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Lord Campbell of Alloway: My Lords, I support the amendment. "Every person" means and includes the noble and learned Lord the Lord Chancellor and it is not irrelevant to look at his proposed Amendment No. 27 in that context. And, of course, "every person" includes the commission. Those are the fundamental overriding principles which govern both the Lord Chancellor and the commission. It is absolutely essential that they should be stated at the outset of the Bill.

Lord Kingsland: My Lords, the noble and learned Lord the Lord Chancellor made a very generous statement at the outset of the Committee stage both about the incorporation of a purpose clause and about transforming into regulations the large number of powers about which he had to make directions. It must be said for the noble and learned Lord the Lord Chancellor that he has gone a long way to meeting those undertakings. I know that your Lordships' House is grateful.

However, I am a signatory to the amendment and I endorse entirely what the noble and learned Lord, Lord Lloyd of Berwick, said. It seems to me an unhappy solution to dismember the clause in the way it has been dismembered. But above all, as the noble Lord, Lord Goodhart, said, the clause itself does not contain a clear declaration of purpose. Instead it contains a heavily qualified declaration, a declaration qualified by notions of constraints on resources and the application of priorities which are themselves the substance of Clauses 1 to 12.

The noble and learned Lord the Lord Chancellor has given himself in the Bill an extremely wide range of regulation-making powers. He rightly says that to exercise those powers he will have to come to your

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Lordships' House. But your Lordships are well aware that, by convention, your Lordships do not vote against statutory instruments containing delegated powers. I know that that obligation is not included in the Parliament Act; nevertheless, it is the convention. Therefore, it falls upon the courts, and the courts alone, to control the executive in this matter. The courts can do that successfully only if they have a clear sense of direction on the face of the Bill.

Lord Windlesham: My Lords, perhaps I may inject a somewhat different line of thought into the discussion before the noble and learned Lord the Lord Chancellor replies. If the purpose clause--that is the phrase that has been used--at the start of a Bill or at different parts of a Bill sets out a statement of objectives, that is a useful and commendable device. But it is not the same as creating a statutory duty to be imposed upon named individuals. That surely is what the formulation so carefully worked out and eloquently proposed by the noble and learned Lord, Lord Lloyd of Berwick does. It states that:

    "Every person exercising functions in connection with this Part"--
and it would be possible to identify who those persons are--

    "must act, so far as possible, in a way which is compatible with the objectives set out",
in the latter part of the clause. So here we have a specific obligation in the form of a statutory duty.

Statutory duties are rare in legislation. The most well known is in the Race Relations Act 1976. But the issue arose again last year in the Crime and Disorder Bill which contained a statutory duty. It is for that reason that I have an interest in the matter and should like to put the question whether the creation of statutory duties is an inappropriate addition to this Bill, whereas a statement of objectives may well be justified.

The Lord Chancellor: (Lord Irvine of Lairg): My Lords, Amendment No. 1 is broadly similar to the first amendment which we discussed in Committee and which was moved so ably by the noble and learned Lord, Lord Lloyd of Berwick. Nothing that I say in inviting your Lordships not to accept this amendment should be construed as in any way indicating that I am not in some sympathy with the broad aspirational purposes of the new clause.

In our discussions in Committee I said that I fully accepted the principles underlying the report on this Bill by the Delegated Powers and Deregulation Committee and I undertook to bring forward amendments on Report. I brought forward a great raft of amendments and believe that the broad purposes for which the community legal service and the criminal defence service exist are satisfactorily expressed in those amendments to which your Lordships will come when we consider the third grouping.

I say to my noble friend Lord Clinton-Davis that purpose clauses have no less effect if they address distinct subject matters--the two separate services--and do not appear in Clause 1 but in a later clause.

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Amendment No. 1 also deals with the objectives of Part I of the Bill. The natural place for a discussion of those broad issues is within the third group, which your Lordships will consider shortly. The amendment seeks to establish principles or objectives which are to apply to the whole of Part I of the Bill. As I indicated in Committee, and I will make it good later, my preference is for separate clauses setting out the purposes of the community legal service and the criminal defence service. Why? Because that approach better reflects the different nature and objectives of the two schemes. I believe also that that will be a tighter and more effective means of defining what the legal services commission will do and what directions and orders the Lord Chancellor may give separately in relation to each scheme.

So, under the approach I shall be proposing later, all the decisions and actions of the legal services commission will have to be consistent with the defined purposes of the community legal service or the criminal defence service, as the case may be. Therefore, the Lord Chancellor will only be able to order or direct the commission to do things that are consistent with the relevant purposes.

To all that we will come more fully shortly. But perhaps I may deal briefly with the details of the objectives listed in Amendment No. 1. I repeat, I am not for one second suggesting that I am out of sympathy with the broad aspirational purposes of the amendment, but I cannot accept them as a formulation that meets what is required for the objectives of the Bill.

Objective (a) reads,

    "that persons have access to legal services and the machinery of justice which they would otherwise be unable to obtain on account of their means".
Legal aid is subject to eligibility limits and I rather think that this objective does not take account of that. It is unfortunately the case that many who have incomes in excess of the eligibility limits do not have the means to afford to commence litigation. But I doubt that the first proposed objective recognises that.

I have not ignored the words in the proposed clause, "so far as possible"; but the proposed objective is drafted unrealistically and the words, "so far as possible" are far too vague and not justiciable in context. Also, objectives of this kind are calculated to create false and unrealistic expectations. The two purpose clauses which I propose in Amendments Nos. 29 and 86 cover this issue in a way that is realistic and we will come to that argument later.

Objective (b) reads,

    "that such access is not to be impaired on account of disability (within the meaning of the Disability Discrimination Act 1995)".
I have difficulty in seeing why discrimination on the grounds of disability--though I am as great an opponent as any of discrimination on those grounds--is singled out by contrast with the other forms of discrimination which exist in society. Also objective (b) is about access and the first part of objective (c) relates to quality. I am confident that the reforms set in train by this Bill will improve both, but the two objectives could pull in different directions. In the context of the limited

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resources available for the community legal service, they will also have to be balanced against considerations of cost. The objective in Subsection (1)(c) is:

    "that legal services and facilities of high quality be available such that disputes may be resolved, and proceedings determined, expeditiously, fairly"--
I emphasise the next words--

    "and with the parties placed on an equal footing".

I believe that my proposed purpose clause for the criminal defence service, which speaks of the interests of justice, covers that point adequately. As regards the community legal service, I believe that that objective may place too much emphasis on proceedings and disputes, but its underlying purpose is adequately and realistically met by the reference in my purpose clause to services that can meet people's needs.

More particularly as regards the objective in paragraph (c), the words,

    "and with the parties placed on an equal footing",
are simply unrealistic. There is no way, and it is unrealistic to suggest, that the state could put those that it assists on an equal footing with what money can buy when lawyers in the private sector command fees which the market will bear.

Therefore, with the best will in the world for the general aspirations which inspire these objectives, I cannot accept them as setting out at the outset of the Bill a satisfactory or realistic set of objectives to govern its whole purpose.

4 p.m.

Lord Lloyd of Berwick: My Lords, perhaps I may mention briefly the point made by the noble Lord, Lord Windlesham. Yes, indeed, there are differences between objective or purpose clauses which do not impose a statutory duty and those which do. This one clearly does and is meant to do so. Persons who have duties to perform under Part I of the Bill will be obliged under the amendment to act in accordance with these broad objectives.

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