Select Committee on Delegated Powers and Deregulation Fifth Report



129.  Clause 75 gives effect to Schedule 10, which contains transitional provisions. Schedule 10 consists of five parts, of which four contain delegated powers. As is common for transitional provisions, no Parliamentary procedure is provided.

Part I - General

130.  Paragraph 1 empowers the Lord Chancellor, by order, to make such transitional provisions and savings he considers appropriate in connection with the coming into force of any provision of the Act.

Part II - Legal Services Commission

131.  Paragraph 7 provides for the Lord Chancellor to order that the Legal Aid Board shall cease to exist. He must first be satisfied that the Board has discharged its functions under paragraph 6, which provides for it to complete its final report and set of accounts.

132.  Paragraph 8 empowers the Lord Chancellor, by order, to make consequential, incidental, supplementary or transitional provisions in relation to the transfer of functions from the Legal Aid Board to the Legal Services Commission, or the abolition of the Legal Aid Board. These may include amendments to other enactments and repeals. This is needed to deal with the detailed arrangements for the Commission to take over the existing cases and liabilities of the Board. These would not be appropriate for the face of the Bill, and some requirements may only become apparent when Part I of the Bill is brought into force.

133.  Paragraph 9 empowers the Lord Chancellor to make an order allowing him to direct whether he (in practice the courts) or the Commission should be responsible for funding representation as part of the Criminal Defence Service. This will enable the higher criminal courts to continue to be responsible for assessing and making payments to representatives during the transitional period while the Commission is developing and piloting contracts for these cases.

Part III - Legal Services

134.  Paragraph 12 empowers the Lord Chancellor, by order, to make provision in connection with the abolition of his Advisory Committee on Legal Education and Conduct, including provision about its staff and property.

Part V - Magistrates and magistrates' courts

135.  Paragraph 27 empowers the Lord Chancellor, by order, to make provision in connection with the establishment of the Greater London Magistrates' Courts' Authority (GLMCA). The GLMCA will replace the 22 existing MCCs in Greater London. The order-making power is needed to establish the GLMCA in an systematic manner by:

  • abolishing the MCCs in Greater London immediately before the date of establishing the GLMCA;
  • providing for the transfer of property, rights and liabilities to the GLMCA; and
  • enabling the GLMCA to incur liabilities prior to the date on which it is formally established. A period of shadow running is intended (as for other MCC amalgamations) prior to the date of formal establishment, and this power enables the shadow Authority to incur expenditure before taking on its full role.

136.  Equivalent details relating to the amalgamation of traditional MCCs are currently dealt with by delegated legislation (under sections 32(3) & (8) of the JPA 1997). This avoids the need to provide for detailed administrative matters on the face of the Bill, obscuring its main principles.

137.  Clauses 76 and 77 contain no delegated powers.


138.  Clause 78 gives the Lord Chancellor power to bring certain provisions of the Act into force on a day or days that he appoints by order. The relevant provisions are:

  • Part I (The Legal Services Commission);
  • Part III (Legal Services);
  • in Part V (magistrates), clauses 53 (justices not to sit on committal for sentence), 54 (jurisdiction over offences outside area), 57 (GLMCA), 60--62 (role and functions of justices' chief executives), and 63-67 (execution of warrants);
  • all of Part VI (immunity and indemnity), except clause 74 (coroners); and
  • related repeals in Schedule 11.

139.  The commencement of these provisions is left to an order because it is necessary to make other secondary legislation (eg. rules of court) or administrative arrangements (eg. for the establishment of the Legal Services Commission) before they can take effect. As is usual with commencement orders, no Parliamentary procedure is provided.

140.  Clauses 79 and 80 contain no delegated powers.

Memorandum by the British Medical Association

  I understand the Delegated Powers and Deregulation Committee meets this week to deliberate on the provisions in the Access to Justice Bill. Apparently, Clause 35 and Schedule 5 contain a "Henry VIII" provision in relation to the Lord Chancellor's powers and the Bar Council.

  I thought the Committee would be interested to learn of a similar provision, affecting the health professions' regulatory bodies, which the Government is proposing to include in the forthcoming NHS bill.

  In September, the Health Minister wrote to the General Medical Council (the regulatory body for doctors), and I attach that letter.[5] You will see that the Minister seeks the power to amend primary legislation by Order. The professions have had discussions with the Minister and civil servants regarding this proposed change, and we await a letter from the Minister which is due to give fuller details of his proposals. The NHS bill is expected to be introduced in the New Year.

