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Lord Archer of Sandwell: My Lords, before my noble and learned friend leaves that first point, I am sure he would not wish to misrepresent my noble friend Lord Clinton-Davis who said he was not concerned that the interests of the legal profession should be represented but that the expertise derived from that practice should be represented. Does my noble and learned friend agree that if one is selecting the England football team it might be wise to provide that there should be at least one person on the committee who plays football?

Lord Clinton-Davis: Certainly after last night!

4.30 p.m.

The Lord Chancellor: My Lords, I can easily distinguish intellectually between the expertise which solicitors would bring and the interests that they might serve, but many members of the public might regard that as a rather nice distinction.

The categories of expertise which are set out in subsection (5) are designed to ensure that the commission is informed about the nature of the services that will be provided under the community legal service and the criminal defence service; the interplay between the provision of services and the work of the courts; the social environment in which it will be providing legal services; and good management practice.

The Legal Aid Act 1988 requires the appointment of two solicitors to the Legal Aid Board, and points to the desirability of also appointing two barristers. But this is 1999. Times have moved on. The role of the legal services commission will be quite different from that of the Legal Aid Board. It therefore calls for a different composition. The lack of a requirement for a specified number of lawyers among the members of the commission reflects the shift in focus from the needs of providers of legal services towards the needs of users.

The Bill is drafted so as to secure that appointments to the legal services commission are appropriate to the functions of the commission. However, I can reassure my noble and learned friend Lord Archer of Sandwell that lawyer membership on the commission is by no mean precluded. Indeed, it is envisaged that he commission will include members who represent both providers and consumers of the services the commission will provide. Paragraph (a) specifically points to the desirability of including on the commission members

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with experience in or knowledge of the provision of services which the commission can fund. I would envisage that solicitors and barristers might well fall into that category, as indeed, equally, might advisors from the voluntary sector. I shall turn to the question of representation on the commission of someone with special knowledge of consumer affairs in a moment.

As I made clear in response to similar amendments in Committee, the Government intend that all appointments to the legal services commission will be made in accordance with the Nolan Committee's recommendations on public appointments and the Office for the Commissioner of Public Appointments' Guidance on Appointments to Executive Non-Departmental Public Bodies and NHS Bodies. There will therefore be an opportunity for professional and consumer bodies to nominate candidates for appointment, and we hope they will do so. But to require consultation with a broad range of bodies on the merits of proposed appointments prior to the appointment being made would be time consuming, costly and unnecessary and--indeed, I go further--likely to discourage applicants. On that basis, I invite the noble Lords to withdraw their amendments.

The first government amendment in this group is a drafting amendment, intended to clarify that the members of the legal services commission should include persons who, between them, have experience in, or knowledge of, the various matters specified in Clause 1(5). The second government amendment adds "consumer affairs" to the categories of experience and knowledge already set out in Clause 1(5)(a) to (d).

The first government amendment addresses a point raised in Committee by the noble and learned Lord, Lord Simon of Glaisdale. He was concerned that the current drafting of Clause 1(5) might imply that the Commission should include an individual having experience in or knowledge of all of the categories specified. I undertook to refer this point to the draftsman, and I think that the amendment now before your Lordships makes the position clear beyond doubt. I am pleased to see the noble and learned Lord nodding his head in agreement. I am grateful to the noble and learned Lord for bringing this matter to the attention of the House.

The second government amendment is in response to an amendment moved in Committee by the noble Baroness, Lady Wilcox. She put forward forceful arguments for making clear on the face of the Bill the desirability of including on the legal services commission a person with knowledge or experience of consumer affairs. Her arguments were widely supported around the House, including from these Benches. As I have said, the Government firmly intend that the focus of the legal services commission should be on the needs of users, rather than providers, of the legal services to be provided by the community legal service and the criminal defence service. It has always been our intention to reflect the interests of consumers in the membership of the commission, and for that reason we have accepted that this intention should appear on the face of the Bill.

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Lord Clinton-Davis: My Lords, I do not think that there is too much between my noble and learned friend and myself. However, I think there is a grotesque misunderstanding on the part of my noble friend Baroness Thornton, who cannot recognise a situation where people come forward to serve on certain bodies like this without having any powers imposed on them or provided for them by the professional bodies to which they belong. Indeed, I do not know how she views any lawyers who might be appointed by my noble and learned friend in that regard. Would they have a prior duty to the Bar Council or the Law Society? There is no distinction about that. People play a distinguished part in committees of this kind without being delegates. I have sufficient experience of that situation, particularly in the field of aviation.

