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4.55 p.m.

Lord Lester of Herne Hill: My Lords, it has been a relatively short debate of characteristically high quality. I am delighted to have been present to hear the moving, personal, modest, thoughtful and charming maiden speech of my noble friend Lord Thomas of Gresford. Apart from his prominent political life, he has had a distinguished career at the Criminal Bar and as a part-time judge. This afternoon he has ventured into the tangled thickets of our antiquated and outmoded civil procedures, whether coloured forest green or pine yellow. He will, I am sure, make an important contribution to the work of the House.

It is also a particular pleasure and privilege to speak in the same debate as the Lord Chief Justice and the Master of the Rolls. If I may say so as a practising member of the English Bar, I believe that future legal historians will agree that one of the Lord Chancellor's greatest contributions has been the excellence of his judicial appointments. Another, as the noble and learned Lord, Lord Woolf, indicated, has been the Lord Chancellor's measures to modernise our system of civil justice and to reform the antiquated and unnecessarily restrictive practices of the legal profession--in the early stages, in the teeth of some not altogether pleasant opposition from some quarters of what the noble and learned Lord, Lord Bingham, has described as the Legal Establishment.

The Bill has been welcomed on all sides of the House in providing the framework to give effect to the enlightened and radical proposals of the noble and learned Lord, Lord Woolf, to improve access to justice. Every noble Lord who has spoken supports the proposal for a simplified set of procedural rules for all procedures in all courts and for the creation of one rule committee to replace the present two. A single set of simplified rules should help to reduce the cost of litigation, facilitate amicable settlements and encourage the use of alternative methods of dispute resolution. It should also avoid undue legalism, technicality and the kind of abusive tactical misuse of procedure described by my noble friend Lord Meston.

I was glad to note that the noble Lord, Lord Irvine of Lairg, supports the cultural change sought by the noble and learned Lord, Lord Woolf, though I am a little less optimistic than he is about persuading some of our fellow advocates not to be prolix or verbose in the absence of firm and effective judicial management, if that is not a euphemism, of the kind given by the Lord Chief Justice and the Master of the Rolls. Would that all judges could give that kind of leadership. But of course they cannot.

I am not troubled by the parliamentary delegation of rulemaking to a broad-based rule committee, provided that there is, as the noble Lord, Lord Irvine, indicated, extensive consultation about the draft rules, as there has undoubtedly been in the course of the review of the noble and learned Lord, Lord Woolf, and provided that both Houses of Parliament have a proper chance to debate the important issues at stake. That is why, like the noble Lord, Lord Irvine of Lairg, I believe that the new set of rules should require parliamentary approval by affirmative resolution rather than by negative resolution.

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Recently, a senior and distinguished fellow member of the Bar with vast experience of civil litigation, Mr. Anthony Grabiner QC, rightly observed in a lecture on this subject that the White Book, as we call it, is badly in need of abandonment and that the noble and learned Lord, Lord Woolf, and his team are to be congratulated on producing a set of draft rules written in plain English. Great efforts will, as he says, no doubt be made to turn simplicity into unnecessary complication. We have to hope and expect that the judiciary will develop a tough stand against efforts of that kind.

The suggested membership of the new rule committee will need to be carefully considered at Committee stage. As several noble Lords have pointed out, the only lay members at present envisaged are two persons,


    "with knowledge of the workings of the courts".

It is important to include those with knowledge of the interests of the consumers of the civil justice system, such as those working in citizens' advice bureaux and law centres. Civil rules of procedure are not like the rules of a private social club. They have a direct and profound impact upon the ability of ordinary men and women to enjoy effective access to justice. One objective clearly spelled out in the Woolf Report is for the civil justice system to be responsive to the needs of litigants. As the noble and learned Lord and the noble Baroness Lady Wilcox have both said, consumer interest groups make a vital contribution and need to be effectively represented on the rule committee. The noble Baroness, Lady Wilcox, is the only speaker who is neither a judge nor a lawyer. Her voice of justice and common sense is particularly welcome, for she speaks for the consumer that the system is meant to serve.

