§ Consideration of amendments on Third Reading resumed.
§ Lord Falconer of Thoroton moved Amendment No. 16
§ After Clause 43, insert the following new clause
§ APPEALS AGAINST ORDERS TO SERVE REMAINDER OF SENTENCE
§ (".—(1) In section 40(6) of the Criminal Justice Act 1991 (order returning offender to prison for unserved portion of sentence to be treated for purposes of appeal provisions as sentence passed for original offence), for the words from "any enactment" to "made" substitute "sections 9 and 10 of the Criminal Appeal Act 1968, any order made by the Crown Court under subsection (2) above, or made under subsection (3A) above,".
§ (2) Section 10 of the Criminal Appeal Act 1968 (appeal to Court of Appeal by person dealt with by Crown Court for offence of which he was not convicted on indictment) is amended in accordance with subsections (3) and (4).
§ (3) In subsection (2) (proceedings from which an appeal lies), insert at the end "; or
§ (c) having been released under Part II of the Criminal Justice Act 1991 after serving part of a sentence of imprisonment or detention imposed for the offence, is ordered by the Crown Court to be returned to prison or detention,".
§ (4) In subsection (3) (cases where person may appeal), in paragraph (cc) (order under section 40(3A)), for "40(3A)" substitute "40(2) or (3A)''.").
§ The noble and learned Lord said: My Lords, this new clause makes amendments to both Section 40 of the Criminal Justice Act 1991 and Section 10 of the Criminal Appeal Act 1968. This is a minor, technical and, hope, uncontroversial clause. These changes have been identified, in consultation with the Law Commission, as being necessary to facilitate the consolidation of certain enactments relating to the sentencing powers of the courts. They are needed before a Consolidation Bill can be introduced in a future Session of Parliament.654
§ The amendments will clarify the appeal rights of an offender who is returned to prison under Section 40 of the 1991 Act. I beg to move.
§ On Question, amendment agreed to.
§ Lord Falconer of Thoroton moved Amendment No. 17:
§ After Clause 44, insert the following new clause—
§ CALLING INTO QUESTION OF INCIDENTAL DECISIONS
§ "Calling into question of incidental decisions in civil division.
§ 58.—(1) Rules of court may provide that decisions of the Court of Appeal which—
- (a) are taken by a single judge or any officer or member of staff of that court in proceedings incidental to any cause or matter pending before the civil division of that court, and
- (b) do not involve the determination of an appeal or of an application for permission to appeal,
§ (2) No appeal shall lie to the House of Lords front a decision which may be called into question pursuant to rules under subsection (1)."").
§ On Question, amendment agreed to.
§ The Lord Chancellor moved Amendment No. 18:
§ After Clause 51, insert the following new clause—
§ POWER TO ALLOW CHILDREN TO ATTEND CRIMINAL PROCEEDINGS
§ (". —(1) In section 36 of the Children and Young Persons Act 1933 (child not to be present at criminal trial except where required as witness or otherwise for the purposes of justice), after "justice" insert "or while the court consents to his presence".
§ (2) In section 50(1) of the Criminal Procedure (Scotland) Act 1995 (child not to be present at criminal proceedings unless required as witness or otherwise for the purposes of justice), after "justice" insert "or the court consents to his presence".").
§ The noble and learned Lord said: My Lords, in moving Amendment No. 18, with your Lordships' leave I will speak also to Amendments Nos. 23, 24, 55 and 68. Section 36 of the Children and Young Persons Act 1933 prohibits children (that is, young people under the age of 14) from attending criminal trials unless the child is a defendant, a witness, an infant in arms, or his presence is required for the purposes of justice. At Report stage the noble Lord, Lord Phillips of Sudbury, proposed an amendment which would allow children to attend criminal trials with the consent of the court. He stressed the educational value of such a change.
§ The Government put a high value on participation in our justice system. Two notable examples are juries and the lay magistracy. Equally, the road to justice is generally, in our country, a public one. Our courts sit in public unless there are countervailing public interests, and these are rare. It is a useful promotion of a sense of citizenship for children to be able to witness our criminal justice system in action. In was for that reason, when the noble Lord first proposed these amendments, that I expressed some sympathy for the spirit of the 655 amendment, but wished to give it further thought. This I have done. I have also had further correspondence with the noble Lord, and I have been able to consult the Lord Chief Justice.
§ The Government have already made changes to youth court procedure to achieve a greater openness in proceedings, and we entirely agree with the proposal by the noble Lord, Lord Phillips, which will affect not only the magistrates' court, but also the Crown Court. The Lord Chief justice also supports such a change.
§ Amendment No. 18 therefore permits children under 14 years of age to attend criminal trials in England and Wales, with the consent of the court. It also makes a comparable change for Scotland, which has the support of the Lord Justice General.
§ I am advised that, if your Lordships agree to the inclusion of this new clause, a technical amendment is needed to the Long Title. That is the purpose of Amendment No. 68.
§ Amendment No. 23 amends the extent of the Bill in respect of children attending criminal proceedings in Scotland. Amendment No. 24 improves the drafting changes of Clause 83 on extent.
§ At the same time we have taken the opportunity to remove from Section 36 of the Children and Young Persons Act 1933 a redundant qualification on the prohibition in respect of children who had cause to attend court for purposes connected with their employment. This is achieved by Amendment No. 55. I beg to move.
§ Lord Phillips of Sudbury
My Lords, perhaps I may express gratitude to the noble and learned Lord the Lord Chancellor for the thought that he has given to this proposal and the amendments now brought forward. I can assure him that the extra allowance that the amendments permit will be extremely well used.
My Lords, I, too, welcome this new clause. There is one point on which I would like some assurance from the noble and learned Lord. From the wording of the amendment I assume that there cannot be a case in which a child is compelled to attend a trial against its will. If a member of the child's family is the accused then the child could be very upset by the proceedings and should not be required to remain in court. I am sure that the noble and learned Lord can give an assurance on that point.
§ The Lord Chancellor
My Lords, as I understand the changes, they are to enable, and not compel, children to attend, with the consent of the court.
§ On Question, amendment agreed to.
§ Lord Falconer of Thoroton moved Amendment No. 19:
§ After Clause 56, insert the following new clause—
§ ENFORCEMENT OF COMMUNITY ORDERS MADE BY CROWN COURT
§ (". Schedule (Enforcement of community orders made by Crown Court) (which transfers to the Crown Court certain functions relating to the enforcement of community orders made by the Crown Court which are currently functions of magistrates' courts) has effect.").656
§ The noble and learned Lord said: My Lords, these amendments make changes to the way in which alleged breaches of community orders are dealt with by the courts. These changes are, I believe, uncontroversial and will make the process for dealing with certain breach cases quicker and more efficient. They reflect the views of the judiciary who have argued that they are necessary in order to avoid unnecessary court proceedings, delays in resolving breach cases, and to increase confidence in community sentences.
§ The new clause inserts into the Bill a new schedule concerning the enforcement of community orders made by the Crown Court. The new schedule makes amendments to Schedule 2 to the Criminal Justice Act 1991. Schedule 2 currently provides that alleged breaches of community sentences imposed by the Crown Court should be brought first to the magistrates' court to be dealt with or, depending on the circumstances, to be committed to the Crown Court.
§ The new schedule creates a more streamlined process. Certain functions are transferred from the magistrates' court to the Crown Court in respect of the enforcement of those orders made originally by the Crown Court. Amendment No. 67 makes related repeals.
§ The changes flow from representations made by the judiciary that it is inappropriate for alleged breaches of orders made by the Crown Court to be heard by magistrates, and that all subsequent issues concerning such orders, in particular alleged breaches, should be heard by the Crown Court. It would also be more efficient for any such proceedings to start in the Crown Court, thereby saving the time and expense of a magistrates' hearing.
§ The Government are committed to ensuring that court processes are not needlessly long or complex. The amendment provides an element of flexibility, in that it is left to the judge, when passing a community sentence, whether to reserve jurisdiction to the Crown Court or not. It is important that if an offender has failed to comply with requirements of a community order the matter is dealt with swiftly and efficiently by the courts. We see no benefit in retaining the current arrangements whereby some cases have to be dealt with in the first instance by a magistrates' court only to be passed on to the Crown Court. I think it is right, then, to take the opportunity provided by this Bill to make these changes, which will improve and streamline the process by which community sentences are enforced. By the same token, it makes sense for all proceedings in respect of revocation of orders made by the Crown Court, which are always heard by that court, to start their life there rather than in the magistrates' court. The amendment so provides. I beg to move.
Viscount Colville of Culross
My Lords, I welcome this provision. Ever since the 1991 Act came into force Schedule 2 has been the subject of much argument, and many profound speeches at judicial seminars have been given by eminent people from all walks of life. The matter is still incomprehensible to most of us.
I ask two things of the noble and learned Lord, Lord Falconer. First, does this provision indicate that there is to be some consolidation? It is high time that 657 there was. One has only to look at the text of Amendment No. 52 to see that it is totally incomprehensible unless it is placed in the proper context with the other text.
Can the noble and learned Lord also say whether it is the Government's intention, by means partly of clarifying this matter, that the court's attention should be focused not only on the revocation of the community order, but also on the decision whether an alternative sentence should be imposed? Too often, what happens is that someone is brought before a magistrates' court or a Crown Court and sentenced for the new offence and the Probation Service asks for revocation of the previous community sentence. It is very seldom that there is any discussion of what ought to take the place of the remainder of the community service which is being revoked, in addition to the penalty for the new matter. It may be that there should be no additional penalty, but nevertheless the matter ought to be considered; otherwise community sentences fail to carry the weight that they are supposed to carry as alternatives to prison in the first instance. Perhaps the noble and learned Lord would like to contemplate that matter. I believe that it is not a matter for the Bill, but something on which guidance could usefully be given.
§ Lord Falconer of Thoroton
My Lords, the noble Viscount raises two points. First, one sees all too well the number of statutes concerned with consolidation and we shall give thought to that question. On the noble Viscount's second point, this amendment streamlines the procedure. His point is an important one which is worthy of consideration, but it seems to me that it is not appropriate for this Bill or this amendment.
§ On Question, amendment agreed to.
§ 6 p.m.
§ Clause 60 [Greater London Magistrates' Courts Authority]:
§ Lord Ackner moved Amendment No. 20:
§ Page 38, line 40. leave out ("subject to annulment in pursuance of a resolution of either House") and insert ("laid in draft before, and subject to approval by resolution of, both Houses").
§ The noble and learned Lord said: My Lords, recently I was approached by the deputy chairman of the Inner London Magistrates' Courts Committee to put forward this amendment. I do not know why I was approached. I suppose I was chosen on the basis of alphabetical merit.
§ The amendment seeks to replace the proposed annulment procedure for the making of statutory instruments under Clause 60 by the affirmative procedure, as laid down in other provisions in the Bill. Clause 60 proposes far-reaching changes to the magistrates' courts service in Greater London. It will create a Greater London magistrates' court authority to run all the Greater London magistrates' courts and replace the existing 22 magistrates' courts committees. Clause 60 is an enabling clause, leaving a great deal of detail about the new authority to be covered by statutory instrument.658
§ The Greater London magistrates' courts authority will be a radically different animal from other magistrates' courts committees in its constitution and powers. In contrast to other magistrates' courts committees, it will be able to own property, to acquire rights and liabilities and, crucially, to be its own paying authority, which presumably is a power to precept local authorities directly for their contribution towards its annual running costs.
§ The restructuring of the magistrates' courts in Greater London represents—so I am told—the largest rationalisation by far of magistrates' courts committees anywhere in England and Wales. The GLMCA—the Greater London magistrates' courts authority—will be bound to be seen as a flagship authority. It will affect the lives of 7 million people living in Greater London, plus many hundreds of thousands of commuters and visitors from overseas and other parts of the United Kingdom.
