in whatever capacity, have total integrity towards the ethics of the profession. Any lawyer has a prime duty to the court; and he should serve that duty.
The amendment gives some fortification to that purpose. If an employed lawyer exercised his ethical duty primarily to the court to the disadvantage of his employers, the employer would be sanctioned seriously if he dismissed the advocate. I beg to move.
Lord Borrie: My Lords, I support the amendment which stands also in my name. A key argument opposing the granting of rights of audience to employed lawyers is that they owe their first duty to their employer, and that only a freelance practitioner can be truly independent and give his or her first allegiance to the court and to justice. If that were true, the cause of justice would be seriously undermined by the daily
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appearance of employed lawyers as advocates in the magistrates' courts and county courts and on tribunals and arbitrations.
It is said, "Ah, that may be so. Their appearance in those courts or tribunals may be for reasons of expediency. The pass has been sold. But it is essential that for the higher courts the purity of independent advocacy, free from the deleterious effects and influences of an employer, must be retained". I have not seen or heard in this House any empirical evidence to the effect that employed lawyers are somehow incapable of giving independent advice or observing professional integrity in their proper duty to the courts and tribunals before which they currently appear. In the public and private sectors, both of which I have experience of in terms of working with employed or in-house lawyers, I know and they know that they are paid to give the best of their professional advice and assistance, irrespective of whether or not that is the advice the employer wants to hear.
Clause 35 is intended to underline the fact that everyone who has a right of audience, or a right to conduct litigation, has an overriding duty to the court to act—and the Lord Chancellor has added "independently"--in the interests of justice. The amendment in the name of my noble friend Lord Hacking is designed to strengthen the natural professional instinct of the employed lawyer to do just that by giving him greater security of employment. The employer would know that if he were unwise enough to put pressure on a lawyer in his employment to do otherwise than act in accordance with his duty to the court and his integrity and to dismiss him for ignoring the employer's instructions, that would, ipso facto, be unfair dismissal under our general employment law.
We all know that the independence of the senior judiciary is protected, and has been for centuries. by the well-known rule and that it needs a vote of both Houses to dismiss them. Our atnendment has a similar purpose—to protect the independence of the employed lawyer. I shall not, certainly at this time of night, spend time expounding the many advantages to an employer in being enabled to choose either to use his employed in-house lawyer or an independent practitioner to conduct litigation and to engage in advocacy. But sometimes he will want to do that. He may want an in-house lawyer to conduct only interlocutory proceedings. He may want his in-house lawyer to be only the junior and the Queen's Counsel to be an independent practitioner. But I suggest that it is desirable to enable the employer to have freedom of choice, instead of being burdened by the present costly restrictions imposed by the Bar Council.
During Committee, I gave an example of a construction consultancy company which may want to use its employed banisters, who often have qualifications as engineers or surveyors, to act as advocates not just for itself but for its clients. My noble and learned friend the Lord Chancellor courteously said that he was not inclined to go so far as that. Now is not the occasion to pursue the matter further. However, my noble and learned friend added that he did not rule that out for the future, particularly if one of the existing professional bodies changed its rules to allow such a development. If it is not

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impolite, discourteous or contemptuous to say of my noble and learned friend that he may have had his tongue in cheek at that point, I tried to imagine the Law Society and the Bar Council changing their rules to that effect. I support the amendment in the name of my noble friend Lord Hacking.
Lord Kingsland: My Lords, I rise to support Amendment No. 176, which, as I recall, was treated with a degree of scepticism by the noble and learned Lord, Lord Falconer, in Committee. This amendment would provide that where employers induced advocates to breach their overriding duties set out in Clause 35, it would be punishable as a contempt of the court concerned.
The amendment is complementary to Amendment No. 175 tabled by the noble Lord, Lord Hacking. It is important to ensure both that any employees who are dismissed for faithfully discharging the overriding duties set out in Clause 35 are entitled to compensation and also that adequate direct penalties apply to the employer concerned. The penalties would need to apply whether or not the attempt to induce advocates to breach their overriding duties succeeded and whether or not the advocate concerned was dismissed.
Lord Clinton-Davis: My Lords, I should have thought that it would follow almost as certainly as night follows day that, particularly in the light of the amendments which have just been adopted, an industrial tribunal would find in favour of the advocate if he were put under such pressure.
I do not believe that it is right simply to talk about compensation in the light of the current law. Nothing is said in the proposed amendments about compensation other than by way of an implicit acceptance that the existing law in that respect is satisfactory as regards both amendments. I believe that it is necessary to offer rather more compensation. However, that is another issue. It is difficult to imagine a situation where an industrial tribunal could fail to support the advocate in such circumstances.
Lord Meston: My Lords, I support Amendment No. 176 in the name of the noble Lord, Lord Kingsland, which is grouped with Amendment No. 175. It should be apparent on the face of the Bill that those who employ people to exercise rights of audience or rights to conduct litigation are themselves answerable to the court if they exert improper pressures on those whom they employ.
I am glad that the noble Lord, Lord Kingsland, has pursued his amendment. I regret that the arguments against its predecessor in Committee were frankly unconvincing. Of course, the lawyer who is an officer of the court and a member of a professional body should normally have primary responsibility for a breach of the overriding duties set out in Clause 35 as it now is. But the enlargement of rights and the use of employed advocates and litigators is bound to bring the risk that unscrupulous employers and their corporate alter egos or single issue pressure groups who are not subject to
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professional rules or ethics will, from time to time, apply improper pressures on those who represent them. The lawyer cannot escape his responsibilities by blaming the client but the employed lawyer will not always be operating within the conventional relationship which exists at present between lawyer and client, as the Bill itself recognises.
However, I suggest that Clause 35, looks lame without any real sanctions. It should be made clear that employers and others are not immune simply because they do not have duties imposed upon them by Clause 35. I hope that the Government will look again at that problem.
Lord Falconer of Thoroton: My Lords, these two sets of amendments are intended to strengthen the position of lawyers under Clause 35. They are directed particularly at the protection of employed lawyers, although the two amendments in the name of the noble Lord, Lord Kingsland. are not limited to employed lawyers.
Those amendments seek to provide protection to employed lawyers from pressure, primarily from their employer, in two ways: first, by making a new provision in relation to contempt, which is the route of the noble Lord, Lord Kingsland; and, secondly, by making certain dismissals automatically unfair, which is the route of the noble Lord, Lord Hacking.
I shall deal with them in reverse order; namely, with contempt first. As the noble Lord, Lord Kingsland, will be aware, these amendments are not unlike amendments that he tabled in Committee. As I indicated at the time, with the greatest respect to the noble Lord, I thought the amendments that he tabled then were bad amendments. I explained in some detail why I thought they were bad amendments. I am afraid that, to the extent to which these amendments are different, I think they are worse than those tabled before.
What would first strike any reasonable person about Amendments Nos. 176 and 179 on the Marshalled List—I say this advisedly, knowing that these amendments have been drafted by no less a body than the Bar Council—is that they would create a new category of contempt which could be committed only by non-lawyers. The amendments apply only to persons who are not subject to the rules of conduct of an authorised body. So one could have the somewhat anomalous situation that the noble Lords urge upon us, that if a lawyer and a lay person behaved in exactly the same way, in the same case, by attempting to bring about a breach of another lawyer's duty to the court, the lay person is automatically guilty of contempt but under these provisions the lawyer is not. It may have nothing to do with the fact that it is drafted by the Bar Council. I realise, as I say, that the amendments were drafted by the Bar Council, but, even so, that seems to me to be an extraordinary proposition.
The revised amendments also seem to me to be confused about the requisite state of mind, or mens rea, on the part of the guilty lay person. They start off by saying that he is guilty if he intends to bring about a breach of a lawyer's duty to the court, or if he ought