When my noble and learned friend says that there will be too many people to consult, with respect, I do not think that is right. I certainly do not think that this is a fundamental difference between us--it can be done and it should be done. I said before that the Nolan principles would apply in a fair competition. That is a duty laid on my noble and learned friend in any event. But when he says that the provision requiring consultation with professional bodies would have the effect of impairing people from coming forward from professional bodies, I really cannot accept that at all. For my purposes, I think that it would help the Government to ensure that the best qualified people come forward. It is not to embarrass the Government or to impair the choice of candidates coming forward at all. However, having said that, I certainly do not intend to press the matter to a Division. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 3 not moved.]

The Lord Chancellor moved Amendment No. 4:

Page 2, line 6, leave out ("persons with") and insert ("members who (between them) have").

On Question, amendment agreed to.

The Lord Chancellor moved Amendment No. 5:

Page 2, line 9, at end insert--
("( ) consumer affairs,").

On Question, amendment agreed to.

Schedule 1 [The Legal Services Commission]:

Lord Simon of Glaisdale: My Lords, before my noble and learned friend rises to move this amendment, may I point out that it is grouped with a great number of other amendments, one of which, Amendment No. 26, stands in my name and raises a quite different and separate issue. It has been inconveniently grouped. It is my fault; I failed to attend the grouping conference.

It seems to me that the amendment goes also with Amendment No. 27, which is in the name of my noble and learned friend the Lord Chancellor, and probably also with Amendment No. 28, which I greatly welcome. My intervention is merely to indicate that I shall be moving Amendment No. 26 separately.

The Lord Chancellor: My Lords, that is the privilege of the noble and learned Lord in due time. At

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the appropriate point in the course of my speech on all the amendments in the next grouping, I shall endeavour to deal, I hope to the noble and learned Lord's satisfaction, with Amendment No. 26.

The Lord Chancellor moved Amendment No. 6:

Page 51, line 32, leave out ("direct") and insert ("require").

The noble and learned Lord said: My Lords, this is a very substantial group of amendments. I propose, with your Lordships' leave, to speak to all the amendments in the group. They are Amendments Nos. 6 to 12, 14, 18, 22, 26 to 32, 35, 39, 41, 42, 46, 54, 55, 72, 76, 77, 86, 96, 99, 132, 133, 136, 137, 138, 190 and 191. I am not in the least surprised, after putting forward the grouping, that the noble and learned Lord, Lord Simon of Glaisdale, was in a little bit of a muddle as regards finding his Amendment No. 26.

In Committee I undertook to bring forward amendments with a view to giving effect to the recommendations of the Select Committee on Delegated Powers and Deregulation. The government amendments in this group redeem that undertaking. The group also includes amendments tabled by other noble Lords. I have already referred to Amendments Nos. 26 and 41. Taken together, these amendments define the broad purpose of the community legal service and of the criminal defence service separately. Having regard to our earlier discussions on Amendment No. 1, I would say at the outset that focused purposes for these distinct services with their distinct objectives are better, more precise and more helpful than broad general purposes at the outset of the Bill as a whole.

The amendments also set out on the face of the Bill the kinds of directions that the Lord Chancellor may give to the legal services commission and, where appropriate, subject those directions and the commissioners' funding code to parliamentary approval. In working out the detail of these changes, I have tried to strike the right balance between parliamentary scrutiny and administrative flexibility.

During our discussion in Committee I said, in welcoming the Select Committee's report:

    "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".--[Official Report, 19/1/99; cols. 483-84.]
That is an important principle, but it is also important to avoid an excessive degree of scrutiny. That is not only wasteful of parliamentary time that could better be spent on other issues, but it also builds an element of inflexibility into the administration of the scheme in question, which can prevent or delay desirable improvements.

During the Committee stage several of your Lordships, in particular the noble and learned Lord, Lord Simon of Glaisdale, chided me about my use of the word "flexibility". I make no apology for using that word. Legal aid is a complex system which has to operate across the country where there is a fractured and

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geographically uneven range of legal services available. To rationalise and to meet geographically distinct needs calls for flexibility, not rigidity. The community legal service opens up the scheme to non-lawyer providers and will involve new methods for procuring services.

