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Access to Justice Bill [H.L.]

8.30 p.m.

House again in Committee.

Clause 19 [Restriction of disclosure of information]:

[Amendment No. 198 not moved.]

The Deputy Chairman of Committees (Viscount St. Davids): Before calling Amendment No. 199, I should remind the Committee that, if this Amendment is agreed to, I cannot call Amendment No. 200.

[Amendments Nos. 199 and 200 not moved.]

26 Jan 1999 : Column 952

Lord Goodhart moved Amendment No. 200A:

Page 12, line 19, leave out from ("Commission") to ("furnished") in line 20 and insert--
("( ) Nothing in this section shall permit the disclosure of information which has been").

The noble Lord said: I apologise for tabling this amendment at a late stage; however, the matter was drawn to my attention only yesterday morning by my noble friend Lord Phillips of Sudbury.

The amendment relates to subsection (3)(c) of Clause 19. I assume that subsection (3)(c) was intended as a redraft of Section 38(6) of the Legal Aid Act. Like Clause 19 of the present Bill, that section contains a general restriction on publication of information furnished for the purpose of receiving legal aid or public funding but it permits publication for certain specified purposes.

Section 38(6) of the Legal Aid Act provides that information provided by a client to his lawyer is not to be treated as information provided for the purposes of the Legal Aid Act. That information covers statements made by a client for the purpose of contesting the case which might contain, for example, admissions of offences or misconduct of some kind.

As I understand it, the purpose of Section 38(6) is to preserve legal professional privilege against the disclosure of information of that kind. That is done by taking such information outside the scope of Section 38 altogether. That information therefore remains subject to the normal rules of legal professional privilege and cannot be disclosed even under one of the specified grounds in Section 38(1).

Clause 19(3)(c), however, appears to reverse the position. Clause 19(1) states that certain information shall not be disclosed unless it is authorised by other provisions in that clause. Clause 19(2) contains specific grounds for disclosure. Clause 19(3) then states that Clause 19(1)--namely, the general restriction on disclosure--shall not apply to certain categories of information.

On an examination of subsections (3)(a) and (3)(b) it is obvious that the intention is that the information in those categories should be disclosed. It is,

    "information in the form of a summary or collection of information so framed as not to enable information relating to any individual to be ascertained from it".
So it is obvious that that information is intended to be disclosed. Sub-paragraph (b) refers to,

    "information about the amount of any grant, loan or other payment made to any person or body by the Commission".
Again, one assumes that that information is to be disclosed.

That therefore gives rise to an inference that the information referred to in sub-paragraph (c) should also be disclosed. I do not suppose that that is the intention of that sub-paragraph. However, if that is the case, then the drafting is dangerously ambiguous. Sub-paragraphs (a) and (b) are entirely different from sub-paragraph (c); they authorise the publication of information which was clearly supplied for the purposes of the Act, whereas I assume that sub-paragraph (c) is intended to exclude information by treating it as not supplied for the

26 Jan 1999 : Column 953

purposes of the Act. Therefore, I suggest that the provision needs to be redrafted along the lines of Amendment No. 200A.

If that is not the case, and it is intended that information referred to in sub-paragraph (c) should be disclosed, that clearly opens up a wholly impermissible infringement of the basis of legal professional privilege. I therefore wait with some interest to hear what is the correct position.

The Lord Chancellor: I am grateful to the noble Lord, Lord Goodhart, for that full explanation. I shall express myself rather more shortly, but it was very helpful of him to set out as he did all the reasons for his concerns. I am minded to take these provisions away and consider them further, for reasons that I shall give shortly.

Clause 19(1) prohibits the disclosure of information furnished to the commission except as permitted by subsection (2). Subsection (3) disapplies the prohibition in subsection (1), inter alia Clause 19(2)(c); namely, information that was furnished to a person providing services funded as part of the community legal service or criminal defence service by or on behalf of an individual seeking or receiving such services.

The contrast between the prohibition on disclosure in Clause 19(1) and the disapplication of that prohibition to the information described in subsection (3), which includes the information described in sub-paragraph (c), might suggest that since the disclosure is not prohibited it is permitted.

