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The Lord Chancellor: I accept that some intended uses of the power to make directions are sufficiently important to be subject to a requirement for affirmative resolution--for example, directions under Clause 9(2)(h). Those enable me to establish new factors to which the legal services commission must have regard in setting the criteria in the funding code. My noble and learned friend Lord Archer of Sandwell recognised that I would also use that direction-making power for administrative or operational matters such as the form of accounts. As the delegated powers committee itself recognised, that type of direction does not require any form of parliamentary procedure. I intend on Report to bring forward detailed proposals clearly distinguishing the future uses of that power and providing for approval procedures with which I hope your Lordships can agree.
As to the funding code, the Select Committee recommends that it be laid before Parliament in draft and brought into force by an order subject to affirmative procedure. The Bill already provides that the code should be laid before the House but I am sympathetic to the Committee's view that the code is sufficiently significant to be subject to affirmative procedure. The Legal Aid Board has brought out a consultation document on the content of the code, which will provide ample opportunities for your Lordships and those outside to consider its substance. Noble Lords who have studied the code will have observed that it will be a complex and lengthy document and one that will, I am sure, have to be amended--perhaps quite often, in its early days. While I accept that certainly the first draft should be affirmed by affirmative procedure, I wish to consider carefully how we can achieve proper scrutiny of those parts of the code that are significant without wasting the time of the House on those parts that are not significant. Again, I shall bring forward proposals on Report.
The Select Committee said that Parliament would wish to be confident that the Bill will ensure that the right under Article 6(3)(c) of the European Convention on Human Rights will be guaranteed. That is the right of a person charged with a criminal offence who does not have sufficient means to pay for legal assistance to be given it free in the interests of justice, where so required. That right is already guaranteed by the Legal Aid Act 1988. All the powers governing the criminal defence service will be constrained by that article. I do not believe that a specific criterion to guarantee the convention rights is necessary or appropriate but I will seek to ensure that the substance of those convention rights is reflected in the statutory statement of purpose for the criminal defence service that I will bring forward.
The Select Committee recommends also that the powers under Schedule 5(17) and (24), which are concerned with the alteration of regulations and rules by order, should be circumscribed--allowing minor intervention if and only if I am of the opinion that the regulations of the profession unreasonably restrict rights of audience or rights to conduct litigation. I am content to accept that recommendation in principle and note that my noble and learned friend, Lord Archer of Sandwell, already has an amendment down on those lines. When we consider Schedule 5, I intend to indicate the Government's view on the precise form of words.
The noble and learned Lord, Lord Lloyd of Berwick, drew attention to the Select Committee's recommendation that the legislation should specifically include the principle enunciated by the Lord Chief Justice that a strong, independent and self-regulating legal profession should be preserved. I believe profoundly in the necessity to maintain a strong and independent legal profession that is self-regulating, which is precisely why the Government have included Clause 36--to establish the principle that all advocates and litigators should be independent in the exercise of their professional duties. The spirit of that principle is therefore already met. Nonetheless, I am looking again at Clause 36 to see whether it could
be strengthened to emphasise the principle of independence. I am also considering the constructive proposal of the noble and learned Lord, Lord Ackner, on lawyers in the criminal defence service.On a point of detail, the Select Committee suggested that the powers in Schedule 5(17) should be amended, so that directions will be subject to affirmative procedure. Directions under Schedule 5(24), which is the important provision in Part III, are in fact subject to affirmative procedure. Schedule 6(11)(2) makes that clear.
I accept also the Select Committee's recommendation that Schedule 3(6)(3), under which I may add to or vary any of the factors relevant to the interests of justice test in the context of criminal legal aid, and the powers in Clauses 68 and 72 concerning immunity from costs for certain officers should be subject to affirmative resolution.
I hope that your Lordships forgive me for speaking to the first group of amendments at such length at the outset of our deliberations in Committee, but I do so to demonstrate the spirit in which the Government approach and will continue to approach the issues in the Bill. In almost 12 years in the House, I have spent too long--from one point of view, the noble and learned Lord, Lord Kingsland, may not agree--listening from the Benches opposite to government spokesmen who were obdurately insistent on adhering to their briefs and were unwilling to accept manifest improvements to Bills under consideration. That approach is destructive of the raison d'etre of a revising Chamber. I hope that I have said enough to satisfy your Lordships that that is and will be the opposite of my approach, as I intend to demonstrate to your Lordships as we proceed through the Committee stage. On that basis, I invite the noble Lords in whose names the first group of amendments stand to withdraw them.
Lord Renton: The Lord Chancellor did not have to apologise for the length of his speech, but I much regret, as I am sure do other noble and learned Lords, that the fundamental amendments that the Lord Chancellor has indicated he proposes will not be tabled until Report stage. We are here dealing with the essential principles on which the Bill is based--and to reach conclusions in Committee without knowing clearly and in considerable detail what those amendments will be is a great handicap. It may well be that the amendments that the noble and learned Lord would have tabled for Committee stage would have been dealt with today, but there are many which would be tabled on a later occasion. Will he therefore consider tabling as many as possible of the amendments he proposes to table at Report stage in time to bring them into Committee stage?
4 p.m.
Viscount Bledisloe: While listening to the noble and learned Lord I was moved in exactly the same direction as the noble Lord, Lord Renton. I am sure the Committee welcomes the almost "Pauline" conversion of the noble and learned Lord both to the principle that
the Bill should express its purpose and to the need for affirmative resolutions. However, it will be extremely difficult for the Committee to proceed to consider detailed amendments until we know what form they will take.I am sure that in the days when the noble and learned Lord was at the Bar conducting litigation, if counsel on the other side had stood up at an early stage of the proceedings and announced an intention to make at some later stage amendments of such a radical nature as he outlined to us, he would immediately have been up on his feet saying that in that case the entire matter had to be adjourned until those amendments had been formulated. It is virtually impossible to consider detailed amendments until we see them. Therefore should not the noble and learned Lord postpone the remainder of the Committee stage until they have been formulated?
Lord Goodhart: I warmly welcome the concessions made by the Lord Chancellor which do a great deal to remove the objectionable parts of the Bill. But timing is important. I certainly would not support a proposal that the Committee stage be adjourned or delayed for that purpose. It would be immensely helpful if the amendments could be circulated and made available well before Report stage, first, so that we have a proper opportunity to consider them and, secondly, if any noble Lord wishes to table amendments to the proposed new amendments, those can be dealt with at Report stage and will not need to be held over to Third Reading, which would be extremely inconvenient.
The Lord Chancellor: I cannot win! The Committee must bear in mind that we are discussing purpose or scrutiny clauses. While I indicated that I was not minded to chide too strongly, perhaps I may say that of the large number of amendments of substance with which we will be dealing in this Committee stage, a large number were tabled for the first time on Wednesday and Thursday and printed on Thursday and Friday. They had to be dealt with therefore over the weekend. A whole raft of amendments--around 150--were tabled on Friday. They were not printed until Monday and we are dealing with them today. Furthermore, 50 were tabled yesterday, were only printed today and we are dealing with them now. That is no way for a revising Chamber to be treated by those who table amendments.
In relation to these purpose and scrutiny clauses, I shall certainly publish them as soon as I possibly can--I hope before Report stage. But I would be surprised if I were unable to give more notice of them than we were given of any of the amendments that we will be considering today.
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