---

I will not speak for long; I do not for a moment believe that more than a few noble Lords are in the Chamber to hear me wind up the debate on this amendment. They are here for another reason that I cannot think of. However, it is necessary to make one or two points. Although of course I will not press the amendment, the issue is important and we may well come back to it on Report because it is fundamental to the Bill. If the Bill comes into force with us knowing so little about what its effects and costs are likely to be-whether to the MoJ, other government

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departments or society as a whole-that is not a satisfactory way of law making. This is not a political point but a common-sense point, and I hope that the debate has been conducted from a common-sense point of view.

The points I want to make are these: everyone around the House, including my party, knows that savings have to be made in the legal aid budget. Of course that is right. We put forward proposals in relation to criminal legal aid in the last few months when we were in government. We said it in our manifesto. Other proposals for savings in legal aid have been put forward in various amendments that we are going to debate in due course in this House. The Law Society has also put forward proposals. The question is not: should there be cuts in legal aid? The question is: where should those cuts be?

For the life of me, I cannot understand why the Government have chosen that part of legal aid-the social welfare law part, the law of everyday life, which is a pretty small part of it, in fact-which in its own way works successfully in helping the most underprivileged in our society get basic legal advice on legal problems that affect their daily lives. It follows that that early advice often sorts out the problem and means that courts and tribunals are not bothered with hopeless cases and that people's lives can be improved. I cannot for the life of me understand why the Government should have chosen that aspect when they refused to do anything about criminal legal aid, where a number of us think that there is room for substantial savings in some parts of it. It is disappointing that when the Government say that they are not going to implement Part 1 of the Bill until April 2013, they go on to say that they are not even going to look at criminal legal aid again until 2015. That is disappointing. That is my first point.

My second point is that we believe that it is a false argument that the Government have chosen life and liberty as the only places where legal aid should apply today. The point has already been made in this debate that it is difficult to think of a more obvious place where legal aid is appropriate than to solve legal problems that affect people who are, through no fault of their own, poor or disabled or who lack any privileges. That is surely where a legal aid system should bite. To remove legal aid from there is a completely wrong thing to do.

I thank the Minister for his contribution because it is not easy to face the Committee which, on this issue at least, is pretty dead-set against him. He made a point about how weekly reports come out suggesting that the policy is wrong, and he appeared to criticise that. The fact is that there would not be so much criticism if the Government had done the work they should have done before they tried to legislate in this way. All we ask is that in the time between now and Report, he goes back to his department and asks-I do not think he answered this in the debate-why the Government have not done the assessments of costs and social costs so that Parliament has a better idea of what it is being asked to legislate for. The Government have clearly not done the work that should have been done-that is a pretty universal feeling around the Committee. It is not too

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late for them to start doing it now, and I would encourage them to do so. I beg leave to withdraw the amendment.

Amendment 6 withdrawn.

House resumed.

Railways: High-speed Rail

Statement

5.55 pm

Earl Attlee: My Lords, with the leave of the House, I will now repeat a Statement made in the House of Commons by my right honourable friend the Secretary of State for Transport. The Statement is as follows:

"Mr Speaker, this morning I made a Written Statement to this House announcing my decision to give the go-ahead to High Speed 2-a national high-speed rail network. With the exception of High Speed 1, it will be the first major national railway line to be built in Britain since the grand central line in 1899. I would like to provide Members with further detail of the substance and rationale for my decisions.

I weighed up the evidence after one of the largest public consultations in our history. We wrote to more than 172,000 people living or working near the proposed line from London to the West Midlands, visited communities along the 140-mile route and held 41 days of road shows attended by almost 30,000 people over the five-month consultation period. Almost 55,000 responses were received from individuals, businesses and organisations across the country, representing a wide spectrum of views, many of which were strongly expressed both in favour of and against high-speed rail, views I carefully considered in making my decisions.

Since becoming Secretary of State for Transport, I have examined all the available evidence, including the work undertaken by my right honourable friend the Member for Runnymede and Weybridge and the previous Labour Administration in developing the consultation proposals, the evidence submitted during consultation and the further work undertaken by my department and HS2 Ltd. My decision had to take in the full environmental impact of HS2, but also the benefits of HS2 to our economy, to jobs and to competitiveness, not just today, but decades into the future. I also had to be clear about the implications of not investing in high speed, how that would affect our leading cities and how that would affect the road network and aviation.

Generating growth and helping people back to work, supporting Britain's companies and wealth creators so they can compete and win in the global marketplace-these are at the top of this Government's priority list. From day one in office, the coalition has had a laser focus on investing in and modernising this country's transport infrastructure. Now, when it came to HS2, I could have made the easy choice, gone for the short-term option, rely on a patch-and-mend approach and leave our rail networks overstretched, overburdened and less resilient.

Well, let us be clear: the price for that would have been paid in lost business, lower growth, fewer jobs and more misery for passengers. We would have failed

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future generations who are depending on us to create the prosperous country they will want to live in. Good government is about acting in the long-term national interest. It is about taking decisions, however difficult, to improve people's quality of life and the country's economic prospects not just for the next four or five years but for the next four or five decades.

Our Victorian predecessors would have had immense pride to see their railways providing massive benefit today, over 100 years later, but as a result of today's announcement the railway revolution they started is happening once again. We are ready for a new chapter in Britain's transport history, one that is designed to boost our economy and our country just as the first coming of the railways or the motorways did for previous generations. That is precisely why I have given the green light to HS2.

In spite of the challenges of rising demand, our railways have been a huge success since privatisation. Passenger demand is growing year on year, particularly in the inter-city market, but I also recognise that further rounds of upgrades to our major north-south lines, even if they offer apparently good value for money, can provide only a short-term fix, one that is incapable of meeting the long-term challenge. In truth, they could add only limited further capacity. They could not offer the step change in performance that passengers wish to see. Moreover, upgrades would consign rail passengers and the vitally important rail freight industry to years, if not decades, of future engineering disruption, delay and unreliability-something users of the west coast main line will remember only too well.

Therefore, the question is not, "Do we build new lines?"; it is, "What type of new line should we build?". When you weigh up the economic and social rewards, there is only one answer: high-speed rail. A high-speed line will deliver £6.2 billion more of benefits to the country than a line running at conventional speeds-at an extra cost of only £1.4 billion. By slashing journey times, as well as providing the step change in rail capacity that we need to keep the country moving, it will give a return on the additional investment of more than four to one. A modern, reliable and fast service between our major cities and international gateways, befitting the 21st century, will transform the way we travel and promote Britain's economic and social prosperity.

HS2 will be built in two phases to ensure delivery of its benefits at the earliest possible opportunity. Phase 1 will link London to the West Midlands, plus a direct connection to the continent through the Channel Tunnel via High Speed 1. Even in the first phase, cities and towns off the HS2 network such as Stockport, Warrington, Liverpool, Preston and Glasgow will be served by trains able to use both HS2 and existing intercity lines, saving over half an hour on journeys to London. Phase 2 will provide onward legs to Manchester and Leeds, with intermediate stations in the East Midlands and South Yorkshire, plus a direct connection to our international hub, Heathrow Airport.

HS2 will mean very substantial time savings between Britain's cities, reducing the journey from Birmingham to Leeds from two hours to just 57 minutes, and

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Manchester to London from two hours eight minutes to only one hour eight minutes. Edinburgh and Glasgow will benefit from a three and a half-hour journey time from London, encouraging modal shift from short-haul flights to high-speed rail.

In delivering HS2, I look forward to working with the Scottish Government and others to identify and evaluate options for developing the high-speed network and further reducing journey times. However, I emphasise to the House that in making my decisions I have been particularly mindful of our responsibility to safeguard the countryside and its wildlife, and to protect local communities as far as possible. I have worked hard to look at more tunnelling, to lower the route into cutting to reduce visibility and to move the route away from homes wherever viable. I have looked at how we can better protect our landscape, wildlife and heritage. My engineers have carefully re-examined the route in light of all the evidence, and I can therefore announce a package of alterations that significantly reduce the railway's impacts.

The improvements include a longer, continuous tunnel under the Chilterns from Little Missenden to the M25, and a new 2.75-mile bored tunnel along the Northolt corridor to avoid major works to the Chiltern line and impacts on local communities in the Ruislip area. Of the 13 miles through the Chilterns area of outstanding natural beauty, fewer than two miles will be at or above the surface; the rest will be in deep cutting or tunnel. There will also be a longer green tunnel past Chipping Warden and Aston le Walls, another longer green tunnel to reduce impacts around Wendover, and an extension to the green tunnel at South Heath. There will also be a green tunnel past Greatworth. These are just a few of the suite of improvements, which are detailed in full in the Command Paper I presented to the House this morning.

The changes will bring significant benefits to communities and the environment. Compared to the consultation route, there will be a more than 50 per cent increase in tunnel or green tunnel, totalling around 22.5 miles. In addition, around 56.5 miles will be partially or totally hidden in cutting, a key way of helping to reduce noise in neighbouring communities. There will be 10 miles fewer of viaduct or embankment. In all, this means that around 79 miles-more than half the route-will be mitigated by tunnel or cutting. The revised tunnel alignment through the Chilterns will avoid an important aquifer, significantly reducing impacts on water resources. There will also be a reduction in the impacts on ancient woodlands and heritage sites.

Communities affected will benefit from the changes, with a near 50 per cent reduction in the number of dwellings at risk of land-take, and the number experiencing noticeably increased noise levels reducing by a third to just over 3,000 properties. I have always been very clear in my mind that, whatever the mitigation measures, there can be little comfort in knowing that the country will benefit enormously from HS2 when it is your house or business that has to be knocked down to make way for it.

The meeting I had with MPs last year allowed many of those representing communities along the proposed route to communicate to me directly the

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views of their constituents. To help people, we will bring in a package of compensation measures over and above what affected homeowners are already entitled to under law. These include: a streamlined purchase scheme to simplify the statutory blight process for property owners; a sale and rent-back scheme to give homeowners within the safeguarded area more flexibility; a streamlined small claims scheme for any construction damage; and a package of measures to reinforce confidence in properties above tunnels.

Homeowners will be offered before and after surveys, a thorough assessment of the impact of similar tunnels, an explanation of the measures that will be taken to prevent perceptible vibration impacts, financial compensation for the compulsory purchase of subsoil, and a legally binding promise that HS2 will be permanently responsible for resolving any related settlement or subsidence issues. There will also be a refreshed hardship-based property purchase scheme. Finally, we will work constructively and in a structured way with local authorities along the line of route to minimise the negative consequences of HS2 and maximise the benefits.

Having made the decision to press on with HS2, my intention is to drive it forward as fast as is practicable so that we can gain from its benefits as early as possible, and to end unwelcome uncertainty for those affected. A key part of this will be to engage fully and actively with organisations, communities and individuals along the whole Y network. People presented legitimate concerns in the consultation and, even though we have made significant improvements, I am keen to work hard with local communities so that as many concerns as possible are properly addressed.

I have instructed HS2 Ltd to undertake a range of activities to prepare for and to deliver both phases of the network. It is my intention to introduce a hybrid Bill by the end of 2013, including a detailed environmental impact assessment, to provide the necessary powers to construct and operate the line from London to Birmingham. I have instructed HS2 Ltd to deliver this project at pace but within milestones that will stand the test of time and with regular reporting to me on progress. The Major Projects Authority, which this Government launched last March to improve the performance of major government projects in delivering on time and in budget, will provide critical support and oversight.

This spring we will consult on the draft directions for safeguarding the proposed route from London to the West Midlands, as well as separately consulting on detailed compensation proposals. I aim to bring final safeguarding directions and an agreed compensation policy into effect later in the year. In March this year HS2 will advise me on route and station options to Manchester and Leeds, and in autumn 2012 we will start an engagement programme on a preferred route to discuss local views. I warmly welcome the political consensus on HS2 on the basis that it will help in the planning and construction of this transformational scheme as it is carried through to completion.

HS2 matters to the long-term success and prosperity of the whole of Britain. It will help to create jobs, support growth and regenerate our regions. It will

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better connect communities and improve people's opportunities. With its potential to attract people and freight on to trains and away from long-distance road journeys and short-haul flying, combined with the increasing decarbonisation of the grid, HS2 is an important part of transport's low-carbon future

Britain has faced such challenges before. The Victorian railway pioneers had the vision to build a rail network that has promoted growth and created jobs for more than a century. Those innovators transformed this country's fortunes. Our industries flourished, our exports multiplied and our economy grew wealthy. Half a century later, another generation had the vision to start building the motorway network. Post-war planners developed the motorway network, connecting major cities and transforming the capacity of our road network.

Half a century on again, we now need to do for our Victorian railway what previous generations did for our road network. The time has come again to seize the moment, to be ambitious and to show the world that this is a can-do country. The lesson from history, and the lessons from our global competitors, is that no matter how hard times are, we cannot stop planning for the future, or investing in our infrastructure, if we want Britain to flourish.

HS2 will be the backbone of a new transport system for the 21st century, offering the vital capacity that we need to compete and grow as a country. It will transform the economic shape and balance of our country, linking our major cities to a level that previous generations could only dream of. By backing HS2, this Government are backing Britain, and I commend the Statement to the House".

That concludes the Statement.

6.12 pm

Lord Davies of Oldham: My Lords, the House is grateful to the Minister for repeating the Statement made earlier today in the other place. He made reference to the fact that the Government welcome the political consensus that revolved around this project. That consensus is secure as far as this party is concerned, which is why the Minister can anticipate a gentle inquisition from me at the Dispatch Box this evening, with perhaps one proviso.

