Access to Justice Bill [H.L.]

HL Deb 19 January 1999 vol 596 cc475-572

3.7 p.m.

The Lord Chancellor (Lord Irvine of Lairg)

My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.

Moved, That the House do now resolve itself into Committee.—(The Lord Chancellor.)

On Question, Motion agreed to.

House in Committee accordingly.

[The CHAIRMAN OF COMMITTEES in the Chair.]

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

("Principles to be applied

PRINCIPLES APPLICABLE TO PART I

.—(1) Every person exercising functions in connection with this Part must act, so far as possible, in a way which is compatible with the objectives set out in subsection (2).

(2) The objectives are—

1. (a) that persons have access to legal services and the machinery of justice which they would otherwise be unable to obtain on account of their means;
2. (b) that such access be enjoyed without discrimination on any ground;
3. (c) that legal services and facilities be available such that disputes may be resolved, and proceedings determined, expeditiously, fairly and with the parties placed on an equal footing;
4. (d) that a strong, independent and self-regulating legal profession be preserved.").

The noble and learned Lord said: I hope that the amendment standing in my name will prove uncontroversial. I should declare an interest, in the rather remote sense that since retiring as a Law Lord I have become Treasurer of the Inner Temple, of which I am proud to say that the noble and learned Lord the Lord Chancellor is also a member. I mention it only because the Inner Temple is home to some 3,000 or 4,000 barristers in this country and overseas.

The object of the amendment is to make clear the underlying purposes of Part I of the Bill. It is concerned only with Part I of the Bill; we shall come to Part III later. Not every Bill needs a clause such as this proposed new clause. Members may remember that the proper function of a purpose clause in Bills was discussed at some length when the Human Rights Bill was before the House, notably by my noble and learned friend Lord Simon of Glaisdale. We need not go into any of that today. This Bill is one that cries out for a purpose clause. The Bill confers a large number of powers on various bodies. The noble Lord, Lord Kingsland, at Second Reading counted as many as 17 separate new powers in the Bill, many of which are in Part I. For example, powers are conferred on the Lord Chancellor to give directions under Clause 4. Equally important, powers are conferred on the legal services commission under Clause 7 and/or Clause 9.

The main point of purpose clauses in general is to help with the construction of the particular statute if a question should come before the courts as to the meaning of the legislation. Equally important, and more important in the present case, is that a purpose clause also serves as a guide to those who must exercise the important new powers conferred upon them by the Bill and gives the courts something to go on in case any dispute as to the exercise of those powers comes before them. That was what the noble and learned Lord the Lord Chief Justice had in mind at Second Reading when he drew attention to the need for a clear statement of certain fundamental principles on the face of the Bill. He gave the good example of Section 17 of the Courts and Legal Services Act 1990. On 14th December 1998 at col. 1126 of the Official Report the noble and learned Lord listed a number of the fundamental principles that he had in mind. He clearly regarded this as a point of considerable importance. That was echoed by a number of other noble Lords in the course of Second Reading. It is very difficult to disagree with the words of the noble and learned Lord the Lord Chief Justice on that occasion.

Since then there has been a further development in the form of the publication of the fifth report of the Select Committee on Delegated Powers and Deregulation under the chairmanship of the noble Lord, Lord Alexander of Weedon. I should like to quote one or two short passages that have direct relevance to this amendment. On page 2, having referred to the powers conferred on the legal services commission, the report goes on to state: In turn, the nature and scope of directions [under Clause 4] given by the Lord Chancellor will be crucial to the operation of the Commission and the way in which it provides access to justice. Yet the power of the Lord Chancellor to give directions is almost untrammelled. We view this with considerable concern".

At the top of page 2 the Select Committee reports: The policy objectives and national principles are not set out in the Bill, which contains no parameters or criteria for the exercise of his powers by the Lord Chancellor, but are simply left to be supplied by direction. We see the setting of objectives and priorities which will have such important consequences for citizens as a legislative act The committee goes on to refer to the Second Reading speech of the Lord Chief Justice.

Finally, in heavy print the committee states in paragraph 5: In regard to the Community Legal Service, we consider that, if significant delegated powers are to be granted under Clause 4, the Bill should be amended so as to contain (a) a clear statement of principle that the objective of the Community Legal Service is to promote and enhance the opportunities for citizens to have access to legal advice and the opportunity to resolve disputes, and (b) the criteria which the Lord Chancellor is entitled to take into account in giving directions. We believe that it is the more important to circumscribe the Lord Chancellor's powers in this way since, as the Explanatory Notes explain, the Community Legal Service Fund will 'not be an open-ended fund, as the legal aid fund is now"'. Those views are expressed in forthright language. It is difficult to disagree with the conclusions of the Select Committee. I hope that by accepting this amendment the Committee will endorse those views.

I turn briefly to the language of the proposed amendment, which I am sure can be improved. Perhaps I may explain from where the language comes. Subsection (1) is familiar language. The expression "compatible with the objectives" is the language used in the Human Rights Act, as can be seen from page 1 of the Bill. Subsection (2)(a) reflects Section 1 of the Legal Aid Act 1988. Subsection (2)(b) requires no justification. Subsection (2)(c) reflects Rule 1(1) of the new Civil Procedure Rules which will come into force in April following the Woolf reforms. Subsection (2)(d) is a direct quotation from the speech of the noble and learned Lord, Lord Bingham, at Second Reading. The Committee will note that it does not refer to the independence of the Bar but to the independence of the legal profession as a whole.

Perhaps more important than anything else that I have said in moving the amendment is that I have had the opportunity to speak to the noble and learned Lords the Lord Chief Justice and Lord Woolf, who unfortunately cannot be here today. I hope that the Committee will permit me to say that, having spoken to them, they both fully support this amendment which I hope will prove uncontroversial. I beg to move.

3.15 p.m.

Lord Rawlinson of Ewell

I welcome the amendment moved by the noble and learned Lord. In particular I welcome the fact that his amendment includes in subsection (2)(d) reference to the preservation of, a strong, independent and self-regulating legal profession". I especially welcome the fact that this Bill pays regard to the powers to be taken by the noble and learned Lord the Lord Chancellor.

Nine years ago when the House debated the Courts and Legal Services Bill, which was introduced by the then Conservative government under the leadership of the noble Baroness, Lady Thatcher, I said that nowhere except in a Marxist state could a political Minister appoint the judges and also regulate who appeared before them. This Bill is in some ways a stride along the road to giving a political Minister increased powers over the regulation of who should and should not appear before Her Majesty's judges. It also takes us further down the road towards the United States system of the administration of justice, with conditional fees and rights of audience. On a former occasion the noble and learned Lord the Lord Chancellor spoke about fat cats. He should wait to measure the circumference of these cats when all of this is accomplished. It will lead to the fattest legal cats ever seen in the United Kingdom as well as an explosion of litigation once these powers are extended.

On a more general point, I believe that the Bill places too great powers in the hands of political Ministers. Hitherto, no party political politician—that is, no member of the Cabinet, of the party political administration—has had a say in regulating who represents a subject in Her Majesty's courts. It has been left to the independent judiciary to do that. The 1990 Acts brought in by the Conservative Administration went down that road. The Bill is a giant stride further.

I believe, and have always believed, in an independent Bar, with the rights of audience of the Bar. That is what I believe in; and that is what I practised in for my 40 years in law. The noble and learned Lord the Lord Chancellor says that he has only a fall-back power in making the regulation. With respect, it is a power that I do not believe the Lord Chancellor should have. It is all the more reason that the fundamental principles should be resoundingly set out at the beginning of the Bill. The fundamental principle dearest to my heart is that of a self-regulating profession.

Lord Archer of Sandwell

I hope that the noble and learned Lord, Lord Rawlinson, will forgive me if I defer comment on some of the issues he raised to a later stage of our deliberations.

I was unable to be present for Second Reading. Had I been present I would have congratulated my noble and learned friend on seeking to implement some of the many changes which, over a long period of years, have been discussed in the Society of Labour Lawyers of which he and I are privileged to be presidents jointly with my noble friend Lord Clinton-Davis—some of them date back to the famous pamphlet Justice for all which we produced in his youth and mine. They have been argued for, too, by the legal action group. I should like to record a debt to it for mitigating some of my ignorance on the matters which we shall be discussing.

It is no part of my intention to impede the passage of the Bill. I seek to intervene for three reasons: first, to support the amendment of the noble and learned Lord, Lord Lloyd of Berwick, for the reasons which he so cogently gave and which would not benefit from any repetition by me; secondly, to elaborate a little on one of the matters which he raised; and, thirdly, to refer to my Amendment No. 41 which is grouped with the noble and learned Lord's amendment. It may be possible to spare the Committee a certain amount of time at a later stage in our debate.

Perhaps I may say a word about the legal services aspect of the Bill although I appreciate that we shall debate it in greater detail later. I accept the necessity for a system of funding which is no longer open ended, as I think probably most of us do. But all that will entail some hard decisions. As the Bill recognises, it will mean deciding on priorities, and that entails according a priority to one purpose by relegating another possibly very worthy purpose further down the list. Those are matters which we shall discuss later.

What we are now discussing is how those difficult decisions—and they are difficult—will be taken. Clearly my noble and learned friend must have an important role in that process on behalf of the Government. It is they who have the responsibility for funding the services of which we are talking, not from their own pockets but from the resources for which they must ask the public. There will be voices enough asking for extra expenditure on particular objects. I have little doubt that mine will be among them. No one would deny, too, my noble and learned friend the right to require that the equations should balance. But for that very reason it is important to ensure that the directions which my noble and learned friend is empowered to give shall not accord undue weight to the need for economy. That was another matter pointed out by the committee on delegated legislation on which I am privileged to serve.

Something may turn on the nature of the directions which my noble and learned friend is proposing to give. If they are purely of an administrative nature, some of the anxiety disappears. But the powers which the Bill confers are in terms much wider than that. Some future Lord Chancellor may have a different intention. I do not suggest that any future Lord Chancellor will be malicious. But if we could be certain that every future Lord Chancellor will be as fair, well intentioned and open to argument as my noble and learned friend, we would still be granting a very wide power on the face of the Bill.

What we are balancing against the necessity for economy is the requirement of justice; the right of the citizen to the redress of grievances—sometimes redress of grievances against the Government themselves—and that cannot be a matter within the unfettered discretion of the Executive if only because, among other things, it relates to the right of the citizen to challenge the Executive.

What the Bill now proposes is that my noble and learned friend shall direct the commission unconditionally on how to discharge its functions; to require it to do so in one way rather than another; and to do so without reference to Parliament. The Delegated Powers and Deregulation Committee—and I should like to echo the tribute to our chairman, the noble Lord, Lord Alexander—discussed this matter and described the powers as almost untrammelled. I think that the noble and learned Lord, Lord Lloyd, referred to it.

It is not an issue about how best to provide legal services but a constitutional issue. On Second Reading, the noble and learned Lord, Lord Mackay of Clashfern, spoke of the need to set out the criteria on the face of the Bill. As the noble and learned Lord, Lord Lloyd, pointed out, the noble and learned Lord the Lord Chief Justice also echoed the need for that statement.

There was indeed a time when we were all reluctant to see general statements in primary legislation because we thought that they were not part of the enacting words. Since then, I believe that two factors have changed. First, governments of all political complexions are proposing Bills which make much greater use of delegated powers, and we need some indication of what Parliament intended to be the purpose of delegating the power. Secondly, the courts are more robust in the use of judicial review to ensure that the powers are used for the purposes for which they are granted. It is not an issue about how best to make provision in the Bill. So the Delegated Powers and Deregulation Committee suggested two safeguards. One relates to parliamentary control, and that will be the subject of later debate. The other safeguard was to have a statement of principle on the face of the Bill to serve as a criterion against the necessity of, or the justification for, the directions which my noble and learned friend gives. For that reason, too, I strongly support the noble and learned Lord's amendment.

I set down Amendment No. 41 to deal with the directions which, on the present face of the Bill, we are according to my noble and learned friend in relation to legal services. I do not think that we require that and the amendment which the noble and learned Lord suggested. For that reason we may be able to spare the Committee the time which would otherwise be taken in debating Amendment No. 41 and a series of consequential amendments at a later stage. But that will depend upon the fate of this debate.

3.30 p.m.

Lord Goodhart

I support the amendment tabled by the noble and learned Lord, Lord Lloyd of Berwick, to which I have put my name. It is the first of a group of amendments which are designed to introduce a purpose clause. There was a purpose clause in the Legal Aid Act 1988 which is being removed and replaced by the Bill. The 1988 Act stated: The purpose of this Act is to establish a framework for the provision … of advice, assistance and representation which is publicly funded with a view to helping persons who might otherwise be unable to obtain advice, assistance or representation on account of their means". That is perhaps a clumsy way of expressing the purpose, but it is clear, and I believe that it was right to do so. I very much regret that we do not have an equivalent clause in the present Bill. It does not mean that there has to be such a clause in the Bill, but I strongly believe that there should be.

Part 1, to which the new clause refers, relates to access to justice through public funding. Where the issues are important to people, where they concern their right to housing, a livelihood and the welfare of their children they should not be excluded from access to justice by their poverty.

We accept that there must be priorities. There will never be enough money to provide everyone with access to justice for all the proceedings which they might reasonably wish to take. Therefore, there must be priority as to the types of cases which will receive public funding and there must be a merits test for the applicants for funding. But the new clause creates objectives, not obligations. What needs to be stated at the outset is the reason for providing the funding. It is inevitable that there will be limits on funding. Those limits and the consequences of them are stated elsewhere in the Bill, but where in the Bill do the objectives appear? As regards the community legal service, they appear, if anywhere, in Clause 5(1), but as a statement of objectives it is plainly inadequate. It states that: The Commission shall establish, maintain and develop a service known as the Community Legal Service with a view to there being available to members of the public consisting of", and then there is a summary which consists of information, advice, help in the resolution of disputes and help in enforcing decisions. There is no reference to the purpose for which services are to be provided. There is no reference to the fundamental principle of equality of arms which lies at the back of the whole concept of legal aid.

Criminal defence service provisions contain a purpose clause in Clause 12(1), which is a good deal more satisfactory. However, we believe that there should be an overarching purpose clause at the beginning of this part of the Bill. The proposed new clause in the amendment moved by the noble and learned Lord, Lord Lloyd of Berwick, is a good one. To what can one object in the amendment? Does one object to the fact that persons are to have access to legal services and the machinery of justice which they would otherwise be unable to obtain on account of their means? No, of course not. Can one contest that such access should be enjoyed without discrimination on any ground? No, of course not. Can one object to the proposal that legal services and facilities be available such that disputes may be resolved and proceedings determined expeditiously, fairly and with the parties placed on an equal footing? No, of course not. Finally, can one object to the proposal that a strong, independent and self-regulating legal profession should be preserved? Anyone concerned with the constitutional future of this country would surely say, "No, of course not".

I do not suggest that the wording of the new clause is sacrosanct, but Part I of the Bill should begin by explaining the purpose of that part. That was the view of the Delegated Powers and Deregulation Committee, of which I have the fortune to be a member and whose membership includes three distinguished Members of your Lordships' House, including the noble and learned Lord, Lord Archer of Sandwell, who takes the Labour Whip. I believe that on this issue the Select Committee is right and I therefore warmly support the amendment which has been moved by the noble and learned Lord and invite the Committee to support it, too.

Lord Clinton-Davis

I support the amendment. In so doing, I recognise the need for flexibility which my noble and learned friend the Lord Chancellor pointed out on Second Reading. Of course, that is essential. I support the overall purposes of the Bill and I agree with the comments of my noble and learned friend Lord Archer of Sandwell. However, I believe that the comments made by the Delegated Powers and Deregulation Committee are very important indeed. Moreover, I cannot see how they are inconsistent or incompatible with the principles outlined by my noble and learned friend the Lord Chancellor in his Second Reading speech. I believe that they reinforce those principles, but they need to be set out on the face of the Bill.

It is worth noting that, naturally enough, in the White Paper my noble and learned friend sought to outline the objectives underlying the Bill. Why, then, should they not be set out in brief form on the face of the Bill, as the amendment seeks? I hope that my noble and learned friend does not have on his brief the word "Resist", or that if he does it is not too heavily underlined. If it does exist, I hope that he will exercise the discretion, which is so characteristic in him, of ignoring it.

It is extremely important that notable people such as the Lord Chief Justice and others to whom reference has been made are seriously concerned that the objectives should be stated. I believe that, too. Such a measure will be of benefit to the Government because it will help to maximise as much as possible support for the underlying purposes of the Bill among consumers and those in the legal profession who are to some degree exercised about it. It will help to demonstrate the Government's bona fides in this respect and therefore it is to be welcomed.

I am sure that my noble and learned friend will seek to answer the points which were made by the Select Committee. They are important and those arguments have to be fully respected. I hope that he will be flexible in considering the amendment, as he is in seeking the extensive powers which he believes are necessary for the good administration of the Bill when it becomes law.

Lord Ackner

I support the amendment, particularly as it reflects what my noble and learned friend the Lord Chief Justice described as fundamental principles which should be on the face of the Bill. However, there is one fundamental principle to which he referred on Second Reading which is not to be found in the new clause and I respectfully asked that it should be considered for inclusion. The fundamental principle reads: that rights of audience should be exercised only by those who possess the required knowledge, skill and integrity, and who are subject to a common code of conduct and discipline".—[Official Report, 14/12/98; col. 1126.] It is most important that the quality of advocacy upon which judges rely to such a high degree does not run the risk of being significantly devalued by the root and branch proposals found in the Bill.

Lord Kingsland

The noble and learned Lord the Lord Chancellor will have recognised that support for this amendment has come from all parts of your Lordships' House. The arguments from both noble Lords and noble and learned Lords have been cogently expressed and, I think now, well rehearsed.

The crucial change which this Bill makes is that individuals who hitherto were entitled to legal aid, if they fulfilled certain requirements, will now obtain it only according to a discretion exercised by the legal services commission. The terms upon which that discretion will be exercised will be established by directions from the noble and learned Lord the Lord Chancellor.

At the moment there is in this Bill nothing to constrain those directions. A purpose clause along the lines suggested by the noble and learned Lord, Lord Lloyd of Berwick, would change that. In my submission, it is therefore crucial that this Committee should support the amendment.

Baroness Scotland of Asthal

I rise to join the many voices in this Committee which have welcomed the amendment. My noble and learned friend the Lord Chancellor has a long and well established reputation for giving just and proper consideration to informed debate. We have certainly had a taste of that today.

I am confident that the Government will reflect upon what has been said in that regard by a number of Members of the Committee. Change always generates anxieties, and clarity of understanding of the basis for such change is of considerable importance. The issues raised in the amendment are at one with the ethos of this Bill, based as it is upon the need for fairness and just and equal access to justice. The preservation of a strong and independent legal profession is an essential part of the means by which such a fair system of justice can be preserved.

I hope that the Government will give good and due consideration to this amendment, which has received such wholehearted support from so many who are totally committed to the Bill and to the purpose which it is trying to achieve.

3.45 p.m.

The Lord Chancellor

With Amendment No.1 are grouped Amendments Nos. 2, 41, 197 and 203. If it is for the convenience of the Committee, I shall speak to all those amendments and to the general issues to which they give rise.

The amendments all aim to establish principles which would apply to Part I and so set down in statute the objectives for the community legal service and the criminal defence service, or for the community legal service alone in the case of the amendment tabled by my noble and learned friend Lord Archer of Sandwell.

The establishment of principles was one of the main recommendations of the fifth report of the Select Committee on Delegated Powers and Deregulation. I shall say a few words about that committee's report as well as addressing the amendments which this Committee is now considering.

At the outset of our detailed discussions on the Bill, it is important for me to inform the Committee of the position of principle which the Government intend to adopt. I welcome the Select Committee's report. I support the values which it reflects. In particular, I support the principle underlying the committee's recommendations that powers, if I may express myself generally, of an administrative character do not require parliamentary scrutiny. But those which deal with matters of principle and substance and which are of a major legislative character should be subject to parliamentary procedures appropriate to their importance. Therefore, I have examined carefully the report's recommendations.

The first recommendation of the Select Committee concerns Clause 4. The recommendation is that, the Bill should be amended so as to contain (a) a clear statement of principle that the objective of the Community Legal Service is to promote and enhance the opportunities for citizens to have access to legal advice and the opportunity to resolve disputes, and (b) the criteria which the Lord Chancellor is entitled to take into account in giving directions". I welcome that proposal and have decided that it would be appropriate to include a statement of the purpose of the community legal service on the face of the Bill.

We are also considering whether more should be added to the purpose of the criminal defence service, set out in Clause 12(1), and whether it would also be helpful to adopt a similar approach by setting out the purpose of the clauses covering rights of audience and rights to conduct litigation. It follows that I am sympathetic to the broad purpose of the amendments now before us.

Perhaps I may chide gently by saying that these amendments were tabled extremely recently. I need time to consider how those ideas may be best expressed and fitted into the structure of the Bill and what other criteria relevant to the operation of the two schemes in Part I should be reflected in that context. Unsurprisingly, I do not accept the precise formulations which are now before the Committee.

I give some illustrations. I cannot accept that access to legal services should be enjoyed without any discrimination if that were to preclude, for example, distinctions based on the comparative strengths of cases. But of course I can readily accept the principle that access should be enjoyed without discrimination on, for example, grounds of race, gender or disability.

Similarly, it may be that my noble and learned friend Lord Archer of Sandwell did not intend his amendment to bear this meaning. However, the amendment is not acceptable as it stands because subsection (1)(b), to my mind, has a tendency to imply that the community legal service should in every case compel the individual concerned to attempt alternative dispute resolution prior to court or tribunal proceedings; only if that fails could he take his dispute to a court or tribunal. That would not be a step which we should wish to take. The Government are seeking to improve the options available to people for resolving disputes without having to take them to court.

Lord Archer of Sandwell

Perhaps my noble and learned friend will give way. I am grateful to him. That subsection was taken from a suggestion by the noble and learned Lord the Lord Chief Justice, but I accept that my paraphrasing of it leaves something to be desired. I certainly should not wish to press it at this stage.

The Lord Chancellor

I am very grateful. In the form in which it appears in the amendment tabled by my noble and learned friend, it has a tendency to bear that meaning.

Also, I must be frank with the Committee. I doubt whether the proposed subsection (2)(d) of the amendment in the name of the noble and learned Lord, Lord Lloyd of Berwick, which would make one of the principles governing the community legal service and the criminal defence service the preservation of a strong, independent and self-regulating legal profession, would find favour as an objective of this Bill, however worthy those ambitions are. I certainly strongly support an independent legal profession.

Resources for the community legal service will always be limited and it is my ambition that they should be used to maximise access to justice. If the legal services commission and the Lord Chancellor were constrained to consider whether any proposals will maintain the current strength of the legal profession, which I take to mean its size and income, we should not be able to develop new services which do not depend on the existing profession. I must say on the Government's behalf that it is not their purpose to guarantee or promote any particular size or economic structures for the legal profession.

That said, however, I intend to bring forward further amendments on Report to define statements of purpose for the CLS and the CDS for your Lordships' consideration. On that basis, I ask the noble Lords and the noble and learned Lord in whose name the amendment stands to withdraw it.

However, it may be for the assistance of the Committee if I do riot stop there but go further to make clear the Government's principled position on those central issues so that that can inform the rest of our discussions in Committee.

The Select Committee made other recommendations about Clause 4 directions and Clause 9, which covers the funding code for the community legal service. Clause 4 gives me the power to give directions to the legal services commission about the exercise of its functions. That power could be used in a number of ways, some of which are elaborated in other clauses. I believe on reflection that it would be helpful to set out on the face of the Bill the kinds of direction that we have in mind and that, where appropriate, they should be made by order, subject to parliamentary approval.

Noble Lords

Hear, hear.

The Lord Chancellor

I accept that some intended uses of the power to make directions are sufficiently important to be subject to a requirement for affirmative resolution—for example, directions under Clause 9(2)(h). Those enable me to establish new factors to which the legal services commission must have regard in setting the criteria in the funding code. My noble and learned friend Lord Archer of Sandwell recognised that I would also use that direction-making power for administrative or operational matters such as the form of accounts. As the delegated powers committee itself recognised, that type of direction does not require any form of parliamentary procedure. I intend on Report to bring forward detailed proposals clearly distinguishing the future uses of that power and providing for approval procedures with which I hope your Lordships can agree.

As to the funding code, the Select Committee recommends that it be laid before Parliament in draft and brought into force by an order subject to affirmative procedure. The Bill already provides that the code should be laid before the House but I am sympathetic to the Committee's view that the code is sufficiently significant to be subject to affirmative procedure. The Legal Aid Board has brought out a consultation document on the content of the code, which will provide ample opportunities for your Lordships and those outside to consider its substance. Noble Lords who have studied the code will have observed that it will be a complex and lengthy document and one that will, I am sure, have to be amended—perhaps quite often, in its early days. While I accept that certainly the first draft should be affirmed by affirmative procedure, I wish to consider carefully how we can achieve proper scrutiny of those parts of the code that are significant without wasting the time of the House on those parts that are not significant. Again, I shall bring forward proposals on Report.

The Select Committee said that Parliament would wish to be confident that the Bill will ensure that the right under Article 6(3)(c) of the European Convention on Human Rights will be guaranteed. That is the right of a person charged with a criminal offence who does not have sufficient means to pay for legal assistance to be given it free in the interests of justice, where so required. That right is already guaranteed by the Legal Aid Act 1988. All the powers governing the criminal defence service will be constrained by that article. I do not believe that a specific criterion to guarantee the convention rights is necessary or appropriate but I will seek to ensure that the substance of those convention rights is reflected in the statutory statement of purpose for the criminal defence service that I will bring forward.

The Select Committee recommends also that the powers under Schedule 5(17) and (24), which are concerned with the alteration of regulations and rules by order, should be circumscribed—allowing minor intervention if and only if I am of the opinion that the regulations of the profession unreasonably restrict rights of audience or rights to conduct litigation. I am content to accept that recommendation in principle and note that my noble and learned friend, Lord Archer of Sandwell, already has an amendment down on those lines. When we consider Schedule 5, I intend to indicate the Government's view on the precise form of words.

The noble and learned Lord, Lord Lloyd of Berwick, drew attention to the Select Committee's recommendation that the legislation should specifically include the principle enunciated by the Lord Chief Justice that a strong, independent and self-regulating legal profession should be preserved. I believe profoundly in the necessity to maintain a strong and independent legal profession that is self-regulating, which is precisely why the Government have included Clause 36—to establish the principle that all advocates and litigators should be independent in the exercise of their professional duties. The spirit of that principle is therefore already met. Nonetheless, I am looking again at Clause 36 to see whether it could be strengthened to emphasise the principle of independence. I am also considering the constructive proposal of the noble and learned Lord, Lord Ackner, on lawyers in the criminal defence service.

