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Lord Carlisle of Bucklow: My Lords, I rise to support briefly the noble Lord, Lord Meston. Are we not in danger of getting bogged down by the words "by way of loans" when what was asked for, perfectly reasonably, was an undertaking from the Government that they will continue to pay fees on account both to the Bar and to solicitors in appropriate cases, as happens at the moment with legal aid?

Lord Mishcon: My Lords, perhaps I may say a few words in praise of the previous contribution. I look askance at the noble Lord, Lord Borrie, whose wisdom, I know, is such that he must have realised that he was making a bad point.

This is protection for the commission. The fact that fees on account are asked for and that the disbursements made are to be repaid means that, unless the words "by way of loans" are included, the commission can never say, "Well, those fees were not earned. We made a mistake when we paid the account. The disbursements were not properly incurred". There is no question of interest here; there cannot be. Under the amendment, the commission would be asked to pay sums to solicitors and barristers about which subsequently the commission could say, "Now, we merely lent you that money, you know. It wasn't paid to you as a final payment. Would you please, in the final account, take it for granted that we merely lent you the money and that now you must properly account for it and ensure that you didn't overcharge and that you incurred this disbursement properly?". With all his vast experience, the noble Lord, Lord Borrie, must have known that. However, he made his point so eloquently that I cannot really grumble.

Lord Windlesham: My Lords, this short debate provides an opportunity to put a general point to the House and perhaps to the Front Bench opposite in particular. It is not specifically directed in support or in criticism of the amendment of the noble Lord, Lord Clinton-Davis. Do not the differences of opinion that we have heard illustrate the difficulties that arise when a mass of detail is put into a statute setting up a new departmental public body? The legal services commission is going to be a very important public body. It is right that its purposes and powers should be stated. But as we have heard in earlier debates, the Lord Chancellor will have considerable reserve powers of regulation to make directions on a whole range of matters. We have page after page of what the commission can do and is prohibited from doing. I hesitate to say so, but it is open to almost any noble Lord, or any special interest represented by a noble Lord

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in this House, to run his own hobby-horse and have it included or, conversely, to get something excluded. Therefore, what is the case for having this degree of detail in this part of the Bill?

Lord Hacking: My Lords, the noble Lord, Lord Windlesham, has made a very good point. I would not wish for this amendment to be included in the Bill. Indeed, I do not believe that my noble friends would wish for this amendment to be approved by the House provided that we can have confidence that there is going to be continuity in the present system. That system is not working just for the benefit of lawyers; it is to make sure that lawyers, who have not got unlimited means, cannot act as bankers for their own clients for very large sums of money. The purpose of this amendment is to focus on the need of the lawyer so that he can serve his client and have some form of interim funding. In Clause 3(2)(c) there is already the power "to make loans".

If that is sufficient to cover this issue, then I am sure that my noble friends do not want to press this amendment and to clutter the Bill with detail which the noble Lord, Lord Windlesham, had advised us against. All we want from my noble and learned friend the Lord Chancellor, is for him to say that there is provision in the Bill to deal with this problem when the need arises.

The Lord Chancellor: My Lords, this entertaining amendment in the name of the noble Lord, Lord Clinton-Davis, has provided us with a little sound and fury, but even more fun. It has been sound, fury and fun about nothing.

The trouble arises from the amendment in which it is proposed,

"to pay fees and disbursements on account by way of loans to solicitors and barristers".

The amendment muddles up the idea of payment on account with that of a loan. Of course, a payment on account is the payment of a reasonable sum, being a genuine estimate of the value of the services already rendered. Therefore, it is quite inconsistent with a loan. The noble Lord has quite inadvertently confused the House. But to the extent that he is seriously proposing that there should be payments made to lawyers by way of loans by the legal services commission, I believe that most people would regard it as an extraordinary proposition that lawyers in business should have loans from the public purse to cover ordinary business costs.

However, as the White Paper made plain, we envisage that contracting will in time provide for earlier and more certain payment for services actually rendered than the present system of payment on account by the Legal Aid Board, the latter having absolutely nothing to do with making loans available to lawyers, quite exceptionally by the state, for their businesses. Therefore, I invite the noble Lord to withdraw the amendment.

