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Mr. Vaz: I thank the hon. Member for Surrey Heath (Mr. Hawkins) for his kind comments, although we should now draw a line under all the congratulations from both sides of the House--or, in 100 years, people reading today's Hansard might think that there was something of a love-in going on. His congratulations, for which I thank him, must be the end of it. I thank him also for moving amendment No. 98 in the way that he has--although I had to pinch myself, as I never thought that I would see the day when a Conservative Front-Bench spokesman quoted Shelter in defence of his case.
As the hon. Member for Surrey Heath said, the amendment would allow conditional fee agreements to be used in bringing criminal prosecutions under section 82 of the Environmental Protection Act 1990.
A similar amendment was tabled in Committee. As my predecessor said then, section 82 of the Environmental Protection Act 1990 provides for summary criminal proceedings by someone complaining of a statutory nuisance. Proceedings under section 82 are criminal
proceedings. As such, in principle, they would be excluded under the general exception in section 58(10) of the Courts and Legal Services Act 1990 of criminal proceedings from proceedings in which conditional fees may be used.
I accept that part of the effect of the decision of the Court of Appeal in the case of Thai Trading Co. v. Taylor--a case decided last year, in which the Court of Appeal ruled that lawyers may agree with their clients that they will charge less than their normal fees, or no fee at all, if they are unsuccessful on behalf of their client--was to approve the use of conditional fee agreements in cases under section 82.
As the House will know, the decision in Thai Trading overturned an earlier decision, in the case of British Waterways Board v. Norman. In the latter case, an agreement between the solicitor and the client that, if the prosecution under section 82 were unsuccessful, the solicitor would not seek to recover costs against the client was held to be unlawful and unenforceable.
The question, therefore, is whether, in bringing the effect of the decision in Thai Trading into statute, we should reflect that decision in its entirety or make it subject to the general principle that conditional fees, with or without enhanced fees, may not be used in criminal proceedings.
There had been some concern, in Committee and elsewhere, about the need to restrict the scope of conditional fee agreements. For that reason, having given the matter very careful thought--and I mean very careful thought; I am sympathetic to what the hon. Member for Surrey Heath said--we have concluded that it would not be right to breach the general principle that conditional fees are not appropriate in criminal proceedings.
Amendment No. 98 proposes a single exception for criminal cases under section 82 of the EPA. There is nothing unique about that provision. There may well be provisions elsewhere in the criminal law with similar effect so that conditional fees might be a possibility. If we are to consider breaching the general principle, it is important that that is undertaken on a logical basis and is not piecemeal. Moreover, such a breach can be undertaken only after very careful thought about the impact of conditional fees--regardless of whether enhanced fees are being sought--in the criminal justice process.
The Government do not believe that such a careful consideration of the issues is possible in the time that the Bill will be considered by the House. We believe that it would be most inappropriate, and possibly unjust, to make a single exception of that type.
The hon. Member for Surrey Heath should not look so sad, because the Government are not unsympathetic to the concerns that lie behind the amendment or to concerns that tenants should be able to ensure that statutory nuisances are dealt with. However, we have to balance those concerns with the potential effect of allowing conditional fees in criminal cases.
Mr. Gareth Thomas (Clwyd, West):
I understand the argument that my hon. Friend the Minister is making, but perhaps I could press him on one matter. How does he anticipate that those rather important cases brought under the Environmental Protection Act 1990 will be financed in future?
Mr. Vaz:
In the way in which they are financed at present. Several agencies, including law centres, could help people in that position. My hon. Friend does not have to press me too much, because we are sympathetic, but we do not feel that it is appropriate to breach the general principle now.
I do not accept that the Bill would result in people ceasing to have access to the remedy afforded by section 82. Those with a strong case will continue to be able to prosecute successfully the person or body causing the statutory nuisance and to obtain a costs order in their favour, perhaps using the agencies that I have mentioned. There may be other remedies in the civil courts that they could pursue, for which conditional fees would be available. The procedures put in place by all local authorities that allow their tenants to have defects to their property put right remain.
