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Lord Goodhart: I strongly support this amendment on behalf of my party. I shall be brief because I recognise that there will be another chance to discuss this matter on 9th December. We support the proposition very strongly. In the absence of a human rights commission the right to legal aid is absolutely essential as a method of bringing human rights convention cases to court. The alternative of conditional fee agreements is wholly unsatisfactory in relation to proceedings for breach of convention rights, because often damages may not be sought at all or when they are awarded they may very well be small. In those circumstances, the practicability of conditional fee arrangements, which may work perfectly well in other circumstances, really does not exist. I should very much welcome an assurance from the noble and learned Lord that there will be a method by which public funding can be obtained for deserving cases involving a breach of convention rights.

The Lord Chancellor: I shall respond to the probing amendment of the noble Lord, Lord Henley, as best I can, but he recognises that there will be ample opportunity to discuss these matters on Tuesday, 9th December. At present legal aid is available for criminal cases, judicial review and virtually all other proceedings in the courts, except defamation. As such, if the Bill were enacted here and now legal aid would be available on the current terms in nearly all proceedings brought under the Bill.

The reforms of legal aid that I have announced, in relation to which the Government will go out to consultation--I shall describe that more fully in a moment--especially moving to a system that can better control its price and what it is spent on, will allow us to ensure that, in future, proceedings relating to rights under the Bill receive their fair share of the money available.

My noble friend Lord Williams of Mostyn reminded this place both on Second Reading and earlier in Committee that I am giving serious consideration to Sir Peter Middleton's proposal that there should be a separate fund for public interest cases, including those involving rights under this Bill. I said in my Cardiff speech on 18th October that I believed it right in principle to make special arrangements for cases that raise issues of wider public interest and that I intended to consult about the details.

When making his proposals Sir Peter had in mind test cases involving novel points of law that were likely to produce an important precedent. But there are other

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criteria which could bring such cases within the scope of public interest; for example, cases that could bring some specific benefit to a wider group of people. So it is important, first, to define what we mean by "public interest cases". Having done that, we need to consider the best means of ensuring that they can be litigated. Sir Peter proposed a special fund, but there may be other options. We should also think about how best to make use of the expertise of bodies like the Public Law Project, Justice, Liberty and the Child Poverty Action Group. All of these matters require detailed consideration, and it is right that government should consult as widely as possible before reaching firm conclusions.

I have never promised a Green Paper. The noble Lord is not right about that, but I do not think that that matters much. The point that I make, and repeat, is the point made by my noble friend Lord Williams on Second Reading. We cannot deal with the details or the fine-tuning until consultation has been carried out. I am planning to issue a consultation paper early next year, but my officials have already begun informal discussions with various interest groups.

The noble Lord, Lord Goodhart, made a point about the inappropriateness, as he sees it, of conditional fee agreements for claims under the Bill, which he says might generally involve no or little damages. That is a matter that we shall also be taking into account in consultations.

Lord Henley: I wonder whether the noble and learned Lord will address--I do not believe that I caught it--the questions I asked about Scotland and whether the fund he is considering will cover Scotland as well or whether there will be a separate fund for Scotland.

The Lord Chancellor: My responsibility does not extend to Scotland, so I was addressing the position for England and Wales, which are within my responsibility. I shall write to the noble Lord about Scotland.

Lord Henley: I am grateful to the noble and learned Lord for that response. I apologise for misunderstanding him. I thought there was to be a Green Paper. I understand now that it is to be a consultation document which will come out some time in the new year. We will take note of that and what the noble and learned Lord has to say on 9th December when, I am happy to say, it will not be me responding on behalf of the Opposition but one of my noble friends who is slightly more learned in the law. I beg leave to withdraw the amendment.

3.45 p.m.

Lord Simon of Glaisdale: I understood what my noble and learned friend the Lord Chancellor said, but there is an important distinction to be made. At the moment we are borrowing to satisfy our present wants. We are borrowing a vast sum of money. The previous Chancellor of the Exchequer bore down valiantly on the scale of public borrowing, and the present Chancellor is valuably following him in that course. Nevertheless, we are borrowing money to satisfy our present wants. That

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is money that will have to be repaid by our children and grandchildren. We should be spending borrowed money only on projects which inure to the benefit of our children and grandchildren.

