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Access to Justice Bill [H.L.]

3.7 p.m.

The Lord Chancellor (Lord Irvine of Lairg): My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.

Moved, That the House do now resolve itself into Committee.--(The Lord Chancellor.)

On Question, Motion agreed to.

House in Committee accordingly.


Lord Lloyd of Berwick moved Amendment No. 1:

Before Clause 1, insert the following new clause--

("Principles to be applied
Principles applicable to Part I

.--(1) Every person exercising functions in connection with this Part must act, so far as possible, in a way which is compatible with the objectives set out in subsection (2).
(2) The objectives are--
(a) that persons have access to legal services and the machinery of justice which they would otherwise be unable to obtain on account of their means;
(b) that such access be enjoyed without discrimination on any ground;
(c) that legal services and facilities be available such that disputes may be resolved, and proceedings determined, expeditiously, fairly and with the parties placed on an equal footing;
(d) that a strong, independent and self-regulating legal profession be preserved.").

The noble and learned Lord said: I hope that the amendment standing in my name will prove uncontroversial. I should declare an interest, in the rather remote sense that since retiring as a Law Lord I have become Treasurer of the Inner Temple, of which I am proud to say that the noble and learned Lord the Lord Chancellor is also a member. I mention it only because the Inner Temple is home to some 3,000 or 4,000 barristers in this country and overseas.

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The object of the amendment is to make clear the underlying purposes of Part I of the Bill. It is concerned only with Part I of the Bill; we shall come to Part III later. Not every Bill needs a clause such as this proposed new clause. Members may remember that the proper function of a purpose clause in Bills was discussed at some length when the Human Rights Bill was before the House, notably by my noble and learned friend Lord Simon of Glaisdale. We need not go into any of that today. This Bill is one that cries out for a purpose clause. The Bill confers a large number of powers on various bodies. The noble Lord, Lord Kingsland, at Second Reading counted as many as 17 separate new powers in the Bill, many of which are in Part I. For example, powers are conferred on the Lord Chancellor to give directions under Clause 4. Equally important, powers are conferred on the legal services commission under Clause 7 and/or Clause 9.

The main point of purpose clauses in general is to help with the construction of the particular statute if a question should come before the courts as to the meaning of the legislation. Equally important, and more important in the present case, is that a purpose clause also serves as a guide to those who must exercise the important new powers conferred upon them by the Bill and gives the courts something to go on in case any dispute as to the exercise of those powers comes before them. That was what the noble and learned Lord the Lord Chief Justice had in mind at Second Reading when he drew attention to the need for a clear statement of certain fundamental principles on the face of the Bill. He gave the good example of Section 17 of the Courts and Legal Services Act 1990. On 14th December 1998 at col. 1126 of the Official Report the noble and learned Lord listed a number of the fundamental principles that he had in mind. He clearly regarded this as a point of considerable importance. That was echoed by a number of other noble Lords in the course of Second Reading. It is very difficult to disagree with the words of the noble and learned Lord the Lord Chief Justice on that occasion.

Since then there has been a further development in the form of the publication of the fifth report of the Select Committee on Delegated Powers and Deregulation under the chairmanship of the noble Lord, Lord Alexander of Weedon. I should like to quote one or two short passages that have direct relevance to this amendment. On page 2, having referred to the powers conferred on the legal services commission, the report goes on to state:

    "In turn, the nature and scope of directions [under Clause 4] given by the Lord Chancellor will be crucial to the operation of the Commission and the way in which it provides access to justice. Yet the power of the Lord Chancellor to give directions is almost untrammelled. We view this with considerable concern".

At the top of page 2 the Select Committee reports:

    "The policy objectives and national principles are not set out in the Bill, which contains no parameters or criteria for the exercise of his powers by the Lord Chancellor, but are simply left to be supplied by direction. We see the setting of objectives and priorities which will have such important consequences for citizens as a legislative act".
The committee goes on to refer to the Second Reading speech of the Lord Chief Justice.

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Finally, in heavy print the committee states in paragraph 5:

    "In regard to the Community Legal Service, we consider that, if significant delegated powers are to be granted under Clause 4, the Bill should be amended so as to contain (a) a clear statement of principle that the objective of the Community Legal Service is to promote and enhance the opportunities for citizens to have access to legal advice and the opportunity to resolve disputes, and (b) the criteria which the Lord Chancellor is entitled to take into account in giving directions. We believe that it is the more important to circumscribe the Lord Chancellor's powers in this way since, as the Explanatory Notes explain, the Community Legal Service Fund will 'not be an open-ended fund, as the legal aid fund is now'".
Those views are expressed in forthright language. It is difficult to disagree with the conclusions of the Select Committee. I hope that by accepting this amendment the Committee will endorse those views.

I turn briefly to the language of the proposed amendment, which I am sure can be improved. Perhaps I may explain from where the language comes. Subsection (1) is familiar language. The expression "compatible with the objectives" is the language used in the Human Rights Act, as can be seen from page 1 of the Bill. Subsection (2)(a) reflects Section 1 of the Legal Aid Act 1988. Subsection (2)(b) requires no justification. Subsection (2)(c) reflects Rule 1(1) of the new Civil Procedure Rules which will come into force in April following the Woolf reforms. Subsection (2)(d) is a direct quotation from the speech of the noble and learned Lord, Lord Bingham, at Second Reading. The Committee will note that it does not refer to the independence of the Bar but to the independence of the legal profession as a whole.

Perhaps more important than anything else that I have said in moving the amendment is that I have had the opportunity to speak to the noble and learned Lords the Lord Chief Justice and Lord Woolf, who unfortunately cannot be here today. I hope that the Committee will permit me to say that, having spoken to them, they both fully support this amendment which I hope will prove uncontroversial. I beg to move.

3.15 p.m.

Lord Rawlinson of Ewell: I welcome the amendment moved by the noble and learned Lord. In particular I welcome the fact that his amendment includes in subsection (2)(d) reference to the preservation of,

    "a strong, independent and self-regulating legal profession".
I especially welcome the fact that this Bill pays regard to the powers to be taken by the noble and learned Lord the Lord Chancellor.

Nine years ago when the House debated the Courts and Legal Services Bill, which was introduced by the then Conservative government under the leadership of the noble Baroness, Lady Thatcher, I said that nowhere except in a Marxist state could a political Minister appoint the judges and also regulate who appeared before them. This Bill is in some ways a stride along the road to giving a political Minister increased powers over the regulation of who should and should not appear before Her Majesty's judges. It also takes us further down the road towards the United States system of the

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administration of justice, with conditional fees and rights of audience. On a former occasion the noble and learned Lord the Lord Chancellor spoke about fat cats. He should wait to measure the circumference of these cats when all of this is accomplished. It will lead to the fattest legal cats ever seen in the United Kingdom as well as an explosion of litigation once these powers are extended.

On a more general point, I believe that the Bill places too great powers in the hands of political Ministers. Hitherto, no party political politician--that is, no member of the Cabinet, of the party political administration--has had a say in regulating who represents a subject in Her Majesty's courts. It has been left to the independent judiciary to do that. The 1990 Acts brought in by the Conservative Administration went down that road. The Bill is a giant stride further.

I believe, and have always believed, in an independent Bar, with the rights of audience of the Bar. That is what I believe in; and that is what I practised in for my 40 years in law. The noble and learned Lord the Lord Chancellor says that he has only a fall-back power in making the regulation. With respect, it is a power that I do not believe the Lord Chancellor should have. It is all the more reason that the fundamental principles should be resoundingly set out at the beginning of the Bill. The fundamental principle dearest to my heart is that of a self-regulating profession.

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