Previous Section Back to Table of Contents Lords Hansard Home Page

Lord Goodhart: My Lords, this massive group includes my Amendment No. 41. I wish to speak to that as well as responding to the noble and learned Lord the Lord Chancellor on his amendments.

In relation to the Bill as originally drafted there was very wide criticism of the extent of the powers of the Lord Chancellor to control the legal services commission and the community legal service without any reference back to Parliament. As the noble and learned Lord the Lord Chancellor explained, those criticisms came in particular from the Select Committee on Delegated Powers and Deregulation. On the first day in Committee the noble and learned Lord accepted the force of those criticisms and has now tabled a large number of amendments to meet them. To a large extent, we believe that his amendments meet the criticisms. For that reason, we give them a warm welcome. Indeed, we support all the amendments which the noble and learned Lord has put down in this group.

However, we also believe that there is one major omission from the amendments which Amendment No. 41 aims to correct. Clause 7(1) requires the commission to set priorities in the funding of services by the community legal service in accordance with directions given by the Lord Chancellor. There is no requirement that those directions should receive parliamentary approval. However, the setting of priorities is perhaps the most important power of all the powers given to the Lord Chancellor by the Bill. The Select Committee on Delegated Powers and Deregulation referred to the Lord Chancellor's

11 Feb 1999 : Column 352

direction-making powers under the original Bill and commented on them, in paragraph 4 of its report, as follows:

    "The explanatory notes state ... that the purpose of these provisions is to establish a flexible mechanism by which the Lord Chancellor can ensure that the Commission discharges its functions in a way that meets the government's policy objectives and, in particular, that it allocates the resources of the Community Service Fund according to 'national priorities'. The Committee sees such very wide-ranging power to give direction as a legislative power. The policy objectives and national principles are not set out in the bill, which contains no parameters or criteria for the exercise of his powers by the Lord Chancellor, but are simply left to be supplied by directions. We see the setting of objectives and priorities which will have such important consequences for citizens as a legislative act".

I do not dispute that the Government are entitled to set priorities. But in doing so, they are, as the Select Committee said, legislating. It is, I believe an appropriate and necessary case for secondary legislation. Amendment No. 41 which I put down is somewhat generous to the Government in that it requires only the negative procedure. I do not know how the noble and learned Lord the Lord Chancellor envisages that he will give directions to the commission about priorities. I hope and expect that he does not envisage a stream of directions given on a daily or weekly basis to the commission. I assume that the priorities will be changed relatively infrequently.

At the Committee stage, the noble and learned Lord referred to the National Health Service as a comparable case and said that NHS priorities are not set out in regulations. That is correct, but I do not believe that the NHS is a fair comparison. NHS priorities are much less explicit and far more operational. I am not aware of any reference in the NHS legislation on the setting of priorities.

The second and more important difference between the NHS and the community legal service is that the Government have a conflict of interest in deciding what are the priorities for the community legal service. For example, by directing that a low priority be given to cases of judicial review or cases under the Human Rights Act, the Government would plainly be acting in their own interest. No such conflict arises in the case of the National Health Service.

I believe it is essential that parliamentary control over the setting of priorities by the Lord Chancellor should be retained by requiring the directions which set the priorities to be given in the form of a statutory instrument. That is what Amendment No. 41 provides.

5.15 p.m.

Lord Archer of Sandwell: My Lords, I rise for two purposes: first, to thank my noble and learned friend for responding so fully to the anxieties that I, among others, expressed at Committee stage; secondly, to confess that, save as to one matter, I am content. The one matter is Amendment No. 41 referred to by the noble Lord, Lord Goodhart.

At Committee, some of us thought that the kind of policy issues with which Amendment No. 41 is concerned might have been better set out in primary legislation. I ventured to set down an amendment listing

11 Feb 1999 : Column 353

some of the objectives which I thought might be included. Quite rightly, my noble and learned friend said, first, that some might be open to detailed objections; secondly, that it was probably not the best way of approaching the subject. I am happy to accept now that it is something that can properly be done in secondary legislation.

However, as a member of the Select Committee, like the noble Lord, Lord Goodhart, I still endorse what the Select Committee said. It was that on matters of this kind which amount to legislation there ought to be parliamentary control. I hope that my noble and learned friend will think about that one matter again.

Lord Kingsland: My Lords, I support what the noble and learned Lord, Lord Archer of Sandwell, said. It seems to me that if one puts Clause 6(4) and Clause 7(1) in the context of the amendment put down by the noble and learned Lord the Lord Chancellor, Amendment No. 29 (his proposed purpose clause for the community legal service), it is difficult to understand how his direction-making powers could be subject to judicial control in any circumstances.