In a recent finance debate, the noble Lord, Lord Desai, took an austere view. He would only allow borrowed money to be spent on investments. I venture to think that education and training are equally justifiable. But when one turns to legal aid there is another important distinction to be made. At present, the headline figure for legal aid is £1.6 billion--an enormous sum. The net figure is probably somewhat less, but it will still be at least £800 million and probably considerably more.

A good deal of that expenditure cannot possibly inure to the benefit of our children and grandchildren. Some can: the public interest cases which are identified in the Middleton Report, to which my noble and learned friend the Lord Chancellor referred, and many cases which will invoke human rights by virtue of the Bill. I venture two things: first, I regard the no win, no pay expedient to obviate the cost of the impact of cuts in legal aid to be deplorable. I said so when it was introduced by the previous government. I venture to repeat that now. In view of our forthcoming debate, it is unnecessary to go into detail, but there is an alternative which covers the same ground as the no win, no pay project; that is, the scheme produced by the Bar Council, following proposals by Justice and various other bodies, including the Conservative Lawyers' Association.

I would ask my noble and learned friend to devote his attention to that and to put behind it the same energy and mental power which has obviously gone into the framing of the Bill. We are in danger of multiplying our avenues for channelling legal aid. Surely what has been said today reinforces the pleas that were made on Monday for a human rights commission, with its agenda suitably framed. It could channel the appropriate funds to appropriate projects which invoke human rights by virtue of the Bill.

Lord Williams of Elvel: As I understand it, as a matter of procedure, the noble Lord, Lord Henley, has asked the leave of the Committee to withdraw the amendment. Although we all recognise that the noble and learned Lord, Lord Simon of Glaisdale, has strong views on this matter, that seems to be the Question before the Committee.

Amendment, by leave, withdrawn.

Lord Mackay of Drumadoon moved Amendment No. 64:

After Clause 9, insert the following new clause--

Party litigants (Scotland)

(" .--(1) In Scotland, no proceedings may be brought under this Act by a party litigant except with leave granted in accordance with this section.
(2) In Scotland, no proceedings brought under this Act may be continued by a person who, since the raising of the proceedings, has become a party litigant unless, since he has become a party litigant, he has obtained leave granted in accordance with this section.

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(3) Leave to bring or continue proceedings under this Act may be granted by a Senator of the College of Justice in Scotland appointed for that purpose by the Lord President of the Court of Session.
(4) The decision whether to grant leave under this section shall be made by the Senator of the College of Justice in Scotland appointed for that purpose and he shall--
(a) if he considers that the documents mentioned in subsection (5) below disclose that the litigant has probabilis causa in relation to any alleged infringement of a Convention right which he seeks to invoke, vindicate or plead grant leave; and
(b) in any other case refuse leave, and give reasons in writing for the refusal.
(5) The documents referred to in subsection (4) above are--
(a) a draft of any writ which the party litigant proposes should be lodged in the proposed proceedings to enable the party litigant to attempt to assert any Convention right, or, as the case may be, a copy of any such writ already lodged in proceedings begun at a time when he was not a party litigant; and
(b) a full written statement condescending upon the character and circumstances of the alleged violation of the Convention right which the party litigant seeks to found upon in the proceedings.
(6) In this Act "party litigant" means a person who, at the material time, is not represented, in the proceedings or for the purpose of raising proceedings, by a person who enjoys a right of audience in the Court or before the Tribunal or other body in which the proceedings are to be raised or, as the case may be, are pending.").

The noble and learned Lord said: Members of the Committee who study the Marshalled List with a keen interest will appreciate that initially the amendment was tabled only in the name of the noble and learned Lord, Lord McCluskey. Unfortunately, the noble and learned Lord cannot be here today and has invited me to support the amendment and to move it before the Committee. He apologises for his absence, but is engaged in judicial business in Scotland. I shall speak also to Amendment No. 92.

