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The Minister of State, Cabinet Office (Lord Falconer of Thoroton): My Lords, I thought that the whole point of this provision was to get rid of the Falconer syndrome on the basis that to put in a provision of this kind will prevent lawyers from making the appalling points that the noble and learned Lord describes. I recall that we have had this debate once before. I have been involved in it only once but it may have happened on a number of occasions.

Lord Simon of Glaisdale: My Lords, the noble and learned Lord will recall that it arose in the previous Session. I cannot be prevented from raising it again in a subsequent Session when the lesson has not been learnt.

Lord Falconer of Thoroton: My Lords, I am sorry if my tone suggests that I complain about it. I certainly do not complain about this matter being raised again. I recall that in the context of the Government of Wales Bill the issue was whether or not the proceedings of the Welsh Assembly could be affected by one or other member not being present. We debated the very same point there. The same arguments were run by the noble and learned Lord. My response to the noble and learned Lord will not be as bleak as on the previous occasion. I invite the noble and learned Lord to withdraw the amendment on the basis that I shall invite the parliamentary draftsman to consider his views. The Lord Chancellor will then consider the position once the parliamentary draftsman has given him his response. They will consider the position in relation to the question: is this provision necessary or not?

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I hope that on that basis the noble and learned Lord will withdraw the amendment with a slightly greater degree of enthusiasm than he has on previous occasions.

5.30 p.m.

Lord Simon of Glaisdale: My Lords, since the last Session, the noble and learned Lord has had ample time to consider whether the point is good. I am grateful for his offer to write to me, and I am glad that the Lord Chancellor and the parliamentary draftsman will consider it. However, it is simply not good enough. No one knows better than the noble and learned Lord--he is an admired lawyer--that the provision is entirely unnecessary because the law takes care of it.

I understood the noble and learned Lord to chide me because I again raised the point. I do not apologise for doing so because after time a lesson is learnt. When I gave evidence to the Renton Committee, I drew its attention to the extraordinary provision in the National Insurance Act 1946. It stated:

    "For the purpose of this Part of the Schedule a person over pensionable age, not being an insured person, shall be treated as an employed person if he would be an insured person were he under pensionable age and would be an employed person were he an insured person".
I happen to know the very able draftsman who drafted that statute. Knowing him, I believe that he understood what he wrote. However, I am quite certain that no one else did. One does not stop there. That provision was repeated in national insurance Act after national insurance Act and still no one understood what it was about. But after much hilarity, it disappeared from the statute book in subsequent national insurance Acts--and no one was a penny the worse. No one sought to argue, as the noble and learned Lord, Lord Falconer, so much fears, that its disappearance would give rise to a new series of arguments. I apologise for completing my sentence. I give way.

Lord Falconer of Thoroton: My Lords, the noble and learned Lord chides me for not having a view on this issue having had the holidays to think about it since the last Session. It is a matter for the Lord Chancellor's Department. It would like to convey the point that had the noble and learned Lord put down his amendment before yesterday he might have had a firmer response.

Lord Simon of Glaisdale: My Lords, I apologise that I raise it a further time. I put down the amendment only when I saw the amendment of my noble and learned friend the Lord Chancellor on the schedule. It prompted me again to raise the point. However, I fancy that the noble and learned Lord knows perfectly well the answer. He knows that the provision is unnecessary because a vacancy in a body corporate cannot possibly affect the validity of its proceedings providing there is still a majority.

Having derived comfort from what happened in the National Insurance Act, I cannot promise that I shall not continue to raise the point until any government manage

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to summon up their courage and get rid of this unnecessary provision. In the meantime, although full of hope, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord McIntosh of Haringey moved Amendment No. 14:

Page 53, line 12, at end insert--
("( ) The Lord Chancellor may by direction require the Commission to deal with the matters specified in the direction in reports, or a particular report, under this paragraph.").

On Question, amendment agreed to.