§ Parliament will reserve to the Lord Chancellor extensive powers to give flesh to this new body by the making of regulations. It is submitted, therefore, that there ought to be a proper parliamentary scrutiny of such regulations. In other parts of the Bill—for example, in procedures relating to the funding code under Clause 10—the affirmative procedure is to be used. There is a danger that if the annulment procedure is used for regulations made under Clause 60, the regulations might slip through. Of course, such regulations will have a profound effect on the running of magistrates' courts throughout the capital and the new body will be different from all other magistrates' courts committees in England and Wales. I respectfully submit that the affirmative procedure should apply to them. I beg to move.
My Lords, I support the amendment of the noble and learned Lord, Lord Ackner. We have seen the negative resolution procedure used when matters are not of such great importance that parliamentary approval is not essential, although it can, if necessary, be invoked. We have here the power on the part of the noble and learned Lord the Lord Chancellor to make regulations governing the whole of the criminal jurisdiction but, in the first instance, only for the 7 million people of London, the capital city of the United Kingdom. Therefore it is important that it should be a matter for an affirmative resolution, after discussion in either House of Parliament. I hope that the noble and learned Lord will look sympathetically at this amendment.
§ Lord Falconer of Thoroton
My Lords, this amendment would apply the affirmative resolution procedure to regulations relating to the membership and procedure of the Greater London magistrates' courts authority. Similar matters to these for magistrates' courts committees throughout England and Wales generally are currently dealt with under the negative resolution procedure. They relate to administrative details, such as constitution, procedure and quorum of committees, which may need to change from time to time.
659 The Government recognise the special needs of the capital in creating the Greater London magistrates' courts authority. Although it will be much larger than, and have some additional functions over and above those of other magistrates' courts committees, it is important that it still fits within the national framework for the magistrates' courts service wherever this is appropriate. As I indicated, if this amendment were allowed, for everywhere else except London the negative procedure rather than the affirmative procedure would apply.
The Government intend to bring forward further amendments to this clause in another place, which I hope will relieve some of the noble and learned Lord's concerns. I should emphasise that the Select Committee on Delegated Powers and Deregulation has already considered that the existing structure involving the negative procedure provides the appropriate degree of parliamentary control. In seeking differentiation from other magistrates' courts, he is also asking for more than the Select Committee suggested is appropriate. In those circumstances, I respectfully invite the noble and learned Lord to withdraw the amendment.
§ Lord Ackner
My Lords, I am bound to say that I am disappointed with that answer. In effect, we are considering the effective and efficient administration of summary justice for approximately one-seventh of the population. At this late stage, I can do no more than express the hope that in another place a good deal of what I have sought may be achieved. Accordingly, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 82 [Commencement]:
§ Lord Falconer of Thoroton moved Amendment No. 21:
Page 52, line 26, leave out ("and") and insert—
("( ) Schedule 10,").
§ The noble and learned Lord said: My Lords, the purpose of Amendments Nos. 21 and 22 is to provide that Schedule 10 and Section 81 of the Act shall both come into force at the end of the period of two months beginning with the day on which this Act is passed, rather than by order. That will remove the need for separate commencement orders. I beg to move.
§ On Question, amendment agreed to.
§ Lord Falconer of Thoroton moved Amendment No. 22:
Page 52, line 28, at end insert ("and
( ) section 81.").
§ The noble and learned Lord said: My Lords, I have already spoken to the amendment. I beg to move.
§ On Question, amendment agreed to.660
§ Clause 83 [Extent]:
§ The Lord Chancellor moved Amendments Nos. 23 and 24:
§ Page 52, line 32, leave out ("extends") and insert ("and section (Power to allow children to attend criminal proceedings)(2) extend").
§ Page 52, line 34, leave out from ("77") to ("this") in line 4 on page 53 and insert ("extend to England and Wales, Scotland and Northern Ireland.
§ (4) The other provisions of this Act which make amendments or repeals or revocations in other enactments also have the same extent as the enactments which they amend or repeal or revoke.
§ (4A) Subject to subsection (4), the provisions of this Part (including paragraph 1, but not the rest, of Schedule 10) extend to England and Wales, Scotland and Northern Ireland.
§ (5) Subject to the preceding provisions,").
§ The noble and learned Lord said: My Lords, I have already spoken to these amendments. I beg to move.
§ On Question, amendments agreed to.
§ Schedule 1 [The Legal Services Commission]:
§ The Lord Chancellor moved Amendment No. 25:
Page 57, line 33, at end insert—
("and the plan shall include a summary of what the Commission has ascertained in the exercise of its functions under section 5(5).").
§ The noble and learned Lord said: My Lords, this amendment clarifies that the annual plan prepared by the legal services commission will include a summary of the assessment of the need for services to be provided through the community legal service, which the commission will carry out under Clause 5(5).
§ On Report, the noble Lord, Lord Goodhart, tabled an amendment along very similar lines. He argued that, since under Clause 5(5) the commission will be under a duty to inform itself about the need for services, and under paragraph 15 of Schedule 1 it must prepare a plan setting out how it will fund services and exercise its other functions, it would be appropriate for the plan to include the assessment of need upon which it is based.
§ There is an undoubted logic in the argument advanced by the noble and learned Lord. Indeed, as I explained on Report, it has always been our intention that the annual plan should summarise the outcome of the assessment of need which will be carried out by the regional legal services committees and reported to the commission in the "regional strategies". I therefore undertook to seek the draftsman's view on the precise wording of an amendment to make this intention clear on the face of the Bill. The result of that exercise is the amendment now before the House.
§ The amendment provides the final element of the planning and reporting arrangements set out in the Bill, which will deliver a high degree of transparency for Parliament and the public about the activities of the commission and the provision of publicly funded legal services. The "regional strategies" will be the subject of wide consultation and will be published. The commission's annual plan, which will set out the results of the assessment of need and how the commission intends to meet that need having regard to the priorities set out by the Lord Chancellor, will be laid before Parliament and published. The commission's annual report, setting out how it has performed against its plan, 661 will also be laid before Parliament and published. I believe that these provisions will allow careful scrutiny of the functioning of the new arrangements. I beg to move.
§ Lord Goodhart
My Lords, I am most grateful to the noble and learned Lord for the amendment. It is another step forward in ensuring that this House and the public at large obtain full information about the working of the legal services commission. I am happy to support the amendment.
§ On Question, amendment agreed to.
§ The Lord Chancellor moved Amendment No. 26:
§ Page 58, leave out lines 7 to 32 and insert—
§ ("(3) The Commission shall send a copy of the statement of accounts in respect of each financial year to the Lord Chancellor and to the Comptroller and Auditor General within such period after the end of the financial year to which it relates as the Lord Chancellor may specify by direction given to the Commission.
§ (4) The Comptroller and Auditor General shall—
- (a) examine, certify and report on each statement of accounts received by him under sub-paragraph (3), and
- (b) lay a copy of each such statement of accounts, and his report on it, before each House of Parliament.").
§ The noble and learned Lord said: My Lords, the purpose of this amendment is to appoint the Comptroller and Auditor General auditor of the legal services commission. As currently drafted, paragraph 16 of Schedule 1 provides that the accounts of the legal services commission shall be audited by persons appointed by the Lord Chancellor in accordance with a scheme of audit approved by him. It further provides that the auditors shall report to the Lord Chancellor on the accounts and the statement of accounts and, on completion of the audit, shall send a copy of the statement of accounts and their report to the Lord Chancellor and to the Comptroller and Auditor General, who may inspect the accounts and any records relating to them. The Lord Chancellor shall then lay before Parliament a copy of the statement of accounts and the auditors' report. These arrangements replicate those currently in place in relation to the Legal Aid Board.
§ Under these arrangements, therefore, the Comptroller and Auditor General would have inspection rights to the commission's accounts and related records to enable him to discharge his functions under the National Audit Act 1983 to carry out examinations into the economy, efficiency and effectiveness with which public bodies have used their resources in discharging their functions and to report to Parliament through the Select Committee on Public Accounts. But in practice, under such arrangements, the Comptroller and Auditor General tends to rely to a great extent on the work of the appointed auditors to avoid a major duplication of work.
§ The Government are committed to increasing transparency and openness to Parliament. For that reason, we believe that the auditor of public bodies should be the Comptroller and Auditor General rather than an auditor appointed by the relevant Minister unless there is some special reason why the auditor of a particular public body should have knowledge or 662 experience which can be found only in the private sector. No such reason exists in the case of the legal services commission.
§ This amendment will improve the accountability to Parliament of the commission. The Comptroller and Auditor General will have complete discretion, on behalf of Parliament, over the scope of the audit, and the Comptroller and Auditor General will report to Parliament rather than to the Lord Chancellor. I know that the chairman of the Select Committee on Public Accounts supports the improved accountability which will result from the amendment.
§ The amendment will also bring other benefits. The commission's accounts will be scrutinised by those who possess the greatest expertise in the audit of public moneys; and the total audit burden will reduced because the duplication of the Comptroller and Auditor General having to inspect the commission's accounts separately in order to report to Parliament on regularity and propriety will be removed. I beg to move.
§ 6.15 p.m.
My Lords, this is obviously a good amendment which should be supported. There is, however, one point on which I think we should have some assurance from the noble and learned Lord. We must avoid delay. The amendment states that the statement of accounts shall be submitted,within such period … as the Lord Chancellor may specify by direction given to the Commission".What sort of period does the Lord Chancellor have in mind? On any matter of public accounts, it is essential that the whole issue should be resolved within a few months of the end of the financial year and not hang over until the following financial year. Perhaps the noble and learned Lord will say what period he has in mind. Indeed, when the Bill goes to another place, perhaps that period could be specified rather than the provisions stating as now,within such period … as the Lord Chancellor may specify".
§ The Lord Chancellor
My Lords, I shall give thought to that point. I can assure your Lordships that I, for one, am the enemy of delay and that I contemplate only such period of time as is reasonable to enable the accounts to be prepared immediately upon the end of the financial year in accordance with ordinary standards of business efficiency in the public sector.
§ On Question, amendment agreed to.
§ Schedule 2 [Community Legal Service: excluded services]:
§ Lord Kingsland moved Amendment No. 27:
§ Page 59, line 5, leave out ("for clinical negligence") and insert ("specified in sub-paragraph (2)").
§ The noble Lord said: My Lords, this amendment would allow the community legal service to fund help for certain types of claimant in respect of personal injuries. It would assist parties under a disability, together with those entitled to a retirement pension, or the disabled who are in receipt of disability living allowance or the disability working allowance.663
§ Under the present provisions of the Bill, legal aid will be withdrawn from personal injury cases save for clinical negligence cases. The noble and learned Lord the Lord Chancellor will have the power, under Clause 7, to direct the commission to fund the provision of services, otherwise excluded by Schedule 2, in specified circumstances.
§ The noble and learned Lord has indicated that that power is likely to be used in personal injury cases where there are particularly high investigative costs. Essentially, the noble and learned Lord believes that conditional fees can provide a satisfactory alternative to the funding of all other cases which would otherwise merit support from public funds. But conditional fees will not provide the desired extension to access to justice unless it is possible to provide after-the-event insurance to cover the risk of payment of the opponent's costs if the case is lost. On that criterion, there remain some categories of case where it will be particularly difficult to use conditional fees.
§ There will also be clients who cannot readily afford insurance or disbursements. Although the noble and learned Lord has suggested that conditional fees will be profitable for solicitors, in reality firms will have to take a view with respect to the proportion of cases they can afford to run on a risk basis.
§ This amendment seeks to give priority to the interests of the vulnerable who might otherwise not secure access to justice. Those who are disabled, whether by reason of their personal injury or otherwise, and in receipt of relevant benefit, are unlikely to have the resources available to fund premiums and disbursements themselves. Entitlement to a retirement pension should also properly act as a passported benefit.