The noble Earl will know how much we have invested in this project in terms of the origins being the significant work done by the last Labour Government, particularly by a Secretary of State who served in this House, my noble friend Lord Adonis. Recently, he went before the Transport Select Committee of the other place and reasserted the most cardinal of points with regard to the progress of this project. He said that he had always intended and had hoped that the committee would see the value of the legislation covering the whole of the route-not just London to Birmingham but to Manchester and Leeds as well in one Bill.

The Minister needs to address that very important question. I hope that this evening, from the Dispatch Box, at the very least he will indicate that the Government will continue to think about this. After all, he has just mentioned the fact that the Victorians had the courage to build a railway system in this country. The courage of the Victorians was to engage the other place and

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this House in constant legislation to ensure that the railways could be built. If it had not been for that commitment to railway legislation, we would never have had the network that we eventually came to enjoy.

I say to this Government that, in the 21st century, they have to address the issue of legislation as well, which means that they have to think about the fact that the Bill-I recognise the hybrid nature of the Bill-should cover the whole of the routes. That would give the real earnest of intention as regards the north of England and it is how we would engage the whole of our economy with confidence for the future in terms of this investment. I hope therefore that the noble Earl will be positive in his thoughts on these matters. If he is not able to be too assertive at the Dispatch Box today-I recognise that the Statement has been drafted and delivered elsewhere-I hope that he will join the lobby for the necessity of this legislation.

I know that that will mean some delay in the introduction of the Bill beyond the date indicated by the noble Earl. It would certainly require carry-over provision for the Bill to be successful. But that is exactly what we did with Crossrail and have recently done with the most important investment project in terms of rail in southern England in recent years. I am merely asking the Government to take this very important point on board.

I also ask the Government to look at costs with regard to this line. We appreciate their solicitous concern about the environment and the countryside, especially when that concern is addressed to them almost daily by those Members of Parliament who represent those particular areas and happen to be of the Government's persuasion, particularly if one of them happens to be a Secretary of State in the Cabinet. We should welcome support for the environment from wherever it comes, particularly when it is effective.

However, this choice of route does not have the advantage of the route advocated by my party, which would have greatly reduced the impact on the Chilterns and, therefore, cost considerably less. I know that the noble Earl emphasises the costs of the alternative route, but this route requires extensive tunnelling at very significant cost. It requires a spur to Heathrow. Quite frankly, we do not have a chance of getting any European money unless this high-speed link has a relationship to Heathrow. It must have an international European dimension of benefit to it for us to qualify for European money. But the Government did not follow our argument and have chosen this one, which has much less security as regards the position of the link with Heathrow.

I should also like to ask the Minister whether the Government have begun discussions with the Scottish Government for the development of the network to Scotland, which is of enormous importance to the United Kingdom economy and is not unimportant to the future of the United Kingdom in a more general sense. I hope that they are giving due weight to the necessity of discussions on the long-term future with regard to that.

I hope also that the Government have taken into consideration the long-term costs of their proposals for this line. Do they think that any other significant

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transport development is going to take place in this country, whether that be for road or rail? Do they think that anyone is going to fail to build on the lobbying that has emphasised the essential environmental costs involved and the expenditure necessary to protect the environment? Do they think that other parts of the country are not going to be similarly concerned about the beauties of their own areas, too? I hope that the Government recognise the long-term costs of the strategy that they are pursuing.

I have two fairly brief questions, which the noble Earl might care to develop later. First, reference has been made to the work done on the number of flights that may be saved by the high-speed train. I would be grateful if he could give some indication of the department's calculations on this. Secondly, while we recognise that this line is all about passenger transport, one crucial rationale for it is the extent to which it will free up capacity for the exploitation of our existing railway network. Almost as a throwaway comment, a passing reference was made to freight-that is what it was, a passing reference consisting of one sentence. I hope that the Minister will be able to give us a little more on how he thinks that aspect is to be considered.

Finally, of course we support the development of this project. We strongly support the building of HS2. However, a great deal of work needs to be done before the concept of today becomes the reality of tomorrow.

6.22 pm

Earl Attlee: My Lords, I am grateful for the support of the noble Lord, Lord Davies of Oldham. I have no hesitation in paying tribute to the work of the noble Lord, Lord Adonis. The noble Lord asked about legislation that would cover the whole of the Y network. We are absolutely committed to the whole Y network, but noble Lords will be aware how difficult and detailed the necessary legislation will be just to cover the portion from London to Birmingham. Noble Lords should remember that this route alone is roughly twice as long as HS1 and that that legislation took some time to take through Parliament. I think that the sensible course of action is to get a hybrid Bill through for phase one. Noble Lords should remember that northern cities will benefit straightaway from the saving of half an hour in travel time from Birmingham to London. Noble Lords will also appreciate the need to schedule properly such large construction work for industry. We want to avoid the problem of feast and famine.

The noble Lord touched on the issue of the route through the Chilterns. I am advised that any alternative route would be considerably more expensive. On the issue of Heathrow, the spur will not be viable to service Heathrow until the full Y network is in place. That is why the spur will be constructed as part of the completion of the Y network connecting Manchester and Leeds. It will then become viable because of the increased traffic going to Heathrow.

The noble Lord also asked about the Y network. The Government are committed to the delivery of the full Y network. There would be little sense in stopping the network at Birmingham. The Secretary of State is

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actively exploring options for the inclusion of a purpose clause in the first hybrid Bill in order to demonstrate the Government's commitment to the full Y network. I hope that that gives some comfort to the noble Lord.

6.25 pm

Lord Snape: My Lords, as a founder member of the All-Party Parliamentary Rail Group in the other place and its first chairman, I congratulate the Minister on the Statement that he has repeated today. I further congratulate the Government on having the courage to go ahead with this project, which they have inherited from their predecessors, in the face of some pretty virulent opposition from people who could perhaps be regarded as traditional supporters of the noble Earl's political party. I also support my noble friend on the Front Bench in his plea that the Government should look again at the question of the first hybrid Bill. The Minister will be aware that these Bills take many months, if not years, to get through both Houses, and the thought of two or three of these Bills is not going to speed up the project in the way that he might like.

Finally, how much is the new tunnel through the Chilterns going to cost? Some estimates suggest that it will be around £500 million. Does he agree that that is a pretty steep price to pay in order to keep the Welsh Secretary in the Cabinet? Is it not just as well that she is the only member of the Cabinet who has threatened resignation over this project, otherwise the total bill could well have been doubled?

Earl Attlee: My Lords, the noble Lord asked about the cost of the extra tunnelling. I do not have the full details, but they will be set out in the accompanying literature. A CD of the large bundle of documents that I have is available and I will ensure that all noble Lords who take part in these debates are given a copy of it. I am advised that the extra tunnelling through the Chilterns is cost neutral.

Lord Mawhinney: My Lords, I join those noble Lords who have congratulated the Government on this decision and on the fact that it is a cross-party decision. I was in office as the Secretary of State for Transport when the HS1 hybrid Bill was launched and I should tell my noble friend that it is a long, complicated and difficult process. For that reason, I encourage him to think again about whether it is really necessary to have two hybrid Bills or if it might not be more sensible to invite colleagues to gird their loins and do it once. It is not an easy or pleasant process, but it is absolutely vital and it would offer reassurance to those in the north of England. In that context, as my noble friend will know, when the noble Lord, Lord Adonis, was in office, he asked me to do the work on the High Speed 2 link to Heathrow, which this Government have accepted. I am pleased to see that they are going to put the spur into Heathrow during the second phase. He is right to say that it would not be financially viable before that. But that links back to the fact that aviation in this country would be more reassured if there was one hybrid Bill which included the Heathrow spur. Otherwise, it will only be in the second Bill, which could foster uncertainty about the aviation future of this country for too long.

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Earl Attlee: My Lords, my noble friend is right to say that the hybrid Bill process is long and complicated. He suggests that we should do this in one Bill. I should point out that a difficulty with that is that, while we could secure political co-operation to deal with the Bill as expeditiously as possible, my noble friend will be aware that outside organisations can petition against a Bill as long as they have a locus, and there is nothing that we can do in Parliament to stop that-and I am not sure that we would want to either. My noble friend talked about including provisions for the spur in the initial hybrid Bill. I make no promises whatever, but I will mention his suggestion to my right honourable friend the Secretary of State.

Lord Berkeley: I very much welcome the Statement. It would be helpful if the Minister, through his colleagues in the Commons, could encourage as many Members of Parliament as possible along the route-they may have strongly opposed the project-to look at their constituents' best interests now and say, "Right, we'll work with this and get the best mitigating measures possible". That is what happened with the Channel Tunnel, which I worked on, and High Speed 1. Members of Parliament, led by the noble Lord, Lord Howard, did extremely well in looking after their constituents' interests rather than opposing the principle.

I have one question for the Minister on the connection between HS2 and HS1. I welcome the fact that there will be a railway connection, which is mentioned in the document, but I am very concerned that it will run for about half a mile along the North London line, which is not only at its most congested there-most people would say that it is full already-but will not be capable of taking any international train of the current design. I do not know whether that is another reason for the scheme not getting any European money, which my noble friend Lord Davies of Oldham referred to; but to make the system work, there has to be a through connection built to the new gauge. I understand from Network Rail that it is technically quite possible to do so, and it would probably be cheaper too.

Earl Attlee: My Lords, I am pleased to say that opposition to the scheme is waning in the light of the work done by my right honourable friend the Secretary of State and her predecessor, and I suspect that the noble Lord, Lord Adonis, might have done a little bit of work on the side as well. We must not forget that the duty of MPs is to represent their constituents.

The noble Lord asked about the important question of connectivity between HS2 and HS1. The North London line, to which he referred, will support at least three trains per hour in each direction while also maintaining the current service levels. Some gauge clearance will be necessary to accommodate the wider and taller HS2 trains on the North London line. We are confident that this can be achieved with minimal impacts on the local community and rail services.

Baroness Scott of Needham Market: My Lords, I very much welcome the Statement and, more importantly, the commitment to go ahead with the project. Does the Minister agree that if we are going to spend this amount of public money in these difficult times, it is

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very important that the public should have a general sense that this is a good thing; and that rather than the argument being entirely hijacked by questions of shaving minutes off journey times between London and Birmingham, we need to keep referring to the line in the context of a very important scheme to link the whole country together and then on to Europe? I am sure the Minister would agree that had Brunel started the Great Western line by saying that he was building the Maidenhead link, nobody would have been very inspired.

Earl Attlee: I agree with my noble friend. It is a capacity problem that we are trying to address. If we do not do something, we will run out of capacity on the west coast main line.

Lord Skidelsky: My Lords, I, too, welcome the Minister's Statement. I have a couple of questions. How soon, and by what date, does the Minister expect to see some employment effects from this scheme? Does he agree with me that, given the massive spare capacity in the construction industry, it is important to start at least preliminary work as quickly as possible? Reference has been made to the Victorians. The Victorians built their much larger railway system far quicker than the leisurely pace envisaged by the HS2 scheme, and with inferior technology.

Earl Attlee: My Lords, the noble Lord referred to the benefits of these construction projects for employment. He needs to remember that the Crossrail project is already running and providing considerable employment. He spoke also about the achievements of the Victorians. We have a slightly more developed democratic process than they had, so we cannot get the legislation through quite as fast as they were able to.

Lord Faulkner of Worcester: I am sure that the Minister will be heartened by the so far universal expressions of support for the Government's decision. I should like to add to them; I think that this is a very significant day for Britain's railways and represents a real step change in our approach to transport policy. When I was working at the railways board in the late 1980s and 1990s, an official from the Department of Transport joined the board as a non-executive member, looked around the table at his first meeting and said, "You must understand that my job is to preside over the orderly decline of the railway". That was only 20 years ago, so this decision and the fact that the government document that goes with it contains statements such as,

"the Government does not consider that there is a case for major new motorways",

and,

"It does not ... support a new runway at Heathrow and wants to see modal shift away from domestic routes where possible",

with the emphasis in future to be on the railway, are very significant.

Can the Minister confirm that the package of compensation proposed in the Statement is significantly more generous than that accorded to householders who are affected by road-building programmes?

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Earl Attlee: My Lords, I am grateful for the general support from the noble Lord, Lord Faulkner. On his specific question, we have improved the compensation arrangements for people affected, but I cannot say whether it is better than the arrangements for those affected by road construction projects. Inspiration has now come from the Box-but sometimes inspiration is not quite as complete as one would hope. My note says that compensation will be more generous than the law requires, but that does not necessarily mean that it is more generous than that for a road-building project. It might be possible-for instance, if someone was building a DBFO motorway or road project-to offer greater compensation, but I simply do not know. However, I do know that good compensation arrangements were announced today.

Lord Cormack:My Lords, I hope that I can expect an equally quick answer to the question that I will now ask as one who still has real concerns and misgivings about the environmental impact of this scheme in a tightly populated country where beauty is extremely fragile and where one of the loveliest areas of rural England is under threat. Is the National Trust, which advanced some extremely well constructed and moderate opposition to this proposal, now tolerably satisfied with the mitigation that my noble friend talked about?

Earl Attlee: My Lords, I do not know the answer to the noble Lord's question, but I shall write to him.

Lord Lea of Crondall: My Lords, I convened a meeting six months ago between all the local authorities and villages affected by HS1, which had been through all this process with the Channel Tunnel link, and the local authorities and campaigners involved with HS2. What surprised some of the people in the line of HS2 was the degree of political satisfaction obtained by all the villages along the line of HS1, so that they can now say that there is nobody in Kent who will say that it was the disaster predicted. Nobody at that meeting said it, and I think that it was a penny that dropped. Although some of the changes to this route might seem disproportionate-for example, the proposal on page 98 to avoid Kenilworth Golf Club-they should be paid for, because at the end of the day, in 10 or 15 years' time, I suspect that public opinion will generally see the benefits substantially outweighing the costs, including the benefits for the people along the West Midlands line and the Y extending to the north. Will the Minister comment on that?

