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Mr. Vaz: I beg to move, That this House disagrees with the Lords in the said amendment.
Mr. Deputy Speaker: With this, it will be convenient to take Government amendment (a) in lieu thereof.
Mr. Vaz: The House will remember the speeches of the hon. Members for Surrey Heath (Mr. Hawkins) and for Torridge and West Devon (Mr. Burnett) and my hon. Friend the Member for Hendon (Mr. Dismore) during the Committee and Report stages of the Bill. The House heard how important bodies including the Law Society and Shelter considered the continuing availability of no win, no fee agreements to be in cases brought under section 82 of the Environmental Protection Act 1990.
I said at the time that I was sympathetic to the arguments, but needed to consider the fine balance between the deserving cases that had been outlined and
the importance of keeping conditional fee agreements out of criminal cases. Since the Report stage, the Government have been considering further the arguments put to us by the House, in another place and by various campaigning organisations. As the House knows, ours is a listening Government. We have concluded that it is right that no win, no fee agreements should remain available, and that is why we have now tabled the amendment.
The Lords amendment, which was moved by Lord Goodhart, would broaden the effect of amendment No. 56 so that it excluded from the scope of the Bill not only non-contentious business agreements, but any form of fee agreement enforceable at common law, typically conditional fee agreements with no uplift, which are often known as Thai Trading agreements. However, it is the specific intention of clause 29 to bring Thai Trading agreements into the scope of the conditional fee legislation, both to secure the greater certainty that statute law provides and to ensure that they can be properly regulated, for example by requiring solicitors to give relevant information to potential clients.
It is obviously right that consumers who enter Thai Trading agreements should have the same protection as uplift cases that may be conferred by regulations under new section 58(3)(c) of the Courts and Legal ServicesAct 1990, which clause 29 would insert. By contrast, non-contentious business agreements, if they are excluded by amendment No. 56, can be regulated instead under the Solicitors Act 1974.
However, Lord Goodhart made it clear that all he was really trying to do was preserve the position of solicitors entering into Thai Trading agreements in respect of proceedings under section 82 of the Environmental Protection Act. Section 82 allows people aggrieved by a statutory nuisance--for example, inadequate housing--to seek an order for that nuisance to be put right. Those cases are heard in a magistrates court and are technically criminal cases, although they are in reality brought to enforce a civil right.
Conditional fees are not permitted in criminal cases under the existing legislation, and that position is maintained by the Bill. However, as a result, the effect of bringing Thai Trading agreements into the scope of the legislation so as to be able to regulate them in the consumer interest is to outlaw them in those section 82 proceedings.
The Government have considered with great care the options for resolving the problem. In particular, we have been reluctant to make an isolated exception to the principle that conditional fees are inappropriate in criminal cases. However, on balance, the Government are now persuaded that no win, no fee agreements wherethere is no uplift--for example, Thai Trading-type agreements--should remain available to individuals seeking to enforce their rights in that type of case. Housing disrepair is one of the Government's stated priority areas for the community legal service and we accept that it would be perverse to remove an effective route for gaining access to justice in that area.
As I have explained, the solution proposed by Lord Goodhart went too far. However, the only way open to the Government to achieve the desired result was to allow his amendment to pass last week and then to try to perfect it in this House. The issue is best dealt with by amendment to new section 58A(1)(a) of the Courts and
Legal Services Act. That provision was not amended in the Commons and so could not be amended last week in the other place.
The Lord Chancellor accepted Lord Goodhart's amendment for the time being, on the basis that we would table an amendment here to deal squarely with the position in Environmental Protection Act cases. That is what Government amendment (a) would do, and I am sure that it will meet with the agreement of hon. Members on both sides of the House. I commend it to the House.
Mr. Hawkins:
The Minister is absolutely right to say that we welcome the Government's belated acceptance that the Opposition were right all along to table in Committee and on Report amendments that were almost identical to the amendment that Government now propose.
I am delighted to welcome the Government's change of mind. In the debate on Report, the Minister said that, at that stage,
The debate in another place was somewhat contorted. After the Lord Chancellor had spoken, Lord Mishcon asked:
I shall briefly set out the reasons why the Opposition and charitable organisations such as Shelter were so concerned about this matter. Now that we have finally persuaded the Government to accept our arguments, it is important to set out precisely what they are. Our arguments were also made by the Law Society and Shelter.
Mr. Vaz:
It is uncharacteristic of the hon. Gentleman to be so grudging. The Lord Chancellor set out clearly his reasons for accepting the amendment and the Government have listened to the arguments that he and others have advanced. Why can the hon. Gentleman not just say thank you?