The purpose of the amendments is to draw attention to a problem which is causing an increasing level of concern to judges in Scotland, in particular to high court judges, as they seek to assess the implications of the Bill on the work of the courts--in particular, the impact of Clause 7. Their concern, which I understand, is that some cases involving party litigants (as we refer to them in Scotland) occupy long periods of court time. That has consequences for other litigants whose cases must be postponed as a result or who must wait longer for their cases to be allocated a hearing. The amendments have been seen by the noble and learned Lord, Lord Rodger of Earlsferry, the Lord President of the Court of Session, who fully supported the noble and learned Lord, Lord McCluskey, in tabling them and seeking the Government's response to the problem.

Experience in Scotland is that in recent years party litigants have come before the courts in increasing numbers. In some instances, their cases are one-off disputes with individual local authorities or a government department. However, in other instances a controversial piece of legislation, such as the poll tax legislation, or a controversial new project, such as the new Skye bridge, has increased their numbers. As their numbers have increased so has the volume of court time which their cases have taken up.

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Some party litigants have points of great substance. All tend to have a considerable knowledge of the facts of the particular case. If they also identify substantial points of law many advocate their arguments with great skill and a considerable measure of success. Those who are less able receive in Scotland, as no doubt in England, every possible assistance from the judge and any lawyer who may be appearing for another party. Such cases are not the problem faced by the Scottish judges.

The problem relates to those party litigants whose cases have no substance. As was mentioned on the first day of Committee by the noble Lord, Lord Williams of Mostyn, some cases are less meritorious than others. Unfortunately, when party litigants are concerned, cases without any discernible merit raised in a lower court are taken on appeal to an appellate court and consume a considerable amount of court time. The problem is that the party litigant concerned soldiers on with his case with no prospects of success, arguing irrelevant points of law, not understanding the factual issues which arise and, unfortunately, resistant to any guidance or assistance which the judge is able to give.

Many such people would qualify for legal aid if there were merit to their case, but because in many instances they are engaged in a crusade, some strike one as litigating as some form of hobby. They resist any guidance to see a lawyer and the suggestion that they should apply for legal aid. As a result, in some instances the courts are becoming unnecessarily bogged down.

Some Members of the Committee may believe that it is no hardship for judges to have to sit and listen to such individuals, many of whom have suffered in one way or another, and that it is part of a good system of justice to hear them out with as much patience and courtesy as possible before dismissing their applications or refusing whatever motion for damages or declarator order they may make. Some people may believe that judges have to do that. However, the problem is that in doing so there is an unfortunate knock-on effect on the court timetable.

The view that has been represented to me is that, in days when the courts, like all public bodies, are under financial constraint and increasing pressure from members of the public and others to provide a good service to litigants, to shorten the waiting time for a final hearing and to resolve cases as quickly as possible, the party litigants are frustrating those objectives to an undesirable extent. They are causing others to incur unavoidable delay.

The amendments have been tabled against that background. It is believed by the noble and learned Lord, Lord McCluskey, and his colleagues that the proposal would be of assistance. In Scotland, as opposed to the practice in England, there is no requirement for leave to be sought in applications for judicial review, nor is there any time limit within which such applications can be brought. The judges believe that measures along the lines proposed, which are designed to provide a screen or sift to enable a single judge to reject at the outset an application which plainly has no reasonable prospect of success, would merit serious consideration. In other parts of court procedure in

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Scotland--for instance, in connection with criminal appeals--there is a sifting procedure which has achieved a reduction in the number of cases going to a court hearing and consequently a speeding up of the cases which proceed.

The judges inform me that they fully accept that the amendments may not be the best or the only way of addressing the problem. I can see a measure of difficulty with the precise detail of what is put forward. However, the issue is raised because it is causing serious concern and I hope that in reply the noble and learned Lord the Lord Advocate will explain the Government's reaction to the amendments. I beg to move.

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