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Lord Clinton-Davis moved Amendment No. 29:

Page 59, line 27, after ("costs,") insert--
("( ) proceedings in coroner's inquests into death in appropriate cases,").

The noble Lord said: My Lords, in moving this amendment I revisit a discussion we had on Report on 11th February, following which my noble and learned friend courteously wrote to me at length. I suspect that there is not so much a division of principle between us, more a division as regards the best way to approach the issue. I hope that my noble and learned friend agrees with that assessment.

I am moved to revisit the matter because in the Macpherson Report on the Stephen Lawrence inquiry recommendation No. 43 suggests that,

That is powerful support for what I was arguing before and for what I argue now. However, in his letter, my noble and learned friend says that it would be premature to come to a conclusion about that because the Government are considering their full response to the Macpherson Report and therefore he is not in a position to give a definite answer to that particular suggestion.

I appreciate the generality of that response and I hope that my noble and learned friend will give me an assurance that this is a matter to which the Government will give careful consideration notwithstanding the current conclusions I think he will impart to the House and to which he referred in his letter. I believe that it would be desirable to establish some sort of machinery beyond that vested at present in my noble and learned friend to enable this procedure to be invoked where it is appropriate to do so.

I am not quite sure what is the best way of proceeding in the matter. This is simply a further probing amendment. However, it is not always possible to determine at an early stage leading to a coroner's inquest how difficult the matter will be, what sort of evidence it is necessary to rely on, and how best one can proceed with cross-examination within the limits of something which is not a usual form of legal proceeding. It is a legal proceeding for arriving at certain facts.

Therefore, at what stage would it be appropriate for my noble and learned friend and his department to intervene? On what basis would they do so? Would it be on the basis of an application made by the family of the victim? Alternatively, would it be made by a lawyer on behalf of that person? Would it be possible for the coroner to indicate that it would be appropriate in the

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circumstances outlined to him that a person should be legally represented through a form of legal aid?

In his letter, my noble and learned friend thinks it,

    "better and clearer for the Bill ... to establish that funding is not generally available, subject to the clause 7(8) power to make provision for exceptional cases".
My problem is that I do not know how one identifies those "exceptional cases" until it is perhaps too late. It can be very expensive to invoke the assistance of the necessary expert evidence to help a lawyer and, indeed, to ask the right sort of questions where it is wholly appropriate, for example, to rely upon medical evidence. I have faced that situation myself on a number of occasions. It would not have been possible for me to have cross-examined without access to it. It so happened that I was instructed on a private basis and the financial circumstances of the people involved were such that it did not matter. I did not have to consider applying for legal aid.

However, I can say definitively--and I am sure that this is the experience of lawyers in the House who have conducted proceedings in coroners' courts--that to proceed without the basis of that evidence would render one's appearance pretty nugatory. Therefore, it would be helpful if my noble and learned friend could indicate how the machinery will work. I really do not think that the green form is at all adequate to deal with the sort of cases I have been seeking to enlist in support of my argument. Cross-examination can be very important notwithstanding the nature of inquests in so far as they are quite different from the normal form of legal proceedings.

I hope that my noble and learned friend will be able to offer some additional guidance as to the way in which Clause 7(8) might be invoked. Above all, I trust that I can get an assurance from him that the Government will certainly not close their minds to this proposition when it comes to examining the Macpherson Report. I beg to move.

The Lord Chancellor: My Lords, my noble friend Lord Clinton-Davis proposes an amendment to Schedule 2 which would allow the legal services commission to fund representation in proceedings in coroners' inquests into death "in appropriate cases". My noble friend proposed similar amendments at both the Committee and Report stages. In response to my noble friend's concerns, we amended the Bill on Report in order to allow funding to be authorised in "exceptional cases". I had rather thought that that would have been the end of the matter. Indeed, at Report stage, my noble friend said:

    "I do not say that in every case legal aid should be available automatically. I am not saying that at all. It must be apposite and within the community legal service's power to provide legal aid. It should not be a duty but a power".--[Official Report, 11/2/99; col. 429.]
That is exactly what we have done in providing, under Clause 7(8)(b) of the Bill, that the Lord Chancellor:

    "may authorise the Commission to fund the provision of any of those services in specified circumstances, or, if the Commission request him to do so, in an individual case".