Earl Attlee: The noble Lord makes an important point. I referred earlier to the work that both Houses did on the Channel Tunnel Rail Link Act. Local people were able to petition if the developers had not privately met their needs. The effort expended during that planning process has clearly given us long-term benefits. However, it is important not to short circuit the approval process of this project, otherwise we could face serious problems when we try to start the construction phase. That would be much more expensive than doing it properly in the first place.

Lord Bradshaw: Will the Minister consider the methods of appraisal that are likely to be used in producing the economic case? We now use economic

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measures that were developed in the 1960s and used on the Victoria line and on motorways. These put excessive emphasis on values of time and mean that the discounted cash flows which apply almost run out in 20 years. If we are building a line that will last 120 years, which I think it will, perhaps the noble Earl could ask his right honourable friend the Minister whether there should not be a reappraisal of how we look at these schemes, and to bring forward a different scheme from the one that is used now-which employs lots of people but produces nonsense results. I can assure him that that is the case.

Earl Attlee: My Lords, the noble Lord has made this point more than once. I suspect that it has some validity, and at a suitable opportunity I will discuss it with ministerial colleagues.

Lord Grantchester: My Lords, my noble friend mentioned the Y network. I believe that the base of the split of the Y will be at Lichfield. The Statement refers to the east arm of the Y, with intermediate stations in the East Midlands and South Yorkshire. The West Midlands route to the north-west is also of crucial importance. Our Victorian pioneers obviously knew what they were doing when they placed the gateway to the north-west at Crewe, as this opens up Liverpool, Derbyshire, Lancashire and Cumbria, as well as Wales, both north and mid-Wales. This Trent Valley route will build on the existing mix of the north-west, link to the airports and, as I understand it, the new deep port plans for Wales. It is also important that there are east-west links which, through Crewe, could link back to Manchester and the east side. Can the Minister tell the House the Government's plans for this west north-west route and assure us that these phasing plans through legislation do not get interpreted as just focusing HS2 on the south?

Earl Attlee: My Lords, the noble Lord has asked me a detailed question about route strategy, and I shall be delighted to write to him.

Lord Marlesford: My Lords, given the huge success of the port of Felixstowe in the 25 years since it was bought, developed and now operated by Mr Li Ka-Shing using Hong Kong Chinese capital, will the Government consider encouraging China, which has much resource to invest overseas in infrastructure, to finance, build and, if possible, operate the new line?

Earl Attlee: My Lords, I am sure that Her Majesty's Government look at all possible sources of finance.

Lord Stevenson of Balmacara: My Lords, I declare an interest as a resident of the Chilterns, and indeed of the village of Little Missenden, which the Minister kindly mentioned a few minutes ago. I am afraid that I cannot join the general celebration of the announcement today. That is not because I feel that the Chilterns are being badly treated-although I think that they are-but because I share some of the points made earlier about the way in which the business case has been made. I shall return to that at some other time. A key concern of many of the residents in this area, and of many others looking at this matter, is the environmental case. Can the Minister

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explain why that has been delayed and why we have so far not seen anything on it? Can he say when it will be published?

Earl Attlee: My Lords, I have to declare a slight interest-not only am I the Earl Attlee; I am also Viscount Prestwood, because my grandfather lived in the village of Prestwood. The noble Lord asked about the environmental impact assessment. As he points out, that will be produced later on. However, it is a very detailed document. There has been some sustainability assessment of the proposed route, but the environmental impact assessment will be very detailed and look at how we will deal with every adverse impact. That will come along with the hybrid Bill.

Lord Shipley: My Lords, in welcoming the announcement-

Lord Shutt of Greetland: My Lords, I am afraid that we are out of time.

Scotland: Constitutional Future

Statement

6.46 pm

The Advocate-General for Scotland (Lord Wallace of Tankerness): My Lords, with permission, I shall now repeat a Statement made by the Secretary of State for Scotland in the House of Commons.

"In May 2011 the Scottish National Party won a significant electoral victory-a victory this Government have openly acknowledged. The SNP has consistently campaigned for Scottish independence and its 2011 manifesto included a pledge to hold an independence referendum. As a Scot, I think it is vital that the Scottish people make a clear decision about our future within the United Kingdom-a decision made in Scotland, by the people of Scotland-but at present there is a lack of clarity about the referendum, its outcome and what the implications of that outcome would be. All of this creates economic uncertainty and that is bad for jobs and investment.

Since last year's election, we have been asking the Scottish Government to set out their plans for a referendum but so far they have not done so. In particular, they have not said anything more about their legal power to deliver a referendum. This is not an issue that can be ducked. To legislate for a referendum on independence, the Scottish Parliament must have the legal power to do so. It is the Government's clear view that the Scottish Parliament does not have that legal power.

Scotland's future within the United Kingdom will be the most important decision we, as Scots, take in our lifetime. It is essential that the referendum is legal, fair and decisive. As a Government, we have been clear since May 2011 that we will not stand in the way of a referendum on independence. But neither will we stand on the sidelines and let uncertainty continue. Any referendum must let all of us in Scotland determine our future clearly and decide whether to stay part of the longest and most successful partnership of nations

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in history. That is why we are publishing a consultation to seek views on how to deliver a legal, fair and decisive referendum.

For a referendum to take place, legislation is required. This ensures that any referendum-on any issue-is subject to detailed consideration, debate and clear and consistent regulation. In 2010 the Scottish Government published plans to legislate for a referendum on independence. We have considered those plans carefully against the devolution settlement in Scotland as set out in the Scotland Act 1998. The 1998 Act is clear: the Scottish Parliament cannot legislate on matters reserved to this Parliament. Among the issues that are reserved is the constitution, including "the Union of the Kingdoms of Scotland and England". Any Act of the Scottish Parliament that "relates to" a reserved matter is quite simply "not law". Whether or not a Bill "relates to" a reserved matter depends on its purpose and effect.

We are clear that the Scottish Government's purpose in bringing forward a referendum is to secure independence. Their intended effect is to secure a mandate for negotiating this. Both purpose and effect relate directly to the reserved matter of the union. Any distinction between a binding or advisory referendum is artificial. As the law stands, an independence referendum Bill is outside the competence of the Scottish Parliament. A Bill could be challenged in court and it is our view that the Scottish Government would lose.

So the consultation paper I am publishing today sets out different ways to deliver a legal, fair and decisive referendum. It explains how the powers for a referendum could be devolved under the Section 30 order-making provisions in the Scotland Act 1998- our preferred approach. It also invites views on devolving the powers using other legislation, including the current Scotland Bill, and for opinions on the possibility of running the referendum directly.

Given the clear legal problem that exists, we want to work with the Scottish Government to provide the answer. This is not about the mandates of Scotland's two Governments or who calls the shots. It is about empowering the people of Scotland to participate in a legal referendum. That means that the UK Government are willing to give the Scottish Parliament the powers to hold a referendum which it otherwise cannot do legally.

But as well as being legal, a referendum must be fair and it must be decisive. For those reasons, the rules of the referendum must be demonstrably above board. The referendum should be overseen by those who have neutrality and the proven expertise to inspire confidence in the fairness of the process, such as the Electoral Commission.

But these issues are not for politicians alone to consider. That is why the consultation process that starts today will let people express their views on when a referendum should be held, what question should be asked, who should be entitled to vote and how the campaign should be run.

It will be open to all people in Scotland-and indeed outwith Scotland-to make their views clear, rather than rely on the opinions of politicians. It is in everyone's interests that the two Governments take on

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board the needs of Scotland and the opinions of its people, work together and deliver the legal, fair and decisive referendum that is in our common interests.

This Government believe passionately in the United Kingdom. For over 300 years, our country has brought people together in the most successful multinational state the world has known. This Government are clear that independence is not in the interests of Scotland. The United Kingdom brings strength to Scotland and Scotland brings strength to the United Kingdom.

We recognise that this is not a view shared by all. But politicians from both sides of the debate owe it to everyone in Scotland to ensure that the referendum is delivered in a legal, fair and decisive way. The future of Scotland must not be worked out in secret, behind closed doors, nor determined by wrangling in the courts. It is my task to ensure that this referendum is made in Scotland, by the people of Scotland, for the future of Scotland. I commend this Statement to the House".

My Lords, that concludes the Statement.

6.51 pm

Lord Davidson of Glen Clova: I thank the noble and learned Lord for repeating the Statement and add my gratitude for its notice. I trust that this will be a precedent for future practice.

The Statement is welcome, clear and, up to a point, informative. It opens discussion of what for too long has been either ignored or suppressed-namely, the legality of the Scottish Government's proposals for a referendum. It should also have the benefit of obliging the Scottish Government to engage in open discussion on this important constitutional issue. It appears already to be succeeding at least in getting the First Minister to say that he will reveal within days his constitutional plans, which people have been asking him to reveal for quite some time. There is no doubt that the referendum will take place and what we must now do in all parties is work together to ensure that it is fair, legal and commands the respect of people in Scotland.

The democratic rights of people resident in Scotland have recently been prayed in aid by the Deputy First Minister. Democratic rights throughout the UK of course rest on the rule of law. That such an important issue be dealt with in a clear and lawful manner is something that all interested in democracy have a right to expect. The legal position should surely have been clear to all for some time but this has apparently not been accepted in certain quarters. On such an issue, frank and open discussion is the lifeblood of democracy. Secrecy and obfuscation may be clever gamesmanship, but they help no one, least of all the Scottish electorate, to understand complex constitutional issues.

The Government are to be congratulated on expressing their legal understanding openly and clearly, and we wait to see whether that openness is reciprocated by the Scottish Government. What, it may be asked, is the position of the Scottish Government on the legality of the Scottish Parliament proposing a referendum? There have been curious twists and turns as to how a referendum might be likened to an opinion poll and

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somehow have nothing to do with the constitution. That has been recognised as obvious nonsense.

The Scottish Government have a duty to make clear their position in relation to the legality of their own referendum, opinion poll or whatever. Anything less leaves them open to accusations of dissembling and trickery. The Government have made clear the view of UK law officers on this issue. Surely we are now entitled to know the view of Scottish law officers. If there were any genuine dispute, the issue might be taken to the Supreme Court for resolution. If there is no such genuine dispute, we can all get on with discussing, in a mature and less rancorous manner, how the referendum is to be organised for the benefit of all concerned.

I have five questions for the noble and learned Lord. First, if the Scottish Government produce contrary legal advice regarding the legality of the referendum, will the Government take the issue to the Supreme Court?

Secondly, Her Majesty's Government propose a Section 30 process to devolve powers for a referendum as their preferred option. But that, as with a Legislative Consent Motion, might give the Scottish Parliament a veto. Are the Government not anxious to avoid any such veto and has that been considered? Thirdly, as the noble and learned Lord will be aware, the First Minister says that he wishes to extend the franchise for his referendum-but only that-to 16 and 17 year-olds. Will the proposed consultation look at this issue and at whether only those resident in Scotland may vote?

Fourthly, the time limit within which the referendum was to be held appears to have been dropped. This seemed important. The Prime Minister said on Sunday that 18 months was to be the time limit, but during the week that appears to have been departed from. Why was that?

Finally, on the consultation itself, it surely has to be done properly rather than quickly. Eight weeks seems to be a somewhat abbreviated period for consultation on such an important issue. Why was that period chosen? As the Minister knows well, Calman provided a good model for consultation. Will Her Majesty's Government follow that model?

Lord Wallace of Tankerness: I am very grateful to the noble and learned Lord for his welcome of this consultation. I share many of the views that he expressed, not least that any Government of any Parliament on any mandate must operate within the rule of law. That is one of the fundamentals of our democracy. Clearly, too, simply having a straw poll on the day of someone's choosing would not amount to what we understand properly to be a referendum. That is why the Government take the view that any proper referendum is outwith the competence of the Scottish Parliament. That is why we have set out our view on how we might move forward.

I certainly agree with the noble and learned Lord that it would be in everyone's interests, particularly in Scotland but also in the wider United Kingdom, if these matters could now progress, in his words, "in a mature and less rancorous way". That is certainly our hope and our intention by publishing this consultation.

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The noble and learned Lord asked whether, if the Scottish Government produce conflicting legal advice, it would be referred to the Supreme Court. As he knows, the reference to the Supreme Court would fall on any legislation. The whole purpose of this consultation is to try to avoid that situation so that any legislation passed by the Scottish Parliament is within the competence of the Parliament because provision will have been made for it. That is the way of progressing in a mature and less rancorous way. It is in everyone's interest to avoid any legal uncertainty. In White Papers that were produced during the previous term, the Scottish Government themselves recognised that there was some uncertainty. What we are proposing in the consultation with our preferred Section 30 order is a way of ending that legal uncertainty.

The noble and learned Lord asked whether we had considered the possibility that the Scottish Parliament could veto our Section 30 order. That is obviously the case. A Section 30 order must be passed by both Houses of this Parliament and by the Scottish Parliament before being presented to Her Majesty in Council. Clearly, there would be an opportunity for that not to be passed by the Scottish Parliament. However, the whole point of having the consultation and of engaging not just with the Scottish Government and Scottish Parliament but with wider interests in Scotland is to try to avoid that situation, so that if a Section 30 order is brought forward it is one that can command consent and support.