On a point of detail, the Select Committee suggested that the powers in Schedule 5(17) should be amended, so that directions will be subject to affirmative procedure. Directions under Schedule 5(24), which is the important provision in Part III, are in fact subject to affirmative procedure. Schedule 6(11)(2) makes that clear.

I accept also the Select Committee's recommendation that Schedule 3(6)(3), under which I may add to or vary any of the factors relevant to the interests of justice test in the context of criminal legal aid, and the powers in Clauses 68 and 72 concerning immunity from costs for certain officers should be subject to affirmative resolution.

I hope that your Lordships forgive me for speaking to the first group of amendments at such length at the outset of our deliberations in Committee, but I do so to demonstrate the spirit in which the Government approach and will continue to approach the issues in the Bill. In almost 12 years in the House, I have spent too long—from one point of view, the noble and learned Lord, Lord Kingsland, may not agree—listening from the Benches opposite to government spokesmen who were obdurately insistent on adhering to their briefs and were unwilling to accept manifest improvements to Bills under consideration. That approach is destructive of the raison d'être of a revising Chamber. I hope that I have said enough to satisfy your Lordships that that is and will be the opposite of my approach, as I intend to demonstrate to your Lordships as we proceed through the Committee stage. On that basis, I invite the noble Lords in whose names the first group of amendments stand to withdraw them.

Lord Renton

The Lord Chancellor did not have to apologise for the length of his speech, but I much regret, as I am sure do other noble and learned Lords, that the fundamental amendments that the Lord Chancellor has indicated he proposes will not be tabled until Report stage. We are here dealing with the essential principles on which the Bill is based—and to reach conclusions in Committee without knowing clearly and in considerable detail what those amendments will be is a great handicap. It may well be that the amendments that the noble and learned Lord would have tabled for Committee stage would have been dealt with today, but there are many which would be tabled on a later occasion. Will he therefore consider tabling as many as possible of the amendments he proposes to table at Report stage in time to bring them into Committee stage?

4 p.m.

Viscount Bledisloe

While listening to the noble and learned Lord I was moved in exactly the same direction as the noble Lord, Lord Renton. I am sure the Committee welcomes the almost "Pauline" conversion of the noble and learned Lord both to the principle that the Bill should express its purpose and to the need for affirmative resolutions. However, it will be extremely difficult for the Committee to proceed to consider detailed amendments until we know what form they will take.

I am sure that in the days when the noble and learned Lord was at the Bar conducting litigation, if counsel on the other side had stood up at an early stage of the proceedings and announced an intention to make at some later stage amendments of such a radical nature as he outlined to us, he would immediately have been up on his feet saying that in that case the entire matter had to be adjourned until those amendments had been formulated. It is virtually impossible to consider detailed amendments until we see them. Therefore should not the noble and learned Lord postpone the remainder of the Committee stage until they have been formulated?

Lord Goodhart

I warmly welcome the concessions made by the Lord Chancellor which do a great deal to remove the objectionable parts of the Bill. But timing is important. I certainly would not support a proposal that the Committee stage be adjourned or delayed for that purpose. It would be immensely helpful if the amendments could be circulated and made available well before Report stage, first, so that we have a proper opportunity to consider them and, secondly, if any noble Lord wishes to table amendments to the proposed new amendments, those can be dealt with at Report stage and will not need to be held over to Third Reading, which would be extremely inconvenient.

The Lord Chancellor

I cannot win! The Committee must bear in mind that we are discussing purpose or scrutiny clauses. While I indicated that I was not minded to chide too strongly, perhaps I may say that of the large number of amendments of substance with which we will be dealing in this Committee stage, a large number were tabled for the first time on Wednesday and Thursday and printed on Thursday and Friday. They had to be dealt with therefore over the weekend. A whole raft of amendments—around 150—were tabled on Friday. They were not printed until Monday and we are dealing with them today. Furthermore, 50 were tabled yesterday, were only printed today and we are dealing with them now. That is no way for a revising Chamber to be treated by those who table amendments.

In relation to these purpose and scrutiny clauses, I shall certainly publish them as soon as I possibly can—I hope before Report stage. But I would be surprised if I were unable to give more notice of them than we were given of any of the amendments that we will be considering today.

Lord Clinton-Davis

My noble friend has been extremely generous in his response to this debate. I do not for one moment imagine that the noble Lord, Lord Renton, intended to be churlish about it, but that is how it appeared. I welcome the point made by the noble Lord, Lord Goodhart, and I am sure that my noble and learned friend will do his best to accommodate it. However, the important thing is to get it right.

There are subsequent stages at which we can consider the amendments my noble and learned friend proposes to table. If he is in a position at some time before Report stage to indicate what are his intentions, I am sure that he will do that. My overriding point is that it is extremely important to get the wording right. As has been recognised by the delegated powers legislation committee, if we were to make a mess of it, that would be the worst of all worlds.

Lord Campbell of Alloway

As the noble and learned Lord said, if these amendments are tabled substantially before Report stage, then assuredly justice can be done.

Lord Peyton of Yeovil

I feel slightly puzzled. I would be the last to say to the noble and learned Lord that I did not appreciate his effort to reach some measure of agreement and acceptability throughout the Chamber. However, I can recall on a number of occasions the volume of indignation which came from this side of the Chamber when government Bills had hardly been launched into Second Reading and were immediately deluged with government amendments. When noble Lords opposite were in opposition they were extremely cross about that, with some reason.

Lord Archer of Sandwell

Perhaps the noble Lord will forgive my intervention. We all listen with great respect to the noble Lord because he has had long experience here. However, is not there a distinction between amendments tabled by the Government in response to amendments tabled by other Members and amendments tabled by the Government because they had not thought the matter through and had had second thoughts? That is what was happening in the last Parliament.

Lord Peyton of Yeovil

The noble and learned Lord has great experience in these matters. He says that the Government had not thought it through. Perhaps one could say, "You too have not thought it through".

Here we have an important constitutional Bill which makes a great many far reaching changes. I must say that I was surprised by the immediate and generous response of the noble and learned Lord, but I wonder rather modestly why those responses to proposals which caused enormous unrest were not thought of before. We may say they are new, but judges delivered their opinions, the Bar Council delivered its opinions and still the Bill came.

In the Bill the noble and learned Lord is demanding a large number of powers. He cannot have thought that they would not be subject to objection. That is why I am on my feet—to say that I am genuinely surprised at the speed at which the noble and learned Lord met the objections launched to the Bill. It has not so far been the habit of this Administration to listen to their critics or their Cabinet.

Lord Ampthill

Should not therefore we be extremely grateful that the Lord Chancellor—I speak as a member of the Select Committee to whom he has been extremely kind and taken due note of virtually everything we said—proposes to do something about the objections? How he can do that before Report stage I fail to see. If we want a new purpose clause, as the noble Lord proposes in Amendment No. 1, we cannot go backwards at Committee stage. Therefore the whole Committee should be extremely grateful for the marvellous reception which the noble and learned Lord gave to the recommendations of the Select Committee and be thankful that note has been taken thereof.

Lord Lucas of Chilworth

Perhaps I can offer a suggestion following upon my noble friend Lord Renton's remarks. Notwithstanding the generosity of the noble and learned Lord, if Members of the Committee are concerned that they will not have an opportunity to discuss in full any amendments that he may put to your Lordships' House on Report because of the procedures that we adopt, would there not be an opportunity to have the clauses which may be affected re-committed to a Committee of the whole House?

Lord Lloyd of Berwick

My Lords, I am grateful to the noble and learned Lord the Lord Chancellor for his very full reply to the amendment standing in my name, especially the observations he made on the wider aspects of the Bill which will prove to be the great issues at later stages of the Bill. He has gone a long way towards meeting the points that were in the minds of those proposing the amendment. We look forward to his fresh proposals as soon as they are available. I hope that that is a neutral way of expressing our view. Obviously, the sooner we have the proposals the better.

The amendment has served the purpose for which it was tabled. It has had support from all sides of the Committee. In the circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 2 not moved.]

4.15 p.m.

Lord Simon of Glaisdale moved Amendment No. 3.

Page 1, leave out lines 18 to 20.

The noble and learned Lord said: In moving the first of a series of amendments, I apologise to your Lordships and particularly to my noble and learned friend the Lord Chancellor that the amendments are starred. However, I do not believe that that will cause difficulty because they are almost entirely probing amendments.

The amendments fall into two classes. The first explores the legislative powers that the executive is claiming and arrogating. The amendment goes beyond the matters referred to by the Select Committee. The fact that it has taken the report of the Select Committee to make the Government face what one would think are elementary constitutional principles is a little alarming. In that regard, I echo what has been said by other noble Lords.

The other amendments check the necessity for a number of provisions in the Bill. Even by present standards this is a very prolix Bill. It must not be thought that I blame the parliamentary draftsmen who are generally fine lawyers and people of great skill. They are working under very great pressure. Members of the Committee will remember that Bernard Shaw once apologised for writing a long letter because he did not have time to write a short one. Any draftsman in your Lordships' House-I see a number of eminent draftsmen-will know that it is much easier to draft loosely and discursively rather than economically. So your Lordships are fully entitled to satisfy yourselves that the provisions in the Bill are really necessary. I hope that I shall cover ground that my noble and learned friend the Lord Chancellor will undoubtedly have had under review generally.

Amendment No. 3 is to leave out lines 18 to 20 on page 1. The Bill states: The Commission shall consist of—

1. (a) not fewer than seven members, and
2. (b) not more than twelve members;"

The words I question are: but the Lord Chancellor may by order substitute for either or both of the numbers for the time being specified … such other number or numbers as he thinks appropriate". In other words, he does not regard himself as being bound by the statute. That is the power that is taken.

The wording may be less innocuous than it appears to be at first sight. The Lord Chancellor has enormous patronage. I drew attention to the extent of it in the last Parliament. My noble and learned friend Lord Mackay of Clashfern may remember. There are pages and pages of appointments which lie within the gift of the Lord Chancellor. In my respectful submission, we ought to scrutinise carefully a power to appoint more. I can guess why the Lord Chancellor would wish to have that power. At the moment I cannot even guess why he would want to adopt the minimum figure.

When the Lord Chancellor proceeds by order it is the negative procedure. As Members of the Committee know well, an order subject to the negative procedure, more often than not, is not reached in the other place and is dealt with perfunctorily in your Lordships' House. So I suggest, as this is the first of the matters on which the Government claim to legislate by statutory instrument, it should be closely scrutinised. I beg to move.

Lord Kingsland

I rise to speak to Amendment No. 4, which is in the same grouping. The amendment has the same purpose as Amendment No. 3, which is to probe.

In what circumstances does the noble and learned Lord the Lord Chancellor believe he would wish to increase the number of members of the commission from 12? I am not suggesting for a moment that the noble and learned Lord would, in any circumstances, wish to increase the number of members because the decisions they were making were unattractive to him, but I suppose it is possible to envisage an unattractive future and to imagine that some future Lord Chancellor might wish to use the power for that purpose. In those circumstances, it seems to me that the exercise of such a power should at least be subject to positive affirmation by this Chamber.

Perhaps I may make one more general point. Recent experience of the previous government has shown the relationship between government departments and so-called "independent agencies" can be an unhappy one. I refer particularly to the relationship between the Home Office and the Prison Service in its initial stages. The noble and learned Lord is establishing an independent agency to manage the provision of legal services. On the face of it, the agency will be independent with a mind independent of the Lord Chancellor's Department. In my submission, it is important that the basis of that relationship should be clearly set out on the face of the Bill.

The Lord Chancellor

Clause 1(3) provides that: The Commission shall consist of—

1. (a) not fewer than seven members, and—
2. (b) not more than twelve members;"

but states that I may, by order, alter those numbers. Amendment No. 3 is designed to take away altogether my power to vary the minimum or the maximum number of commission members—

Lord Simon of Glaisdale

If my noble and learned friend will allow me, I should point out that that is not quite what the provision does. Indeed, my noble and learned friend would still have the opportunity to do whatever he wanted by primary legislation.

The Lord Chancellor

If my noble and learned friend had allowed me to conclude the sentence, I would have continued to say that, if the three lines 18 to 20 were taken out of the clause, my power under the Bill to vary the minimum or the maximum number of commission members would be removed. Of course, without those lines I could act under subsection (4), which provides that the members of the commission, shall be appointed by the Lord Chancellor", and thereby appoint just as many as I chose. The purpose of the words of limitation is to indicate that in my broad view something between seven or 12 members is right.

The noble Lord, Lord Kingsland, asked in what circumstances I would wish to increase the number above 12. The answer is that if I, or any successor, thought that greater expertise were required than that provided by 12, the number could be increased. However, if it were thought that having 12 members was over-burdening the commission and that fewer would suffice, there would be a discretion to reduce the number.

We can all become very excited about secondary legislation, but in my respectful submission we must retain a sense of proportion. The provision gives your Lordships the best estimate of what we think the parameters of size should be. We do not want to have to come back and seek primary legislation to change what is essentially an administrative matter.

I turn now to Amendment No. 4 in the name of the noble Lord, Lord Kingsland. In my view the order contemplated under the amendment is of an administrative character and should only be subject to the negative resolution procedure. If I were to do something absolutely bizarre like reducing the number of members to one, the negative resolution powers would be quite sufficient. There is nothing of a serious nature in these provisions to cavil at. I invite the noble and learned Lord not to press his amendment.

Lord Simon of Glaisdale

I am grateful to my noble and learned friend for his explanation. He has taken a very wide bracket here. The reason I thought he would give is rather better than the one he did give; namely, that he might change his mind and want a different maximum or a different minimum. He did not explain at all why a different minimum might be desirable. He addressed himself purely to the question posed by the noble Lord, Lord Kingsland, regarding why he should want more. He answer was, "I may change my mind in the light of experience." That is simply not good enough.

We are a parliamentary democracy. A few years ago we were celebrating the tricentenary of the Glorious Revolution. Our parliamentary system has been battered on several occasions. Members of the Committee will wish to stand up for it and will not want to see it gradually eroded by a power-hungry executive arrogating to itself more and more powers. This will not be the last Bill where we shall have to take notice of that matter; nor is this the last amendment.

In the meantime, as I do not press amendments to a Division in Committee hut, if necessary, table them on Report, I beg leave to withdraw the amendment without conceding that my noble and learned friend satisfied me.

Amendment, by leave, withdrawn.

[Amendment No. 4 not moved.]

Lord Clinton-Davis moved Amendment No. 5:

Page 2, line 3, at end insert— ("( ) Prior to making any appointment under subsection (4), the Lord Chancellor shall consult professional bodies and representatives of consumer interests.").

The noble Lord said: This is a condition precedent, so to speak, to the actual appointment of the members of the commission. The subsequent amendments in the group go into the detail of the membership. It is purely a probing amendment in order to examine the Government's thinking about the process prior to the actual appointments. The amendment calls for professional bodies and representatives of consumer interests to be consulted. I should not have thought that that would need to go on the face of the Bill. I wish simply to ascertain from my noble and learned friend what he has in mind when going about this particular job. I beg to move.

Lord Kingsland

I believe that we are now dealing also with Amendments Nos. 6, 7 and 8 to which I have attached my name. The noble Lord, Lord Clinton-Davis, has dealt most admirably with Amendment No. 5, so perhaps I may now speak to Amendments Nos. 6, 7 and 8. The intention of these amendments is to ensure that among those represented on the commission there should be included at least one practising barrister and one practising solicitor. Indeed, in Amendment No. 7 I have suggested that two practising solicitors should be included as I believe that that is what the existing law requires. In circumstances where the solicitors' profession is at the forefront of dealing, at least initially, with those who are seeking legal aid, it seems to me to be strongly arguable and only right that they should be more fully represented than the Bar.

4.30 p.m.

Lord Borrie

Why is it that the mover of this amendment thinks that this provision is necessary bearing in mind that Clause 1(5) already states that persons who may be appointed to the commission will include, persons with experience in or knowledge of … the work of the courts"? Surely barristers and solicitors have experience of the work of the courts? If they do not, they may be inappropriate people to be appointed to the commission. I should have thought that matter was already covered.

Lord Goodhart

I rise briefly to support the amendments in this group, to two of which I have put my name. It is perhaps difficult to imagine that the noble and learned Lord the Lord Chancellor or any of his successors would appoint a legal services commission on which there was not a member of the Bar or a solicitor. However, it is clearly important that interests on all sides be represented. In a commission of seven members—it is even more important in a commission of 12—it is clearly appropriate to have at least two working representatives of the legal profession who should cover both branches of that profession. If a commission of 12 members was appointed, it may be appropriate to appoint two solicitors to it. Be that as it may, I support this amendment. I ask the noble and learned Lord the Lord Chancellor to accept it or at least to indicate that it is his intention to comply with the spirit of the amendment in making those appointments.

Lord Hacking

I oppose these amendments, particularly Amendments Nos. 6 and 7. I do so on two grounds. First, I believe they are unnecessary. That point has already been made by my noble friend Lord Borrie. Secondly, and more importantly, I believe them to be undesirable. The Committee will see plainly that Clause 1(5) identifies the experience and knowledge which members of the legal services commission should have. If I may say so, it is put rather more succinctly than in the Courts and Legal Services Act, although I would include—I believe that the noble Baronesses, Lady Wilcox and Lady Linklater, will speak to an amendment on consumer affairs—in the criteria knowledge and experience of consumer affairs. Having said that, the amendment seems to me unnecessary as it is expressly stated in Clause 1(5) that in appointing members to the commission the noble and learned Lord the Lord Chancellor, shall have regard to the desirability of securing that the Commission includes persons with experience in or knowledge of the provision of legal services, the work of the courts and so on.

As I said, my second reason for opposing these amendments is that I believe them to be undesirable. I believe it is of paramount importance that members of the legal services commission should act as members of that commission and not as representatives of solicitors, barristers, the judiciary or any other body. We have experience of this matter. Like my noble and learned friend the Lord Chancellor and the noble and learned Lord, Lord Mackay of Clashfern, I participated fully in the Courts and Legal Services Act 1990. My noble and learned friend Lord Mackay—if I may still call him my noble and learned friend—may correct me, but it is my recollection that when he originally put forward the proposal for the advisory committee he was looking for a rather smaller committee than one comprising 17 members, which was the number which comprised the advisory committee.

During the passage of that Bill there was much pressure for representatives—I have to put it that way—to be appointed to that advisory committee. With the exception of the Lord of Appeal or the Judge of the Supreme Court who were to chair that advisory committee, we ended up with a judge, two practising barristers, two practising solicitors, two law teachers and so forth. I have not been privy to the detailed workings of the advisory committee but certainly one has the impression from the length of its deliberations that the solicitor or barrister members of that committee felt that they represented the interests of the Bar, solicitors and so on. I believe that that devalued the efficiency of that committee. Therefore it is strongly desirable that we do not have representatives of the Bar and solicitors on this commission. Members should be appointed to serve the commission and nothing else.

On the question of numbers—

Lord Goodhart

Does the noble Lord accept that it is not proposed in these amendments that the member of the Bar or the solicitor who are appointed should be representatives or have any trade union capacity? It is simply a matter of having someone on the commission who is a practising barrister and someone who is a practising solicitor.

Lord Hacking

It is highly likely that that will happen. However, as regards the advisory committee, practising solicitors were to be appointed after consultation with the Bar Council and after consultation with the Law Society. Therefore the amendment does not go as far as the terms of the Courts and Legal Services Act. However, it is still proposed that persons will be appointed whom I must describe as representatives of members of the professions that I have mentioned.

My final point concerns the question of numbers. I am not entirely sure how many members are now on the Legal Aid Board whose membership can rise to 17. I suspect that the present constitution of the Legal Aid Board is closer to 16 or 17 than the lower number, which I believe is 11. It is important that my noble and learned friend has stipulated an upper cap at present of 12 members for the commission. In my view that will make the commission work more efficiently, more succinctly and with greater coherence. I have already mentioned the number of 17 members in connection with the advisory committee. There is an upper figure of 17 members as regards the Legal Aid Board. For all those reasons I believe these amendments are misconceived. I hope that the Committee will reject them.

The Lord Bishop of Lincoln

I venture into deep waters. I take the example of St. Peter and hope that I can walk upon them not too badly. I support Amendment No. 5. I make a plea that the commission should contain representatives of consumer interests. One of the things I try to do in connection with prisons is occasionally to deal with individual cases not only as regards convicted inmates but also as regards their families. I have been impressed by the support which many people in these circumstances have received from law shops and law centres. Those places seem to me to give access to legal advice in an appropriate way. Access to high quality assistance is an important element of the intentions of the noble and learned Lord the Lord Chancellor.

In my experience about a third of the clients of these law centres seek advice on housing difficulties and about the same number seek advice on social security matters. I hope it is possible to appoint someone to the commission to represent consumer interests as I am sure that would strengthen and support the intentions that the noble and learned Lord has in mind.

Lord Hacking

I rise again briefly to correct myself. I said that I thought the amendment was different from Section 19 of the Courts and Legal Services Act in the sense that the proposed barrister and solicitor members would not be appointed after consultation had taken place. I note that I was incorrect. The words that the noble Lord, Lord Kingsland, and those others who have tabled the amendment have used are the exact words that I used in the Courts and Legal Services Act. The same applies to Amendment No. 7. That strengthens my argument that they inevitably will be there—basically through the nomination of their professional body—regardless of whether they are there as representatives in the first place.

Lord Wigoder

Whatever answer the noble and learned Lord the Lord Chancellor gives to these amendments, I hope that he will not rely on the contention of the noble Lords, Lord Borrie and Lord Hacking, that the words in subsection (5)(b) concerning persons with experience of the "work of the courts", necessarily involve the services of trained or qualified lawyers. The "work of the courts" does not necessarily involve that. It might refer to prison officers, police officers, probation officers or even experienced prisoners. I hope that if the noble and learned Lord the Lord Chancellor intends to appoint some qualified members of the legal profession to the commission, he will not do so by relying on the words in subsection (5)(b).

The Lord Chancellor

I take note of the remarks of the right reverend Prelate the Bishop of Lincoln that consumer interests should be represented. It will not have escaped his attention that Amendment No. 11, in the name of the noble Baroness, Lady Wilcox, addresses that issue.

The noble Lord, Lord Wigoder, calls attention to the fact that persons with experience in, or knowledge of, the work of the courts may include many persons other than qualified lawyers, but I should not have thought that those words excluded qualified lawyers.

The Government's intentions on the composition of he commission are set out in Clause 1(5). The categories of expertise set out in that subsection are designed to ensure that the commission is informed about the nature of the service that will be provided under the community legal service and the criminal defence service, the interplay between the provision of services and the work of the courts, the social environment in which services will be provided, and good management practice.

Certainly the Legal Aid Act 1988 expressly required the appointment of lawyers. But the role of the legal services commission will be quite different from that of the Legal Aid Board. It therefore requires a different composition. The lack of a requirement for a specified number of lawyers among the members of the commission reflects the shift in focus from the needs of providers of legal services towards the needs of users. I shall return to that point from time to time as the Committee proceeds.

I can assure your Lordships that lawyer membership of the commission is by no means precluded; it is to be expected. It is envisaged that the commission will include members who represent both providers and consumers of the services that the commission will provide. We intend that all appointments to the commission will be made in accordance with the Nolan Committee's recommendations on public appointments and the Office for the Commissioner of Public Appointments' guidance on appointments to executive non-departmental public bodies and NHS bodies. There will therefore be an opportunity for the professional bodies to nominate candidates for appointment, and we hope that they will do so.

On that basis, I invite the noble Lord in whose name the amendment stands to withdraw it.

Lord Mackay of Clashfern

Before that happens, I should like to say a word about the constitution of the Legal Aid Board under the 1988 Act. That is a closer analogy than the advisory committee under the Act of 1990.

It was certainly my practice when I held the office of Lord Chancellor to consult the Law Society and the Bar Council as required with regard to the lawyers who might serve on the Legal Aid Board. So far as the work of the Legal Aid Board was concerned, there was no question of those people acting as trade union representatives for the profession, which is how the noble Lord, Lord Goodhart, referred to them. I pay tribute to all of them for the way in which they served the community through their work with the Legal Aid Board. I do not believe that any of them were more concerned to protect the providers than the users of the service; they were concerned to provide good service.

There was a link between the board and the professions, but the Legal Aid Board did all that it could to make sure that the users of the service were properly served. I should like to make it clear that that was my impression of their work. I was grateful to the professional bodies for the care that they took in advising the Lord Chancellor on such appointments. I can say without any equivocation that we found them all to be very helpful in the work that they were asked to do.

4.45 p.m.

Lord Kingsland

Does the noble and learned Lord the Lord Chancellor agree that it is difficult to think of any profession that is better qualified to express a view about the terms on the provision of legal advice is made to less well-off people than the solicitors' profession?

The Lord Chancellor

I yield to no one in my admiration of the solicitors' profession, but there are many people from the voluntary sector and consumer organisations who, in my judgment, are at least as well equipped to advise on that matter.

Lord Clinton-Davis

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment Nos. 6 to 8 not moved.]

Lord Simon of Glaisdale moved Amendment No. 9:

Page 2, line 8, at end insert ("and").

The noble and learned Lord said: This amendment concerns two very short drafting points. Subsection (5) of Clause 1 states: In appointing persons to be members of the Commission the Lord Chancellor shall have regard to the desirability of securing that the Commission includes persons with experience in or knowledge of", what is set out in paragraphs (a), (b), (c) and (d).

My first point is one which I have raised before about whether it would not be much easier for a user of the statute book if the word "and" came at the end of both paragraph (a) and (b) without one having to wait until the end of paragraph (c) to see whether it is "and" or "or". The last time I raised that point it did not meet with the approval of the noble Lord, Lord Renton, or my noble and learned friend Lord Brightman. That, of course, causes me to pause. Tossing the provision back in my teeth, their objection was that it would add extra words to the statute. If my noble and learned friend will accept the two extra words proposed in Amendments Nos. 9 and 10, I can guarantee to find 200 unnecessary ones which he can use to compensate for them.

My second point is whether the draftsman really does mean "and" rather than "or". Does he really require that the person to be included has to possess all those qualities? It would be even more difficult if the noble Baroness succeeds in carrying Amendment No. 11 because one would have to add to all these accomplishments a knowledge of consumer affairs.

It may be that the Lord Chancellor will find some Pooh-Bah who meets all these criteria, but I venture to think that it will be sufficient if the member in question meets one of them, and particularly perhaps that which is favoured by the noble Baroness. I beg to move.

Lord Renton

It is always with the greatest possible reluctance that I ever hold myself out to disagreeing with the noble and learned Lord, Lord Simon of Glaisdale. However, on this occasion, as on a previous occasion, I do so, although I think that he has made a good point about the desirability of using the word "or" in this subsection. But it need not be used four times. If it were to be used instead of the word "and" in line 10, the intention of the Lord Chancellor might be well fulfilled.