  In the meantime, the BMA has produced the attached briefing paper which outlines some of our concerns.

  Do please let me know if you would like any additional information at this stage. I would be interested to have details of the Committee's deliberations in relation to the Access to Justice Bill.

Sue Marks

Head, Parliamentary Unit             14 December 1998

Memorandum by the General Council of the Bar

1.  This memorandum identifies those powers given to the Lord Chancellor in Parts I to IV of the Bill and comments on the form, content and the justification (if any) for them as stated by LCD. It does not comment on the powers given to him by Part V.

2.  The general approach of the Bar Council is that a power exerciseable by one person without Parliamentary scrutiny, however eminent and distinguished the holder of the post of Lord Chancellor for the time being (and one may expect every future Lord Chancellor to possess such qualities), can only be justified, if ever, in the most exceptional circumstances. A number of such powers are created by the Bill and each is identified. The conclusion in each case is that no sufficient justification has been shown for the grant of such powers. By contrast, some powers to make regulations are reasonably required and these are identified and not challenged. Suggestions are made as to how the Bill ought to be amended to meet the Lord Chancellor's objectives of speed and flexibility in setting up new mechanisms for the delivery of publicly funded legal services.

legal aid

3.  The powers given in clauses 1 to 3 to make various types and manner of regulations are acceptable.

4.  Clause 4 enables the Lord Chancellor to give directions and issue guidance to the LSC about its functions. These powers are virtually unprecedented. The only previous occasion when such wide delegation of powers of control and supervision was authorised by Parliament was in the late 1980s when the Social Fund was set up by the DSS to replace single payments as additions to weekly benefit for those on income support. A very similar power to make directions and to issue guidance was given to the Secretary of State in the Social Security Act 1989. When a particular exercise of such powers was challenged in R v Secretary of State for Social Services and Others ex parte Stitt, Purchas LJ said in his judgment in the Court of Appeal:

"It is clear from the judgment of Woolf LJ [who presided in the Divisional Court] that he felt surprise and concern at such a delegation by Parliament of its powers of supervision which, for my part, I also, with respect,share. It may be that in this case in the execution of the legislative process that "Homer nodded" with the result that wholly exceptional and, it might be thought by some objectionable, powers without any Parliamentary fetter or supervision other than the annual report was achieved by the Secretary of State. On the other hand it may be an unwelcome feature of a dominating executive in a basically two-party democracy". (Transcript, pages 6/7).

5.  Under the Bill there is not even a requirement for an annual report. The directions and guidance are merely to be published, not even laid before Parliament.

6.  The Bar Council accepts that the proposal is to shift the focus of legal aid (a phrase that does not appear in the Bill) from individual entitlement (subject to the merits tests) to being in a sufficient category of priority to be funded in an individual case. This is a matter for debate as one of principle on second reading and in committee. However, no justification is or can be shown for these extraordinary powers as the means of implementing the control over policy that the Lord Chancellor desires to have. He could perfectly well specify his directions and guidance in regulations to be laid before Parliament and subject to affirmative resolution. Better still, such a significant part of the future scheme for legal aid ought to be specified on the face of the Bill. It is inconceivable that Parliament should not be given an opportunity to debate the priorities in a vital area of welfare provision. LCD do not even consider putting these matters into primary legislation. They go on to state that regulations are not "appropriate" as a mechanism for transmitting decisions about setting budgets and priorities. Why is this so? No reason is given. It is assertion. Regulations can be drafted in such a way as to contain both directions and guidance. They can also be amended from time to time to deal with pressing problems and new issues that arise from time to time. The proposed structure of decision making is unacceptable in a democracy.

7.  There is another objection to such wide powers however they are exercised. Judicial review is, as the Government agrees, an essential means of holding the executive to account for the use of its powers and of ensuring that they are not abused. Powers can only be exercised for the purposes given to the decision maker by Parliament. But if the very criteria by which decisions are to be taken are to be specified by the one and same decision maker judicial review becomes limited to the often pleaded but rarely successful, Wednesbury irrationality. Such clauses are as objectionable as the worst sort of provision excluding judicial review as a remedy. This does not accord with the rule of law.

8.  The note at paragraph 14(page 4) of the Department's memorandum is confused and ill-considered. It is true that directions cannot be given in an individual case: Clause 4(3). But the note suggests that this may happen. Footnote 2 talks about "tests which determine which cases within a given category should be funded". Such tests can only be applied, at some point after a case meets general priorities as to categories for funding, on an individual basis which this very clause prohibits. For that reason, they would appear to be more appropriately contained within the "Funding Assessment Code" for decision making in individual cases which is dealt with in Clause 9.

