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Lord Clinton-Davis: I support the amendment. In so doing, I recognise the need for flexibility which my noble and learned friend the Lord Chancellor pointed out on Second Reading. Of course, that is essential. I support the overall purposes of the Bill and I agree with the comments of my noble and learned friend Lord Archer of Sandwell. However, I believe that the comments made by the Delegated Powers and Deregulation Committee are very important indeed. Moreover, I cannot see how they are inconsistent or incompatible with the principles outlined by my noble and learned friend the Lord Chancellor in his Second
Reading speech. I believe that they reinforce those principles, but they need to be set out on the face of the Bill.It is worth noting that, naturally enough, in the White Paper my noble and learned friend sought to outline the objectives underlying the Bill. Why, then, should they not be set out in brief form on the face of the Bill, as the amendment seeks? I hope that my noble and learned friend does not have on his brief the word "Resist", or that if he does it is not too heavily underlined. If it does exist, I hope that he will exercise the discretion, which is so characteristic in him, of ignoring it.
It is extremely important that notable people such as the Lord Chief Justice and others to whom reference has been made are seriously concerned that the objectives should be stated. I believe that, too. Such a measure will be of benefit to the Government because it will help to maximise as much as possible support for the underlying purposes of the Bill among consumers and those in the legal profession who are to some degree exercised about it. It will help to demonstrate the Government's bona fides in this respect and therefore it is to be welcomed.
I am sure that my noble and learned friend will seek to answer the points which were made by the Select Committee. They are important and those arguments have to be fully respected. I hope that he will be flexible in considering the amendment, as he is in seeking the extensive powers which he believes are necessary for the good administration of the Bill when it becomes law.
Lord Ackner: I support the amendment, particularly as it reflects what my noble and learned friend the Lord Chief Justice described as fundamental principles which should be on the face of the Bill. However, there is one fundamental principle to which he referred on Second Reading which is not to be found in the new clause and I respectfully asked that it should be considered for inclusion. The fundamental principle reads:
- "that rights of audience should be exercised only by those who possess the required knowledge, skill and integrity, and who are subject to a common code of conduct and discipline".-- [Official Report, 14/12/98; col. 1126.]
Lord Kingsland: The noble and learned Lord the Lord Chancellor will have recognised that support for this amendment has come from all parts of your Lordships' House. The arguments from both noble Lords and noble and learned Lords have been cogently expressed and, I think now, well rehearsed.
The crucial change which this Bill makes is that individuals who hitherto were entitled to legal aid, if they fulfilled certain requirements, will now obtain it only according to a discretion exercised by the legal services commission. The terms upon which that discretion will be exercised will be established by directions from the noble and learned Lord the Lord Chancellor.
At the moment there is in this Bill nothing to constrain those directions. A purpose clause along the lines suggested by the noble and learned Lord, Lord Lloyd of Berwick, would change that. In my submission, it is therefore crucial that this Committee should support the amendment.
Baroness Scotland of Asthal: I rise to join the many voices in this Committee which have welcomed the amendment. My noble and learned friend the Lord Chancellor has a long and well established reputation for giving just and proper consideration to informed debate. We have certainly had a taste of that today.
I am confident that the Government will reflect upon what has been said in that regard by a number of Members of the Committee. Change always generates anxieties, and clarity of understanding of the basis for such change is of considerable importance. The issues raised in the amendment are at one with the ethos of this Bill, based as it is upon the need for fairness and just and equal access to justice. The preservation of a strong and independent legal profession is an essential part of the means by which such a fair system of justice can be preserved.
I hope that the Government will give good and due consideration to this amendment, which has received such wholehearted support from so many who are totally committed to the Bill and to the purpose which it is trying to achieve.
3.45 p.m.
The Lord Chancellor: With Amendment No. 1 are grouped Amendments Nos. 2, 41, 197 and 203. If it is for the convenience of the Committee, I shall speak to all those amendments and to the general issues to which they give rise.
The amendments all aim to establish principles which would apply to Part I and so set down in statute the objectives for the community legal service and the criminal defence service, or for the community legal service alone in the case of the amendment tabled by my noble and learned friend Lord Archer of Sandwell.
The establishment of principles was one of the main recommendations of the fifth report of the Select Committee on Delegated Powers and Deregulation. I shall say a few words about that committee's report as well as addressing the amendments which this Committee is now considering.