The Lord Chancellor

I find it difficult to muster the enthusiasm for these narrow issues that is demonstrated so often by the noble and learned Lord, Lord Simon of Glaisdale, and the noble Lord, Lord Renton. If the noble and learned Lord, Lord Simon of Glaisdale, was given pause on a previous occasion by the noble and learned Lord, Lord Brightman, and the noble Lord, Lord Renton, it was not for very long!

What I think the draftsman intended was that, collectively, the persons on the commission should bring to the commission the experience defined inclusively in paragraphs (a) to (d) of subsection (5). However, I have listened to what the noble and learned Lord has said. It is perfectly true that a useful member of the commission could be an individual who brought experience and knowledge of paragraphs (a), (b), (c) or (d) but not experience of all of them. Therefore, I shall give pleasure to the noble and learned Lord by inviting him to withdraw the amendment on the basis that I will invite the parliamentary draftsman to consider the virtues of "or" as against "and".

Lord Simon of Glaisdale

I am naturally discouraged when I find myself opposed both by the noble Lord, Lord Renton, and by my noble and learned friend the Lord Chancellor. I will withdraw the amendment. I am grateful to my noble and learned friend for offering to consider further the second point, whether the word should not be "or". It is not a question of the commission collectively, as I think he put it, having the range of qualities. What is demanded by the draftsman, as I read the subsection, is that the individual appointed should have them.

I hope I need not apologise for wishing to make the statute book more user-friendly and more accurate. However, having heard my noble and learned friend's offer, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 10 not moved.]

Baroness Wilcox moved Amendment No. 11:

Page 2, line 11, at end insert (", and (e) consumer affairs").

The noble Baroness said: This amendment relates to the membership of the new legal services commission. Subsection (5) of Clause 1 specifies the type of people that the noble and learned Lord the Lord Chancellor will appoint. It carefully specifies people with experience of the provision of legal services, people with experience of the work of the courts, people with experience of social conditions and people with experience of management. My amendment would add to that list those with knowledge and experience of consumer affairs.

Over the past few years—indeed I realise now that it is eight years since 1991 when I became chairman of the National Consumer Council and first started to work on access to justice, a piece of work which seems to have grown and grown—I have been fortunate enough to see a number of initiatives in the civil justice system which have made it far more focused on the needs of the end user or consumer. For example, the Civil Procedure Rule Committee, as set up by the Civil Procedure Act 1997, includes a representative with knowledge and experience of consumer affairs. That is the committee which makes the rules for the way in which our civil courts operate. Since consumers have been involved in devising the rules of the court, they have been transformed beyond recognition. They are much more user friendly, they are written in plain English and have a much more logical format.

The noble and learned Lord the Chancellor himself may remember that when he was in opposition he and I took part in the Committee stage of the Civil Procedure Bill on 20th November 1996. He and I tabled similar amendments to the Bill specifying consumer and advice sector memberships to the Civil Procedure Rule Committee. At that time the Bill referred only to people with knowledge of the working of the courts. On that day the noble and learned Lord made a very clear case for specifying consumer and advice sectors in the wording of that legislation. Fortunately, we were successful and the Act now does make that specification with, I am sure he will agree, very favourable results.

The same principle is at stake in this Bill. It seems strange to me that in subsection (5) of Clause 1 a number of types of individual are specified but not anyone with knowledge or experience of consumer affairs. Surely a body as important as the legal services commission should include a consumer representative along with the others specified in subsection (5).

From past experience, the Lord Chancellor has clearly expressed a view that it is important that those with experience and knowledge of consumer affairs should be involved in aspects of the civil justice system. I therefore hope that he will be able to accept this amendment from me today in the same receptive spirit as his predecessor, the noble and learned Lord, Lord Mackay of Clashfern, displayed as regards the Civil Procedure Act two years ago. I beg to move.

Lord Borrie

I rise to support the amendment proposed by the noble Baroness, Lady Wilcox. The word "consumer" in relation to the client of legal services is not entirely a happy one. After all, one cannot consume legal services in the way in which one can consume an apple. However, over the years, in legislation of various kinds, for good or ill, the word "consumer" has come to mean the purchaser or end user—to use another phrase of the noble Baroness—of goods and services of all kinds. To have on the legal services commission someone who has experience in or knowledge of consumer affairs would be most helpful.

I disagreed with the noble Baroness only in her use of the phrase, "representatives of consumer organisations". We do not want "representatives" in this regard, any more than we do in relation to the Law Society or the Bar Council. If, however, that was a slip, and the noble Baroness meant that various consumer organisations such as the one of which she was a respected chairman, the National Consumer Council, or the Consumers Association were to be consulted that is fine. Perhaps I may mention another organisation that would be particularly appropriate to this part of the Bill. I refer to the citizens advice bureaux movement, the bodies that are so useful to people up and down the country in providing various forms of information, often of a legal nature and therefore approved and accredited by lawyers. It is informal oral advice, leading people to a lawyer to obtain further and better advice. Therefore, people who come from that field, as an alternative to the Consumers Association or the National Consumer Council, might well be appropriate, helpful members of the commission. The key experience that someone with knowledge of consumer affairs would bring to the commission would be a continuing concern for value for money and quality of service at a reasonable price. That would surely be of great benefit to the commission.

5 p.m.

Lord Renton

The commission will be smaller than the Legal Aid Board. We must be careful not to enlarge the description of people who can serve on the commission, to make it so thoroughly comprehensive of society that the commission will become an enormous board.

Every living person is a consumer. If we did not consume we should not go on living. I wonder whether those who represent consumer bodies are any more worthy of representation on this body than, for example, representatives of trade unions or professional bodies. I respect my noble friend, who always puts wise opinions before your Lordships. However, I have some doubt as to whether this amendment would be genuinely helpful.

Baroness Linklater of Butterstone

As another non-lawyer, I wish to add my voice to that of the noble Baroness, Lady Wilcox, in support of this amendment addressing membership of the legal services commission. There is always a danger that those who operate the legal system and work within it, even with the best will in the world, will tend to focus on rules and procedure and lose sight of the needs of people who use the service, who may be termed purchasers or users. It is understandable that it might have undesirable and unfortunate consequences for ordinary people.

The reforms that the Bill seeks to introduce are partly to remedy a civil justice system that does not properly meet the needs of those consumers it exists to serve. Too often, it is painfully slow, appallingly expensive and usually incomprehensible and frightening, especially to the inexperienced. To members of the legal profession the courtroom may be the equivalent of the office, but it is a place to which most ordinary' people wish never to return.

The reforms that the Bill enables will be sweeping. For the lay person there are five main strands: reform of civil procedure; greater emphasis on alternatives to trial; reform of state funding for legal services; expansion of alternatives to state funding—the "no win, no fee" agreement; and the establishment of a community legal service. The job of weaving those strands together into a coherent and effective whole will fall partly on the legal services commission. The commission's role is therefore crucial to the success of the reforms.

The noble and learned Lord, Lord Woolf, who is one of my heroes, recently conducted a two-year review of civil justice. In it, he recognised the importance of placing the needs of ordinary people at the centre of legal reform by recommending that the Civil Procedure Rule Committee and Civil Justice Council, the two major bodies created by his review, should have designated places for consumer members. In that, he received the support of the noble and learned Lord the Lord Chancellor when he was in opposition.

It is equally important that the legal services commission should put the needs of ordinary people at the centre of its work. To do that it, too, needs members who will focus primarily on the needs of those using the service, particularly the inexperienced and the vulnerable.

Of course, the commission will not start with a totally clean sheet. It will inherit much received wisdom that must be challenged if the reforms are to create something new and different. It must rethink old ways of doing things. Lay members are often effective catalysts to change, because they do not bring with them the inherited baggage of the professionals. Change would be much more difficult without them.

I understand that, in government, the noble and learned Lord the Lord Chancellor has already recognised the valuable contribution that consumer representatives can make to many aspects of the work in his own department, where they serve productively and happily on working groups and policy committees. It therefore seems to me that there is nothing to be lost, and everything to be gained, by accepting this amendment. I urge the Government to do so.

Baroness Thornton

I support the principle behind the amendment proposed by the noble Baroness, Lady Wilcox, and congratulate the noble Baroness on tabling it. It is correct to say that the voice of the consumer must be heard. I am aware of the noble Baroness's work on and support for consumer interests. I join her in her attempt to bring that experience to bear in this instance. I wish particularly to add my congratulations on the work of the National Consumer Council.

It is significant that there is cross-party support for this proposal. I hope that the cross-party consensus on the interests of the consumer will be heard and followed throughout all the considerations on this measure. We must put the consumer first, across the political divide and the divide between lawyer and non-lawyer. On behalf of non-lawyers, I say gently and with the deepest respect to my colleagues in this Chamber from the legal profession that this debate will be heard outside this House as well as inside. The Bill is about access to the law. It must be heard to be in people's interests as well as actually being in their interests. The language of our debate must be accessible. As a non-lawyer, I put in a plea that we speak in language that is accessible to those who wish to follow this debate about access to the law for the majority.

Baroness Crawley

I wish to add my strong support to the amendment tabled by the noble Baronesses, Lady Wilcox and Baroness Linklater of Butterstone, proposing that membership of the legal services commission should include those with knowledge and experience of consumer affairs. Both noble Baronesses have a strong interest in consumer affairs. As the noble Baroness, Lady Wilcox, reminded us, she is a former chair of the National Consumer Council. We are grateful for the expertise that she brings to the debate.

The amendment fully reflects the fact that the interests of the consumer go to the very heart of the Bill. It is designed to meet people's needs, create a new awareness of justice, and deliver real value for money in a modern context which sweeps away old restrictive practices.

The inclusion of provision for consumer representation on the commission will mean that it will be expertly assisted in carrying out its functions and evaluating the needs of users of the community legal service. From my constituency experience of consumer policy in the European Union, I believe that the amendment is sensible and necessary and would undoubtedly add value to the Bill. I recommend it to my noble and learned friend.

Lord Hacking

As a lawyer, I support the amendment. That much maligned profession of which I am honoured to be a member has long been concerned about consumers of the courts. It is over 20 years since the commercial court users' committee was formed, on which there is a large lay representation. About three years ago I was asked to be president of the county court users' group. It is important that, in order to have good value for money and efficiency of the system, the consumer should be represented on the commission. The only other matter about which I would seek to persuade my noble and learned friend is that he should not add any further criteria to the Bill. If the amendment is accepted, the subsection will have added to it paragraph (e). Let us not go further than that. Section 19(5) of the Courts and Legal Services Act extends to paragraph (g). I fear that if we move any further we shall lose the main purport of this commission, which is to act as a cohesive body.

The Lord Chancellor

We intend the focus of the legal services commission to be on the needs of users rather than providers of the legal services to be provided by the CLS and CDS. It was, therefore, in any event likely that at least one person with experience in, or knowledge of, consumer affairs would be appointed to the commission so that it could be sufficiently informed about the interests of consumers of these services. Clause 1(5)(c) requires the Lord Chancellor to consider the desirability of appointing to the commission persons having experience in, or knowledge of, social conditions.

It always was our intention that the provision would ensure that the membership of the commission would be sufficiently informed about consumer affairs in evaluating the need for services. But concerns have been expressed by bodies who represent the interests of consumers that our intention to take account of consumer interests in the membership of the commission should appear unequivocally on the face of the Bill. I am happy to accept the principle of the amendment. It is particularly appropriate that the noble Baroness, a distinguished former chair of the National Consumer Council, should have proposed it.

I welcome the opportunity that the amendment gives me to demonstrate to the noble Baronesses, Lady Wilcox and Lady Linklater of Butterstone, my consistency over the years. Such is my regard for the consumer interest that I am minded to re-order the paragraphs and not relegate consumer affairs to the bottom line. I undertake to show the noble Baroness a draft of what I propose for her consideration before Report. On that basis, I invite her to withdraw the amendment.

Baroness Wilcox

I thank the noble and learned Lord. He has pleased me very much today. We have been battling on this matter for some time and I was not sure how we would fare today. It is so easy to become hung up on the word "consumer." It is not a word that we all like particularly, but it is a kind of generic term which we have all had to come to use.

The noble Lord, Lord Borrie, mentioned the citizens advice bureaux. Organisations representing citizens must be represented, and I believe that that is already provided for. Consumers of goods and services—in this case consumers of services—are a specific group of people, represented originally by the National Consumer Council, set up over 26 years ago by the then Shirley Williams who was at that time a member of the Labour Party. For that I must express my thanks.

I believe that we have what we want. I look forward to reading what the noble and learned Lord said. I take this opportunity to thank all those who supported the amendment. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 1 agreed to.

Schedule 1 [The Legal Services Commission]:

Lord Kingsland moved Amendment No. 12:

Page 52, line 27, at end insert— ("( ) The Commission shall publish the plan submitted to the Lord Chancellor.").

The noble Lord said: In moving Amendment No. 12, I shall speak also to Amendments Nos. 14, 15 and 16. These amendments concern the relationship between the legal services commission and the Lord Chancellor's Department and refer to paragraph 15 of Schedule 1, which is entitled "Annual plan".

Under paragraph 15 the commission is required, before the beginning of each financial year, to prepare a plan setting out how it will fund services from the community legal service fund and the criminal defence service and how it is to exercise its other functions. The effect of the amendments would be to change the drafting of sub-paragraphs (2), (3) and (4) as follows. Sub-paragraph (2) would read: The Commission shall send a copy of each plan prepared under sub-paragraph (1) to the Lord Chancellor". Sub-paragraph (3) would read: The Commission shall publish the plan submitted to the Lord Chancellor and the Lord Chancellor shall lay a copy before each House of Parliament". In sub-paragraph (4), if the Lord Chancellor does not approve the plan, he shall make his reasons public and direct the commission to revise it.

The purpose behind these changes is to make the relationship between the legal services commission, on the one hand, and the Lord Chancellor's Department, on the other, more transparent. It will, I trust, demonstrate the principle, to which I hope the noble and learned Lord the Lord Chancellor subscribes, that the commission not only has a personality of its own but is also capable of having, and sometimes will have, a will of its own. I beg to move.

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

I shall, if I may, speak to Amendments Nos. 12, 14, 15 and 16. As the noble Lord, Lord Kingsland, said, these amendments require the publication of the legal services commission's annual plan in draft form before it is approved by the Lord Chancellor or laid before each House of Parliament and requires the Lord Chancellor to publish his reasons for not approving an annual plan prepared by the commission. As the noble Lord accurately said, the effect will be to make clear the role of the Lord Chancellor in the commission's process of planning how it intends to fund services and exercise its other functions. Obviously, the Lord Chancellor will have a key role in ensuring that the commission's strategy delivers value for money and meets the need for services that has been identified in a way which accords with government policy. This role, as the noble Lord explained, will be exercised with the safeguard of the approval mechanism set out in paragraph 15 of Schedule 1.

Given that the commission will be working within a framework of priorities and in accordance with directions given by the Lord Chancellor, it is likely that the safeguard contained in paragraph 15 will rarely need to be used. The Bill as drafted already provides for clear public information about the development of the annual plan. The legal services commission will produce the plan following wide consultation, primarily through the regional legal services committees and community legal service partnerships. The plan will summarise the regional legal services committees' regional strategies which will themselves have been published after full and wide consultation. Further detail about the basis of the plan, for example the underlying data at local or regional level, will also be available under the open government code of practice. I find it difficult to foresee why any direction given to the commission by the Lord Chancellor to revise the plan would not also be made available under the open government code of practice. However, to make clear that that is the position the noble and learned Lord the Lord Chancellor is willing to undertake to ensure that that will happen.

Publication of the annual plan in draft form would add expense and delay to the process of agreeing the plan. It could also suggest a further consultation stage in the planning process. The necessary consultation will already have been completed by that stage through the mechanisms that I have described. A statutory duty to publish the plan in draft, which is the effect of the amendment, is therefore undesirable and unnecessary. It would result in the complexity, expense and delay of publishing and laying before Parliament two plans. However, the Lord Chancellor is willing to consider at the same time as he lays the plan before Parliament accompanying it with a statement of reasons for departing in any material respect from the commission's draft plan, and he will table government amendments to that effect. I believe that that goes some way to meeting the concerns of the noble Lord. I invite the noble Lord to withdraw his amendment.

Lord Kingsland

I am most grateful for the extremely constructive observations of the noble and learned Lord in responding to this amendment. I shall read his remarks carefully. If I have correctly understood them I believe that I have good grounds for begging leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Goodhart moved Amendment No. 13:

Page 52, leave out lines 28 to 33 and insert— ("( ) The Commission shall publish the plan and the Lord Chancellor shall lay a copy before each House of Parliament.").

The noble Lord said: Amendment No. 13 covers very much the same ground as the group of amendments that the Committee has just discussed but it goes rather further. The amendment requires the commission to publish the report as its own report independently of the Lord Chancellor. This raises a difficult question, which I believe will become more prominent when we come to Clause 4 of the Bill, as to the proper relationship between the legal services commission and the Lord Chancellor. On the one hand the commission is an independent body with statutory duties placed upon it by the Bill, as the noble Lord, Lord Kingsland, pointed out. Yet it is made subject in all material respects to control by directions given by the Lord Chancellor. Therefore, the question is whether it is really an independent statutory body or simply an executive agency under the control of the Lord Chancellor. At this stage I shall not go into the question of which it should be, but when the Committee comes to Clause 4 I shall put forward the arguments as to why the commission should retain a substantial degree of independence from the Lord Chancellor. It is in that context that this amendment is moved.

If the Committee looks at paragraph 15(1) of Schedule 1 the commission must prepare a plan at the beginning of each financial year. It then sends a copy of that plan to the Lord Chancellor. Under sub-paragraph (3) if the Lord Chancellor approves it well and good, and he tells the commission to publish it. However, if he does not approve it not only can he direct the commission to revise it but he can direct as to how it is to be revised. Therefore, for all practical purposes it becomes a plan not of the commission but of the Lord Chancellor. The only action that the commission can take if it does not like what the Lord Chancellor tells it to do is to resign. This appears to be a very peculiar situation.

It is not my intention to press this amendment on this particular occasion because I wish to consider the matter in the context of the amendments that the noble and learned Lord the Lord Chancellor intends to table in relation not only to the specific paragraph just mentioned by the noble and learned Lord, Lord Falconer of Thoroton, but also in the context of the wider amendments that the Lord Chancellor is to table in the light of the report of the Select Committee on Delegated Powers and Deregulation. However, this matter causes me some concern and when the Committee comes to Clause 4 I shall take the matter a little further.

The Deputy Chairman of Committees (Baroness Lockwood)

I point out to the Committee that if Amendment No. 13 is agreed, I cannot call Amendments Nos. 14 to 16 under the pre-emption rule.

Lord Falconer of Thoroton

As the noble Lord, Lord Goodhart, has clearly explained, this amendment goes further than the previous group of amendments just debated. It would remove the mechanism by which the Lord Chancellor is able to approve the commission's annual plan before it is published and laid before each House of Parliament. The commission's annual plan will set out how it intends to fund services and exercise its other functions. The plan will summarise the original findings and advice of the regional legal services committees which will have been published in full as regional strategies following wide consultation. Further detail about the basis of the plan will be available under the open government code of practice.

In drawing up the plan, the commission will work within the parameters of priorities set by the Lord Chancellor through directions made in accordance with Clauses 4(1) and 7(1) of the Bill. Unless the commission fails in any important respect to address those priorities it is highly unlikely that the approval mechanism set out in the Bill will result in the Lord Chancellor wishing to impose any significant or controversial changes.

However, because the commission will have very wide discretion in determining detailed priorities and in the way that it procures legal services within a broad framework of national priorities set by the Lord Chancellor, I believe that it is essential that the Lord Chancellor is able to satisfy himself that the commission's strategy delivers value for money and meets the need for services that has been identified in a way that accords with government policy. The approval mechanism contained in the Bill, which means that the Lord Chancellor is involved before publication, is designed to deliver the appropriate level of assurance. We believe that it represents the right relationship between the legal services commission and the Lord Chancellor. I therefore invite the noble Lord to withdraw his amendment.

Lord Goodhart

As I indicated in moving the amendment, it is not my intention to press the matter if only because I wish to see the further amendments that the Government intend to table. This is a matter that I shall consider carefully and may bring back again. On this occasion I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 14 to 16 not moved.]

Schedule 1 agreed to.

5.30 p.m.

Clause 2 [Power to replace Commission with two bodies]:

[Amendment No. 17 not moved.]

The Deputy Chairman of Committees (The Countess of Mar)

I understand that Amendment No. 18 has been wrongly marshalled.

Clause 2 agreed to.

Clause 3 [Powers of Commission]:

[Amendment No. 18 not moved.]

Lord Simon of Glaisdale moved Amendment No. 19:

Page 2, line 32, leave out subsection (2).

The noble and learned Lord said: I believe I am right in thinking that Amendment No. 19 has been called. Amendment No. 22 is grouped with the amendment and is consequential. Amendment No. 19 seeks to leave out subsection (2) of Clause 3.

Subsection (1) states that, the Commission may do anything which it considers—

1. (a) is necessary or appropriate for, or for facilitating, the discharge of its functions",

and so on. That is all-embracing. Subsection (2) states that it may in particular do that which is set out in paragraphs (a), (b), (c), (d), (e), (f) and (g), to give the Lord Chancellor any advice which it may consider appropriate in relation to matters concerning any of its functions". If one wanted a striking example of a completely unnecessary provision, that last paragraph is it. However, subsection (2), which specifies the particulars of subsection (1), is quite unnecessary. A few Sessions ago, I used to complain of particulars being unnecessarily given of a generality. My noble and learned friend Lord Mackay of Clashfern used to say disarmingly, "I admit it is not strictly necessary, but it is useful to let Parliament know the powers which will be exercised".

There are many other more economical ways of letting Parliament, or the public who read Hansard, know, without having a lengthy subsection which is printed and re-printed at vast expense at every stage of the Bill and then the statute. In my respectful submission, we can happily get rid of subsection (2); and we shall be very pleased to do so in a Bill which is by no means free from prolixity.

Paragraph (c) of subsection (2) refers to the power to make loans. Is a grant with a condition as to repayment not a loan? If it is, it has already been covered in the previous paragraph.

Paragraph (d) refers to the power to invest money. But subsection (3) provides that the commission has no power to borrow money or, to acquire or hold shares in bodies corporate". Does that really mean that the commission may not invest in equities but must solely invest in gilts? The noble Lord, Lord Goodhart, knows much more about the issue than I do, but even a trustee has for the past 30 years been enabled to invest in equities. Why not the unfortunate commission? I have tabled a later amendment to deal with that. At the moment, I am content with trying to get rid of the unnecessary subsection (2). I beg to move.

The Deputy Chairman of Committees

I should inform the Committee that if Amendment No. 19 is agreed to, I cannot call Amendments Nos. 20 and 21 because of pre-emption.

Lord Goodhart

As the noble and learned Lord, Lord Simon of Glaisdale, mentioned my name, perhaps I may say that I should not think it appropriate for the legal services commission to invest in equities. It is in no way comparable with the ordinary situation of a trustee. Nor do I agree with the noble and learned Lord, Lord Simon of Glaisdale, except to the limited extent that I should have thought it more appropriate to find general power provisions of this kind in Schedule 1 rather than in the body of the Bill.

Lord McIntosh of Haringey

I appreciate the concern of the noble and learned Lord, Lord Simon of Glaisdale, to shorten the Bill. He would achieve a considerable shortening through Amendment No. 19. His score so far is that if he wins on "or" against "and", he will have reduced the Bill by one letter rather than by one word. So he is certainly entitled to go for broke on this amendment.

The argument that the noble and learned Lord put sounds reasonable because subsection (1) is fairly all-embracing. However, there are good precedents, not only in legislation, for the provision in subsection (2). The Lord Chancellor is given this power under the Legal Aid Act 1988. Anyone familiar with the memorandum and articles of companies knows that although there is always a catch-all provision which states that in accordance with the objectives they can do what they like, it is considered helpful, as in this case, to spell out the detail of what companies may do—otherwise that may be challenged and be the subject of unnecessary litigation. Therefore, I suggest to the noble and learned Lord that it would be desirable here to follow precedent and allow the subsection to stand as part of the Bill.

The noble Lord, Lord Goodhart, makes the point that one might have a separate schedule for it. However, I suspect that that might be more complicated. I think that the noble Lord referred to including the provision in a schedule.

Lord Goodhart

In Schedule 1.

Lord McIntosh of Haringey

Moving provisions between clauses and schedules is a minor part of the revising functions of this Chamber. However, I can assure the noble and learned Lord that it would be inappropriate for the commission to invest money in equities. I ask the noble and learned Lord to withdraw the amendment.

Lord Simon of Glaisdale

I regret that the noble Lord, Lord McIntosh, is as bad as my noble and learned friend Lord Mackay of Clashfern. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Kingsland moved Amendment No. 20:

Page 2, line 42, after ("Chancellor") insert (", whether at his request or not,").

The noble Lord said: It will not have escaped the attention of the noble and learned Lord the Lord Chancellor that one of the themes running through the many amendments tabled to the Bill concerns the proper relationship between the legal services commission and the noble and learned Lord's department. The amendments to Clause 3(2)(g) seek further to illuminate that distinction. Were they to be accepted, subsection (2)(g) would read: to give the Lord Chancellor any advice, whether at his request or not, which it [the legal services commission] may consider appropriate in relation to matters concerning any of its functions which it will make public". There may be occasions on which the legal services commission wishes to make clear its views on a matter which diverges from the views of the noble and learned Lord's department. In those circumstances, we believe it entirely proper that there should be a statutory basis upon which it can formulate its decision to make those differences public. I beg to move.

The Lord Chancellor

The amendment would provide that the legal services commission could give the Lord Chancellor any advice about any of its functions, with or without the prior request of the Lord Chancellor, and would require the commission to publish that advice. The Government intend that the legal services commission should be free at any time to advise the Lord Chancellor about any of its functions. For this reason, there is nothing in the Bill as its stands which prevents the commission from providing the Lord Chancellor with any advice it considers necessary concerning his functions, whether or not the Lord Chancellor has requested such advice. Therefore, the first part of the noble Lord's amendment is unnecessary.

Advice given by the commission will be published in accordance with the open government code of practice. But advice about policy issues under consideration is protected under the code; that is to say, the open government code of practice introduced by our predecessors. The purpose of that is to preserve the frankness and candour of internal discussions on policy issues. The complexities and details of the code would be difficult to capture in statutory language. For that reason, I believe that the question of publication is best left to the code. However, I have no difficulty in giving an undertaking that publication will be effected in accordance with the terms of our predecessors' code.