The legal services commission will therefore have substantial discretion to develop and administer the community legal service and the criminal defence service in the way it thinks best. That makes it particularly important to ensure that the commission is sufficiently independent of government. I very much agree with what my noble and learned friend Lord Archer of Sandwell said in Committee, that the legal services commission should have not just a separate legal identity but also a personality and ideas of its own. But again there is a balance to be struck. An independent body should not be able to spend substantial sums of public money virtually untrammelled by the need to have regard to the policies and priorities of the government of the day, not least because it is ultimately Ministers who must answer to Parliament for the use to which that public money is put.

I hope that your Lordships will consider my detailed proposals against this background and feel able to agree that they strike the right balance between prescription and flexibility and independence and control.

I now turn to the amendments. I shall deal, first, with those that relate to the objectives of the two new schemes. I reserve for later discussion the purpose of Part III of the Bill. Amendment No. 29 contains the purpose clause for the community legal service. As amended, Clause 5(1) would read:

    "The Commission shall establish, maintain and develop a service known as the Community Legal Service for the purpose of promoting the availability to individuals of services of the descriptions specified in subsection (1A) and, in particular, for securing (within the resources made available, and priorities set, in accordance with this Part) that individuals have access to services of a type and quality appropriate to meet their needs".
Clause 5(1A) would then list the broad range of services that fell within the scope of the community legal service, as currently listed in Clause 5(1)(a) to (e).

The amended clause establishes, first, that the overall purpose of the community legal service is to improve the availability to the public of legal services in the widest sense of that term. The structure of the clause is designed to reflect the fact that the legal services commission will play two key roles in developing the community legal service. First, it will take the lead in developing the wider community legal service by co-ordinating the efforts of various bodies which fund services to identify need and priorities, to plan the provision of funding and to assure quality.

The second part of the clause, from the words "in particular", focuses on the commission's second role of funding services directly. The words chosen are intended to encapsulate the essence of the new scheme, which is to seek to use a given amount of money to the best possible effect. I welcome the fact that in our debates at earlier stages few if any of your Lordships sought seriously to question the iron fact of life that the resources available for this purpose are limited. It follows that the scheme must be capable of identifying

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and targeting priorities and pursuing value for money and that the services provided should be sufficient but not excessive to meet the need effectively. The drafting is also intended to reflect that a necessary component in seeking the best overall outcome with limited resources is to strike a balance between access in the sense of geographic coverage, quality, choice and price.

Amendment No. 86 would amend the purpose of the criminal defence service in Clause 12(1) to read:

    "The commission shall establish, maintain and develop a service known as the Criminal Defence Service for the purpose of securing that individuals involved in criminal investigations or criminal proceedings have access to such advice, assistance and representation as the interests of justice require".
This makes it clear that we intend the criminal defence service to provide substantially more than is required by our obligations under the European Convention on Human Rights. The convention, by Article 6(3)(a), requires that legal assistance is provided free of charge to people charged with a criminal offence who cannot afford to pay for it themselves, when the interests of justice require it.

The criminal defence service will also encompass the provision of advice and assistance to suspects arrested by the police and in such other circumstances as may be prescribed in Clause 13(1)(b). We intend to prescribe all the relevant circumstances for which legally-aided advice and assistance is available now; including, for example, people voluntarily helping the police with their enquiries. The amended purpose would make the provision of advice and assistance in these circumstances subject to the same interests of justice principle that the European Convention applies to representation at court.

The effect of the amended clause will be that the commission must have regard to the interests of justice in all its decisions and actions in relation to the criminal defence service. This would include, for example, its decisions about the form and nature of the advice and assistance it should fund under Clause 13(1) and its actions in pursuit of value for money under Clause 17(3).

The noble and learned Lord, Lord Ackner, drew particular attention to these two clauses in Committee, but I would assure him that, given Amendment No. 86, it is neither necessary nor desirable to refer specifically to the interests of justice in these clauses. To do so there alone might throw doubt on whether the interests of justice were equally relevant in other places. The alternative would be to attach these words to virtually every proposition in Clauses 12 to 17. I feel sure that the noble and learned Lord, Lord Simon of Glaisdale, would not welcome that approach, and I imagine also that the noble and learned Lord, Lord Ackner, will be content. I rather feel that if he were not content he would be in his place, and he is not.