§ One of the few extensions to the scope of legal aid in recent years came when the previous Lord Chancellor, my noble and learned friend Lord Mackay of Clashfern, decided that the resources of children should not be aggregated with those of their parents. It is surprising, therefore, that the present Government wish now to exclude legal aid from children for personal injury actions. I beg to move.
§ Lord Ackner
My Lords, for the reasons which have just been given by the noble Lord, Lord Kingsland, I support this amendment, and there is nothing I can usefully add.
§ The Lord Chancellor
My Lords, these amendments together would put on the face of the Bill a number of exceptions to the exclusion of personal injury cases from the scope of public funding. They are exceptions which have been moved with the understandable intention of protecting those members of society who are considered to be most vulnerable. At Report my noble and learned friend Lord Archer of Sandwell put forward an amendment covering similar ground. He sought to keep in scope cases involving children and people suffering from a mental disability. He was concerned that they would have greater difficulty than others in finding a solicitor prepared to act under a conditional fee agreement and in negotiating a fair agreement.
664 In the long debates that we have had about personal injury during the passage of this Bill, many of your Lordships came up with examples of cases which, it is alleged, solicitors would not be prepared to undertake. I must say that the more I thought about this the more I found it to be almost an indictment of the profession by the very people who have often sought to maintain the status quo in other respects. The Jonahs are everywhere. Cases are either too risky, they require planning of payments over the duration of the case, they are too complex or they involve vulnerable members of society. The list goes on.
I do not believe that clients will be turned away by lawyers simply because they are minors, aged, are mentally ill or are physically disabled. If they have good cases they will certainly find lawyers willing to take them. People, whatever their physical or mental state, will find it hard to secure lawyers who will work on conditional fees if they have poor cases. That must be right, because we do not wish to encourage people to take cases which do not have a sufficient prospect of success. They may have a difficulty if their case requires considerable expenses before a decision can be taken about the prospects of success.
However, only yesterday the Royal and Sun Alliance insurance group, through First Assist—its legal expenses subsidiary in association with the brokers Willis Corroon group—launched its new conditional fee insurance product. The essential features of the product are that it removes from the client the risk of having to pay disbursements, and provides unlimited cover for an opponent's costs. The insurance premium is only payable if the case is won, and then only at the end of the case. It provides for the majority of solicitors costs and expenses, including counsel's fees if he is not working under a conditional fee agreement, to be met if the case is unsuccessful. Also it can be extended to include appeal costs. The premium is assessed by the insurers on the likelihood of success and merits of the case. The eventual premium will be expressed as a proportion of the solicitor's basic fees.
I should add that a non-refundable fee of £200 plus VAT is required with the proposal form to cover the underwriters' costs of carrying out the assessment of the claim. I predict that in practice solicitors will be willing to bear that fee because they too benefit from the cover provided by the policy, and it is a small investment for a solicitor to make in order to secure his client's case.
So I believe, as I have long predicted, that the insurance industry is bringing forward the products which will underpin conditional fee agreements. However, I have said repeatedly and I say again that I will be ready to use the power given to me in the Bill, if necessary, to ensure that provision is made to assist in meeting high investigative costs. There may be difficulties there, at least until lawyers have become more accustomed to working with conditional fees, have restructured the financial base of their practices and gained experience of the insurance products that are going to come on to the market. However, I repeat what I have said before: I am ready to make provision for assistance to be given in funding cases where unusually high investigative costs arise.
665 I also accept that it may be necessary, particularly for those who lack legal capacity such as children and the mentally ill, for specific provision to apply where a conditional fee agreement is offered. I do not believe that in principle there is any reason why such people will not be able to use conditional fee agreements. Currently, next friends or guardians ad litem need to consider how best to retain the services of a lawyer to represent children and the mentally ill. I accept that it may be necessary to ensure that regulations address the different situation of the lawyer being retained by a third party on behalf of a person under a legal disability.
It is important that the person who makes an agreement with a lawyer on behalf of such a person and gives the necessary undertakings as to an opponent's costs is fully informed about all options for funding the case and the consequences of specific options, not least any success fee. This can be provided for by regulations under the proposed Section 58(3)(c) of the Courts and Legal Services Act 1990, as inserted by Clause 29 of the Bill. I take this opportunity of saying that I would welcome any proposals that any of your Lordships may have on provisions that ought to be included in regulations.
So of course making the success fee recoverable will benefit all users of conditional fee agreements, including children. It will ensure that the damages are not eaten up by the success fee. The availability of conditional fees gives everyone, old and young, healthy or infirm, greater access to justice, particularly if they are not eligible for legal aid and not rich enough to self-finance. If 1 am wrong in my assessment of how the profession will respond in offering conditional fee agreements—and I see no reason why I should be—and if specific groups find themselves unable to secure lawyers to work under a conditional fee agreement (for reasons that I have to confess escape me at present) I will be ready to use the powers that I have mentioned to ensure that no group nor any individual is excluded simply because they lack legal capacity, are old or are disabled.
I firmly believe that this flexible approach to personal injury cases will benefit everyone. It will encourage the successful growth of the conditional fee market and so increase access to justice for millions who currently do not have adequate access. It will provide, too, many profitable opportunities for lawyers and it will ensure that scarce taxpayers' money will be deployed in the areas where those moneys are most needed. And with the powers to make directions, I shall be able to respond to any market imperfections which truly prove to be a real problem. On that basis, therefore, I invite the noble Lord to withdraw his amendment.
§ 6.30 p.m.
§ Lord Kingsland
My Lords, the reply of the noble and learned Lord the Lord Chancellor has not satisfied the terms of my amendment. However, I have to say that it is the fullest and, I believe, the most sympathetic reply he has yet given to an amendment on this issue. I trust that his faith in conditional fees and their efficacity 666 will prove justified. But, if not, I am heartened by the fact that he said he will react flexibly and sympathetically in those circumstances where they are seen not to work. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 28 not moved.]
§ Lord Clinton-Davis moved Amendment No. 29:
Page 59, line 27, after ("costs,") insert—
("( ) proceedings in coroner's inquests into death in appropriate cases,").
§ The noble Lord said: My Lords, in moving this amendment I revisit a discussion we had on Report on 11th February, following which my noble and learned friend courteously wrote to me at length. I suspect that there is not so much a division of principle between us, more a division as regards the best way to approach the issue. I hope that my noble and learned friend agrees with that assessment.
I am moved to revisit the matter because in the Macpherson Report on the Stephen Lawrence inquiry recommendation No. 43 suggests that,
consideration be given to the provision of Legal Aid to victims or the families of victims to cover representation at an Inquest in appropriate cases.
That is powerful support for what I was arguing before and for what I argue now. However, in his letter, my noble and learned friend says that it would be premature to come to a conclusion about that because the Government are considering their full response to the Macpherson Report and therefore he is not in a position to give a definite answer to that particular suggestion.
§ I appreciate the generality of that response and I hope that my noble and learned friend will give me an assurance that this is a matter to which the Government will give careful consideration notwithstanding the current conclusions I think he will impart to the House and to which he referred in his letter. I believe that it would be desirable to establish some sort of machinery beyond that vested at present in my noble and learned friend to enable this procedure to be invoked where it is appropriate to do so.
§ I am not quite sure what is the best way of proceeding in the matter. This is simply a further probing amendment. However, it is not always possible to determine at an early stage leading to a coroner's inquest how difficult the matter will be, what sort of evidence it is necessary to rely on, and how best one can proceed with cross-examination within the limits of something which is not a usual form of legal proceeding. It is a legal proceeding for arriving at certain facts.
§ Therefore, at what stage would it be appropriate for my noble and learned friend and his department to intervene? On what basis would they do so? Would it be on the basis of an application made by the family of the victim? Alternatively, would it be made by a lawyer on behalf of that person? Would it be possible for the coroner to indicate that it would be appropriate in the 667 circumstances outlined to him that a person should be legally represented through a form of legal aid?
In his letter, my noble and learned friend thinks it,
better and clearer for the Bill … to establish that funding is not generally available, subject to the clause 7(8) power to make provision for exceptional cases".
My problem is that I do not know how one identifies those "exceptional cases" until it is perhaps too late. It can be very expensive to invoke the assistance of the necessary expert evidence to help a lawyer and, indeed, to ask the right sort of questions where it is wholly appropriate, for example, to rely upon medical evidence. I have faced that situation myself on a number of occasions. It would not have been possible for me to have cross-examined without access to it. It so happened that I was instructed on a private basis and the financial circumstances of the people involved were such that it did not matter. I did not have to consider applying for legal aid.
§ However, I can say definitively—and I am sure that this is the experience of lawyers in the House who have conducted proceedings in coroners' courts—that to proceed without the basis of that evidence would render one's appearance pretty nugatory. Therefore, it would be helpful if my noble and learned friend could indicate how the machinery will work. I really do not think that the green form is at all adequate to deal with the sort of cases I have been seeking to enlist in support of my argument. Cross-examination can be very important notwithstanding the nature of inquests in so far as they are quite different from the normal form of legal proceedings.
§ I hope that my noble and learned friend will be able to offer some additional guidance as to the way in which Clause 7(8) might be invoked. Above all, I trust that I can get an assurance from him that the Government will certainly not close their minds to this proposition when it comes to examining the Macpherson Report. I beg to move.
§ The Lord Chancellor
My Lords, my noble friend Lord Clinton-Davis proposes an amendment to Schedule 2 which would allow the legal services commission to fund representation in proceedings in coroners' inquests into death "in appropriate cases". My noble friend proposed similar amendments at both the Committee and Report stages. In response to my noble friend's concerns, we amended the Bill on Report in order to allow funding to be authorised in "exceptional cases". I had rather thought that that would have been the end of the matter. Indeed, at Report stage, my noble friend said:I do not say that in every case legal aid should be available automatically. I am not saying that at all. It must be apposite and within the community legal service's power to provide legal aid. It should not be a duty but a power".—[Official Report, 11/2/99; col. 429.]That is exactly what we have done in providing, under Clause 7(8)(b) of the Bill, that the Lord Chancellor:may authorise the Commission to fund the provision of any of those services in specified circumstances, or, if the Commission request him to do so, in an individual case".668 However, my noble friend has given the reason for his return to the matter by way of the current amendment. It is because the Macpherson Report, following on the Stephen Lawrence inquiry, recommended, among other things, that,consideration be given to the provision of Legal Aid to victims or the families of victims to cover representation at an Inquest in appropriate cases".As my noble friend intimated, the Government are still considering their response to the Macpherson Report. Therefore, it would really be premature for me to give a definitive response to that recommendation about legal aid.
I have to tell my noble friend that my initial view is that legal aid is not appropriate in the overwhelming majority of inquests, which are inquisitorial proceedings intended to establish the facts. However, I acknowledge that there may be exceptional cases where funding should be available to provide representation. This is already possible under the existing Legal Aid Act. In previous debates I have cited the example of the second "Marchioness" inquest where my predecessor, the noble and learned Lord, Lord Mackay of Clashfern, caused legal aid to be made available.
As I have already said, the Access to Justice Bill allows for funding to be authorised in exceptional cases. However, I do not wish to seek to define on the face of the Bill, or to offer a definition of, "exceptional cases". Furthermore, advice and assistance, short of representation at the proceedings, will continue to be available to any financially eligible person involved in an inquest. Therefore I do not at this stage believe that this amendment is necessary. I ask my noble friend to recognise that we have already responded to his concerns in this area. On the basis of the explanations I have offered I invite him to withdraw this amendment.
