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Lord Archer of Sandwell: I hope that the noble and learned Lord, Lord Rawlinson, will forgive me if I defer comment on some of the issues he raised to a later stage of our deliberations.

I was unable to be present for Second Reading. Had I been present I would have congratulated my noble and learned friend on seeking to implement some of the many changes which, over a long period of years, have been discussed in the Society of Labour Lawyers of which he and I are privileged to be presidents jointly with my noble friend Lord Clinton-Davis--some of them date back to the famous pamphlet Justice for all which we produced in his youth and mine. They have been argued for, too, by the legal action group. I should like to record a debt to it for mitigating some of my ignorance on the matters which we shall be discussing.

It is no part of my intention to impede the passage of the Bill. I seek to intervene for three reasons: first, to support the amendment of the noble and learned Lord, Lord Lloyd of Berwick, for the reasons which he so cogently gave and which would not benefit from any repetition by me; secondly, to elaborate a little on one of the matters which he raised; and, thirdly, to refer to my Amendment No. 41 which is grouped with the noble and learned Lord's amendment. It may be possible to spare the Committee a certain amount of time at a later stage in our debate.

Perhaps I may say a word about the legal services aspect of the Bill although I appreciate that we shall debate it in greater detail later. I accept the necessity for a system of funding which is no longer open ended, as I think probably most of us do. But all that will entail

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some hard decisions. As the Bill recognises, it will mean deciding on priorities, and that entails according a priority to one purpose by relegating another possibly very worthy purpose further down the list. Those are matters which we shall discuss later.

What we are now discussing is how those difficult decisions--and they are difficult--will be taken. Clearly my noble and learned friend must have an important role in that process on behalf of the Government. It is they who have the responsibility for funding the services of which we are talking, not from their own pockets but from the resources for which they must ask the public. There will be voices enough asking for extra expenditure on particular objects. I have little doubt that mine will be among them. No one would deny, too, my noble and learned friend the right to require that the equations should balance. But for that very reason it is important to ensure that the directions which my noble and learned friend is empowered to give shall not accord undue weight to the need for economy. That was another matter pointed out by the committee on delegated legislation on which I am privileged to serve.

Something may turn on the nature of the directions which my noble and learned friend is proposing to give. If they are purely of an administrative nature, some of the anxiety disappears. But the powers which the Bill confers are in terms much wider than that. Some future Lord Chancellor may have a different intention. I do not suggest that any future Lord Chancellor will be malicious. But if we could be certain that every future Lord Chancellor will be as fair, well intentioned and open to argument as my noble and learned friend, we would still be granting a very wide power on the face of the Bill.

What we are balancing against the necessity for economy is the requirement of justice; the right of the citizen to the redress of grievances--sometimes redress of grievances against the Government themselves--and that cannot be a matter within the unfettered discretion of the Executive if only because, among other things, it relates to the right of the citizen to challenge the Executive.

What the Bill now proposes is that my noble and learned friend shall direct the commission unconditionally on how to discharge its functions; to require it to do so in one way rather than another; and to do so without reference to Parliament. The Delegated Powers and Deregulation Committee--and I should like to echo the tribute to our chairman, the noble Lord, Lord Alexander--discussed this matter and described the powers as almost untrammelled. I think that the noble and learned Lord, Lord Lloyd, referred to it.

It is not an issue about how best to provide legal services but a constitutional issue. On Second Reading, the noble and learned Lord, Lord Mackay of Clashfern, spoke of the need to set out the criteria on the face of the Bill. As the noble and learned Lord, Lord Lloyd, pointed out, the noble and learned Lord the Lord Chief Justice also echoed the need for that statement.