9.  The Bar Council concludes that Clause 4 must be amended to require the Lord Chancellor to state his principal priorities in primary legislation and, if he cannot go further on the face of the Bill at this stage, to set out the detail in regulations.

10.  Clause 6 enables the Lord Chancellor alone to determine the cash-limited amount to be available for legal aid and contains further references to the Clause 4 powe4rs. Clause 7 gives further powers to the Lord Chancellor to specify which services may be funded. The LSC may need a degree of flexibility to respond to the findings of, and priority setting exercises originating with, the Regional Legal Services Committees. Such matters should be stated on the face of the Bill or, at the very least, there should be some regulatory mechanism for the annual amount made available to be debated in Parliament following the laying of regulations. The details of social security benefits are set out, and normally revalued annually in, and by means of, regulations. No reason is given for the further wide and potentially arbitrary powers given to the Lord Chancellor. They ought to be exercised by affirmative regulation. If the policies are now worked out then they can be stated on the face of the Bill and not announced in the explanatory memorandum as, eg. at paragraph 17 dealing with the very wide Clause 7(7). This is an extraordinary way in which to legislate. If the policies are not yet worked out the Bill is premature.

11.  By contrast, Clause 8 provides that the LSC may fund certain legal services irrespective of means. It is impossible to understand why such powers are considered suitable for regulations yet the principles that will determine the precise content of the regulations are not set out in the Bill nor are they to be debated by Parliament.

12.  Clause 9 would replace the existing merits test (which, as the Bar Council agrees, has outlived its simplicity and can only be applied by the addition and use of guidance material in the Legal Aid Handbook) with a Funding Code. The LSC are to set the Code but must take account of both Clause 4 Directions and the matters specified in Clause 9. This is wholly unsatisfactory. To be sure the Code needs to be flexible but why cannot its principles be set out in regulations to be subject to the affirmative procedure? The clause does at least provide for the Code to be laid before Parliament. It is accepted that regulations could not be amended if debated on a resolution to approve them. But regulations would provide a small but significant additional scrutiny by Parliament. The criteria for being awarded almost all welfare benefits are set out in regulations. This is, correctly, the mechanism chosen by Clause 10 for the details of the financial conditions for eligibility for legal aid and Clause 11 for liability to pay costs in funded cases. Again, Clause 9 vests excessive power in one man, the Lord Chancellor for no justifiable reason.

criminal defence service

13.  Clauses 12 and 13 make reasonable use of regulatory making power. Clause 14 would permit the Lord Chancellor to make very wide ranging regulations specifying exceptions and derogations from the right of a defendant to choose listed on the face of the Bill. The principles behind the exercise of such powers ought to be stated on the face of the Bill.

14.  Schedule 3 contains a reasonable use of regulation making powers.

15.  Clause 15 ought to contain a provision for consultation with bodies representing providers of contracted services before payment rates are fixed by regulations.

16.  The reason for the power given by Clause 18 to be exercised by direction rather than regulation is said to be consistency with other exceptions from exclusions such as Clause 7(7). This begs the question as to why regulations are not to be used.

17.  Clauses 20 and 21 are good examples of regulation making power.

Conditional fee agreements

18.  Clause 27 is another good example of the use of regulation making powers.

19.  Clause 35 contains extraordinary provisions enabling the Lord Chancellor to override those professional rules relating to rights of audience or rights to conduct litigation whether present or future. He must, of course, act in accordance with the statutory objective found in section 17 CLSA 1980 and must follow the consultation process specified in the Schedule. The Bar Council is aware of the Lord Chancellor's view that the existing law has worked too slowly to extend rights of audience to solicitors and to employed lawyers. The principles of such extensions will no doubt be debated during the passage of the Bill. They always have been, and remain, contentious. However, as the power to override professional regulations is only to be exercised in specific areas (and it should be noted that the Bar Council does not accept that any interference with professional autonomy and self regulation is desirable or necessary) why cannot the Lord Chancellor come forward and say what his objections to existing rules are? The Bar Council will, as a responsible body, consider them in detail, and without delay. To describe the power as of a "reserve" nature (explanatory memorandum, paragraph 67, page 15) is not a justification for having such a wide power. The Bar Council calls upon the Lord Chancellor to abandon the provision and to discuss with it any rule changes the Lord Chancellor considers desirable and necessary. The Bar Council has elsewhere proposed that rule changes should be approved by a majority of the designated judges and the Lord Chancellor.