§ Lord Clinton-Davis
My Lords, I have listened carefully to my noble and learned friend. I do not apologise for returning to this matter as it is appropriate in the light of the Macpherson Report to do so. I am grateful to my noble and learned friend for having made amendments earlier in our proceedings which are helpful in this context. I note that the Government will, of course, have to give further consideration to this matter alongside other recommendations in the Macpherson Report. In the meantime, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Schedule 5 [Authorised bodies: designation and regulations and rules]:
§ [Amendment No. 30 not moved.]
Page 69, line 44, at end insert—
("( ) The Lord Chancellor shall not decide to grant the application unless at least two of the designated judges have advised him that the application should be granted.").
§ The noble Lord said: My Lords, I do not propose to move my amendments in this group, but instead I shall support the amendments which stand in the name of the noble Lord, Lord Kingsland. I shall not move Amendment No. 31.
§ [Amendment No. 31 not moved.]
§ Lord Kingsland moved Amendment No. 32:
§ Page 74, leave out lines 36 and 37.
§ The noble Lord said: My Lords, I shall speak to Amendment No. 33 and the other amendments which are grouped with Amendment No. 32; but in doing so I shall be most telegraphic. This issue has been well rehearsed in Committee, at Report stage and, indeed, at Second Reading.
§ Part III of Schedule 5, as I am sure your Lordships now well know, enables the noble and learned Lord the Lord Chancellor to alter existing professional rules where he considers it necessary to do so.
§ This power is draconian. The noble and learned Lord the Lord Chancellor appears to be determined to have this power. Consequently, under the present provisions of Schedule 5, there is a real risk that amendments to professional bodies' rights of audience or rules of conduct might be made simply on the basis of political preference.
§ Amendment No. 33, in particular, would ensure that Her Majesty's Government's power is limited. Thus, power would be exercisable in Schedule 5, Part III, only if at least two of the four designated judges favour a change proposed by the noble and learned Lord. This would help to ensure that changes were made only where the judges considered they were necessary for the proper operation of the justice system of this country. I beg to move.
§ 6.45 p.m.
§ Lord Ackner
My Lords, when the Government have a massive majority in the House of Commons the executive becomes all powerful and parliamentary scrutiny of the acts and intentions of the executive is not always as careful as it ought to be. That is when the constitutional principle of the separation of powers becomes more important. In its judicial capacity the House of Lords has emphasised that the British constitution is firmly based on the separation of powers. Those were virtually the opening observations made by my noble and learned friend Lord Steyn, a Lord of Appeal in Ordinary, in the Kalisher memorial lecture delivered on 13th October 1998.
When similar powers were sought by his predecessor some 10 years ago, the judges, who were carefully defined as the Lord Chief Justice, the Master of the Rolls, the President of the Family Division and the Vice-Chancellor, the Lord Justices of Appeal and Justices of the High Court, robustly stated as follows,It is of fundamental importance that the existing degree of separation of the powers and functions of the Judiciary from those of Parliament and the Government. evolved gradually over the centuries, should be maintained. The independence of the Judiciary and of advocates is perhaps more important now than ever, because one of the great constitutional tasks of the Courts today is to control misuse of powers by Government ministers and departments.670 "The Government is proposing that in the future the Lord Chancellor should make the final decision on standards of education and training for advocates, prescribe the principles to be embodied in codes of conduct for advocates, and be empowered to make decisions on rights of audience in the High Court and Court of Appeal by means of subordinate legislation. These proposals represent a grave breach of the doctrine of separation of powers.
"Until now no Government minister has had. and no Government has sought power to exercise ultimate control over the profession of advocacy in the courts. Once a power is given, the risk that it may be misused by some future Government cannot be disregarded.
"The Government should recognise that it has gone too far in making these proposals and should accept that such powers as the Lord Chancellor may require should only be exercised by him with the concurrence of the Judiciary.
"In this way the necessary separation of the proper powers of the Judiciary from those of the Executive would be preserved".
The Government backed down and that is how the Lord Chancellor's advisory committee came to be set up.
The extraordinary thing in the context of this Bill is that the White Paper The Way Ahead, which was designed to premedicate the public generally in relation to the forthcoming Bill, and which sought these powers, never at any stage referred to the doctrine of the separation of powers, never at any stage referred to the past history, and in fact suppressed that very important aspect of the situation. I find this quite startling when one bears in mind the observations which the Lord Chancellor has made quite recently.
Prior to the issue of the White Paper the Lord Chancellor introduced legislation designed to enable him to have a Permanent Secretary in his department, some other civil servant than had been prescribed by the Supreme Court (Offices) Act. He said:The Lord Chancellor is at a crucial cusp in the separation of powers between Parliament, government and the judiciary … Under the previous government the public were disturbed that the separation of powers was not alive and well because the judiciary and the executive appeared to be at war. It is for the Lord Chancellor to ensure that the public can continue to have confidence that our system, based on the separation of powers, is working".—[Official Report, 25/11/97; col. 934.]My noble and learned friend the Lord Chancellor very recently, on 17th February, in a debate specifically directed to separation of powers in the House of Lords between the judicial branch and the legislative and executive branches of government, initiated by the noble Lord, Lord Lester, said:The protection of the judiciary from Executive interference is, in my view, a high order duty—perhaps the highest order duty—of any Lord Chancellor".—[Official Report, 17/2/99; col. 734.]But my noble and learned friend the Lord Chancellor does not seem fully to understand the nature of the so-called doctrine because on the second day of the Debate on the Address the noble Lord, Lord Kingsland, raised the very issue of the separation of powers, and back came this very odd observation from my noble and learned friend the Lord Chancellor. He said:So far as rights of audience go, I can reassure the noble Lord, Lord Kingsland, that there will he no violation of the separation of powers because, in the unlikely event that I, as Lord 671 Chancellor, having consulted with the judges and with the professions, have to exercise a fallback power to impose rules upon the profession … I would not do so without the support of an affirmative resolution of both Houses of Parliament".He continued:When that is said, as I say quite unequivocally, I can see no ground for argument that there is any violation of the separation of powers".—[Official Report, 25/11/98; col. 127.]However, that misunderstands the doctrine. It presupposes that the Lord Chancellor has removed, as he desires, the existing powers and, having done so, he then makes a decision which the judges do not like. In order to get further authority for his executive act he goes to Parliament for an affirmative resolution, which we all know he is bound to get.
Finally, what is even more startling is that the Lord Chancellor has given no reason why the designated judges should be relegated to a purely consultative role, nor has he paid the judges the courtesy of referring to their responses, which were indeed very hostile—that is the judges of the High Court in a separate memorandum, the Court of Appeal judges in a separate memorandum and the Council of the Inns of Court—to his White Paper. I support the amendment.
§ Lord Goodhart
My Lords, I believe that there is a serious constitutional issue here. It is of the utmost importance that neither the courts nor the legal profession should be under the control of the executive. That is because there is a potential conflict of interest between the judiciary and the executive. The courts may have to rule on the validity of executive action. That is likely to become increasingly the case with the enactment of the Human Rights Act. In principle it is wrong that the executive should have power to decide who can or cannot appear in court or to alter the rules that govern the conduct of advocates or litigators when they do so.
The regulation of the legal profession by the executive is open to much more objection than, for example, the regulation of the health profession which is included in the Health Bill now before your Lordships' House. Historically, it has been for the judiciary as a collective body to regulate its own proceedings and to decide who can appear as advocates. That was recognised by a decision of the Court of Appeal, a panel presided over by the noble and learned Lord, Lord Donaldson of Lymington, in the case of Abse v. Smith in 1986.
The noble and learned Lord the Lord Chancellor pointed out in Committee that Parliament has several times conferred statutory rights of audience in certain specific courts and tribunals. Indeed, it did so in 1990 in the Courts and Legal Services Act. But until the 1990 Act it is my understanding that it had always done so by primary legislation. Giving powers to the Lord Chancellor in 1990 to designate new authorised bodies and to revoke their designation by secondary legislation, by Order in Council, was very controversial. As I understand it, a compromise was reached on the basis of the role of the designated judges. That created what I described previously as a double-key procedure. The 672 secondary legislation route could be used only if both the Lord Chancellor and the designated judges agreed that it was appropriate. Otherwise, primary legislation would be required. It was of course recognised later that what had been created was not a double key but a quintuple key because each of the four designated judges had to agree to any proposed change. It is now generally accepted that that was too strict.
However, I believe that it is still appropriate to have a double-key procedure before changes to the rights of professional bodies or of their rules can be made by secondary legislation. Secondary legislation does not give the same degree of parliamentary control as primary legislation even with the affirmative procedure. Secondary legislation cannot be amended or delayed and, under the conventions of your Lordships' House, it is not rejected. It is dealt with always in a short debate.
I suggest that if three out of the four designated judges were to object to any future proposals of the Lord Chancellor, those proposals should require primary legislation if they are to take effect. It is a serious issue and I would ask the noble and learned Lord the Lord Chancellor to reconsider.
§ Lord Donaldson of Lymington
My Lords, I was of course one of the holders of the office which became a designated judge judicial office under the 1990 Act. I had always been brought up to believe that it was the duty of the judiciary to maintain the separation of powers for good constitutional reasons. In 1990 the noble and learned Lord the Lord Chancellor, Lord Mackay of Clashfern, proposed to do precisely what the present Lord Chancellor is proposing to do; namely, to transfer the separation from being a separation between the Lord Chancellor and the judiciary to being one between the Lord Chancellor and his Cabinet colleagues. That is a major change. It is a major narrowing—possibly an abolition—of the separation of powers.
I expressed my grave disquiet in the debates on the Act. It may be—it has been said, certainly—that the then Lord Chief Justice used language of undue vividness. If I did the same, I apologise. But the point remains that neither I nor any of my judicial colleagues had the least qualms about what my noble and learned friend Lord Mackay might do with those powers. We can say the same for the present Lord Chancellor. But this constitutional principle does not exist to deal with specific Lord Chancellors. It is a constitutional safeguard against future Lord Chancellors who may for one reason or another wish to subordinate the administration of justice to the needs of the Executive.
I have pointed out before in this House and I mention it en passant that, while it is the tradition that the Lord Chancellor is legally qualified, and highly qualified, and while some Lord Chancellors such as the noble and learned Lord, Lord Mackay, served in a judicial capacity, there is no statutory qualification for a Lord Chancellor. He need have no knowledge of the traditions that govern the administration of justice; he may have no sympathy with them. Indeed, he may be strongly sympathetic to the views of Cabinet colleagues, in particular those of the Prime Minister of the time. 673 Again, I am not talking about the present Prime Minister; I am talking about long-term constitutional safeguards which would be wholly eroded were this amendment to be rejected.
I could perhaps express some slight disquiet at the suggestion that the support of two designated judges for the Lord Chancellor's proposal would be sufficient. We are in the curious position that two of the present designated judges evidently do not share the disquiet of the rest of the judiciary. But just as one cannot tailor a constitutional provision to faith in the present Lord Chancellor or the previous one, nor can we tailor it to the views, misguided though some of us may think they are, of two of the present designated judges. I very much hope that this amendment will be supported by a majority of this House, though in view of the hour I am not sure that I expect that.
§ 7 p.m.
§ Lord Hacking
My Lords, having participated throughout the passage of the Courts and Legal Services Act and throughout the passage of this Bill, I thought that I was past the point of being amazed. But I have been totally amazed by the arguments presented by the noble Lord, Lord Kingsland, about draconian powers and political preference. I have even been amazed that the noble and learned Lords, Lord Ackner and Lord Donaldson, are still clinging to the argument about breaches of the doctrine of separation of powers and, in the case of the noble and learned Lord, Lord Ackner, adding that the noble and learned Lord the Lord Chancellor does not even understand the doctrine at all.
It should he stated firmly that it is Parliament which makes the laws relating to restrictive practices, monopolies and competition law; and Parliament makes the laws on rights of audience, which go right into restrictive practices, monopolies and competition law. Those noble Lords who were present when my noble and learned friend Lord Falconer replied at Second Reading will recall that he traced the statutory history of Parliament's role in the rights of audience. I have not had time to research that statutory history, but I know that my own profession has always been governed by Parliament under a succession of solicitor Acts.