The issue is raised in my constituency case bag and I am sure that other hon. Members have the same experience. I have set out the Government's view. We are not unsympathetic to the points that have been made, but we are concerned that if we breach the general principle, we shall find ourselves in all kinds of difficulty. In view of the sympathetic comments that I have made, I invite the hon. Member for Surrey Heath to withdraw the amendment.
Mr. Hawkins:
I thank the Minister for expressing sympathy with the principles of the points that I have made and with the comments of the hon. Member for Clwyd, West (Mr. Thomas), who is also concerned about the matter. The Minister has promised to continue to look at the issue carefully, and has said that the Government may find another legislative opportunity soon to deal with that and other aspects of the criminal law to allay the concerns of the Law Society and organisations such as Shelter. In view of that, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Amendments made: No. 27, in page 19, line 25, leave out 'enhanced fees' and insert 'a success fee'.
No. 28, in page 19, line 38, leave out from beginning to 'any' in line 42 and insert
No. 29, in page 19, line 43, leave out
and insert 'a success fee'.
No. 30, in page 19, line 45, leave out 'taxing' and insert 'assessment'.
No. 31, in page 19, line 47, leave out
and insert 'a success fee'.--[Mr. Vaz.]
The Solicitor-General:
I beg to move amendment No. 33, in page 22, line 4, leave out 'disability working allowance' and insert 'disabled person's tax credit'.
Mr. Deputy Speaker (Mr. Michael Lord):
With this, it will be convenient to discuss Government amendment No. 82.
The Solicitor-General:
These technical amendments arise from the inter-relationship between this Bill and the Tax Credits Bill. As currently drafted, clause 32 of this Bill amends the Legal Aid (Scotland) Act 1986 to allow advice and assistance to be provided, without a means test or contributions, to recipients of disability working allowance. That is already the case for recipients of family credit. It is also already the case for recipients of both benefits in England and Wales.
The Tax Credits Bill, which we considered earlier today, provides for family credit and disability working allowance to be replaced by the working families tax credit and the disabled persons tax credit. That Bill also makes consequential amendments, including to the 1986 Act in relation to family credit.
Amendment No. 33 replaces the term "disability working allowance" with the term "disabled person's tax credit" in clause 32. Amendment No. 82 is a transitional provision to allow for the possibility that this Bill will come into force before the Tax Credits Bill.
Amendment agreed to.
Mr. Vaz:
I beg to move amendment No. 34, in page 24, line 31, leave out 'an advocate,' and insert
Mr. Deputy Speaker:
With this, it will be convenient to discuss Government amendments Nos. 35 to 37.
Mr. Vaz:
The purpose of the amendments is to clarify the drafting of clause 36, which enables all employed advocates, including Crown Prosecutors, to appear as advocates in the higher courts if otherwise qualified to do so. It disapplies any professional rules designed to prevent them from exercising rights of audience because of their status as employed advocates.
Amendments Nos. 34 and 37 make it clear that the clause applies to all employed lawyers, not solely to those employed principally as advocates. If suitably qualified, an employed lawyer may exercise rights of audience on even the most occasional basis.
Amendments Nos. 35 and 36 clarify an issue that my noble Friend the Lord Chancellor addressed in another place. The word "capacity" in subsection (2)(a) could be interpreted as enabling an employed advocate to offer their services direct to the public or to the clients of their employers, as distinct from their employers themselves.
10.45 pm
'A costs order made in any proceedings may, subject in the case of court proceedings to rules of court, include provision requiring the payment of'.
'the payment of enhanced fees'
'the payment of enhanced fees'
Amendment made: No. 32, in page 21, line 19, leave out 'taxing' and insert 'assessment'.--[Mr. Vaz.]
'a Crown Prosecutor or in any other description of employment,'.
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