Like the noble Lord, Lord Thomas of Gresford, I am disappointed that the Bill does not provide for the establishment of a civil justice council. The noble and learned Lord, Lord Woolf, has given cogent and compelling reasons in both of his reports for creating a continuing body with responsibility for overseeing and co-ordinating the implementation of his proposals. In his words, it is "the central plank". The council would be an important engine of reform, encouraging the momentum to continue and representing the many and varied participants in the system. It would provide a vital channel of communication both ways between the centre and the regions and local areas.

In his written response, the noble and learned Lord the Lord Chancellor accepted that consultation and collaboration are vital to the success of the project, and the need to ensure that all interested parties are given a voice in the implementation process. But he observed that he was "not yet satisfied" that a civil justice council is the most effective way of securing these objectives. I take comfort from the words "not yet" and very much hope that the noble and learned Lord the Lord Chancellor will become satisfied during the debates on the Bill that a civil justice council would not be an unwieldy or ineffectual forum.

As the noble and learned Lord, Lord Woolf, observed in his interim report, a co-ordinating body for civil justice would greatly assist the Lord Chancellor's Department. In

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the absence of such a body, previous initiatives, such as the Civil Justice Review, have not been fully implemented or have not been implemented in the most effective way. He points out that the civil justice council could also take on a broader role in establishing a higher profile for civil justice by helping to secure the necessary resources and keeping the wider issues in the public mind. I would hope that the noble and learned Lord the Lord Chancellor would want to bequeath to his successor such a useful body, which would, among other things, be able to help his department to squeeze much-needed resources for civil justice out of the Treasury.

I entirely agree with the noble Lord, Lord Irvine of Lairg, my noble friend Lord Meston and the noble and learned Lord, Lord Ackner, that adequate resources are quite indispensable to the success of the proposals of the noble and learned Lord, Lord Woolf, and not only to finance the transition. In his written response the Lord Chancellor referred to the new procedures as being,


    "intended to result in a more efficient management of the civil justice system, reducing costs to the litigant and to the public purse".

That is true, of course, but it is also true that more resources will need to be paid for out of the public purse if there is to be genuinely effective access to a speedy and efficient system of civil justice.

There will need to be more judges, assisted, I would hope, at least at the appellate level, by law clerks in their out-of-court preparation. As the noble and learned Lord, Lord Ackner, has emphasised, the judges will need to be trained in their new role in case management. They will need more time for preparation. Existing costs obstacles in the way of equal access for the poor and not-so-rich will have to be removed. The noble and learned Lord, Lord Woolf, recommended that as part of the review of court fees the position of a litigant of modest means should be protected from the undue impact of increased court fees. I respectfully agree. He also made the important recommendation that in judicial review proceedings the court should have a discretion to order costs to be paid out of public funds where the proceedings have been brought in the public interest. Something similar was recommended more than 40 years' ago by Lord Evershed's committee. It is of great importance that an applicant for judicial review, not legally aided but too poor to be able to risk paying the costs of the respondent public body, should know at the outset that his or her costs will be publicly funded or at least that he or she will not be ordered to pay the respondent's costs. I hope that the noble and learned Lord the Lord Chancellor accepts these recommendations to avoid what he has rightly described as the deterrent effect of the present costs position.

I also hope that the Lord Chancellor will extend the no-win, no-fee scheme under the conditional fees rules to cover cases where litigants are exhausting domestic legal remedies before having recourse under the European Convention on Human Rights; indeed, I would add in judicial review and civil proceedings generally. That will involve no charge upon the public purse. As in Scotland, under the speculative fee arrangements, it will enable public-spirited lawyers to act without fee in public interest litigation. It will also make it much easier to obtain insurance against liability for the other side's legal costs.

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That brings me finally to the Government's plans to shake up legal aid, condemned by leading national organisations representing advice agencies and groups helping victims of injustice as unworkable and unjust. I believe it to be short-sighted, even in terms of savings in public expenditure, to cut back so severely on eligibility for legal aid in civil cases. It leads inevitably to litigants having to represent themselves in person, clogging the system and wasting scarce resources with inexpertly prepared and verbosely argued cases. The withdrawal of civil legal aid from so many needy claimants also infringes the basic civil right to effective access to justice.

I read with interest the article by Mr. Phillip Sycamore, Vice-President of the Law Society, in The Times today arguing on the basis of two recent independent research studies that there is overwhelming public support for legal aid and highlighting public opposition to the proposals in the Government's White Paper. I do not favour a demand-led system of indiscriminate legal aid; but neither do I favour its undue restriction.

