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Lord Falconer of Thoroton: I am encouraged by that support to resist, with diffidence, the amendment proposed by the noble and learned Lord, Lord Simon of Glaisdale. Of course, I concede immediately that unnecessarily long legislation is to be deprecated. Therefore, the position that I have to defend is why the three subsections that the noble and learned Lord seeks to remove should be retained.

The first, Amendment No. 114, would remove Clause 9(2) in its entirety. This would be an act of quite astonishing statutory vandalism. This is the clause that sets out the factors which are to be considered in framing criteria for the funding code. The removal of the criteria would render the funding code either ineffective or unclear. They are its essence in terms of enabling the commission, in drawing up and operating the code, to reflect priorities and ensure that only the most deserving cases receive funding. The removal of the criteria would also make the system of giving help to individual cases far less accountable. I cannot understand why anyone would want to remove that subsection.

Lord Simon of Glaisdale: I cannot have made myself clear. The subsection is quite unnecessary; it goes without saying.

Lord Falconer of Thoroton: The noble and learned Lord says, "It goes without saying" as to which are the particular considerations for the commission to take into account. It may "go without saying" to a reasonable man, such as the noble and learned Lord, but I would not for one moment think that it would "go without saying" to lawyers considering the means of challenging the ways in which the commission has prepared its code. A reasonable fellow, such as a predecessor of the noble and learned Lord the Lord Chancellor, was himself challenged in court by both the Bar Council and the Law Society some years ago in relation to provisions that he made in relation to regulations. No doubt it would have been said in those proceedings that what is required "goes without saying". In my submission, it is perfectly sensible in such a Bill to specify with precision the considerations that the commission has to take into account. If they are obvious, that makes things clearer.

The second amendment, Amendment No. 120, would remove Clause 9(4). This clause allows the commission to ensure that the most appropriate type of service is used in individual cases. The amendment is unacceptable because it would remove the commission's discretion to assess whether the most appropriate service was being considered by the applicant; for example, was the case suitable for mediation rather than full-blown

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litigation? The noble and learned Lord's point on that, that "It is so obvious; they could do that anyway; you do not need to include that"--

Lord Simon of Glaisdale: Not only that; it says elsewhere in the statute that it cannot be done.

Lord Falconer of Thoroton: In my respectful submission, subsection (4) is the only place where it is made clear that the code shall seek to ensure that. That is why it is there.

The final amendment, Amendment No. 123, would remove Clause 9(6). The clause allows the commission to vary the funding code criteria according to the category of case or the type of service; for example, if a case has a wider public interest, the commission could apply less stringent criteria for the prospects of success. The removal of the clause would remove an important part of the commission's ability to allocate funds according to priorities and need.

Lord Simon of Glaisdale: I apologise for interrupting the noble and learned Lord again. I say again that I have not made myself clear. Certainly, it should have power--obviously, it should have power--to make different provisions for different cases. The noble and learned Lord has just given an example. The point is that it does not need to be told that it can do that. Common sense and reasonableness say that it may do that. We cannot go on legislating for every aberration, for every ridiculous argument that some ingenious advocate might place before a court.

Lord Falconer of Thoroton: I am grateful to the noble and learned Lord for making his argument clear. I had understood it. The argument boils down to assertion and counter-assertion. The noble and learned Lord says that common sense leads to the conclusion so clearly that there is no need for such provisions to be set out in the Bill. Parliamentary draftsmen take the view--having, with the greatest of respect to the noble and learned Lord, heard him making that point in respect of a number of parallel clauses in previous legislation--that that is not right. It is a matter of judgment and balance. It is sensible to set out this sort of power in order to avoid any disputes that may be brought by lawyers.

A judgment must be made as to whether or not it is necessary--and thereby avoid disputes in the future--or whether one can rely on the common sense not only of the judges, which I am sure one can, but also of the claimants who might think that because there is a gap there is a chance for making a claim and clogging up the time of the court. So, a judgment has to be made and the line must be drawn somewhere. It does not seem to me to be inappropriate to draw the line in the way outlined by the parliamentary draftsmen. It will avoid disputes, especially in an area where lawyers might be motivated to bring judicial review or similar proceedings. Speaking for myself, I think that it is quite a sensible course that the parliamentary draftsmen have taken. Although the noble and learned Lord might disagree, and although I have obviously failed to

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persuade him, I trust that he will rest assured that I did understand his argument. In the light of those comments, I invite the noble and learned Lord to withdraw his amendment.

