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Access to Justice Bill [H.L.]

8.46 p.m.

House again in Committee on Schedule 5.

[Amendment No. 246 not moved.]

Lord Goodhart moved Amendment No. 247:


Page 63, line 45, leave out ("may") and insert ("shall").

The noble Lord said: Amendment No. 247 and the other amendments in the same group, Amendments Nos. 248, 259, 260 and 277 to 279, require publication of the advice given by the consultative panel and the Director-General of Fair Trading in relation to Parts I, II and IV of the new Schedule 4 to the Courts and Legal Services Act 1990. There is no equivalent provision in relation to Part III because that is covered by Amendment No. 267 which leaves out that part altogether.

The respective roles of the panel and the Director-General of Fair Trading are important and should be transparent. It should therefore, I believe, be a requirement, not just a power, that the advice they have given should be published. I beg to move.

The Lord Chancellor: These amendments provide that the consultative panel and the Director-General of Fair Trading shall, rather than may, publish the advice that they give to the Lord Chancellor under the new Schedule 4 to the Courts and Legal Services Act 1990. I believe that the amendment would make little difference in practice since such advice must be sent to the authorised body concerned and would be made available to anyone else who wanted it. The 1990 Act gave my advisory committee and the director-general a discretion to publish, but the advice is referred to in their respective annual reports and would in practice be available to those wanting to see it. I am, however, happy to accept these amendments. They are Amendments Nos. 247, 248, 259, 260, 277 and 279.

There is an oddity in this series of amendments in that they do not amend Part III of Schedule 4, presumably because noble Lords who tabled the amendments are opposed to the provisions in Part III. Nevertheless, I think that Schedule 4 should be internally consistent and if these amendments are made I shall seek to amend Part III, accordingly, on Report.

Another oddity relates to Amendment No. 278. That amendment would delete lines 42 and 43 already amended by an earlier amendment tabled by noble Lords. It is an odd amendment, not because it contradicts an earlier amendment, but because it refers only to the advice given by the Director-General of Fair Trading and only in relation to the revocation of designation as an authorised body. I trust that that particular amendment will be withdrawn on the basis that I accept all the others in the grouping.

Lord Goodhart: I am most grateful for the concession made by the noble and learned Lord the Lord Chancellor. It is absolutely right that the schedule should be consistent internally and that similar

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amendments should be made to Part III. The fact that my name has been put to Amendment No. 278 is due to the mass of amendments that emerged from, in this case, the Bar Council. I did my best to look through them to make sure that they were correct, but I obviously failed to notice this one. I am entirely happy not to move it.

On Question, amendment agreed to.

[Amendments Nos. 248 to 251 not moved.]

Lord Goodhart moved Amendment No. 252:


Page 65, line 1, leave out ("the applicant applies to him in writing,") and insert ("he refuses the application,").

The noble Lord said: Amendment No. 252 is the first of a series of amendments. I wish also to speak to Amendments Nos. 265, 272 and 286. The first three amendments require reasons to be given by the Lord Chancellor whenever he refuses an application for designation under Part I, refuses application for a change of rules under Part II, or imposes a change in rules under Part III. Under the Bill, reasons have to be given only if requested in writing.

It is, however, important that reasons should be given automatically. A body adversely affected by a decision should be told the reasons immediately so that it can, for example, if necessary, take action by way of application for a judicial review. The general principle is that quasi-judicial decisions should contain reasons. I believe that the Lord Chancellor's powers are, effectively, quasi-judicial. In that case, it is desirable that the Lord Chancellor should observe good practice, which is to publish reasons with a decision, especially where a party may suffer adversely. When an application is being approved there may be no necessity to give a reason.

Amendment No. 286 is in a slightly different position. Under Part IV there is no provision for notice to be given at all to a body whose designation is to be revoked. The amendment requires notice of reasons to be given to the relevant body on request. If it seems appropriate that a reason should be given, at least if requested, and to bring it into line with the other amendments, notice of reason should be given automatically. I beg to move.

The Lord Chancellor: I am happy to agree to the purpose of these amendments in principle. Of course, it is right that reasons should be given for decisions. The existing provisions in the Bill allow for the Lord Chancellor to notify the applicant body of the reasons for his decision (on becoming an authorised body, and altering a rule of conduct or qualification regulation) if the applicant applies to the Lord Chancellor in writing. In the case of the call-in power, the authorised body can likewise obtain the Lord Chancellor's reasons by applying to him in writing.