The purpose, however, is in fact to prevent someone who discloses such information from being liable to a criminal offence under Clause 19(5). It is not, however, intended to cause the disclosure of the information to cease to be a breach of privilege. Thus, Clause 21(1)(a) is intended to preserve privilege in this area.

However, I am certainly persuaded, for the short reasons I have given and for the additional reasons given by the noble Lord, that the relationship between Clause 19(3) and Clause 21(1) may be unsatisfactory. I undertake to draw this debate to the attention of the parliamentary draftsman with a view to his considering whether the provisions as they stand satisfactorily achieve the outcomes intended or whether they would profit from redrafting. On that basis I invite the noble Lord to withdraw his amendment.

Lord Goodhart: I am grateful to the noble and learned Lord the Lord Chancellor for undertaking to take the matter back to the parliamentary draftsman. On that understanding, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 19 agreed to.

Clauses 20 to 22 agreed to.

Schedule 4 agreed to.

Clause 23 [Orders and regulations]:

The Deputy Chairman of Committees: Before calling Amendment No. 201, I should point out to the Committee that, if it is agreed to, I cannot call Amendment No. 202.

[Amendments Nos. 201 to 204 not moved.]

26 Jan 1999 : Column 954

The Lord Chancellor moved Amendment No. 205:

Page 14, line 8, leave out ("11(2)(a), (b)") and insert ("11(2)(b)").

On Question, amendment agreed to.

[Amendment No. 206 not moved.]

[Amendment No. 207 had been withdrawn from the Marshalled List.]

[Amendment No. 208 not moved.]

Clause 23, as amended, agreed to.

Clauses 24 to 26 agreed to.

Clause 27 [Conditional fee agreements]:

Lord Kingsland moved Amendment No. 209:

Page 15, line 15, after ("client") insert ("(including the professional client of a person providing services on a referral basis)").

The noble Lord said: The noble and learned Lord the Lord Chancellor has accused me of being excessively crisp in my interventions on previous occasions. This time I make no excuse for committing the same offence because this is a drafting amendment. It is intended to make clear that a conditional fee arrangement involving a barrister is between the barrister and the professional client instructing him or her and not between the barrister and the lay client.

That interpretation could be read into the words of Clause 27(1) concerning Section 58 (2)(a), but it will not necessarily be so. For that reason I seek clarification from the noble and learned Lord. I beg to move.

8.45 p.m.

The Lord Chancellor: I am grateful to the noble Lord for raising the matter and for his economic expression of the thinking behind the amendment. I am inclined to accept it in principle. It provides a useful clarification of the existing clause. The amendment seeks to put beyond doubt that a conditional fee agreement with a barrister entered into by a solicitor on behalf of his client is a valid conditional fee agreement.

This is sought to be achieved by amending the proposed Section 58(2)(a) of the Courts and Legal Services Act 1990 introduced by Clause 27. The amendment defines client to include the professional client of a person providing services on a referral basis. In practice, the barrister's professional client would be a solicitor.

The amendment is inspired because of the relationship between barristers and clients. Barristers do not, as a general rule, accept instructions directly from members of the public or other bodies. They are instructed by a solicitor as their professional client and members of the public or other bodies are referred to as the lay client. The professional client is technically liable for the fees of the barrister, although he in turn is indemnified by the lay client. The concern, therefore, behind the amendment is

26 Jan 1999 : Column 955

whether the terms of Section 58(2)(a) sufficiently encompass the arrangements where a barrister concludes a conditional fee agreement with a solicitor acting on behalf of a lay client so as to make that agreement lawful and enforceable.

I desire conditional fee agreements to be effective and I would not wish the legislation to be at all ambiguous on the point. The language of the amended Section 58 was intended to encompass agreements made with barristers. I am keen that they should be able to offer their services under conditional fees. As I have said before, I believe conditional fees represent an important avenue to access to justice for those who have been excluded because they cannot afford to pay lawyer's fees if they lose. I would be most concerned if it could be persuasively argued that the legislation did not adequately provide for the arrangements by which barristers are retained and that therefore conditional fee agreements with a barrister were not sanctioned by law. I should like a little time to consider the exact terms of the amendment and to bring back amendments at Report. On that basis, I ask the noble Lord not to press his amendment tonight.

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