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reasonably to appreciate that his actions would be likely to bring about a breach of that duty, which suggests some degree of mens rea. The amendments go on to say that the lay person is guilty whether or not he knew, or ought to have known, that the conduct likely to be brought about constituted a breach of the lawyer's duty to the court. So I am left unsure what precisely a lay person has to think or know or intend before he can be found guilty of contempt under this provision. I suspect that this is an attempt to impose strict liability for contempt. If so, I do not think for one moment that that would be appropriate.
As I explained in Committee, one of the objections to these amendments is that they impose a liability for contempt on a lay person—presumably a client or employer—which would not necessarily attach to a lawyer even if he did breach his duty to the court. In other words, these amendments propose that you are guilty of a contempt if you urge the lawyer to do something which may not be a contempt by him. That is a very odd conclusion to reach. I made this point laboriously in Committee and it is a point that the noble Lords, Lord Kingsland and Lord Meston, have perhaps sensibly not chosen to deal with at all in their speeches supporting the amendment. As both noble Lords know, the courts are rightly slow to penalise people for contempt, and it is far from certain that a lawyer who breached his duty to the court would be found to be in contempt of court. Both noble Lords know that that would depend entirely on the circumstances of the case.
I do not think it can be right, as a matter of principle, to say that a lay person is guilty of contempt if he acts in a way likely to bring about an act by a lawyer which may or may not be a contempt.
As I explained in Committee, there is no reason why lay members of the public, be they employers, clients, witnesses or anyone else, should know what a lawyer's duty to the court entails. It is for the lawyer to know that, and, if necessary, to explain why he cannot act in certain ways. If the lawyer betrays his duty to the court, it is he, and not his client or employer, who should be punished. That seems right to me. The lay person could quite understandably urge a lawyer not to tell the court something, unaware that suppressing a fact could just as much be a breach of his duty as telling a direct fib. I realise that lying behind these amendments is a concern that employed lawyers—
10.30 p.m.
Lord Meston: My Lords, but if the lay person, who is not answerable to a professional body, knows perfectly well that he is asking something improper of the lawyer, and the lawyer is subjected to such pressure that he gives way and does as he is asked, should not the lay person be answerable to the court?
Lord Falconer of Thoroton: My Lords, two points arise from that. First, the lawyer is there to resist. Secondly, the amendments make it clear that it does not matter whether or not he knows that it is a breach of duty.
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As I have said, I realise that lying behind these amendments is a concern that employed lawyers may be pressurised by unscrupulous employers to act in ways which are unethical. I think those fears are exaggerated. But in cases where an unscrupulous employer did attempt to interfere in the course of justice, he could, of course, be dealt with under the existing law, either for contempt—that is, for contempt of the existing law—or, in the most serious cases, for perverting the course of justice or for conspiring or attempting to do so. In the light of what I have said, I hope that the noble Lord, Lord Kingsland, will be sufficiently reassured to withdraw his amendment.
I now turn to the amendments proposed by my noble friends Lord Hacking and Lord Borrie. These are designed to ensure that if an employed advocate or litigator is dismissed from his employment because of a conflict between his duty to his employer and his compliance with the duties imposed by Clause 35—that is, his duty to the court—he shall be regarded as having been unfairly dismissed.
When this Bill was being drafted, my noble and learned friend considered whether it ought to include a provision of this kind, but concluded that it was unnecessary. The question of whether a dismissal is fair or unfair is one of fact for an employment tribunal. I have no doubt that an employed lawyer would succeed in an unfair dismissal claim, if he could show to the satisfaction of the tribunal that he had been dismissed because, for example, he had refused to obey an instruction from an employer as to how he should handle a case in court, when to obey that instruction would have put him in breach of the statutory duties imposed by Clause 35. Clause 35 already makes it clear that the duties it imposes on advocates and litigators override any other duty they might owe in civil law, including, for example, any contractual obligation to an employer.
The law on unfair dismissal was consolidated in the Employment Rights Act 1996. One of the banes of lawyers everywhere is that no sooner does one statute regularise and consolidate the law than other statutes start to provide exceptions and special cases. I am reluctant to do so in this case, in respect of employed lawyers, because I think it may prove confusing and unhelpful to provide in this Bill what purports to be a special rule for lawyers who are unfairly dismissed, when in fact all that rule will do is to restate what would have been the position in any case.
Having said that, I should make it clear that my noble and learned friend is willing to look again at this. One of the proper functions of the law is deterrence, and it may be that, on this occasion, there would be advantage in making it explicit on the face of the Bill that employed lawyers may not be penalised for adhering to their statutory duties, and that if they are penalised, they will have redress. My noble and learned friend will therefore consider this matter further, in discussion with his colleagues in the Department of Trade and Industry. If it is decided that such an amendment would be

