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Lord Davies of Oldham: My Lords, bed taxes are a thorny issue, which is part of a general review that will emerge in the not-too-distant future. I have no comment to make about that at present, except to say that it is purely a proposal. On the other point identified by my
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The Lord President of the Council (Baroness Amos): My Lords, the UN statement reflects the acute security situation in Darfur. I utterly condemn the rising violence in recent weeks against aid workers by all sides. Humanitarian agencies are struggling to deliver vital assistance to nearly 4 million people in Darfur in increasingly difficult circumstances and at great personal risk. The United Kingdom calls on all sides to provide safe and unhindered access throughout Darfur.
Baroness Northover: My Lords, I thank the noble Baroness for that reply and for the work of the United Kingdom in this area. Does she agree with the United Nations agencies when they warn that they are having difficulty holding the line? That was not clear from her Answer. I note that the Government are supporting moves to increase the number of African Union troops in Sudan. Therefore, what is the Governments view about the Sudanese President becoming the president of the AU, and what effect might that have on the situation in Darfur?
Baroness Amos: My Lords, we are extremely worried about the humanitarian situation. Of course, we have to use political mechanisms to try to bring about a ceasefire, and that is what we are seeking to do. In addition, the talks last year in Addis Ababa resulted in the international community mapping out a way forward, including the need not only for a ceasefire but for a renewed political process and a hybrid AU/UN peacekeeping force. That is now being put in place but movement on it is slow. The issue of President Bashir and the African Union is a matter for the African Union. However, we have drawn to the AUs attentionwe went through the same debate last yearthe importance of ensuring that whoever leads the African Union can command the respect of the international community.
Lord Alton of Liverpool: My Lords, I welcome what the Leader of the House has just told us, but can I draw her back to the statement of the UN aid agencies? They say that, without decisive intervention, the humanitarian situation will be irreversibly jeopardised. They point out that access has already been compromised and is worse than at any time since April 2004, and that in the past six months 400 aid workers have been forced to relocate 31 times. Does the Leader of the House not agree that, along with the 4 million people who are now being denied access and the 400,000 who have died in Darfur, a principal casualty has been the Security Council, as its credibility and authority have been eroded by our failure to take decisive action?
Baroness Amos: My Lords, the noble Lords last point demonstrates the difficulty experienced by the international community, including the Security Council, in implementing the whole Responsibility to Protect agenda, which was such an important part of the UN decision-making process. I think that we all recognise that.
Access is difficult. In July last year, half a million people did not have access to humanitarian supplies because of the difficult situation, whereas the number of people affected in January this year has so far been some 70,000, although we think that that figure will rise. I can say to the House that nutrition and health indicators have remained relatively stable so far, but we have to watch this situation because it will become critical if the inaccessibility continues.
Lord Howell of Guildford: My Lords, on that last point, has the Lord President noted that some of the thousands of refugees being pushed into Chad are reported to have hideous diseases, including leprosy and many other appalling conditions? Does she accept, when she talks about calling on all sides, that the roots of the constant murdering by Arab nomads of the people of the Darfur region lie in quarrels over resources, particularly over oil and the Chinese investment in and development of oil, which it is taking out of Sudan? Will she be sure that all sides includes a sensible and close discussion with the Chinese so that they take some responsibility for the impact and consequences of their moves right over Africa, particularly in Sudan, in developing oil and local resources? Those actions are having repercussions, which are leading to murder on a massive scale.
Baroness Amos: My Lords, I agree that many of the conflicts, in particular the conflict in Darfur and more widely in Sudan, are to do with access to resources, but they are also to do with inter-ethnic fighting and other issues. The noble Lord will know that we are talking to the Chinese not only in the context of their role on the Security Council but more generally on the role that they are playing across the African continent as a whole. We are aiming to work with the Chinese to ensure that there is sustainable development on the continent, and they have a responsibility in ensuring that that happens.
Lord Avebury: My Lords, considering the gross obstruction of the UN humanitarian agencies as well as the resumption of bombing attacks on civilians and the refusal of Khartoum to co-operate in the delivery of the life support package, does the noble Baroness agree that it is time to refer the matter again to the United Nations so that it can revisit Resolution 1706 and ensure that we do not face an overwhelming humanitarian disaster in Darfur?
Baroness Amos: My Lords, the noble Lord, Lord Avebury, will know that the new UN Special Representative for Darfur is visiting the region at the moment. Once that report has been received, that will be the opportunity for the Security Council to look at the issue again.
