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Lord Lucas: I suppose that there are degrees and degrees. Currently we have no plans and no intention to introduce any restrictions under Clause 31. Were we to use this power and were we to phrase it in a way that overrode a local authority's strategic plan, we would do it with that intention. That is the way we would wish it to be in the legislation; namely, that in the end we would assert the primacy of Parliament over local authorities. That is stretching the imagination somewhat since we currently have no particular requirement that would fit under this clause. However, given that the clause is there, we should like it to be in its present form to give us the powers and the pattern we have requested. I therefore hope that the noble Lord will feel able to withdraw his amendment.

Lord Williams of Elvel: I am grateful to the noble Lord for his reply. I accept his comments and those of the noble Baroness on my Amendment No. 48. Reading through the Bill, it seemed slightly confusing. I always prefer to avoid double negatives where possible. But if that is the way the parliamentary draftsman wants it, that is the way the parliamentary draftsman gets it.

On Amendment No. 49, I am bound to say that I found the noble Lord's reply very much less than satisfactory. It is after all a local authority which makes a private housing renewal strategy. That strategy is agreed with the Secretary of State. The agreement therefore gives to the local authority a status which should not be overridden by order. The noble Lord said that they had no intention of doing any such thing. If they have no intention of doing any such thing, why leave a clause as such in the Bill? If the Secretary of State has the right--which he has--to disagree with the local authority's private housing

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renewal strategy, why would he want to issue an order overriding that strategy when he has agreed it? I simply do not understand why the noble Lord wants this clause in the Bill. Perhaps he will elucidate.

Lord Lucas: So far as I understand it, we may approve or disapprove of a local authority's strategy, but we do not write it. There may well be occasions when that strategy cuts across what we would wish to achieve. What we are specifying here is our ability to exclude various areas from the scope of this particular grant. That is something we feel we should be able to do. But I do not see how the noble Lord can say that a local authority should be granted an exemption from a direction by the Secretary of State if that is what the Secretary of State wishes to do and has taken proper power for that in legislation.

Lord Williams of Elvel: No, but we have a very odd situation here. As I understand it, and subject to anything that the noble Lord may say, a local housing authority's private renewal strategy is agreed with the department (with the Secretary of State). Once that has been agreed by central Government, that seems to have an authority. If, after that, the Secretary of State decides that he does not like the strategy, that is tough luck. He should have said that before he agreed it. No local authority can work with a Secretary of State saying, "Well, I'll agree your strategy, but in half an hour's time I may change my mind and issue an order under Section 31". It makes no sense.

Lord Lucas: I have to return to what I said. The strategy is evolved by the local authority. It is the authority's strategy. The Secretary of State is notified of it, but it is not something to which he gives his blessing or which requires his blessing. We are examining the Government's ability to put a restriction on what may be done as a result of that strategy. To me, that seems entirely proper.

Lord Williams of Elvel: I do not think I shall get much further with this argument. I shall reflect on what the noble Lord said. It seems to me that once the Secretary of State, in whatever manifestation it may be, has been notified, has not objected and has essentially agreed a strategy, it is then unnecessary and indeed divisive and undesirable for the Secretary of State then to issue an order under this section, saying, "No, I disagree. I shall use the authority that I have under statute to renege on that." Nevertheless, I feel that we shall not get much further with that argument. I shall certainly read with the greatest care what the noble Lord said. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 49 not moved.]

Clause 31 agreed to.

Clause 32 agreed to.

Clause 33 [Means testing in case of application by owner-occupier or tenant]:

Lord Williams of Elvel moved Amendment No. 50:


Page 19, line 24, after ("a") insert ("mandatory or discretionary").

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The noble Lord said: This amendment stands in the names of my noble friend Lord Dubs and of the noble Baroness, Lady Hamwee. It may be for the convenience of the Committee if I also speak to Amendment No. 51.