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helpful, it be moved in another place. On that basis, I hope that my noble friend Lord Hacking will agree to withdraw his amendment.
Lord Hacking: My Lords, I am grateful to my noble and leaned friend for that reply, and particularly for the last passage in which he told us—this is most welcome—that my noble and learned friend the Lord Chancellor will give further consideration to this matter. It is important to put the stake in the ground here. We should remember that on a Motion moved by the noble and learned Lord, Lord Ackner, your Lordships removed from the Bill the right of employed lawyers to have audience in the courts. Your Lordships have therefore shown some unease about employed lawyers having rights of audience before the courts. If we can illustrate the fact that an employed lawyer has to fulfil his absolute duty to the court, I think and hope that those worries will be assuaged.
I am not so hopeful that the fears of the noble and learned Lord, Lord Ackner, will be assuaged, even at Third Reading or when the Bill returns from another place. But I would be more hopeful that the House as a whole would feel that there is sufficient protection to the system of justice and that the role that employed lawyers, in exercising rights of audience, play in the sanctity of justice would be sufficient to make us feel comfortable with the willingness to restore to this Bill Clause 31, which disappeared at Committee stage. On that basis I am happy to withdraw my amendment.
Amendment, by leave, withdrawn.
[Amendment No. 176 not moved.]
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 177:
Page 20, line 37, after ("act") insert ("with independence").
On Question, amendment agreed to.
[Amendments Nos. 178 and 179 not moved.]
The Lord Chancellor The Lord Chancellor moved Amendment No. 180:
After Clause 36, insert the following new clause—
PUBLIC NOTARIES: ABOLITION OF SCRIVENERS' MONOPOLY
(". A public notary may practise as a notary in, or within three miles of, the City of London whether or not he is a member of the Incorporated Company of Scriveners of London (even if he is admitted to practise only outside that area).").
The noble and learned Lord said: My Lords, my amendments and the amendments of the noble Lord, Lord Goodhart, go to the same purpose; namely, to end the statutory monopoly held by the Incorporated Company of Scriveners of London over notarial work in the central London area.
Amendment No. 180 will insert a new clause after Clause 36, providing that a notary may practise in the City of London or within three miles of its boundaries, whether or not he is a member of the Scriveners' company. The subsequent Amendments Nos. 192 to 195 standing in my name will amend Schedule 11 so as to repeal references to the monopoly in statute accordingly.
I shall explain some of the background to this, as it may be that not all of us are completely familiar with the intricacies of the notarial profession. Notaries authenticate certain legal documents, mainly for use abroad, by signing and sealing them. They may also prepare legal documents for use abroad, undertake conveyancing and probate work, translate foreign legal documents, administer oaths and take affidavits. However, all notaries who wish to offer notarial services in the City of London or within three miles of its boundaries, must, under the current legislation, belong to the incorporated company, with is a livery company of the City of London. Members of the Scriveners' Company are subject to more specialised training requirements than general notaries, who are mostly solicitors. I understand that there are currently 28 scrivener notaries practising in the City who are the beneficiaries of this monopoly. There are roughly 1, 000 non-scrivener general notaries who are only permitted to practise outside the specified area.
This monopoly was placed on a statutory basis by Section 13 of the Public Notaries Act 1801, and confirmed by Section 6 of the Public Notaries Act 1843 and Section 57 of the Courts and Legal Services Act 1990. During the passage through Parliament of the Competition Act 1998, there was pressure to abolish the monopoly, which is understandable, and an amendment to that end was tabled. The amendment was ultimately rejected as being outside the scope of that Act. However, I undertook to review the arguments for and against the monopoly, in order to form a view on the desirability or otherwise of its abolition.
I have now received views from the various notarial associations, the Law Society, the Office of Fair Trading, and the Faculty Office of the Archbishop of Canterbury, which, for historical reasons, regulates the notarial profession. I have come to the clear view that there is no justification for preserving this monopoly. As the Government's policy is generally hostile to the preservation of commercial monopolies, the existence of the Company's monopoly is anomalous. The Office of Fair Trading has advised me that the monopoly is anti-competitive and should be abolished. Concerns have been raised by those who oppose the monopoly that in a large area of central London, ordinary notarial facilities are not sufficiently accessible to members of the public who might need them.
I have considered the arguments from the Incorporated Company of Scriveners—namely, that it offers a specialist service and that standards will be lowered by competition—but I do not find them convincing. There will be nothing to stop notaries from continuing to belong to the Scriveners' company if they wish, and if they offer a higher level of service than other notaries they should have nothing to fear from competition.
I have detailed reasons for marginally preferring the terms of this amendment, which I have brought forward, to that of the noble Lord, Lord Goodhart, but I imagine he would agree that it is unnecessary to go into that kind of detail. I hope that your Lordships and the noble Lord, Lord Goodhart, will be happy to accept my amendment. I beg to move.
10.45 p.m.
Lord Goodhart: My Lords, I welcome Amendment No. 180. When I tabled Amendment No. 181 I was not certain that the noble and learned Lord the Lord Chancellor was going to table Amendment No. 180. Had I known that he was going to do so, I would not have tabled my own amendment. I certainly shall not move it on this occasion.
Notaries are a minor branch of the legal profession in England and Wales. They are of course much more important in other legal systems, particularly in mainland Europe. Many of your Lordships will be familiar with the important role of the notaire in the French legal system. The profession is an ancient one and many of your Lordships will be familiar with the important role which notaries, real or bogus, played in the historical events recorded in the "Marriage of Figaro", "Cosi fan tutte" and "The Barber of Seville".
The Deputy Speaker (Lord Ampthill): Sing!
Lord Goodhart: My Lords, I reject the invitation from my noble friend to sing. Our own legal system could get on perfectly well without notaries but they are, of course, essential where documents which are executed in England and Wales need to be authenticated by a notary for use in other legal systems. I was frankly astonished when a few weeks ago I was told that notaries qualified to practise anywhere else in England and Wales were not allowed to practise in the City of London or within three miles of it, and that in that area the right to practise was reserved to freemen of the Incorporated Company of Scriveners who had passed the company's own examinations and served formal apprenticeships. It is plainly the last remnant of mediaeval guild monopolies. The scriveners say that those who have qualified as freemen of their company offer higher standards of service than other notaries. That may well be true but there is no obvious reason why higher standards are needed in Southwark than in Southampton.
There are a number of professional organisations such as the Chartered Institute of Taxation whose membership is not necessarily a qualification for practice in that profession but is an indication that the members are specialists who have attained high standards in their fields. There is no reason why the scriveners should not enjoy a successful future as an organisation of that kind, but I believe the monopoly must go.
On Question, amendment agreed to.
[Amendment No. 181 not moved.]
Clause 37 [Permission to appeal]:
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 181A:
Page 21, line 30. leave out subsection (6).
The noble and learned Lord said: My Lords, Amendments Nos. 181A to 181G are drafting amendments, which remove from the Bill definitions which are unnecessary. I should also like to take this opportunity to give notice of our intention to table at
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Third Reading some further drafting amendments. Our aim in doing so will be to ensure that that part of Section 58(2) of the Supreme Court Act 1981, which provides for the finality of certain decisions of a single Lord Justice, will be replicated in the legislation before your Lordships.
The effect of Section 54(6) (which generally prevents the decision of a single Lord Justice on a leave application from being appealed) will also need to be reinstated and, indeed, extended to cover similar decisions of lower courts acting in an appellate capacity. In the meantime, I urge your Lordships to accept the drafting amendments which are currently before you.
I beg to move.
Lord Meston: My Lords, although the noble and learned Lord describes these as drafting amendments I suggest that they are perhaps a little more than that and that we ought to spend a moment looking at them. I welcome the change of language proposed which goes some way towards reducing the stringent restrictions on second appeals within the Bill. However, I know I am not alone in retaining misgivings about the whole concept of additional restrictions on second appeals, particularly now that almost all appeals will require leave or permission in any event. It is doubtful that those who will he responsible for granting permission to appeal will need the extra restraints stipulated in the Bill in respect of second appeals. I remain of the view that there may at least be an argument for distinguishing between cases where the first appeal has been successful and where it has been unsuccessful. That is a distinction recognised in a recent practice direction.
At Committee stage, the noble and learned Lord, Lord Falconer, said that he did not believe that a justice system should be predicated on the assumption that decisions of the lower court are wrong. That is quite correct. But, equally, it must he questionable whether an access to justice Bill should impose these restrictions on second appeals, particularly when permission to appeal is now to be required in almost all categories of case.
Lord Falconer of Thoroton: My Lords, I think that the noble Lord's points are more pertinent to Amendments Nos. 181B, 181 C and 181D, which deal with the circumstances for a second appeal. I will reserve my reply until I move those amendments.
On Question, amendment agreed to.
Clause 38 [Second appeals]:
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 181B:
Page 21, line 38, after ("made") insert ("to the Court of Appeal").
The noble and learned Lord said: My Lords, you will recall from the discussions in Committee, to which the noble Lord, Lord Meston, has just referred, that Clause 38 will introduce into legislation the principle that, in normal circumstances, there should be only one appeal to the courts in the same proceedings. The clause contains a safeguard to ensure that those cases which merit the consideration of the Court of Appeal on appeal are able to reach it.
In Committee, the noble Lords, Lord Kingsland and Lord Philips of Sudbury, sought an amendment, the effect of which would be to enshrine in primary legislation the right of an appellant to invite the Court of Appeal to consider whether a second appeal should proceed. As I have said, it has always been the Lord Chancellor's policy that second appeal applications shoula be considered by the Court of Appeal. although the noble and learned Lord the Lord Chancellor had intended to make the specific provision for this in secondary legislation. I therefore undertook on his behalf that he would consider an amendment of this nature and return to your Lordships' House on the point today. I hope that noble Lords will agree that Amendments Nos. 181B and 181C meet the concerns about who will hear not only the applications for second appeals hut the second appeals themselves.
Amendment No. 181 B makes clear the destination of any substantive second appeal which is permitted by specifying that such appeals will be made to the Court of Appeal.
Amendment No. 181C directly answers the concerns about whether applications for a second appeal will reach the Court of Appeal. I should draw attention here to a slight, hut important. distinction between the current amendment and the amendment tabled in Committee by the noble Lords, Lord Kingsland and Lord Phillips of Sudbury. While it may not have been the intention of those noble Lords, prior to any Court of Appeal consideration of the merits, the Committee amendment as drafted would have allowed the lower court to make the initial decision as to whether a second appeal should proceed to the Court of Appeal. Such a situation would open the door to inconsistency in the cases which proceed to second appeals, and see cases before the Court of Appeal which it would not itself have considered appropriate for a second appeal. Amendment No. 181C, in naming the Court of Appeal as the body which will consider all applications for a second appeal, avoids these potential pitfalls.
As to Amendment No. 181D, in Committee a number of your Lordships were supportive of the concern raised by the noble Lord, Lord Meston, about the use of the word "special" in Clause 38(1)(6). This subsection, together with subsection (1)(a), establishes the criteria which must be satisfied in order for a second appeal to proceed.
The noble and learned Lord the Lord Chancellor has given careful consideration to the points which were made on this issue in Committee. On his behalf I now recommend to your Lordships the use of the word "compelling" in place of the word "special". This not only accords with his own earlier inclinations hut, as your Lordships would expect, pays due regard to the views of the Court of Appeal judges, so effectively given voice in Committee by the noble and learned Lord, Lord Woolf. We are satisfied that the phrase "compelling reason" provides an appropriate indication of the circumstances in which there should be a further appeal to the Court of Appeal.
These three amendments provide an assurance to litigants that their application for a second appeal will be considered and, if, successful, heard substantively by the Court of Appeal, regardless of how far down the court structure the original appeal was decided. This will also enable the Court of Appeal to determine itself the cases which are most appropriate for it to hear. It therefore provides, overall, a structure by which there are second appeals in appropriate cases and by which in all appropriate cases the Court of Appeal will hear such an appeal; and, further, that there is someone other than the judge of first instance or tribunal of first instance that made the decision who will have some say in whether leave to appeal should be given. I hope that that lays to rest the legitimate concerns of the noble Lord, Lord Meston. I beg to move.
On Question, amendment agreed to.
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendments Nos. 181C to 181E:
Page 21, line 38, at end insert ("the Court of Appeal considers that").
Page 22, line 1, leave out ("special reason for the appeal to be made") and insert ("compelling reason for the Court of Appeal to hear it").
Page 22, line 4, leave out subsection (3).
On Question, amendments agreed to.
Clause 39 [Power to prescribe alternative destination]:
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 181F:
Page 22, line 33, leave out subsection (8).
On Question, amendment agreed to.
Clause 40 M[Assignment of appeals to Court of Appeal]:
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 18IG:
Page 23, line 6, leave out subsection (3).
On Question, amendment agreed to.
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 182:
After Clause 46, insert the following new clause—
VICE-PRESIDENT OF THE QUEEN'S BENCH DIVISION
(".—(1) The Lord Chancellor may appoint one of the ordinary judges of the Court of Appeal as vice-president of the Queen's Bench Division and any person so appointed shall hold that office in accordance with the terms of his appointment.
(2) In section 4 of the Supreme Court Act 1981 (composition of High Court)—