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However, my noble friend has given the reason for his return to the matter by way of the current amendment. It is because the Macpherson Report, following on the Stephen Lawrence inquiry, recommended, among other things, that,

    "consideration be given to the provision of Legal Aid to victims or the families of victims to cover representation at an Inquest in appropriate cases".
As my noble friend intimated, the Government are still considering their response to the Macpherson Report. Therefore, it would really be premature for me to give a definitive response to that recommendation about legal aid.

I have to tell my noble friend that my initial view is that legal aid is not appropriate in the overwhelming majority of inquests, which are inquisitorial proceedings intended to establish the facts. However, I acknowledge that there may be exceptional cases where funding should be available to provide representation. This is already possible under the existing Legal Aid Act. In previous debates I have cited the example of the second "Marchioness" inquest where my predecessor, the noble and learned Lord, Lord Mackay of Clashfern, caused legal aid to be made available.

As I have already said, the Access to Justice Bill allows for funding to be authorised in exceptional cases. However, I do not wish to seek to define on the face of the Bill, or to offer a definition of, "exceptional cases". Furthermore, advice and assistance, short of representation at the proceedings, will continue to be available to any financially eligible person involved in an inquest. Therefore I do not at this stage believe that this amendment is necessary. I ask my noble friend to recognise that we have already responded to his concerns in this area. On the basis of the explanations I have offered I invite him to withdraw this amendment.

Lord Clinton-Davis: My Lords, I have listened carefully to my noble and learned friend. I do not apologise for returning to this matter as it is appropriate in the light of the Macpherson Report to do so. I am grateful to my noble and learned friend for having made amendments earlier in our proceedings which are helpful in this context. I note that the Government will, of course, have to give further consideration to this matter alongside other recommendations in the Macpherson Report. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 5 [Authorised bodies: designation and regulations and rules]:

[Amendment No. 30 not moved.]

Lord Goodhart had given notice of his intention to move Amendment No. 31:

Page 69, line 44, at end insert--
("( ) The Lord Chancellor shall not decide to grant the application unless at least two of the designated judges have advised him that the application should be granted.").

16 Mar 1999 : Column 669

The noble Lord said: My Lords, I do not propose to move my amendments in this group, but instead I shall support the amendments which stand in the name of the noble Lord, Lord Kingsland. I shall not move Amendment No. 31.

[Amendment No. 31 not moved.]

Lord Kingsland moved Amendment No. 32:

Page 74, leave out lines 36 and 37.

The noble Lord said: My Lords, I shall speak to Amendment No. 33 and the other amendments which are grouped with Amendment No. 32; but in doing so I shall be most telegraphic. This issue has been well rehearsed in Committee, at Report stage and, indeed, at Second Reading.

Part III of Schedule 5, as I am sure your Lordships now well know, enables the noble and learned Lord the Lord Chancellor to alter existing professional rules where he considers it necessary to do so.

This power is draconian. The noble and learned Lord the Lord Chancellor appears to be determined to have this power. Consequently, under the present provisions of Schedule 5, there is a real risk that amendments to professional bodies' rights of audience or rules of conduct might be made simply on the basis of political preference.

Amendment No. 33, in particular, would ensure that Her Majesty's Government's power is limited. Thus, power would be exercisable in Schedule 5, Part III, only if at least two of the four designated judges favour a change proposed by the noble and learned Lord. This would help to ensure that changes were made only where the judges considered they were necessary for the proper operation of the justice system of this country. I beg to move.

6.45 p.m.

Lord Ackner: My Lords, when the Government have a massive majority in the House of Commons the executive becomes all powerful and parliamentary scrutiny of the acts and intentions of the executive is not always as careful as it ought to be. That is when the constitutional principle of the separation of powers becomes more important. In its judicial capacity the House of Lords has emphasised that the British constitution is firmly based on the separation of powers. Those were virtually the opening observations made by my noble and learned friend Lord Steyn, a Lord of Appeal in Ordinary, in the Kalisher memorial lecture delivered on 13th October 1998.