There was indeed a time when we were all reluctant to see general statements in primary legislation because we thought that they were not part of the enacting

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words. Since then, I believe that two factors have changed. First, governments of all political complexions are proposing Bills which make much greater use of delegated powers, and we need some indication of what Parliament intended to be the purpose of delegating the power. Secondly, the courts are more robust in the use of judicial review to ensure that the powers are used for the purposes for which they are granted. It is not an issue about how best to make provision in the Bill. So the Delegated Powers and Deregulation Committee suggested two safeguards. One relates to parliamentary control, and that will be the subject of later debate. The other safeguard was to have a statement of principle on the face of the Bill to serve as a criterion against the necessity of, or the justification for, the directions which my noble and learned friend gives. For that reason, too, I strongly support the noble and learned Lord's amendment.

I set down Amendment No. 41 to deal with the directions which, on the present face of the Bill, we are according to my noble and learned friend in relation to legal services. I do not think that we require that and the amendment which the noble and learned Lord suggested. For that reason we may be able to spare the Committee the time which would otherwise be taken in debating Amendment No. 41 and a series of consequential amendments at a later stage. But that will depend upon the fate of this debate.

3.30 p.m.

Lord Goodhart: I support the amendment tabled by the noble and learned Lord, Lord Lloyd of Berwick, to which I have put my name. It is the first of a group of amendments which are designed to introduce a purpose clause. There was a purpose clause in the Legal Aid Act 1988 which is being removed and replaced by the Bill. The 1988 Act stated:


    "The purpose of this Act is to establish a framework for the provision ... of advice, assistance and representation which is publicly funded with a view to helping persons who might otherwise be unable to obtain advice, assistance or representation on account of their means".
That is perhaps a clumsy way of expressing the purpose, but it is clear, and I believe that it was right to do so. I very much regret that we do not have an equivalent clause in the present Bill. It does not mean that there has to be such a clause in the Bill, but I strongly believe that there should be.

Part I, to which the new clause refers, relates to access to justice through public funding. Where the issues are important to people, where they concern their right to housing, a livelihood and the welfare of their children they should not be excluded from access to justice by their poverty.

We accept that there must be priorities. There will never be enough money to provide everyone with access to justice for all the proceedings which they might reasonably wish to take. Therefore, there must be priority as to the types of cases which will receive public funding and there must be a merits test for the applicants for funding. But the new clause creates objectives, not obligations. What needs to be stated at the outset is the reason for providing the funding. It is inevitable that

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there will be limits on funding. Those limits and the consequences of them are stated elsewhere in the Bill, but where in the Bill do the objectives appear? As regards the community legal service, they appear, if anywhere, in Clause 5(1), but as a statement of objectives it is plainly inadequate. It states that:


    "The Commission shall establish, maintain and develop a service known as the Community Legal Service with a view to there being available to members of the public consisting of",
and then there is a summary which consists of information, advice, help in the resolution of disputes and help in enforcing decisions. There is no reference to the purpose for which services are to be provided. There is no reference to the fundamental principle of equality of arms which lies at the back of the whole concept of legal aid.

Criminal defence service provisions contain a purpose clause in Clause 12(1), which is a good deal more satisfactory. However, we believe that there should be an overarching purpose clause at the beginning of this part of the Bill. The proposed new clause in the amendment moved by the noble and learned Lord, Lord Lloyd of Berwick, is a good one. To what can one object in the amendment? Does one object to the fact that persons are to have access to legal services and the machinery of justice which they would otherwise be unable to obtain on account of their means? No, of course not. Can one contest that such access should be enjoyed without discrimination on any ground? No, of course not. Can one object to the proposal 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? No, of course not. Finally, can one object to the proposal that a strong, independent and self-regulating legal profession should be preserved? Anyone concerned with the constitutional future of this country would surely say, "No, of course not".

I do not suggest that the wording of the new clause is sacrosanct, but Part I of the Bill should begin by explaining the purpose of that part. That was the view of the Delegated Powers and Deregulation Committee, of which I have the fortune to be a member and whose membership includes three distinguished Members of your Lordships' House, including the noble and learned Lord, Lord Archer of Sandwell, who takes the Labour Whip. I believe that on this issue the Select Committee is right and I therefore warmly support the amendment which has been moved by the noble and learned Lord and invite the Committee to support it, too.


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