Lord Archer of Sandwell moved Amendment No. 15:

Page 53, line 12, at end insert--
("( ) In relation to services funded from the Community Legal Service Fund the report shall specify--
(a) a detailed breakdown of the types of case for which advice and assistance was granted, and the implied hours worked,
(b) the number of applications for assistance received,
(c) the number of cases for which assistance was granted or refused, and on what grounds,
(d) the number of appeals against refusal, and the outcome of such appeals,
(e) financial information about eligibility and contributions.").

The noble and learned Lord said: My Lords, in moving the amendment, it may be for your Lordships' convenience if we debate Amendments Nos. 16, 17, 19, 20 and 21. We seem to have reached my amendment in what I think I detect as a period of rising governmental "receptivity". I can only hope.

The legal services commission will be required to publish an annual report. That is very much to be applauded. But its utility depends upon the information it contains. Paragraph 14 of Schedule 1 sets out what it is to contain. I paraphrase. The information required is how the commission has funded services from the community legal service fund; how it has funded services as part of the criminal defence service; and how it has exercised its other functions. That is a widely embracing provision but it can hardly be said to be specific. At present the Legal Aid Board publishes an annual report which is very informative and extremely helpful. It tells us the types of case in which aid and assistance have been granted, what applications were refused, and on what grounds. We are told the numbers and types of case where certificates were issued, the numbers of applications received, which were refused, on what grounds, the number of appeals against refusal and the outcome of the appeals. There is detailed financial information about eligibility and contributions, details about the outcome of cases, average costs, and the operation of the statutory charge. There are details about the implied hours worked.

That has greatly helped everyone, in particular the NGOs and academics, to monitor the workings of the system. From the year 2003 all legal aid work will be done under exclusive contracts, as I understand it. One consequence of that is that many of the decisions now taken by the Legal Aid Board--and, when the Bill is

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first introduced, by the legal services commission--will in effect be devolved to individual suppliers. For example, under contracts negotiated on a fixed cost per case basis the supplier may decide that he can make the contract pay only by a process of cherry picking. Clients who may occupy more time may not be offered assistance. My noble and learned friend Lord Clinton-Davis--

Lord Clinton-Davis: I am not "learned".

Lord Archer of Sandwell: My Lords, I apologise to my noble friend for calling him "learned". Technically, I agree he is not "learned". He, and the noble Lord, Lord Phillips, at an earlier stage of our deliberations, warned of that possible outcome. I do not say that that will necessarily happen, but we do not know. My noble and learned friend the Lord Chancellor does not believe that it will. He says, and repeated it a few moments ago, that if it does he will take action. But how will we know unless we have the information collected centrally in a statistical form?

The Legal Aid Board in its paper Legal Aid--Targeting Need, which it produced in response to the previous government's Green Paper, stated at page 58:

    "Contracted suppliers should be required to record decisions to reject an identified client's case together with the reasons for doing so. Such decisions could then be provide the Board with information about the extent to which clients were being turned away".
I hope that my noble and learned friend will recognise the need for this information, if only so that he can be satisfied that he was right all along and that our anxieties were groundless. I beg to move.

Lord Goodhart: My Lords, this group of amendments includes Amendment No. 17 standing in my name and that of my noble friend Lord Phillips of Sudbury. I shall speak briefly because it is not the most important amendment we are discussing tonight.

Under Clause 5(4), the commission must inform itself about the need for services and must plan what can be done towards meeting that need. Under paragraph 15 of Schedule 1, the commission prepares a plan setting out how it intends to fund the services in the community legal service fund, plus the criminal defence service and the exercise of its other functions. That will then be published. Since it then has a duty to prepare a plan for publication, surely it would be appropriate to require that plan to include the assessment of need upon which the plan is based.

5.45 p.m.