With regard to the franchise, the noble and learned Lord will note that in the consultation document a question is raised about the franchise. It has been suggested by the First Minister that 16 and 17 year-olds may vote. The view of the Government is that the preferred franchise for the referendum is the one that we currently use to elect the Scottish Parliament. It seems perfectly reasonable, if that is the franchise to elect the Scottish Parliament, that it should be the franchise used for a referendum. Obviously, there are wider issues about whether 16 and 17 year-olds should have the vote. No doubt they will be properly debated in time, but it is not a matter to be debated in the context of this referendum. We asked the question but our view is that the franchise for the Scottish parliamentary elections makes the best franchise for a referendum.

With regard to time, the Government have always said that the referendum should happen sooner rather than later. If the Scottish Government work with us during the consultation process and we go down the route of the Section 30 order, it is possible that these powers can be used to deliver a legal referendum sooner rather than later. But this is a consultation and we are seeking the views of people about how best to deliver a legal, fair and decisive referendum, including when the referendum should take place.

Finally, it is explained in the eight-week consultation document that it is eight weeks because while our preferred option would certainly be to use a Section 30 order there is also the possibility of using primary legislation. The obvious vehicle for primary legislation is the Scotland Bill currently before your Lordships' House. The House will recognise that there are time constraints on that, but we think that the issues

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here are very clear. It is not as if the points brought together in the consultation document are ones that nobody has been discussing, although the Scottish Government have perhaps not contributed too much until now. If they are about to produce their own response to this, that is a good outcome already from the consultation document. I think that the issues are clear and one would hope that we could get a wide range of Scottish opinion within the eight weeks and still allow the opportunity, if that should be the case, for the Scotland Bill to be used.

7.01 pm

Lord McConnell of Glenscorrodale: My Lords, I accept absolutely the sovereignty of the people of Scotland on this issue, but I hope that they will exercise their choice to stay part of a multinational and multicultural United Kingdom. I agree also that there is a need to end the uncertainty and clarify fair rules around any referendum on independence for Scotland. However, I counsel the Government against falling into a nationalist trap, as they will wish to portray the Prime Minister-to amend a phrase used elsewhere in recent years-as going from Mr Bean to Stalin in relation to Scotland. It is vital that all of us ask both Governments to get around a table and agree the rules for the referendum and agree them properly and fairly. Will the Minister address his colleagues in Government on that issue and urge them to get involved not in a shouting match but in practical and concrete discussions that produce an end result? Does he agree that the 1979 referendum result in Scotland was not accepted by everyone in part because it was created in a divisive manner and the campaigns were executed in a divisive manner? The 1997 referendum result was accepted by everybody, including by everybody who opposed it, because the rules were agreed fairly and there was consensus about how it was done. Does the Minister agree that that is the way forward for Scotland, and that we have a result that is clear but accepted afterwards because every party and everyone involved has been engaged in the discussions about the creation of that referendum in the first place?

Lord Wallace of Tankerness: I thank the noble Lord for that contribution. I certainly entirely endorse the latter part of what he has just said. Having campaigned in both the 1979 and the 1997 referendums, I am certainly clear that the fact that in the 1997 referendum the campaigns and the rules were very clear and nobody had any cause to say that there was any jiggery-pokery, or that the goalposts were being shifted, meant that those on the losing side nevertheless felt able to accept the outcome. That is the goal that we all want to see in this. I say that in terms of the earlier part of his question, too. Anyone who reads the consultation paper will see that it is by far and away not a Stalinist document but one that invites consensus and provides a route map towards consensus. That is the spirit in which it is offered to the people of Scotland.

Lord Forsyth of Drumlean: My Lords, I congratulate the Prime Minister and my noble friend on this initiative. Could he help me with something that is causing me

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some bewilderment? The SNP manifesto, on which it got 45 per cent of the vote, says:

"We will give Scots the opportunity to decide our nation's future in an independence referendum".

In that case, why is this initiative by the Government so unpopular with the Scottish nationalists?

Lord Wallace of Tankerness: That is a very fair question. I cannot understand why they would not wish to have the proposal to allow them to achieve their manifesto goal in a legal way, given that back in 2009 the First Minister was calling for a referendum in November 2010. Here we are providing a legal route. But the means of making it fair and decisive are perfectly reasonable proposals on which we are consulting, and I very much hope that on reflection the Scottish Government will agree that this is a proper way forward and will enter into the consultation in that spirit. This is not just a consultation for Governments; we hope that people from all walks of life, in Scotland and furth of Scotland, will also respond.

Lord Sewel: As one of those who sat for many hours and nights and days and months-it sometimes felt like years-trying to secure the passage of the original Scotland Bill through your Lordships' House, I welcome this bold Statement by the Government. It is absolutely right; if anything, it is slightly overdue.

On two particular issues, first, can I observe that it is important that there is a time limit to the referendum? It is absolutely vital for the future of Scotland that the matter of independence is settled quickly and clearly without doubt. It is holding back the whole progress of Scotland economically and socially, and that must be resolved.

Secondly, on the franchise, I would have thought that the answer was simple. If you want effectively to replace or modify the Scotland Bill, the franchise ought to be the same as the one that was used to secure the proposals on the referendum in the White Paper at that time.

One great advantage of the Government's proposal is that it will avoid the dreadful situation and ultimate catastrophe whereby, if the Scottish Parliament played the matter long and it reached a stage where a referendum was about to be called, any individual could take the Parliament to the courts on the basis that the proposal was outwith the vires of the Parliament. That would be a most unsatisfactory situation. It is important to make the vires issue absolutely clear, and I think that the Government are absolutely right in drawing attention to the vires being decided on purpose and effect. That deals with the whole vires issue. If the constitution is reserved, anything to do with constitutional change, because it is purpose and effect, must also be reserved.

I come on to a slightly sensitive issue-

Noble Lords: Question!

Lord Sewel: Does the Minister recognise that one problem is that for too long all the political parties in Scotland have refused to confront the issue and failed

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to challenge the fact that the present First Minister in Scotland has asserted that this is a function of the Scottish Parliament when clearly it is not?

Lord Wallace of Tankerness: My Lords, I certainly am very grateful and appreciate the support and welcome that the noble Lord has given, not least because of the very important role that he played in delivering the Scotland Act 1998 through many sittings in your Lordships' House. He asked about the timing, and clearly one could pray in aid comments from professional bodies, including the CBI Scotland. However, it is almost common sense and self-evident that at a time of otherwise considerable economic turmoil and concern, businesses, which in making investment decisions look to the long term, will factor in questions of uncertainty as to whether Scotland will or will not be part of the United Kingdom and, if not, whether it will have the euro or the pound. Clearly there are uncertainties there, which is why the Government, including a number of my ministerial colleagues, have expressed a view that we would prefer to see this referendum sooner rather than later.

The consultation paper sets out some of those factors and invites comment from people in Scotland as to the timing for the referendum. I hope that not only the United Kingdom Government but the Scottish Government will have regard to those responses.

I will not follow the noble Lord down his final path, because I do not believe that while we are trying to move forward and get a legal, decisive and fair basis for a referendum, and to have a campaign which those of us who firmly believe in Scotland's future in the United Kingdom want to co-ordinate and act on together, it is the moment for criticising parties north of the border.

Lord Steel of Aikwood: My noble and learned friend knows that I did not take any part in the last Scottish elections, because I was following the advice of the late Lord Weatherill and the noble Baroness, Lady Boothroyd, that as a former Presiding Officer I should not take part in party political activity, but that did not mean that I was not watching what was going on. Does the Minister agree that what happened was that the SNP leaflets, and indeed the ballot paper, did not say, "Vote SNP for independence"? They did not even say, "Vote SNP for a referendum". They said, "Vote SNP for Alex Salmond as First Minister." Objectively, I thought that was rather successful. However, the idea now that there was some kind of mandate and that people were rushing into the polling booths to authorise the SNP to organise a referendum-and to decide who should vote in it, what the question is and when it should be held-is complete nonsense. Their manifesto did not even refer to the timing coinciding with Bannockburn, so let us get rid of this mandate theory.

The Government are right to come forward with a consultation paper. I agree with the noble Lord, Lord McConnell, that what will scunner the people of Scotland is if we spend the next three years discussing these issues instead of getting on with getting the two Governments together to work out a sensible way of letting the people of Scotland decide their future as soon as possible.

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Lord Wallace of Tankerness: I certainly know why my noble friend did not participate, having been a former Presiding Officer. I had some participation in the Scottish elections as an observer, and it is probably right to say that whether or not Mr Salmond was the best of the party leaders to be First Minister seemed to resonate in the debates more than the question of independence. Nevertheless, it has been the policy over many years for the Scottish National Party to have a referendum on independence. That clearly was in its manifesto and the United Kingdom Government have, since May last year, indicated that we recognise that. The timing was certainly not in its manifesto but, as I think my noble friends Lord Forsyth and Lord Steel said, the SNP said that it wanted a referendum on independence and we are trying to ensure that it gets one. What could be fairer than that?

Lord Foulkes of Cumnock: My Lords, we should all welcome this decisive action by the Government, which has helped to fill a vacuum that was there in putting the unionist case. However, in the consultative document there is one matter that causes me some doubt. Why is there any question about who should oversee the referendum? Surely, it must be the Electoral Commission that decides the wording of the question, how much money should be spent by each side and all the other aspects. Surely, that does not need consultation.

Perhaps I may ask a practical question in relation to the consideration by this House. Since the consultation finishes on 9 March and we are due to go into Committee on 26 January to consider the Scotland Bill, and since some of us have put down a number of amendments-indeed, I have put down one in relation to Section 30 that is exactly what the Government are proposing-are we really going to go ahead with the Committee stage on 26 January? It will really be a false debate that is taking place when we know that this consultation is under way. It will be going through the motions without any real substance to the debate. I hope that the Government will now consider postponing consideration in Committee as a result of that.

Lord Wallace of Tankerness: My Lords, with regard to the noble Lord's first question, it is very clear on page 16 of the consultation document that the United Kingdom Government believe that the Electoral Commission should oversee any referendum on Scottish independence. Indeed, we have included provision in the draft Section 30 order which is appended to the consultation document. However, we put the question because this is an issue which the Scottish Government have called into question. It is something that should be consulted on, but the UK Government make it very clear that we believe that the body best equipped to oversee this, with a track record of overseeing impartially and fairly, is the Electoral Commission.

With regard to the timing of business, as a non-business manager it is always very difficult to embark into that territory. However, the consultation will be current because there are issues other than the question of the noble Lord's amendments, and amendments tabled by other noble Lords, with regard to independence. There are other issues to be debated in Committee. Also, it would not necessarily do any harm to air some of the

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issues-perhaps in more detail, which we have in this consultation-and of course there will still be the Report stage to come back to, by which time we will have had the outcome of the consultation.

Lord Lang of Monkton: My Lords, I add my welcome to this Statement, which is absolutely excellent. I welcome its clarity and its tone. I welcome its firm and fair sense of purpose, particularly with regard to the timing. I hope that the absence of a reference to an 18-month time limit in no way suggests that the enthusiasm for speed has diminished in the hands of my noble and learned friend and my colleagues in Government.

However, whatever became of Braveheart? Last February, the Scottish National Party put out a policy document, which I am told said that it would hold a referendum as soon as possible. Now, less than a year later, it seems to have disappeared into the mists of time, so it is Braveheart to shrinking violet in less than one year. I hope that my noble and learned friend will press on, for the reasons that the noble Lord, Lord Sewel, gave. The Scottish economy is undoubtedly suffering and will continue to suffer as a result of the uncertainty which is happening. Investment is falling, inward investment is low and company formation is very low. Unemployment is rising faster in Scotland than elsewhere in the United Kingdom. We need firmness, clarity and a modicum of speed, provided always that we can ensure that all the facts and reality of the figures and consequences for Scotland are laid clearly before the people before a vote is taken. That requires independent verification by some kind of body, as my noble friend Lord Forsyth has suggested in the past.

Lord Wallace of Tankerness: My Lords, I am very grateful to my noble friend for his welcome for the approach which we are taking. As I indicated in my response to the noble Lord, Lord Sewel, it seems to be self-evidently the case that a question of Scotland's future within the United Kingdom is a cause for uncertainty as long as it remains unresolved. That indeed is why my ministerial colleagues and I are of the view that a referendum held sooner rather than later would be better. That is stated in the consultation but we thought it important that other people in Scotland, and indeed outwith Scotland, get the opportunity to express their position on the view.

My noble friend referred to Braveheart and shrinking violets. I note that in the Scottish Government's White Paper, Your Scotland, Your Voice, published in November 2009, the First Minister said:

"It is now time for the voice of the people to be heard-in the referendum on Scotland's future we intend to hold in November 2010".

Their manifesto for the 2010 elections said:

"We are taking forward a Referendum Bill in the Scottish Parliament this year".

I just observe that it seems rather odd that when they were in the Scottish Parliament without a majority, they were wanting a quick referendum but when they can actually deliver it they want to delay it.

Baroness Liddell of Coatdyke: My Lords, it is self-evidently right that there should be a referendum that is legal, fair and decisive. The worst possible outcome for Scotland and for the union would be to have a

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conclusion that was narrow and that people believed had been rigged in some way. For that reason, I welcome this Statement and the consultation document. However, the rather intemperate response that we have seen from the Scottish Administration really gives one cause to question whether there had been any discussions with the Scottish Government prior to the publication of this document. If not, why not, and if it should prove to be true that the First Minister has said that he would boycott this process, what then would be the view of the Government?

