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Mr. Bercow: I understand the significance of the point that my right hon. Friend is making, but I would not want his important amendment to be subject to the grisly fate of the self-congratulation of the lawyers--I am not a lawyer and I say that as a matter of pride. Does he agree that, in addition to any consultation that might usefully take place with them, consultation with other parties, including representatives of victims' groups, could be of inestimable value?
Mr. Forth: That is true, but my hon. Friend has put a rather worrying thought in my mind. Rather uncharacteristically, I praised those on the Front Benches and they all looked appropriately modest and humble.
Mr. Bercow: They are all lawyers.
Mr. Forth: Indeed. That is why I praised them--in the context of what I was saying, it was appropriate--but my
hon. Friend has shown us the other side of the coin. He is right that, time and again, we in this House--and, I expect, those in the other place--find that the very people who scrutinise such Bills have not only the most knowledge but some professional interest which, albeit a proper one, may none the less affect their judgment.At what point could we expect input or involvement from those we would expect to benefit from the measures in the Bill? My hon. Friend mentioned victims' groups, whose involvement may be the most appropriate, and we might think of many other such bodies. Who would represent the taxpayer here? I leave that to one side, but one can already identify what dilemmas would arise during consideration of such a matter. Of necessity, we would require a degree of expertise to be brought to bear.
Mr. Forth: Talking of expertise, I give way to the hon. Gentleman.
Mr. Burnett: I am extremely grateful to the right hon. Gentleman, who is being very shy. He should not underplay his own contributions to legal affairs debates. Does he recall a Committee debate on conditional fee agreements in which he took part? Does he remember the points that he made?
Mr. Forth: The hon. Gentleman is very kind. Were I to try to remember all the points that I have made in my brief and inglorious parliamentary career as a Government Back Bencher, a Minister and an Opposition Back Bencher, I would have to be Mr. Memory Man. Perhaps I have allowed the contributions mentioned by the hon. Gentleman to slip my memory, but I am flattered that he remembers them: that is very reassuring.
5.30 pm
I do not want to detain the House for long, but I believe that this is an important matter, to which we should give serious consideration for at least a short time. On occasions such as this, we are being asked to decide whether we trust the Government. If the Bill proceeds as it is currently worded--without my amendment--the Government will be contemplating regulations that would presumably be made under the negative resolution procedure, as my hon. Friend the Member for Buckingham pointed out, and therefore potentially made by default. Do we wish to allow that, or do we want the reassurance of a provision predetermining the procedure by stating that both Houses must give positive consideration and approval to the regulations?
The issue is no less important than that--and, as I have said, the fact that it is arising in connection with more and more Bills, albeit of varying sizes and importance, suggests that we may have to return to it ever more frequently, for as long as the Government insist on trying to get legislation through Parliament guillotined, with provisions such as this half-hidden in it.
I hope that I have said enough to persuade my right hon. and hon. Friends, but more particularly the Government, that the matter requires proper consideration. Perhaps, if I am lucky, the Government may even see fit to accept my amendment.
Mr. Edward Garnier (Harborough): I congratulate my right hon. Friend the Member for Bromley and Chislehurst (Mr. Forth) on highlighting a particularly important constitutional question that the Government have failed to recognise during their four years in office.
The Bill, which seeks to correct the so-called Access to Justice Act 1999, clearly demonstrates the problem described by my right hon. Friend: the Government's use of secondary legislation to make changes in primary legislation. I think--and I know our Government did it as well--that that is an appalling development in the modern history of our Parliament.
In the Access to Justice Act, the Lord Chancellor gave himself--or this supine Parliament gave his office--some 37 powers to make regulations. We are discussing this Bill now because the Lord Chancellor's Department made a mess of it. No doubt overburdened by the number of regulatory powers conferred by this supine Parliament, it has had to produce a Bill that, in my view, would more properly be called the Access to Justice (Cock-up)(No. 1) Bill. No doubt, if the current Parliament continues for much longer, we shall be presented with subsequent cock-up Bills--Nos. 2, 3 and 4--to deal with other parts of the Access to Justice Act that need correcting. I shall say no more about that, however: my general point is one that I have made on a number of occasions, and repetition never made a good point better.
My right hon. Friend has drawn attention to an important subject, which the Government continuously fail to recognise and of which any Opposition worthy of the name should continually remind the House.
Mr. Burnett: I too support the amendment, but I am surprised that the right hon. Member for Bromley and Chislehurst (Mr. Forth) did not make one point--unless I missed it during his eloquent summary. The regulations may have retrospective effect, which makes the case for the amendment even more compelling.
The Parliamentary Secretary, Lord Chancellor's Department (Mr. David Lock): The right hon. Member for Bromley and Chislehurst (Mr. Forth) is entirely correct: the amendment would substitute the affirmative for the negative resolution procedure. In other words, we would have to have a debate on every single regulation made under section 13(1) of the Access to Justice Act 1999, rather than giving the Opposition the opportunity to scrutinise regulations and decide for themselves whether to pray against them. That level of parliamentary scrutiny would certainly be unusual, given the type of regulations that could be anticipated in the future, and in the particular case of the regulations already contemplated under the Bill, it would be positively unwelcome.
I am grateful for the right hon. Gentleman's comments about scrutiny. He is fabled for his scrutiny, and I was certainly grateful for his suggestion in our debate following Second Reading that the time allocated for Committee proceedings in the programme motion was wholly inadequate. He may be aware that the Committee did not take the full 10 hours allocated: it took 18 minutes.
Mr. Forth: That is because I was not there.
Mr. Lock: That may well be true.
Generally, the affirmative procedure is considered appropriate for powers substantially affecting the provisions of Acts of Parliament, powers to impose or increase taxation or powers involving considerations of other special importance, such as powers to create new varieties of criminal offence of a serious nature. The powers to make regulations under section 13(1) of the 1999 Act do not fall into any of those categories. That section, as amended, will give power to prescribe situations in which individuals involved in criminal investigations or proceedings should receive publicly funded advice and assistance.
Hon. Members know, because we debated it during earlier stages of the Bill, that our intention is to replicate the current circumstances in which advice and assistance are available. Those circumstances are prescribed in regulations made under the negative procedure under the Legal Aid Act 1988, passed by the previous Government.
It is possible to imagine a situation in which a new procedure would be needed--for example, if changes had to be made in social security benefit levels--to ensure that advice and assistance financial limits remain in line with the changes, but those are not the sort of changes that should automatically be debated in both Houses. The negative procedure, to which the regulations will be subject, will ensure that if the regulations proposed are more controversial, there will be an opportunity for debate, should the Opposition pray against them.
In the case of this Bill, the amendment would have very serious effects. Hon. Members will be aware that the Bill and the regulations made under it are capable of retrospective effect. That was to ensure that if Royal Assent was given after the Criminal Defence Service was commenced there would be no gap in provision. The CDS has come into existence today, and clearly we have yet to receive Royal Assent for the Bill. As soon as that is given, regulations will be brought into effect that provide that advice and assistance will be available in exactly the same circumstances as under the Legal Aid Act 1988.
If we had to wait for parliamentary time to be available for two further debates, both here and in the other place, the law would remain uncertain for a considerable period, because no power would formally exist to provide advice and assistance in criminal cases. That is the lacuna that the Bill is intended to close.
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