Lord Kingsland

I thank the noble and learned Lord for his helpful reply, upon which I shall reflect. In those circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 21 and 22 not moved.]

Lord Simon of Glaisdale moved Amendment No. 23:

Page 3, line 3, leave out subsection (4).

The noble and learned Lord said: This is a brief point in a renewed attempt to shorten the Bill. Subsection (4) allows the commission to delegate its functions. Is that necessary? I understood the rule to be that a delegate may not sub-delegate. Subject to the fresher knowledge of the law of my noble and learned friend the Lord Chancellor, I know of no rule which prevents a body which is not a delegate from delegating further. Incidentally, I see my noble and learned friend Lord Wilberforce in the Chamber and perhaps I may appeal to him. He is silent and has not contradicted me. I beg to move.

The Lord Chancellor

Clause 3(4) provides the power for the commission to regulate its business and to delegate the discharge of some of its functions. It will delegate powers, for example, to franchise solicitors. The provision puts beyond doubt that there is such a power to delegate and it already exists in current legislation. Such a power has therefore already been approved by Parliament and it appears to be right to put the power of the commission to delegate beyond any doubt on the face of the Bill.

Lord Simon of Glaisdale

My noble and learned friend did not attempt to deal with my argument that the provision is unnecessary if the commission already has a power to delegate. I am bound to ask whether he is really interested in shortening the Bill and getting rid of a completely unnecessary provision. It is no answer to say that the provision makes the position plain. Of course it makes it plain, but it is plain anyhow. One is occupying six lines unnecessarily by stating that the commission can do something which it can do in any case. I do not press the amendment at this stage, but I am bound to say that that was one of the most unsatisfactory answers to an amendment that I have ever heard. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

On Question, Whether Clause 3 shall stand part of the Bill?

Lord Simon of Glaisdale

I have one further short question about a matter to which I have already referred. The commission can invest money but not in bodies corporate. The noble Lord, Lord Goodhart, said he believes that it should not have the power to invest in equities. If he says that I am bound to attach considerable weight to it. However, can the commission invest in property? It seems strange that if it can invest in property—and I can see no reason which precludes it—it should not be able to invest in shares in bodies corporate.

Lord McIntosh of Haringey

I was able to confirm to the noble Lord, Lord Goodhart, that the commission could not invest in equities. However, I shall have to write to the noble and learned Lord, Lord Simon of Glaisdale, about its power to invest in property.

Lord Simon of Glaisdale

I am grateful to the noble Lord. I shall be still more grateful if his letter is proficient.

Clause 3 agreed to.

Lord Kingsland moved Amendment No. 24: After Clause 3, insert the following new clause—

ESTIMATES AND ACCOUNTS

(" . The Commission shall prepare and publish estimates and accounts to show the following—

1. (a) the setting up costs of all the services for which they are responsible;
2. (b) the administrative running costs for all the services for which they are responsible;
3. (c) the cost of the legal services for which they are responsible; and
4. (d) the cost of disbursements within those legal services for which they are responsible.").

The noble Lord said: In tabling this amendment, I am aware that in paragraph 16 of Schedule 1, the question of accounts and audit is dealt with. My amendment is a probing amendment.

The noble and learned Lord the Lord Chancellor will recall that, when he presented this Bill at Second Reading, he laid great emphasis on the importance of containing the costs of legal aid for both criminal and civil matters. But Members of the Committee will not be unaware that a new institution is being set up and it is bound to cost money.

My amendment seeks to provide an opportunity for the Committee and, indeed, the general public, to examine the extent of the costs which will be incurred as a result of the establishment and operation of the legal services commission. I beg to move.

The Lord Chancellor

I am not sure that I entirely follow this. Under Clause 6(2), the Lord Chancellor is obliged to pay to the commission the sums which he determines are appropriate for the funding of services by the commission as part of the community legal service. He may determine the manner in which, and the times at which, the sums are to be paid to the commission and may impose conditions on the payment of the sums.

I shall be agreeing a financial memorandum with the commission under Clause 6(2)(b). As the noble Lord said, paragraphs 16(1) and 16(2) of Schedule 1 impose an obligation on the commission to maintain accounts. I see no gap in that regard and I invite the noble Lord to withdraw his amendment.

Lord Goodhart

Before the noble Lord does so, perhaps I may intervene briefly. I have some considerable sympathy with the purpose of the amendment. While I certainly hope that it will happen in any event, it will be extremely important to have accounts which are comprehensible and which really explain what is happening.

In any accounts provided, I should like to see the breakdown between the spending of the community legal service under the different heads of service that it can provide under Clause 5(1); for example, as between information, advice, representation, education and so on. It would also be extremely helpful to know how the funds spent by the community legal service were broken down as between the various heads of spending under Clause 7(3); for example, by contracts, grants or loans, to persons or bodies to provide services, by establishing and maintaining bodies to provide services and by providing services itself and so on.

I hope that the accounts will be sufficiently informative to enable us to see in some detail how the money is being spent.

The Lord Chancellor

I am happy to write to the noble Lord as to the form of the proposed accounts and the detail which they are likely to show.

Lord Kingsland

If the noble and learned Lord the Lord Chancellor, in his response, is saying that the matters which are covered by Amendment No. 24 are covered by Clause 6(2), I am entirely content with his reply and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 4 [Directions and guidance]:

Lord Goodhart moved Amendment No. 25:

Page 3, line 9, leave out subsection (1).

The noble Lord said: In moving this amendment, I shall speak also to Amendments Nos. 26, 27, 30, 31, 33, 35, 37, 64, 65, 74, 75, 193, 194, 195, 196 and 204 which stand in my name and those of other noble Lords.

As a result of the most welcome decision by the noble and learned Lord the Lord Chancellor to accept substantially all the recommendations of the Select Committee on Delegated Powers and Deregulation, most of the amendments are now otiose. I am extremely glad to see that the chairman of that committee is now present and has taken his seat.

However, that is not wholly true of Amendment No. 25 because that raises a perhaps rather more fundamental point which is, as I indicated earlier, the nature of the relationship between the legal services commission and the Lord Chancellor.

It is clearly the intention behind this Bill that the legal services commission should be under the very close control of the Lord Chancellor although it will now be the case that in important aspects that control will be exercised through statutory instruments and will therefore involve a degree of parliamentary control. That raises a question as to whether it is desirable that, whether by statutory instrument or not, the Lord Chancellor should have that degree of control over the legal services commission.

I can see very good reasons—for administrative convenience and for control over exercising the Government's policy—why the Lord Chancellor should wish to do so, but at the same time, there are aspects of that matter which cause me serious concern. Is the legal services commission to be truly independent or is it to be, in effect, no more than an agency or, one might even say, "the Lord Chancellor's poodle"?

In the case of the funding of medical services, it is appropriate that the Government should retain some detailed control over how the funds which they provide are spent. But the funding of legal and medical services are very different. As regards medical services, there are arguments about priorities, but there are no conflicts of interest between the Government and those who are seeking the funding.

In the case of legal services, there are clear conflicts of interest. In this regard, I do not rely on what is at first sight the obvious case of criminal process where the conflict of interest is more apparent than real because the decision of the court or jury in criminal proceedings rarely affects government policy. In any event, this Bill gives the Lord Chancellor less control over spending on criminal cases than over the funding of civil cases through the community legal service's fund.

On the civil side, judicial review may be used to challenge decisions of Ministers and public authorities. In future, human rights cases may involve challenging the decisions of public authorities, secondary legislation and, indeed, Acts of Parliament. Decisions of the court on welfare and housing cases, for example, may again have extremely serious fiscal, financial consequences for the Government.

I believe that it is in the interests of justice and the separation of powers that the commission should have a higher degree of independence from the Lord Chancellor and the Government than it does under this Bill as presently drafted. We have already had some quotations from the Select Committee's report, but perhaps I may refer to paragraph 1, which has not been quoted so far. It states: Many of the changes are made in the bill itself but important issues are left to be settled by the use of delegated powers cast in wide, enabling terms. Some of the issues to which these suggested delegated powers relate are of fundamental importance within a democratic society. They affect the extent to which a citizen may be granted or denied access to justice to promote or defend rights and liberties. They raise for consideration how far control by the state of the means of access to justice may erode the separation of powers and put individuals at a disadvantage when seeking to defend themselves against claims brought by the very government which has the power to prescribe how effectively they may be represented.

It was no part of the function of the Select Committee to decide the relationship between the Lord Chancellor and the legal services commission. The factors referred to in the report indicate a strong case for a greater degree of separation. I am not saying that that should be complete. I am not attempting to argue that the specific powers of direction given, for example, in Clauses 6, 7 and 9 should not be exercised by statutory instrument. I am concerned about the width of the general power to give direction. Although my worries about that are much less now that there will be a greater degree of parliamentary control, my worries are not wholly satisfied.

The Deputy Chairman of Committees

I must advise your Lordships that if Amendment No. 25 is agreed to, I cannot call Amendments Nos. 27 and 28.

6 p.m.

Lord Archer of Sandwell

I shall listen with interest to the replies to the questions posed by the noble Lord, Lord Goodhart. My noble and learned friend, having spoken so comfortably to Jerusalem in his response to an earlier debate, it is not necessary for me to deploy arguments relating to the amendments in this group that stand in my name. In due course, I shall not be moving them.

Lord Clinton-Davis

I advert to Amendments No. 27 and 33 in my name, to which the noble Lord, Lord Kingsland, put his name.

The proposed new legal aid scheme is very different from that which it will replace. The existing scheme is based on financial eligibility and the merits of the case, although one must concede that there are some deficiencies in the way that it operates—hence the Bill.

The new scheme is based on the application of available resources. The Government propose to give greater discretion to the commission as to how it operates the civil legal aid scheme. It follows that the principles that the commission should adopt in discharging its functions should be subject to proper scrutiny and debate. Consequently, Amendment No. 27 is directed at ascertaining from my noble and learned friend the kind of consultation that he proposes before proceeding to the second phase.

As to Amendment No. 33, it is right that my noble and learned friend should retain the power to give directions regarding individual cases—and that is what the amendment seeks to provide. I concede that it is extremely unlikely that power will be brought into operation with any frequency, but multi-party actions and others could benefit from legal aid under specific direction. Although legal aid will be withdrawn from personal injury cases generally, claims such as those over thalidomide or asbestosis might come to light, which raise interesting rights on the statute of limitations since the law affecting it was changed. The Lord Chancellor should have the power to direct that legal aid will be available in such cases, which could fall into the realm of being public scandals.

Lord Phillips of Sudbury

Having heard the extremely important accommodation announced by the Lord Chancellor earlier, it will be difficult to strike the right balance between direction and arrangements that must be subject to parliamentary agreement. I want to raise an issue relating to the effectiveness of the legal services commission. On any view, this revolution in legal aid will depend to a considerable degree on the competence of the commission and the people who sit on it.

I urge the Lord Chancellor to think long and hard about retaining anything like the degree of direction that he is currently permitted under Clause 4(1), which broadly gives him carte blanche vis-à-vis telling the commission what to do. I remember sitting as one of the first members of the National Lottery Charities Board, which was subject to ministerial directions. Anyone who has sat on a quango will concur that how far its members can be overruled or directed is a sensitive issue.

As I believe that the reconstruction of legal aid that is now in train is of the greatest conceivable importance, I believe also that attracting and retaining people of the highest calibre to serve on the commission is a sine qua non of the success of the whole enterprise. Cutting back radically on direction, while appearing to be an act of folly if one is in the shoes of the Lord Chancellor, might in the long term be the better part of valour.

Lord Kingsland

In view of the Lord Chancellor's most helpful response to Amendment No.1, I share entirely the view of the noble and learned Lord, Lord Archer of Sandwell, of the appropriate approach to the amendments—so I shall sit down.

Lord Mackay of Clashfern

I wish to speak to the amendment to which the noble Lord, Lord Clinton-Davis, drew attention which has the effect of contradicting Clause 4(3). A clause having much the same effect exists in the Legal Aid Act 1998. The idea is to prevent the Lord Chancellor from intervening in a particular case. It does not prevent him making directions about the class of case, but it does prevent him from intervening in individual cases. That would be a gross interference in the separation of powers. That is certainly the principle upon which such a clause rested. The noble Lord, Lord Clinton-Davis, may be able to convince me otherwise but for my part, that is an important protection for the separation of powers in respect of individual cases.

The Lord Chancellor

The noble Lord, Lord Goodhart, drew attention to the fact that I have already shown and to a large degree accepted the concerns expressed about the wide nature of the Lord Chancellor's powers in Clause 4 to give directions to the commission. I am seeking to find a way of meeting those concerns that preserves the flexibility that is essential for the new scheme to work effectively while providing appropriate lines of accountability.

Let me first explain what was intended by Clause 4 before I turn to the amendment. This clause confers powers on the Lord Chancellor to give the legal services commission directions and guidance about the exercise of its functions. The commission will be required to follow any directions and to consider guidance.

The powers contained in this clause must be seen in the context of the wider structure of the new schemes for providing publicly funded legal services, and particularly the community legal service fund. We are proposing a flexible system which can use the available resources to deliver cost-effective help, targeted towards the areas where it can do most good. The current legal aid scheme cannot achieve that.

The legal services commission will be under a duty to establish the need for legal services and to deploy the available resources to best effect to help meet those needs. It will do that within a framework of national priorities set by the Government, and in a way that seeks to secure the best possible value for money.

It is important that it is empowered to do so in as flexible a way as possible. Necessarily however this means that the commission will have a wide discretion as to the way it works and delivers services. At the same time, the Government must have the power to ensure that the commission exercises its functions in a way that reflects its policy objectives and in particular its priorities for the community legal services fund. Some of those will take the form of directions in relation to the annual budget that the commission should set within the overall community legal service fund. Let me draw attention to Clause 6(4) which states: Directions given by the Lord Chancellor under section 4 may impose requirements on the Commission as to the descriptions of services to be funded from any specified amount paid into the Community Legal Service Fund". We intend to set separate budgets for civil and family cases; but there may also be specific categories of service or case where it would be appropriate to indicate spending parameters. By way of illustration, in October of last year I directed the Legal Aid Board to allocate a minimum of £20 million for contracts with non-profit-making advice agencies.

A comparison can be drawn with the National Health Service. That too is a complex scheme providing a wide range of different services to people with needs of varying priority, from cosmetic surgery to life-saving procedures. And the National Health Service has considerable discretion, within a framework set by Ministers, to find the best ways to meet those needs and to adapt to changing demands. I have not heard it suggested that every decision about priorities and every detailed policy change affecting the National Health Service should be subject to secondary legislation.

Lord Phillips of Sudbury

Is it not the case nonetheless that many of the major functions of the NHS are protected by statute, such as closure of hospitals?

The Lord Chancellor

Of course. But I am making clear that it is not every policy decision, every detailed policy change and every decision about priorities over the field that can conceivably be dealt with legislatively.

The way in which this will work is that the details of the community legal service fund will be defined by a number of different mechanisms according to the nature of the issue in question. The details of the services to be provided, their price and the quality controls to providers will all be contained in contracts between the commission and individual providers. The criteria and procedures for granting help will be set out in the funding code, to which we will be turning later. The rules about contributions and costs, which directly affect the obligations of individual members of the public, will continue to be for regulations, subject to negative resolution. Finally, the power in this clause is concerned with directions and guidance to the commission itself—the responsible administrative body—as to how it should exercise its power and discharge its duties.

The direction-making power therefore is the means by which the Government can set their priorities and other policy objectives for the scheme—for example, objectives about geographic distribution of services and choice. In some respects the amendments before the Committee are too restrictive. They will require all instructions that I might give, whatever their nature or importance, to be brought before both Houses of Parliament for debate. However, some directions are likely to deal with the allocation of money voted by Parliament; others will deal with detailed operational matters. The accountability for those matters is already adequately provided through general ministerial accountability to Parliament and, in my view, that is not appropriate for secondary legislation.

On the other hand, the proposals that I expect to bring forward later will in some ways go further than the amendments which I intend to bring forward to meet the recommendations of the delegated powers committee. I intend in other clauses to introduce statements of purpose for both schemes in Part I of the Bill and to provide that the Lord Chancellor may only make directions that are consistent with those statements. I hope also to amend Clause 4 to define more closely the various types of direction in terms of their nature or subject matter that the Lord Chancellor may make, where appropriate, by orders subject to parliamentary approval. These amendments might also meet the concerns behind the amendments to Clause 4 standing in the names of the noble Lords, Lord Goodhart and Lord Phillips, to remove the direction-making powers entirely.

I shall wish to consider further the amendments suggested by the noble Lord, Lord Kingsland, and my noble friend Lord Clinton-Davis. I suspect that a duty to consult the professional bodies and others may not be appropriate having regard to the restrictive services in which I now envisage using the direction-making powers. But it may be a different matter—that is to say, in relation to consultation—in relation to any powers which are to be exercised by regulation or by order.

In common with my noble and learned friend Lord Mackay of Clashfern, I have grave reservations about the amendments in the name of my noble friend Lord Clinton-Davis and the noble Lord, Lord Kingsland—the amendment to Clause 4 which would leave out from page 3, line 14, the words "shall not" and insert "may". I share exactly the same reservations as my noble and learned predecessor in relation to weakening the protection in Clause 4(3) that those Members of the Committee seek. Clause 4(3) is intended to prevent interference by the Executive in the decisions of the commission in relation to specific cases. I agree with my noble and learned predecessor that it is supportive of the separation of powers and it is a safeguard that has always existed. As at present advised, I believe it is a necessary safeguard. Therefore, I would need considerable persuasion to dilute its effect, as sought, because if it were amended in the manner suggested, it would read, Directions and guidance under this section may be given in relation to individual cases". In fact, it is a prohibition that such directions and guidance "shall not be given" in respect of individual cases.

I thought it would be helpful to make those general observations in the context of the debate. In the light of what I have said, I invite—

Lord Clinton-Davis

Before my noble and learned friend sits down, perhaps I may make one point. I understand the fundamental point that both he and the noble and learned Lord, Lord Mackay, have made in relation to the separation of powers. Under the new system, how would such scandalous cases as the thalidomide and the asbestosis cases be dealt with if legal aid and charitable funding were not available? Would they just fall, or would some special provision be required on the part of the Lord Chancellor to deal with those situations?

The Lord Chancellor

In considering those matters the noble Lord may care to study Clause 7(7).

Lord Goodhart

I have listened with great interest and I am most grateful to the noble and learned Lord the Lord Chancellor for the detailed explanation of the thinking behind Clause 4. Obviously, I shall read what he has said with great interest. In deciding whether or not to table Amendment No. 25 again, I shall have regard to the terms of the amendment which he intends to table. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 26 and 27 not moved.]

Lord Simon of Glaisdale had given notice of his intention to move Amendment No. 28:

Page 3, line 10, after ("its") insert ("administrative").

The noble and learned Lord said: The constitutional background to this matter has been raised and argued cogently in the report of the Select Committee and was discussed on Amendment No.1. My noble and learned friend the Lord Chancellor undertook to bring forward an amendment on Report which would go some way, if not the whole way, to satisfy your Lordships about the width of the legislative powers which the Executive has taken. The matter has been taken further by the speeches of the noble Lords, Lord Goodhart, Lord Phillips of Sudbury, and Lord Clinton-Davis.

Amendment No. 28 is an attempt to narrow the scope of Clause 4(1) by limiting the direction to the discharge of administrative function. In view of what I have said about the way that this will develop before Report, I see no advantage in moving Amendment No. 28, unless my noble and learned friend or any of your Lordships would like to say something specifically on it. Unless your Lordships indicate that you wish me not to do so, I do not propose to move it.

[Amendment No. 28 not moved.]

[Amendments Nos. 29 to 31 not moved.]

Lord Simon of Glaisdale had given notice of his intention to move Amendment No. 32:

Page 3, line 14, leave out ("and guidance").

The noble and learned Lord said: Amendment No. 32 is grouped with Amendment No. 29, which was designed to leave out subsections (2) and (3) of Clause 4. The object was to try to clarify the relationship between directions, guidance and matters to be taken into account. Your Lordships discussed this matter yesterday, as the noble Lord, Lord Borrie, will remember. I believe that this is too big and amorphous a subject to be discussed at this stage. Again, I propose to enter into correspondence with the noble Lord, Lord Williams of Mostyn, who replied yesterday. I believe that is the more satisfactory method of trying to clarify our minds. Unless your Lordships would like me to do so, I do not propose to move the amendment.

[Amendment No. 32 not moved.]

[Amendment No. 33 not moved.]

Lord Kingsland moved Amendment No.34:

Page 3, line 15, at end insert ("or group actions").

The noble Lord said: Amendment No. 34 has the simple purpose of seeking to establish whether or not the phrase "individual cases" includes group actions.

The Lord Chancellor

My noble friend Lord Kingsland was commendably brief. I shall not quite match his brevity, but I shall seek to approach it.

The purpose of the amendment is to add the phrase "or group actions" at the end of Clause 4(3). At present, Clause 4(3) prohibits the Lord Chancellor, as we discussed in the course of our previous debate, from issuing guidance or directions to the commission in relation to individual cases. In this country, group actions have largely centred around mass disasters, either in the form of incidents like the Zeebrugge ferry disaster, the Kings Cross fire or product liability claims. However, a group action, as far as the commission is concerned, is no more than a collection of individual cases where the issues and the defendant are the same, or substantially the same. In my view, individual cases in context would include group actions. The Lord Chancellor would not give directions or guidance to the commission about them, but would act in accordance with Clause 4(3). Therefore, in my view, the addition of the words proposed by the amendment is unnecessary and I invite the noble Lord to withdraw his amendment.

Lord Kingsland

I am most grateful to the noble and learned Lord for his response. In those circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 35 to 37 not moved.]

6.30 p.m.

On Question, Whether Clause 4 shall stand part of the Bill?

Lord Simon of Glaisdale

I have one brief point on Clause 4 and it relates to subsection (5), which says: Directions under this section may be varied or revoked". I wonder whether that is necessary. I should have thought that common sense would determine that they certainly can be varied and revoked. It is quite unnecessary to say so. The reason why it is in the Bill is that it comes up on the computer in the draftsman's office, but if we can get rid of it we shall have achieved more than one line of elimination.

There is one other question relating to the wording that directions, may be varied or revoked". Does that not imply that guidance may not be varied or revoked? Would it not be better in every way to get rid of subsection (5)?

The Lord Chancellor

I sometimes wonder in what direction I should turn. I dare say that there might be circumstances in which the noble Lord, Lord Goodhart, would argue that directions are of such an important legislative character that they should be subject to the affirmative resolution procedure. Indeed, he might further argue that for such directions to be varied they should equally be subject to such parliamentary procedure. Therefore, I do not accept that the variation of a direction is something for which the statute should not provide. Nevertheless, in the contrast drawn by the noble and learned Lord, Lord Simon of Glaisdale, between the power to vary or revoke directions and silence about guidance, it is possible that he has a point. I am not sure that he does, however, and I should like to think about it and write to him on the matter.

Clause 4 agreed to.

Lord Kingsland moved Amendment No.38:

After Clause 4, insert the following new clause—

COMMUNITY LEGAL SERVICE AND CRIMINAL DEFENCE SERVICE REVIEW BODY

(".—(1) There shall be a body known as the Community Legal Services and Criminal Defence Service Review Body (in this section referred to as "the Review Body").

(2) The Review Body's functions shall be—

1. (a) to advise the Lord Chancellor as to appropriate target incomes for those providing services under the Community Legal Service or the Criminal Defence Service;
2. (b) to advise the Lord Chancellor as to the pricing of contracts so as to secure those target levels.

(3) In advising the Lord Chancellor, the Review Body shall suggest target levels which enable those receiving services from the Commission to obtain good quality services, and subject to that, provide the best value for money.

(4) The Commission shall consist of—

1. (a) not fewer than seven members, and
2. (b) not more than twelve members;

but the Lord Chancellor may by order substitute for either or both of the numbers for the time being specified in paragraphs (a) and (b) such other number or numbers as he thinks appropriate.

(5) The members of the Commission shall be appointed by the Lord Chancellor, and the Lord Chancellor shall appoint one of the members to chair the Commission.

(6) In appointing persons to be members of the Commission the Lord Chancellor shall have regard to the desirability of securing that the Commission includes persons with experience in or knowledge of—

1. (a) the provision of services which the Commission can fund as part of the Community Legal Service or Criminal Defence Service,
2. (b) the work of the courts,
3. (c) social conditions, and
4. (d) management.").

The noble Lord said: The purpose of this proposed new clause is to establish a review body along the lines of the review body covering doctors and dentists. It would advise on the level of fees necessary to ensure that the community legal service provides a good quality service which is available throughout the country. It is designed to reduce the risk that low payment for contracted work might lead to inadequate quality or to there being an insufficient number of contractors in some parts of the country. I beg to move.

Lord Borrie

Sometimes the noble Lord, Lord Kingsland, surprises us because he sits down so rapidly. However, I know that it is highly appreciated in this Chamber if speeches are made as short as possible. I find the amendment somewhat difficult to follow both in substance and in wording. As far as concerns the wording, which is perhaps not the most important thing, it talks about a review body but in fact it is simply concerned with reviewing incomes. Subsections (4), (5) and (6) refer to "the Commission", but the wording looks remarkably similar to that to be found in Clause 1 of the Bill. However, perhaps the reference to "the Commission" is meant to refer to "the Review Body".

We are accustomed on matters of substance to consult salary review bodies, such as those which deal with doctors and dentists and, indeed, others who work for the health service like nurses. There is also the well-known Top Salaries Review Body which deals with generals, air vice-marshals and judges. They are all in the public sector and are concerned to ensure that salaries in the public sector do not get behind those in the private sector. Indeed, inflation, which the private sector seems to be capable of coping with better than the public sector, has often led the latter to need a review body in order to ensure that its salaries do not slip behind inflation. That also applies to the standard of living of those in the private sector, which has often improved at an even better rate than inflation.

The amendment seems to be designed to assist those who are in the private sector; that is, those who are in the business of offering their legal services in competition with others—presumably competition both on the basis of price and in terms of quality of service. It seems as if this is some sort of attempt to obtain for lawyers the combined advantage of being in the free market economy and yet also having the benefit of secure or more secure incomes.

Finally, this proposed new clause is intended to follow Clause 4. It would form part of Part I of the Bill, the purpose of which, as my noble and learned friend the Lord Chancellor has repeated more than once, is to provide access to justice for those who seek to pursue claims of various kinds. It is meant to be for the users and not the providers; in other words, it is meant to provide facilities for the users of legal services rather than to provide succour for the providers.

