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Lord Goodhart: My Lords, first, I welcome the Government's acceptance that a purpose clause is desirable in connection with the community legal service. I also accept the argument of the noble and learned Lord the Lord Chancellor that it should be a different purpose clause from that which applies to the criminal defence service.

I understand from the noble and learned Lord, Lord Lloyd of Berwick, that he regards this group of amendments as acceptable, even if not preferable to his own. There are certain respects in which I prefer the wording of the old Clause 1 to that of the new amendment, but I do not believe that any useful purpose would be served by my going through a legal analysis

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of the two different purpose clauses. Therefore, I simply say that from these Benches we are content to accept this group of amendments.

Lord Kingsland: My Lords, I, too, wish to say that we agree with the judgment of the noble and learned Lord the Lord Chancellor that the purpose clause should be divided into two: civil matters and criminal matters. I recognise that the noble and learned Lord, Lord Lloyd of Berwick, has decided to accept the solution provided by the noble and learned Lord the Lord Chancellor. I have been greatly influenced by the judgment of the noble and learned Lord, Lord Lloyd of Berwick, in that matter.

The purpose clause in question, the clause which relates to civil matters, now has two weaknesses. First, it does not provide for equality of arms. The noble and learned Lord the Lord Chancellor explained why that is so. Secondly, and perhaps more significantly, it seems to me that it will now not be possible to review judicially a situation in which, on the one hand, a litigant meriting legal aid has a good case but, on the other, cannot obtain a CFA at a reasonable cost. I suppose that was the fundamental reason why the noble and learned Lord, Lord Lloyd of Berwick, tabled the amendment in the first place. Nevertheless, I agree with the noble Lord, Lord Goodhart, that the situation is such that we have decided not to press the amendment.

7.30 p.m.

Lord Ackner: My Lords, I had the advantage of reading a copy of a letter which my noble and learned friend the Lord Chancellor wrote to my noble and learned friend Lord Lloyd setting out in considerable detail his views, which he has fleshed out today. I found the letter adequately convincing and therefore I have no resistance to offer in relation to the proposals.

Lord Hacking: My Lords, since we debated this matter in detail both in Committee and on Report, I am delighted to hear from a number of noble Lords that the noble and learned Lord, Lord Lloyd of Berwick, is happy with the proposals of my noble and learned friend the Lord Chancellor.

As has been recognised in our short discussion, the community legal service and the criminal defence service have different objectives and modus operandi and therefore it is fitting that different principles should guide their operations. I believe that the noble and learned Lord deals better in his amendments with geographical access to justice generally. I refer to Amendment No. 5 and to Clause 7(5).

Finally, I want to raise a point which was mentioned by the noble Lord, Lord Windlesham, on Report. The drafting of Clause 1 places a statutory duty in that,


    "Every person exercising functions ... must act".

When the purpose of the exercise was to establish principles, it was not a befitting way to place it under a form of statutory duty. Again, my noble and learned friend the Lord Chancellor has dealt with that in the amendments before us. For all those reasons, perhaps

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I may say from the noble and learned Lord's Back Benches that the amendment has the support from this quarter of the House.

On Question, Motion agreed to.

COMMONS AMENDMENT

2 Clause 4, page 3, line 11, leave out from ("grants") to end of line 12 and insert ("(with or without conditions),")

The Minister of State, Cabinet Office (Lord Falconer of Thoroton): My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 2. It is a minor drafting change. Clause 4(2) sets out specific powers of the legal services commission. It is in almost identical terms to Section 4(2) of the Legal Aid Act 1988 about the powers of the Legal Aid Board. Clause 4(2)(b) gives the commission the power to make conditional grants. The amendment removes some unnecessary words specifying conditions as to repayment. The clause as amended will continue to permit grants which have to be repaid in certain circumstances.

Moved, That the House do agree with the Commons in their Amendment No. 2.--(Lord Falconer of Thoroton.)

On Question, Motion agreed to.

COMMONS AMENDMENT

3

Clause 5, page 3, line 41, leave out ("of a type and quality appropriate to") and insert ("that effectively")

Lord Falconer of Thoroton: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 3.

Moved, That the House do agree with the Commons in their Amendment No. 3.--(Lord Falconer of Thoroton.)

On Question, amendment agreed to.

COMMONS AMENDMENT

4

Clause 5, page 4, line 9, leave out ("can") and insert ("is required to")

The Lord Chancellor: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 7. I shall speak also to Amendments Nos. 22, 23 and 26.

These amendments are intended to clarify which services will be funded under the new criminal defence service scheme, which will replace the existing criminal legal aid scheme.

The new criminal defence service scheme will cover all the main services currently provided by criminal legal aid, including representation in court when this is in the interests of justice, and advice and assistance for suspects being questioned by the police and others involved in criminal investigations.

These services are covered by Clauses 14 and 15, which define the services which the criminal defence service will be under a duty to fund and the ways in which it may fund them. Clause 13(4) looks forward to

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Clauses 14 and 15 and describes them as specifying the services which the commission must fund. However, it would be possible to conclude from the drafting that a distinction could be drawn between services which must be funded under Clauses 14 and 15 and other criminal defence services which might be funded. This is not the Government's intention. Amendment No. 23 clarifies the position, recasting Clause 13(4) to provide that,


    "The Commission shall fund services as part of the Criminal Defence Service in accordance with sections 14 and 15".