At the outset of our detailed discussions on the Bill, it is important for me to inform the Committee of the position of principle which the Government intend to adopt. I welcome the Select Committee's report. I support the values which it reflects. In particular, I support the principle underlying the committee's recommendations that powers, if I may express myself generally, of an administrative character do not require parliamentary scrutiny. But those which deal with matters of principle and substance and which are of a major
legislative character should be subject to parliamentary procedures appropriate to their importance. Therefore, I have examined carefully the report's recommendations.The first recommendation of the Select Committee concerns Clause 4. The recommendation is that,
- "the Bill should be amended so as to contain (a) a clear statement of principle that the objective of the Community Legal Service is to promote and enhance the opportunities for citizens to have access to legal advice and the opportunity to resolve disputes, and (b) the criteria which the Lord Chancellor is entitled to take into account in giving directions".
We are also considering whether more should be added to the purpose of the criminal defence service, set out in Clause 12(1), and whether it would also be helpful to adopt a similar approach by setting out the purpose of the clauses covering rights of audience and rights to conduct litigation. It follows that I am sympathetic to the broad purpose of the amendments now before us.
Perhaps I may chide gently by saying that these amendments were tabled extremely recently. I need time to consider how those ideas may be best expressed and fitted into the structure of the Bill and what other criteria relevant to the operation of the two schemes in Part I should be reflected in that context. Unsurprisingly, I do not accept the precise formulations which are now before the Committee.
I give some illustrations. I cannot accept that access to legal services should be enjoyed without any discrimination if that were to preclude, for example, distinctions based on the comparative strengths of cases. But of course I can readily accept the principle that access should be enjoyed without discrimination on, for example, grounds of race, gender or disability.
Similarly, it may be that my noble and learned friend Lord Archer of Sandwell did not intend his amendment to bear this meaning. However, the amendment is not acceptable as it stands because subsection (1)(b), to my mind, has a tendency to imply that the community legal service should in every case compel the individual concerned to attempt alternative dispute resolution prior to court or tribunal proceedings; only if that fails could he take his dispute to a court or tribunal. That would not be a step which we should wish to take. The Government are seeking to improve the options available to people for resolving disputes without having to take them to court.
Lord Archer of Sandwell: Perhaps my noble and learned friend will give way. I am grateful to him. That subsection was taken from a suggestion by the noble and learned Lord the Lord Chief Justice, but I accept that my paraphrasing of it leaves something to be desired. I certainly should not wish to press it at this stage.
The Lord Chancellor: I am very grateful. In the form in which it appears in the amendment tabled by my noble and learned friend, it has a tendency to bear that meaning.
Also, I must be frank with the Committee. I doubt whether the proposed subsection (2)(d) of the amendment in the name of the noble and learned Lord, Lord Lloyd of Berwick, which would make one of the principles governing the community legal service and the criminal defence service the preservation of a strong, independent and self-regulating legal profession, would find favour as an objective of this Bill, however worthy those ambitions are. I certainly strongly support an independent legal profession.
Resources for the community legal service will always be limited and it is my ambition that they should be used to maximise access to justice. If the legal services commission and the Lord Chancellor were constrained to consider whether any proposals will maintain the current strength of the legal profession, which I take to mean its size and income, we should not be able to develop new services which do not depend on the existing profession. I must say on the Government's behalf that it is not their purpose to guarantee or promote any particular size or economic structures for the legal profession.
That said, however, I intend to bring forward further amendments on Report to define statements of purpose for the CLS and the CDS for your Lordships' consideration. On that basis, I ask the noble Lords and the noble and learned Lord in whose name the amendment stands to withdraw it.
However, it may be for the assistance of the Committee if I do not stop there but go further to make clear the Government's principled position on those central issues so that that can inform the rest of our discussions in Committee.
The Select Committee made other recommendations about Clause 4 directions and Clause 9, which covers the funding code for the community legal service. Clause 4 gives me the power to give directions to the legal services commission about the exercise of its functions. That power could be used in a number of ways, some of which are elaborated in other clauses. I believe on reflection that it would be helpful to set out on the face of the Bill the kinds of direction that we have in mind and that, where appropriate, they should be made by order, subject to parliamentary approval.
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