Mr. Hawkins:
Perhaps the Minister misunderstands me. I do not wish to be grudging and I have said already that we are pleased that the Government have accepted our arguments. However, it is important to set out the strength of the case so that those who examine our proceedings may understand it clearly.
Shelter and the Law Society pointed out that the decision of the Court of Appeal in Thai TradingCo v. Taylor, which was reported in The Times of 6 March 1998, is now incorporated in full. The Court of Appeal's decision in that case overruled a previous decision of the divisional court in the case of British Waterways Board v. Norman, permitting legal representatives to act in housing disrepair cases in magistrates courts on behalf of tenants of low means.
Many hon. Members on both sides of the House have dealt with such cases in their legal practices and I am sure that almost all hon. Members have been approached at their surgeries or by letter about cases involving tenants of modest means. Legal aid has never been availableto such tenants because proceedings under the Environmental Protection Act 1990 are technically criminal proceedings. Therefore, those tenants have relied on lawyers who were prepared to act on their behalf on a purely speculative basis. The exclusion of all criminal proceedings from Thai Trading-type conditional fees thus bars any such speculative arrangements.
The Government's amendment will remedy the situation. The Government have incorporated the European convention on human rights into British law and they must certify that every Act of Parliament will comply with it. In approaching hon. Members who were interested in the Bill in Committee, Shelter pointed out that, unless the amendment was made, the certification that the Bill complied with the European convention on human rights could not properly be given. An amendment advancing that case was moved initially by Lord Goodhart in another place, and it was withdrawn only after the Government said that they would consider the issue further and, if it was thought appropriate at some later stage, might table their own amendment. The Government have finally done so at this very late stage.
In Standing Committee, the Minister's predecessor, the present Minister of State, Foreign and Commonwealth Office, the hon. Member for Ashfield (Mr. Hoon), said that
he could not accept an amendment that would make taxpayers' money available for representation for summary complaints that are technically criminal proceedings because they require a complaint to a magistrates court to be issued. He went on to say:
Sadly, in many towns and even some villages in this country there are tenants of houses in disrepair who have limited means. They have no opportunity to fund from their own resources the cost of taking enforcement action. Therefore, the proceedings taken under the Environmental Protection Act 1990 are the only effective means of securing a remedy for such tenants. The Law Society pointed out that, as part of their pro bono work, many solicitors take on those cases on a speculative basis. The Minister mentioned earlier that he used to work in a law centre and that those centres frequently take up such cases. There is a concern that people may be entitled to free legal advice in law centres under the green form scheme, but may not necessarily be able to take the proceedings any further.
"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."
He went further, stating his belief that
"it would be most inappropriate, and possibly unjust, to make a single exception"
of the type that we were then proposing. He said that there was "nothing unique" about the provisions of section 82 of the Environmental Protection Act 1990, and that he was concerned that
"There well may be provisions elsewhere in the criminal law with similar effect so that conditional fees might be a possibility."
According to him, the Government's then position was that
"If we are to consider breaching the general principle, it is important that that is undertaken on a logical basis and is not piecemeal."
He added that "such a breach", as he called it,
"can be undertaken only after very careful thought about the impact of conditional fees--regardless of whether enhanced fees are being sought"--
in other words, Thai Trading-type uplift cases--
"in the criminal justice process."--[Official Report, 22 June 1999; Vol. 333, c. 1050.]
However, wiser counsels have clearly prevailed in the succeeding weeks.
"My Lords, has the noble and learned Lord set a precedent in this House so far as he knows for recommending the acceptance of an amendment which in fact he does not accept?"
To which the Lord Chancellor replied:
"My Lords, I rather think that it is a record, yes."--[Official Report, House of Lords, 14 July 1999; Vol. 604, c. 435.]
It was indeed an extraordinary position. Nevertheless, I am delighted that the Government have finally reached this conclusion. The Lord Chancellor said that theposition is not free from complexity. The Government's contortions before they finally accepted that the Opposition were right all along--right in Committee and
right on Report--have not been free from complexity either, as the debate in another place on 14 July made clear.
6.30 pm
"I believe that other methods of funding such as no-win, no-fee agreements of the type that we constantly discuss can be used and the non-availability of legal aid does not prevent a complainant from taking a reasonable case to court."---[Official Report, Standing Committee E, 4 May 1999; c. 160.]
Shelter was concerned that Parliament should give people the right to take action in respect of housing disrepair and certain other nuisances.
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