Lord Simon of Glaisdale: My first very pleasant duty is to thank the noble Lord, Lord Hacking, for what he said in his introductory remarks. All too often these days I have to say, "Yes, I knew his father". Occasionally, as with the noble Lord, Lord Strathclyde, it is, "Yes, I was a fellow Member with his grandfather in both Houses". The father of the noble Lord, Lord Hacking, was a very old friend of mine. It is a great joy to see his son intervening in debates, even if the points he made today were not perhaps the best that could be made. Neither he nor the noble and learned Lord, Lord Falconer, really faced the fact that, although they may be desirable, these criteria are the sort which the kind of people that my noble and learned friend is going to appoint are bound to consider.

The noble and learned Lord said that any reasonable body would take these criteria into account. But he then went on to say that that would not preclude some enthusiastic lawyer putting forward to a tribunal a point that is ex hypothesi unreasonable. If we are really going to legislate in that way, there will be no end to the statute book. It will not be merely six volumes; indeed, it will be seven, eight or nine in a few years' time. What is more, it will establish a precedent.

I recall a certain Bill, but I am not sure whether it was one for which the noble and learned Lord the Lord Advocate was responsible. However, I remember one of the Ministers involved. I shall name him because there is no shame attached. I have in mind the noble Lord, Lord Williams of Mostyn. When I pointed out to the latter during the proceedings on that Bill that a provision was unnecessary, he said: "There is precedent". Members of the Committee will remember the well-known provision in paragraph 10 to the seventh schedule of the Local Government (Scotland) Bill. That is the way in which the provision will be used. I am sure that we shall have many precedents.

I am afraid that the noble and learned Lord did not make the point that the test is: what is the meaning to a reasonable man? That is the test in every court. We simply cannot go against the reasonable man, the very basis of Anglo-American jurisdiction, and take as our criterion the most ingenious and wrong-headed advocate seeking to find a hole. That is not the way--and I say this with all the force at my command--to frame a statute. If we try to do so, as I said, there will be no end to the mischief.

The noble and learned Lord concluded his speech--given, as usual, so delightfully--by saying that, in view of what he had said, he hoped I would withdraw the amendment. I shall withdraw the amendment, but I trust that the noble and learned Lord will not take offence if I say that it is not in view of what he said. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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6.15 p.m.

Lord Kingsland moved Amendment No. 115:

Page 5, leave out lines 31 to 34.

The noble Lord said: This amendment seeks to remove the provision which enables the legal services commission to deny legal aid in cases in which an individual would otherwise have qualified but does not do so because of lack of resources. In seeking to illuminate the point, I shall quote briefly from the keynote address to the Bar Annual Conference in 1996 made by the noble and learned Lord the Lord Chancellor. Lest he should think that this is a hostile act on my part, I should say that I accept that the words he uttered cut both ways, politically. The opening part of the noble and learned Lord's speech referred to a White Paper produced by the previous government. He said:

    "The main feature of the White Paper is to cap legal aid for the first time and to impose heavier liabilities on assisted persons both to pay greater contributions and their opponent's costs if they lose. Of course, I do not exclude cost capping, if the cost of a demand-led system makes that unavoidable. Cost capping, however, is unattractive in principle because legal aid would cease to be a benefit to which a qualifying individual is entitled. It would, in practice, become a discretionary benefit, available at bureaucratic disposal--a benefit which would have to be disallowed when the money run out, or when another category of case was given preference. Legal aid would cease to be a service available on an equal basis nationally because cases would go forward in one region where identical cases in others of equal merit would not. I am not persuaded by the arguments of the White Paper that that would not happen".

I accept, first, that the policy of capping legal aid was the policy of the previous government; and I am a member of the party of that government. Secondly, I also accept that the noble and learned Lord the Lord Chancellor qualified, quite heavily, what he said on that occasion by saying that he did not exclude cost capping,

    "if the cost of a demand-led system makes it unavoidable".
Nevertheless, it seems to me that the principle which flows from what the noble and learned Lord said is that, all things being equal, a system of entitlements is preferable to a system of bureaucratic discretion.

At present, we face a legal aid budget which is not out of control. The budget has been underspent over the past five years and, indeed, it forms only just 0.5 per cent. of the total annual budget of this nation. Moreover, the measures that the noble and learned Lord is proposing in the Bill will further discipline expenditure. I am thinking in particular of the block contracting system to solicitors. I am thinking also of the intention to widen the use of graduated fees, which currently apply in criminal cases up to a length of 10 days, to other cases.

If those facts are put together, it is my submission that, far from being out of control, the legal aid budget is well under control. In those circumstances, the threat to which the noble and learned Lord the Lord Chancellor alluded in his speech is not on the horizon. I wonder whether the noble and learned Lord will reconsider that part of the Bill which imposes financial

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cut offs in circumstances where otherwise individuals would be perfectly entitled to be legally aided. I beg to move.

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