(a)in subsection (1) (membership), after the words "the Senior Presiding Judge:" insert— "(ddd) the vice-president of the Queen's Bench Division;", and.

(b)in subsection (6) (vacancy in offices not to affect constitution), at the end insert "and whether or not an appointment has been made to the office of vice-president of the Queen's Bench Division."

(3) In section 5 of that Act (divisions of High Court), in subsection (1)(b) (Queen's Bench Division), after 'thereof, "insert "the vice-president of the Queen's Bench Division".").
The noble and learned Lord said: My Lords, it has been the practice for some time for the Lord Chief Justice to appoint a senior member of the Court of Appeal to assist him in his administrative duties as President of the Queen's Bench Division of the High Court. The Lord Chancellor's predecessor decided, after consultation with the Lord Chief Justice, that this appointment should be formalised as Vice-President of the Queen's Bench Division.
It was always the former Lord Chancellor's intention that the appointment should be put on a statutory footing when the opportunity arose to do so, an intention which the present Lord Chancellor has fully supported. The present Lord Chancellor is grateful to his predecessor for pointing out to him that this Bill afforded him precisely that opportunity.
The amendment as drafted echoes the provisions made in the Courts and Legal Services Act to put the appointment of the senior presiding judge on a statutory footing and also reflects the provisions in the Supreme Court Act for Vice-Presidents of the divisions of the Court of Appeal. I commend it to your Lordships, and I beg to move.
On Question, amendment agreed to.
Lord Phillips of Sudbury Lord Phillips of Sudbury moved Amendment No. 183:
After Clause 47, insert the following new clause—
PROHIBITION AGAINST CHILDREN BEING PRESENT IN COURT DURING THE TRIAL OF OTHER PERSONS
(". In section 36 of the Children and Young Persons Act 1933 (prohibition against children being present in court) after "shall", where it first appears, insert "without the consent of the court (which may be withdrawn at any time)".").
The noble Lord said: My Lords, this amendment is addressed to the fact that Section 36 of the Children and Young Persons Act 1933 prevents children under the age of 14 from going into a court other than as witnesses or in one or two other specific capacities. If the amendment is passed, it will permit any court to allow anyone of any age into the court with the consent of the court, that consent to be withdrawn at any time.
The origin of this proposal is very simple. The charity of which I am chair, the Citizenship Foundation, in conjunction with the Magistrates' Association, has for some years now run an extremely successful mock trial competition for young people in magistrates' courts. The Lord Chancellor will recollect, I am sure, his appearing last year to judge the final of this remarkable competition which engages more than 2, 500 young people every year in going into magistrates' courts and conducting cases, taking all the roles in the conduct of those cases, including those of magistrates themselves, with only one genuine person, if I may use that expression, being present on those occasions; namely, the chair of the Bench for each case.
As the law stands, although the typical age of the participants is 12 and 13, they are not allowed into local magistrates' courts prior to their day in court in order to get the feel of the real court in action and to get some idea of how cross-examinations are undertaken and how indeed the whole court process works. This amendment
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has the innocent intent of allowing these 12 and 13 year-olds to sample the reality before they do their hit and try their own efforts at taking the Farts in the court process.
The amendment is simply drawn. It gives complete discretion to each and every court as to whether to admit children under the age of 14 and explicitly gives any of those courts which do allow young people in, the right at any time to ask them to withdraw. I therefore commend to your Lordships the proposal contained in this amendment. I should also add that the Justices' Clerks' Society, which is such a strong supporter of the "mock trial" competition, is also happy at the thought that this amendment may pass your Lordships' House. I beg to move.
11 p.m.
The Lord Chancellor: My Lords, I am grateful to the noble Lord, Lord Phillips of Sudbury, for bringing this issue to your Lordships' attention. This is an area of legislation that has remained unchanged, for one reason or another, for over 65 years. To some, that might signal that there are no real problems with this section; no real mischief to address. To my mind, that is certainly not necessarily so. The fact that there has been no change for a long time should not preclude useful alterations now. I therefore wish to explore for a moment or two the exact intention behind the amendment.
As the law stands, children are prohibited from attending criminal trials unless they are a defendant, a witness, an infant in arms or their presence is required for the purposes of justice. The intention of this section was almost undoubtedly to protect children from the sometimes harsh, perhaps troubling environment, of an adult trial. But we recognise that time has moved on. We have already made changes to youth court procedure to achieve a greater openness in proceedings, and a move to greater openness could be welcome. Also, we recognise, as the noble Lord, Lord Phillips, emphasised, the importance of our children being educated in the process of justice as well as in the other institutions of an open society. So I am not unsympathetic to the spirit of the proposed new clause.
The effect of the amendment would appear to be to create a greater openness while maintaining the court's control over its own proceedings. Of course the new clause will affect not only the magistrates' courts but also the higher criminal courts. It is important that the court be left to regulate its own proceedings in this area because the court's decisions will vary on a case-to-case basis.
While I can see the argument that the court should have a discretion to exclude children from the outset, let us say because of the nature of the case, or in the course of the case because of the nature of the evidence being given at the time, I am unhappy with an open-ended discretion to exclude or admit by reference to no statutory criteria. One court could exclude children as a matter of course whereas another could follow a quite different approach.

