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Page 6, line 36, leave out (", or conduct is,").

The noble and learned Lord said: This probing amendment is grouped with a number of other amendments which, apart from the last one, are also probing amendments. The amendment refers to Clause 10(2)(b):

We may have covered that point in discussing a previous amendment. I am not certain whether my noble and learned friend wishes to add anything. I am not clear

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what is the conduct in question and whether it is the kind of matter which we discussed in relation to an earlier amendment.

Amendment No. 134 relates to Clause 10(6):

    "The regulations may ...

    (b) make provision for the determination of the cost of services for the purposes of the regulations".
I am not sure what kind of machinery my noble and learned friend has in mind for that.

Amendment No. 135 is to leave out of Clause 10(7) the words,

    "Except so far as regulations otherwise provide".
What is the force of that?

Amendment No. 136 relates to Clause 10(7)(b):

    "other sums payable by the individual by virtue of regulations under this section".
What is that meant to catch?

Finally, Amendment No. 137 relates to Clause 10(8):

    "For the purposes of subsection (7)"--
which I believe is an old provision, going back to the original Legal Aid Act, relating to a first charge on any property recovered or preserved--

    "it is immaterial what the nature of the property is and where it is situated; and the property within the charge includes--(a) any to which the individual is entitled under any compromise or settlement of the dispute".
At the moment I do not see why that is not subsumed in subsection (7) which gives a first charge in respect of any property that is recovered or preserved. Does that not include property recovered or preserved under a compromise? I beg to move.

Lord Falconer of Thoroton: The amendments in this group are Amendments Nos. 131, 132 and 134 to 137. The noble and learned Lord has dealt with some, but not all of them. Amendment No. 132 in the name of the noble Lord, Lord Kingsland, has not been moved and I shall not deal with it unless the noble Lord moves it later. I deal first with Amendment No. 131.

Lord Simon of Glaisdale: To clear my mind, is it right that the odd man out is Amendment No. 132? I do not believe that I spoke to that amendment.

Lord Falconer of Thoroton: The noble and learned Lord did not speak to that amendment but it is in the grouping. The noble and learned Lord is right not to speak to it because that amendment is in the name of the noble Lord, Lord Kingsland, who has lost heart as to that, quite understandably.

Lord Kingsland: I have not lost heart. I simply reserve my position for a later stage.

Lord Falconer of Thoroton: The noble Lord lies in wait for me with Amendment No. 132. I am on tenterhooks as my noble friend Lord Clinton-Davis says. The effect of Amendment No. 131 is to remove conduct as a consideration in deciding whether or not a person should pay something towards the costs of his case. The noble and learned Lord asks whether the Government

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wanted to elaborate on the meaning of "conduct". All I can say is that this will allow the commission to recover its costs or retain contributions where a person has misbehaved; for example by fabricating evidence. It is already possible to do this under the present scheme. A person's certificate can be revoked if his conduct is bad enough and revocation means that he is liable to repay everything that has been spent so far on his case. We need to be able to do the same under the new scheme to cater for similar extreme cases. That gives some indication of the conduct considered.

Under Amendment No. 134 the noble and learned Lord seeks to remove Clause 10(6)(b). That subsection allows regulations to provide for how the cost of a service is to be calculated. This will be essential in future if the contract price paid to the lawyer is a fixed unit price per case. Around this fixed price costs for work done in an individual case may vary considerably.

Lord Simon of Glaisdale: Before the noble and learned Lord moves on I am not clear about the machinery of recovery.

Lord Falconer of Thoroton: Is the noble and learned Lord referring to the machinery under Amendment No. 131 or Amendment No. 134? I have not finished my response to Amendment No. 134. Perhaps I may complete my response and return to that question. The power under Clause 10(6)(b) could be used to set a notional cost at the beginning of a case to avoid assisted people having to pay unexpectedly large or small amounts. This power also allows us to develop more detailed systems for relating repayment more closely to the stages cases reach. These features are important to make the scheme fair and predictable. That is the aim of Clause 10(6)(b). The precise machinery set up to achieve that has not yet been fixed. At this stage I can do no more than set out precisely what it is aiming at rather than the form of the machinery.