The overall effect of the two-purpose clauses is to constrain the actions of the legal services commission to those which are consistent with the purpose of the community legal service or the criminal defence service as the case may be. This applies equally to actions that

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the commission takes on its own initiative and any actions which the Lord Chancellor may direct it to take. That is why the draftsman has not found it necessary to state specifically that directions must be consistent with the purpose of the relevant scheme.

I now turn to the amendments relating to the Lord Chancellor's powers to direct the commission. As it stands, Clause 4 empowers the Lord Chancellor to give directions and guidance to the commission about any matter relating to the discharge of its functions, other than in relation to an individual case. Amendment No. 28 strikes out Clause 4 and Amendment No. 132 reinstates it at a different point in relation to guidance. Several other amendments in my name then seek to specify the Lord Chancellor's powers to require the commission to act (or refrain from acting) in a particular way, either in the form of directions or in the form of orders subject to Parliamentary approval. Amendment No. 136 makes the directions subject to the same limitations as before: that is, they may not relate to individual cases, and they must be published.

The Lord Chancellor's powers to direct or order the commission remain wide-ranging, and necessarily so. But there is no longer an all-embracing catch-all power: the Lord Chancellor may not make directions about matters which are not specified on the face of the Bill. The powers as redefined in these amendments fall into four broad categories. First, there are powers to direct the commission about purely administrative matters, such as the form of its accounts. These powers relate mainly to issues of transparency and accountability: it is not intended that the Lord Chancellor should interfere in the internal management of the commission.

As it stands, Schedule 1 to the Bill already refers specifically to three powers in this category: in paragraphs 9(4), 15(4) and 16(2). Amendments Nos. 11, 14 and 18 complete the picture by specifying three further powers relating to the commission's committees and the contents of its annual plan and report. I emphasise that the latter powers enable the Lord Chancellor to direct the commission to deal with additional matters in the plan or report: he cannot require them to leave things out. The Delegated Powers and Deregulation Committee accepted that administrative directions of this kind did not require parliamentary scrutiny.

My second category consists of directions about priorities for funding services from the community legal services fund. These powers will enable the Lord Chancellor, each year, to set the broad framework of national priorities within which the commission is to draw up its plans. Clause 7(1) allows the Lord Chancellor to set priorities in general terms; Clause 6(4) allows him to specify how much within the overall fund should be spent on particular categories of service or case; and Clause 7(7) allows him to identify unusual circumstances in which funding should be available in generally excluded categories. As I indicated in Committee, I do not believe it appropriate for decisions about the detailed allocation of money already voted by

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Parliament to be subject to a further round of parliamentary approval; least of all, if I may say so, in your Lordships' House. As I said then:

    "The accountability for those matters is already adequately provided through general ministerial accountability to Parliament and, in my view, that is not appropriate for secondary legislation."--[Official Report, 19/1/99; col. 518.]
I would add that directions under Clause 7(7), by which the Lord Chancellor may extend (but not reduce) scope, may often be urgent. For those reasons I believe it remains appropriate to deal with these matters in directions rather than orders. Amendment No. 41, standing in the names of the noble Lords, Lord Goodhart and Lord Thomas of Gresford, takes the opposite approach. On the basis of the explanation I have given, I ask them to consider not moving it.

Amendment No. 55 extends the scope of the power provided by Clause 7(7). It would allow the Lord Chancellor to authorise, but not require, the commission to fund an exceptional individual case in a category generally excluded from scope by Schedule 2. The amendment makes clear that the initiative would lie with the commission, which could seek the Lord Chancellor's authority when an exceptional case presented itself. This amendment is intended to ensure that provision can be made in wholly exceptional circumstances, while preserving the important principle that the Executive should not be able to interfere in individual cases.

My third category consists of directions about how the commission should, or should not, carry out its principal functions--that is to say, identifying need and planning provision to meet that need; kitemarking providers who meet quality standards; and procuring services through contracts or other means. Amendments Nos. 27, 35, 46, 96, 99 and 105 provide for orders, subject to the negative resolution procedure, about how the commission should carry out these functions. The last of these, Amendment No. 105, is not included in this group because it also deals with other issues which it will be more convenient to discuss later.