§ Lord Donaldson of Lymington
My Lords, will the noble Lord concede that that control has been by primary legislation?
§ Lord Hacking
My Lords, perhaps I may deal first with the mainstream of my argument and then I will deal with the noble and learned Lord's point.
Unfortunately, there was great opposition from the judiciary and others during the passage of the Courts and Legal Services Act 1990. In the result, the noble and learned Lord agreed to the provision under which there was effectively a right of veto by any of the designated judges on the issue of rights of audience. During the passage of that Bill, I tried to give all the support that I could through the then Lord Chancellor, the noble and learned Lord. Lord Mackay of Clashfern.
674 We have seen that opposition arise again in this and other debates during the passage of this Bill. We have unfortunately lost, at least for the moment, Clause 32 from the Bill, in which the noble and learned Lord, with the support of my party, proposed that employed lawyers should have rights of audience. I have therefore tried to support the noble and learned Lord, the Lord Chancellor. Perhaps I may confess and take your Lordships into my confidence: it has been necessary for me to cross over the Floor of the House out of my devotion and loyalty to Lord Chancellors and the office that they hold. As I intimated just now, the result of the pressure that was put on the noble and learned Lord, Lord Mackay of Clashfern, was the inclusion in Schedule 4 of the power that the Lord Chancellor or any designated judge had the right to refuse an application.
Under the provisions set out in this Bill, the noble and learned Lord rightly listens to the advice of the consultative panel and of the Director-General of Fair Trading, and to the advice given by each—I emphasise that—of the designated judges, and then makes his decision. Over the issue of primary or secondary legislation, the matter comes before your Lordships under the affirmative procedure. There is full power for your Lordships. In the unlikely event that the noble and learned Lord, taking a different position to the advice of any of the designated judges, seeks to move an affirmative order in this House, I have no doubt that the views of this House will be freely and clearly made known to him.
As I said at the beginning of my remarks, the central point is that it is for Parliament to decide the rights of audience. That is a tougher application of the separation of powers. In no way is it, as described by noble and learned Lords, a breach of that doctrine. I say with as much force as I can that I hope the noble and learned Lord will not back down and will hold his ground completely on this issue.
§ The Lord Chancellor
My Lords, no one disputes that the judges will play an important role in rights of audience issues. The question is whether they should be advisers, decision-makers or part decision-makers.
At present, all decisions under Schedule 4 to the 1990 Act are subject to the individual veto of each designated judge. These amendments would not preserve that position, which I think no one now defends. Instead, they would give the designated judges a power of veto by a majority.
I do not believe that that is appropriate. The decisions of the Lord Chancellor under Parts I, III and IV, are already subject to approval by both Houses of Parliament. It seems to me inappropriate to provide that in these circumstances the designated judges, or a majority of them, should be able to override the decision of the Lord Chancellor, who is responsible to Parliament. It is Parliament which will take the final decision.
As I have previously made clear, I do not accept the argument that decisions about which categories of people should be able to appear in the cowls are properly for the judiciary as distinct from Parliament.
675 This issue has nothing whatever to do with the separation of powers between executive, legislature and judiciary. The issue is not about the independence of the judiciary but about whether a power is properly for the judges or Parliament. The issue is whether judges, not Parliament, should determine rights of audience. I say as clearly as I may that this is a matter for Parliament. Listening to the noble and learned Lord, Lord Ackner, I began to wonder whether the true thrust of his argument was that Parliament was to be sidelined just because the Government in power have a strong popular majority.
Questions about whether, for example, a class such as crown prosecutors should be able to lead prosecutions in the Crown Court are questions of policy for the Government and ultimately for Parliament to decide in a democracy. I say that Parliament proceeds entirely properly either by primary legislation or by secondary legislation.
We have to look realistically at the history of this controversy and those who have interests to restrict rights of audience. I shall not weary your Lordships with the sorry piece of history which I set out at Second Reading on 14th December 1998 at col. 1110. What it came to was this. The results of six years of painfully slow debate, consultation and advice within ACLEC about what rights of audience employed solicitors should have in the higher courts were in practice negligible. The noble and learned Lord and the designated judges granted the Law Society's application in a very limited form, allowing employed solicitors to appear in substantive proceedings in the higher courts if they succeeded in obtaining the Law Society's higher courts qualifications, but only if led by an advocate in private practice. An employed solicitor could appear as the sole advocate only in preliminary proceedings which did not dispose of the merits of the case.
What source material will this prove for a PhD student whose doctoral theses might be entitled—and if it were published I might even be persuaded to contribute a foreword—"The endurability of restrictive practices in twentieth century Britain"?
Why was it that the designated judges were given vetoes in the 1990 Act? The answer is obvious: the opponents of change thought that this would prove an effective means of preventing any significant liberalisation of rights of audience, whatever the clear purpose of the Act might be. I am sorry to say that, by and large, their hopes were not disappointed. I hope that your Lordships will not repeat the error.
The noble and learned Lords the Lord Chief Justice and the Master of the Rolls made clear at Second Reading that they supported my judgment on this issue. They are the two most senior designated judges who have experience of how the approval system currently works. Your Lordships should weigh opinions and not just count them.
The noble and learned Lord, Lord Bingham, made clear at the last Bar conference, when questioned on the subject, that he did not think it would be an improvement to move to a system in which a majority 676 of the designated judges could exercise a veto. He thought this both because, in practice, the designated judges would not wish to reach a split decision and because he thought there was a danger that at some point the perceived views of the judiciary on these questions might come to influence the likelihood of their being appointed to the most senior posts. His firm view was, and is, that the buck must stop somewhere and that the appropriate place is with the Lord Chancellor as the Minister responsible to Parliament whose decisions will be subject to approval, or not, by Parliament. That is my judgment too.
The provisions in the Bill will still require the Lord Chancellor to take the advice of the designated judges in every case, and I or any Lord Chancellor would give great weight to that advice; but I do not believe that the judges should be able to veto decisions which are ultimately for Parliament. The issue is whether rights of audience should be determined by Parliament, not by judges. The dispute we are having has nothing whatever to do with the separation of powers, which is concerned to protect the independence of the judiciary in its own, proper judicial sphere. I hope that the noble Lord will agree to withdraw the amendment.
§ Lord Kingsland
My Lords, we have debated this matter at great length, from the beginning of the Second Reading until towards the end of the Third Reading of the Bill. We are as far apart as ever. It is because I believe that the independence of the legal profession is inextricably linked with the independence of the judiciary that I wish to test the opinion of the House.
§ 7.15 p.m.
§ On Question, Whether the said amendment (No. 32) shall be agreed to?
§ Their Lordships divided: Contents, 89; Not-Contents, 109.678
|Division No. 3|
|Ackner, L. [Teller.]||Goodhart, L.|
|Aldington, L.||Gray, L.|
|Alexander of Tunis, E.||Gray of Contin, L.|
|Allenby of Megiddo, V.||Greenway, L.|
|Anelay of St. Johns, B.||Grey, E.|
|Bethell, L.||Hampton, L.|
|Blatch, B.||Hamwee, B.|
|Bridgeman, V.||Hanningfield, L.|
|Brightman, L.||Hayhoe, L.|
|Brougham and Vaux, L.||Henley, L. [Teller.]|
|Byford, B.||HolmPatrick, L.|
|Carnegy of Lour, B.||Howe, E.|
|Camock, L||Inglewood, L.|
|Chesham, L.||Jopling, L.|
|Colville of Culross, V.||Kingsland, L.|
|Colwyn, L.||Lloyd of Berwick, L.|
|Cross, V.||Lucas of Chilworth, L.|
|Dean of Harptree, L.||Ludford, B.|
|Dixon-Smith, L.||Luke, L.|
|Donaldson of Lymington, L.||Lyell, L.|
|Dundee, E.||Mackay of Ardbrecknish, L|
|Fookes, B.||Mackie of Benshie, L.|
|Gisborough, L.||Mancroft, L.|
|Glenarthur, L.||Masham of Ilton, B.|
|Monson, L.||Selkirk of Douglas, L.|
|Montgomery of Alamein, V.||Shrewsbury, E.|
|Napier and Ettrick, L.||Simon of Glaisdale, L.|
|Newall, L.||Skelmersdale, L.|
|Newby, L.||Stair, E.|
|Newton of Braintree, L.||Stewartby, L.|
|Northesk, E.||Stockton, E.|
|Norton of Louth, L.||Stodart of Leaston, L.|
|Nunburnholme, L||Strathclyde, L.|
|OxSuird, V.||Taylor of Warwick, L.|
|Park of Monmouth. B.||Teviot, L.|
|Perry of Walton, L.||Thomas of Gresford, L.|
|Phillips of Sudbury. L.||Thurso, V.|
|Platt of Writtle, B.||Tope, L.|
|Poole, L.||Tordoff, L.|
|Renton, L.||Vivian, L.|
|Rodgers of Quarry Bank, L.||Wallace of Saltaire, L.|
|Rowallan, L.||Weatherill, L.|
|Russell, E.||Wigoder, L.|
|Seccombe, B.||Wynford, L.|
|Acton, L.||Hughes, L.|
|Ahmed, L.||Hughes of Woodside, L.|
|Amos, B.||Hunt of Kings Heath, L.|
|Archer of Sandwell, L.||Irvine of Lairg, L. [Lord|
|Barnet, L.||Islwyn, L.|
|Berkeley, L.||Janner of Braunstone, L.|
|Blackstone, B.||Jay of Paddington, B. [Lord Privy|
|Bragg, L.||Jenkins of Putney, L.|
|Brooke of Alvenhorpe, L.||Judd, L.|
|Brookman, L.||Kennedy of The Straws, B.|
|Brooks of Tremorfa, L.||Kennet, L.|
|Burlison, L.||Lockwood, B.|
|Carmichael of Kelvingrove, L.||Lofthouse of Pontefract, L.|
|Carter, L. [Teller.]||Lovell-Davis, L.|
|Chandos, V.||McIntosh of Haringey, L.|
|Clarke of Hampstead, L.||Mackenzie of Framwellgate, L.|
|Clinton-Davis, L.||Mallalieu, B.|
|Crawley, B.||Merlyn-Rees, L.|
|David, B.||Milner of Leeds, L.|
|Davies of Oldham, L.||Monkswell, L.|
|Dean of Thomton-le-Fylde, B.||Montague of Oxford, L.|
|Desai, L.||Morris of Castle Morris, L.|
|Dixon. L.||Morris of Manchester, L.|
|Donoughue, L.||Nicol, B.|
|Domiand of Easington, L.||Orme, L.|
|Dubs, L.||Peston, L.|
|Eatwell, L.||Pitkeathley, B.|
|Evans of Parkside, L.||Ponsonby of Shulbrede, L.|
|Ewing of Kirkford, L.||Prys-Davies, L.|
|Falconer of Thornton, L.||Ramsay of Cartvale, B.|
|Farrington of Ribbleton, B.||Randall of St. Budeaux, L.|
|Gladwin of Clee, L.||Rea, L.|
|Glenamara, L.||Renwick of Clifton, L.|
|Gordon of Strathblane, L.||Richard, L.|
|Goudie, B.||Sainsbury of Turville, L.|
|Graham of Edmonton, L.||Sawyer, L.|
|Grantchester, L.||Sefton of Garston, L.|
|Grenfell, L.||Shepherd, L.|
|Hacking, L.||Shore of Stepney, L.|
|Hanworth, V.||Simon, V.|
|Hardie, L.||Simon of Highbury, L.|
|Hardy of Wath, L.||Smith of Gilmorehill, B.|
|Harris of Haringey, L.||Stoddart of Swindon, L.|
|Haskel, L.||Stone of Blackheath, L.|
|Hayman, B.||Strabolgi, L.|
|Hilton of Eggardon, B.||Taylor of Blackburn, L.|
|Hollis of Heigham, B.||Taylor of Gryfe, L.|
|Howie of Troon, L.||Thomton, B.|
|Hoyle, L.||Tomlinson, L.|
|Turner of Camden, B.||Wedderhum of Charlton, L.|
|Varley, L.||Whiny, L.|
|Warner, L.||Williams of Elvel, L.|
|Watson of Invergowrie, L.||Winston, L.|
§ Resolved in the negative, and amendment disagreed to accordingly.