The noble and learned Lord's next three amendments are about the statutory charge. Clause 10(7) provides for a first charge that the commission (like the board now) will have over any property recovered or preserved in proceedings in respect of the costs of the case. The first of these amendments, Amendment No. 135, would remove the power by regulations under Clause 10(7) to modify or disapply the charge in respect of some cases. That lack of flexibility can risk serious unfairness and harshness and that is why it is there. Amendment No. 136 would remove Clause 10(7)(b). That provides for the statutory charge to include sums over and above the actual cost of the case. This would be necessary if a conditional legal aid fund (CLAF) were set up where the person would be liable to pay a success fee into the fund. To remove the power would undermine the operation of a CLAF if one were set up.

The noble and learned Lord's last amendment, Amendment No. 137, would remove Clause 10(8)(a) which applies the statutory charge to property recovered or preserved as a result of settling a case. It would be very odd not to have that power. At present the Legal Aid Act does the same. I am not sure why the noble and learned Lord wants to take a backward step. In this

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respect there is no reason why we should make a distinction between cases that go to trial and those that settle.

Lord Simon of Glaisdale: I apologise to the noble and learned Lord for not making myself clear. My question is this: why is the power in subsection (8)(a) not contained in the last limb of subsection (7)? In other words, why is recovery under a compromise or settlement not property recovered or preserved in a dispute?

Lord Falconer of Thoroton: It is dealt with in this way because it is wide enough to cover a situation where no proceedings have been issued. I believe that that answers all of the questions raised by the noble and learned Lord. In the light of that I ask him to withdraw his amendment.

Lord Simon of Glaisdale: As usual, the noble and learned Lord has replied very pleasantly, although I fear that he as well as his noble and learned friend the Lord Chancellor have now used the word "flexibility". I understand that the question that I asked about machinery was answered on the basis that the Government had not yet made up their mind. I am quite content to accept that. Otherwise, I believe that the noble and learned Lord answered satisfactorily all of my other queries except for the last which I shall consider and perhaps return to on Report. Perhaps the noble and learned Lord will himself consider the matter again. I was not entirely convinced in so far as I took it in. In the meantime, I ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 132 not moved.]

Lord Hunt of Kings Heath: My Lords, I beg to move that the House do resume. In moving this Motion I suggest that the Committee stage begin again not before 8.29 p.m.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.

Road Traffic (NHS Charges) Bill

Brought from the Commons; read a first time and to be printed.

Social Security Benefits Up-rating Order 1999

7.30 p.m.

The Parliamentary Under-Secretary of State, Department of Social Security (Baroness Hollis of Heigham) rose to move, That the draft order laid before the House on 13th January be approved [5th Report from the Joint Committee].

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The noble Baroness said: My Lords, as your Lordships are aware, this annual order and the others standing in my name on the Order Paper are an important part of the routine business of the DSS. The uprating order will increase most rates of social security benefits from this April. Most national insurance and non-contributory benefits will increase by an RPI of 3.2 per cent. Most income-related benefits will increase by the Rossi index of 2.1 per cent. As is usual, the increases are based on the change to the retail prices index from September to September, with the increase for the income-related benefits adjusted to remove the element of housing costs. As your Lordships know, housing costs for those on the income-related benefits are met separately through housing benefit, council tax benefit and income support mortgage interest and the Rossi index reflects more appropriately the spending of those claiming income-related benefits.

I must first ask for the indulgence of the House. I draw your Lordships' attention to the fact that we discovered only late this afternoon that during the drafting of the uprating order a transcription error meant that on page 17 of the uprating statement, item 11, the amount of benefit for widowers' pensions in industrial injuries benefits is shown as £66.25 whereas the actual uprated amount equals £66.75. The error will be remedied as quickly as possible and will not affect the benefit paid to claimants. None the less I wish to apologise to the House.

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