Lord Wallace of Tankerness: My Lords, all I can say is that there has been ongoing discussion between Ministers of this Government and the Scottish Government since May of last year on a whole range of issues, including those relating to the Scotland Bill and UK Ministers trying to ensure that they can get some information from the Scottish Government about the referendum. I do not think that the details of this specific consultation document were discussed in detail but we have certainly been challenging the Scottish Government to indicate to us how they think that they could deliver on their manifesto commitment.

On the boycott, I very much hope that that will not happen and that people will realise in Scotland that what is being proposed here is a way forward. My noble friend Lord Forsyth expressed it absolutely succinctly: what is happening is a way forward for them to have their policy delivered in a legal way without it being challenged in the courts, which would be in no one's interest. That would lead to uncertainties and bad feelings, and perhaps be an indecisive outcome. That would be in no one's interests. Perhaps, in the cold light of day, it will be seen that what is proposed here is a sensible and very reasonable way forward. I hope that sense and reason will prevail.

Lord Stephen: My Lords, I would like to probe further the fury of the SNP on this issue. Will the Minister confirm that these proposals merely aim to create a fair, appropriate and legal framework that will allow a referendum on independence to take place-a referendum that will in fact be organised by the Scottish Government on terms fixed by the Scottish Parliament, all as promised by the SNP? Will he confirm that Alex Salmond and his Ministers will be able to set the wording of the referendum question, provided that the Electoral Commission agrees that it is not biased, rigged or gerrymandered in any way?

What is the SNP moaning about? As the consultation document makes clear, the most recent Scottish Government document on all this said that they wanted to have a referendum as soon as possible-and a referendum on independence, not on devo-max or on anything else. That is not, I remind the House, SNP policy. Is it not the truth that Alex Salmond is now desperate to have a second question to give him and his party an emergency escape route from the political meltdown that he will face when he loses a vote on independence? We should not give him that lifeline.

Lord Wallace of Tankerness: The simple answer to that is that we want a decisive referendum, and one of the key means of delivering that is to have one question.

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That is why the draft order that we propose makes provision for just one question. It would allow for provisions in relation to the UK Parliament for UK-run referendums to be applied to the Scottish Parliament and the Scottish Government, but we believe that that one question will resolve matters and we should not be muddying the water with devo-max-whatever that means. No one has a clue what it means; it was not in the SNP manifesto. What was in that party's manifesto was a question about Scottish independence, and that is what we believe we are assisting the Scottish Parliament to deliver. I hope that the SNP will recognise that this Government are being very fair and reasonable in trying to achieve that end.

Legal Aid, Sentencing and Punishment of Offenders Bill

Committee (2nd Day) (Continued)

7.22 pm

Clause 2 : Arrangements

Amendment 7

Moved by Lord Beecham

7: Clause 2, page 2, line 20, at end insert-

"( ) Before making arrangements under subsection (2)(c), a draft order with the proposed arrangements must be laid before, and approved by an affirmative resolution of, each House of Parliament."

Lord Beecham: My Lords, after the nerve-tingling excitement of the debate on the previous amendment, we come to arguably more prosaic matters. The amendment deals with the provision in Clause 2 under which the Lord Chancellor would have the power to, as the Bill quaintly puts it,

"make such arrangements as the Lord Chancellor considers appropriate for the purposes of carrying out the Lord Chancellor's functions under this Part",

which is perhaps a little otiose. The crucial point arises under subsection (2), under which he may make arrangements for a variety of things:

"making grants or loans to enable persons to provide services or facilitate the provision of services ... making grants or loans to individuals to enable them to obtain services, and ... establishing and maintaining a body to provide services or facilitate the provision of services".

The amendment would require any such arrangements to be made by way of an order that would have to be approved by an affirmative resolution of each House. That is consistent with the creation of what presumably, or potentially, would be a new quango-something that the Government have been at pains to dismantle wherever they have spotted one hitherto-and with the other provisions in Clause 2(2). It is necessary for there to be adequate parliamentary scrutiny of any such arrangements.

I confess to not having understood quite what the Government's intentions are in respect of this clause; the Explanatory Notes do not live up to their title. Perhaps the Minister could sketch for us what in fact the Government have in mind regarding this provision. Do they propose to set up a quasi-Legal Services

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Commission? Will they set up some kind of Tesco law outfit that would be contracted to provide services more widely and perhaps on a less commercial basis?

What kinds of loans or grants are envisaged to individuals to enable them to obtain services? This is something of a novel concept-funding litigation by way of a loan from an organisation set up, presumably, by the Government. What sort of body is envisaged to provide services or facilitate their provision, given that the LSC disappears? None of this is apparent in the Bill or, as far as I can tell, in the Explanatory Notes, and it would be helpful if the Minister could enlighten the Committee about the ultimate intention.

Under Clause 2(5) there is a provision that allows the Lord Chancellor to make different arrangements under this clause-relating both to the matters to which I have referred and to remuneration, which we will come on to in a subsequent amendment-with regard to different areas in England and Wales, different descriptions of case and different classes of person. Again, it would be helpful to know what the Government have in mind. Would there be a different system of grants and loans according to different areas of law or in different parts of the country? What are the Government's intentions, and how would they go about developing them? What consultations do they propose to hold, or indeed have they held, about this? In particular, what would be the impact not only on the legal profession but on the voluntary sector, law centres, Citizens Advice and other bodies? As I say, none of this is apparent in the Bill, hence this is something of a probing amendment. In any event, if the Government are to proceed along the lines sketchily laid out here, parliamentary approval for their proposals should be a prerequisite, and that is ultimately what the amendment comes down to.

7.30 pm

The Minister of State, Ministry of Justice (Lord McNally): My Lords, Amendment 7 seeks to require a novel situation whereby specific arrangements that the Lord Chancellor may make under Clause 2(2)(c) would have to be included in an order subject to the affirmative resolution procedure. I believe that it will be beneficial to expand on the purpose of the provisions in question before addressing the amendment itself.

The specific provision is designed to provide the Lord Chancellor with the powers to create a body to provide or facilitate the provision of services. In practice, this provision is included in the Bill to allow the Lord Chancellor to continue to provide services through the Public Defender Service. The PDS is a body established under the auspices of the Legal Services Commission that directly employs lawyers to provide legally aided criminal defence services, alongside solicitors' firms in private practice that are contracted with by the LSC. This dual model tends to be used in areas where there have historically been issues with the level of availability of supply. The PDS must necessarily be distinct from the Lord Chancellor, given its role of defending individuals accused by the state of committing criminal offences.

Let me turn now to the proposed amendment. It appears to me a very novel suggestion that the legislative processes of these Houses would be used to consider

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arrangements that are not intended as legislative instruments but would nevertheless become so were the amendment to be adopted. The specific arrangements envisaged under this proposal-the continued provision of the Public Defender Service-do not and should not require parliamentary scrutiny. There is no question of protecting independence. Lawyers employed by the PDS are subject to the same professional obligations and ethical codes as those in private practice, regulated as they are by the Solicitors Regulation Authority. In addition to this, PDS lawyers are also subject to a PDS code of conduct, which is designed to help ensure independence. It is the Government's intention that all current arrangements should continue under the new framework, including the PDS code of conduct.

This is explicitly dealt with in Clause 28, which provides for a code of conduct to be observed by civil servants and employees of a body established and maintained by the Lord Chancellor, the latter dealing with those individuals employed as part of the PDS. The PDS has operated unencumbered by interference since it was first deployed in 2001, and there is no basis for assuming that its continued operation should be in any way different under the revised framework before the Committee. I stress that this power will be used in law to re-establish the PDS under the new framework. However, in practice nothing will change: the PDS will operate in exactly the same manner and in the same locations, and it is not appropriate to use parliamentary time to endorse what is already in existence. Given those assurances, I hope that the noble Lord will withdraw his amendment. There is no need to put powers in the Bill to create the LSC's replacement. This is a departmental administrative arrangement and the legal aid agency will be an executive agency of the MoJ.

Lord Beecham: My Lords, I am tempted to apologise to the Minister for not having the telepathic powers that would have enabled me to understand what the clause is about. It does not specifically refer to the Public Defender Service. Of course I accept the noble Lord's explanation but it would be helpful if the Government were to amend the clause before we get to Report to make it clear that it is the Public Defender Service that is referred to. On the face of it, it could be any kind of arrangement that is being made, so, if I may say respectfully, it would be helpful for that course to be taken.

Lord McNally: If it would be helpful, I will write to the noble Lord to clarify and I will consult with colleagues on the point that he makes.

Lord Beecham: In the circumstances, I beg leave to withdraw the amendment.

Amendment 7 withdrawn.

Amendment 8

Moved by Lord Beecham

8: Clause 2, page 2, line 23, at end insert-

"( ) Before making regulations relating to the payment of remuneration to barristers and solicitors in accordance with subsection (3), the Lord Chancellor shall consult-

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(a) the Bar Council;

(b) the Law Society of England and Wales;

(c) the Institute of Legal Executives; and

(d) organisations representing the legal advice movement.

( ) Where the Lord Chancellor makes regulations in accordance with subsection (3), he or she shall have regard to the need to secure the provision of services of the description to which the order relates by a sufficient number of competent persons and bodies."

Lord Beecham: My Lords, the noble Lord may say that this amendment relates only to the Public Defender Service, in which case I suspect that my speech will be rather shorter than it might otherwise have been. The amendment refers to Clause 2(4), which refers to,

"arrangements for the purposes of this Part"-

not just this clause-

"that provide for a court, tribunal or other person to assess remuneration payable by the Lord Chancellor, the court, tribunal or other person ... in accordance with the arrangements".

The previous subsection provides that the Lord Chancellor may make such provision for remuneration by regulations. I apprehend that this will not refer to the Public Defender Service. If that is the case, I will proceed to outline the position that we wish to take.

On the assumption that this amendment is of general application, which appears to be the position, the amendment would require the Lord Chancellor to consult the Bar Council and the Law Society, which is the present position under the Access to Justice Act. In addition, it is suggested that consultation should take place with the Institute of Legal Executives, which is now a recognised and substantial body of contributors to the legal system, and with organisations that represent the legal advice movement-law centres and the like. These have, with cross-party support since their inception, played a growing and important role, again supplying legal aid and advice.

As we heard in the context of the debate on today's first amendment-on expert witnesses-there is a potential issue about remuneration, which is linked to the possibility of maintaining an adequate supply of lawyers in this case, and to providing choice for consumers. Therefore, the amendment would make it necessary for consultation to take place, whereas the Government's view is that it is not necessary to have that in legislation. They have indicated that they will continue to consult the Bar Council and the Law Society. We would say that consultation needs to be wider and that it needs to be statutory, rather than simply rely on the good will of the Government of the day. Consequently, any regulations that then come forward would also require approval.

Amendment 9 would make it a requirement-rather than, as matters presently stand, discretionary-for the Lord Chancellor to set and monitor standards of service in legal services. That seems a sensible provision, which would reinforce the need to ensure that there is access to advice that meets a standard. At present, under the legal aid scheme, certain quality standards have to be passed by practitioners and that should remain the case. Amendment 10 effectively reinforces that provision, again making it necessary for the Lord Chancellor or other persons to set and monitor standards of service under the Bill.

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Amendment 11 refers to the need to consult the relevant organisations-the Law Society, the Bar Council and the Institute of Legal Executives-in devising and maintaining a system of accreditation for the purpose of providing legal services.

There is a question raised by Amendment 12, which as it stands would remove Clauses 3(4) and (5), which provide for the Lord Chancellor to charge for accreditation. This is designed to elicit a response from the Minister as to what the Government's intentions are in this respect. It may be that charging for accreditation would act as a deterrent in certain areas, particularly perhaps in the voluntary sector and for law centres that would seek accreditation.

Amendment 104 again requires the Lord Chancellor to carry out consultation before making regulations in relation to criminal proceedings. He should consult with the Lord Chief Justice, the Director of Public Prosecutions and, again, the three legal bodies. There is a concern that the current pattern of reductions in support for organisations will impact on market sustainability, to use a phrase of the chief executive of the Legal Services Commission. People consider there is a danger that organisations will not survive, particularly in the voluntary sector. That is something on which the Government need to reflect when they are making regulations to secure the delivery of advice and support services.

The Access to Justice Act provides:

"When making any remuneration order the [Lord Chancellor] shall have regard to- ... (a) the need to secure the provision of services of the description to which the order relates by a sufficient number of competent persons and bodies, ... (b) the cost to public funds, and ... (c) the need to secure value for money".

That measure has commanded cross-party support for well over a decade. The thrust of these amendments is to ensure that that remains the case and to involve those who will be engaged in providing that legal advice and assistance in the regulations that the Lord Chancellor will be required to make regarding remuneration, the supply side of the service, as it were, and maintaining the quality of the service. I hope the Minister accepts that these amendments are designed to reinforce and support the system which the Bill seeks to create. I beg to move.

Lord McNally: My Lords, I note that the noble Lord spoke not only to Amendment 8 but to Amendments 9, 10, 11, 12 and 104. I hope that that was intentional. I am happy to reply to both groups. According to my batting order they were supposed to be spoken to separately. However, the noble Lord spoke to them so well that I am happy to reply to both groups. If anybody wants to speak to the group beginning with Amendment 9, I will sit down while they do so; otherwise, I will reply to both groups at the same time. I commend the noble Lord, Lord Beecham, on his splendid-

Lord Beecham: Inadvertence.

Lord McNally: Perhaps he would like to move the next four groups formally as well.

Amendment 8 seeks to achieve two things. First, it provides for the inclusion of provisions akin to those in Sections 25(2) and (3) of the Access to Justice Act in

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relation to the matters the Lord Chancellor must take into account when setting remuneration rates for barristers and solicitors in regulations under Clause 2(3), specifically,

"the need to secure the provision of services of the description to which the order relates by a sufficient number of competent persons and bodies".