When similar powers were sought by his predecessor some 10 years ago, the judges, who were carefully defined as the Lord Chief Justice, the Master of the Rolls, the President of the Family Division and the Vice-Chancellor, the Lord Justices of Appeal and Justices of the High Court, robustly stated as follows,

    "It is of fundamental importance that the existing degree of separation of the powers and functions of the Judiciary from those of Parliament and the Government, evolved gradually over the centuries, should be maintained. The independence of the Judiciary and of advocates is perhaps more important now than ever, because one of the great constitutional tasks of the Courts today is to control misuse of powers by Government ministers and departments.

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    "The Government is proposing that in the future the Lord Chancellor should make the final decision on standards of education and training for advocates, prescribe the principles to be embodied in codes of conduct for advocates, and be empowered to make decisions on rights of audience in the High Court and Court of Appeal by means of subordinate legislation. These proposals represent a grave breach of the doctrine of separation of powers.

    "Until now no Government minister has had, and no Government has sought power to exercise ultimate control over the profession of advocacy in the courts. Once a power is given, the risk that it may be misused by some future Government cannot be disregarded.

    "The Government should recognise that it has gone too far in making these proposals and should accept that such powers as the Lord Chancellor may require should only be exercised by him with the concurrence of the Judiciary.

    "In this way the necessary separation of the proper powers of the Judiciary from those of the Executive would be preserved".
The Government backed down and that is how the Lord Chancellor's advisory committee came to be set up.

The extraordinary thing in the context of this Bill is that the White Paper The Way Ahead, which was designed to premedicate the public generally in relation to the forthcoming Bill, and which sought these powers, never at any stage referred to the doctrine of the separation of powers, never at any stage referred to the past history, and in fact suppressed that very important aspect of the situation. I find this quite startling when one bears in mind the observations which the Lord Chancellor has made quite recently.

Prior to the issue of the White Paper the Lord Chancellor introduced legislation designed to enable him to have a Permanent Secretary in his department, some other civil servant than had been prescribed by the Supreme Court (Offices) Act. He said:

    "The Lord Chancellor is at a crucial cusp in the separation of powers between Parliament, government and the judiciary ... Under the previous government the public were disturbed that the separation of powers was not alive and well because the judiciary and the executive appeared to be at war. It is for the Lord Chancellor to ensure that the public can continue to have confidence that our system, based on the separation of powers, is working".--[Official Report, 25/11/97; col. 934.]
My noble and learned friend the Lord Chancellor very recently, on 17th February, in a debate specifically directed to separation of powers in the House of Lords between the judicial branch and the legislative and executive branches of government, initiated by the noble Lord, Lord Lester, said:

    "The protection of the judiciary from Executive interference is, in my view, a high order duty--perhaps the highest order duty--of any Lord Chancellor".--[Official Report, 17/2/99; col. 734.]
But my noble and learned friend the Lord Chancellor does not seem fully to understand the nature of the so-called doctrine because on the second day of the Debate on the Address the noble Lord, Lord Kingsland, raised the very issue of the separation of powers, and back came this very odd observation from my noble and learned friend the Lord Chancellor. He said:

    "So far as rights of audience go, I can reassure the noble Lord, Lord Kingsland, that there will be no violation of the separation of powers because, in the unlikely event that I, as Lord

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    Chancellor, having consulted with the judges and with the professions, have to exercise a fallback power to impose rules upon the profession ... I would not do so without the support of an affirmative resolution of both Houses of Parliament".
He continued:

    "When that is said, as I say quite unequivocally, I can see no ground for argument that there is any violation of the separation of powers".--[Official Report, 25/11/98; col. 127.]
However, that misunderstands the doctrine. It presupposes that the Lord Chancellor has removed, as he desires, the existing powers and, having done so, he then makes a decision which the judges do not like. In order to get further authority for his executive act he goes to Parliament for an affirmative resolution, which we all know he is bound to get.

Finally, what is even more startling is that the Lord Chancellor has given no reason why the designated judges should be relegated to a purely consultative role, nor has he paid the judges the courtesy of referring to their responses, which were indeed very hostile--that is the judges of the High Court in a separate memorandum, the Court of Appeal judges in a separate memorandum and the Council of the Inns of Court--to his White Paper. I support the amendment.

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