Baroness Crawley

The effect of the amendment would be to create a review body for the community legal service and/or for the criminal defence service. I share the concern of my noble friend Lord Borrie in the matter. Current review bodies are there to represent the interests of the public sector. It seems to me that, at best, this is an inappropriate amendment. The public, who are familiar with the culture of review bodies which protect those in the public sector, would not understand the proposal for such a body designed to protect those who are obviously very much in the private sector. Like my noble friend Lord Borrie, I cannot support the amendment.

Lord Kingsland

I thank the noble Lord, Lord Borrie, for pointing out, first, what is an obvious misprint and, secondly, something which I am sure is entirely my fault. Subsections (4), (5) and (6) of the proposed amendment clearly belong elsewhere. I apologise to the Committee for the error which, as I said, I am sure is entirely mine.

The Lord Chancellor

I have to confess that I was rather puzzled that the noble Lord, Lord Kingsland, seemed to have such an affection for Clause 1(3) that he borrowed it, without a word of acknowledgement, in order to add it to his interesting suggestion about a new review body.

I tend to wish to echo what my noble friends behind me have said. Review bodies generally exist to protect groups such as public sector employees from the risk of what I suppose could be called "exploitation by the state". However, providers of services under the community legal service and the criminal defence service will be characteristically different from public employees. Indeed, most will have sources of income other than those funded by the legal services commission. They will be professional solicitors and barristers operating essentially in the private sector. They will be competing with other service providers for contracts for publicly-funded legal services.

I cannot accept these amendments. They seem to me to be aimed simply at targeting public money to keep lawyers in the manner to which they have become accustomed. I should have thought we had by now made it plain enough that we are modernising the provision of legal services to concentrate public money on those who most need it. It is not intended to create more jobs for public servants supporting a review body, nor to ensure that lawyers, all of whom work in the private sector, obtain a certain portion of the public finances.

I say to the noble Lord, Lord Kingsland, that if this amendment were passed, the money spent in meeting targets and running the review body would have to come from the money allocated for the delivery of services. When the noble Lord responds I shall be pleased if he could inform us which cases I should no longer fund in order to pay for the costs of the review body.

The truth is that those who require certainty of income seek salaried employment. The Committee will recall from Second Reading that a number of noble Lords spoke at length about the perceived perils of employed lawyers. If lawyers wish to provide services from within the private sector to the public sector for reward, they must accept the rigours of the market and compete for contracts to undertake publicly funded work.

The Government want good lawyers to do legal aid work. We want to have arrangements which encourage good lawyers to do this in sufficient number and to the right quality, and seek to put such provisions in place in this Bill. However, the Government have no duty to help lawyers achieve target incomes. We are unwilling to establish a review body whose task would be to help to achieve that. On reflection I invite the noble Lord, Lord Kingsland, to withdraw his amendment.

Lord Kingsland

I shall not press this amendment, but there are some matters to which the noble and learned Lord the Lord Chancellor referred which give me some cause for concern. First, as I understand it, the noble and learned Lord the Lord Chancellor will furnish advocacy rights in the courts to public employed officials in the Crown Prosecution Service, and perhaps in the newly-established defence service. Those officials will certainly fall within the category of public servants to which he and the noble Baroness, Lady Crawley, referred. Therefore to that extent the review body is on all fours with the other review bodies to which I referred.

As regards the private sector, to the extent that the private sector is financed by funds coming through the community legal service and the defence service, these funds are public funds. The object of using these public funds is to provide access to justice for people who deserve it. There must come a point in the individual financing of these funds when the money provided to independent lawyers in private practice from the public sector is so low as either to discourage them from participating in the provision of publicly funded legal services at all, or seriously and adversely to affect the quality of the services provided.

While I have no intention of pressing the concept of the review body, the nature of the reply of the noble and learned Lord the Lord Chancellor to me about the terms on which the private sector provides its services gives rise to some cause for concern which no doubt will be expressed in more detail when later amendments arise which touch on this matter. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

6.45 p.m.

Lord Clinton-Davis moved Amendment No. 39: After Clause 4, insert the following new clause—

CONSUMERS' COMMITTEES

(" .—(1) The Commission shall establish committees, to be known as consumers' committees, for the purposes of this Part.

(2) Each consumers' committee shall be appointed for an area in England and Wales as determined by the Commission.

(3) Each consumers' committee shall consist of—

1. (a) a chairman appointed by the Commission after consultation with the Lord Chancellor; and
2. (b) such other members as the Commission, after consultation with the chairman, may from time to time appoint.

(4) It shall be the duty of the consumers' committees—

1. (a) to keep under review matters affecting the interests of consumers of legal services in the committee's area; and
2. (b) to advise the Commission on any matter relating to the discharge of its functions.").

The noble Lord said: It may be for the convenience of the Committee to discuss with Amendment No. 39, Amendments Nos. 49 and 83 which are consequential on Amendment No. 39. Amendment No. 39 seeks to build on the work that has been carried out, and is still being carried out, by the regional legal services committees, and to reinforce them and the underlying intention of the Bill by establishing that users of legal services stand at the heart of the new community legal service.

The White Paper states at paragraph 2.12 on page 15 that the legal services commission, will find ways to work in partnership with local communities, local government and other funders. These partnerships will build on the links and structures already established by the Legal Aid Board through its Regional Legal Services Committees; these will continue to have the role of advising the LSC on how best to deploy the resources of the Community Legal Service fund to meet priorities across the region as a whole".

The establishment of consumer committees would be a positive way to demonstrate that it is intended they will play a full part in providing a network of committees to assist the commission to identify local need and advise it on how it should discharge its duties. Although the regional legal services committees have a vital role to play in assessing the need for legal services, gathering information on the supply of legal and related services, identifying regional priorities, developing a regional strategy and monitoring implementation of that strategy, they are neither independent nor are they focused on the needs of users of legal services. A member of the Legal Aid Board currently chairs each RLSC, which also receives administrative support from the local legal aid office. In addition, the legal aid area office manager is an ex officio member of each committee.

A new consumer committee structure would be of assistance in ensuring that real demand and needs are being met from the point of view of those who use legal services and those organisations which have experience and knowledge of working with legal service users. These organisations in particular are well placed to gauge demand and unmet need in an objective way. The amendment seeks explicitly to establish the principle that consumers and their representative organisations have an important and independent role to play. I beg to move.

Lord Renton

Although I do not hold myself out as agreeing totally that the area committees which the noble Lord has put forward should be known necessarily as consumer committees, I think he has raised an important matter which is not otherwise dealt with in the Bill; namely, how the legal aid scheme to be available under this Bill is to be dealt with locally.

It so happens that under the present legal aid scheme we have for many years had area legal aid committees. Indeed I served on one many years ago which covered south-east England. I believe it covered the counties of Kent, Surrey and Sussex. We had the responsibility of deciding in individual cases whether legal aid should be granted.

I may have missed something, but I have been looking through Clause 5 and later clauses to see whether there is anything in the Bill analogous to area legal aid committees, with all their detailed responsibilities in individual cases. If I may have the attention of the noble and learned Lord the Lord Chancellor, I am very anxious for him to indicate whether there is anything that is either in the Bill or that he has in mind for dealing with cases locally. One way of doing so would be through the committees proposed by the noble Lord, Lord Clinton-Davis, provided that we give them adequate powers. This is a very important matter. We cannot have legal aid entirely centralised.

Lord Meston

I agree with the noble Lords, Lord Renton and Lord Clinton-Davis. It is important that the commission has adequate and up-to-date information from individual areas, particularly as an inevitable effect of this Bill will be to reduce the availability in certain areas of firms able to do legal aid work as it is presently understood. If there is to be a selective reduction in the availability of firms able to do this sort of work, it is very important that the commission should have local information provided by those on the ground.

I also agree with the noble Lord, Lord Renton, that the use of the word "consumer"—which we debated earlier this afternoon—is not too appropriate here. I could not help noticing that the noble Lord, Lord Clinton-Davis, used the word "consumer" rather than "user". If this amendment, in any form, is to become part of the Bill, I suggest that the word "consumer" should be replaced by the expression "users of legal services"—perhaps excluding convicted criminals.

The Lord Chancellor

The purpose of the amendment is to set up committees of consumer representatives which would keep consumer interests under review in relation to the provision of legal services in each area. I have listened carefully to this debate and I shall certainly write to the noble Lords, Lord Renton and Lord Clinton-Davis, on their concerns.

However, the whole focus of the new scheme is to create partnerships at local level between the local authorities, local providers of services, advice centres and law centres through the medium of the community legal service. It is intended to have a sharp local focus, to entail the ascertainment of need locally and the development of plans to meet these local needs.

The consumer interest is first of all to be represented on the commission under Clause 1, and it will also be represented on the regional legal services committees appointed by the commission under paragraph 12 of Schedule 1 to the Bill. They will be acutely concerned with the ascertainment of local conditions.

Further, these regional legal services committees around the country will include representatives of consumer interests. How else could the commission assess need under Clause 5(4)? Subsection (4) provides that: The Commission shall also inform itself about the demand for services and the provision of such services … and quality of the services provided". There is no doubt that it is intended that there should be a sharp appreciation of local need through the medium of these bodies.

I am reluctant to accept this amendment because, in my view, it would create an extra layer of unnecessary bureaucracy. However, I shall consider the debate and fulfil my undertaking to write to both noble Lords as I have promised.

Lord Clinton-Davis

I thank my noble and learned friend for his semi-positive response. I shall welcome his letters. I thank the noble Lords, Lord Renton and Lord Meston, for their contributions. I entirely agree that the use of the word "consumer" is unhelpful in this context. Certainly I would commend the use of the phrase "users of legal services", or something comparable, as the noble Lord, Lord Meston, suggested, if the idea underlying this amendment were eventually to find favour with my noble and learned friend.

I am concerned about the relationship between the community legal services and the regional legal services committees. We need to concentrate on that. I know that my noble and learned friend will deal with that in his letter, but I am not convinced that having a particular consumer representative on one body will provide the degree of expertise and local or regional awareness that is currently being provided by the RLSCs.

I accept that, as indicated in the White Paper, it is intended to provide a sharp legal focus. I just want to see it sharpened up a little bit more. Having said that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 5 [The Community Legal Service]:

[Amendments Nos. 40 to 42 not moved.]

Lord Simon of Glaisdale moved Amendment No. 43:

Page 3, line 38, leave out subsection (4).

The noble and learned Lord said: This amendment seeks to leave out subsection (4) of Clause 5. I can deal with it very shortly. If it is left out, would the commission be precluded from doing the things that that subsection says it can do? To put it another way, if the subsection were left out, could not the commission do precisely those things which it is enabled to do in the subsection? I beg to move.

The Deputy Chairman of Committees

I have to advise noble Lords that if Amendment No. 43 is agreed to I cannot call Amendments Nos. 44 to 53 inclusive.

Lord Borrie

I am not sure whether I know the answer to the specific question put by the noble and learned Lord, Lord Simon of Glaisdale. This clause is very instructive in giving a role to the legal services commission by linking it with other funders of services such as local authorities and citizens advice bureaux. I shall not repeat what I said earlier on another amendment about the value of citizens advice bureaux in giving frontline advice to people who may have a problem but perhaps do not yet know whether it is a legal problem. The National Association of Citizens Advice Bureaux provides a great deal of support, with the aid of lawyers, in the form of providing information, very often of a legal kind, to the people who work locally in branches, who may be volunteers or paid people. But it seems of some value that in Clause 5(4) there is mention of accreditation of other organisations and of monitoring those organisations.

7 p.m.

Lord Simon of Glaisdale

Does the noble Lord really think that it could not be done without that subsection?

Lord Borrie

I have already indicated to the noble and learned Lord that I am not sure what the specific answer to that question is. However, because I know the noble and learned Lord has a general feeling, which he has made clear on other occasions, that the Bill should as far as possible be shortened and that one does not want unnecessary detail, a feeling with which I concur, I was simply indicating that there are some useful words, including monitoring and accreditation, in this subsection which may be helpful when in the future people are asking what is intended by the clause.

Baroness Goudie

Law centres make legal services available to individuals who would not otherwise have access to them. They have a broad interest in local communities. If this subsection were to be removed, we would not have the services of the local authorities which would assist in funding and of the other bodies involved. This is an important clause in terms of assisting in the running of law centres and ensuring that law centres may flourish in parts of the country where there are no law centres at the moment and where there is a great need of the services they have to offer, especially to those who are greatly deprived. I may speak a little more on this subject later in our proceedings.

The Lord Chancellor

It is surely not the most important question whether the commission would have the power to do these things in the absence of Clause 5(4). The more important issue is whether this is an absolutely central provision which goes to the very heart of what the commission is about and tells ordinary people in fairly clear English what the object of the new scheme is.

Clause 5(1) states: The Commission shall establish, maintain and develop a service known as the Community Legal Service with a view to there being available to members of the public", a range of services. That is the primary purpose. Subsection (4) addresses how the commission is to go about doing that. Unsurprisingly, what it has to do is inform itself, under Clause 5(4), about the demand for services of the descriptions listed in subsection (1), then find out to what extent they are actually provided and what is their quality and then go on, in co-operation with appropriate authorities and other bodies, to see what can be done to meet the established demand. That appears to be very clear and very useful to have on the statute book for ordinary people to understand what the object of the scheme is. If Clause 5(4) were taken away, it would be taking away the provision that is central to the ascertainment of need which the community legal service is set up to meet and it would be taking away the provision that is equally central to the development of co-operative planning among all providers, which, as the noble Baroness, Lady Goudie, said, is essentially the raison d'être of the community legal service.

Amendment No. 48 is grouped with Amendment No. 43. Curiously, under Amendment No. 43, the noble and learned Lord, Lord Simon, wants to remove the whole of Clause 5(4), but in Amendment No. 48 he wants to remove only the part providing for a co-operative development, led by the commission, to develop a community legal service. With respect, I have difficulty in following this point. These provisions are central to the purposes of the community legal service and, for my part, I intend them to remain there.

Lord Simon of Glaisdale

I asked my noble and learned friend the Lord Chancellor whether, if the subsection were omitted, the commission could do exactly the thing which it is there said it can do. My noble and learned friend said that that is not the most important question. That may be so, but it was the question he was asked and it was the question that he did not answer. That is significant. This type of drafting is teaching one's grandmother to suck eggs. One really must leave a body like this to do the ordinary things that any sensible body would do. We cannot continue to clutter up the statute book with a whole number of unnecessary provisions.

My noble and learned friend said that the provision tells people in language they can understand what can be done. He referred to accreditation and monitoring. Is that the language which people normally use? In the end, my noble and learned friend must make up his mind whether he concedes that it is part of the duty of a Minister in charge of a Bill to avoid cluttering up the Bill with unnecessary provisions just because he wants to make everything plain. Does he not recognise that unnecessary provisions are very expensive to the taxpayer, with duplication in the Bill at every stage, and expensive to the user, who has to pay a large sum unless he is unfortunate enough to be in a government department?

I said at the outset of the Committee stage that I would not press to a Division any of my amendments. I shall of course observe that. But I hope that my noble and learned friend will not take that to be a seal of approval for his dealing with this amendment. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Kingsland moved Amendment No. 44:

Page 3, line 38, after ("itself") insert ("and the public").

The noble Lord said: The simple purpose of this amendment is to require the commission to make public the information that it gathers under this subsection about the demand for services provided by the commission. I beg to move.

The Lord Chancellor

Again, the noble Lord does not over-exert himself in developing the amendment, explaining it to the Committee or urging the cause of the amendment upon the Committee. Mercifully, I have read the amendment. It proposes that Clause 5 should be amended to place a duty on the commission to inform the public of the demand, or need, whichever word is chosen, for legal services. I welcome the noble Lord's support for the move to greater openness on the part of public bodies such as the commission.

However, I am not minded to accept the amendment as I believe it to be unnecessary. Schedule 1 already contains measures that will place a duty on the commission to publish an annual plan for each financial year. That annual plan will be laid before each House of Parliament. The plan will show the commission's assessment of need and how it intends to meet the need for legal services over the forthcoming financial year. It will summarise the findings and advice of the regional legal services committees, which will have been published in full as regional strategies. The first of the regional strategies undertaken by the RLSCs were issued for public consultation in the autumn of last year. Further detail about the basis of the plan will be available under the open government code of practice. The commission will also be required to publish, under paragraph 14 of Schedule 1, an annual report on the commission's performance against the annual plan. Therefore, the public will be fully informed and the amendment is not necessary. On that account, I invite the noble Lord to withdraw it.

Lord Kingsland

In response to the noble and learned Lord's elucidating and helpful response, I am happy to beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Goodhart had given notice of his intention to move Amendment No. 45:

Page 3, line 38, after second ("the") insert ("current and probable future").

The noble Lord said: In view of government Amendments Nos. 46, 51 and 52, I do not propose to move this amendment or Amendments Nos. 47 and 50.

[Amendment No. 45 not moved.]

Lord Falconer of Thoroton moved Amendment No. 46:

Page 3, line 38, leave out ("demand") and insert ("need").

The noble and learned Lord said: With the leave of the Committee, perhaps I may speak also to Amendments Nos. 51 and 52. These amendments would require the legal services commission to inform itself of the need for legal services and to plan what can be done towards meeting that need. The provision also requires the legal services commission to facilitate the planning by others of what can be done to meet the need for legal services. The amendment replaces the requirement for the commission to inform itself of "demand". I am grateful to the National Consumer Council and to the noble Lords, Lord Goodhart and Lord Phillips of Sudbury, for bringing this matter to the Lord Chancellor's attention through their amendments.

I cannot accept the noble Lords' amendments. I do not think there is any point in going into the reasons. I agree that the focus on need incorporates a concept of reaching those who do not currently seek help and is not merely a snapshot of current requests for information, advice and assistance in the same way as demand. The concept of need also clearly excludes unmeritorious demand, which is of obvious importance to our reforms of the justice system. The idea of matching the provision of legal services to the needs of local communities is at the heart of our vision of the community legal service. I invite the Committee to agree that Clause 5 be amended.

On Question, amendment agreed to.

[Amendment No. 47 not moved.]

7.15 p.m.

Lord Simon of Glaisdale moved Amendment No. 48:

Page 3, line 40, leave out from second ("and") to end of line 41.

The noble and learned Lord said: This amendment is yet another attempt to get rid of unnecessary words. The commission is to inform itself about the need for services, whether those services are on tap, the provision of such services and their quality. The subsection continues, and, in co-operation with such authorities and other bodies and persons as it considers appropriate". it should meet the requirements of paragraphs (a) and (b).

If the words were omitted, would the commission be precluded from doing what it is enjoined to do under paragraphs (a) and (b) if it co-operated with others whom it deemed appropriate?

I wish to put the matter again specifically. If these words were omitted, would the commission be precluded from acting in co-operation? That question can be answered yes or no. If, as I suspect, the answer is that the commission can act in co-operation in the absence of those words, what is the justification for including those words? I hope that I shall not hear about "flexibility" or "making things plain". I press the Minister to make absolutely clear whether those words make the slightest difference to the subsection. I beg to move.

The Deputy Chairman of Committees (The Viscount of Oxfuird)

I must advise the Committee that, should this amendment be agreed to, I cannot call Amendment No. 49 due to pre-emption.

Lord Mackay of Clashfern

It is important to note that subsection (4) does not merely give power to the commission, but imposes an extremely important duty upon it; namely, that it should seek to co-operate with other authorities. There is a tendency, particularly in some forms of central government organisation, to carry on as if it were not necessary to seek help from local organisations.

I was conscious of the other difficulty; namely, that if central government, with its money, comes into an area, the financially pressed local authority is apt to withdraw its resources from the area and leave matters to the Government. Local community services—local law centres, community law centres, or whatever we may choose to call them; they are given a variety of names, but fortunately their principal purposes are much the same—are important in building up the community legal service. Without these express words, the commission may have a power but not a duty to co-operate. Therefore, the words that the amendment seeks to delete are important to the success of the community legal service. I hope that the noble and learned Lord the Lord Chancellor will not feel moved to accept the amendment.

Lord Renton

I should like to follow what my noble and learned friend Lord Mackay of Clashfern said. We have not been informed as to the community basis on which Clause 5 and the following clauses are to be administered. What are to be the areas concerned? Is it to be done on the basis of what at the Bar we call the "circuits"? Is it to be done on the basis of the regions of England and Wales? Is it to be done on some local authority basis, as was suggested by my noble and learned friend? We should be able to understand this so that we can know what the Government's intentions really are. I hope that between now and Report the Government will amplify Clause 5 so as to make clear the local basis on which the community services are to be administered.

Baroness Goudie

I support what the noble and learned Lord, Lord Mackay of Clashfern, said. I agree wholeheartedly with him that, if the local authorities and other bodies do not work closely with the regional committees, the law centres will not have a chance to survive. At the moment, as I said earlier, they do not survive very well. We need them to flourish. If we do not have careful planning with local authorities, the system will not work. It is important that this clause should remain in the Bill.

The Lord Chancellor

The noble and learned Lord, Lord Simon of Glaisdale, has the advantage of having two bites at the cherry. Amendments Nos. 43 and 48 were grouped and I have already spoken to both.

It appears that the noble and learned Lord, Lord Mackay of Clashfern, has met the noble and learned Lord's point. It is not a question of whether Clause 5(4) is unnecessary because it confers powers which inhere in the commission in any event. It imposes a duty upon the commission and the commission would not be under such a duty unless it were imposed by statute. That appears to me to be a complete answer to the noble and learned Lord's point.

I have already undertaken to write to the noble Lord, Lord Renton. The position is that the Legal Aid Board is currently in discussions with the local authorities to develop plans for each of their areas. What is particularly in view is a local authority-based community legal service. I shall amplify this point in the letter which I have promised the noble Lord.

Lord Simon of Glaisdale

Of course, this clause imports a duty. I read the very words imposing the duty: "The Commission shall also". I agree with those who referred to the importance of acting in concert, where appropriate, with a local authority and other local voluntary bodies. But, with respect, my noble and learned friend Lord Mackay of Clashfern and his supporters are proving too much. If they are right, the commission shall perform the functions set out in paragraphs (a) and (b), in co-operation with such authorities and other bodies and persons as it considers appropriate". But let us suppose that it considers that it can perfectly well act without needing anyone's co-operation. Is it acting improperly? With great respect to my noble and learned friend and the noble Baroness, it seems to me that those words do not advance the purpose of the Bill. If we can get rid of even a word or two which are unnecessary, it is our duty to do so. However, in pursuance of my previous undertaking, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 49 and 50 not moved.]

Lord Falconer of Thoroton moved Amendments Nos. 51 and 52:

Page 3, line 42, leave out ("demand") and insert ("need").

Page 4, line 2, leave out ("demand") and insert ("need").

The noble and learned Lord said: I have spoken to these amendments previously. I beg to move.

On Question, amendments agreed to.

Lord Archer of Sandwell moved Amendment No. 53:

Page 4, line 3, at end insert (", and (c) where appropriate, co-operate with such other authorities, bodies and persons in providing services of the descriptions specified in subsection (1).")

The noble and learned Lord said: The amendments which my noble and learned friend Lord Falconer moved a little earlier have reduced the passion with which I might have been minded to introduce this debate, but I hope that my noble and learned friends will forgive me if I take a moment to request information, advice and assistance.

Concern was expressed at an earlier stage about the proposed system of exclusive contracting being likely to lead to a substantial diminution in the number of firms of solicitors supplying legal services. That was referred to by my noble friend Lord Clinton-Davis and the noble Lord, Lord Phillips, on Second Reading. I understand the need to maintain standards. Some firms which will no longer be supplying services will, frankly, not be missed.

However, that may mean that in some areas there will be no ready access to some kinds of expertise. An obvious example is immigration law. The number of firms with a franchise is now not large; there may be only a limited number left with a contract for providing that service. The Legal Aid Board has already indicated that, leaving the present Bill aside, it will need to adopt a more proactive approach to ensure that access to that expertise is available in certain areas where there is a demonstrable need for it. It seems to be envisaged that medical negligence work will be confined to about 170 firms.

Provision of the kind which the Committee was discussing a few moments ago exists. The practising profession, law centres, citizens advice bureaux and financial advice centres, will all have a part to play; but there will also be a need to see where gaps remain and to address that problem.

As I understand it, one purpose of establishing the commission is that it will actively determine where the need lies and try to ensure that it is met. That was established, if it needed establishing, in the previous debate. Clearly, there is a duty on the commission to do that. I wondered what would be the mechanics of its doing it. What will be its sources of information about the needs in a particular area? Will it consult? Will it write circulars to various local authorities and bodies? Will it rely upon people writing letters to it? It would be helpful if my noble and learned friend could elaborate on how he envisages that happening. It is fine to impose a duty on someone, but one must have an idea of how it will be addressed.

The purpose of Amendment No. 53 is two-fold: first, to state on the face of the Bill an intention that that will happen; and, secondly, to invite my noble and learned friends, or one of them, to tell the Committee in a little more detail how it is envisaged that the commission will find out the existing need, co-ordinate the existing provision and make the necessary arrangements where it does not so exist. I should have said at the outset that it might be for the convenience of the Committee to consider with this amendment Amendment No. 62.

One of the messages that I believe the Bill seeks to address is the mosaic of bodies which afford legal services and assistance to the public and the patchwork quilt of sources from which they are funded. Some years ago a count was made and it was found that there were nine different government departments which funded one service or another. In circumstances where sometimes one source deals with a specific range of problems and one agency may have to refer a client to another agency because different advice is required, how that co-ordination takes place requires consideration. We all know that human situations do not always come neatly packaged and labelled with the appropriate advice and relief that is required.

I turn to the geographical area that the Committee discussed in the previous debate. It is clear from Clause 7(4) that it is intended that the commission should distinguish not only between different descriptions of cases but different areas. I hope that my noble and learned friends can tell the Committee something about the relationship between the practising profession, the commission and local authorities. For example, law centres are frequently funded by local authorities. As the noble and learned Lord, Lord Mackay of Clashfern, indicated, it would be a tragedy if local authorities said that they no longer needed to fund law centres because the legal services commission would provide all the necessary advice. But if the commission decided that its first concern was to make provision in areas where the local authority had not done so, the more conscientious local authorities would be penalised. Therefore, the purpose of this amendment is to impose a duty not only on the commission but on local authorities to participate in this exercise.

As I understand it, at present there are some 700 citizens advice bureaux with a further 1,700 to 1,800 outlets. There are some 800 independent advice centres and 53 law centres. Together they receive over £150 million in funding by local authorities. In their White Paper the Government said that spending from the various sources would be considered as a whole. I hope that it will. But I am not wholly clear what that means and what is meant by taking the various sources of funding into consideration.

In moving this amendment I seek to afford my noble and learned friends the opportunity to tell the Committee how they see the commission co-ordinating the various sources of funding, how it will be done both nationally and locally and what role it is envisaged local authorities will play. I beg to move.

7.30 p.m.

