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Lord Goodhart: My Lords, I am grateful for the support which my amendment has received from other Members of your Lordships' House. In response to the noble Lord, Lord Renton, I would be entirely happy had the noble and learned Lord accepted my amendment to the extent suggested by him and no further. Unfortunately, the noble and learned Lord is not prepared to go even as far as that.
However, the noble and learned Lord the Lord Chancellor has said that Parliament is entitled to impose an obligation on a losing party to pay the top-up fees of
the successful party. That is beyond question. It certainly has the power to do so. The real question is whether it is fair to impose such a rule and I must say that nothing the noble and learned Lord has said has induced me to change my view that it is not fair to do so.Although my views have not changed on this issue and I still believe it to be both serious and important, I do not intend to press it to a Division. I can only hope that the rules will be drafted in a way which gives the courts power to do justice. In my view, justice will involve not requiring a defendant to pay a top-up where, for example, the successful party is clearly a person of considerable wealth who has chosen to go for a CFA rather than run the risk of paying the cost of litigation which he can well afford.
Amendment, by leave, withdrawn.
7 p.m.
[Amendments Nos. 149 to 151 not moved.]
Clause 28 [Recovery of insurance premiums by way of costs]:
[Amendments Nos. 152 to 154 not moved.]
[Amendment No. 155 not moved.]
Clause 29 [Replacement of ACLEC by Consultative Panel]:
The Minister of State, Cabinet Office (Lord Falconer of Thoroton) moved Amendment No. 156:
The noble and learned Lord said: My Lords, this amendment sets out criteria which must be taken into account when appointing members of the legal services consultative panel. It is substantially the same as the amendment on this subject moved by the noble Baroness, Lady Wilcox, in Committee.
As the Lord Chancellor said in that debate, we would expect in appointing members to the panel to have very much in mind the factors suggested by the noble Baroness, and he accepted that that was an omission in the Bill as drafted. We are genuinely grateful to the noble Baroness for her assistance on this point, and indeed her valuable assistance on the similar matter of the composition of the legal services commission. The Lord Chancellor promised the noble Baroness in Committee to move a government amendment to bring
The noble Baroness spoke persuasively on that occasion about the need for such criteria, and I need not repeat what she said. She said it very eloquently. I agree that the panel will need a balance of experience and expertise among its membership, including knowledge in consumer affairs, in order to carry out its duties effectively and with due regard to the needs of all users of legal services.
I turn now to the differences, such as they are, between the noble Baroness's amendment and the government amendment. In Committee, I mentioned one flaw I found in her amendment. That was the technicality that one criterion referred to the maintenance of professional standards among barristers and solicitors. Of course, authorised advocates and authorised litigators are not limited to barristers or solicitors. That particular criterion has now been redrafted to refer to,
On consideration, it has also been decided that there is another gap that needs to be filled. Therefore I have added another criterion: that it would be desirable for those with experience in, or knowledge of, legal education and training to be represented on the panel. The reason for this is that the panel will have a key role in maintaining and developing standards in the education and training of providers of legal services. It will have an ongoing programme of work to provide recommendations on legal education, as ACLEC does now. The panel will be far better equipped for this task if it includes members with actual experience in or knowledge of this area.
The eagle-eyed will also have spotted a small difference in the first line. This now refers to,
Lord Renton: My Lords, I have reason to support the amendment but there are two points on it on which I should be grateful for the attention of the noble and learned Lord. The first concerns why a provision has been included and the second why something has been omitted.
Secondly, in training people in legal education, which is what this is about, we must bear in mind that although our legal profession has to an inevitable extent been centralised upon London, nevertheless, decentralisation has become a great feature of it in the past 50 years. I am glad to say that work which was frequently done in London is now done out on circuit. I cannot think of the exact phraseology, but some knowledge of the work of the profession outside London, out in the provinces--in Wales and so on--is desirable among members of the consultative panel. Perhaps that could be included at Third Reading.
Baroness Wilcox: My Lords, although I have written a letter to say that I agree with this proposed amendment, as I am in my place I wish to support Amendment No. 156. As we have heard, we now have user views represented on the body which is making decisions about meeting legal needs--the legal services commission--and we also have guaranteed user representation on the body advising the Lord Chancellor on the education and conduct of those providing legal services; namely, the consultative panel.
I am indeed grateful to the noble and learned Lord the Lord Chancellor that those three important voices will be heard on the two new bodies created by the legislation. Indeed, that completes my set. I shall not quibble about the technical points and in view of the points made by my noble friend Lord Renton, I must not stay on my feet too long in case someone snatches my points away from me. Therefore, on the two issues with which I am particularly concerned, I commend the amendment to your Lordships.
Lord Clinton-Davis: My Lords, I have a good deal of sympathy for the point made by the noble Lord, Lord Renton. If issues were to arise in relation to the maintenance and standard of other professions, some information or evidence could be garnered in order to satisfy the consultative panel's requirements on that particular issue. But I fail to see why it is necessary to have someone who has experience or expertise of the standards of other professions represented on the consultative panel.
I am delighted for the noble Baroness who has obviously had unique success in these deliberations. Good luck to her.
Lord Falconer of Thoroton: My Lords, perhaps I may deal with the two points raised by the noble Lord, Lord Renton. First, he asked why paragraph (f) is included. He asked why we are saying that people on the consultative panel should have,
Lord Clinton-Davis: My Lords, I understand that it may be necessary to acquire evidence about those matters but it seems to me that the provision is extremely wide. The number of professions involved is immense and certainly it would be virtually impossible to have somebody who would be in a position to speak for the standards of so many professions. Is it not better to leave it, as suggested in my earlier intervention, on the basis of garnering evidence where necessary?
Page 17, line 31, at end insert--
("( ) In appointing persons to the Consultative Panel the Lord Chancellor shall have regard to the desirability of securing that the Consultative Panel includes persons who (between them) have experience in or knowledge of--
(a) the provision of legal services;
(b) the lay advice sector;
(c) civil or criminal proceedings and the working of the courts;
(d) legal education and training;
(e) the maintenance of the professional standards of persons who provide legal services;
(f) the maintenance of standards in professions other than the legal profession;
(g) consumer affairs;
(h) commercial affairs; and
(i) social conditions.").
"persons who provide legal services".
"the desirability of securing that the Consultative Panel includes persons who (between them) have experience in or knowledge of",
the specified areas, rather than,
"the desirability of appointing persons who have experience in, or knowledge of",
those areas. This is a drafting amendment designed to clarify that there is not statutory requirement for all of the members to have knowledge of or experience in all of the specified areas. I beg to move.
"the maintenance of standards in professions other than the legal profession".
That is a huge subject. One can think of all the other professions that there are and the different circumstances which prevail in those other professions. I believe that it is asking almost the impossible to appoint someone with such knowledge. I believe that that provision should be left out.
"(between them) experience in or knowledge of ... the maintenance of standards in professions other than the legal profession".
It seems to us that in judging what should be the standards of the legal profession, it is appropriate to ensure that they are at least as good as the standards in other professions. It seems to us to be right also that one should have regard to how other professions are dealing
with the problems which may face our profession. It would be helpful to have a broader perspective. That is why that provision has been included.
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