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Lord Archer of Sandwell: If the question had occurred to me I would have consulted my noble friend Lord Clinton-Davis because I would have assumed that he knew more about the green form scheme than I do. However that may be, I am grateful to him for having raised the question. I do not seek to improve on the existing green form scheme, and if the wording of my amendment is defective as he suggests, I would be very happy to withdraw it if we can be assured either that it is unnecessary or that an appropriate amendment will be forthcoming at a later stage.

Lord Falconer of Thoroton: I can very well understand the intention behind this amendment. For technical reasons it will not achieve its desired effect, but I am happy to say that I think it is unnecessary. As I understand the amendment and the speech in support of it by the noble and learned Lord, Lord Archer of Sandwell, it is meant to ensure that it will always be possible for people to get an hour's free basic advice regardless of what other conditions may be imposed on eligibility by regulations made under Clause 8.

The amendment says that those regulations cannot preclude the provision of the hour's advice. However, regulations made under this clause cannot provide for charges to be applied or disapplied. They can only impose conditions on eligibility in terms of applicants' financial resources. Regulations about payment for services would be made under Clause 10. In strict terms, therefore, it is already the case that the regulations in Clause 8 cannot preclude the provision of free advice.

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I hope that in that rather convoluted way I have dealt with the point. The regulations in Clause 8 cannot preclude the provision of free advice. That is the important point. Perhaps the noble and learned Lord's amendment is intended to go further and ensure that an hour's advice will be available to anyone, regardless of their means. I am not sure that the amendment as drafted will achieve that. If that were the effect, I would have to urge your Lordships to reject it. Clause 8(2) allows the Lord Chancellor to prescribe circumstances in which services can be given regardless of means. I envisage that this will usually mean only the most basic of services such as information about the availability of help. I would be reluctant to make an hour's advice available to absolutely anyone because of the cost implications. Even diagnostic advice would take time that would need to be paid for, and giving that to anyone who asked would take money away from people who needed it more.

The Government intend to make services available free of charge to people who absolutely cannot afford to pay for them and will bring forward regulations in due course under Clause 10. But we believe people should pay something towards their help where they can afford to. This amendment carries the risk that some services might not be provided on that basis. I hope therefore, with those encouraging words, that the noble and learned Lord will withdraw his amendment.

Lord Archer of Sandwell: I am grateful to my noble and learned friend for that exposition. I did invite him to tell me that my amendment was unnecessary. I did not expect him to tell me that it was unnecessary because I had put it down in the wrong place. As I said a moment ago, I do not seek to improve on the existing scheme. I probably moved the amendment from a reservoir of ignorance which ought to be dispelled before I seek to proceed further. I shall consult further with those who know about these matters to decide whether there is some other way in which I can ensure that what I originally intended will take place or whether what my noble and learned friend has promised will be sufficient to achieve that. That will require a little reflection and, for the moment at least, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

5.45 p.m.

[Amendments Nos. 109 to 112 not moved.]

Clause 8 agreed to.

Clause 9 [Code about provision of funded services]:

Lord Kingsland moved Amendment No. 113:


Page 5, line 23, after ("code") insert ("following consultation with interested parties as appropriate").

The noble Lord said: The intention of this amendment is to introduce into Clause 9(1) an obligation on the commission to consult with interested parties before its funding code is settled. I understand that recently the Legal Aid Board has published a draft funding code. I wonder whether the noble and learned Lord the Lord Chancellor will confirm that he intends to take

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account of the views expressed by interested individuals and organisations before approving the code in final form.

The Lord Chancellor: Never in the history of this Chamber can advocacy so brief have met with success. I am happy to consider these amendments. Our practice, as the noble Lord indicated, is always to consult on major innovations like the funding code. As the noble Lord said, the Legal Aid Board only last week published a first draft of the code for consultation. That shows that we are already abiding by the duty envisaged in the first amendment, and I have no objection at all to the Bill containing such a duty.

The second amendment imposes the same duty on the commission when it is considering any revisions to the code. Again, I would expect consultation to be undertaken as a matter of course. I imagine that in many cases revisions to the code will come about as a result of the commission consulting practitioners and others about the way the code is working in practice. I think that consultation will drive the revisions rather than the other way about. I am happy, however, to take both these amendments away for positive consideration.

Lord Kingsland: If my brevity has that effect I shall continue in the same vein. I am most grateful to the noble and learned Lord for his reply and in those circumstances I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Deputy Chairman of Committees (The Viscount of Oxfuird): I must advise the Committee that should Amendment No. 114 be agreed to, I am unable to call Amendments Nos. 115 to 118 inclusive due to pre-emption.

Lord Simon of Glaisdale moved Amendment No. 114:


Page 5, line 27, leave out subsection (2).

The noble and learned Lord said: This amendment seeks to leave out subsection (2) and is grouped with amendments to leave out subsections (4) and (6). My noble and learned friend the Lord Chancellor was, or seemed, rather cavalier on Tuesday about the desirability of economical drafting. Under our arrangements there is no one to give directions to the draftsmen generally that they should draft in accordance with the recommendations of the Renton Committee on preparation of legislation or the later report of the Hansard Society on the legislative process. It is therefore left to each departmental Minister in charge of the Bill to ensure and satisfy himself as to the drafting. That does not mean only the accuracy of the drafting; it also means its economy.