Lord Phillips of Sudbury

I listened with great interest to the words of the noble and learned Lord, Lord Archer of Sandwell. Without doubt he touched on one of the central issues of the Bill: the precise effect of exclusive contracts via the tendering process. My Amendment No. 77 seeks to address this matter head on. I believe that the amendment that the Committee is now considering is an indirect way of dealing with the central issue. Therefore, I defer my comments on the issue of exclusive contracting and tendering until the Committee comes to Amendments Nos. 67 and in particular Amendment No. 77. In general, I very strongly support the sentiments expressed by the noble and learned Lord, Lord Archer of Sandwell.

Lord Falconer of Thoroton

I deal with Amendments Nos. 53 and 62 together. I echo the remark of the noble Lord, Lord Phillips of Sudbury, about the most effective way of dealing with the various issues that have been raised. My noble and learned friend Lord Archer of Sandwell has addressed the issue of whether or not we are restricting access to justice by limiting the number of solicitors who may be available. The noble Lord, Lord Phillips of Sudbury, is right. His amendment, Amendment No. 77, goes to the very heart of that issue. Without any disrespect to my noble and learned friend, perhaps I may defer my response to that very important issue until we come to that amendment because I believe that it arises more clearly in the context of that amendment. I suspect that other members of the Committee will also wish to address the same point. Therefore, it is perhaps better to deal with it at that stage.

My noble and learned friend raised a number of other important issues in relation to the two amendments. As to Amendment No. 53, he asked how the body would assess the need as required by the Bill. The regional legal services committees and the Legal Aid Board have already done a lot of valuable work on modelling needs. In their consultations in the regions they have extended and modified the modelling that they have done. The work that is now being undertaken jointly with local authorities, particularly in pioneer areas, will enable further extension and refinement of the work. As one would expect, they also have good contact not just with the local authorities but with advice centres, providers of legal services, law firms and all the other agencies that will deal with people who do or may need legal services. We cannot be too prescriptive in relation to that issue. It is really for the bodies themselves to work out the best way to consult and discover the information that they want.

Separately from that in relation to the first amendment, my noble and learned friend Lord Archer raised the question of immigration advice and said that there were few franchises in that respect. I am aware that many providers of immigration advice are unfranchised. It is the intention of the Legal Aid Board to offer short-term contracts to help firms get up to a standard where they can get a franchise to deal with immigration problems. I should like to think that we are aware of that problem and seek to deal with it as urgently as possible. We also envisage contracts for second-tier advisers who can support front line advisers who lack expertise. There is also power in Clause 7 to establish new bodies who can employ people directly.

I turn to Amendment No. 62. At the heart of this proposal, which I take to be a probing amendment, is the question: what are we doing to ensure that there is proper co-ordination between the providers of legal services, the legal services commission, the Lord Chancellor and the local authorities? While I cannot support the amendment, officials of the Lord Chancellor and the Legal Aid Board have been working closely with individual local authorities to develop the concept of the community legal service partnership. The intention is that this will provide a forum in which the local authority, the legal services commission and if possible other significant funders and providers will come together to co-ordinate funding and planning of local legal and advice services to ensure that the delivery of services better matches the needs of local communities.

Local authorities have shown great enthusiasm and willingness to be involved in this initiative. The idea of community legal service partnerships will be developed in pioneer local authority areas. The five local authorities that have agreed to be pioneer areas are: Liverpool, Norwich, Nottinghamshire, Kirklees and Southwark. They will develop best practice models by testing methods of needs assessment, categorisation of services and encouraging the development of referral networks within local services.

The pioneer areas will be subject to an evaluation and monitoring exercise by the Lord Chancellor's Department. The aim is that it should be completed by the end of this year. We are also looking to have a larger number of other local authorities as associate pioneer areas. This means that the local authorities will be actively assisting in the development of community legal service partnerships, but they will not be subject to the same degree of monitoring.

Our mission is to build partnership. At this stage I believe that an inclusive and co-operative approach to local authorities is more effective than any attempts at coercion. That is already demonstrated by the results we have achieved. The work of the pioneer and associate pioneer areas and the move to best value by local authorities should provide more than sufficient incentive for local authorities to work co-operatively with the legal services commission and others. In the real world, I believe this is the best that can be achieved currently. I hope that that I have gone some way to answering the questions raised by the noble and learned Lord in his helpful amendment. However, I invite him to withdraw the amendment.

Lord Archer of Sandwell

First, I apologise for partially pre-empting the later amendment in the name of the noble Lord, Lord Phillips. If we had seen the amendment at an earlier stage, we might have been able to make representations about the grouping. But that is one of the vicissitudes of debate in this Chamber.

I am most grateful to my noble and learned friend Lord Falconer for the information he has given. I should like to read it at leisure—if we ever have any leisure during the course of the Bill—and to reflect on it. I am content to leave the matter there. Perhaps I may say a few words on what he said about the duty on local authorities. I believe there is a genuine problem. Those local authorities which are the most conscientious could be the most heavily penalised while the free riders get away. However, I note what my noble and learned friend said. He is obviously optimistic about the future for encouragement and co-operation. I should be running contrary to my normal nature if I were to argue with that. For now, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Hunt of Kings Heath

This may be a convenient moment for the Committee to adjourn. I suggest that the Committee stage resumes at 8.45 p.m.

[The Sitting was suspended from 7.42 to 8.45 p.m.]

[Amendments Nos. 54 and 55 not moved.]

Clause 5, as amended, agreed to.

Lord Kingsland had given notice of his intention to move Amendment No. 56: After Clause 5, insert the following new clause—

INDEPENDENCE OF SOLICITORS AND BARRISTERS

(" . Nothing in this Act shall prevent there continuing to exist an independent solicitors' profession and an independent Bar.").

The noble Lord said: In view of what was said by the noble and learned Lord the Lord Chancellor in his response to Amendment No. 1, I shall not move Amendment No. 56.

[Amendment No. 56 not moved.]

Lord Clinton-Davis moved Amendment No. 57:

Page 4, line 12, leave out ("appropriate") and insert ("necessary").

The noble Lord said: I understand that the Government will make available a fixed amount of resources each year and that it is the duty of the commission to allocate those resources. The number and type of people and cases to receive assistance each year will depend on the resources allocated and the demand. The first question which arises is: is there any danger of the money available running out and, if so, what happens then?

There is nothing in the Bill—I should not have expected there to be—to indicate how much the Government intend to make available for legal aid. However, they have said that it is not their intention to reduce current spending overall. There is nothing in the Bill which would commit this or any future Government to continue spending at or about current levels.

The amendment, which is only a probing amendment, will ensure that the "necessary" rather than the "appropriate" level of resources are committed by the Government. I beg to move.

Lord Goodhart

Amendment No. 58, which stands in my name, is grouped with Amendment No. 57. Their purposes are the same. The effect of the Bill is that civic legal aid will be cash limited. Clause 6 provides that: The Lord Chancellor … shall pay to the Commission the sums which he determines are appropriate for the funding of services by the Commission". We all recognise that the person who determines what is appropriate is not the Lord Chancellor, but the other Chancellor: the Chancellor of the Exchequer. We believe that there must be some criteria for deciding what is appropriate. It is not appropriate for the Lord Chancellor, or still less for the Chancellor of the Exchequer, to decide simply out of the blue what is the appropriate sum to provide for services funded by the community legal service.

Under Clause 5(4), the legal services commission is rightly given the duty to inform itself of the need for services. That is relevant to the commission's duty to prepare its own plans for services, but it is also highly relevant in deciding what is the appropriate total sum for the funding of the service. Whichever Chancellor it is who takes that decision, it should be taken, surely, in the light of the information provided by the commission under Clause 5(4). That is the purpose of the amendment. I hope that the Lord Chancellor will be able to give some indication of what factors will be taken into account in deciding what is the appropriate sum.

The Lord Chancellor

There is an important difference between Amendments Nos. 57 and 58. I deal first with Amendment No. 57 in the name of my noble friend Lord Clinton-Davis and the noble Lord, Lord Kingsland. They have proposed an amendment which would require the Lord Chancellor to pay the sums to the legal services commission which he determines are necessary, rather than appropriate, for funding the community legal service.

By comparison, in Amendment No. 58, the noble Lords, Lord Goodhart and Lord Phillips of Sudbury, wish to amend Clause 6(2)(a) and Clause 7(1) to impose a duty on the Lord Chancellor and the commission to have regard to the information on the need for services which has been collected by the commission under Clause 5(4). In the case of the Lord Chancellor, it will be when he is determining the appropriate sums for the funding of services by the commission. In the commission's case, it will be when settling its priorities for the funding of services.

I am willing to consider further the amendments tabled by the noble Lords, Lord Goodhart and Lord Phillips, and to come back to the House on Report. The Lord Chancellor and the commission would inevitably consider need and the setting of priorities in allocating money to the community legal service. But I agree that amendments along these lines may provide an important commitment on the face of the Bill that the need for services which has been identified by the commission will be taken into account.

On the other hand, with respect to my noble friend Lord Clinton-Davis and the noble Lord, Lord Kingsland, I could not accept the form of words which they propose in Amendment No. 57. It bears the meaning that I should make available the sums which I determine are necessary to meet all the needs that have been identified. That would not be to live in the real world. Would that I could guarantee to meet every need; but I cannot. Whatever form of words may emerge, they cannot restrict the essential discretion which must be had if we are to meet priority needs under the disciplines of a controlled budget as distinct from an open-ended one.

On the basis of those indications about the course which I propose to follow on Report, I invite my noble friend to withdraw the amendment.

Lord Clinton-Davis

As a denizen of the unreal world, I have listened to what my noble and learned friend has said and I should like to reflect on it. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Goodhart had given notice of his intention to move Amendment No. 58:

Page 4, line 12, after ("appropriate") insert (", having regard to the information gathered under section 5(4),").

The noble Lord said: I shall not go quite as far as did the noble Baroness, Lady Wilcox, earlier today by saying, "Gosh, thanks". I certainly welcome the words of the Lord Chancellor about this and I look forward to seeing what form of words he produces. Therefore, I shall not move the amendment.

[Amendment No. 58 not moved.]

[Amendments Nos. 59 to 65 not moved.]

Lord Kingsland moved Amendment No. 66:

Page 4, line 24, at end insert—("( ) Where, in an individual case funded as part of the Community Legal Service, particular services are provided by a person offering specialist advice and assistance on a referral basis or specialist advocacy, regulations shall require that person's remuneration to be quantified and paid separately from other items in the case.").

The noble Lord said: This is one of a number of amendments which refers to the question of referral and specialist advocacy. There are two situations which I wish to draw to the attention of the Lord Chancellor.

The first concerns the responsibility of the commission when looking at categories of cases rather than individual cases. In this case, Amendment No. 93 urges the commission, in the interests of justice, to set out those services which it believes should be provided by way of specialist advice or assistance offered on a referral basis or requiring specialist advocacy. In circumstances where the commission concludes that such cases merit such treatment, the amendment goes on to require that appropriate funding arrangements are made.

This amendment seeks to meet the concern that standards of special advice and advocacy may be excessively market-driven by the existing clauses in the Bill. In the medical profession, there is a clear distinction between a general practitioner and the specialist consultant. A consultant can become a consultant only after several years of training and he alone can provide specialist advice. In my submission, that approach is also appropriate to legal advice; and in circumstances where that approach is not taken, an individual who is in receipt of legal services funded under this Bill is likely to be adversely prejudiced. That is the basis of Amendment No. 93 and the other similar amendments.

By contrast, Amendment No. 66 concerns the behaviour of the commission in distributing money to individual providers of legal services. Here, the object of the amendment is to ensure that advocacy fees and referral advice, when obtained as part of the funding of an individual case, should be ring-fenced and paid separately from other items in the case.

In my submission, it is significant that the word "representation" does not appear in the Bill in relation to the new scheme for civil legal aid. Representation by a specialist advocate, and the referral of the case to a specialist, are essential features of litigation, aimed at upholding a person's rights. If payment for such services is not ring-fenced, it will become lost in the general allocation of funds for the particular type of litigation or other mechanisms for resolving disputes. I emphasise that the amendment is not to protect the Bar alone. It would equally protect the remuneration of a solicitor advocate or even a welfare rights worker undertaking tribunal representation within the community legal service. Such fees are ring-fenced under the new fast-track regime for civil litigation.

The real danger is that a lump-sum payment will be available for a case, but that a specialist referral may be paid by the referrer at very low cost—which would not reflect the value for money intended by the Government. The Lord Chancellor has said on a number of occasions that, in formulating the Bill, he is not engaged in a cost-cutting exercise, but wants more control over the legal aid budget.

9 p.m.

Lord Goodhart

The principle of equality of arms, as I said earlier, requires that somebody who is publicly funded should not be put at a serious disadvantage against the other party of the case, who has access to whatever advice he is able and willing to afford. That does not mean that the level of representation provided for a party who is publicly funded should necessarily be the same as that of the other party. I have experience of cases where the Legal Aid Fund has authorised the instruction of leading counsel simply because the other party has done so. That is not in all cases necessary or appropriate. There are certainly cases in which instruction of junior counsel would be perfectly adequate.

In recent decades the whole practice of law has become increasingly specialised. One has, in a way that did not exist 30 or 40 years ago, lawyers and advice agencies—paralegals as well as fully qualified lawyers—specialising in aspects of welfare law, housing law and immigration law, as well as in the more traditional subjects. In those circumstances, access to legal advice and, where necessary, advocacy on a referral basis will be necessary in many cases if the publicly funded part of the proceedings is to enjoy the level of skill, advice and assistance needed if the party in question is to fight on reasonably equal terms. Recognition of that should be clearly written into the Bill and acknowledged by those responsible for administering the community legal service. That is why I seek to follow the noble Lord, Lord Kingsland, in supporting the amendments.

Lord Clinton-Davis

Again, I cannot agree with the noble Lords, Lord Kingsland and Lord Goodhart, because the amendments would drive a coach and horses through the whole purpose of the argument adduced by my noble and learned friend the Lord Chancellor. Everybody could be regarded as a specialist in almost every case.

There are specialists in criminal law, contractual law, landlord and tenant law and so on. Where does it end? It is all part and parcel of the work of the legal profession to take on certain "specialisms". I do not believe that the case has been made that such is the right way to proceed in achieving the priorities that those who are critical of the Bill also want.

Speaking as someone who has been critical of the Bill, but constructively, I hope, I find it difficult, in a sense psychologically, to dissent from those who have supported some of my arguments and whose arguments I have supported. I hope that they will understand.

The Lord Chancellor

The noble Lord, Lord Kingsland, moved Amendment No. 66 and I seek to speak to the grouping that contains that amendment together with Amendments Nos. 93, 121, 144, 161, 168, 169, 185 and 191.

Two of those amendments are typical. Amendment No. 66 would provide that, Where, in an individual case funded as part of the Community Legal Service, particular services are provided by a person offering specialist advice and assistance on a referral basis or specialist advocacy, regulations shall require that person's remuneration to be quantified and paid separately from other items in the case".

Amendment No. 185 would provide that, Where, in an individual case funded as part of the Criminal Defence Service, advice and assistance or advocacy are provided by a person offering specialist legal services on a referral basis, regulations shall require that person's remuneration to be quantified and paid separately from other items in the case".

Amendment No. 93 requires that, The Commission shall keep under review whether, in relation to each category of case for which it funds services as part of the Community Legal Service, the interests of justice require particular kinds of services to be provided by way of … specialist advocacy".

The broad intent of these amendments, as I understand them, is, first, to require the commission to keep under review where the interests of justice require particular kinds of advice or assistance to be provided by specialists, particularly the Bar in cases of representation, but not of course excluding solicitors in their specialist roles; and, secondly, to ensure that persons being remunerated for provision of these specialist services should be paid for them discretely and basically not as a disbursement on the bill of the solicitor with whom the commission will have contracted.

I deal with the second first. Under Clause 7(3)(a) the commission has a general power to make contracts with persons or bodies for the provision of services by them. In relation to solicitors, what is contemplated is that contracting will be up and running with individual firms from around January 2000. Solicitors' firms employ many lawyers and the commission can contract with them for the provision of volume services.

Clause 7(3)(a) does enable the commission to contract with the Bar. I have long thought and said—and the Bar knows well that this is my view—that it should embrace the opportunities of contracting and be ready to contract for the provision of advocacy services, either as individual sets of chambers or through particular groupings of banisters, so that it, equally with solicitors, can offer volume services. If it were to contract in that way it would be at prices determined by the contract and the Bar would be free of the risk of payment for its services via disbursements and solicitors' bills when solicitors would be the only contracting party with the commission. The vulnerability of the Bar is obvious and that is what is in the mind of the author of this amendment. The solicitor has the contract and what the barrister gets for the provision of his specialist services out of the solicitors' contract price is what the solicitor agrees to pay him. Of course the Bar should contract direct. That is what I have been saying for ages. But the Bar has its salvation in its own hands. We are ready to contract with it. The powers are there, so let the Bar get on with it.

I can tell the Committee that discussions have taken place between my officials and the Bar on this subject. I have discussed it with the leaders of the Bar myself. I cannot understate how enthusiastic I am for the Bar to define a clear basis on which we can contract with it direct for the provision of volume advocacy services at contractually agreed prices.

I turn to the need for the commission to keep under review when the interest of justice requires the service of specialists. All these amendments, I believe, stem from an irrational fear on the part of the Bar, or perhaps more accurately, some prophets of doom in its midst, that barristers, specialist advocates, are about to become an extinct species as a result of the changes. Nothing could be further from the truth. Advocacy is a specialist art and that is well recognised. I make it unequivocally plain that the word "help" in the statute means and includes "representation". Under Clause 4(2) the Lord Chancellor may give guidance to the commission about the discharge of its function and the commission is under a duty to take that guidance into account. I am ready here and now to undertake that, pursuant to that power, I will give guidance to the commission that it should keep under review, in the interests of those to whom it provides, the availability of specialist advocacy where appropriate. On that, I hope, clear basis I invite the noble Lord to withdraw his amendment.

Lord Kingsland

I thank the noble and learned Lord the Lord Chancellor for the frank way in which he responded to my amendment and—perhaps I can speak on behalf of the noble Lord—for the way in which he responded to the noble Lord, Lord Goodhart. However, I do not think that the noble and learned Lord has completely met the point contained in the amendments. The point is that there are circumstances, when a legal problem arises, that require the advice of a specialist. These amendments seek to ensure that when funds are supplied, whether to a solicitor or a barrister, to solve a particular individual's problem, and where a specialist as well as a generalist is involved in the case, payment of both parties is made separately. Otherwise, there will be a temptation for the service provider to short-change the recipient. That will adversely affect the interests of justice.

That is the point behind the amendments. They are not concerned with the distinction between the Bar and solicitors, but the distinction between a generalist and a specialist. The amendments seek to guarantee that that distinction is marked out in the Bill in such a way that an individual whose case merits specialist advice properly receives such advice. If the noble and learned Lord has nothing further to say, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

9.15 p.m.

The Deputy Chairman of Committees (Viscount Allenby of Megiddo)

Before calling Amendment No. 67 I must inform the Committee that if this amendment is agreed I cannot call Amendments Nos. 68 and 69.

Lord Phillips of Sudbury moved Amendment No. 67:

Page 4, line 25, leave out subsection (5).

The noble Lord said: Amendment No. 67 seeks to exclude subsection (5) of Clause 6. Effectively, that leaves Amendment No. 77 to be considered in its place. Amendments Nos. 68 and 69 are tabled in the event that Amendment No. 67 is rejected. Those amendments seek to improve Clause 6(5) by inserting reference to "good quality services" and services "consistent with the interests of justice" alongside the sole determinant at the moment under subsection (5), which is "best possible value for money". One may think that that is a somewhat extreme phrase against matters such as the interests of justice and the like. I beg to move.

Lord Kingsland

Perhaps I may speak to Amendment No. 68, which refers to subsection (5). The amendment takes a slightly different position from the one spoken to by the noble Lord, Lord Phillips of Sudbury. Here the amendment will have the effect that the subsection would read: In funding services as part of the Community Legal Services the Commission shall aim to obtain the best possible value for money consistent with the interests of justice and good quality services".

The Lord Chancellor

The noble Lords have spoken to Amendments Nos. 67 and 68. Included in that group are Amendments Nos. 69, 187, 188, 189 and 190, to which I shall speak.

Those amendments refer to the duty of the commission to obtain the best value for money. The noble Lords, Lord Phillips and Lord Goodhart, in the amendments standing in their names, suggest in relation to both the community legal service and the criminal defence service that the duty should be qualified by referring also to the need for consistency in the interests of justice.

If Members of the Committee had been taken through the amendments, they would have seen that the noble Lords had second thoughts about the community legal service and suggested abolishing Clause 6(5) from the area of value for money altogether. There is an amendment in the name of the noble and learned Lord, Lord Ackner, in relation to the criminal defence service proposing that the interests of justice should be paramount.

Let me make it clear that value for money is the best combination of price and quality. The principal mechanisms for achieving this aim will be contracting for services and the development of quality accreditation schemes for service providers. I do not believe that seeking value for money conflicts with the interests of justice; indeed, on the contrary, the quality of justice can only be improved if the quality of providers improves. Further, if contracting does in due course lead to less expensive services and greater efficiency, that will release resources that can be deployed in improving access to justice.

Therefore, I believe that the duty for the commission to achieve the best value for money is a fundamental aspect of our reforms. I would not begin to accept that it should be omitted from the Bill, nor do I think that it is necessary to suggest that quality is somehow separate from value for money, as is implicit in the amendments to Clause 6 tabled in the names of the noble Lords, Lord Kingsland and Lord Phillips.

The amendment to Clause 17 would also oblige the legal services commission to provide the greatest possible choice of legal services in criminal matters. My view of the amendment to Clause 14 concerning the restriction of choice in certain circumstances is just the same as the view that I am now seeking to express to Members of the Committee on these proposals.

I do, however, understand the concerns that lie beneath the amendments. It is that, somehow, a duty to obtain value for money simply leads to cost cutting and so will reduce the quality of justice. If I may say so, that seems to me to be the point that noble Lords are seeking to make. Therefore, I am prepared to consider including a reference to the purpose of the community legal service and the criminal defence service in each of the clauses on value for money. I refer respectively to Clause 6(5) and Clause 17(3). So, on the basis that I will consider the matter in that context, I invite noble Lords to withdraw the amendment.

Lord Goodhart

Before the amendment is withdrawn, perhaps I may raise a further question. The noble and learned Lord seems to have indicated in what he has just said that there can never be an inconsistency between value for money and the interests of justice. That is not a view which I would accept. Speaking for myself—and I know that my name is attached to an amendment which says so—I would not suggest that it would be appropriate to remove references to "value for money" from the Bill.

However, it is perfectly possible that the best value for money may be obtained from someone who provides a poor service at a very low price. That may be better value for money than that obtained from someone who provides a good service at a moderately expensive price. It is a little like choosing which airline to fly with. For example, one may have the choice of a dirt-cheap flight to Tenerife with some ropey airline run by an outfit from Kazakhstan operating a few former Aeroflot planes which may, in a sense, be better value for money than one would get from British Airways. But it is surely not the Bill's intention to say that one must take a service which is very cheap and not very good in preference to a service which is good and not cheap.

The Lord Chancellor

If the service was of no value or of poor quality, it would not represent value for money. We shall lay down quality standards which will have to be adhered to. If they are not adhered to, we shall not regard ourselves as receiving value for money. I am talking about a mix of quality, value and reasonable charging.

Lord Phillips of Sudbury

Having heard those comments, I am content to wait to see what emerges at Report. There is no suggestion or intention to remove the concept of value for money from the Bill. Amendment No. 77 refers to obtaining the best long-term value for money on certain bases. I am ready to withdraw my amendments. As I say, I look forward to hearing what emerges at Report. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 68 and 69 not moved.]

Clause 6 agreed to.

Clause 7 [Services which may be funded]:

Lord Renton moved Amendment No. 70:

Page 4, line 27, leave out subsection (1).

The noble Lord said: In the absence of the noble and learned Lord, Lord Simon of Glaisdale, I wish to move Amendment No. 70 with which has been grouped Amendment No. 78. Those two amendments respectively suggest that subsections (1) and (2) of Clause 7 be left out of the Bill. I assume that the noble and learned Lord tabled these amendments purely from a drafting point of view. I must say I find the drafting rather strange because we find the expression, as part of the Community Legal Service", repeated in Clause 7(1), (2), (3), (4) and indeed (5). I think that the Government should invite parliamentary counsel to reconsider the drafting. It reads in a strange way. Clause 7(1) states: The Commission shall set priorities in its funding of services as part of the Community Legal Service". Why should that be done as part of the community legal service? It is as though the whole of the funding of the community legal service will not be covered by that and by the setting of those priorities. I really think that is a strange way to draft subsections (1) and (2) of Clause 7. On that point, the entire drafting of Clause 7 needs to be reconsidered.

I should just mention in passing that the noble and learned Lord tabled Amendment No. 82—it is not grouped with the amendments I am discussing—to leave out Clause 7(4), on which the same point arises. I beg to move.

The Deputy Chairman of Committees

If this amendment is agreed to, I cannot call Amendments Nos. 71 to 76 inclusive.

Lord Falconer of Thoroton

I rise with some diffidence to deal with the drafting point made by the noble Lord, Lord Renton. As I understand the way Clause 7(1) works, it places a duty on the commission to set priorities in its funding of services as part of the community legal service and it requires the commission to set those priorities in accordance with any directions given by the Lord Chancellor under subsection (4).

There is therefore a duty on the commission to set priorities in the way that the noble and learned Lord, Lord Mackay of Clashfern, identified. It must also set those priorities in accordance with any directions given by the Lord Chancellor. That is perfectly comprehensible and it seems to me to be a sensible way of going about things.

Clause 7(2) states that the commission may fund as part of the community legal service those things which it "considers appropriate", subject to the priorities it has set under Clause 7(1); those priorities having been set in accordance with any directions given by the Lord Chancellor. It seems to be a perfectly comprehensible network of duties. The subsection is saying in effect "You, the commission, have to set your priorities. You have to set them in accordance with any directions given to you by the Lord Chancellor. You then have to spend your money subject to those priorities as you think appropriate". The effect of that is that it provides a discipline and a structure within which the commission can determine its spending priorities. That seems quite sensible.

9.30 p.m.

Lord Renton

Why do you need the words "as part of"?

Lord Falconer of Thoroton

"Fund" as part of the community legal service is a term of art. The community legal service consists of, first, funding and, secondly, planning with others. That is the only way to refer to legally aided services.

Lord Renton

Although I have always had an immense respect for the noble and learned Lord, I am sorry to have to say that ever since he became a member of the Government in your Lordships' House I am not in the least bit convinced by the argument he has put forward. I hope that he and the Lord Chancellor will agree that if laymen—and this is the important thing that we have to bear in mind—are to understand this clause, it really must be re-drafted. I beg leave to withdraw my amendment, but I do so in the hope that the noble and learned Lords will think about this much more deeply.