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My basc reaction—though I confess I have not thought the through thoroughly—is that, if there were to be a change of this nature, there should be statutory criteria ay reference to which children should be excluded or admitted. I readily confess that I have not given my mind sufficiently to what those criteria might be or bow meaningful or useful they might be. It is for consideration whether there should be a rebuttable presumption in favour of admission subject to exclusion based on statutory criteria.
I have said enough to indicate to the noble Lord that I am sympathetic to the spirit of his amendment, but invite him to give further thought to an amendment along the lines I indicated. Meanwhile, I will have my officials do likewise. I undertake to write to the noble Lord; I invite him to write to me. On that basis, which is an expression of sympathy for the spirit of his amendment, I hope he will withdraw his amendment this evening.
Lord Phillips of Sudbury: My Lords, I am most grateful to the noble and learned Lord for that response. I am very happy to withdraw the amendment on the basis indicated.
Amendment, by leave, withdrawn.
Clause 54 [Areas outside Greater London]:
Lord Kingsland Lord Kingsland moved Amendment No. 184:
Page 32, line 19, at end insert—
("( ) a unitary county council;").
The noble Lord said: My Lords, I rise to speak briefly to Amendment No. 184 in the absence of the noble Lord, Lord Mottistone.
The amendment applies to subsection (10) of Clause 54. The clause deals with magistrates' courts committees. Subsection (10) defines what is a relevant authority. There are three categories of relevant authority stipulated in the Bill: a county council; a county borough council; and the council of a unitary district. The amendment seeks to add a fourth category: a unitary county council.
Under the Local Government and Rating Act 1997 a unitary county council is defined as a council in a county in which there are no district councils. Apparently, the Isle of Wight is the only geographical entity which falls into that category. Were this amendment not passed, therefore, the Isle of Wight would be excluded from the scope of Clause 54. I beg to move.
Lord McIntosh of Haringey: My Lords, I am happy to assure the noble Lord that this amendment is unnecessary. The definition of "relevant authority", as set out in Section 32(10) of the Justices of the Peace Act 1997, is unchanged by Clause 54, barring the omission of references to councils for London. This reflects the position since the Police and Magistrates' Courts Act 1994. Clause 56 establishes a separate magistrates' courts authority for Greater London.
A unitary council such as the Isle of Wight, of which the noble Lord, Lord Mottistone, was such a distinguished Lord Lieutenant, falls into category (a) of
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Clause 54(10) as it is a county council. All other unitary authorities are captured within the ambit of subparagraph (c) of the clause. As the primary purpose of this subsection is explanatory only, I invite the noble Lord to withdraw the amendment.
Lord Kingsland: My Lords, I shall convey the noble Lord's reassuring words to the former Lord Lieutenant and Governor of the island. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 58 [Qualification for appointment]:
Lord Jenkin of Roding Lord Jenkin of Roding moved Amendment No. 185:
Leave out Clause 58.
The noble Lord said: My Lords, I have hesitated at some length as to whether I ought to intervene at this stage, having taken no part in these proceedings but having listened with some admiration to the immensely learned preceding debates. I assure noble Lords on the Government Front Bench that I am not the vanguard of the nightshift and I shall try to be brief.
I have some sympathy with the anxieties that have been expressed about Clause 58 by the Association of Justices' Chief Executives. Members of the association believe that their posts should by law continue to require a legal qualification and that Clause 58 is misconceived and ought to be removed from the Bill.
I have studied the Committee stage debates on this and the following clause that took place on 28th January, and I have read carefully the speeches of the noble Lord, Lord McIntosh of Haringey, (at col. 1265 of Hansard) and the remarks of those who took part in that debate, and also the second speech of the Minister (at col. 1268) in response to a point raised by the noble Viscount, Lord Tenby. I have also seen the government amendments on the following clause, which may go some way to meet the anxieties of the association.
But to my inexpert mind, those debates and the amendment that has been tabled to the new clause have been primarily aimed to protect the independence of the individual justices' clerk from improper influence so as to underline the importance of his role in giving legal advice to magistrates' courts. It was also desired to clarify the distinction between the justices' clerks' legal role and their administrative functions.
The amendments that were debated and those that will be before this House were not primarily aimed at retaining the existing law about chief executives' legal qualifications. I do not think that this is a case that has yet been argued on the Bill. I think it should be argued so that Ministers can explain why they are removing this required qualification.
What is now Clause 59(6) of the Bill seeks to give authority to justices' chief executives to direct the advice to be given by justices' clerks and other staff, other than advice that is protected by Section 48 of the 1997 Act. I am advised that this would include legal advice given to justices outside the court room. It seems to the association wrong to allow a chief executive who