The purpose of these amendments is to ensure that the definition of "relevant persons" for the disabled facilities grant means test for mandatory and discretionary grants excludes non-disabled owner-occupiers, their partners and dependants. The Government have indicated in their explanatory paper, The Future of Private Housing Renewal Programmes in England, that there will be a change in the means test for disabled facilities grants. Such a change does not appear on the face of the Bill. It will apparently be implemented in regulations which determine the means test for grants to be made under Clause 33(5).

We expect that the regulations will follow the general principles set out in the explanatory paper; namely, that for mandatory disabled facilities grants only the means of a disabled applicant, and parents in the case of those under 18, will be taken into account, but in the case of discretionary disabled facilities grant the current arrangements will remain.

I hope very much that the noble Lord will be able to accept the amendments or at least assure us that the principle enshrined in the amendments is accepted by the Government. I beg to move.

Lord Lucas: Amendment No. 50 seeks specifically to apply the means test provisions in Clause 33 to any application for either a mandatory or a discretionary disabled facilities grant. But Clause 33 does not distinguish between those classes of grant and applies equally to both. The amendment is therefore unnecessary.

Amendment No. 51 would exclude from the means test provisions owners of the dwelling who themselves are not disabled in the case of an application for a disabled facilities grant.

I have some sympathy with the intention behind the noble Lord's amendment, which seeks to achieve changes to the means test, to which we are already committed. We have already announced our proposal, as the noble Lord said, to make changes to the test to require that for mandatory grant only the means of the disabled occupant and his spouse or partner will be taken into account. However, those are matters which are more appropriate for inclusion in regulations, rather than being set out in primary legislation. That enables matters concerned with the way in which the means test works to be revised from time to time, should that prove necessary, which would not be possible if the provisions were included in the primary legislation.

With that explanation, I hope that the noble Lord will feel able to withdraw his amendment.

Lord Williams of Elvel: I am grateful to the noble Lord for the fact that the Government have sympathy with Amendment No. 51, which is quite an important amendment. On the basis of the assurances that he gave, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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[Amendment No. 51 not moved.]

Earl Ferrers: This may be a convenient moment to break. I beg to move that the House be now resumed. In moving that Motion, I suggest that the Committee stage begin again not before 8.25 p.m.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.

Dogs (Fouling of Land) Bill

7.25 p.m.

Brought from the Commons; read a first time, and to be printed.

Maximum Number of Judges Order 1996

The Lord Chancellor (Lord Mackay of Clashfern) rose to move, That the draft order laid before the House on 18th March be approved [14th Report from the Joint Committee].

The noble and learned Lord said: My Lords, I beg to move the Motion standing in my name on the Order Paper.

The draft order is made under Section 2(1) of the Supreme Court Act 1981. The statutory ceiling for Lords Justices in England and Wales was increased from 29 to 32 by the Maximum Number of Judges Order 1994. This order will further increase that number to 35.

Your Lordships will recall that when the Maximum Number of Judges Order 1994 was debated in this House in November 1994, I was asked whether the appointment of three extra Lords Justices would be sufficient to deal with the increasing workload. I said that I thought the three extra appointments would prove sufficient but that I would keep the situation closely under review.

During the past year the situation in the Civil Division of the Court of Appeal has worsened. The number of outstanding appeals rose from 1,619 to 1,833 in the legal year to September 1995. As a result, waiting times in the court have continued to lengthen. Priority is given to child cases and other appeals which need to be heard urgently, but other non-priority appeals such as from the Chancery or Queen's Bench Divisions can expect to wait 18 to 20 months for a hearing. I consider that level of delays to be unacceptable.

Measures have been introduced during the past year to help reduce the delays, but the early signs are that these alone will not solve the problems, particularly in the short term. The leave to appeal filter was extended to a further six categories of case in October 1995. Those filters help to control the number of cases proceeding to full appeal by weeding out those appeals which have no prospect of success. But leave filters also generate more applications which take up valuable judicial time. The number of applications for leave to appeal have doubled to 1,649 in the past two years and are likely to increase further as a result of the latest

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extension to the leave filters. Because the court is still hearing appeals lodged before the introduction of the leave filters, the benefit of fewer appeals going to full hearing will take time to work through the system.

