---

Baroness Amos: My Lords, I listened carefully to the comments made by the noble Baroness, Lady Park. I do not think that she asked me a specific question. I agree with her that there are issues of trust and confidence. I thank her for her comments on the institutions that we have set up in the past year, including the IMC. In response to her points on the document, she will understand that I cannot negotiate across the Dispatch Box, particularly on issues on which we have spent weeks negotiating.

Baroness O'Cathain: My Lords, I thank the noble Baroness the Lord President of the Council for repeating the Statement—we received a copy of it just before she delivered it—and for publishing the documents. The Government should be given great credit for publishing the documents last night.

Further to the contribution of my noble friend Lady Park, it is difficult to formulate a question. I shall try to form a question from the comments that I wish to make, but I ask for the patience of the House for just a minute or two. Could we have a different format in which to discuss the documents, if we do not get what I hope will be a Christmas agreement following a Good Friday agreement? That looks very hopeful. Is it possible to get time to flesh out the points in the documents, because there are deep concerns?

On a personal note, I was going to say that an agreement was so near yet so far, but I do not believe that: it is so very near. I am sad but not despairing. Further to the remarks of my noble friend Lady Park, does the noble Baroness believe the determination by the IICD that the presence as observers during the process of two clergymen nominated by the two Governments, following appropriate consultation, would be worthwhile? I am concerned after hearing my noble friend's points about a clergyman's ability to recognise Semtex, rocket launchers and so on.

Secondly, is there any way in which we could try to ease the humiliation felt by the IRA or Sinn Fein because of photographs? Thirdly, I suggest to the noble Baroness the Lord President of the Council that, although we are very grateful for the patience and perseverance of the Prime Minister and the Taoiseach,
 
9 Dec 2004 : Column 1028
 
thanks should be also given to the officials for their energy and determination. They so seldom get public recognition for their tireless efforts in this regard.

Baroness Amos: My Lords, I thank the noble Baroness, Lady O'Cathain. I agree with her remarks about the officials. That is why tribute was paid in the Statement not only to our Government's officials but also those of the Irish Government. They have worked tirelessly in this process.

The issues of transparency, the IICD and photographs will be the subject of the ongoing discussions, so it would be inappropriate for me to say at this point exactly what the end process of the discussions will look like. The end process would have to be agreed. That will partly be as a result of the discussions that my right honourable friend and the Irish Foreign Minister will have with the political parties next Wednesday.

I hope that I can help the noble Baroness in her request for a discussion of the outstanding issues in the documents and an opportunity to flesh out the points in them. My right honourable friend the Secretary of State for Northern Ireland has already indicated that he would like to come to this House to give an informal briefing to Peers with an interest, in the way that we have done in the past. He wishes to do that before we break for Christmas. We have just agreed a date; I will get in touch with all Peers on that.

Criminal Defence Service (Choice in Very High Cost Cases) (Amendment No. 2) Regulations 2004

The Parliamentary Under-Secretary of State, Department for Constitutional Affairs (Baroness Ashton of Upholland) rose to move, That the draft regulations laid before the House on 21 October be approved [31st Report from the Joint Committee, Session 2003–04].

The noble Baroness said: My Lords, in 2001 the Lord Chancellor established a new regime to improve control of the legal aid costs incurred by defence legal representatives in the most expensive criminal cases. The changes were introduced in response to concern that the proportion of the criminal legal aid budget taken up by the most expensive 1 per cent of criminal cases had risen from 40 per cent to 49 per cent of expenditure on criminal legal aid.

In August of this year amendments were made to the criminal defence service funding order and the criminal defence service general regulations that altered the definition of a "very high cost case" in criminal proceedings. This amendment followed a joint review of the existing very high cost case contract arrangements undertaken by officials of my department with the Bar Council and the Law Society. Previously, a criminal very high cost case was defined in regulations to be a case over which the trial was expected to last 25 days or more, or for which defence costs for any defendant or group of defendants represented by the same firm were expected
 
9 Dec 2004 : Column 1029
 
to be £150,000 or more. The August amendment substituted the condition of 41 days or longer in place of the 25 days and removed the £150,000 estimated cost requirement.

The Law Society and the Bar Council were consulted about the August 2004 amendments and accepted that this consequential instrument would be needed. The elements set out in the order have not given rise to any opposition on consultation, and both the Law Society and the Bar Council have been notified of our intention to proceed with this part of the package. Indeed the overall arrangements for very high cost criminal cases have been accepted by the legal profession and provide a basis on which cases can be conducted in a way that is fair to lawyers and gives good value to the taxpayer. In my view, the provisions of the regulations are compatible with convention rights. I beg to move.

Moved, That the draft regulations laid before the House on 21 October be approved. [31st Report from the Joint Committee, Session 2003–04].—(Baroness Ashton of Upholland.)

Lord Goodhart: My Lords, we understand that, as the Minister said, the regulations have been negotiated with and accepted by the Bar Council and the Law Society. They are an attempt to deal with a very serious problem in what seems to us, in the circumstances, an acceptable way. Therefore, we are happy to support the statutory instrument.

Lord Kingsland: My Lords, I agree with the noble Lord, Lord Goodhart, and have nothing to add.

On Question, Motion agreed to.

Institute of Trade Mark Attorneys Order 2004

Baroness Ashton of Upholland rose to move, That the draft order laid before the House on 3 November be approved [34th Report from the Joint Committee, Session 2003–04].