Amendment, by leave, withdrawn.

Lord Archer of Sandwell moved Amendment No. 71:

Page 4, line 27, after ("shall") insert ("have particular regard to the priorities set out in subsections (1A) and (1B).

(1A) Subject to subsection (5), the Commission shall afford priority to advice and representation in cases concerning—

1. (a) entitlement to welfare benefits;
2. (b) any dispute arising out of or in connection with a contract of employment;
3. (c) homelessness, access to housing, possession proceedings, housing disregard, harassment or unlawful eviction;
4. (d) the enforcement of judgment debts;
5. (e) immigration, asylum or nationality; or
6. (f) such other matters as are specified in regulations.

(1B) Subject to subsection (5), the Commission shall afford priority for advice, assistance and representation in cases—

1. (a) likely to give rise to substantial benefits for a significant number of people other than the parties;
2. (b) which raise an important issue of law or point of principle;
3. (c) concerned with protection from violence;
4. (d) relating to the welfare of children;
5. (e) concerning the welfare of a person under a disability;
6. (f) relating to the care of a child; or
7. (g) concerning the provision of a child's education, including admission and exclusion proceedings.

(1C) Subject to subsections (1) and (1A), the Commission shall").

The noble and learned Lord said: Part of the underlying philosophy of legal services in the Bill is to replace objective entitlements by category with a limited fund distributed in a much more discretionary way and decided according to priorities. There are dangers inherent in that approach. My noble and learned friend the Lord Chancellor clearly recognises them because in his speech to the Bar conference on the 26th September 1996 he said this: Cost capping, however, is unattractive in principle. because legal aid would cease to be a benefit to which a qualifying individual is entitled. It would become a discretionary benefit, available at bureaucratic disposable, a benefit that would have to be disallowed when the money ran out, or when another category of case was given preference. Legal aid would cease to be a service available on an equal basis nationally, because cases would go forward in one region where identical cases in others, of equal merit, would not". Notwithstanding those considerations, I appreciate why my noble and learned friend is proposing to move to the new system. But that entails empowering the commission to set priorities, as we learnt in the previous debate. My noble and learned friend has recognised the importance of those priorities because he has sought to retain a power to give directions about them to the commission. But, first, there is no indication in the Bill as to what those priorities should be; and, secondly, there is no recognition that some needs may be sacrosanct and therefore guaranteed.

I have sought in this amendment to set out two lists of priorities. Subsection (1)(a) lists according to the subject matter of the dispute; subsection (1)(b) lists according to the other criteria by which we might judge the importance of according assistance. I say at once that I would not go to the stake for my list as against any other possible list. It is not my intention to provoke a debate as to what the priorities should be. What I hope to learn from my noble and learned friend is whether there will be some matters which will be guaranteed even if the fund runs out, similar to the duties imposed on the criminal defence service in Clauses 13 and 14.

Perhaps I may return to a matter on which we touched in an earlier debate. In Clause 7(4), the commission is empowered to distinguish not only between different descriptions of cases but between different geographical areas. That is obviously a wise provision and it must be envisaged that the commission will examine localities to judge their needs. In fact, we heard a little from my noble and learned friend Lord Falconer about how the Government are proposing to approach that matter, although I must confess that I do not yet have it crystal clear in my mind. I wonder whether my noble and learned friend can tell us more about how those needs, when they are identified, will relate to the national system of priorities. Who will decide the priorities for a particular region and within what parameters? Will they be subject to the national priorities or may they, in certain cases, take precedence over them?

I need hardly explain that this is a probing amendment and arises simply from my innate curiosity. I beg to move.

Lord Phillips of Sudbury

I was hoping to intervene before the noble and learned Lord sat down because I wished to ask whether his amendment had the effect, not of removing capping but of simply removing capping to another place. If his amendment were carried, would it not mean that those categories of case would receive certainty of funding and that that would mean potentially a great deal less funding for the areas that are not enumerated here?

Lord Archer of Sandwell

I am grateful to the noble Lord for giving way. What he says is absolutely right. We cannot have it both ways. If one says that there are certain situations which ought to be guaranteed funding, that means that certain other very worthy situations might be short on funding. I am putting the amendment forward for discussion. I can see the difficulties. I still think there may be a case for saying that some things should be sacrosanct.

Baroness Goudie

I feel that it would be wrong to restrict ourselves in this way. I would rather have the funding and not restrict ourselves. As the noble Lord, Lord Phillips, said, there are a number of other issues to which perhaps we would like to give priority, so I think it would be wrong to go down this road. I understand why the noble and learned Lord is doing it but I think it is totally the wrong way to do it. I think it should be left to the local committees.

Lord Thomas of Gresford

In the spirit of discussion to which the noble and learned Lord, Lord Archer, referred, I wonder whether I might inquire of the noble and learned Lord the Lord Chancellor what exactly is intended by Clause 7(1). Is it that the priorities that the commission shall set will always be set in accordance with any directions given by the Lord Chancellor? Or is it intended that the commission will have a wide discretion of its own and that the Lord Chancellor will give directions only in limited areas? We ought to know precisely what the clause is intended to convey.

The Lord Chancellor

I shall confine myself to the amendment before the Committee, which is Amendment No. 71. We can have a useful debate on other matters when we come to Amendment No. 72, which is in the next grouping. In the interests of order, I shall confine myself to Amendment No. 71.

The noble and learned Lord's amendment would have the effect of setting out on the face of the Bill a set of priorities for funding cases. The commission would then have a duty to have particular regard to those.

I am unwilling to accept this amendment, not because I fundamentally disagree with the list of priorities in itself—in fact, many represent the kind of priorities I have already outlined in the White Paper, Modernising Justice, and elsewhere. I do not accept the amendment because I do not believe it is appropriate for general priorities, which will influence the overall deployment of resources, to be set in legislation.

I am already accountable to Parliament for the use of resources voted by my department. Legislation determining my priorities would be an unnecessary and unusual burden and would lead to inflexibility, in that the precise meaning of each priority and its relative importance could be open to challenge.

As I said earlier, I am perfectly willing to consider subjecting to parliamentary approval the funding code and future changes to the funding criteria in the code. We shall then have every opportunity to scrutinise the priorities set out in the code when Parliament is invited to approve it. On that basis, I invite the noble and learned Lord to withdraw the amendment.

Lord Archer of Sandwell

I was not taken by surprise when my noble and learned friend said that he could not accept the amendment. I should have been somewhat surprised had he said that he could. It was a probing amendment. I can see the arguments on both sides about the approach. When I tabled the amendment I was not aware of the generous offer that my noble and learned friend would make to subject the code to parliamentary approval. We have made a great deal of progress during the course of the evening. If we are wise, perhaps we should all quit while we are ahead. For the moment, I am content to reflect on the situation that we have now reached and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Goodhart moved Amendment No. 72:

Page 4, line 27, after ("set") insert (", and may from time to time vary,").

The noble Lord said: If it is the case, as I believe it may be, that the priorities set under Clause 7 by the commission will be set out in a document approved by Parliament, either under Clause 7 or as part of the funding code under Clause 9, I shall be happy to take the matter no further. I should, however, be anxious if the priorities could be established without any form of parliamentary control through approval by statutory instrument. I believe that that is not the intention. If there is to be a statutory instrument, I need take the matter no further.

The Lord Chancellor

I am indicating to the noble Lord that I am minded to subject to parliamentary approval the funding code and future changes to the funding criteria in the code.

Lord Goodhart

That does not entirely cover my point. The commission is required to set priorities in accordance with any directions to be given by the Lord Chancellor. Those priorities might or might not form part of the code. I do not think it is possible to take this matter any further now. However, if the amendments do not make it adequately clear that the code will cover priorities, I shall almost certainly wish to revisit this matter on Report. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Deputy Chairman of Committees

I should inform the Committee that if Amendment No. 73 is agreed to, I cannot call Amendments Nos. 74 and 75.

[Amendments Nos.73 to 76 not moved.]

9.45 p.m.

Lord Phillips of Sudbury moved Amendment No. 77:

Page 4, line 30, at end insert— ("( ) In funding services as part of the Community Legal Service, the Commission shall aim to obtain the best long term value for money on the basis that all persons and bodies applying for funding who meet the standards set by the Commission shall be able to provide services for individuals under this Part of this Act on terms as to remuneration and otherwise, set by the Commission after consultation with the applicants, which are broadly fair.").

The noble Lord said: I have spoken at length on two occasions in this House concerning the purport of Amendment No. 77, first, in the debate on the Queen's Speech and, secondly, on Second Reading. I hope Members will be patient if I spend some time trying to sketch the backdrop to the pressing need for the amendment, as we on these Benches see it.

I am in something of a lonely position in that I believe that I am the only practising solicitor in the Chamber tonight.

Noble Lords

No.

Lord Phillips of Sudbury

I did not realise that the noble Lord, Lord Clinton-Davis, was still in the saddle; I am delighted to know that he is. I beg his pardon. In the House generally the presence of practising solicitors, particularly ones with legal aid franchises, is not common. I feel a heavy load on my shoulders as a voice for the practising solicitor, in particular the high-street practitioner, in an age in which they get short shrift in terms of public opinion and public esteem, it being the corporate and specialist lawyers who are the cynosure of young law graduates.

None the less the high-street practitioners comprise much the greater part of the practising profession. In dealing with this debate, and in particular this amendment, which goes to the question of how exclusive contracts are awarded, I endeavoured to consult two groups of practising solicitors to find out what they thought of the Government's proposals, particularly vis-à-vis competitive tendering for exclusive contracts. I had the co-operation, which I greatly valued, of the Suffolk and North Essex Law Society, which is a typical county law society, and of the Legal Aid Practitioners Group, comprising 500 front-line legal aid practice firms. I shall refer to some of the findings of the questionnaire which those bodies put to their members. It was needed because there seems to have been an extraordinary dearth of consultation with practising lawyers in the course of putting together these far-reaching proposals.

At the back of the last of the guidance findings produced by the Legal Aid Board last October, the document entitled Exclusive Contracting, (upon which many, if not most, of the propositions in the Bill are based) there is a list of those who were consulted, which comprises rather fewer than 30 firms of solicitors. The Committee may think, as I do, that in a profession of 78,000 members that is grossly inadequate. I believe that the lack of consultation shows in this proposal more than in any other.

In saying all this, I wish to make clear to the noble and learned Lord the Lord Chancellor that I am not here in any sense as an advocate for practising solicitors, to excuse their shortcomings or to plead especially for their predicament. I fully accept that in this Bill we are not considering the benefit of solicitors as such. However, I put it to the Committee that to disregard the needs of the practising profession would undermine the very purposes to which we are all wedded; namely, to increase quality access by ordinary people to good legal services.

If the practising profession is unhappy, if its morale is low, if it does not feel a spirit of co-operation with the proposals that we in this Parliament may thrust upon them, it will be ill for the outcome. We must not pretend that we can do away with practising solicitors in large numbers. From some of the comments made in this Chamber and beyond sometimes I gain the impression that there is a suggestion that the voluntary sector (if I may so describe it) can somehow take on large swathes of work currently carried out by high street solicitors. That is not so. I believe that at the moment there are only 53 law centres—rather less than the number 10 or 20 years ago—and 700-plus CABs. God bless them. For many years I have had the privilege of acting for the National Association of Citizens Advice Bureaux. No one need tell me what a wonderful job those bureaux do. Equally no one should try to tell me that they can do the job of high street practising solicitors. They cannot, and they do not want to.

I sometimes get the feeling that the Legal Aid Board believes that with all of these volunteers and charities, tax and rates exemptions and all the rest of it, it will be able to foist services which are currently undertaken by solicitors onto those organisations. If anybody thinks that, they should think again. Most of them would say that they depend upon vibrant and effective local practising solicitors to do the dirty work and handle the cases that they cannot cope with and the conflicts with which they are unable to contend. There are also over 1,000 advice centres but most of them are part-time and manned by volunteers. Nothing has been said in any of the documentation about indemnity or insurance cover for the voluntary sector if and when it takes over much larger swathes of legal aid work.

The question of cost control, which rightly concerns the Lord Chancellor and the Government, can be exaggerated. The brute figures that we have been given in debates thus far disguise the fact that over the past two years the budget has come under control. The out-turn shows that the expenditure is within budget against an increase in the number of cases handled. It is not true to suggest that the budget is beyond control and soaring out of sight.

One of the interesting results of the questionnaire circulated to practising solicitors in Suffolk and North Essex is the reasons they give for the increase in legal aid costs in recent times. They refer to the following: the increasing complexity of cases; the increasing complexity of law; the impact of the Children's Act, which is a vast new legal aid burden with an immense cost consequence; increasing client expectations; concern about negligence claims and threats from clients; increased specialisation among the firms which do legal aid work, which ironically leads not only to higher quality but higher cost; and increased overheads consequent upon the bureaucratisation and demands of the Legal Aid Board itself. While one does not blame the Legal Aid Board, no one should pretend that the vast paper chase that legal aid franchising involves comes at no cost.

Another reason is low levels of legal aid remuneration. One should make no bones about it. It leads to many solicitors having to delegate legal aid work as far down the pyramid within their offices as they can in order to do the work at any kind of profit. Ironically, that leads to higher legal aid costs because invariably the work is done less quickly and the costs increase. Another reason is the increased cost of disbursements, particularly expert witness fees, which have reached a stratospheric level. A further reason is the increased cost of interlocutory proceedings and all the rest of it. I mention those matters because unless the Committee understands that we are not dealing here with a runaway train it may arrive at the wrong conclusion. I am desperately concerned that it should not do so.

I mention en route that the Lord Chancellor has made reference several times both here and abroad to fat cats. I wish that he would stop it. It gives a misleading impression to the great British public. Barristers earning £1 million a year from legal aid work are exceptional. Far from earning £1 million a year, many solicitors who have undertaken legal aid are shutting up shop and going over entirely to private work. A respondent to the Suffolk questionnaire, a three-partner firm in Clacton doing a lot of legal aid work, says that it has had enough; it is putting up the shutters on legal aid and getting on with work for private clients. Getting on with work for private clients means earning on average 100 per cent. more per hour worked. Again, I have collected the data from the respondents from Suffolk and north Essex. We need to bear that figure in mind. Unless we do so, we shall come to the wrong conclusion.

The Government's scheme is based upon upholding or enabling a capped budget. I think I am right in saying that it is the first time the legal aid scheme has been operated on this basis. Towards the end of the year people will not be able to have legal aid services because there will be no money available regardless of how important the case is to the poor person involved. That can only be achieved by extraordinary controls. It is dirigisme par excellence. It is a little worrying.

We are all grateful for the important accommodation by the noble and learned Lord the Lord Chancellor at the start of the debate. Nonetheless, the means by which the capped budget will be achieved involves total control of the legal aid spend, the regional legal aid spend, the categories of cases which may be within legal aid, the merits test—we have had a recent update on that—the means test and, lastly, contracting by means of competitive exclusive tendering.

I presume the proposition is this. As with any business—such as groceries or the manufacture of shoes—there are two aspects. First, one creates a demand—a plum. The plum in this case is many more legal aid cases for the lucky winners. In the tendering process, plainly one wins and the remainder lose. It is a kind of conditional fee arrangement for solicitors. The one who wins will have to handle perhaps twice or three times as many cases as last year. For those who lose, it is goodbye—there is no more legal aid for them. It is assumed, according to normal business practice, that the profession will be flocking to put in low bids for that increased legal aid work. I have news for the Legal Aid Board. It may have had only 29 responses to its national, extremely glossy, consultation attempt. The Legal Aid Practitioners Group has circularised its 500 member firms and 169 had replied by lunchtime today. The replies make interesting reading, especially when one realises that these are the shock troops of legal aid. They say clearly by three to two that they do not welcome an increase in legal aid work. Why do they not welcome it? It is because they are doing as much as they can to make a living. If they do more, ironically they earn less because the time spent on legal aid work will not be spent on private client work. As I indicated, if one earns twice as much for private client work, why does one wish to do more legal aid?

It is true that a few firms will be dying to put in low bids to win the tender in their town, district or city. They are few and far between. They may not be the firms that one wants if one is looking for quality to win the tender. It is also predictable—indeed, it is a result shown by the Legal Aid Practitioners Group survey—that the few firms which welcome this new state of affairs are already big in legal aid.

I put one other truism to the Committee. Survival in the field of private client work is at least as competitive—I would say much more competitive—than survival in the field of legal aid work. Therefore, it follows as night follows day that the many firms which undertake a modicum of legal aid work, which might amount to 5, 10 or 15 per cent. of their turnover, will be able to bring to that work, if they are allowed to continue with it, the expertise and skills which they will have to hone in the competitive market of their private client work.

One of the bizarre outcomes of the road we are being led down by the Government is that competitive exclusive contracting means that, first, all the losers cannot undertake legal aid work and, secondly, all the firms which do not wish to undertake more legal aid work and will therefore not tender will be lost to the legal aid system. That is wholly inconsistent with, and counterproductive to, the very aim and purpose of the Access to Justice Bill. People will not get access to justice but exit from justice because good solicitors willing to undertake legal aid work and doing it well—I emphasise that one is not looking for anyone to undertake legal aid work who does not have the requisite quality standards—and who are lost to the legal aid system will be lost to justice itself.

If exclusive competitive tendering goes ahead the effect will be that many firms will no longer be able to undertake legal aid work. Although the Legal Aid Board has had to adjust its estimates, I understand that as many as 6,000 firms will be lost to the legal aid system. Instead of the current 10,500 to 11,000 offices which undertake legal aid work to some degree, there may be only 6,000.

I had some correspondence with the noble and learned Lord, Lord Falconer, on that very issue and he kindly replied to me at length just before Christmas. Taking the point I have just made, he stated his belief that any reduction of access is more than offset by the fact that all providers will in future meet assured quality standards. No one is asking for a continuance of legal aid work by firms which do not meet the required quality standards. It is not an alternative—access or quality. We want access and quality; but we do not want firms which have the necessary quality standards to be excluded from undertaking the legal aid work they are willing to do.

In a cynical age, I must tell your Lordships that, thank God, many solicitors undertake legal aid work because they believe that it is their duty to do so. They believe that it is their public duty to do their fair share of legal aid work even though they earn a great deal less money than they earn from their private client work. They want to undertake legal aid work because they believe that it is part of justice. I know many solicitors who will weep strange tears come the day they are forced to get richer because they cannot do that which they would for justice.

The noble and learned Lord, Lord Falconer, asked why I should worry about the number of outlets because there are, for example, only 881 Jobcentres in England and Wales and only 546 benefit offices. I do not see the relevance of giving us those numbers. On the whole, people looking for jobs are fit and capable of getting on buses or walking or driving to the nearest Jobcentre. However, one of the problems of access points in terms of legal aid services is that the whole community needs ready access to solicitors; the old, the lame, single mothers and the disabled need geographical and psychological access.

Those who have laboured as long in the field as the noble and learned Lord, Lord Archer of Sandwell, the noble and learned Lord the Lord Chancellor and I know that there is a huge psychological barrier between the poor and poorer people in our community and the legal services which they often want and do not get. To look at the matter simply on the basis of the number of Jobcentres will not do. There are invariably two sides to a conflict and both parties need ready and easy access to legal services.

The noble and learned Lord went on to say: Finally, as you acknowledge, many firms currently do very little legal aid work. Some of these will nevertheless win contracts". As I believe I have indicated, the research that I have carried out, which can be made available after the debate, demonstrates that many of those firms will not apply. Several of the firms in the Suffolk and North-Essex Law Society which responded to the questionnaire—and that was 22 firms—indicated that not only would they not apply but if they did, given exclusive competitive tendering, they had no chance of winning because they did not wish to increase their throughput.

The effect on "access", which is after all in the title of the Bill, will be parlous. Under no circumstances should we allow this to come to pass.

Once a firm has opted out of legal aid, I do not believe that it will ever come back to it. That will be the case particularly in relation to those firms which tender for the exclusive contracts and lose. Legal aid requires a particular way of looking at work. It requires people with particular skills, although I would not exaggerate that. The Government must accept that those firms which are excluded from legal aid at the first round of tendering will never come back into it.

That has a fairly devastating consequence on the second round of tendering, because which firms then will tender? If there are one or two firms in a medium-sized town, at the second round who will be there to achieve the lower price at the tender which is hoped for, I put it no higher, by the Legal Aid Board? That is a disadvantage which must be faced and faced squarely.

Then there is the question of quality. Most solicitors view legal aid rates as unfair or very unfair. That was the opinion of 80 per cent. of the Suffolk and North-Essex practitioners who responded. If they will receive, for legal aid work, half as much remuneration as for private client work, how do the Government and the Legal Aid Board really think that it will be possible to maintain quality, let alone improve it, on the exclusive contractual basis? It simply does not add up. Cutting fees to win the tender will mean, in the medium and long term, cutting corners to do the work.

I am afraid to say that solicitors are able to fit the work to the price like anyone else. It will not be within the capacity of the Legal Aid Board to effect a satisfactory check on the real quality of work carried out. Another finding which may surprise the Committee is the low esteem in which the quality checks of the Legal Aid Board are held by the profession. Something like 80 per cent. do not consider that the quality checks exercised by the Legal Aid Board are in any way effective except as a check on management's handling of the work: for example, where bits of paper are; whether the right forms and attendance notes have been filled in; whether the diary has the right dates in and so on. I do not believe that the inexorability of low fees—

Lord Carter

I do not know whether the noble Lord is aware of the passage in the Companion which says that other speakers are expected to keep within 15 minutes, and I see that the noble Lord has been speaking for 24 minutes.

Lord Phillips of Sudbury

I confess that I am relatively new to the House and was not aware of that rule. I apologise for my excess. I should like two minutes to finish, given that I am on a lone horse.

I do not believe that the central components of the thesis are valid. I do not believe that tender prices will be significantly lower than current rates. I do not believe that quality will be maintained, let alone raised, by the tendering process. I do not believe that access will not be damaged or blitzed. I believe that the Government must abandon competitive tendering. They must find a better way of dealing with legal aid and remuneration. That is in the hands of the Legal Aid Board, if it were only humble enough to grasp it.

There is already a fast and rapid increase in franchising. Something like double the number of firms have put in for it in the last month. With better checks, we can maintain the patchwork of legal services better and utilise the community services that the Government intend to introduce and which we all support. With further consultation and co-operation, the Bill could succeed, but I am convinced that unless reform is effected on the lines of Amendment No. 77, it will not. I beg to move.

Lord Clinton-Davis

I promise that I shall not exceed five minutes. Although I agree with many of the points just made, one central ingredient of the legal aid system has been missed by the noble Lord. I refer to firms that practise in areas where there is little or no private work, which are wholly dependent on legal aid. Such firms practise because they have a sense of obligation to the public, to which the noble Lord referred. They are certainly not the fat cats. They subsist on incomes that are very low. I can vouch for that because I had a practice in East London where, at the time, I was able to rely on a good deal of private work to subsidise legal aid. Such private work is not available in that area now on any scale.

I wish that it were possible for some of my ministerial colleagues to see some of those firms for themselves, rather than relying on hearsay, and observe the difficulties under which they work on a day-to-day basis. At the same time, those firms provide a fantastic service. Yes, they make mistakes, but who does not? Even Ministers, Members of Parliament and Members in all parts of your Lordships' House make mistakes from time to time.

Noble Lords

No! Withdraw!

Lord Clinton-Davis

Some of my noble friends are living in a sort of grandiosity.

The fact remains that, on the whole, such firms provide an excellent service. I worry that if legal aid work dries up—I am not sure that the calculations are right—the profession will attract younger people who are content with doing some pro bono work only when they are involved with big firms. I do not decry that. It is a good thing that they should—but it will not answer the Bill.

It is imperative that we keep an eye open with regard to what future entrants to the profession will be like. Will they feel that they can afford to undertake, with a sense of nobility, the vital work of serving working-class people? I know that we are not supposed to talk about working-class people these days, but I refer to those in areas of extreme poverty. Will young people want to enter that part of the legal profession when they can much more easily obtain work in some of the bigger firms in the City and provinces? I worry about that. I made that point at Second Reading.

I have spoken for three minutes and it is right that my noble and learned friend should answer many of the invaluable points put by the noble Lord, Lord Phillips. However, the noble Lord is not the only practising solicitor in this House; I just want to point that out. I see behind me another practising solicitor as well as the noble Lord, Lord Hunt—my noble friend in every sense. So there are four of us present; the noble Lord, Lord Phillips, did not do us any service by arrogating to himself a sense of exclusivity.

10.15 p.m.

Lord Falconer of Thoroton

The noble Lord, Lord Phillips, eloquently expressed his concerns about these proposals, as it is true to say he has done on several previous occasions, notably in this Chamber on the Second Reading of this Bill. However, I cannot help pointing out that his speech on Second Reading was shorter than the speech he has delivered at this stage.

Identifying the lines of battle precisely is of value. The amendment of the noble Lord, Lord Phillips of Sudbury, proposes that every single solicitor who meets the quality standard should be entitled to be funded by the Legal Aid Board or its equivalent. He shakes his head, but that is what he has been arguing; that is what his amendment said. What is more, he said that there should be no competitive tendering. He said that the legal services commission should be a unique hirer of services in this country, obliged to buy from whoever can meet the standards set; in other words, let the providers of services be in the unique position where they can force upon the buyer of those services the need to buy them.

The noble Lord shakes his head, but that is what the amendment says; that is what he has been arguing and that is what he specifically said in the course of his speech today. He said it was only a coincidence that he was a solicitor and that this is not special pleading for solicitors; but the way it came across sounded like solicitors seeking a special and privileged position in relation to their funding.

Perhaps I may make clear to the noble Lord what we do not dispute in what he said. We do not dispute that many solicitors do a splendid job; nor do we dispute that there are things that solicitors do that no advice centre or citizens advice bureau could possibly do; nor do we dispute that there are cases where the work they put in is second to none. My noble friend Lord Clinton-Davis should not say that we are unaware of the splendid service that solicitors provide.

Lord Clinton-Davis

I was not saying that. I was saying that Ministers may not be aware of the day-to-day problems solicitors face. Many judges have no idea of them at all.

Lord Falconer of Thoroton

I am not speaking for the judges, but many Members of this Committee, including myself, are aware of the problems that solicitors face. I am also aware of the fact that they are not a tranche of extremely rich people. However, that does not mean that we can fail to deal with the problem of a legal aid budget that is out of control.

The noble Lord's concern was that the Bill, as he put it, will severely restrict people's access to publicly funded legal services. I and those promoting this Bill fully share the objective of securing the widest possible access to quality services. It is not the intention of the Bill to reduce quality access; nor do I believe that that will be the effect. Although the pattern of provision will undoubtedly change to some degree, the community legal service will improve and extend access in a variety of ways while ensuring the quality of the service provided.

