§ 56B Line 4, after ("applies") insert (-or is an agreement which is enforceable at common law")
§ The Commons disagreed to Lords Amendment No. 56B to Commons Amendment No. 56 but proposed the following amendment in lieu thereof—
§ The Lord Chancellor
My Lords, I beg to move that the House do not insist on their Amendment No. 56B to which the Commons have disagreed, and do agree with the Commons in their Amendment No. 56C in lieu thereof.
In bringing Amendment No. 56C before your Lordships' House the Government are fulfilling an undertaking given on the previous occasion on which this House considered this Bill. At that time we had before us Amendment No. 56B, which was moved by the noble Lord, Lord Goodhart. On that occasion I said that the effect of Amendment No. 56B would have been to broaden the effect of Amendment No. 56 so that it excluded from the scope of this legislation not only non-contentious business agreements, but any form of fee agreement enforceable at common law, typically conditional fee agreements with no uplift—often known as Thai Trading agreements—and gave reasons, which I will not now repeat, as to why that would be undesirable.
However, the noble Lord, Lord Goodhart, made it absolutely clear that all he was trying to achieve was to preserve the position of solicitors entering into Thai Trading agreements in respect of proceedings under Section 82 of the Environmental Protection Act 1990. If I may say so, this is another area of this Bill where the Government have both listened and responded positively. Section 82 allows people aggrieved by a statutory nuisance, for example inadequate housing, to seek an order for that nuisance to be put right. These cases are heard in a magistrates' court and are 1310 technically criminal cases, although they are in substance brought to enforce a civil right. Conditional fee agreements are not permitted in criminal cases under the existing legislation, and that position is maintained by the Bill. But as a result, the effect of bringing Thai Trading agreements into the scope of the legislation so as to be able to regulate them in the consumer interest was to outlaw them in these Section 82 proceedings.
I said that after careful consideration the Government accepted that in this area an exception should be made to the general bar on using a conditional fee agreement in a criminal case. As I say, essentially these cases are about enforcing civil rights; and many of them are about the right to a decent standard of housing, an issue to which the Government attach a very high priority as part of their drive to combat social exclusion. I therefore suggested a somewhat unusual—perhaps completely unprecedented—course, which caused a little merriment around your Lordships' House but none the less, or perhaps because of that, found favour with your Lordships. I proposed that this House accept Amendment No. 56B, warts and all, for tactical purposes in order to make it possible to bring forward in another place an alternative amendment which dealt squarely with an exemption for the Environmental Protection Act. This is what Amendment No. 56C does. It amends Section 58A of the Courts and Legal Services Act 1990 so that proceedings under Section 82 of the Environmental Protection Act are exempted from the ban on the use of conditional fees in criminal cases.
I trust that Amendment No. 58C will meet with your Lordships' approval, and I would like to put on record my gratitude to the noble Lord, Lord Goodhart, for giving us the opportunity to make this useful amendment.
§ Moved, That the House do not insist on their Amendment No. 56B to which the Commons have disagreed, and do agree with the Commons in their Amendment No. 56C in lieu thereof.—(The Lord Chancellor.)
§ Lord Goodhart
My Lords, Amendment No. 56C, in our view, brings in a small but distinct improvement to this Bill. In that respect it is the last of many improvements to the Bill which have been made both in your Lordships' House and in another place. I join with my noble friend Lord Thomas of Gresford in paying a tribute—it is certainly a genuine tribute—to the Government and to the noble and learned Lord the Lord Chancellor in particular for their willingness to listen to the arguments to make improvements to this Bill, some of which have been very much more important than this amendment.
I have to say that we are left with a number of serious concerns. One of those was aired in the debate earlier this afternoon; others have been discussed at length at earlier stages of this Bill. As Amendment No. 56C is certainly in our view an improvement to the Bill, all I need to say at this stage is that we are happy to welcome it.
§ On Question, Motion agreed to.