§ 7.23 p.m.
§ [Amendments Nos. 33 to 44 not moved.]
§ Schedule 7 [Commission areas and petty sessions areas: amendments]:
§ The Lord Chancellor moved Amendment No. 45:
§ Page 79, line 9. at end insert—
§ The noble and learned Lord said: My Lords, I beg to move Amendment No. 45 and, at the same time, to speak to Amendments Nos. 46 to 51, Nos. 57 to 63 and Nos. 64 to 66. These amendments to Schedules 7 and 11 are consequential on the establishment of single definitions for commission areas and petty session areas under the Justices of the Peace Act 1997, as amended by the Access to Justice Bill. The amendments are minor and technical.
§ On Question, amendment agreed to.
§ The Lord Chancellor moved Amendments Nos. 46 to 51:
§ Page 79, line 21. at end insert—
§ . In section 153(3) of the Municipal Corporations Act 1882 (warrant of two justices for the county requiring payment to county treasurer), for "for the county" substitute "for a commission area consisting of or including the whole or part of the county".679
§ . In section 28(2) of the Local Government Act 1888 (power of county council to delegate to justices of the county functions relating to contagious diseases of animals), for "county sitting in petty sessions" substitute "peace for a commission area consisting of or including the whole or part of the county".").
§ Page 80, line 8, at end insert—
§ .—(1) Paragraph 4 of Part II of Schedule 2 to the Reserve and Auxiliary Forces (Protection of Civil Interests) Act 1951 (allocation of functions to make up civil remuneration of justices' clerks) is amended as follows.
§ (2) In the first column—
- (a) for "Clerk to county justices" substitute "Justices' clerk", and
- (b) for "said Act" substitute "Justices of the Peace Act 1997".
§ (3) For the entry in the third column substitute—
§ "The paying authority is the authority which is the paying authority in relation to the magistrates' courts committee for the purposes of section 55 of the Justices of the Peace Act 1997 (and where there are two or more such authorities, the proportions in which they contribute to give effect to any determination shall be such as they may agree or, in default of agreement, as may be determined by the Lord Chancellor).
§ The justices for whom the clerk acts are the authority entitled to appeal against a determination."
- (a) for "county", in the first place, substitute "commission area", and
- (b) for "county", in the second and third places, substitute "area".").
§ Page 80, line 8, at end insert—
§ . In section 21(1) of the Maintenance Orders Act 1958 (interpretation), in the definition of "magistrates' court" and "petty sessions area", for the words from "and "petty sessions area"" to "court" substitute "has the meaning assigned to it by the Magistrates' Courts Act 1980 and".").
§ Page 80, line 14, at end insert—
§ (". In section 85(1) (search warrants for parties organised for gain), for "county or borough" substitute "commission area".
§ . In section 187(1) (search warrants), for "county or borough" substitute "commission area".
§ . In section 188(1) (closing of licensed premises in case of riot or tumult), for "county or borough" (in both places) substitute "commission area".
§ .—(1) Section 193 (disqualification of justices) is amended as follows.
- (2) In subsection (1) (disqualifying trades)—
- (a) for "any county" substitute "any commission area", and
- (b) for "county or borough" substitute "area".
- (3) In subsection (2) (disqualifying shareholdings)—
- (a) for "any county" substitute "any commission area", and
- (b) for "that county" substitute "that area".").
§ Page 81, line 9, at end insert—
§ . In section 82(1) of the Public Passenger Vehicles Act 1981 (interpretation), in the definition of "magistrates' court" and "petty sessions area", for "and "petty sessions area" have the same meanings" substitute "has the same meaning".680
§ . In section 142(1) of the Road Traffic Regulation Act 1984 (interpretation), in the definition of "magistrates' court" and "petty sessions area", for "and "petty sessions area" have the same meanings" substitute "has the same meaning".").
§ Page 83, leave out lines 1 to 3.
§ The Lord Chancellor
My Lords, I have already spoken to these amendments and I beg to move them en bloc.
§ On Question, amendments agreed to.
§ The Lord Chancellor moved Amendment No. 52:
§ After Schedule 8, insert the following new schedule—
§ ENFORCEMENT OF COMMUNITY ORDERS MADE BY CROWN COURT
§ 2. In paragraph 2(2) (issue by justice of the peace of summons or warrant to direct offender to appear or be brought, in the case of a drug treatment or testing order, before the court responsible for the order and, in the case of any other relevant order, before a magistrates' court for the petty sessions area concerned), for paragraphs (a) and (b) substitute—
- "(a) in the case of a drug treatment and testing order, before the court responsible for the order;
- (b) in the case of any other relevant order which was made by the Crown Court and included a direction that any failure to comply with any of the requirements of the order be dealt with by the Crown Court, before the Crown Court; and
- (c) in the case of any other relevant order, before a magistrates' court acting for the petty sessions area concerned."
§ 3. In paragraph 3(1) (powers of magistrates' court), for "the magistrates' court" substitute "a magistrates' court".
§ 4. In paragraph 6(5) (community service orders)—
- (a) in paragraph (a), for "7(2)(a)(ii)" substitute "7(2)(b)", and
- (b) in paragraph (b), for "reference in paragraph 7(1)(b)" substitute "references in paragraphs 7(1)(b) and 8(1)(a)" and for "a reference" substitute "references".
§ 5.—(1) Paragraph 7 (revocation of order by magistrates' court) is amended as follows.
§ (2) In sub-paragraph (1)—
- (a) after "a relevant order" insert "made by a magistrates' court", and
- (b) for "for which a magistrates' court is responsible, to that court" substitute ", to the magistrates' court responsible for the order".
§ (3) For sub-paragraph (2) substitute—
§ "(2) The court may—
- (a) revoke the order; or
- (b) revoke the order and deal with the offender, for the offence in respect of which the order was made, in any manner in which it could deal with him if he had just been convicted by the court of the offence."
§ (4) In sub-paragraph (3), for "(2)(a)(i)" substitute "(2)(a)".681
§ (5) In sub-paragraphs (4) and (5), for "(2)(a)(ii)" substitute "(2)(b)".
§ (6) Omit sub-paragraph (6).
§ 6. For paragraph 8(1) and (1A) (circumstances in which Crown Court may revoke an order) substitute—
§ "8.—(1) This paragraph applies where—
- (a) a relevant order made by the Crown Court is in force in respect of an offender and the offender or the responsible officer applies to the Crown Court for the order to be revoked or for the offender to be dealt with in some other manner for the offence in respect of which the order was made; or
- (b) an offender in respect of whom a relevant order is in force is convicted of an offence before the Crown Court or, having been committed by a magistrates' court to the Crown Court for sentence, is brought or appears before the Crown Court."
§ 7.—(1) Paragraph 8A (replacement of probation order with conditional discharge) is amended as follows.
§ (2) In sub-paragraph (1), for "it appears to a magistrates' court acting for the petty sessions area concerned" substitute "to a magistrates' court acting for the petty sessions area concemed (where the order was made by a magistrates' court) or the Crown Court (where the order was made by the Crown Court) it appears to the court".
§ (3) In sub-paragraph (2), after "paragraph 7" insert "or 8".
§ (4) In sub-paragraph (3)—
- (a) omit "and the probation order was made by a magistrates' court", and
- (b) for "the magistrates' court" substitute "the court".
§ (5) Omit sub-paragraphs (4) and (5).
§ (6) In sub-paragraph (6)—
- (a) for "sub-paragraphs (3) and (5)" substitute "sub-paragraph (3)", and
- (b) in the words treated as substituted in section 1A(1) of the Powers of Criminal Courts Act 1973, omit "or (5)".
§ 8. In paragraph 11A (application of paragraph 6A for purposes of paragraphs 6 and 7), for "7(2)(a)(ii)" substitute "7(2)(b)".
- (a) for "7(2)(a)(ii)" substitute "7(2)(b)",
- (b) for "reference in paragraph 7(1)(b)" substitute "references in paragraphs 7(1)(b) and 8(1)(a)", and
- (c) for "a reference to the" substitute "references to the".
§ (2) The provisions referred to in sub-paragraph (1) are—
- (a) section 168(2) of the Children and Young Persons Act 1969,
- (b) section 35(5) and (8) of the Crime (Sentences) Act 1997, and
- (c) paragraph 5(4) of Schedule 5 to the Crime and Disorder Act 1998.").
§ On Question, amendment agreed to.
§ Schedule 10 [Transitional provisions and savings]:
§ The Lord Chancellor moved Amendment No. 53:
§ Page 108, line 2, after ("stipendiary") insert ("magistrate").
§ The noble and learned Lord said: My Lords, in moving Amendment No. 53 I should like to speak at the same time to Amendment No. 54. These are technical amendments. It has always been the intention of the Government that until the creation of the Greater London magistrates' courts authority existing arrangements for London should be preserved. There are transitional provisions in the Bill which give the senior district judge (chief magistrate) and other district judges 682 (magistrates' courts) the right to representation on the Inner London Magistrates' Courts Committee pending the creation of the Greater London magistrates' courts authority. Additional provisions are needed as a result of the Government's proposal to commence changes to the stipendiary Bench by order. These amendments preserve the rights of representation on the Inner London Magistrates' Courts Committee by reference to the current judicial titles. I beg to move.
§ On Question, amendment agreed to.
§ The Lord Chancellor moved Amendment No. 54:
§ Page 108, line 4, at end insert—
§ ("(6) This paragraph has effect subject to paragraph 28A.
§ 28A.—(1) If section 55 of this Act has not come into force at the end of the period of two months beginning with the day on which this Act is passed, paragraph 28 shall apply as follow's until that section comes into force.
§ (2) The subsection (3) treated as substituted by sub-paragraph (2)(c) of that paragraph shall have effect as if—
- (a) for "Senior District Judge (Chief Magistrate)" there were substituted "chief metropolitan stipendiary magistrate", and
- (b) for "District Judges (Magistrates' Courts)" (in both places) there were substituted "metropolitan stipendiary magistrates".
§ (3) Sub-paragraph (5) of that paragraph shall have effect as if paragraph (a) read—
§ "(a) after the words "chief metropolitan stipendiary magistrate" there were inserted "(if he is a member)", and".").
§ On Question, amendment agreed to.
§ Schedule 11 [Repeals and revocations]:
§ The Lord Chancellor moved Amendment No. 55.
|Page 111, line 33, at end insert—|
|("1933 c. 12.||The Children and Young Persons Act 1933.||In section 36, the proviso.")|
§ On Question, amendment agreed to.