Bar Council                   11 December 1998
3 Bedford Row

Memorandum by Jonathan Hirst QC

The Constitutional Issue

1.  In 1989, the last Government proposed that the Lord Chancellor should make the final decision on standards of education and training for advocates, prescribe the principles to be embodied in codes of conduct for advocates, and be empowered to make decisions on rights of audience in the high Court and Court of Appeal by means of secondary legislation.

2.  In Parliamentary debate, the then shadow Attorney-General, John Morris QC, MP, expressed the widespread concern at the proposal:

"Lord Rawlinson, a distinguised former Attorney-General, said in a dramatic part of his speech in the other place, that nowhere outside a Marxist state does a Minister appoint Judges and have ultimate say in who may appear in courts before those judges. The Lord Chancellor is therefore right to distance himself from too direct an involvement in the latter. It is right that he at least shares the ultimate responsibility with the senior judges. Any attempt to water down the collective responsibility of judges, who have exercised such rights since time immemorial, would be wrong" (Hansard, 18 April 1990).

"That power [to have the final say on audience rights] should not be enshrined solely in the bosom of a political Minister, even though he be the Lord High Chancellor" (Hansard, 25 July 1990).

3.  The then Government heeded those concerns, and devised a process (so-called Schedule 4 machinery) in the Courts and Legal Services Act 1990, which ensured that the Judges (in the persons of the Lord Chancellor and the four Heads of Division) remained in control of the exercise of rights of audience and rights to conduct litigation in the Courts.

4.  That process recognises a fundamental constitutional principle in this country, namely the separation of powers and functions between the Judiciary on the one hand, and Parliament and the Government on the other. It is perhaps more important now than ever, because one of the great constitutional tasks of the Courts today is to control misuse of powers by Ministers and Departments of Government, whichever party is in power.

5.  Sydney Kentridge QC has recently warned of the dangers which would follow if that principle were to be diluted:

"Once there is a power in an executive authority outside the Bar or the judiciary to lay down rules of professional conduct, the profession cannot be regarded as fully independent. If I may be permitted an anecdotal recollection, during the years of apartheid in South Africa, there were frequent threats from the Government to place the Bar under the control of a central council with Government-nominated members. This proposal was consistently and successfully resisted by the whole of the Bar, including the many members who normally supported the Government in its policies and legislation. It was well understood that to remove the control of the profession from the provincial Bar Councils and the General Council of the Bar would have meant the end of the independence of the profession. What was also well understood was that the independence of the Bench was inextricably linked with the independence of the Bar".

6.  The significance of this is that an independent judiciary relies crucially on the independence of both arms of the legal profession.

7.  Schedule 5 of this Bill proposes that the Lord Chancellor (who, today, is a politician, a senior member of the Cabinet and the head of a substantial Government department) should decide:

who can appear in Court

who can conduct litigation

what rules of conduct lawyers can have

what qualification regulations lawyers can have

whether lawyers can change their rules

whether lawyers can change their qualification regulations.

8.  So the Lord Chancellor could formulate a code of conduct. The Lord Chancellor could "call in" rules, and force changed rules on a professional body, or revoke authority to grant rights of audience in certain Courts or types of proceedings. The only restraint would be the need for an affirmative resolution and then only in respect of certain rules.

9.  The Lord Chancellor has given no reason why he is seeking such a draconian power over a self-regulating profession. We do not oppose the granting of audience rights to properly qualified and experienced practitioners. If the Lord Chancellor is dissatisfied with any particular rules of conduct or rights of audience which the Bar possesses at present, then he should say so, in terms, and the Bar will respond positively to the particular concerns which he raises. He has given no justification for such a general, open-ended power which the Bill proposes.

10.  The Bar agrees that the present Schedule 4 machinery needs reform. It is too cumbersome. We support the Government in that aim. But the Bill proposes that the Lord Chancellor would have an option (and no more) to consult the new Consultative Panel and a duty to consult (but not follow the advice of) the Designated Judges. He could reject all the advice and impose rule changes on the professions.

11.  That power should not be given solely to the Executive, in the person of the Lord Chancellor as a Minister and not a Judge, with the Judges reduced to the role of formal consultees, whose advice could be ignored as the Executive might choose.