I realise that a number of the amendments that the Opposition have put forward have harked backed to the Access to Justice Act.

The second effect of the amendment would be to create a statutory requirement to consult with the Bar Council, the Law Society, the Institute of Legal Executives and organisations representing the legal advice movement before making regulations under Clause 2(3) setting remuneration rates for barristers and solicitors. I recognise that the Delegated Powers and Regulatory Reform Committee drew the attention of the House to Clause 2(3) in light of the lack of a provision in the Bill equivalent to Sections 25(2) and (3) of the Access to Justice Act 1999. However, in our view Amendment 8 is unnecessary. In respect of factors the Lord Chancellor must take into account when making regulations setting rates of remuneration for barristers and solicitors, the matter specified in the amendment is naturally a matter that falls to be taken into account, along with other relevant considerations, when deciding how to set those remuneration rates, and it is therefore unnecessary to include a reference to them on the face of the Bill. It is also unhelpful specifically to list these factors when there will be a range of other factors that, in the particular circumstances prevailing at the time, also properly fall to be considered but may appear excluded, or be given a lesser status, by the proposed provision. I am sure that noble Lords will agree that, when making regulations setting remuneration rates, the Lord Chancellor should properly have regard to all the relevant considerations and give them appropriate weight and that the Bill should not imply otherwise.

In respect of the proposed duty to consult with the Bar Council, the Law Society, the Institute of Legal Executives and organisations representing the legal advice movement before making regulations under Clause 2(3) setting remuneration rates for barristers and solicitors, we also consider this to be unnecessary. We will continue to engage the Bar Council, the Law Society and other representative bodies on remuneration matters wherever it is appropriate and constructive to do so. The absence of a statutory duty does not preclude this. With that assurance, I hope that the noble Lord will withdraw the amendment.

7.45 pm

Lord Carlile of Berriew: If there are circumstances in which it would be inappropriate to consult the Law Society and the Bar Council about payments to be made to their members from public funds, will the noble Lord please explain to us what those circumstances are?

Lord McNally: No, my Lords. I go back to what I have said. Neither I nor my noble friend the Lord Chancellor wants to allow the Opposition to sprinkle the Bill with "must" in this respect. We need to apply common sense to this matter. I would be as

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hard put as him to find a reason why one would not consult such bodies-indeed, I would add the Institute of Legal Executives to the list. Common sense dictates that a Lord Chancellor would want to do this. I will give way but I add, to help the noble Lord with his next shaft, that that seems to me the sensible thing to do.

Lord Carlile of Berriew: I am very grateful to my noble friend and I apologise for interrupting him again but this is intended to be a shaft of light and not a bolt of lightning. Can he think of any circumstances in which a failure to consult ILEX, the Bar Council or the Law Society about their respective members' pay would not be judicially reviewable? Surely, it is right that a failure to consult would provide a certain judicial review against the Government.

Lord McNally: One of the joys of this job is answering questions on the law posed by learned QCs. I honestly do not know whether that situation would be judicially reviewable. However, we do not think that it is necessary to include "must". We have made it very clear that a sensible Lord Chancellor would consult these bodies and perhaps if some future-

Baroness Butler-Sloss: I am very grateful to the Minister but, speaking as another lawyer, the problem with "may" is that something may not take place. That is the point that the noble Lord, Lord Carlile, is making. If the Lord Chancellor has to do something, it is straightforward. However, if he may do something, he does not have to do it. The words used by the Minister may not actually meet the point.

Lord McNally: But if he "may" and he does not do it, again from my layman's view and from what I gather my noble friend Lord Carlile was saying, that "may" would be tested by judicial review.

Baroness Butler-Sloss: How is that acceptable?

Lord McNally: The noble and learned Baroness asks that from a sedentary position. That is the position that the Government have come to. Again, my right honourable and learned friend at the other end of the Corridor will see this exchange. Whether or not this is a matter on which one should go to the wall, I do not know. I am not sure how many consultations went on with the previous Administration.

Lord Bach: I may not have been party to many of them, but I can assure the noble Lord that of course there were consultations with the various bodies representing lawyers of various kinds about payment. They did not always satisfy the lawyers involved, but the important point is that there was genuine consultation on these matters. For the life of me, I cannot see why the Minister cannot accept the amendment.

Lord McNally: The noble Lord knows very well why I cannot accept it, but I hear what has been said. If the noble Lord will withdraw the amendment and

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the position remains the same at Report, it is best that we return to the matter then. I cannot take it any further now. I also have a slight feeling that this desire to replace "may" wherever "must" appears is not always entirely helpful to good government, but we will see.

Amendments 9 and 10 seek to convert into duties the Lord Chancellor's powers under Clause 3 to set and monitor quality standards, as well as to accredit organisations against those standards-here we go again. As I shall explain, these amendments are unnecessary. The current provisions in Clause 3 enable the Lord Chancellor to establish a system of accreditation of legal aid service providers. Accreditation may be either by the Lord Chancellor or by those authorised by the Lord Chancellor to do so. These powers are similar to those currently given to the Legal Services Commission in relation to the Criminal Defence Service and Community Legal Service.

The Legal Service Commission's existing quality assurance standard is the specialist quality mark. This standard aims to demonstrate that organisations that hold a contract with the commission are well managed, provide a good level of client care and have systems in place to ensure delivery of good-quality advice. The Legal Services Commission also accepts the Law Society's Lexcel quality standards as entry criteria to providers seeking to obtain an LSC contract. The LSC is committed to ensuring that it contracts with providers that deliver high-quality services for its clients. Its successor will have the same job. The standards must be met and accreditation obtained prior to award of contract and throughout the lifetime of a contract. This compares favourably to the privately funded market, where these standards are not mandatory.

This is all done under the existing arrangements and ensures high-quality advice. There is no intention to derogate from the existing model in future under the provisions of this Bill and, accordingly, a duty to establish, maintain and accredit against quality standards is not required when the clear intention is to continue with the arrangements that have served the legal aid market and the quality of service delivered by that market so well under the current framework.

Amendment 11 concerns the Lord Chancellor's power to make arrangements for the accreditation of legal aid service providers against quality standards under Clause 3. Specifically, the amendment seeks to require the Lord Chancellor to consult with the Bar Council, the Law Society and the Institute of Legal Executives prior to making arrangements for accreditation. This amendment assumes that the Lord Chancellor would seek to introduce a new accreditation scheme to replace the existing quality standards that must be met by a potential legal aid service provider prior to contracting with the Legal Services Commission-namely the LSC's specialist quality mark and the Law Society's own Lexcel standard.

In practice, it is highly unlikely that the Lord Chancellor would seek to develop a new standard. Legal aid providers are familiar with the existing standards, and these have worked well since the introduction of contracting to the legal aid sphere. Given their efficacy,

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and the inherent costs and time required to establish any new standard, there is no obvious need to develop and introduce one.

However, we cannot of course completely rule out the possibility that a new standard might be introduced at some point in the future under the provisions of the Bill. In that eventuality, the Lord Chancellor would, so far as it would be constructive and appropriate, engage with relevant representative bodies in the development and design of any such scheme. There is no need to make this a requirement in the Bill. The regulatory aspect of any such scheme would, in all likelihood, require engagement with the bodies mentioned in the amendment, as well as with the Legal Services Board and others-for example, the Institute of Advanced Legal Studies-to ensure that such a scheme was fit for purpose and had the support of the professions.

Historically, this engagement has always taken place and there is no reason to assume that the situation in the future would be any different. A recent example of this kind of collaborative working is the quality assurance scheme for advocates. The work was initially taken forward by the LSC and the Ministry of Justice, with the input of all relevant stakeholders, and is now being led by the regulators operating as a joint advocacy group. The JAG is made up of the three main regulators of advocates: the Bar Standards Board, the Solicitors Regulation Authority and ILEX Professional Standards. This situation did not arise as a consequence of statutory requirement; it simply represents what is required in order to get any new quality standard established with the requisite support from the sector, and this would apply irrespective of the statutory framework under which any such scheme would be introduced.

Amendment 12 concerns the provisions in Clause 3 that enable the Lord Chancellor or persons authorised by the Lord Chancellor to charge for accreditation and monitoring of persons providing legal aid services. There are, of course, significant resource implications attached to the running of such schemes. These provisions would allow any accreditation body to meet its costs in carrying out any accreditation and monitoring function, which is entirely appropriate if they are to commit resources to such a function, and this reflects the current statutory provisions under the Access to Justice Act.

The same considerations arise in respect of where the Lord Chancellor undertakes accreditation and monitoring. Significant resource implications are attached to accreditation and monitoring and it is perfectly proper that those who wish to seek accreditation in order to undertake legally aided work are able to be charged in respect of that accreditation and the monitoring of the services that they provide. In conclusion, the provisions on charges for monitoring and accreditation are entirely appropriate and reflect the current statutory position.

Amendment 104 would require the Lord Chancellor to consult prescribed individuals and bodies before making regulation for criminal legal services for individuals involved in criminal investigations or proceedings. Clause 14 creates a power to make regulations that prescribe the advice and assistance that must be made available if the director has determined that a person

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qualifies for advice and assistance. This largely reflects the provisions in Section 13 of the Access to Justice Act 1999 that require the Legal Services Commission to fund such advice and assistance as is considered appropriate. The circumstances in which such advice and assistance will be made available are prescribed in regulation. Advice and assistance for criminal proceedings are distinct from those provided under Clause 12 to individuals arrested and held in custody. The services that we are talking about include those provided by a duty solicitor in court or to a prisoner preparing for his appearance before a parole board.

8 pm

Although Clause 14 and Section 13 of the Access to Justice Act are framed differently, their overall effect is essentially the same. Clause 14 is intended to replace Section 13(1)(b) of the Access to Justice Act. We have conferred a power to make regulation under Clause 14 for consistency with Section 13(1)(b) of the Access to Justice Act, which provides that the Legal Services Commission's duty to provide advice and assistance to the individuals mentioned there arises only "in prescribed circumstances" and "prescribed" means prescribed in regulations made by the Lord Chancellor.

When making regulations under Clause 14(3), the Lord Chancellor is required to have regard in particular to the interests of justice. The Lord Chancellor will take account of any legal obligation, including the requirements of Article 6 of the European Convention on Human Rights. The amendment would require the Lord Chancellor to consult and have regard to the views of the Lord Chief Justice, the Director of Public Prosecutions, the Bar Council, the Law Society and the Institute of Legal Executives. As I explained, under subsection (3) the Lord Chancellor must have regard in particular to the interests of justice. It is unnecessary to impose an additional duty on the Lord Chancellor to consult particular individuals and bodies before making a regulation. As a matter of good practice, the Lord Chancellor will, if appropriate, engage with other interested bodies before making regulations under Clause 14. The absence of a statutory duty does not preclude that.

I think that that brings us to the end of that group. I have a note intended to give the noble Lord, Lord Carlile, a clarification of our intentions, but I think that that might only provoke him. I will go away and think about it.

Lord Carlile of Berriew: Go on.

Lord McNally: No, I recognise a red rag when I see one. I will think about the point that the noble Lord made. I commend him for merging two groupings and ask him to withdraw the amendment.

Lord Howarth of Newport: Before my noble friend withdraws his amendment, perhaps I can ask the Minister a question. I am sure that the Committee is grateful to him for the full explanation that he has given in response to the amendments. He has assured the Committee that it is unimaginable that the Lord Chancellor would not consult regularly with bodies

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representative of those who provide legal services and he has insisted on the importance of due monitoring and accreditation-all processes no doubt designed to uphold standards. Can he give some account of how all those processes that he has said that the Government will undertake assort with something else of which the Lord Chancellor has made much? He said in his article in the Guardian on 20 December:

"This year we've begun deregulation of the legal sector, a change comparable in its possible impact to the Big Bang in the City in the 1980s".

That suggests that there will be some very different procedures and that the relationship between the Ministry of Justice and the legal profession could become very different indeed.

In the context of the ministry's zealous desire to deliver substantial savings in public spending and its desire to break open some of the traditional structures and ways of carrying on, I wonder how the consultation, monitoring and continuing assurance of standards are to be reconciled with the exciting and radical new approaches that the ministry is developing.

Lord McNally: If I may say so, that is an extremely helpful intervention. One reason why my right honourable friend is reluctant to have these things battened down is that, as I have said from this Dispatch Box, the provision of legal services and the structures of the legal profession will be changed not by any radical zeal from the Ministry of Justice but by market forces and changes that are happening in our society. Much of what we have been talking about since the dinner break has concerned the machinery to be put in place, which very much replicates machinery already there but anticipates a more fluid situation in the legal profession.

That is why specifying named organisations and people could be dangerous. What must be clear is that the Lord Chancellor has those responsibilities, including the overriding one of protecting justice. I also invite the House to have some common sense: any Lord Chancellor or Secretary of State for Justice who tried to ignore or ride roughshod over the various bodies involved would soon come to grief.

I agree with the comment of the noble Lord, Lord Bach: successive Ministers will find that you can consult but you do not always agree. I am sure that there was not total agreement when the previous Government imposed cuts in various fees for parts of the legal profession. That is the nature of things. Any sensible Lord Chancellor would involve and consult those bodies. That makes the amendments unnecessary.

Lord Beecham: I am glad to have given the Minister the opportunity to buy one group of amendments and get another free. I am sorry that he has not accepted the offer. He twice used the pregnant phrase that this does not "preclude" consultation. If I may say so, that is a very negative way of looking at the responsibilities of the Lord Chancellor and a rather worrying phrase. It is not a question of not precluding; the Bill should lay down what is expected of the Lord Chancellor and what he should do.