Fixed time limits for oral arguments were introduced in July 1995 with the intention of reducing the hearing time of certain categories of appeal. The additional benefits of this initiative may be marginal because the shorter the time judges spend in court listening to arguments, the longer the time they will need to spend out of court in preparation.

Waiting times in the Court of Appeal (Criminal Division) have remained constant in the past twelve months and are currently 10.9 months for conviction appeals and 5.4 months for sentence appeals. However, the number of appeals being lodged are steadily increasing and to prevent waiting times increasing, it will be necessary to maintain the current level of sittings. I believe that criminal cases should take priority over other cases given that the liberty of the subject is often at stake and it will not be possible to reduce sittings in the Criminal Division to provide relief for the Civil Division.

I do not believe that I can wait to see the full benefit of the measures taken in the past 12 months before taking further action. The Master of the Rolls and I agree, however, that we cannot overcome the difficulties in the Civil Division by the repeated enlargement of the Bench. I have therefore agreed with the Master of the Rolls that the only viable long-term option is for there to be a review of the civil appellate procedure. The review will start within two months of the publication of the report of my noble and learned friend Lord Woolf's review of the civil courts. It is expected that this report will be published in late July or August. I hope to announce the terms of reference for the review by the end of April.

The review of the appellate procedure will take time to formulate and then implement its proposals. I am anxious, however, to provide some immediate relief to help stem the rising number of outstanding appeals in the Civil Division and would therefore wish to appoint three additional Lords Justices as soon as possible. I commend the order to the House.

Moved, That the draft order laid before the House on 18th March be approved [14th Report from the Joint Committee].--(The Lord Chancellor.)

7.30 p.m.

Lord Irvine of Lairg: My Lords, I welcome the order. As the noble and learned Lord said, its object is to reduce delay and to reduce the backlog of appeals waiting to be heard in the Civil Division of the Court of Appeal. Justice delayed is justice denied. I understand that delay generally in waiting for civil appeals to be heard in the Court of Appeal is perhaps a little longer than the noble and learned Lord indicated--as long as 18 months to two years. That is unacceptably long. Of course the queue can be jumped in urgent cases; for example, cases concerning children or urgent public law cases. But expedition in those urgent cases pushes other appellants down the queue.

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Waiting time is far too long. Delay of this order means that the state is failing to provide prompt and efficient access to justice. The Master of the Rolls, Sir Thomas Bingham, described the problem pungently in his annual Review of the Legal Year 1994-1995. He began his review with the devastating first sentence:


    "The delay in hearing certain categories of appeal in the Civil Division of the Court of Appeal has reached a level which is inconsistent with the due administration of justice".
He continued,


    "This predicament should come as no surprise. Reporting on the year ended 30 September 1991, when the backlog of unheard appeals stood at 1136, Lord Donaldson of Lymington"--
the predecessor of the present Master of the Rolls, Sir Thomas Bingham--


    "described the emerging picture as 'depressing' and warned that if changes were not made the next report was likely to be considerably more gloomy than that one. It was. By September 1992 the backlog had risen to 1195. I reported that Lord Donaldson's pessimistic prognosis had been borne out. I indicated the steps which I considered necessary if the present disquieting trends were to be reversed.


    "In the following year I had to report that these disquieting trends had not been reversed. The backlog of unheard appeals had by then risen to 1399. Despite hearing more appeals, the Court had lost ground over the year, continuing the trend of previous years. Last year I reported that the year ended September 1994 had seen a sharp increase in the backlog of unheard appeals. The total by then stood at 1619. I reported:


    "'The trend is disturbing because the delay in hearing appeals is already too long, and is perhaps at the upper limit of what is acceptable. If these trends continue and nothing is done, the delay will be altogether unacceptable and may be seen as a denial of justice'.