The first three amendments would make it mandatory for the Lord Chancellor to supply his reasons if the application for designation or a proposed rule change was refused. The last would enable a formerly authorised body to apply for reasons for the making of an Order in Council revoking its designation.

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The amendment will not make any practical difference. In practice, applicant authorised bodies and authorised bodies would always be given reasons when their application was unsuccessful. The same would apply under the call-in procedure. I agree that the reasons for the Lord Chancellor's decision should be made available to the body which it affects. That is what happens now and what would happen under the new provisions with or without the amendment. I do, however, believe that administrative decisions should be supported by stated reasons. I am therefore willing to take the issue away and consider how the Bill can be strengthened in the way proposed. On that basis I invite the noble Lord to withdraw the amendment.

Lord Goodhart: In view of what the noble and learned Lord the Lord Chancellor has just said, I am happy to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 253 not moved.]

Lord Kingsland moved Amendment No. 254:


Page 65, line 15, after ("conduct") insert ("which relates to the grant of a right of audience or a right to conduct litigation").

The noble Lord said: Telegraphically, this amendment is designed to ensure that alterations to rules of conduct only require approval by the Lord Chancellor if they relate to the grant of rights of audience or the right to conduct litigation. The Law Society and the Bar Council are both extremely keen that this amendment is passed. It is important to make clear that the provisions of Schedule 5 are not designed to provide a requirement on the Lord Chancellor to approve changes to rules of conduct generally, but only where the rules apply to rights of audience and rights to conduct litigation. I beg to move.

The Minister of State, Cabinet Office (Lord Falconer of Thoroton): I have sympathy with the intention behind these amendments. The point has been mentioned to me previously. The noble Lord wishes to restrict the statutory approval procedure to qualification regulations and rules of conduct which relate to rights of audience and rights to conduct litigation. So does the Lord Chancellor. The noble Lord also wishes to restrict the Lord Chancellor's call-in power, although it is true to say that in other amendments he would oppose the power altogether, to qualification regulations and rules of conduct which relate to rights of audience and rights to conduct litigation. So does the Lord Chancellor. However, in relation to the call-in power, I should make it clear that the Lord Chancellor would go further than the amendment. He has already said that he will look further at how the call-in power may be restricted, not to rules and regulations related to rights of audience and rights to conduct litigation, but to those which are "unreasonably" restrictive of rights of audience and rights to conduct litigation. This was a point raised by the Select Committee on Delegated Powers and Deregulation and, as I have indicated, the Lord Chancellor is already considering how its concern can be met.

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Perhaps I may turn to the point raised by the amendment: that the provision be restricted to rights-of-audience type rules and not to all rules. Qualification regulations and rules of conduct--the phrase used in the Bill--are already defined in Sections 27 and 28 of the Courts and Legal Services Act 1990 by reference to rights of audience and rights to conduct litigation. The definition in Section 27 of that Act, for example, is as follows:


    "'Rules of conduct', in relation to an authorised body, means rules of conduct (however they may be described) as to the conduct required of members of that body in exercising any right of audience granted by it".
Section 119, the definition section of the 1990 Act, relies on the definitions found in Sections 27 and 28. So only those rules and regulations which relate to the grant or the exercise of a right of audience or a right to conduct litigation are subject to the statutory approval procedure. That is the position now; it will remain the position under the existing--that is, amended--provisions in the Bill.

I do not think that the amendments are sufficiently wide in referring only to the "grant" of a right. That in my view is too restrictive. The Bill, like the 1990 Act, covers not only rules governing the grant of rights but also their exercise.

To sum up, the amendments are unnecessary to meet the point so clearly put by the noble Lord. They do not go far enough in relation to the call-in power. The Lord Chancellor has already indicated that he will seek to deal with that. In any event, even if they were in the target area, they are drafted too restrictively because they do not refer to "exercise". In the circumstances, with the greatest respect, I invite the noble Lord to withdraw the amendment.

9 p.m.

Lord Kingsland: In thanking the noble and learned Lord for his reply, I look forward keenly to seeing the fresh draft that he will no doubt table at Report stage. I counted at least two bonus points in his reply which I gratefully accept. In those circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.


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