12.  The Government's desire to reform and streamline the current system can be achieved in a way which is constitutionally acceptable. The Bar's constructive proposal for reform is that the Lord Chancellor and the four Heads of Division (the Lord Chief Justice, the Master of the Rolls, the Vice-Chancellor of the Chancery Division and the President of the Family Division) should act as a body, and that the majority should prevail. That would prevent an individual blocking veto, while ensuring that the state does not take unfettered powers in a vital constitutional area.

Jonathan Hirst QC

Vice-Chairman (Elect) of the General Council of the Bar       10 December 1998

Memorandum by the Law Society


1.  This note outlines the Law Society's concerns about the proposed regulation-making powers in the Bill so far as they concern:

  • Rights of audience and rights to conduct litigation
  • Scope of legal aid.

rights of audience and rights to conduct litigation

2.  The Law Society has had the advantage of seeing the submission prepared by the Bar. We agree that the arrangements currently proposed in the Bill are unsatisfactory.

3.  So far as the approval of the main rules concerning rights of audience and rights to conduct litigation are concerned, it is of course already the case that the Lord Chancellor's approval is required for professional rules. At present, the approval of the four senior judges is also required. Under the proposals in the Bill, the requirement for consent of the other senior judges would be dispensed with, leaving the Lord Chancellor with sole responsibility.

4.  The Law Society agrees with the Government that the elaborate procedure under the Courts and Legal Services Act, involving a requirement for consent from five separate individuals, following detailed consideration by the Advisory Committee on Legal Education and Conduct, has not worked well. We agree that the decision-making structure should be simplified. However, we do not think it desirable for the approving body to be the Lord Chancellor. There is an argument for saying that no additional outside requirement should be required for professional rules, especially as they are already subject to challenge under the competition legislation. If outside approval is thought to be necessary, the Law Society believes that it would be preferable for its rules on advocacy and litigation to require the approval of the Master of the Rolls, in the same way as applies to the Society's other practice rules, rather than of the Lord Chancellor.

5.  The Society is particularly concerned by the proposed power for the Lord Chancellor to revoke existing rules, and substitute rules of his own devising. The Society does not consider this is an appropriate power for a Government Minister to have in respect of rules of either branch of the legal profession, even though consultation with the judges and an affirmative resolution of Parliament would be required. The power potentially undermines the independence from Government of the legal profession.

6.  The Society does not believe that the provision concerning "deemed approval" of rules in the Courts and Legal Services Act (Section 32) justifies this provision. In the Society's view, Section 32 was in the nature of a transitional provision. We do not believe it would be legitimate for the Lord Chancellor to invoke it now, so as to remove approval for any of the Society's rules.

7.  The Society is not arguing that professional rules should be exempt from scrutiny. The Society accepts that the rules may in some circumstances be challenged under the competition legislation. Furthermore, the Society recognises that it would always be open to Parliament to legislate to override professional rules if it should be thought necessary to do so.

legal aid

8.  The provisions in the Bill on the scope of legal aid enable the Lord Chancellor to widen or narrow the scope of legal aid through regulation. That corresponds to the existing power under Section 14 of the Legal Aid Act 1988. However, the Access to Justice Bill contains a provision in Clause 7 which would enable the Lord Chancellor to order the Legal Services Commission to provide assistance in cases otherwise excluded from the scope under Schedule 2. The explanatory notes to the Bill suggest that the Lord Chancellor might use the power to direct that assistance be provided in certain high cost personal injury cases.

9.  This suggests that the Lord Chancellor envisages using the direction-making power to help ameliorate what would otherwise be an excessive narrowing of the scope of legal aid. The Law Society does not believe this to be appropriate. The Society believes it would be sounder for categories of case where it is foreseeable that legal aid will frequently be needed to be included within the scope of provision on the face of the Bill, rather than to be dependent upon the Lord Chancellor's power to make directions. The Government could ensure that legal aid was not unnecessarily granted in such cases by providing that the funding assessment should fully take into account the possibility of cases being funded in other ways, for example through conditional fees. An approach on those lines would strike a better balance between the need for an individual to have a clear right to assistance where his or her case merited it, and the need for the Government to ensure that legal aid was not devoted to cases for which other methods of funding were available.

10.  The Law Society accepts that there is some merit in the Lord Chancellor having a direction-making power to ensure that legal aid is provided in some cases which fall outside the normal scope. However, this should be used for exceptional cases, such as representation at the inquest into the Marchioness disaster. Categories of case for which representation may routinely be needed should be dealt with through the Bill itself, as amended by Regulations, rather than through administrative directions.

The Law Society December 1998

5   Not printed. Back

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