    "During the year 1 October 1994-30 September 1995 the backlog of unheard appeals has risen to 1833. The Court has had to announce publicly that in certain categories of case it can only plan"--
the Master of the Rolls underlines the word "plan"--


    "to hear 70% of appeals in such categories within about 18-19 months of setting down. On current projections the backlog appears set to continue steadily. These projections have been vetted by a professional statistician in the Lord Chancellor's Department. There is some reason to fear that these projections paint too favourable a picture. There is little or no reason to think that they paint too gloomy a picture. They suggest that by the year 2000 the backlog will have risen to 2234. These projections appear at page 12 of this Review".

That is a devastating description of inordinate and unacceptable delay in appeals to the Court of Appeal by the head of that court, the Master of the Rolls, who has no political axe to grind. He continued,


    "Secondly, the judges of the Court have exerted constant pressure to limit oral argument in court to the bare minimum necessary for just decision-making. The oral recital of facts has been eliminated; the reading aloud of documents and authorities has been cut to the bone. Greatly increased reliance has been placed on written summaries of argument. On 26 July 1995, following detailed consultation with the Court of Appeal Users' Committee (representing judges, barristers, solicitors and the Citizens' Advice Bureaux), a Practice Statement and Practice Direction were promulgated: these were intended to streamline existing procedures and fix time limits where practicable. They do not restrict oral argument within the very tight limits familiar in American and continental courts, but are judged to represent as great a change as is currently feasible. It must also be remembered that summary oral hearings have a price: only a judge who has comprehensively mastered the relevant materials before the hearing can fairly conduct it in a summary way. The shorter the time spent in court listening to argument, the longer the time spent out of court in preparation.

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    It is also becoming clear, as experience throughout the rest of the world demonstrates, that if judges are to prepare themselves adequately for very brief oral hearings, they must each be afforded (as at present they are not) some skilled professional assistance".

I can confirm that the Master of the Rolls, in the passage which I have just read, makes a highly significant point. It is right that the time spent on oral argument on appeal should be reduced so far as possible, consistent with no diminution in the quality of justice. The quality of justice at this level critically depends upon the interchange in oral argument between counsel and court on the key issues at stake. But if as much legal argument as possible is to be presented to the court in writing in advance of oral hearings, then two things follow which I do not doubt the noble and learned Lord on the Woolsack will accept.

First, more judicial time must be spent out of court in studying written submissions and also in studying the judgment of the court below, the transcript of evidence in the court below and all the issues in the case so that all three Lords Justices hearing the appeal are as informed about all the ramifications of the appeal as are counsel who put it forward and resist it. That has obvious resource implications.

Secondly, as the Master of the Rolls suggested, the Lords Justices may need the assistance of highly qualified law clerks, as in the United States system, to assist them to deal effectively with abbreviated oral hearings. That too would have resource implications and I would welcome the noble and learned Lord's comments on that specific suggestion. Those realistic suggestions of the Master of the Rolls chime with the recognition of the noble and learned Lord, Lord Woolf, that there are resource implications too in his plans to streamline civil justice as set out in his interim report to the noble and learned Lord, Access to Justice, in June 1995.

I welcome the order, therefore, as a step in the right direction. But I make two basic points. First, the present delays in the hearing of appeals in the Court of Appeal are unacceptable in the public interest. The delays are emphatically not the fault of the court, which I am sure the noble and learned Lord will confirm is as hardworking as any in the country; it is a consequence of judicial undermanning. It is the responsibility of government to remedy judicial undermanning. Secondly, I shall be interested to know, if three more Lords Justices are appointed under the order, what precise impact the noble and learned Lord estimates it will have on the backlog.

I repeat that I welcome the order. I am anxious not to be mean-spirited and to say "too little, too late". But we are entitled to know whether the noble and learned Lord is of the opinion that this order and the creation of three further Lords Justices are sufficient, in his judgment, to ensure the expeditious disposal of appeals without unreasonable delay.

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