Previous Section Back to Table of Contents Lords Hansard Home Page

The Lord Chancellor: I am happy to write to the noble Lord as to the form of the proposed accounts and the detail which they are likely to show.

Lord Kingsland: If the noble and learned Lord the Lord Chancellor, in his response, is saying that the matters which are covered by Amendment No. 24 are covered by Clause 6(2), I am entirely content with his reply and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

19 Jan 1999 : Column 514

Clause 4 [Directions and guidance]:

Lord Goodhart moved Amendment No. 25:

Page 3, line 9, leave out subsection (1).

The noble Lord said: In moving this amendment, I shall speak also to Amendments Nos. 26, 27, 30, 31, 33, 35, 37, 64, 65, 74, 75, 193, 194, 195, 196 and 204 which stand in my name and those of other noble Lords.

As a result of the most welcome decision by the noble and learned Lord the Lord Chancellor to accept substantially all the recommendations of the Select Committee on Delegated Powers and Deregulation, most of the amendments are now otiose. I am extremely glad to see that the chairman of that committee is now present and has taken his seat.

However, that is not wholly true of Amendment No. 25 because that raises a perhaps rather more fundamental point which is, as I indicated earlier, the nature of the relationship between the legal services commission and the Lord Chancellor.

It is clearly the intention behind this Bill that the legal services commission should be under the very close control of the Lord Chancellor although it will now be the case that in important aspects that control will be exercised through statutory instruments and will therefore involve a degree of parliamentary control. That raises a question as to whether it is desirable that, whether by statutory instrument or not, the Lord Chancellor should have that degree of control over the legal services commission.

I can see very good reasons--for administrative convenience and for control over exercising the Government's policy--why the Lord Chancellor should wish to do so, but at the same time, there are aspects of that matter which cause me serious concern. Is the legal services commission to be truly independent or is it to be, in effect, no more than an agency or, one might even say, "the Lord Chancellor's poodle"?

In the case of the funding of medical services, it is appropriate that the Government should retain some detailed control over how the funds which they provide are spent. But the funding of legal and medical services are very different. As regards medical services, there are arguments about priorities, but there are no conflicts of interest between the Government and those who are seeking the funding.

In the case of legal services, there are clear conflicts of interest. In this regard, I do not rely on what is at first sight the obvious case of criminal process where the conflict of interest is more apparent than real because the decision of the court or jury in criminal proceedings rarely affects government policy. In any event, this Bill gives the Lord Chancellor less control over spending on criminal cases than over the funding of civil cases through the community legal service's fund.

On the civil side, judicial review may be used to challenge decisions of Ministers and public authorities. In future, human rights cases may involve challenging the decisions of public authorities, secondary legislation and, indeed, Acts of Parliament. Decisions of the court on welfare and housing cases, for example, may again have extremely serious fiscal, financial consequences for the Government.

19 Jan 1999 : Column 515

I believe that it is in the interests of justice and the separation of powers that the commission should have a higher degree of independence from the Lord Chancellor and the Government than it does under this Bill as presently drafted. We have already had some quotations from the Select Committee's report, but perhaps I may refer to paragraph 1, which has not been quoted so far. It states:

    "Many of the changes are made in the bill itself but important issues are left to be settled by the use of delegated powers cast in wide, enabling terms. Some of the issues to which these suggested delegated powers relate are of fundamental importance within a democratic society. They affect the extent to which a citizen may be granted or denied access to justice to promote or defend rights and liberties. They raise for consideration how far control by the state of the means of access to justice may erode the separation of powers and put individuals at a disadvantage when seeking to defend themselves against claims brought by the very government which has the power to prescribe how effectively they may be represented."

It was no part of the function of the Select Committee to decide the relationship between the Lord Chancellor and the legal services commission. The factors referred to in the report indicate a strong case for a greater degree of separation. I am not saying that that should be complete. I am not attempting to argue that the specific powers of direction given, for example, in Clauses 6, 7 and 9 should not be exercised by statutory instrument. I am concerned about the width of the general power to give direction. Although my worries about that are much less now that there will be a greater degree of parliamentary control, my worries are not wholly satisfied.