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The Minister has repeatedly objected to the substitution of "must" for "may" in my amendments. The word "must" is in Clause 1, which states:

"The Lord Chancellor must secure that legal aid is made available in accordance with this Part".

In some ways, this is a mirror image of another debate that I am involved in, with other Members of your Lordships' House, on the health Bill. Many of us, including some on the government Benches, have been trying to secure that the Secretary of State for Health has the duty to provide health services. That aspiration is one which, in respect of legal services and legal aid as defined in the Bill, is embodied in the government's wording.

Given that, it is not enough for the Minister to say that the LSC has those powers now. After all, the LSC effectively disappears. The Lord Chancellor becomes the authoritative body for the provision of legal services. It seems to me sensible and in fact desirable to protect the Lord Chancellor from succumbing to the temptation not to consult properly or to do things in perhaps a rather rushed or narrow way either of his own volition or at the behest of the Treasury or other organs of government, looking, for example, to make savings very quickly and perhaps very radically. I dare say that that may not be the intention of the present Lord Chancellor but it would be better to protect him from the possibility of judicial review, to which the noble Lord, Lord Carlile, referred, in the first place by providing a clear responsibility.

I was rather worried by the Minister's reference to market forces. This is, I suppose, a reference to the sort of Tesco law that we are beginning to see happening. It rather worries me that, particularly in relation to Amendment 104, which deals with the criminal justice aspect, market forces might be deemed to be fit and proper effectively to run the legal aid service, whereas in the particularly important area of public policy and justice there is no requirement to consult such responsible bodies and persons as the Lord Chief Justice, the Director of Public Prosecutions and the three legal professions. I do not think it is good enough just to say that any Lord Chancellor would do this. One would hope that that would be the case but I am not sanguine enough to accept that it is proper in dealing with these matters to leave it to the potential good will of a future Lord Chancellor.

I would hope that the Minister would recognise that there ought to be a duty here. It is something that, in the absence of any movement before Report, we will have to come back to, as we might with regard to some of the other aspects to which he referred-in particular, the issue of charging for accreditation. I can see some case for making charges but I can also see a strong case in the realm of the voluntary sector for a different scheme. I give way to the noble Lord.

Lord Phillips of Sudbury: Does the noble Lord not take some solace from the view expressed by my noble friend Lord Carlile and the noble Baroness on the Cross Benches that a Minister who ignored the obvious consultees would be susceptible to an effective judicial review? Is that not the best assurance that the noble Lord needs in order to rely on the present wording?

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Lord Beecham: It strikes me that it would appeal to members of the Bar because it could be an endless source of work for them, but I do not think that that is the best way to make law-that is, leaving judicial review as an option and expecting that to act as a deterrent. Surely it is much better to have the duties clearly outlined in the Bill and placed on the person who has the statutory responsibility to secure the availability of legal aid and advice. It seems to me concomitant with that principal responsibility. I beg leave to withdraw the amendment at this stage but I may have to return to it at a later stage.

Amendment 8 withdrawn.

Clause 2 agreed.

Clause 3 : Standards of service

Amendments 9 to 12 not moved.

Clause 3 agreed.

Clause 4 : Director of Legal Aid Casework

Amendment 13

Moved by Lord Pannick

13: Clause 4, page 3, line 13, at end insert-

"( ) The Lord Chancellor must ensure that-

(a) the person designated as Director has such qualifications and experience in relation to securing access to legal services for individuals as the Lord Chancellor considers appropriate, and

(b) the terms on which the designated person holds the post of Director are, as regard the making and termination of the designation and otherwise, such as to ensure the Director's independence from Ministers of the Crown (subject to any direction or guidance given under subsection (3)) in relation to the carrying out of the Director's functions under this Part."

8.15 pm

Lord Pannick: My Lords, this amendment is in my name and those of the noble and learned Lord, Lord Woolf, and the noble Lords, Lord Faulks and Lord Hart of Chilton. The amendment arises out of a concern expressed by your Lordships' Constitution Committee, of which I am a member, and it relates to Clause 4, which will transfer responsibility for the allocation of legal aid from the independent Legal Services Commission to the Lord Chancellor's Department. Decisions on legal aid in individual cases will henceforth be taken by a civil servant, who will be designated by the Lord Chancellor as the director of legal aid casework.

At paragraph 15 of the Constitution Committee's report, we expressed a concern as to whether there are sufficient guarantees of independence in the Bill for the director of legal aid casework. The Constitution Committee also noted with concern that Clause 4 says nothing about the qualifications and experience required for such a post. The Joint Committee on Human Rights has, in its report, similarly expressed concern about institutional independence from the Government so as to prevent an appearance of a conflict of interest when decisions are taken about the availability of legal aid and the Government's decisions may be challenged.

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Given the central importance of the functions that will be conferred on this director, it is, I suggest, appropriate, and indeed necessary, to include in Clause 4 provisions that recognise the need for the Lord Chancellor to focus his mind on these issues of qualification and independence. Amendment 13 is not prescriptive as to the details; it leaves the detail to the Lord Chancellor. However, it is essential that this important issue of principle is addressed in the Bill. I beg to move.

Lord Woolf: My Lords, as is always the case, the noble Lord, Lord Pannick, has summarised the arguments in support of the amendment with admirable clarity. There is very little that I can add but, looking at these provisions, I should have thought that the Minister-although he may prove me completely wrong-would say, "Of course, that's exactly what I will do. I will see that the person appointed as director has the qualifications that I consider necessary. How could I do otherwise?". Likewise, I should have thought that he would say that of course the director must be independent. However, I urge the Minister not to be led astray by some argument on those lines. It is significant that the committees have expressed the concern to which the noble Lord, Lord Pannick, referred with the view that the position should be clearer. I say respectfully that the committees were right to take that view. We are concerned here with access to justice, which is a fundamental constitutional right. Where a right of that sort is involved, it is appropriate that the position is dealt with clearly.

The issue of what sort of civil servant would be appropriate to fill a particular role is always difficult. I remember a time when it was automatically assumed that any Permanent Secretary in what became the Lord Chancellor's Department would be a qualified member of the Bar or a qualified solicitor. That no longer happens; the days when a barrister or solicitor would perform that role are past.

It is a different type of task that the director will perform. He will have the say-so in determining who is given access to justice-because without legal aid there may be no access to justice, and we all know that that would be a very worrying situation. Therefore, perhaps the Minister will recognise that, irrespective of the good intentions of an officeholder, sometimes it is of benefit if the person concerned is familiar with the subject involved. The experience of senior civil servants filling roles of this sort is that often departments do not feel comfortable with the independence of one of their civil servants who has been-if I may put it this way-seconded for a time to fill an office such as the one about which we are talking. In that situation it is very easy for a department to start giving instructions to "one of their own"-a civil servant whom they see as belonging to the department.

I hope that the Minister will forgive me if I give an example that occurred just before Christmas in connection with the Bill and which caused me to write to him on behalf of two of my noble friends who, with me, wanted to get the assistance of the chief executive of the NHSLA, Steve Walker. A later amendment suggests that there should be a process and a safety net to ensure that, where there might be a claim for medical negligence, a medical report should be obtained prior

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to litigation being started. We wished to have the advantage of the great experience of that official but were told politely and courteously that he would not be able to give us that assistance because the subject was too political for him to become involved with. I was very surprised and I am now glad that the Minister has properly responded to my concerns-although I have not received his letter-and that the position has been rectified. However, it illustrates how easy it is, when a senior civil servant is on attachment in a role such as that of the director, for those who are experienced in a department not to appreciate how important it is not to interfere with the independent way in which the individual performs their functions. Therefore, these amendments are sensible and I hope that the Minister will feel able to accept them.

Lord Faulks: My Lords, I, too, support the amendments. I will be brief, as the reasons were so admirably summarised by the noble Lord, Lord Pannick, and by the noble and learned Lord, Lord Woolf. The post of director will be critical for the preservation of whatever is left of legal aid. The concern of the committees was that there was at least the potential for conflict, as has been outlined, because the director might seek to follow the direction of the Lord Chancellor and not be suitably independent.

May I give your Lordships an example of how important the director's powers may be and of how important it is that he or she should be seen to be independent? He will have to determine whether a case falls in the so-called exceptional cases category under Clause 9. I understand that the Minister may well be telling us in due course that this category and the availability of legal aid for exceptional cases is an effective answer or partly an answer to the apparent deprivation of access in relation to clinical negligence. I think that some of your Lordships may need some satisfying in this regard, but that I believe is one of the answers to the apparent lacuna.

Whether a case falls within the exceptional case category is bound to be somewhat controversial. Even the current decision-making exercised by the LSC is not short of critics. However, if a director is seen simply as doing the bidding of the Lord Chancellor at the relevant time, confidence in his independence will be significantly undermined. If a Lord Chancellor-not this Lord Chancellor, of course-were to decide that too many claims were being brought against government departments or the NHS, he could, at least in theory, give some rather firm guidance to the director on the process of determining such exceptional cases. Therefore, I suggest that it is vital that decision-making about the availability of legal aid should be seen not to have even the appearance of being at the whim of the Lord Chancellor or Cabinet colleagues but rather to be the proper determination by a suitably qualified director on grounds not of political expediency.

I dare say that this is very much what the Government's true understanding of the director's role is, in fact, to be, in which case I hope and expect the Minister to welcome these amendments, which set out, I hope in clear terms, what may be the underlying intention of the Government about the role of the director and his or her independence.

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Lord Phillips of Sudbury: My Lords, I speak to Amendments 14 and 16, where my name is coupled with those of my noble friends Lord Thomas of Gresford, Lord Carlile of Berriew and Lord Macdonald of River Glaven-I am sure that the Committee will recognise that we are four hardened lawyers. I concur entirely with what has been said so far. There is no question but that the world we live in is more and more a legalised world, where law and politics are often hard to disentangle. Therefore, the need for absolute independence-not only actual independence, but perceived independence as well-must surely be to the benefit of all concerned, including the Government themselves, because if the director of legal aid casework is thought by the media to be in the pocket of the then Lord Chancellor, what good does that do anyone?

I shall add something that is a difficult point to make because I would not for one second wish any negative conclusions to be drawn vis-à-vis the Lord Chancellors whom we have had since the reform. As noble Lords will remember, in the late 1990s, holding that great post was made no longer the monopoly of a senior judge. I believe now, as I believed then, that there are some disadvantages attached to that constitutional change. I believe that it is possible to conceive of a Lord Chancellor who is not in all truth well equipped to deal with the issues implicit in this part of the Bill. That is another reason why I think that all the amendments in this group are to be supported, including Amendments 14 and 16.

I would also quickly add that Sir Bill Callaghan, who is chair of the Legal Services Commission, which is about to be abolished, has warned in very strong terms against there being any possibility of political influence on the difficult decisions that the director of legal aid casework is bound to have to take as time goes by. I think that we should listen to what that gentleman, who has been through this mill, is saying. It is a point of view supported not just by the Joint Committee on Human Rights but also strongly by my professional body, the Law Society, and, indeed, I think, by anyone else who has taken the trouble to consider this matter.

I end by briefly sketching out the purport of Amendments 14 and 16. Amendment 14 explicitly requires the Lord Chancellor to make available independent assistance to the director of legal aid casework in the work that he or she has to do, and Amendment 16 stipulates that the Lord Chancellor not only cannot give binding directions or guidance on individual cases but cannot do that in relation to arms of the state. The amendment makes it clear that there cannot be any direction or guidance in relation to,

"the Crown, Government department, executive agency or non-departmental public body",

where any of those is a party.

I will rest my case at that, except to say that, having reviewed the Bill and the amendments down tonight-and we may want to look at this again on Report-I really wonder whether it is wise in these circumstances to allow the Lord Chancellor to direct the director of legal aid casework as to how he or she shall carry out his or her function other than in respect of a specific

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case. As far as I can see, although the directions to be given by the Lord Chancellor have to be published, they are not subject to any oversight by this place. In the extremely sensitive world of law, prosecution and legal aid, that power of direction seems dangerous. I hope that my noble friend will take all these amendments to heart and come back to us at the next stage with a concession that deals with the central issue.

8.30 pm

Lord Howarth of Newport: When the Minister replies, will he assist the House by telling us what will be the manifestations of the independence of the director of legal aid casework? For example, will the director produce an annual report to be laid before Parliament or in some other way made accessible to the public? Will he be free to make public comments, publish articles or take part in discussions on the radio or television? How will we know that he is independent? What will be the safeguards against him being dismissed by the Lord Chancellor for reasons of political convenience? We all remember the unhappy circumstances in the mid-1990s when the Home Secretary of the day dismissed the director-general of the Prison Service. This relationship may not be analogous; on the other hand, it would be helpful to be reassured that it could not be analogous.

Baroness Butler-Sloss: My Lords, there is a very real difficulty about the whole of Clause 4 because there is nothing in it that suggests that there is any degree of independence in the director, other than in subsection (4). I respectfully agree with all noble Lords who have spoken so far about the absolute necessity of having the word "independence" in a clause of this sort. Without it, the clause does not show that the director would be independent on general issues as opposed to specific cases.

Baroness Prashar: My Lords, I, too, support the amendments, particularly Amendment 15 in my name. I concur with all the comments that have been made so far because I am particularly concerned about the independence of the director of legal aid casework. Institutional pressure can work in very subtle ways. The director will be a civil servant and the new executive agency will be much more closely integrated into the machinery of government and subject to supervision by the Ministry of Justice. We know that the pressure to save resources can bear on individuals and therefore it is very important that there is a constant reminder that this person not only is independent but acts independently. Therefore, we need to build in some safeguards. While I am on my feet, I would like also to say that the other safeguard is the one in Amendment 18, which is about showing that the decisions made by the casework director are actually reviewed. I strongly support both these amendments. They are very sensible and I hope that the Minister will give concessions on them.