I listened carefully to the way in which the noble and learned Lord described the four categories of direction-making powers and why it was appropriate to retain them in the Bill. To some extent, I can see the force of his argument about the second category of those powers. Clearly, because it is linked to both financial constraints and political decisions, the establishment every year of priorities in the last resort, is a matter for a politician to decide. If the noble and learned Lord the Lord Chancellor does not think that delegated legislation rather than directions is appropriate, what other form of political control does he say he will put in place? First, if the purpose clause does not bite judicially, and, second, if there is to be no statutory instrument, then, unless there is some clear parliamentary control of a more general nature, the Lord Chancellor's discretion in the area is controlled by no one.

The Lord Chancellor: My Lords, I am not persuaded by the noble Lord, Lord Goodhart, and will not, therefore, accept Amendment No. 41. I largely agree with the way in which he approaches the issue, however. The question is whether you categorise it as a legislative matter or a day-to-day matter of administration appropriate for the executive. I make the general proposition that a parliamentary chamber would act quite inappropriately if it sought to assume executive powers over the day-to-day administration of the scheme.

What do directions about priorities deal with? The detailed breakdown between different categories of a sum of money that will already have been voted by Parliament within the scope of a scheme as defined in legislation. What it amounts to in substance is an exercise in setting budgets. That is, par excellence, an administrative act. I submit that it would be quite inappropriate for a legislative chamber to take that kind of administrative decision into its own hands. It

11 Feb 1999 : Column 354

confuses the respective spheres of a legislative chamber and the executive. Therefore, I do not accept the amendment.

Lord Kingsland: My Lords, before the noble and learned Lord sits down, does he accept that the purpose of Parliament, including your Lordships' House, is not only to scrutinise legislation but also to control the acts and decisions of the executive?

The Lord Chancellor: My Lords, the scope of the functions of the legislature is to lay down by legislation appropriate powers for the executive to exercise. That may be in accordance with standards defined by legislation. But my judgment is that here to seek to assume by affirmative means the power to regulate budgetary allocations within moneys voted by Parliament for statutory purposes is for the legislature to seek to overreach itself.

Lord Simon of Glaisdale: My Lords, does the noble and learned Lord--

The Lord Chancellor: My Lords, I do not give way yet. If your Lordships accept the amendment it would be within the powers of Parliament to pass it. My point, however, is that it would be an inappropriate assumption of legislative power over what is naturally an executive function.

On Question, amendment agreed to.

Amendments Nos. 7 to 12 agreed to.

Lord Simon of Glaisdale moved Amendment No. 13:

Page 52, leave out lines 41 to 43.

The noble and learned Lord said: My Lords, Amendment No. 13 relates to Schedule 1. Paragraph 12 deals with the proceedings of the commission. The opening paragraph constitutes the legal services commission as a body corporate; that is to say, a corporation aggregate. The sub-paragraph that I seek to leave out provides:

    "(5) the validity of any proceedings of the Commission or of any committee appointed by the Commission shall not be affected by any vacancy among its members or by any defect in the appointment of any member".

That provision is completely unnecessary because there is a fundamental rule that bodies corporate (corporations aggregate) can act effectively by a majority. Obviously, as long as there is a majority it does not matter in the least if some of the members are invalidly appointed or, for that matter, there is a vacancy. The point can very easily be seen by considering the most usual form of body corporate these days: a limited liability company. No one has ever suggested--it would be quite absurd to do so--that, for example, if one of the directors had died, or a shareholder was in the course of transferring his shares to somebody else but the transaction had not been completed, the proceedings of the limited liability company would thereby be invalidated.

11 Feb 1999 : Column 355

We come to the question of how far it is desirable to clutter up the statute book with unnecessary provisions that the existing law amply takes care of. My noble and learned friend the Lord Chancellor referred briefly to this matter in his speech on the previous amendment; namely, that if there was an unnecessary provision in one place it drew attention to, and founded an argument for, its absence from another. Apart from that, it is expensive to add words to the statute book. We go on expanding and expanding. The Government are in favour of bearing down on inflation, quite rightly, but not when it comes to the inflation of statutory language. As to that, they tend to spread themselves.

In addition to the expense of producing extra pages, drawing on the cost of secretaries, typists, civil servants, Ministers, printers and book-binders, enormous expenditure is involved if an extra volume is added to the statutes in force. They are extremely expensive. I indicated in Committee how the statute book had not only enlarged in format but increased in its number of volumes since the Renton Committee in 1975 drew attention to the prolixity and over-elaboration that had been the subject of criticism.

In addition, every unnecessary provision will found an argument. The noble and learned Lord, Lord Falconer, propounded what might be termed the Falconer syndrome; namely, that one had to think of every argument however far-fetched and fatuous and forestall it. If one places extra unnecessary words in a statute it merely gives greater scope to the Falconer syndrome. I beg to move.

Next Section Back to Table of Contents Lords Hansard Home Page