§ The Lord Chancellor moved Amendments Nos. 56 to 67:
|Page 111, column 3, leave out line 42.|
|Page 112, line 32, at end insert—|
|("31&32 Vict. c. 72.||The Promissory Oaths Act 1868.||In the Second Part of the Schedule, the words"for counties and boroughs".")|
|Page 112, line 44, at end insert—|
|("14&15 Geo.6 c. 65.||The Reserve and Auxiliary Forces (Protection of Civil Interests) Act 1951.||In Part II of Schedule 2, paragraph 5(b) and, in paragraph 6(b), in the third column, the words from "and where" to the end.")|
|Page 112, line 44, at end insert—|
|("7&8 Eliz.2 c. 7.||The Manoeuvres Act 1958.||In section 9, the definition of "petty sessions area.".")|
|Page 112, column 3, leave out line 45 and insert—|
|("In section 2, in subsection (1), the words from ", within" to the end and subsection (2A).")|
|Page 113, line 5, at end insert—|
|("1969 c. 54.||The Children and Young Persons Act 1969.||In section 70(1), in the definition of "pettysessions area", the words "has the same meaning as in the Magistrates' Courts Act 1980, except that" and the word "it".")|
|Page 113, line 22, at end insert—|
|("In Schedule 7, paragraphs 27 and 85.|
|1980 c. 66.||The Highways Act 1980.||In section 329(1), the definition of "petty sessions area".")|
|Page 113, line 28, at end insert—|
|("1988 c. 52.||The Road Traffic Act 1988.||In section 192(1), the definition of "petty sessions area".|
|1988 c. 53.||The Road TrafficOffenders Act 1988.||In section 34C(2), the definition of "petty sessions area".|
|In section 89(1), the definition of "petty sessions area", apart from the word "and" at the end.")|
|Page 113, column 3, leave out line 44 and insert ("2(1), (3) and (7) and 5.").|
|Page 113, line 47, column 3, leave out from ("Schedule,") to end of line 50 and insert ("paragraph 7.").|
|Page 114, line 17, column 3, after (""above,"") insert (", the words "or to county justices" and the words "or justices for the City").|
|Page 116, line 32, at end insert—|
|("(3A) ENFORCEMENT OF COMMUNITY ORDERS|
|Chapter 1991 c. 53.||Short title The Criminal Justice Act 1991.||Extent of repeal In Schedule 2, paragraph 7(6) and, in paragraph 8A—in sub-paragraph (3), the words "and the probation order was made by a magistrates' court", sub-paragraphs (4) and (5), and in sub-paragraph (6), in the words treated as substituted in section 1A(1) of the Powers of Criminal Courts Act 1973, the words "or (5)".|
|1998 c. 37.||The Crime and Disorder Act 1998.||In Schedule 4, paragraphs 3 and 7(1).")|
§ On Question, amendments agreed to.684
§ In the Title:
§ The Lord Chancellor moved Amendment No. 68:
§ Line 7, leave out ("the reporting of").
§ The noble and learned Lord said: My Lords, I beg to move.
§ Lord Simon of Glaisdale
My Lords,The daintiest last, to make the end most sweet".Nevertheless, I wish to ask a question. It relates to the Title. The amendment proposes to leave out "the reporting of'. Line 7 will then read,to make provision about court proceedings".I hope that I have that right. However, so far as I can see, in so far as the Long Title is meant to refer to important provisions, that provision about reporting refers to paragraph 17 of Schedule 10 which has not been affected by any amendment.
I am not sure that we are not engaging in some backsliding. A few years ago we used to have Long Titles which dribbled on sometimes for pages. I am sorry that the noble Earl, Lord Ferrers, is no longer in his place. He presided over a great improvement: he benevolently allowed us to reduce a Long Title of a page and a quarter to 12 lines. I am not sure that it is necessary to refer to the provision about the reporting, but if it is, it is wrong.
I have only just told my noble and learned friend that I should refer to this matter. I shall be content if he says that he would like to consider the matter before the Bill goes to another place.
§ 7.30 p.m.
§ The Lord Chancellor
My Lords, this is a quite remarkable change of stance by the noble and learned Lord, Lord Simon of Glaisdale. Throughout the course of the Bill he has chided me for sanctioning surplusage—excessive statutory language. But now he chides me about the abbreviation of statutory language.
§ Lord Simon of Glaisdale
My Lords, I shall be more than content if my noble and learned friend would remove the whole phrase.
§ The Lord Chancellor
My Lords, but the noble and learned Lord chides me about removing three words from the statute. I shall undertake to take advice on the point and write to him.
§ On Question, amendment agreed to.
§ An amendment (privilege) made.
§ Moved, That the Bill do now pass.—(The Lord Chancellor.)
§ Lord Goodhart
My Lords, this has been an important and seriously controversial Bill. I congratulate the noble and learned Lord the Lord Chancellor on the vigour and forcefulness with which he has piloted the Bill through your Lordships' House. I also wish to thank 685 him for the considerable degree of flexibility he has shown, particularly by accepting the great majority of the proposals of the Delegated Powers and Deregulation Committee in respect of requiring the exercise of his own powers to be made by statutory instrument rather than simply by direction.
I greatly welcome the fact that the noble and learned Lord acceded to the proposal of my noble friend Lord Meston to remove CFAs from matrimonial cases. I also welcome the fact that he has introduced many minor improvements to the Bill. Indeed, I think that the total number of government amendments during Report and Third Reading stages must be well over 150.
However, the Bill seems to me in many ways a leap in the dark. A number of important questions remain to he answered. Will the community legal service receive adequate funds to do its job? Shall we keep a sufficient network of publicly funded legal services provided by firms all over the country? Will CFAs work effectively outside the limited field of road accidents and industrial injuries? I am not optimistic as to the answers to those questions. I hope that time will prove me wrong.
The members of the Liberal Democrat Lawyers Association have a custom of drinking a toast at our annual dinner to the Legal Aid Act. I doubt whether in future we shall drink a toast to the Access to Justice Act. However, now that we are sending the Bill on its way to another place, I wish it well.
§ Lord Kingsland
My Lords, I, too, wish to observe, as did the noble Lord, Lord Goodhart, that the Bill is a remarkable achievement by the noble and learned Lord the Lord Chancellor. Together with the changes in civil procedure which are to be enacted next month, it matches that of Lord Selborne some 100 years ago. I trust that, like Lord Selborne, the noble and learned Lord will one day have a building named after him to commemorate the fact.
I share the view of the noble Lord, Lord Goodhart, that there are some good provisions in the Bill. Some were there from the beginning. Others arrived by virtue of the noble and learned Lord's generosity during the Bill's passage.
The most important theme that has underlain the Bill, and remained intact, is the introduction of what I would call preventive legal advice. Rather like preventive medicine, it is supposed to anticipate people's problems so that they do not have to litigate in the first place. For the first time in our legal history, I think, we have a real chance of giving people who need it early and accessible advice that will prevent their having to go to court.
On the other hand, I remain disturbed by a number of aspects of the Bill; in particular, the noble and learned Lord's unwillingness to accept that lawyers are professionals rather than entrepreneurs. Indeed, his view of conditional fee arrangements suggests that sometimes they are highly speculative entrepreneurs. I would have hoped for more guarantees than he has been able to give that if the conditional fee system does not work the traditional protections of the legal aid system will quickly be reintroduced—a system that has in so many respects served this country well.
686 I have also been somewhat disturbed by some of the language used on occasions by the noble and learned Lord about the legal profession. The expression "feather bedded" has been used more than once. The expressions "inward looking" and "backward looking" have been used; indeed, sometimes the legal profession has been backward and inward looking at the same time.
But the noble and learned Lord introduced a novel thought today in response. I think for the fourth time of making, to a speech by the noble Lord, Lord Phillips. He used the term "trade unionist." When the noble and learned Lord first used that word I thought, "Good heavens above, the noble and learned Lord has had a great change of heart. Lawyers are no longer feather bedded, inward looking, backward looking or protected." I then realised that it was just another way for the noble and learned Lord to say exactly the same thing. The truth of the matter is that the legal profession is no better or worse than any other. For the most part, its members are deeply committed to the ethics of their profession and their primary intention is to serve the public. I am sure that that will continue to be the case in the dramatically changed conditions which the Access to Justice Bill is bound to introduce.
My Lords, I shall be brief. We owe a great deal of gratitude to the noble and learned Lord the Lord Chancellor for the explanations that he has given. We congratulate him on the open-mindedness with which he accepted amendments moved by the noble and learned Lord, Lord Lloyd of Berwick, at the beginning of the Committee and Report stages. They were fundamental amendments and the noble and learned Lord's acceptance is most welcome.
The Bill contains many amendments to previous legislation. I should not like to estimate what proportion of its many pages do so, but it is high. Therefore, if the Bill is to be acceptable to those who will be responsible for administering it, there should be consolidation of this branch of the law as soon as may be.
Finally, I have been a proud member of the Bar since 1933 and still maintain that the integrity, independence and efficiency of the Bar of England is something of which we can all be proud. I trust and believe that in the work the noble and learned Lord still has to do on the Bill he will maintain the Bar's independence.
§ Lord Hacking
My Lords, when my noble and learned friend introduced the Bill at Second Reading, I and a number of colleagues on these Benches gave it a warm welcome. Now that it passes from this House to another place, I and colleagues on these Benches agree that it is a better Bill and wish it an even better passage through another place.
The handling of the Bill through this House by the noble and learned Lords, the Lord Chancellor and Lord Falconer, has been significant. Like other Bills from the Government, it has had the advantage of excellently prepared Explanatory Notes extending to more than 65 pages. At earlier stages, they were useful reference points. We thank the noble and learned Lord and his 687 officials for all the time and trouble they took in preparing not only the Bill but the most helpful Explanatory Notes.
The second matter for congratulations is the flexibility which the noble and learned Lord has shown throughout the Bill in listening to amendments and accepting their principle. I am unable to count the number he accepted, but I venture to calculate that well over two dozen have been incorporated into the Bill with the assistance of the noble and learned Lord. Indeed, to put it the other way round, the noble and learned Lord, having heard our contributions, went back to the Bill with his officials.
It must be recognised that the flexibility which the noble and learned Lord has shown must have placed a great deal of work, if not strain, on some of his officials. We should be grateful for all the work carried out behind the scenes in drafting the amendments once the principles had been accepted by the noble and learned Lord.
Perhaps I may remind the House what the noble and learned Lord said in his first speech in Committee. In conclusion, he said:In almost 12 years in the House, I have spent too long … listening from the Benches opposite to government spokesmen who were obdurately insistent of 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".—[Official Report, 19/1/99; col. 487.]The noble and learned Lord demonstrated that throughout the Committee stage, throughout the Report stage and throughout the final stage today in your Lordships' House.
In the light of the great flexibility that the noble and learned Lord has shown, perhaps I may draw his attention to the fact that I have tabled a dozen amendments to the next Bill he is to take through your Lordships' House; that is, the Contracts (Right of Third Parties) Bill. I hope that he will show the same flexibility and friendship to my amendments to that Bill as he has shown during the passage of this Bill. I am very grateful to the noble and learned Lord.
§ 7.45 p.m.
§ Lord Ackner
My Lords, there are many things which I do badly and one of them is to dissemble. I am bound to say in clear terms that I believe the Bill can do enormous harm to the profession of the Bar and the solicitors. We have already drawn attention to the constitutional aspects in the Bill. I was horrified to hear my noble and learned friend seek to support what he did as not being a breach of the separation of powers. If he is right, all the judges who submitted a memorandum on the Green Paper were totally wrong because they stated in terms, "These are serious violations of the doctrine of separation of powers".
Enough of that; we have dealt with it in some detail. There have been occasions when, anxious to enjoy the genial smile that my noble and learned friend often 688 gives, I have reminded him of some of the observations he made in Opposition. He has repented of all of them and I expect that soon a Pugin confessional box will be found somewhere in the Lord Chancellor's residence.
I am worried about the extent to which the statutory objective set out in Section 17 of the Courts and Legal Services Act 1990, which is still in force, is not to be complied with. It provides for:the development of legal services in England and Wales (and in particular the development of advocacy …) by making provision for new or better ways of providing such services and a wider choice of persons providing them,and I stress the next words,while maintaining the proper and efficient administration of justice".In some detail, we went through the very small number—one tenth—of solicitors in private practice who have the entitlement to appear in the higher courts. It was clearly pointed out that there was a considerable inability in those who tried to get through what were quite moderate examinations to qualify themselves for that entitlement. That is to change and it can change only by the Law Society making the right to exercise rights of advocacy very much easier.