Amendment No. 4 is a consequential drafting change to the reference to the criminal defence service in Clause 5. Amendments Nos. 22 and 26 are drafting amendments relating to the definition of "criminal investigations".

Moved, That the House do agree with the Commons in their Amendment No. 4. (The Lord Chancellor.)

On Question, Motion agreed to.

COMMONS AMENDMENTS

5

Clause 5, page 4, line 10, at end insert--


("( ) Every person who exercises any function relating to the Community Legal Service shall have regard to the desirability of exercising it, so far as is reasonably practicable, so as to--
(a) promote improvements in the range and quality of services provided as part of the Community Legal Service and in the ways in which they are made accessible to those who need them,
(b) secure that the services provided in relation to any matter are appropriate having regard to its nature and importance, and
(c) achieve the swift and fair resolution of disputes without unnecessary or unduly protracted proceedings in court.")
6

Page 4, line 14, leave out from ("for") to ("quality") in line 16 and insert (", and the provision of, services of the descriptions specified in subsection (2) and about the")

The Lord Chancellor: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 5 and 6. I spoke to them with Amendment No. 1.

Moved, That the House do agree with the Commons in their Amendments Nos. 5 and 6.--(The Lord Chancellor.)

On Question, Motion agreed to.

[Motion No. 7A not moved.]

COMMONS AMENDMENT

7

Clause 5, page 4, line 32, at end insert--


("(7A) The Commission may charge--
(a) for accreditation,
(b) for monitoring the services provided by accredited persons and bodies, and
(c) for authorising accreditation by others;
and persons or bodies authorised to accredit may charge for accreditation, and for such monitoring, in accordance with the terms of their authorisation.")

The Lord Chancellor : My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 7. I shall speak also to Amendments

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Nos. 8, 24 and 25 and state the position I should have adopted had the noble Lord, Lord Phillips of Sudbury, moved his Amendment No. 7A.

The purpose of Amendments Nos. 7, 8, 24 and 25 is to confer on the legal services commission a power to charge both for the accreditation and monitoring of providers of legal services and for the authorisation of others to accredit and monitor providers of legal services.

The amendments will also allow others who are authorised to accredit and monitor providers of legal services to charge for accreditation and monitoring in accordance with terms set by the commission. They give the Lord Chancellor the power to require the commission to discharge its powers to charge for accreditation, monitoring and authorisation and to authorise others to charge in a prescribed manner.

The government amendments are enabling provisions, which give the commission a power to charge for accreditation services. Accreditation lies at the heart of the Government's drive to create a network of quality assured suppliers of legal services. Accreditation will show to funders and clients that a particular body meets certain standards in its work. Not all will pay for accreditation.

I come now to what I believe will be of most interest to the noble Lord, Lord Phillips of Sudbury. I deal first with services provided as part of the criminal defence service. These will be provided by solicitors' firms, typically under a contract, barristers and possibly by some not-for-profit law centres. All services provided as part of the criminal defence service will be funded by the commission and providers will not have to pay for accreditation.

I turn separately to services funded by the commission as part of the community legal service. These services will be provided by solicitors and barristers who will be in business for profit and by not-for-profit agencies such as law centres and citizens advice bureaux, which will not. Suppliers of services funded by the commission as part of the community legal service will not have to pay for accreditation. Therefore, the high street solicitor, or indeed any solicitor, providing services as part of the criminal defence service or the community legal service which are funded by the legal services commission will not have to pay for accreditation. I believe that is what the noble Lord, Lord Phillips of Sudbury, anticipated that he would hear from me.

I turn to those who will provide the other help and advice not funded by the commission but which will be available through the wider community legal service. Many of these providers will be operating on a not-for-profit basis and they will not have to pay for accreditation. But there are many organisations that make a profit from the provision of legal services. These include firms of solicitors operating on a purely private basis in either civil or criminal matters. We hope that many of these firms will take part in their local community legal service networks as part of the referral network, even if they are not receiving funding under a

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contract with the commission. Solicitors firms and others providing legal services for a profit may choose to take advantage of the opportunity to obtain accreditation to demonstrate the quality of the services that they provide and thereby attract more business; or they may be required by regulators or client groups to meet quality standards. That may be particularly appropriate in the field of immigration advice where there is concern about the quality of services provided.

The commission will be well placed to accredit, or authorise others to accredit, profit-making providers of legal services--I repeat, which it does not fund--and to ensure that appropriate and consistent quality standards are applied across the field of legal services.

We believe that it would be wrong to expect the taxpayer to meet the costs of accrediting and monitoring those individuals and bodies who seek accreditation as a means of increasing their profits arising out of non-publicly funded work.

7.45 p.m.

Lord Phillips of Sudbury: My Lords, I am grateful to the noble Lord the Lord Chancellor for giving way. He referred to cases which the legal services commission does not fund. There are, of course, two ways in which it can fund: either it funds the individual who then obtains legal aid services from a firm of solicitors or it can fund the firm direct. That is borne out in Clauses 14 and 15 of the Bill. I understand the noble and learned Lord to be saying--indeed, it would be logical--that whichever form of legal aid funding is obtained, whether to the individual or to the solicitors' firm which provides services to the client, either way there will not be a charge for accreditation and monitoring.


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