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Lord Kingsland: In rising to respond I feel more than usually battle scarred as a result of the intervention of the noble and learned Lord, Lord Simon of Glaisdale. If there were clear evidence that the legal aid budget was out of control, of course I would accept the arguments of the noble and learned Lord the Lord Chancellor, and his position would be entirely consistent with what he said in his speech to the Bar Council in the autumn of 1996. But, in my submission, there is no evidence that the legal aid budget is out of control. It must therefore follow in that context that the decision to switch from an entitlement system to a system of bureaucratic discretion is unjustified.

However, I have been in your Lordships' House long enough to know when a Minister means what he says. The look in the eye of the noble and learned Lord the Lord Chancellor left me in no doubt that he meant what he said. In those circumstances, it would be prudent of me to seek leave to withdraw my amendment.

Amendment, by leave, withdrawn.

Lord Phillips of Sudbury moved Amendment No. 116:

Page 5, leave out line 42.

The noble Lord said: I am moving Amendment No. 116 in the name of the noble Lord, Lord Kingsland, and myself. Clause 9 of the Bill is very important. It requires the commission to prepare a code setting out the criteria according to which it will decide whether or not to fund. The paragraph that we are dealing with here refers to "the conduct of the individual" as being one of those matters in respect of which the commission's criteria must speak.

The problem is that if, as has been said previously, phrases such as "fair and reasonable" are too flexible and uncertain of interpretation, what on earth is one to make of the phrase "the conduct of the individual"? For example, does this mean that the criteria will address the degree to which the public supports or condemns the conduct of the individual applying for legal aid? Would that conduct be in relation to the matter for which legal aid was applied for, or for some previous matter? If the person was very unpopular and had convictions for dire offences against children, would that be a matter that the commission, through its criteria, would have regard to? I suspect not, but the degree of flexibility which this particular paragraph allows the commission seems to be excessive and to encourage indiscretion on its part in drawing up the criteria. It is on those bases that we would prefer to see this part of Clause 9 removed from the Bill. I beg to move.

Lord Hacking: As the noble Lord, Lord Phillips of Sudbury, has so succinctly described, he seeks to remove the criteria of the party's conduct in the provisions under the new funding arrangements. Conduct has always been a factor in considering

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whether to grant a legal aid certificate and, more significantly, whether to withdraw it. For example, persistent failure to attend appointments with the individual's lawyers, persistent failure to give proper instructions to the lawyer, failure to co-operate, and behaving in an abusive way have always been grounds for withdrawing legal aid.

It has never been ground for refusing or withdrawing legal aid that a client's cause is unpopular or that he has behaved in a way which gives offence. For example, the conduct of those disrupting the Easter Sermon of the Archbishop of Canterbury in Canterbury Cathedral last March or April was extremely offensive to some people. I am sure that the noble and learned Lord the Lord Chancellor is not directing attention to the conduct which has caused the individual to be involved in the litigation, be it criminal or civil. After all, murder is pretty awful conduct.

Having said that, I wonder whether the word "conduct" as drafted in the Bill is quite the appropriate word. I wonder whether, in the circumstances, my noble and learned friend would consider a different drafting so that we focus not on the conduct that has caused the individual to be involved in the litigation but the conduct in the course of that litigation.

Lord Phillips of Sudbury: I am obliged to the noble Lord for that suggestion. Amendments along those lines would indeed meet the point I have been trying to make.

Lord Meston: I had assumed that the reference to "conduct" was to deal with those individuals who were perceived to be vexatious and possibly also, in the modern climate, with those individuals who refused to submit themselves to mediation when mediation was available.

I should like to deal with one further point. The Explanatory Notes say, and the noble and learned Lord the Lord Chancellor has repeated, that the prospects of success referred to in the preceding paragraph will not be a relevant factor in cases concerning whether a child should be taken into local authority care. That must be quite right. There are few cases in which one can think of representation being needed more than when a local authority is preparing to take the drastic step of removing a child into care, possibly irrevocably if adoption is considered. There may well be cases where the prospects of success for the individual parent in resisting care proceedings will be relatively slight. Although the Explanatory Notes indicate that the code will not allow that to be a factor in care proceedings, I cannot help wondering whether the conduct of the individual will allow the parent to be denied representation if the conduct of the parent is perceived not to be deserving of representation irrespective of the prospects of success. In other words, those cases in which the prospects of success are not to be taken into consideration will be undermined by the paragraph referring to the conduct of the individual.

Lord Renton: There have been rare cases in which the legally aided person has behaved in a most

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extraordinary way, sometimes starting off by dismissing the solicitor and barrister who were appearing for him and then becoming a litigant in person who wastes the time of the court by extraordinary behaviour. That necessarily would add to the ultimate costs of the case. I think that a person who behaves like that should not be treated in the way that he would normally be treated if as a legally aided person he had behaved properly throughout. I think that the word "conduct" is fairly broad. If noble Lords think that the word "behaviour" is slightly different and would meet the point of the noble Lord, Lord Hacking, we could add "behaviour". But I do not think it is really necessary.

Baroness Crawley: Perhaps I may add one or two points to those already made. I understand the concern of the noble Lord, Lord Phillips of Sudbury, about the word "conduct", but in that concern I think that if he continues with his amendment he will close down the opportunity of being able to cut off the facility of public funding from people who, as the noble Lord, Lord Renton, has said, may behave extraordinarily badly and be impossible as applicants to deal with. The noble Lord must have met one or two of my constituents over the years.

6.45 p.m.

The Lord Chancellor: The noble Lord, Lord Phillips of Sudbury, conjured up the spectre that the politically or socially unpopular might be denied legal aid because of who they are by contrast with the merits of the case that they desired to bring forward. That is no part of the Government's intention. It is only the applicant's case--the quality of his case--and his financial eligibility that matter as to whether he should receive help. His character and who he is do not count.

However, as the noble Lord, Lord Hacking, made perfectly plain, there are circumstances where the applicant's conduct can matter, if not when applying for help then certainly once it has been given. The noble Lord, Lord Hacking, gave good examples. The board can remove someone's certificate for reasons of conduct--for failing to attend interviews or failing to provide material information about the case. It is always open to a solicitor to decline instructions, to refuse to continue to act, if the solicitor believes that the solicitor-client relationship has broken down because the client is being persistently abusive or, for example, is wilfully declining to give proper instructions so as to put the solicitor in an impossible position.

Clause 9(2)(f) simply preserves for the legal services commission powers that are already there. I can assure the Committee that these powers would be used very sparingly. But it is important to retain a power to take people's help away from them if their conduct warrants it, as the board can now do. For example, I am sure the Committee would agree that people who have been demonstrably untruthful to the commission about material facts--I see the noble Lord, Lord Renton, nodding his assent--should not be able to take up funds that other more honest people could better use. But I can assure the Committee that the commission will monitor refusals and removals of legal aid as part of the contract monitoring process.

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Having said that, I appreciate, as the noble Lord, Lord Hacking, indicated, that the word "conduct", particularly perhaps in relation to the grant of legal aid, is somewhat stark and conjures up the image of people being refused help for reasons quite unconnected with their applications, although I can assure the Committee that that is no part of our intention. I undertake to consider our deliberations and take this amendment away and consider how best to ensure that the commission has the powers that I have described and how best to obviate any risk, although I do not think it is a very real risk, of these powers being carried beyond their proper sphere. On that basis, I invite the noble Lord to withdraw his amendment.

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