Lord Clinton-Davis: My Lords, I thank noble Lords who have participated in this debate. Naturally, I thank those who supported what I was seeking to probe from the Government rather more than other noble Lords. Least of all, I thank the noble Lord, Lord Borrie, who

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is not immune from making mistakes, as my noble friend Lord Mischon pointed out, despite his very considerable career.

The fact of the matter is that this was an attempt to probe the Government. I had no intention of dividing the House on this issue at any time. My noble and learned friend has referred to the consultation paper issued by the Legal Aid Board. I was particularly concerned that he spoke of litigation support. I took it to mean some sort of assistance with disbursements in cases which would otherwise be outside the scope of legal aid.

It has been important to canvass from my noble and learned friend what he has in mind on the subject. It is absurd to suggest that it is a grandiose scheme for the legal aid commission to act as a banker for solicitors in practice. My noble and learned friend knows that very well. But he took it upon himself to poke fun at the matter in that way. With great respect, I believe that it was an unworthy way of responding to this debate. I do not intend to provoke my noble and learned friend for whom I have considerable regard--as he knows--except on this issue.

I do not agree with the noble Lord, Lord Windlesham, that it is a question of imposing too many requirements on the new body. It was simply a way of trying to find out what it is. Some mystery remains in that respect. I am not at all sure that my noble and learned friend's response--even deliberately humorous in parts--cast a great deal of light on what is happening on this matter. But having raised it, I do not believe that there is any great point in repeating arguments that I have already addressed to the House. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Carter: My Lords, I mentioned earlier that the Statement on Kosovo will be taken at a convenient moment after 7 p.m. The noble Earl, Lord Lytton, has kindly agreed to postpone the debate in his name, which was the business for the dinner break. Therefore, the Statement will become the business dealt with in the dinner break. I suggest that the House returns to the Access to Justice Bill one hour after the Statement has been taken.

Lord Simon of Glaisdale moved Amendment No. 25:

Page 3, line 2, leave out from ("money") to end of line.

On Question, amendment agreed to.

Lord Simon of Glaisdale moved Amendment No. 26:

Page 3, line 5, leave out from ("functions") to end of line 8.

The noble and learned Lord said: My Lords, I apologise for yet again inflicting an argument on your Lordships, though I believe that this is my final amendment. It was grouped with a very large number of amendments which were dealt with by my noble and learned friend the Lord Chancellor in a speech of marvellous lucidity. I agreed with his general thrust and

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with most of the points that he made. It is concerned with the powers given to the Minister and to the parliamentary control of those powers.

But perhaps I may say this, repeating what I said in Committee. It is, I think, a matter of alarm that as the Bill was pronounced it gave quite inordinate power to the executive. I draw on a report of the Delegated Powers Committee--a report of a severity that I cannot remember since the very inception of the committee.

This Government are not alone in arrogating power to the executive. Indeed, in the previous Parliament there was the major matter of the Child Support Act which stripped away a whole jurisdiction from magistrates and gave it, with disastrous consequences, to a new statutory body. But I think this Government are going further still in what they have called their hands on policy--of which this Bill is a notable example--and, to use a common phrase, control freakery.

This amendment does not affect the power of the executive. What it does is to seek to eliminate a provision which is beyond question unnecessary. Clause 3(4) states that the commission

"may make such arrangements as it considers appropriate for the discharge of its functions".

Then, it adds quite unnecessarily,

"including the delegation of specified functions, and shall make such arrangements for the delegation of functions as may be prescribed",

that is, prescribed by the Lord Chancellor.

That is unnecessary because every body has a power to delegate functions unless it has itself had power delegated to it. I did not understand my noble and learned friend to be controverting that in Committee. Indeed, I should have thought that it is hornbook law that a body can delegate except when it is itself a delegate. That is a good example of the idiom that the exception proves the rule because a delegate cannot sub-delegate. It proves that other persons can delegate. Therefore, this provision is unnecessary and should be removed.

I have no objection to the next amendment of my noble and learned friend, which gives him power to require the commission to delegate or not to delegate and to make arrangements as to delegation. That seems to me perfectly acceptable within the wide powers that my noble and learned friend is seeking to take into his hands. However, the previous provision, the one which is the subject of Amendment No. 26, is quite unnecessary. Unnecessary provisions give rise to unacceptable and dangerous argument. I beg to move.

6.30 p.m.

The Lord Chancellor: My Lords, I have already spoken to Amendments Nos. 26 and 27 in the context of our debates on all the amendments in that group.

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