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Lord Falconer of Thoroton: My Lords, I believe that the noble and learned Lord, Lord Archer of Sandwell, also cited that quotation in his excellent speech on this issue--

Lord Thomas of Gresford: My Lords, I have not yet heard an answer!

Lord Falconer of Thoroton: My Lords, I am not complaining; the more that it is read, the better!

The answer is that the community legal service will provide the money for such things. It is not simply a case of direct legal aid being paid to solicitors. There are also the citizens' advice bureaux and the not-for-profit organisations, such as the Child Poverty Action Group, which, as part of the services that they provide, specialise in advising those who are making claims to the social security commissioners. The answer to the question from the noble Lord, Lord Thomas of Gresford, is that some of the money in the community legal service will go to such groups which help people more widely than by providing straight legal advice. They will be able to help people with, for example, preparing cases for the social security commissioners.

The noble Lord, Lord Thomas of Gresford, interrupted me interrupting the question about foreigners which came from my noble and learned friend. Under current arrangements, legal advice and assistance is available under the green-form scheme. When truly exceptional circumstances warrant it, the legal services commission will be able to fund representation at inquests. That was made possible by government Amendment No. 55, which we considered earlier. I do not blame noble Lords for not spotting it because there were about 40 other amendments in the same group. It would provide for circumstances similar to those concerning the inquiry into the "Marchioness" where a second inquiry was necessary because of failures in the running of the first. I believe I said on the previous occasion that we would want there to be such a power as my noble friend wished. I believe that we have now provided it. I am sorry that I took so long to say that. In the light of what I have said, I invite my noble and learned friend Lord Archer, the noble Lords, Lord Goodhart, Lord Thomas of Gresford, and my noble friend Lord Clinton-Davis to withdraw their amendments.

11.15 p.m.

Lord Goodhart: My Lords, I listened with such attention as I can muster at this time of night to what

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the noble and learned Lord, Lord Falconer said. As I said earlier regarding the immigration tribunals, I accept that, given recently introduced legislation whereby the whole system is to have a fundamental shake-up within the next few months, it is perhaps not appropriate in this Bill to deal with this matter. However, I make it clear that it is virtually certain that we shall wish to return to it in the debates on the Immigration and Asylum Bill.

As regards the employment tribunals, I was somewhat alarmed at the suggestion that the cost rules for those tribunals might be changed. While I recognise that that might make CFAs more viable, the advantage of the cost rule at present is that an employee who believes that he or she has been unfairly dismissed or has some other appropriate claim against an employer, even if they believe that they have only a small chance of winning, can take their case to the employment tribunal knowing that if the worst comes to the worst they will not have to meet the employer's costs, which are very likely to be considerably higher than those of the employee because the employer can afford to pay more.

It seems to me that the existing cost rule in employment tribunals provides considerable assistance for an employee. I would be very much disturbed if it were changed. Taking that into account, I believe that cases before the employment tribunal should be very seriously considered. I have taken such comfort as I can from the statement of intent from the noble and learned Lord the Lord Chancellor to look into it in the fullness of time and possibly produce a form of public funding in some circumstances for those tribunals.

Finally, there are the social security commissioners. As I suggested earlier, I believe that the case is unanswerable. They are not likely to be expensive because there are very few cases which proceed to an oral hearing. But they involve points which hardly any claimant could deal with himself. Given that in the social security field there is no doubt that a represented claimant stands a much better chance of success than an unrepresented one, that should have a very high priority for funding. It should go into the schedule now as a case where funding is permitted. Having said that, it is not my intention to press this amendment. With the hope that the noble and learned Lord the Lord Chancellor will give these matters more favourable consideration in future, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 65 to 67 not moved.]

[Amendment No. 68 not moved.]

Clause 9 [Code about provision of funded services]:

The Lord Chancellor moved Amendment No. 69:

Page 5, line 36, leave out ("to") and insert ("for").

The noble and learned Lord said: My Lords, in moving this amendments and, with the leave of your Lordships, I shall speak also to Amendments Nos. 70, 7l, 74, 75 and 79. I bring these amendments forward in response to our debate at Committee stage. They are designed to ensure that concerns expressed by some of your Lordships on a number of issues which the amendments address are dealt with on the face of the Bill.

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The noble Lord, Lord Phillips of Sudbury, expressed concern that the word "conduct" was too wide and could be used to exclude cases where the conduct of a particular individual seeking assistance was, for whatever reason, unpopular. This of course was never my intention and I am happy to provide for a tighter definition on the face of the Bill. The types of conduct which I think we would all agree should be taken into account are where, for example, there has been a persistent failure to attend appointments with lawyers, persistent failure to give proper instructions, or a failure to co-operate in a reasonable way or behaving in an abusive way. Amendment No. 71 will ensure that only the conduct of the applicant in relation to his current or a previous application for funding or in connection with any proceedings shall be taken into account. Clearly it will be the case that the current proceedings will be the most relevant.

However, where in the past an individual has, for example, submitted a fraudulent application for funding it should be capable of being considered although it would not necessarily rule out funding in a new case. Amendment No. 79 to Clause 10 ensures that the same meaning is given to "conduct" when considering conduct in the context of the applicant's liability to make contributions. Where an individual had given misleading information on an application or behaved in some other way that would result in withdrawal of legal aid, the commission would be able to seek to recover money spent.

Concern was also expressed that the applicant should be given reasons if his or her application for funding was not successful and information about where alternative funding might be sought. I am grateful to the noble Lord, Lord Kingsland, whose suggestions have formed the basis for Amendments Nos. 74 and 75. These amendments place a duty on the commission both to inform applicants of the reason for refusal and to give information about alternative forms of funding available. They do not, place and are not intended to place the commission under any obligation to advise on the relative merits of alternative sources. Amendments Nos. 69 and 70 are technical amendments designed to improve the clarity of the Bill. I hope that, taken together, these amendments go a long way to meeting concerns expressed by your Lordships in Committee. I beg to move.

On Question, amendment agreed to.

The Lord Chancellor moved Amendments Nos. 70 and 71:

Page 5, line 38, leave out ("as part of the Community Legal Service").
Page 5, line 42, at end insert ("in connection with services funded as part of the Community Legal Service (or an application for funding) or in or in connection with any proceedings").

On Question, amendments agreed to.

The Lord Chancellor moved Amendment No.72:

Page 6, line 1, leave out from ("may") to end of line 3 and insert ("by order require the Commission to consider.").

On Question, amendment agreed to.

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Lord Clinton-Davis moved Amendment No. 73:

Page 6, line 5, at end insert (", provided that the code shall not require applicants to attempt mediation rather than application to the court save in circumstances where a privately paying client would be advised to attempt mediation.").

The noble Lord said: My Lords, I can speak quite shortly on this. I want to probe the Government's intentions with regard to mediation. Mediation is frequently in suitable cases an important way of proceeding. It is also frequently a less costly method. It is a good way of settling legal disputes. But of course it has to be dealt with on the basis of appropriate cases; that is appropriate in terms of the case itself and appropriate in terms of the client. What would be utterly wrong would be to have mediation foisted on a client as a way of avoiding the costs of providing legal services through the state.

The amendment that I have tabled requires applicants to attempt mediation wherever a privately paying client would be advised so to do, rather than the suggestion which we made previously that this would occur only where a privately paying client would be likely to opt to do so. It strikes a better balance. Most importantly, I should like to know from my noble and learned friend where the whole question of mediation stands in relation to the questions we are considering and the Bill in particular. I beg to move.

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