The Earl of Sandwich: My Lords, we give enormous sums of money through the British Government and the United Nations to relieve suffering such as that in Darfur, yet we are never aware of the danger that faces the humanitarian workers themselves. I take this as an appeal from those workers as much as from the people who are suffering. The Government could pay more attention to our own humanitarian workers.
Baroness Amos: My Lords, I agree that the situation facing humanitarian workers in Darfur is extraordinarily difficult. The only reason why the health and nutrition indicators that I mentioned are not much worse is precisely that those humanitarian workers have been doing such a good job in incredibly difficult circumstances. Where I take issue with the noble Earl is about the fact that the safety and security of our humanitarian workers, including those in NGOs, is extremely important to us. DfID funds some of those who give training with respect to their security and we will continue to put this at the top of our agenda.
The Lord President of the Council (Baroness Amos): My Lords, I beg to introduce a Bill to provide for joint departments of the Houses of Parliament; and for connected purposes. I beg to move that this Bill be now read a first time.
The Parliamentary Under-Secretary of State, Department for Constitutional Affairs (Baroness Ashton of Upholland): My Lords, on behalf of my noble and learned friend, I beg to move that the House do now again resolve itself into Committee on this Bill.
Clause 32 , page 16, line 30, at end insert ; and a direction given shall be subject to judicial review on which proportionality, compliance with the European Convention on Human Rights, the independence of the legal profession and the quality of legal advice, may receive consideration
The noble Lord said: I shall also speak to Amendment No. 139F and, by leave, refer to Amendment No. 65. I thank my noble friend Lord Hunt of Wirral, with whom I had the privilege to serve on the Joint Committee, for his support. In every sense of the word, these are probing amendments.
Baroness Farrington of Ribbleton: Would the noble Lord, Lord Campbell of Alloway, be so helpful as to say whether that means that Amendment No. 65 is now re-grouped with these two amendments? It would be helpful to know that when Members debate the group.
Lord Campbell of Alloway: Yes, but I have to refer to it as relevant. I have had a word with the noble Lord. Thank you very much. Amendment No. 139F would subsume Amendment No. 52 because it is applicable only to directions from the LSB under Clause 31. The situation has changed overnight. My noble friend Lord Kingsland raised the issue of judicial review at Second Reading but there was no response to his question. Yesterday, at about three o'clock, I said:
At 10 o'clock it was accepted that the LSB was subject to judicial review, a concession for which I am indeed grateful, so I scrapped my speaking notes. Today, therefore, the question that arises is whether that concession should be in the Bill. Should it be in Amendment No. 139F or Amendment No. 65 or in neither? I am not speaking to the amendment, but merely referring to the dilemma. We now have to address that issue. If that is so, in what form should that amendment be?
This is not just a situation in which we can sit back and rely on Pepper v Hart, which is a source of last relief. As appears from yesterdays debate on the framework within which the LSB operates, it is not at all clear, and clarity is highly relevant to judicial review. We must therefore consider, in summary, what we are dealing with. Today, we are in effect dealing with a continuation of what happened yesterday. It was proposed that the structure of the Bill should define the parameter within which the LSB should exercise its discretion; that the integrity of the approved regulators be acknowledged in the Bill; and that the quality and standards of legal services be maintained, as set by self-regulation, and recognised in the Bill. It was also proposed that a fair balance between the interests of the consumer and the approved regulator be assured; that the LSB should only intervene on the complaint of the consumer after notice has been given to the approved regulator to enable representation; that some acceptable means to that end should be devised; and that the conflict between the regulatory objectives was to be resolved proportionately, taking into account all such obligations of like importance on a balance, if fine, to be tipped in favour of public interest, as spoken to on Clause 1.
That could be achieved by a series of piecemeal amendments, or by a trigger clause in primary legislation, requiring the Secretary of State to introduce regulations enabling him to issue and require a code of practice, having full legal efficacy in the civil field, as spoken to by Lord Denning, Lord Elwyn-Jones and Lord Henderson of Brompton, the noble and learned Lord, Lord Cameron of Lochbroom, and other noble Lords in a short debate on 15 January 1986, cols. 1075 to 1104. Such a code could assimilate merely procedural provisions without eroding or overloading the structure of the primary legislation.
I do not know how this is to be resolved. It could be a multi-approach: some of the procedural provisions could be dealt with in the code, having legal effect; some provisions would essentially have to remain in the Bill. I cannot entertain how that should be done; in fact, I do not know. It is a difficult matter to resolve, but I do know that it must be done.