Some 28 years ago, as a member of the Society of Labour Lawyers, I was one of a group that helped the late and much-missed Morris Finer QC, as he was, to write a report entitled Justice for All. We identified a substantial unmet need for professional legal services. We found that:


    "Poverty, ignorance, fatalism and fear, in combination with the present structure of the legal profession, result in the denial of legal services to many people, and especially to those living on low incomes in parts of our largest cities".

We recommended a new institution, capable of bringing high quality legal services to those parts of our cities where the need for them is greatest and attracting men and women of ability to the service of the community. Such an institution, we thought, would function as a public service, staffed by salaried lawyers, co-existing with the private legal profession.

Under Labour Governments in the late 1960s and mid-1970s, there was an expansion, with government encouragement, of the network of voluntary local law centres. Unfortunately, however, the proposal for a publicly-funded network of centres employing a salaried professional staff has not been implemented.

I believe that the need for such a service is greater today than it was in 1968. I remain convinced that it will provide a cost-effective, well targeted way of promoting greater access to civil justice for the underprivileged and of securing greater justice for all. I hope that the present Bill will be implemented not only by better rules and better managed cases but also by better use of public funding to achieve greater equality of access. Otherwise, it will be only a half-measure for reform.

5.9 p.m.

The Lord Chancellor: My Lords, I begin by adding my warm appreciation of the maiden speech of the noble Lord, Lord Thomas of Gresford. He brought us back to very sad matters in the mining industry. He brought us forward to the very fast track when Lord Elwyn-Jones arrived at Chester in company with his learned junior to settle the case immediately. He then brought us on to a 14-year litigation which the noble Lord settled on a social

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occasion on a Saturday afternoon. That shows the variety of experiences that one can have under our present system.

I am grateful for the degree of support that has been given to the Bill. I am not at all apologetic for the fact that it is rather short because I think that if my noble and learned friend Lord Simon of Glaisdale were to participate in the debate, he would be in favour of the shortest possible legislation. This legislation incorporates all that is required to bring forward the scheme of reform which my noble and learned friend Lord Woolf and those who have devotedly supported him have produced in the two reports to which I referred earlier.

I am grateful to the noble Lord, Lord Irvine of Lairg, and to the noble Lord, Lord Meston, for agreeing that it would be appropriate to deal with this Bill in a Moses Room Committee of the Whole House off the Floor. That in no way inhibits discussion. Indeed, if anything, I think that it makes it possible to have perhaps more time for discussion than would otherwise be the case.

The noble Lord, Lord Irvine of Lairg, asked me to preserve an open mind on amendments. I think that I always have an open mind on amendments because I am anxious to secure agreement where possible on this and on every other topic that I try to bring forward. Sometimes I secure that agreement with more success than at others.

On the civil justice council, I appreciate what my noble and learned friend has proposed, but I do not think that we can get into that just yet. One of the functions of the council would be to ensure that affairs of civil justice remained prominent into the future. The profile of civil justice has been raised considerably and will continue to be raised while the new rules are being prepared and consulted on. I entirely agree that it is right to have the widest possible consultation on these rules. My noble and learned friend has carried out a lot of consultation already and I expect that many of the views that have been expressed will be taken into account by the rule committee when formulating the rules.

I think that that is highly desirable, although I doubt whether it is wise to include such particular conditions in the Bill. I have some experience--your Lordships may have more--of cases where quite small changes in the rules are required urgently in the light of experience in a particular case. We need flexible arrangements and I would be prepared--I hope that your Lordships would be similarly prepared--to trust to the judgment of the rule committee on the nature of the consultation that it would require in any particular case.

That brings me to a point of some importance which we shall have to discuss in Committee. I think that the ordinary rule should be, as the Bill proposes, that rules of court can be set aside as a result of prayer under the negative procedure. I agree, of course, that the main change is a big one. We shall have to see whether there is some way of dealing with that. I would be perfectly prepared to undertake that, once the rules are formulated, it would be appropriate to have a debate on their detail in this House--obviously I am not clear about the other place--before the instrument that would bring them into effect could be laid. In any event, we can discuss such matters in Committee.