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does not himself have a legal qualification such as is required to be held by the justices' clerk to exercise such powers.
During the passage of the Police and Magistrates' Courts Act 1994, Parliament was very careful in its consideration of this matter. It took the view then—and the association believes that Parliament was right—that there were substantial grounds for retaining the requirement for justices' chief executives to be legally qualified.
The Magistrates' Court Service is essentially a legal service, operating within what I believe everyone recognises as a highly complex statutory framework. It is essential that a magistrates' courts committee's chief officer—for that is what we are talking about—is competent in the law so as to be in a position to ensure that the courts committees function within the law. He must himself understand that fine line, which I think was debated at some length in Committee, between legal advice and the administrative functions in order to maintain the independence of the judicial process, which we all regard as of the utmost importance.
Magistrates' courts committees are increasingly expected to have a clear understanding of complex areas of law in relation to such matters as employment, finance and other issues and they must therefore have as their chief executive officer a man or woman who is fully able to understand such issues and assist them in applying the law to the decisions that are made.
A professional legal qualification facilitates and strengthens the responsibilities attached to the justices' chief executives because they are responsible for the line management of the justices' clerks. They take the view that it is not satisfactory that the legally qualified clerks should have as their next-in-line manager someone who does not need to be legally qualified. This is important not only in the management of the courts but in the operation of the magistrates' courts committee's area legal forum.
A professional legal qualification facilitates successful inter-agency discussions with other chief officers within the justice system who themselves possess legal qualifications. One thinks immediately of the Crown Prosecution Service, the local law society and other services which have to have a substantial knowledge of the law, such as the police, the Probation Service, and so on.
As was mentioned in Committee, the justices' chief executive is responsible for overseeing many legal or quasi-legal statutory functions, such as enforcement and legal aid. While the Bill seeks to define a clearer separation on the one hand of legal roles delivered by the justices' clerk and his roles in administration on the other, the fact of the matter is that the whole service finds its focus through the post and position of the justices' chief executive. He it is who must be capable of understanding and bringing together the two sides, legal and administrative, to ensure effective delivery of the important legal and judicial service. If he himself does not have the legal qualification, there is a real danger that he will not be able to perform that function as effectively as hitherto. Ministers have not explained
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why they believe it is right to remove that requirement. I believe that the association has adduced some powerful arguments that need a reply. I beg to move.
11.15 p.m.
Lord McIntosh of Haringey: My Lords. I am grateful to the noble Lord for expanding on what is a relatively simple issue; namely, the proposal to remove Clause 58, which itself removes the requirement that a person may not be appointed as a justices' chief executive without the specified legal qualifications of a justices' clerk. The noble Lord, Lord Jenkin, referred to the fairly extended debate in Committee, part of which was about the qualifications of the justices' chief executive but much more of which was about the need, as a number of noble Lords saw it, to define and protect the legal responsibilities of justices' clerks.
A number of noble Lords, in particular the noble Lord, Lord Gisborough, and the noble Viscount, Lord Tenby, felt that the proposals in the Bill to rely on Clause 48 of the Justices of the Peace Act 1997 were not adequate to protect the legal responsibilities of justices' clerks because they referred only to protection in giving advice in an individual case. They felt that it was important to have that more widely drawn.
In response to those objections I undertook to go back and consider what further amendments would be necessary. As the noble Lord has generously acknowledged, that is what is contained in Amendments Nos. 186 to 189. I hope that when we come to those amendments I shall be able to show that we have achieved that certainly to the satisfaction of the Justices' Clerks Society and, I hope, to the satisfaction of the Association of Justices' Chief Executives.
Having said that, we return to what I may be so bold as to describe as the secondary issue of whether the justices' chief executive should have legal qualifications. The post of the justices' chief executive was established by the Police and Magistrates' Courts Act 1994. Each of the then 105 magistrates' courts committees, with three exceptions, was duty bound to appoint a lawyer qualified as a justices' clerk. This gave a near monopoly to justices' clerks to be promoted to chief executive. The Government do not believe that that monopoly should continue. We are fortified in that view by having, I hope to the satisfaction of all concerned, properly distinguished between the legal and the administrative roles of justices' clerks.
The noble Lord, Lord Jenkin, said that essentially this was a legal service. It is not. Essentially, it is a legal service contained within an administrative service of very considerable extent involving a vast amount of public expenditure. That is not to say that the experience of justices' clerks, the service's professional legal advisers—who until now have comprised the overwhelming majority of justices' chief executives—will be wasted. There will be no pressure on committees to appoint non-lawyers. Committees will retain the right to choose and appoint lawyers if they wish. This clause provides committees with the opportunity to appoint individuals without legal qualifications but with relevant skills in management and administration of what is,

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I repeat, a very considerable business. Justices' clerks will not Ix prevented from applying for posts but the competition will be wider.
We believe that the current legislation limits the potential of committees to attract the best possible applicants for the post of justices' chief executive. I do not denigrate the skills of those individuals who have been appointed as justices' chief executive, but the skills of managers in other organisations, whether in the public or private sector, are pertinent to the management of the magistrates' courts. With his own business experience, I hope that the noble Lord, Lord Jenkin, will recognise the importance of transferability of skills. It is essential that a justices' clerk is legally qualified of course. The lay magistracy rely on him for advice in court and on matters of law including practice and procedure.
The justices' chief executive is the statutory head of service locally. Subject to any directions given by the committee, the chief executive is responsible for the day-to-day running of the area.
Since 1994, it has become clearer that the chief executive has a different role and needs to be a dedicated administrator and not dilute the emphasis of this pivotal post with the added daily responsibilities of a lawyer. The removal of the requirement for legal qualifications is particularly important, as Clause 60 of the Bill transfers the responsibility for administrative functions from the justices' clerk to the justices' chief executive. That is to ensure that neither the administrative nor the legal functions are diminished in any way.
It is true that anything dealing with the magistrates' courts requires an understanding of the law. The noble Lord, Lord Jenkin, makes a valid point. But that can be achieved through good training. It can be business training which is transferable. The magistrates' courts committee will, I am sure, recruit competent chief executives; and a legal qualification need not be required because the magistrates' courts will make that decision.
In the light of our undertaking, which I believe we have fulfilled, to make the proper distinction between legal functions and administrative functions I hope that the noble Lord and the Association of Justices' Chief Executives will feel that we have come to the right conclusion. I invite the noble Lord to withdraw the amendment.
Lord Jenkin of Roding: My Lords, I am immensely grateful to the noble Lord for the careful way in which he has responded to the amendment I moved. I think that the association will regard the matter as now having been properly aired.
The noble Lord laid some emphasis on the concepts of competition and monopoly. No doubt the association will take note of that. As I said in my opening remarks, I think that the amendments tabled which will be discussed in a moment may go some way to reassure the association that its concerns are recognised. The association points out, however, that in a number of
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other services where one has specialists who need to be managed by non-specialists the experience has not always been a happy one. My experience of that in the health service is perhaps one example. One can think of the Crown Prosecution Service, the Police Service and so on. I hope that the noble Lord and the Government are right and that there will not be the difficulties which the association fears. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 59 [Role]:
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 186:
Page 36, line 30, leave out from ("to") to end of line 31 and insert ("matters of law (including procedure and practice) among the justices' clerks appointed by the committee, in particular with a view to securing consistency in the advice given by them to justices about such matters.").
The noble Lord said: My Lords, in moving Amendment No. 186, I speak also to Amendments Nos. 187 to 189. The principal amendment is Amendment No. 188.
I shall try to avoid repetition because it was necessary for me to introduce some of the argument in response to the noble Lord, Lord Jenkin, on the previous amendment. These amendments are brought forward as a result of our debate in Committee on the respective roles of the justices' chief executive and the justices' clerk and the transfer of administrative functions of justices' clerks. A number of amendments were proposed which I might summarise as having the intention of providing confirmation of the independence of justices' clerks in the exercise of their legal and judicial functions.
In response to the representations, I agreed to consider further the concerns of those who laid amendments to what are now Clauses 59 and 60. I also agreed to bring forward further government amendments, if that proved to be appropriate. We have given further consideration to the concerns expressed about the role and independence of the justices' clerk and we have had useful meetings and correspondence with those in the magistrates' courts service. We were concerned to find a proper balance between the need to maintain independence in the provision of legal advice and the clear need for justices' clerks to be properly under the direction of the justices' chief executives in matters of administration.
We have accepted that some advice-giving on matters of law stretch beyond that of an individual case. We have also identified some further judicial functions of justices' clerks which are not covered by the existing provisions in Section 48 of the Justices of the Peace Act, 1997; that is, some judicial functions conferred upon justices' clerks directly by statute rather than by rules made in accordance with Section 144 of the Magistrates' Court Act 1980.
For both of those reasons, we accept that the description in Section 48 of the Justices of the Peace Act is no longer sufficient to describe the range of functions in respect of which the justices' clerk should be independent of direction. Consequently, new Clause