Perhaps I may remind the Committee that it was prolonged dissatisfaction as to the contents of the statute book which led to the setting up of the Renton Committee in 1975. It remarked, among other things, on the evil of prolixity in the statute book and over-elaboration. At that time the statute book consisted of three medium-sized, though fairly stout, volumes of

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public and general Acts. Ten years later, far from there being economy in pursuance of what the Renton Committee recommended, it had swelled to five volumes--not only five volumes but, comparably, there were fewer statutes in those five volumes than there had been in the preceding three volumes.

The format of the statute book was enlarged rather than the drafting being made less prolix. That was expensive to those who had bookcases made for the smaller format, but was a minor consideration when it succeeded once again in reducing the number of volumes from five to three. However, in spite of the larger format, within a few years it was again up to five volumes. I shall be very surprised if this year it is not six or more.

Therefore I make no apology--I hope I do not need to make one--for begging for there to be economy in the drafting of the statute books. There is another disadvantage. It is extremely expensive to have unnecessary provisions; for example, subsection (2), which is around one third of a page, will be printed over and over again; secretaries, draftsmen, printers and bookbinders will all be concerned and the people who pay for it in the end are, first, the taxpayers who fund the public purse and, secondly, the users of the statute book. That is not the only reason.

The other reason, as I am sure my noble and learned friend the Lord Chancellor will bear out, is that unnecessary provisions in a statute add to the complication and difficulty of interpretation, which quite often leads to a misinterpretation. Therefore, if we can get down to the essentials, we are performing our duty as a legislative chamber.

Subsection (2) might be described under the rubric of legislation to teach grandmothers to suck eggs. Clause 9 says that the commission must draw up a code as to the criteria which will govern the principles of funding. That is splendid; so it should. But then the clause goes on to say precisely how that should be done. One must remember that the commission is not drawn from the local mental deficiency colony; it consists of men of acumen and experience chosen for their special gifts by my noble and learned friend himself. Let us consider what they have to be told. They have to consider the likely cost and how much money they have to meet those cost, the importance of the matters, the prospect of success and the conduct of the applicant.

Do they really need to be told that? But that is not the end. They have to be told also that they must consider the public interest. Is it really conceivable that, in carrying out the duties imposed on them by subsection (1), they would not consider those matters? So much for subsection (2), which is a grandmother/egg subsection.

Subsection (4) falls under the same rubric. It says,


    "Where more than one description of service is available, the service funded is that which (in all the circumstances) is the most appropriate having regard to the criteria set out in the code".
Do they need to be told that too? Subsection (6) is not grandmother-led, it is computer-led. It is something that

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pops up in almost every statute in one form or another. It says,


    "The code may make different provision for different purposes".
Is it conceivable that it should not do so; that the same provision must be made however different the purposes and the different circumstances?

As I say, we are under a duty to see that this measure, which is extensive and one of whose objects is economy generally--with which I wholly concur--ensures that the cost of the legal aid service is contained. But in doing that, we should act consonant with it. All those provisions merely either tell people what they would do in any event without the necessity of writing it into the statute, or are completely absurd, telling them that the code must not make different provisions for different purposes.

6 p.m.

Lord Hacking: I have had a great affection for the noble and learned Lord for over 30 years. He was generous to me when, as a young and nervous barrister, I appeared before him when he was President of the Probate, Divorce and Admiralty Division. Alas, I must profoundly disagree with what he has just said. I do not believe that the drafting of Clause 9, and the code that will be published consequent to Clause 9, is a licence to print reams of legislation and subsidiary legislation; nor do I consider that subsection (2) falls under the rubric of trying to teach one's grandmother to suck eggs.

The correct approach is to look at what the Government are seeking to achieve. First, it is plain that the Government are seeking to achieve greater flexibility in the application of legal funding than is currently available under the legal aid merits test. Secondly, they are deliberately introducing a range of considerations identified in subsection (2)(a) in terms of comparing the likely cost of funding and the benefit to the individual. That seems an entirely sound test.

I turn to subsection (2)(c) on,


    "the importance of the matters in relation to which the services would be provided to the individual".
Again, that seems an entirely sound test.

Paragraph (f) deals with the conduct of the individual. We shall discuss that later and I shall reserve my position on it. I refer finally to paragraph (g) which deals with the public interest. Those are all examples of the helpfulness of the Explanatory Notes which have been prepared under the auspices of my noble and learned friend the Lord Chancellor.

I refer to paragraph 82 where we see another good example of why the new proposed criteria are a definite step forward from the criteria used for the grant of legal aid. It states:


    "For example, prospects of success will not be a relevant factor in cases about whether a child should be taken into local authority care".
Again, that is an example of how I believe that the clause achieves its objective. As a result, I believe that it will result in a much better regime for the funding of legal aid than currently exists.

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The fact is that, economic with the legislation or not, the amendment drives a coach and horses through the setting up of the new criteria. On that basis, I hope that my noble and learned friend will resist the amendment. If he does, he will have my full support.


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