Baroness Howe of Idlicote: My Lords, as another non-lawyer, perhaps I may join in very briefly. I have listened to everything that has been said on this point, and what the noble Lord, Lord Phillips, said is particularly

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important. The Lord Chancellor has a different role. He might not have all the legal discipline of a lawyer, if he is not a lawyer.

I should like to make another point on the importance of independence that people are unfolding at this time. It illustrates the extent to which, if we cram everything into such a short space of time and so many Bills overlap-I am thinking about the Welfare Reform Bill and this Bill-it tends to leave us all wondering just how many amendments should be grouped together and whether they are being given the proper consideration that they should have. I very much support the intentions behind this group of amendments.

Lord Thomas of Gresford: The issue that concerns me in Clause 4 is subsection (3). Under subsection (4):

"The Lord Chancellor may not give directions or guidance about the carrying out of ... functions in relation to individual cases".

That is fair enough, but he must,

"comply with directions given by the Lord Chancellor about the carrying out of",

his "functions", and he must,

"have regard to guidance given by the Lord Chancellor about the carrying out of",

his "functions".

What does that mean? Does it mean, for example, that the Lord Chancellor can phone the director or call him into his office and say, "Now, look here, you've got far too many of these judicial reviews going through in relation to government business. I am not telling you about any particular case, so I am complying with subsection (4). But when it comes to subsection (3), would you please bear in mind that my guidance is that we have got too many of these cases? The judges are complaining. The lists are full."? What exactly is intended by Clause 4(3)?

Lord Bach: My Lords, we have heard short but very impressive speeches on this very important group. Clause 4 is particularly important and it is absolutely vital that the Government get this right. We want to help them get it right all across the House. I hope that the Minister will have some freedom of manoeuvre on this matter, which is, in the end, a matter of some principle.

Perhaps I may start by commending the Government for bringing the Legal Services Commission inside the Ministry of Justice. When we were in power, we set up the Magee committee to produce a report on whether that would be an appropriate thing to do. It seemed to us at the time, and clearly to this Government, that there were a number of very good reasons why it is not satisfactory for the Legal Services Commission not to be an agency of government. In our view, it is appropriate that it should be and we commend the Government for doing that.

The problem always-it would have been as much a problem for us as it is for the present Government-is with the words "independence" and "perception of independence". The Minister will know, as all of us know, that many interested people outside this House are very concerned about the drafting of Clause 4 and whether it meets what the Government clearly intend. No one is accusing them of bad faith here. Clause 4(4)

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shows that they clearly intend that this should be a system that works fairly and well. As the noble Lord, Lord Thomas of Gresford, pointed out, the wording is extraordinarily ambivalent and ambiguous, certainly as regards the relationship between subsections (3) and (4). The Government need to look at it again, and, I would argue, it probably needs to be redrafted.

I do not know whether noble Lords have had the opportunity to see an interesting, short note from Justice on this topic. Mr Roger Smith, who I think is well known to a large number of people who are interested in this issue and who has huge experience in this field, makes a very good point as to why this present drafting is not satisfactory. He says on what I think is an important part of the argument that:

"The provision will be most objectionable where the Director makes a decision to refuse legal aid for judicial review against his own minister. However justified that might be on the individual facts, it would be argued that the Lord Chancellor is being a judge in his own cause. Indeed, it may well be"-

this is the clever point-

"that interest groups are motivated to make exactly that accusation, regardless of the substantive worth of their application, precisely to obtain more publicity for their cause".

As an example, among many others that could be referred to, he has shown where the Government have to tread extraordinarily carefully to make sure that independence is real and is perceived to be real. I therefore ask the Minister to be sympathetic and to look very carefully indeed at how this clause is currently drafted.

Lord McNally: My Lords, I am grateful to the noble Lord, Lord Bach, for the way he has summed up the debate. This clause reflects the Government's absolute determination to make it clear that the director will be independent. I have to say that when I look at this cluster of amendments and see the names that are attached to them, I am tempted to repeat a phrase that I use occasionally about my own collection of legal advisers: if I had to pay them, I could not afford them. This is a very distinguished group of legal opinion and I make my reply conscious that that weight of opinion has been reflected in the debate.

Clause 4(4) gives clear guidance on the limits of the Lord Chancellor's powers. However, I take on board the fact that there have been cases in the past of friction between senior civil servants and Ministers, and if Parliament is going to create an important body and function it will need to be perceived very clearly. I take the point made by the noble Lord, Lord Bach, that perception is also important. We have to get this right.

I want to make clear the point made by the noble and learned Lord, Lord Woolf. As I told him earlier, I have in fact signed off a letter to him, but cock-up often triumphs over conspiracy in these matters. As far as I can see, there was no intention to block the meeting he wanted, and somewhere in the postal system-this is not the Government's standard promise that a letter is in the post-is his letter. I am sure that when he gets it, he will respect me in the morning because it does say that we certainly have no objection to the kind of meeting he seeks.

I am not sure that I would go as far as the noble Lord, Lord Howarth, on the point that the demonstration

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of independence needs civil servants to figure in television interviews and so on, although I have noted the points he made. It is also worth noting that some suggestions were made about dangers to the director's independence-here I tread lightly into suggesting a legal form of words-but it would be ultra vires for the Lord Chancellor to interfere in directorial decisions in individual cases, and in that respect he is well protected by Clause 4(4). However, it is true that the Lord Chancellor will decide the criteria by which exceptional cases are granted funding, and these criteria will be published. Although the director must comply with directions and take account of guidance given by the Lord Chancellor about the carrying-out of the director's functions under Part 1 of the Bill, the Lord Chancellor cannot give directions or guidance to the director about the carrying-out of those functions in relation to individual cases.

8.45 pm

The noble Lord, Lord Howarth, asked about the possibility of an annual report from the director. We will publish a framework document that sets out the governance and reporting arrangements between the director and the ministry, but, as is the currently the case for the Ministry of Justice and all its agencies, an annual report is published. I therefore ask the noble Lord to await that framework document.

Lord Howarth of Newport: Will the annual report say what the directions are? How are the legitimately interested public to know what directions the Lord Chancellor will give the director? Will the Minister tell us how they are to be known and what ground they would cover? What would be the subject matter of the directions?

Lord McNally: I think that we will have to await the document, but I will take advice on it. As far as I understand, the directions and guidance on the director's functions will be published by the Ministry of Justice.

Lord Williamson of Horton: It is covered by the Bill, in subsection (5). The directions have to be published. Whether they should be in the Bill at all is another matter; but if they are in the Bill, they have to be published.

Lord McNally: I am also told that the director's terms and conditions will govern the circumstances in which they could be dismissed. Some of the concerns that have been raised are either in the Bill or will be covered by guidance or in published directions and terms of reference from the department.

I go back to the point made by the noble Lord, Lord Bach. Clause 4 is not an attempt to create some stooge of either the Ministry of Justice or the Lord Chancellor of the day; it is to have somebody who will command public confidence and respect. I am not in a position to take note, here in a Committee stage, of the points that have been made; I will, as I said earlier, draw the Lord Chancellor's attention to the views of the contributors to this debate. It would probably be of help both in looking forward and in winding up this debate if I were to set out the position as we see it now.

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Amendment 13 seeks to introduce into the Bill a specification for the role of the director, in particular requiring that the person designated as director has such qualifications and experience in securing access to legal services for individuals as the Lord Chancellor considers appropriate. The amendment also seeks to have the concept of independence, and specifically the independence of the director when carrying out functions under Part 1, incorporated into the terms and conditions of the director's employment. Amendment 17 provides a definition of "Minister of the Crown" to reflect the reference to the same in Amendment 13.

These are unnecessary amendments. Relevant experience and qualifications are, of course, factors that are taken into account in any appointment, and the recruitment of the director is no different. We can see no persuasive reasons why it should be necessary to include these considerations in primary legislation. The Committee should also note that the framework document which will govern the relationship between the Ministry of Justice and the new executive agency will also reflect the principle of independence of decision-making. The incorporation of this principle into the terms and conditions of the director would add nothing as the effect is already secured through the existing provisions.

Clause 4(2) requires the Lord Chancellor to,

"make arrangements for the provision to the Director by civil servants or other persons (or both) of such assistance as the Lord Chancellor considers appropriate".

This means that the director will also be assisted by those with relevant experience and qualifications in discharging the director's functions under Part 1 of the Bill, providing the necessary expertise alongside the director's own. This support is essential as, in practical terms, it is not the case that the director will personally make all decisions on eligibility. That would be unworkable given the volume of applications made for legal aid.

Clause 5 sets out the director's powers of delegation and, of course, this anticipates the delegation of decision-making on an individual application. As such, the need to ensure the requisite knowledge, skills, experience and qualifications for those making decisions applies to all and the proposed amendment does not further this imperative.

On the limb of Amendment 13, which seeks to have the concept of independence incorporated into the director's terms and conditions, this is also an unnecessary amendment. The existing provisions of Clause 4 provide statutory protection to the director against ministerial or other political interference. In particular, while the Lord Chancellor can issue directions and guidance to the director about the carrying out of the director's functions under Part 1, the Lord Chancellor is specifically prevented under Clause 4(4) from issuing directions or guidance about the carrying out of the director's functions in relation to individual cases.

It is important to note that the prohibition in Clause 4(4) extends to anyone, including civil servants, to whom the director may delegate his or her decision-making functions in accordance with Clause 5. This is an important safeguard.

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Lord Phillips of Sudbury: I am sorry to interrupt my noble friend's flow, but surely for him to argue, as he just has, that all is well on the independence front because Clause 4(4) states that the Lord Chancellor cannot direct the director of legal aid casework in individual cases is small comfort given that it leaves intact Clause 4(3), which enables the Lord Chancellor to give directions, which the director must comply with, on anything to do with the director's functions except in an individual case. A whole wide sea of discretion is given to the Lord Chancellor by that provision, which goes to the heart of the independence of the director.

Lord McNally: The noble Lord is repeating the thrust of a number of contributions that I have heard today. My response indicates the Government's position at the moment. Again, along with this response will be the comments that he and other noble Lords have made. Let us see where we go from there. It is an important safeguard to ensure the director's independence in carrying out his or her functions in relation to individual cases, which in the Government's view is not improved or added to by the amendment.

Amendment 14 seeks to amend Clause 4(2) by removing reference to other persons who may be provided to the director under arrangements to assist in the discharge of functions under Part 1. Again, this is an unnecessary amendment. To the extent that independent persons are envisaged under the new scheme, the current drafting of Clause 4(2) does nothing to prevent such individuals being engaged. The amendment also may have unintended consequences that could serve to undermine the efficient operation of the new scheme. Were this amendment to be accepted, it would limit the range of those individuals who could be engaged to assist the director to either civil servants or independent persons. It may of course be that the director will in future only ever need the assistance of civil servants and independent persons to discharge their functions. However, we cannot be sure with any certainty that this would be the case in all eventualities in the future.

The current formulation of "or other persons" provides the requisite flexibility to meet any future scenario, including the provision of independent persons. Accordingly, Amendment 14 merely limits the pool of people that might be available to assist the director, with potentially problematic unintended consequences for the operation of the scheme.

Amendment 15 to Clause 4 is intended to alter the provisions in relation to the independence of the director of legal aid casework. As I hope to explain, we believe the amendment, again, is unnecessary. I will briefly set out for the benefit of noble Lords the role and key functions of the director and why I believe that independence is important and why it is already enshrined in the Bill. Under Clause 4, the Lord Chancellor is obliged to appoint a civil servant as a statutory officeholder who will be responsible for making funding decisions in individual cases, including funding decisions in relation to exceptional funding applications under the Bill.

The statutory officeholder is to be known as the director of legal aid casework. The Lord Chancellor is

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also obliged to provide civil servants or other persons, or both, to assist the director in carrying out their functions. The director must make determinations in legal aid cases in accordance with the provisions of Part 1 of the Bill.

Under the new arrangements, Clause 4 is potentially the most important. It ensures that the director has independence in carrying out functions and is free from any political interference in making decisions in relation to individual cases. This independence is enshrined by the specific provisions within this clause, specifically subsection (4), which the amendment would delete. Subsection (4) prohibits the Lord Chancellor from giving guidance or directions in relation to the carrying out of the director's functions in relation to individual cases.

There are provisions within Clause 4 that oblige the director to comply with directions given by the Lord Chancellor about the carrying out of the director's functions, and to have regard to guidance issued by the Lord Chancellor about the carrying out of those functions, but crucially such guidance and directions cannot relate to the carrying out of the director's functions in relation to individual cases. This protection of the director against interference when carrying out their functions in relation to individual cases is an important safeguard.

I would like to assure noble Lords that the protection of this independence is a fundamental tenet of the new arrangements, which provide the necessary safeguards that are required to make the new arrangements work. It should be noted that the director is a separate office from the Lord Chancellor created by statute. As I have said, under Clause 4(4), the Lord Chancellor cannot give directions or guidance to the director about the carrying out of the director's functions in relation to individual cases. That is a very explicit assurance about independence. The protection offered by Clause 4(4) extends to anyone, including civil servants, to whom the director may delegate his or her decision-making functions in accordance with Clause 5 of the Bill. I believe that the Bill already establishes a proper role for the director, free from any political interference in relation to the carrying out of his functions in relation to individual cases.

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