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59A introduces a revised Section 48. The reference to advice-giving in individual cases is dropped. In new Section 48(2)(a), the judicial function is more widely expressed to encompass any function which is exercisable by one or more justices of the peace. New Section 48(2)(b) describes the giving of legal advice by reference to Section 45(4) and (5).
The definitions in Section 45(4) and (5) are amended to make it clear that the functions and powers referred to concern advice on matters of law, which includes matters of legal procedure and practice. We believe that the clear link between this provision and Section 48 removes any doubt about the independence of clerks when giving legal advice, which goes beyond that given in individual cases.
Amendment No. 187 has the effect of removing subsection (3) from Clause 59. This is no longer required in the light of the amendment to Section 48 of the Justices of the Peace Act 1997. Amendment No. 186 amends Clause 59 by making an alteration to the wording of new Section 41(4) of the Justices of the Peace Act 1997. The amendment makes it clear that one of the purposes of the meetings, arranged by justices' chief executives for justices' clerks to discuss matters of law, is to promote the consistency of legal advice given by justices' clerks throughout a magistrates' court committee area.
Our debate on amendments considered at the Committee stage included amendments laid on Clause 59(6). In the light of the government amendment to Section 48, there is no need to make any change to this provision.
Finally, Amendment No. 189 makes a consequential amendment to Clause 60(5). It might be helpful if I were briefly to remind your Lordships that the purpose of the clause was to bring about the transfer of responsibility for administrative functions to the justices' chief executive. Subsection (5) of the clause attempted to provide reassurance that there was no intention to transfer responsibility for legal matters to the chief executive. The amended subsection (5) confirms, in light of the new Section 48, that for the purposes of this section. the administrative functions of justices' clerks are all those apart from those which are legal functions within the meaning of the new Section 48(2).
I apologise for the length of this speech, but the issue is important and complex. I believe it is important for your Lordships to consider this package of amendments as a whole. I hope that you are reassured that the concerns expressed by some noble Lords during Committee stage have now been comprehensively, and satisfactorily, addressed. The independence of legal advice generally, free from direction by the justices' chief executive or magistrates' courts committee, is secured. There is more clarity as to which functions are legal and a proper line is drawn between the responsibilities of chief executives and justices' clerks. I beg to move.
Lord Gisborough: My Lords, I thank the noble Lord for the great trouble he has taken to allay the concerns
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of the justices' clerks. They greatly appreciated the fact that they had an opportunity to speak to the Minister and his officials so that they could express their worries. They are completely satisfied with the amendments, which I support.
On Question, amendment agreed to.
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 187:
Page 37, line 3, leave out subsection (3).
On Question, amendment agreed to.
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 188:
After Clause 59, insert the following new clause—
INDEPENDENCE OF CLERKS AND STAFF EXERCISING LEGAL FUNCTIONS
(".—(1) For section 48 of the Justices of the Peace Act 1997 substitute—
"Independence of justices' clerks and staff exercising legal functions.
48.—(1) When exercising any legal function—

(a) a justices' clerk shall not be subject to the direction of the justices' chief executive or any other person or body; and

(b) a member of the staff of a magistrates' courts committee shall not be subject to the direction of any person or body other than a justices' clerk.

(2) In subsection (1) "legal function" means—

(a)any function exercisable by one or more justices of the peace; or

(b)a function specified in section 45(4) or (5) above."

(2) In section 45 of that Act (functions of justices' clerks)—

(a)in subsection (4) (advice on law, practice or procedure to justices at their request), for "law, practice or procedure" substitute "matters of law (including procedure and practice)", and

(b)in subsection (5) (power to bring point of law, practice or procedure to attention of justices), for "law, practice or procedure" substitute "law (including procedure and practice)".").

On Question, amendment agreed to.
Clause 60 [Transfer of administrative functions of justices' clerks]:
Lord McIntosh of Haringey Lord McIntosh of Haringey moved Amendment No. 189:
Page 37, leave out lines 26 to 31 and insert ("those which are legal functions within the meaning given by section 48(2) of the Justices of the Peace Act 1997.").
On Question, amendment agreed to.
Schedule 10 [Transitional provisions and savings]:
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendments Nos. 190 to 191:
Page 99, line 44, leave out ("directs") and insert ("specifies").
Page 100, line 12, leave out ("14(2)(a)") and insert ("14(1)").
Page 100, line 14, leave out ("direct") and insert ("specify").
On Question, amendments agreed to.
Schedule 11 [Repeals and revocations]:
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendmets Nos. 192 to 195:

page 106, line 22, at end insert—

("41 Geo. 3 c.79.

The Pubilc NotariesAct 1801.

Section 13.

6 & 7 Vict. C. 90.

The Public Notaries Act 143.

Section 6.")

page 106, line 36, at end insert—

("1985 c. 36.

The Administration of Justice Act 1985.

Section 65.")

page 107, line 8, column, 3 at end insert—

("Section 57(11)")

Page 107, line 10, column3, at end insert—

(In section 113, in subsection (1), in the definition of "general

notary", paragraph (b) and the preceding "or" and, in subsection (10) paragraph (d) and the preceding "and ".")

On Qusetion, amendments agreed to.
In the Title:
Lord Falconer of Thoroton Lord Falconer of Thoroton moved Amendment No. 196:
Line 5, leave out second ("and") and insert (" to appoint a vice-president of the Queen's Bench Division and to make provision about").
On Question, amendment agreed to.
House adjourned at twenty-nine minutes before midnight