Generally, our intention is that the commission should be left to decide the best way to carry out its functions. These are, for the most part, in the nature of reserve powers for the Lord Chancellor. In practice, they may be rarely used. But it is possible to envisage a range of situations in which powers of this kind would potentially be useful or necessary. For example, when the commission is first set up it may be useful to make an order requiring it to develop its kitemarking function in a way that builds on the work that will already have been undertaken with other funders of services to develop common quality criteria. Or the Lord Chancellor may wish to order the commission to begin to pilot and develop contracts of a particular type. Similarly, the commission may wish, essentially for reasons of administrative convenience, always to incorporate the cost of advocacy within contracts with solicitors' firms, but the Lord Chancellor may think that, in some circumstances, this carries too great a risk of diminishing the quality of advocacy available and may order the commission to contract directly with

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barristers' chambers or other groupings of barristers. Or, again, the Lord Chancellor may use the power to limit the proportion of services in a given category that the commission can provide through its own employees.

The uses to which these powers could be put are potentially very wide. In practice, however, they would be used from time to time to promote relatively uncontroversial but useful developments in the ways in which the commission undertakes its functions. I believe that the negative procedure provides sufficient scrutiny of this kind of order whereas, because of the constraints on parliamentary time, the affirmative procedure might hold up useful change.

I pause briefly at this point to claim the attention of the noble and learned Lord, Lord Simon of Glaisdale, regarding Amendment No. 26 standing in his name. It seeks to amend Clause 3(4) concerning delegation of the commission's functions. I am sure that the noble and learned Lord intends to argue that it is an unnecessary statement of the obvious. I invite his attention to my Amendment No. 27 which also amends Clause 3(4) and seeks to make it clearer not only that the commission may delegate its functions, but also that the Lord Chancellor may make orders about when and how the commission shall or shall not do so. For example, an order might specify the monitoring arrangements and other safeguards that should be in place before the commission sought to delegate the task of making assessments under the funding code to contracted providers.

My fourth and final category relates to requirements that the Lord Chancellor may wish to impose about the contents of the funding code. He might, for example, require the commission in drawing up the code to consider additional factors under Clause 9(2)(h) or he might require it to give more or less weight to one of the existing factors in a given category of case. Requirements of this kind would relate directly to the ability of individual applicants to obtain funding and would frequently raise issues of important principle. Therefore, Amendment No. 138 makes such requirements subject to order by way of affirmative resolution.

I should mention in passing that Amendment No. 138 also applies the affirmative approval procedure to the power of the Lord Chancellor in paragraph 6(3) of Schedule 3 to add new factors or vary the paragraph 6(2) factors which must be taken into account under the interests of justice rubric.

I turn finally to the procedure for preparing and approving the funding code. I said in Committee:

    "While I accept that certainly the first draft of the code should be affirmed by affirmative procedure, I wish to consider carefully how we can achieve proper scrutiny"--
I was referring here to scrutiny of subsequent amendments to the code--

    "of those parts of the code that are significant, without wasting the time of the House on those parts that are not significant."--[Official Report, 19/1/99; col. 486.]

Amendment No. 76 requires the commission to undertake appropriate consultations when drafting or amending the code. Amendment No. 77 provides for an

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affirmative resolution before the code first comes into effect and again for any subsequent changes to the criteria set out in the code. Parliamentary approval is not, however, required for amendments to the code that affect the procedures for making applications and challenging refusals applications, and any guidance to decision-makers that the code may include.

The amendment also provides for an exceptional procedure so that urgent changes can take effect without delay. This procedure is only available for changes initiated by the commission itself. All changes imposed by the Lord Chancellor by order will require affirmative resolution before taking effect. The amendment would allow the Lord Chancellor to certify a change as urgent. I have in mind, for example, changes that may be necessary to take account of a court judgment. That change would then take effect immediately but fall after 120 days if not confirmed by affirmative resolution. A similar procedure was adopted in the Human Rights Act in relation to remedial orders to amend statutes held to be incompatible with the European Convention on Human Rights.

Many of the other amendments in this group are consequential drafting changes.

I apologise to the House for the length at which it has been necessary to explain this complex set of changes but they are critical for the scheme of the Bill as a whole. On the basis of that explanation, I ask other noble Lords with amendments in this group not to move them. I beg to move.

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