As I pointed out, the purpose of the amendment of the noble Lord, Lord Phillips, is to ensure that all legal service providers who meet the quality standards defined by the legal services commission under Clause 5(5) would be entitled to provide services under the scheme if they chose to do so. The terms of the remuneration would be set, according to his amendment, by the commission after consultation with the lawyer applying to take a case. I cannot accept that amendment and, if I may, I should like to take some time to explain why.

I have written to the noble Lord on this subject since Second Reading, as he kindly pointed out, and for the benefit of all your Lordships I shall set out the points, in addition to those that he kindly attributed to me, that I made to him, in that correspondence.

It has become increasingly clear that in using the phrase "exclusive contracting" we, on this side, have not been sufficiently explicit. That has, not unreasonably, led some to understand that phrase to mean that there will be only one provider in any given geographical location. That is not the intention of the amendments. Exclusivity was only ever intended to refer to the fact that the proposals contained in the Bill move away from the present position where any solicitors' firm may undertake legal aid work to a position in which the commission will enter into contracts with as many quality assured suppliers as it needs in order to meet the demand or need for services. In that sense, contracts will be "exclusive" to them: for instance, it is only those with a contract who can be funded by the legal services commission. The type of contracts and the number will be determined by local need within the overall priorities of government. That will allow us to provide real access to justice in areas where access is most needed.

Contracts are extremely flexible instruments. They can incorporate any terr agreed by the parties to them. We see that flexibility as the great merit of contracting and as the means of delivering publicly funded legal services. We have tried, in the White Paper and elsewhere, to give an indication of the sorts of contracts that we see as being typical in the future. For most types of civil litigation, for example, we would expect to use fixed-price and volume contracts covering all but very high-cost cases. However, that model should not be seen as a straitjacket into which everything will be forced. On the contrary, it will be possible to adopt different approaches in different circumstances so as to achieve the best overall outcome in terms of access, quality and price. That may lead, for example, to different types of contracts in rural and urban areas. Indeed, in time we hope to be able to use the opportunities offered by contracting to improve access in those areas where there is little or none at present.

Providing access to lawyers does not require that whatever may have gone on before has to be continued in perpetuity: that any and every attempt to concentrate on particular suppliers is a diminution of effective access. The board has suggested that in order to provide adequate access for the first phase of contracts, for advice and assistance and full legal aid for family cases, it needs in the region of 3,200 suppliers. The cry has gone up that that is too few. The cry from the noble Lord, Lord Phillips of Sudbury, is not only that that is too few, but that everybody who passes the quality standard should be allowed to supply.

The figure of 3,200 comes from the Legal Aid Board's consultation paper Reforming the Civil Advice and Assistance Scheme, published in April 1998, and it is the board's estimate of the numbers needed to provide adequate coverage; it is not some arbitrary limit or target. As a result of that assessment, the board has, in some areas of work, been able to guarantee contracts in the initial round of contracting to all firms who presently hold franchises. That has been possible for family work where the board expects contracts broadly to maintain the existing pattern, and in immigration and mental health work where there are currently relatively few franchisees.

That figure of 3,200 has to be compared, for example, with the number of Jobcentres in England and Wales, of which there are 881. The noble Lord sneered at that comparison. He said that the people who go to jobcentres are fit and healthy men and women who are all looking for jobs and that they do not need the sort of outreach access that solicitors provide. The noble Lord also sneered at the comparison with benefit offices. I referred to 546 of them in my letter. He also said—and I find this quite hard to believe—that it is hale and hearty people who go to benefit offices. If the noble Lord were to visit a benefit office, he would realise that that is not correct.

We must be clear that part of the ethos of the community legal service will be to provide an integrated network of services where people can go to obtain advice. Some of the services will be funded directly through the community legal service fund by contracts with not-for-profit organisations. There are some 1,500 advice agencies with over 3,000 outlets. All contracts will include a tolerance margin, typically perhaps 10 per cent., representing the proportion of work that the provider may undertake outside the named contract categories. This provides an additional element of flexibility, in particular to cover cases outside the established franchise categories and clients with complex problems covering several categories.

Finally, if a particular problem with access is highlighted, it will be perfectly possible to require lawyers' firms or not-for-profit advice agencies to offer what are described as outreach facilities; that is, bringing the advice to the people who need it, whether through home visits or occasional but regular attendance at a local venue. All these things are possible under the scheme that we envisage. The touchstone for whether they will be necessary is the need to make access a reality. As I explained, I believe that access will always mean access with choice among a number of suppliers, such suppliers all reaching the standard set by the legal services commission.

It is worth perhaps setting out how we propose to take forward the move to a fully contracted system. The change will be implemented in careful stages. The Legal Aid Board and, in due course, the commission will continue to test different types of contract in pilot schemes before rolling them out more widely. This will not only enable the commission to determine the best arrangements to fit different circumstances; it will also ensure that providers have time to adapt to change. For example, from January 2000, representation in family litigation will be provided by firms with a family franchise. These initial contracts, mostly running for three years, will in essence be licences to continue to take on family cases with payment remaining on a case-by-case basis at existing prescribed fees and rates. For the second round of contracts, however, I would expect the commission to develop contracts that fix price and caseload and introduce an element of competition in the way that contracts are awarded. A similar phased approach to contracting for other types of case is envisaged in due course.

It will be perfectly possible for firms of all sizes to obtain contracts. There will be no bias in favour of larger firms. The commission will make plain the need it is seeking to meet and the contracts it needs to let. Of course, smaller firms will not be expected to provide the same quantity of services as larger firms. They will be expected to deliver the same quality and value for money, but that is only right. I do not see in our proposals any reason for smaller firms to feel that they are to be excluded from this work. Quite the reverse. In simple business terms, what we are offering for those who secure contracts is a certain cash flow for a defined amount of work.

This last point is an important one and demonstrates the fundamental shift in the task of the commission as purchaser, which we are determined to achieve. We want the commission to become a proactive purchaser of legal services and not, as the present board largely is, a reactive payer of lawyers' bills. We cannot hope to ensure that legal aid money is used to the best effect if we cannot be sure both about the amount of services that are being supplied and the price that we can expect to pay for them. I can think of no area of economic activity where a purchaser of services is required simply to purchase services from whoever wishes to supply him without having any right to chose who should supply him and at what price. I believe that that holds just as true when the Government are purchasing services.

It is for that reason—and this is at the heart of the debate—that we cannot accept the noble Lord's amendment. If it were carried into the Bill it would give a guarantee to any solicitor's firm which met the quality standard a right to do legal aid work irrespective of the amount of work that was done. It would place the commission back in the place of a reactive payer of bills. Moreover, the commission, in seeking to agree remuneration, would be in a position of considerable disadvantage because of the guaranteed right of the lawyer to do the work. If such a thing were possible, it might lead to a worse position than we have presently. It would make it impossible in future to refocus resources on priorities, or to improve value for money by introducing an element of competition. Also, any requirement to define in statute or regulations the standard that created the guarantee would tend to stifle further development of the existing franchising system (for example, streamlining its bureaucracy and introducing outcome monitoring).

I know that the noble Lord, Lord Phillips, is concerned that by excluding firms whose work is primarily in the private sector we shall exclude expertise which these firms can bring to legal aid work and perhaps exclude idealistic young lawyers. I have to say to him that I do not believe that will be the outcome. I cannot accept that the kind of expertise to which the noble Lord refers does not exist in firms who may undertake a substantial part of their work for legally aided clients. I am also sure that idealism can be found among lawyers working for legal aid firms, both among younger and older lawyers. In the light of my remarks I respectfully ask the noble Lord to rethink his position and withdraw his amendment.

10.30 p.m.

Lord Phillips of Sudbury

I am prepared to withdraw the amendment at this stage but I shall wish to revisit this principle at Report stage. I hope it is appropriate to respond to the noble and learned Lord's comments now. If I may say so, I believe the noble and learned Lord has proceeded on the basis of a distortion of Amendment No. 77, which is tied both to quality and remuneration that is "broadly fair". I believe that would give the Legal Aid Board or its successor ample opportunity to ensure that the Exchequer was protected.

Further, lawyers do not simply bowl up to the Legal Aid Board clutching their bills; they have to have clients who want them to do the work. I have heard nothing in what the noble and learned Lord, Lord Falconer, has said which in any way assuages my sense that the outcome of this provision will be little saving on cost, considerable loss of quality and radical loss of access. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 78 and 79 not moved.]

Lord Goodhart had given notice of his intention to move Amendment No. 80:

Page 4, line 40, after ("bodies") insert ("(which may include non-profit-making bodies maintaining a contingency legal aid fund or similar arrangement)").

The noble Lord said: This is really an amendment on which to hang the peg of the discussion of the conditional legal aid fund. I would prefer to hold my fire until we reach Amendment No. 143 which deals with this matter at much greater length. We shall not reach that amendment tonight. Therefore I shall not move this amendment.

[Amendment No. 80 not moved.]

Lord Kingsland moved Amendment No. 81:

Page 5, line 3, at end insert (",or

1. (h) making payments to persons or bodies in respect of advice or assistance by them, according to independently verifiable criteria defined within a graduated fee scheme.").

The noble Lord said: This is in the nature of a probing amendment to seek the view of the noble and learned Lord the Lord Chancellor on a graduated fee scheme in the civil theatre—we already have a graduated fee scheme in criminal cases—and to what extent, if that were instituted, it would be respected by the legal services commission. I beg to move.

Lord Falconer of Thoroton

Amendment No. 81 is linked to Amendment No. 159. I shall deal with both amendments together. The purpose of both these amendments is to add to Clauses 7(3) and 13(2) a similar requirement; namely, to provide for the making of, payments to persons or bodies in respect of advice or assistance by them, according to independently verifiable criteria defined within a graduated fee scheme". These amendments are unnecessary and unacceptable. Clause 7(3)(b) and Clause 13(2)(b) already provide adequate powers to the commission to fund services by payments to bodies and individuals. The mechanism for doing so must be a matter for the commission and not something that needs to be set out in statute. Moreover, the particular mechanism is one used almost exclusively by the Bar. As the noble and learned Lord the Lord Chancellor has already said in reply to an earlier amendment of the noble Lord, Lord Kingsland, the Bar ought to have nothing to fear from the reforms that he plans. It should be looking towards organising itself to make the most of the opportunities that the reforms offer it and not seeking to entrench for all time the current practices, which may not necessarily be in the best interests of the Bar. In those circumstances, I would respectfully ask the noble Lord to withdraw his amendment.

Lord Kingsland

In view of the tone in which the noble and learned Lord responded to my amendment, I can see that I am not going to make any progress on it tonight. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Chairman of Committees (Lord Boston of Faversham)

I must point out to the Committee that if Amendment No. 82 is agreed to I cannot call Amendments Nos. 83 to 86 inclusive.

[Amendments Nos. 82 and 83 not moved.]

Lord Mackay of Clashfern moved Amendment No. 84:

Page 5, line 6, leave out ("areas") and insert ("communities").

The noble and learned Lord said: I mentioned at Second Reading that the word "community" appears in the description of the community legal service but, as far as I have been able to ascertain—and someone may be able to correct me—it does not appear anywhere else. On looking over the provisions of the Bill it occurred to me that we ought to get in the idea of local community. We are not talking about the community legal service as equivalent to the civil and family legal services. We are trying to get to the idea of a service based upon, and using what has been developed within, communities; to build on that, and to provide a really effective system throughout England and Wales.

On looking through the Bill, it occurred to me that although subsection (4) of Clause 7 uses a very usual formula in different areas of England and Wales as the power to make different provisions for different places, it would be quite a neat place in which to put in the word "communities" instead of "areas". That would give the community legal service a kind of local community connection. It would not do any harm. The word "communities" is at least as definite as the singular "community" and therefore there is no ambiguity. I beg to move.

The Lord Chancellor

I am minded to consider favourably the suggestion of the noble and learned Lord. It could achieve greater flexibility as it might allow the commission to target non-geographical communities such as ethnic communities. As the noble and learned Lord points out, the word "community" lives happily with a community legal service. Perhaps the wording could refer to areas or communities. I shall reflect on that. On the basis that I will consider the matter favourably, I invite the noble and learned Lord to withdraw his amendment.

Lord Mackay of Clashfern

I am extremely happy to withdraw my amendment. I am content that the noble and learned Lord may weave the idea of local communities into a better formula. It is quite important that there is a connection between the community legal service and what we understand as communities—be they ethnic, geographical or other types. That should be achieved if possible. I am very grateful to the noble and learned Lord for his kind consideration of my amendment.

Amendment, by leave, withdrawn.

[Amendment No. 85 not moved.]

Lord Archer of Sandwell moved Amendment No. 86:

Page 5, line 10, at beginning insert ("Subject to subsection (6A) below,").

The noble and learned Lord said: It may be to your Lordships' advantage to discuss Amendments Nos. 87, 88, 89, 97 and 98 with this amendment. Of those, Amendment No. 86 is a paving amendment to Amendment No. 88, and Amendment No. 98 is an example of the application of Amendment No. 88.

I hope that it is an omen that this amendment has been called at a time when my noble and learned friend is obviously receptive to suggestions. Certainly you cannot be hurt for hoping.

One important purpose of the Bill is to ensure if possible that legal aid is directed to those purposes for which it is most needed. Sadly, but inevitably, one implication of that is that it is directed away from purposes for which it is not so necessary because other forms of provision exist. I have no quarrel with that and I accept that that is what my noble and learned friend is seeking to do in Schedule 2. But I am sure he would agree that, if one proposes to cut the lifeline, one needs to be very sure that the oxygen cylinder is firmly in place. Schedule 2 is probably the most dangerous part of the whole Bill, at least in relation to legal service. We must scrutinise it carefully to ensure that nothing is excluded from funding unless there really is alternative provision.

Paragraph 3(a) of Schedule 2 would exclude all proceedings for negligence other than for clinical negligence. I have no complaint about excluding proceedings for damage to property, but as presently drafted the paragraph would exclude the whole field of personal injury work. This is not the occasion to embark on a discussion of what proportion of public resources are consumed by this subject—a large percentage of costs are recovered from defendants—and I hope we do not muddy the waters with that dispute. For this purpose, I am happy to assume that it would represent a significant saving. It is arguable that if an effective alternative exists, those outgoings should be saved. However, if no such alternative exists, this call on public funding certainly should not be excluded. That is the purpose of my amendments.

I am conscious that there is no unanimity even about that combined proposition. As I understand it, the noble Lord, Lord Kingsland, in his amendments in this group, would go further than that. I think I understand the reasons for that. Even the Bar Council, to which we are all indebted for so much very wise and careful advice in the course of these debates, was considering at one stage making that concession. I understand that it now believes that that would be going too far as there may always be some need for advice and assistance in personal injury cases, but no doubt this is an ongoing discussion.

As I understand it, the Government's argument is that there is an effective alternative in the form of conditional fees. I am aware of the arguments of principle against conditional fees. I agree that the new system carries dangers. That is not the point of this amendment. If I could be assured that anyone with a reasonable claim to compensation for personal injury would have adequate access to advice, assistance and representation, I would not wish now to persevere with this amendment. But conditional fees are at an early stage in their life.

There are, of course, some statistics on this. I must confess that I have always mistrusted statistics since I saw a document headed "The House of Lords broken down by age and sex". But we have seen the statistics. We have also seen a plethora of anecdotal evidence, one way or the other, as to how necessary it is to find a firm of solicitors prepared to undertake a claim for personal injury when, as my noble friend Lord Clinton-Davis and the noble Lord, Lord Phillips, reminded us at Second Reading, the evidence may be complicated, the outlay on experts' fees substantial, the client less than articulate, taking instructions' protracted exercise, and on which there may be discussions as to the level of mark-up required. Similarly, we have heard disturbing murmurings about the reluctance of some insurers to provide insurance for certain categories of situation. This amendment is simply an invitation to your Lordships to consider whether withdrawing the ladder may be premature unless we can be satisfied that the rope is firmly in place.

I am grateful to the Legal Action Group for pointing out that in the funding code the question is approached from a rather different angle from how it is in the Bill. Paragraph 2.6 states that the commission should satisfy itself in each case that conditional fees are a viable alternative before funding for a particular purpose is withdrawn. The effect of sub-paragraph (b) of my amendment would be precisely that. It is not what the Bill now provides. I hope that my noble and learned friends will agree that there is at least a substantial reason for anxiety about this matter. I beg to move.

10.45 p.m.

Lord Goodhart

I have put my name to a series of other amendments in this group, Amendments Nos. 87, 89, 97 and 98. I warmly endorse all the remarks of the noble and learned Lord, Lord Archer of Sandwell.

Conditional fee agreements (CFAs) have made a reasonably encouraging start in road accident cases. Such cases are very much a category of their own. They have a number of special features. First, it is almost always clear that someone is at fault. In many cases of personal injury that is the problem, because one starts by having to find out whether there was any fault at all. Secondly, in motor accident cases involving personal injury there is the advantage of the police investigation, which will probably have established exactly who is at fault and the nature of the fault.

That being so, it is obvious that the problems with personal injury cases arising out of road accidents are much easier to solve than other personal injury cases. It is therefore much easier to find a solicitor who is willing to enter into a CFA; and one is looking not only at the CFA but also the availability of insurance which the plaintiff must have in order to cover the risk of being ordered to pay the costs of the other parties.

In other kinds of case the availability of CFAs is far from proven. There are reports of considerable difficulties in obtaining after-the-event insurance for cases of that kind. One can imagine personal injury cases of considerable complexity. There is an exception for medical negligence cases, but that is far from being the only case in which there may be very complicated issues of causation.

Let us take a simple example. Most of us remember, a few years ago, the collapse of the tower block at Ronan Point. Someone injured in that collapse—as might be the case in some similar event in the future—might well have had enormous difficulty and a great deal of investigation might have been required to find out who was at fault, what the nature of the fault was, and who was the right person to sue. In cases of that kind it is hardly conceivable that one will be able to obtain viable levels of insurance.

Surely the situation here is that for the time being the Government should adopt the other position and say that personal injury cases remain available for public funding; they are not included in Schedule 2. The legal services commission will rightly have to bear in mind that it will not be expected to fund cases where CFAs are reasonably available. That is clearly within the spirit and intention of the legislation. I am saying that if all personal injury cases except cases of clinical negligence are excluded, there is a real risk that people who have suffered serious, possibly catastrophic injuries from non-road cases may simply not find themselves with the possibility of going to law to obtain the damages to which they are entitled. There is a serious risk of that happening.

The Lord Chancellor

The noble and learned Lord, Lord Archer of Sandwell, properly concentrated on Schedule 2 and the amendments in relation to it. I cannot accept either of these amendments, but I understand the concerns that may have led noble Lords to table them. In particular, many people have expressed their concerns that excluding proceedings about personal injury on the face of the Bill may in future lead to deserving cases being denied funding of any kind. I have consulted widely on this issue and I am satisfied that those concerns are unfounded. It is my view that the majority of personal injury cases do not warrant public funding in the future because there is a viable alternative in the private sector; namely, conditional fee agreements.

I am confident that conditional fee agreements can provide effective access to justice in this area. Conditional fees represent potentially profitable business for solicitors. And while some of the risk management in operating conditional fees will provide challenges to the way that some firms run their businesses, I must point out that there is nothing new about the approaches that may be required. We all know that for decades well organised firms of solicitors, often acting for trades unions or legal expenses insurers, have taken claims on the equivalent of this basis. What is more, they have done so without demanding money up front to cover the running costs of the cases, arranging loans for the clients or even telling expert witnesses and others that they must wait until the end of the case to be paid.

In recent years such arrangements have been supplemented by allowing lawyers to charge an uplift on their fees when they win. Clause 28 will allow the successful party to recover from the other side the success fee that he has to pay his lawyer under a conditional fee agreement. That means that the successful plaintiff will not have to pay the success fee out of his own damages. Together, these changes have increased, and will increase, the incentives for lawyers and their clients to pursue personal injury cases in this way.

Lord Goodhart

I am grateful to the noble and learned Lord the Lord Chancellor for giving way. If the noble and learned Lord is so confident that this is the case, why would it not be sufficient to say that personal injury cases will not be funded out of the community legal service fund where CFAs are available and leave it at that rather than having an absolute exclusion?

The Lord Chancellor

The object of excluding them is to make available for other purposes the resources that would otherwise be expended on these cases. If the private sector can support these cases—and we are confident that it can—the advantage is that resources are freed for other purposes, in particular the development of the community legal service.

Insurance has become available to cover the client's risk of having to pay costs. If they want to, even solicitors can insure to cover their own costs if the case is lost. The development of the insurance market is clearly important in this area and I am confident that it is developing well. I know of at least 10 insurers who are willing to provide after-the-event insurance. They include First Assist, Greystoke Legal Services, Abbey Legal Protection and Litigation Protection Limited. We know that one insurer alone has written 50,000 policies. And the prices of policies are not prohibitive. They are well within the kind of up-front costs that a solicitor should be able to bear or which a loan could cover, bearing in mind that the policy itself would cover the loan if the case were lost. For example, the Law Society's package, which is provided by Guinness Mahon, is available for approximately £90 to £170.

The removal of public funding from most personal injury cases is not based on a prayer. It is based on long-established and ever more accessible arrangements for funding these cases in the private sector. It is not just the Government who say that. Some noble Lords may have seen the press notice issued last March by Thompsons, one of the major personal injury firms. It said of the publication of our consultation paper, Access to Justice with Conditional Fees, that this was an opportunity to tackle difficult issues and create a new legal services framework based on fairness, need and value for money. With proper safeguards for the poorest and most vulnerable, the proposals to replace legal aid with no win no fee deals would put people first, not lawyers. Too many lawyers had for too long thought the world owed them a living—those days have now ended. Lawyers would have to wean themselves off the easy money of legal aid and adapt to the new legal landscape. Those are not the words of the Government, but of Thompsons, a leading firm of personal injury lawyers. I agree with those sentiments.

However, because I am aware that it will not be possible overnight to fund personal injury cases through conditional fees in all circumstances, I shall have the flexibility through my direction-making powers under Clauses 4 and 7(7) to allow the funding of such cases in some circumstances. It may be, for example, that some funding will be needed where there are exceptionally high investigative or overall costs, or issues of a wider public interest.

If the worst came to the worst, and the market for conditional fees in personal injury cases, particularly for the poor and vulnerable, was not functioning effectively—I do not believe for a second that that would happen—I would consider making directions or regulations which brought a wide range of personal injury cases back into scope. Alternatively, I could consider making decisions which would allow the commission to intervene in individual cases where someone was having difficulty obtaining a conditional fee arrangement and where there was a clear case of hardship. Of course, the case would still have to be assessed under the funding code. To take that approach to individual cases, I would need to amend Clause 7(7), but, as I have said, I would consider that. Therefore, we are not proceeding on a hymn and a prayer but on a soundly based judgment, and I invite the noble and learned Lord to withdraw his amendment.

Lord Clinton-Davis

My noble and learned friend has given a partially encouraging response, but one that is not wholly realistic when it comes to personal injury cases. I am aware of Thompsons and its very big reputation, but I do not agree entirely with that organisation in this matter. I do not wholly disagree with Thompsons, but I do disagree in part. The argument about trade unions and insurers requiring solicitors to bear the costs of disbursements as cases proceed depends on the extent of that disbursement. If the disbursement is very heavy, one must bear in mind that other disbursements are in train at one and the same time and the solicitors are required to bear that under the scheme that my noble and learned friend suggests.

Looking more closely at the background, I invite my noble and learned friend (if, for a moment, he can desist speaking to the Deputy Chief Whip, attractive though that may be) to consider the time before legal aid made interim payments as cases progressed. That was introduced precisely because the burden on those firms that carried out a good deal of legal aid was just too heavy. The very fact that we still have that system indicates that the problem is rather greater than my noble and learned friend suggests. It depends on the extent of the burden confronting the individual firm. There are firms which will find the position difficult. My noble and learned friend the Lord Chancellor should recognise that many experts will still not defer their fees. For the benefit of his client, the solicitor has to find an expert who will defer fees. It does not occur all that easily, in particular as regards medical witnesses.

My noble and learned friend has not given due credit to these difficulties. I am not convinced that a study by KPMG—another excellent firm of accountants—is a satisfactory substitute for the complaints made to me by individual firms of solicitors. My noble and learned friend may be 100 per cent. right. He then has a job of conversion to do. He must be able to persuade those firms which carry a heavy burden at present that what he is doing will provide proper protection for their clients. That is the first priority and of paramount concern. I do not think that that has occurred yet. At best it is a job of conversion; at worst, from the Government's point of view, it is a job of looking again at the situation.

My noble and learned friend says helpfully that he will keep an open mind on these matters to see whether great difficulties arise, particularly for people in personal injury cases. We shall have to rely upon that. I have known my noble and learned friend for many years. I am not sure whether I have ever briefed him; I have briefed many members of his chambers. However, these are problems which arise daily in the lives of clients in the areas to which I alluded. I ask my noble and learned friend to keep a very open mind on these matters, otherwise real tragedies can occur.

Lord Goodhart

It is not my intention on this occasion to move Amendment No. 87 or the other amendments in the group. But it is likely to be a point to which we shall wish to return.

Lord Archer of Sandwell

I am most grateful to the noble Lord, Lord Goodhart, and my noble friend Lord Clinton-Davis for their support. I accept that my noble and learned friend has directed his mind to the questions which we raised and that he is satisfied that conditional fee agreements and insurances are sufficiently available to provide alternatives. Those who said that the "Titanic" was unsinkable had directed their minds to the question. They, too, had consulted and made inquiries. My noble and learned friend denies that he is proceeding on a hymn and a prayer. I have more confidence in hymns and prayers than in some confident predictions I have heard.

I do not see at present the answer to the suggestion of the noble Lord, Lord Goodhart, that one might provide that public funding from this source should be available if it transpires in an individual case that conditional fee agreements are not available. If I may say so with the greatest respect to my own Front Bench, it is difficult to address arguments to a concerted conversation. The proposal which came from the noble Lord, Lord Goodhart, answered the argument of my noble and learned friend that we want to have resources available for other purposes.

If in a particular case it transpired that there was an alternative provision, the resource would be available for other purposes, so it is difficult to see what is the answer to that proposal. I have no doubt that if there were a crisis my noble and learned friend would intervene. It would give me no great pleasure in two years' time to say, "I told you so". But there it is, we have tried tonight. It may be that we shall return to the issue at a later stage in our deliberations, but for the moment I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 87 to 89 not moved.]

Lord McIntosh of Haringey

I beg to move that the House do now resume.

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

House resumed.

House adjourned at five minutes past eleven o'clock.