If the Government were to accept Amendment No. 65, then, subject to the advice of my noble friends Lord Kingsland and Lord Hunt of Wirral, one would have to consider whether these judicial review amendments would be required in the amended Bill, or whether they would be otiose, as the principle would have been accepted.
I do not wish to take much more time, but I shall conclude with a word to seek to alleviate the concern of the noble Lord, Lord Whitty, who I am glad to see in his place. I have the greatest possible respect for him, and I have disagreed with him on too many occasions. With respect, the noble Lord seems to be unaware that consumer interests can be contrary to public interests and that if they are, as was explained by the noble and learned Baroness, Lady Butler-Sloss, they must be subservient to the public interest. That is the first concept that I ask the noble Lord to consider. The noble Lord does not seem to be aware that it is in
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Lord Hunt of Wirral: I am very grateful to my noble friend Lord Campbell of Alloway not only for his tremendously hard work on the Joint Committee, but also for giving us an opportunity to look at what rights of appeal exist about decisions of the Legal Services Board. The amendment, to which I readily put my name, provides for one means of challenge, but the Joint Committee was greatly exercised by the fact that the Bill provides restricted rights of statutory appeal. Paragraph 186 of the Joint Committees report states:
Other than in one case, the draft Bill provides no right of appeal against the decisions of the LSB ... In short, an approved regulator has a statutory route of appeal against the imposition of financial penalties, but no access to judicial review. If any other sanction is imposed, there is no statutory right of appeal, but the decision of the LSB may be subject to judicial review.
Many of the witnesses who gave evidence were concerned about the restricted rights of statutory appeal. The Government, in their response, rejected the recommendation at paragraph 191 of the report where the Joint Committee stated:
We support the recommendation of the House of Lords Select Committee on the Constitution on this issue and we recommend that the draft Bill be amended to include a right of appeal to the High Court against regulatory decisions by the Legal Services Board. In line with existing practice, this right to appeal to the High Court should require the permission of a judge.
Turning to judicial review, there have been a number of interesting casesI see some very wise judicial minds present in the Chamber who have much more knowledge than Iand in the case of R v Ministry of Defence ex p Smith  the then Master of the Rolls, Sir Thomas Bingham, referred to the courts seeking to fill a vacuum. He said:
To avoid a vacuum in which the citizen would be left without protection against a misuse of executive powers the courts have had no option but to occupy the dead ground in a manner, and in areas of public life, which could not have been foreseen 30 years ago. For myself, I am quite satisfied that this unprecedented judicial role has been greatly to the public benefit.
Absent a written constitution much sensitivity is required of the parliamentarian, administrator and judge if the delicate balance of the unwritten rules evolved (I believe successfully) in recent years is not to be disturbed, and all the recent advances undone ... But the boundaries remain; they are of crucial significance to our private and public lives; and the courts should I believe make sure that they are not overstepped.
The Governments consultation paper Access to Justice with Conditional Fees, published in March 1998, was a disaster if ever there was one because no proper research was carried out into conditional fees; there were no pilot schemes or anything of that kind. However, it stated:
The Government believes that the ability to challenge the acts or omissions of public authorities is a necessary check on the use of the power of the State and a positive encouragement to maintain high standards in public administration or by public bodies.
So, in a way, judicial review is where the judiciary has had to assume the constitutional responsibility of curbing power. Speaking on behalf of the Joint Committee and its unanimous recommendation, I would far prefer that the Bill clearly set out exactly what rights the approved regulator has so far as appeal is concerned. That is why I await with great interest what I hope will be a positive response to the amendment from the Minister.
Broadly, the Bill spells out three powers for the Legal Services Board: to give directions, to issue censures and to impose financial penalties. It is perhaps slightly remarkable that such detailed attention is given to the issue of how there may be an appeal against financial penalties but not to appeals against public censure or directions, which may be challengeable in the public interest. The question is very simple: why the distinction?
Lord Lyell of Markyate: This is an important point, whether one looks at Amendment No. 52, which we are currently discussing, or Amendment No. 139F, which is grouped with it. We shall come to it in a different guise when we come to Amendment No. 56 and the amendment in the name of the noble Lord, Lord Maclennan of Rogart. It is all about the question of appeal, whether in the form of a straightforward appeal to the High Court, as we find in Amendment No. 56, or of judicial review. It comes down to a principle that I think the Government would readily accept, that no body that exercises power ought to exercise it in the absence of review to the courts or some superior appellate body. That is a very important constitutional principle; otherwise the power is potentially unfettered.
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