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I strongly agree with the view that co-operation is at the heart of this whole procedure, including co-operation between judge and counsel in particular cases. I agree that it is difficult to make progress if the judge is so sure of what he thinks that he is not prepared to listen to advice from a well directed quarter. On the other hand, such obstinacy is not confined to the Bench. The need for co-operation is general. I am sure that such co-operation oils the wheels of any procedural system. I hope and believe that a keynote of the rules will be that such co-operation is sought.

The question of resources has also been raised. There is no doubt that resources will be required to put the system in place. Training and information technology are the most important and most easily identified areas that will need resourcing. Whether or not more judges are required is still an open question. It may well be that a different type of judge is required and that to accommodate that we may have to vary the way in which judges are recruited. I am considering that matter. On information technology, we have already placed an important contract for the computerisation of the civil courts. That is an important part of our preparation.

That reminds me that the noble Lord, Lord Lester of Herne Hill, suggested that the recommendations of previous inquiries have not been implemented. The implementation of the civil justice review is not yet finished. I am trying to take it forward as rapidly as I can. One of the results of that review was the inquiry by my noble and learned friend Lord Woolf. It was recognised that a single set of rules for all the civil courts was necessary. Until we get that, we cannot have full implementation. Of course, we have done a great deal already, but some of the recommendations (on administration orders, for example) require information technology which we are only just getting. I have certainly done what I can to bring forward as rapidly as possible the implementation of the proposals of the civil justice review.

The second area in which resources will be needed is judicial training. I intend that the budget of the Judicial Studies Board will contain the necessary money for that purpose. The noble Lord, Lord Irvine of Lairg, asked what I was going to squeeze to get that money and whether there would be any "new money". I do not understand the phrase "new money" in connection with another year. If you want something extra during any one year, that requires new money in addition to the budget for that year. However, the budgets for the next year, for the following year and for the year after that are determined as we go along. The resources that will be necessary properly to implement the proposals will be part of the budget of the Lord Chancellor. If it turns out that more judges are required, that will have to be accommodated, but one of the objectives of the system is to make the new system rather cheaper than the present one. Therefore, I do not see it as established at the moment that a higher judicial complement will be required. The resources necessary for

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implementation will be made available out of the Lord Chancellor's budget and we shall become clearer about what exactly is required from year to year as we go along.

A number of other matters have been mentioned which will be taken up in Committee. It is said that I focused particularly on transitional costs. I would expect additional costs to arise in the transitional period because running the old system while preparing for the new is bound to give rise to some additional costs. We shall have to deal with such costs in the way I have suggested. The IT costs are part of the costs of the system that we seek to put in place.

I am glad that we now have systems for discussing these matters in considerable detail with the senior judiciary. I believe that that will be helpful in discovering how best to use the resources that are made available to help in this matter. One illustration of that possibility is that the Judicial Studies Board works through various programmes and sometimes a particular programme is no longer necessary. There has been a substantial programme dealing with ethnic minority issues. It may be that now the full effect of that is in place resources can be used on other matters. Judicial studies vary from year to year.

I fully agree with all that has been said about training. Training is absolutely essential for this to work. I agree with my noble and learned friend Lord Ackner that that is also true in connection with the legal profession. I am interested in what he has discovered in correspondence in arbitrations since retirement which throws light on the way in which some of these matters are handled.

One of the matters proposed by my noble and learned friend Lord Woolf is the adoption of protocols as to how disputes should be treated. That may well help to deal with the problems indicated by my noble and learned friend. Obviously, if it is to work the idea must be to try to reduce the area of dispute as far as possible, whereas the kind of correspondence to which my noble and learned friend has referred so eloquently is calculated to exacerbate, enlarge and make a dispute more terrible than when it first began. That is quite counter to the objectives of my noble and learned friend.

In accordance with the agreement that I believe has been signified, the Committee stage will be taken in the Moses Room, with no votes at that stage. Of course, any outstanding matters that cannot be settled by agreement will be subject to votes at Report stage in the ordinary way. My noble friend gives me a signal which I am not absolutely certain I understand. I am anxious that the amount of debate at Committee stage is reduced by agreement to the absolute maximum. I am sure that that can only be good for the resulting Bill.

I am grateful to all noble Lords who have contributed to the debate, and I renew my Motion with reasonable confidence.

On Question, Bill read a second time, and committed to a Committee of the Whole House.

        House adjourned at twenty-three minutes past five o'clock.


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