The Deputy Chairman of Committees: I must advise your Lordships that if Amendment No. 25 is agreed to, I cannot call Amendments Nos. 27 and 28.

6 p.m.

Lord Archer of Sandwell: I shall listen with interest to the replies to the questions posed by the noble Lord, Lord Goodhart. My noble and learned friend, having spoken so comfortably to Jerusalem in his response to an earlier debate, it is not necessary for me to deploy arguments relating to the amendments in this group that stand in my name. In due course, I shall not be moving them.

Lord Clinton-Davis: I advert to Amendments No. 27 and 33 in my name, to which the noble Lord, Lord Kingsland, put his name.

The proposed new legal aid scheme is very different from that which it will replace. The existing scheme is based on financial eligibility and the merits of the case, although one must concede that there are some deficiencies in the way that it operates--hence the Bill.

The new scheme is based on the application of available resources. The Government propose to give greater discretion to the commission as to how it operates the civil legal aid scheme. It follows that the principles that the commission should adopt in discharging its functions should be subject to proper scrutiny and debate. Consequently, Amendment No. 27

19 Jan 1999 : Column 516

is directed at ascertaining from my noble and learned friend the kind of consultation that he proposes before proceeding to the second phase.

As to Amendment No. 33, it is right that my noble and learned friend should retain the power to give directions regarding individual cases--and that is what the amendment seeks to provide. I concede that it is extremely unlikely that power will be brought into operation with any frequency, but multi-party actions and others could benefit from legal aid under specific direction. Although legal aid will be withdrawn from personal injury cases generally, claims such as those over thalidomide or asbestosis might come to light, which raise interesting rights on the statute of limitations since the law affecting it was changed. The Lord Chancellor should have the power to direct that legal aid will be available in such cases, which could fall into the realm of being public scandals.

Lord Phillips of Sudbury: Having heard the extremely important accommodation announced by the Lord Chancellor earlier, it will be difficult to strike the right balance between direction and arrangements that must be subject to parliamentary agreement. I want to raise an issue relating to the effectiveness of the legal services commission. On any view, this revolution in legal aid will depend to a considerable degree on the competence of the commission and the people who sit on it.

I urge the Lord Chancellor to think long and hard about retaining anything like the degree of direction that he is currently permitted under Clause 4(1), which broadly gives him carte blanche vis-a-vis telling the commission what to do. I remember sitting as one of the first members of the National Lottery Charities Board, which was subject to ministerial directions. Anyone who has sat on a quango will concur that how far its members can be overruled or directed is a sensitive issue.

As I believe that the reconstruction of legal aid that is now in train is of the greatest conceivable importance, I believe also that attracting and retaining people of the highest calibre to serve on the commission is a sine qua non of the success of the whole enterprise. Cutting back radically on direction, while appearing to be an act of folly if one is in the shoes of the Lord Chancellor, might in the long term be the better part of valour.

Lord Kingsland: In view of the Lord Chancellor's most helpful response to Amendment No. 1, I share entirely the view of the noble and learned Lord, Lord Archer of Sandwell, of the appropriate approach to the amendments--so I shall sit down.

Lord Mackay of Clashfern: I wish to speak to the amendment to which the noble Lord, Lord Clinton-Davis, drew attention which has the effect of contradicting Clause 4(3). A clause having much the same effect exists in the Legal Aid Act 1998. The idea is to prevent the Lord Chancellor from intervening in a particular case. It does not prevent him making directions about the class of case, but it does prevent him from intervening in individual cases. That would be a gross interference in the separation of powers. That is

19 Jan 1999 : Column 517

certainly the principle upon which such a clause rested. The noble Lord, Lord Clinton-Davis, may be able to convince me otherwise but for my part, that is an important protection for the separation of powers in respect of individual cases.

Next Section Back to Table of Contents Lords Hansard Home Page