The noble Baroness said: My Lords, this order is presented under Section 29 and Part I of Schedule 4 of the Courts and Legal Services Act 1990, and seeks to grant fellows and ordinary members of the Institute of Trade Mark Attorneys rights to conduct litigation and rights of audience in England and Wales. I shall explain the role of fellows and ordinary members in just a moment.

Historically, the right to conduct litigation has been the preserve of solicitors and rights of audience have been the preserve of barristers and, to a lesser extent, solicitors. However, since the relevant aspects of the Courts and Legal Services Act 1990 were enacted, there has been a gradual extension of bodies authorised to have rights of audience and rights to conduct litigation—first, to the Institute of Legal Executives in 1998 and, secondly, to the Chartered Institute of Patent Agents in 1999.
 
9 Dec 2004 : Column 1030
 

This order, if approved, will extend rights of audience and rights to conduct litigation to a further category: those fellows and ordinary members of the Institute of Trade Mark Attorneys who have completed the LLM course in intellectual property litigation. Ordinary members are defined as those who have either passed the institute's qualifying examination for entry on the Register of Trade Mark Attorneys or have become registered after gaining certain other recognised qualifications in intellectual property. Fellows are individuals who, before election to fellowship, were ordinary members for at least five years, who have practised in trade mark agency work and who, in the opinion of the Council of Trade Mark Attorneys, have contributed significantly to the aims and objectives of the institute.

The institute first submitted its application for authorised body status in June 1999 to the Lord Chancellor, who subsequently referred it to the Advisory Committee on Legal Education under the procedure set out in Schedule 4 of the 1990 Act. In October 1999, the committee advised that in general the application was strong but would benefit from further improvement in certain areas. Following that advice, ITMA submitted a new application in March 2001. This application was referred to the Legal Services Consultative Panel, ACLEC's successor, and the OFT for consideration. Both those bodies rigorously scrutinised the application and subsequently advised the Secretary of State. The advice of the panel is publicly available on the DCA website. The application has also been scrutinised by the designated judges who, on 16 July 2004, confirmed their support for ITMA's application. On that basis, the Secretary of State has approved the order that I lay before you today.

The order will not affect the rights that are currently held by ITMA. It will enable the institute to grant to its members the right to conduct litigation in the Chancery Division of the High Court, including the Patents Court, in the county court, including the Patents county court, and in community trade mark courts; and to conduct appeals from the Comptroller General of Patents Designs and Trade Marks, the patents county court, the county court, and the Chancery Division of the High Court, in respect of any matter relating to the protection of any trade mark or design, or as to any matter involving passing off, and certain ancillary matters relating thereto.

The order will also enable the institute to grant rights of audience in hearings in the county court, including the patents county court, in trade mark and design litigation; hearings before the appeal tribunal constituted by the Registered Design Act 1949; and hearings in private on interim matters in the course of trade mark and design litigation. The institute will be able to grant these rights to suitably qualified ordinary members and fellows who have completed the LLM—Master of Laws—course. Those fellows of the institute who are solicitors or barristers may be granted an exemption from completing the course as they already hold those rights. This course will develop a knowledge base to supplement the material that is already covered by the institute's examinations.
 
9 Dec 2004 : Column 1031
 

The effectiveness of the authorisation is currently limited by the fact that trade mark cases can be heard only in the High Court. As a result, while trade mark agents would nominally be able to bring cases in the county court, given the specialised nature of their work, it is highly unlikely that there would be any cases that they would be qualified to handle. As such, they would remain at a disadvantage to other litigators, such as patents agents, who have been able to bring patents cases in the county courts for some time. To ensure a more even balance between these two sectors, in particular, the Government intend to bring forward a separate, complementary order under Section 1 of the Courts and Legal Services Act 1990 specifically to extend the jurisdiction of appropriate county courts to allow them to hear trade mark cases. That additional measure has the full support of the senior judiciary.

The order will allow clients of trade mark agents, who need to use the courts, to instruct and deal with one person. The trade mark agent will not have to instruct a solicitor and/or a barrister in order to progress his client's case. That could lead to lower costs for businesses, in particular small and medium-sized companies by cutting out an unnecessary tier of expense. Of course, the trade mark agent would be able to go straight to court.

One consequence of the success of this application is that fellows who become authorised advocates or litigators may need to come within the Jurisdiction of the Legal Services Ombudsman. The Legal Services Ombudsman oversees the handling of complaints about members of the legal profession. The support and advice of the ombudsman would be important in seeking to ensure the standards of service provided by fellows of the institute are maintained. With that in mind, we are currently liaising with the Legal Services Ombudsman to assess whether or not an additional order will be necessary to extend the LSO's jurisdiction to cover ITMA.

I should stress that the lack of an order at this time will cause no harm to clients. As noble Lords will notice, the order will not come into force until 1 April 2005, when the jurisdiction of the county courts is extended. If an order is needed, it can be laid early next year. The institute has its own complaints handling system. Complaints regarding litigation are dealt with by the litigator conduct committee, while those that concern non-litigation matters are dealt with by the professional guidance and disciplinary committee.

Approval of this instrument will lead to a small but important increase in the number of people qualified to appear before the courts. Trade mark agents work in a small, highly specialised field and it is right that the public are given every opportunity to draw on the expertise within the profession. I commend this order to the House. I beg to move.

Moved, That the draft order laid before the House on 3 November be approved. [34th Report from the Joint Committee, Session 2003–04].—(Baroness Ashton of Upholland.)
 
9 Dec 2004 : Column 1032
 

---