§ Lord Hacking
My Lords, this matter has been raised before. I can say categorically, because I am close to the decision-making of the Law Society on this issue, that that is not the case. The Law Society has every intention of upholding all the standards of its professional members, including advocacy standards. An example of the testing of the Law Society in the application of those principles is that a moderately small number of solicitors achieved the higher advocacy certificates. That is because the Law Society deems that to be an important certificate and that only those worthy of it should get it.
§ Lord Ackner
My Lords, we shall wait and see. I do not see how more solicitors will be encouraged to qualify to undertake advocacy in the higher courts while the tests produce a very high failure rate and indicate further that, generally speaking, solicitors are not enthusiastic about exercising those rights because they find that there is not sufficient work, it does not pay well enough or it is cheaper to go to counsel.
However, the point I am seeking to make is that if, contrary to what the noble Lord, Lord Hacking, anticipates, the demands upon the solicitor branch of the profession are not substantially reduced in order to enable them to have rights of audience in the higher courts, then the block contracts which are there, in the majority of cases, to be accepted by solicitors doing the work from beginning to end will not be able to be carried out.
The other point is the considerable faith which my noble and learned friend the Lord Chancellor has in conditional fees. I do not see how they can be accommodated by the Bar. The Bar will be in receipt of requests to take on cases on the basis of no win, no fee, but they will be the difficult cases. The easier cases will have been dealt with by solicitors and they will come to the Bar to speculate on the outcome of the difficult cases. The Bar is not structured to do that. Members of 689 the Bar will either be unable to take on those cases or will be unwilling to do so or some species of partnership will be devised which will be to the disadvantage of the public because with partnerships, the choice of barristers will be substantially limited by the obvious rule that one cannot have partners on both sides.
Therefore, I am extremely concerned about the extent to which this Bill will encroach upon both the standards and efficiency of the profession. But in making those gloomy observations, I join in the congratulations offered to the noble and learned Lord the Lord Chancellor for the immense amount of hard work that he has put in to taking this proposed legislation through your Lordships' House. I thank him for the genial good nature and humour which he has shown, almost throughout all of it.
§ The Lord Chancellor
My Lords, this Bill has been before the House since the beginning of December. It has made excellent progress. We have completed every stage in the time allotted. I thank all noble Lords who have contributed to our deliberations for the good spirit in which the cuts and thrusts of debates have been delivered and accepted.
The fundamental purpose of the Bill is to increase access to justice. I am determined to build structures which will provide services that go much further towards meeting people's needs than legal services do at present. That is the purpose of the community legal service. That is the rationale behind contracting with quality-assured suppliers; behind conditional fees; behind extensions to rights of audience; and behind our reforms of the magistrates' courts system.
Anyone listening to debates in this House might have gained the impression that legal services, or at least those provided by the Bar, had attained a state of perfection, and that no change could possibly be for the better in the best of all possible legal worlds. In fact, we all know that many legal services are poor; many are disproportionately expensive; and not a few are both.
While our legal profession includes some of the finest minds in the country, the system often fails the ordinary person, whose pocket is small and whose case may be mundane.
I have had the feeling at times during our debates that party politics had been suspended, and that I was addressing a meeting of the militant tendency of the Bar (which a few solicitors had been granted special dispensation to attend). For that reason, I particularly welcomed the support of the noble and learned Lord, Lord Mackay of Clashfern, in the Division on 28th January on Clause 31 relating to employed lawyers.
I believe that the House has accepted most of the important principles in this Bill. In particular, the House has accepted the principle of a community legal service. The House has accepted that to take on legal aid cases lawyers must meet prescribed quality standards. The House has not resiled from the principle of a greater use of conditional fees, although doubts have been expressed, as they always are about the new. The House has accepted that a more streamlined system than the 690 current ACLEC arrangements should be put in place, and your Lordships accepted my proposals for reinforcing the ethical duties of lawyers.
There was, I believe, no real dissent from the principle that appellate procedures in civil matters should be reformed to ensure that appeals are heard at the right level, and are dealt with in a way which is proportionate to their weight and complexity; and the proposals for reforming the administration of the magistrates' courts and unifying the stipendiary Bench have been accepted.
I am grateful to my noble friend Lord Hacking for quoting what I said by way of undertaking at the outset of the Committee stage. I am grateful to those of your Lordships who have said that I proved as good as my word and that, as a result, we have a Bill that has been substantially improved. I do not believe that a Minister proves his virility by saying "no" to better arguments. The reverse is true.
First, I thank the noble and learned Lord, Lord Simon of Glaisdale, for his tireless efforts, made with that mix of humour and bite which we associate with him. to improve the drafting of the Bill. I was pleased to be able to accept several—not as many as he would have liked—amendments he proposed, and the drafting is consequently tighter and more succinct.
I have accepted, or adopted the substance of, many other amendments from a number of noble Lords, in particular the noble Lords, Lord Kingsland, Lord Goodhart, Lord Thomas of Gresford and Lord Phillips of Sudbury, my noble and learned friend Lord Archer of Sandwell and my noble friend Lord Clinton-Davis, and the noble Baroness, Lady Wilcox. These amendments serve, in particular, to make explicit what had been implicit in the Bill, or to ensure greater transparency for the decisions and actions that will be taken under it. I was particularly pleased to agree to the amendments of the noble Baroness, Lady Wilcox, which ensure that consumer affairs will be a criterion for membership of both the legal services commission and the legal services consultative panel. I much appreciated her visual and audible pleasure in having her amendments accepted.
In addition, I made a large number of changes following the report of the Select Committee on Delegated Powers and Deregulation. I was anxious to achieve a better distinction between those substantive matters which should be subject to further procedure in this House and another place, and those matters of an administrative or budgetary nature which require no such procedure. I believe that the House is now broadly content that the parliamentary procedure attaching both to my powers and the legal services commission's funding code are appropriate.
I agreed to withdraw our proposals to make conditional fee agreements available in matrimonial cases which only involved property. While I can still conceive of cases where such agreements might be appropriate and helpful, I concluded that, on balance. it is difficult to identify winners or losers in matrimonial cases and that these agreements are not generally a practical proposition in this area, and that: is the position to which I adhere.
691 I was also pleased to accept the proposals of the noble and learned Lord, Lord Ackner, for an ethical code for employees of the legal services commission providing services as part of the criminal defence service. However, an observer, unused to the ways of this House, might then have been more than puzzled to observe the noble and learned Lord marching through the Lobbies to support an amendment that would ensure there could be no-one to whom his code could apply. As an older hand, I cannot say I was surprised; but in retrospect I am inclined to wonder whether my giving nature had received the response it deserved.
Before today, the debates on the Bill had brought up four issues on which the opinion of the House was sought. The Government won the Division on whether the cost of the criminal defence service was relevant when setting the budget for the community legal service fund. Notwithstanding that, I recognise the genuine concern that the demands of the CDS will draw resources away from the CLS. I spoke about this issue on the amendment to Clause 2 moved today by the noble Lord, Lord Goodhart. I repeat that I am determined to ensure that the CLS is properly funded.
The noble and learned Lord, Lord Lloyd of Berwick, persuaded your Lordships to insert a new Clause 1 in the Bill. This clause purports to set principles or objectives—it is a little confused as to which—for the operation of the community legal service and the criminal defence service.
The amendment was pressed despite the fact that the Government were proposing their own amendments which clearly set out the separate purposes of the community legal service and the criminal defence service. The new clause creates confusion by trying to cover two distinct schemes with a single set of objectives.
Also, as drafted, I regard the clause as expressing unrealistic aspirations. It seems to suggest that the taxpayer should meet any legal costs that a person wants to incur but cannot afford. No test of merits and no limits of financial eligibility are mentioned. There is no recognition of other ways in which people might finance their cases, such as by insurance or conditional fees; and, equally, no recognition that not everyone can have a solicitor's office on the doorstep, any more than everyone can have a hospital or a supermarket on the doorstep—although by and large one does need to visit a hospital, or bring goods home from a supermarket—whereas telephone, fax, e-mail and post can today play a vital part in providing legal help. The reforms in this Bill will enable us to improve access to legal services for people who live in rural areas. But to suggest that those people could and should enjoy the same access as people who live in large cities is pie in the sky.
We will seek to remove these deficiencies in another place. But at the same time we will consider whether it would be helpful to retain a provision enshrining the principle of non-discrimination. Rather oddly, the current clause seeks only to prevent discrimination against the disabled, whose interests are already protected by the Disability Discrimination Act 1995. It 692 does not mention other vulnerable groups who may be subject to discrimination or prejudice, for example ethnic minorities. The noble and learned Lord, Lord Lloyd of Berwick, acknowledged that his amendment might be too narrow in that respect.
Finally, I come to the two Divisions on the issue of rights for employed lawyers. I have left them until last because they are, I suggest, the only points of real substance on which the House was divided. The Government were defeated in Committee on Clause 31 in relation to employed lawyers in the Crown Prosecution Service and more widely; and on Report in relation to employed lawyers in the criminal defence service. The result is that, as the Bill stands, no employed lawyers will enjoy rights of audience in the higher courts, whether they are employed by the Crown Prosecution Service or any other government body or private company. The criminal defence service will not be able to employ lawyers to carry out any legal work, whether the provision of advice or assistance, or representation in the courts.
First, I can assure the House that the Government intend to seek the reinstatement of these provisions in another place. Secondly, let me repeat that we are not proposing to establish a comprehensive public defender system. We are proposing a system in which criminal defence services are provided by a mix of employed lawyers and lawyers in private practice. As I said on Report, this is a modest proposal, which has provoked a quite disproportionate reaction.
It is contended that employed advocates in the Crown Prosecution Service cannot behave ethically if they are prosecuting counsel in the Crown Court. Yet they undertake this role every day in the magistrates' court where 97 per cent. of criminal cases begin and end. There are vast numbers of "either way" offences in the criminal law. If the prosecution is in the magistrates' court then the CPS lawyer can prosecute but not, it is said, if the same case happens to go to the Crown Court. That simply does not wash, and every independent outsider knows that it does not. I simply do not believe that employed advocates will suddenly act unethically if they appear in the Crown Court rather than the magistrates' court. By Clause 37, the Bill reinforces the existing ethical duties of the professions.
I do not believe that employed lawyers should carry the stigma that has been placed on them by some in this House. I believe that arguments which prevailed here will be seen by many outside this House as motivated more by lawyers' self-interest than by high principle.
Your Lordships may also find it helpful if I mention one or two other changes that we hope to make in another place. Following undertakings made in this House, the Government will be bringing forward amendments to clarify the definition of conditional fee agreements, to ensure the legality of privately-managed contingency funds, and to modernise the principles underlying costs between the parties to litigation.
We hope to simplify the structure of Schedule 2 about the scope of the community legal service fund. There will also be additions to Schedule 9 which transfers administrative functions to justices' chief executives, 693 and further detailed provisions about the constitution, structure and powers of the Greater London magistrates' courts authority.
We are giving active consideration to the possibility of legislating to make subscriptions to the Bar Council compulsory. If we conclude that a statutory provision would be in the public interest, we will bring forward an amendment to this Bill in another place.
Also, I confess that I am dismayed that performance at the Office for the Supervision of Solicitors seems to be deteriorating. The effective handling of complaints is important both for those who use legal services and for the long-term health of the legal professions. I am considering whether the Government should take any action and I do not rule out the possibility of legislative change.
The Bill remains in pretty good health. Its health has not declined at all today. It will now go to the other place, from which I am confident that it will emerge in even more robust health.
§ On Question, Bill passed, and sent to the Commons.