The Lord Chancellor: My Lords, with the leave of the House, I shall speak to Amendment No. 15, to Amendments Nos. 16, 19, 20 and 21 standing in my name, and to Amendment No. 17 in the name of the noble Lords, Lord Goodhart and Lord Phillips of Sudbury. They deal with the annual report and annual plan of the legal services commission. The amendment tabled by my noble and learned friend Lord Archer of Sandwell would require the legal services commission to provide in its annual report specified information in

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relation to services funded from the community legal service fund. Although as I develop the submission your Lordships will find evidenced a rising governmental receptivity, it has not yet arisen because I believe that the amendment would lead to an unnecessary amount of detail on the face of the Bill on the content of one part of the annual report.

Included in the large group of amendments we recently debated was an amendment giving the Lord Chancellor power, by direction, to require the commission to deal in its annual report with matters specified in the direction. This direction-making power will ensure that the commission's annual reports provide necessary and relevant information about its performance of its functions. I envisage that the commission's annual reports will provide a level of detail similar to that currently provided by the Legal Aid Board in its annual report, but tailored to the particular functions of the commission. No details for the annual report of the Legal Aid Board are set in statute. I envisage that much of the information specified in my noble and learned friend's amendment would be provided in the commission's annual report, as would other information which he has not specified.

There will clearly be a need for the commission's annual report to give details of the services it has provided and its use of different methods of funding across its areas of responsibility. It will also provide other information, such as comparison of planned and actual use of the commission's resources. However, to specify on the face of the Bill the particular matters mentioned in the noble and learned Lord's amendment would imply that those matters had particular weight, when there is other information which we would wish to see provided which should be given equal or greater weight.

Furthermore, some of the particular further information he has specified is not quite in the form that we would wish to see and some others cause problems of definition. For example, a requirement for information about implied hours worked would preclude some methods of contracting which might otherwise provide good value for money for the taxpayer, but not be based on an assumed number of hours or an hourly rate. Information about grounds for refusal of assistance might be difficult to ascertain for cases which do not proceed beyond a very early stage when it might be unclear whether or not they have entered the system. Financial information about eligibility and contributions might relate to national estimates or factual information about individual applications. For those reasons, it is preferable for the content of the commission's annual report to be dealt with under the direction-making power to which I have referred. On that basis, I invite my noble and learned friend to withdraw his amendment.

The first government amendment in the group to which I speak with your Lordships' leave would make clear that the commission will publish its annual report once it has been laid before Parliament. This will ensure that the annual report is made widely available by the commission, as is now the case with the annual report of the Legal Aid Board.

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I turn to the commission's annual plan. The amendment in the name of the noble Lords, Lord Goodhart and Lord Phillips of Sudbury, would add a specific requirement for the commission to set out in its plan the results of its assessment of the need for services to be provided through the community legal service. It has always been our intention that the annual plan should summarise the findings of the regional legal services committees' "regional strategies", which will themselves have been published in full following wide consultation, and it seems to me to be desirable for this intention to be reflected on the face of the Bill. However, I would wish to have an opportunity to seek the draftsman's view on the precise wording and then to table a government amendment in accordance with the principle of the noble Lords' proposed amendment.

In response to an amendment moved by the noble Lord, Lord Kingsland, in Committee, I undertook to table amendments to require the Lord Chancellor, when laying the annual report of the legal services commission before Parliament, to accompany it with a statement of his reasons for departing in any material respect from the commission's draft plan. The remaining government amendments in this group are intended to achieve that objective and so to provide greater transparency for the Lord Chancellor's role in the commission's planning process.

The amendments would put in place a procedure for the Lord Chancellor's approval of the commission's annual plan which avoids unnecessary delay, but delivers the degree of transparency I undertook to provide. Under this procedure, the commission would prepare its plan and send it to the Lord Chancellor. The Lord Chancellor would then either approve the plan and lay it before Parliament before the commission published it, or, if the Lord Chancellor did not approve it, he would direct the commission to revise it by way of a published direction setting out his reasons for not approving the plan. The commission would then make the revisions and send the revised plan to the Lord Chancellor who would lay it before Parliament before the commission published it. I envisage that the published plan would have appended to it any directions under which it had been revised. With that amendment, I apprehend that the noble Lord, Lord Kingsland, will be content.

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