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Lord Falconer of Thoroton: I am reluctant to comment on procedures in the House of Commons. The Bill does not seek to specify the precise procedures by which a regulatory reform order should be processed through either House. It is for either House to decide how it best wants to deal with that. It can respond as it sees fit, if the Bill is enacted.

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Lord Norton of Louth: The Minister is correct. That matter is not dealt with in the Bill. I was relating the matter to intended practice, as that appears in the explanatory memorandum. The Minister was right--it is up to the two Houses of Parliament to decide how to proceed.

Lord Falconer of Thoroton: I move on to two other points, the first of which involves the comments of the noble Baroness, Baroness Buscombe, on Clause 4(4). Should a subordinate provisions order be triggered by something that "contains a statement" from a Minister? Her interpretation of the effect of the law is correct. There will very rarely be cases in which that provision gives rise to problems. If there are genuine doubts, we believe that initially the right person to decide the matter is the Minister. If Parliament disagrees with the Minister--again, this should be a parliamentary issue, not a court issue--Parliament can reject the provisions on those grounds.

The form of words adopted is frequently used in parliamentary drafting. For example, I refer the noble Baroness to paragraph 26(2) of Schedule 2 to the Financial Services and Markets Act 2000, of which she is no doubt already aware, where that form of words is used. There is nothing sinister or odd with their use.

Secondly, consultation depends on making a judgment about who the affected parties might be. In addition to the Minister's opinion on that matter, the committees can seek guidance and advice and take evidence from anyone. The Cabinet Office will put on the website the details of the consultation that is going on, and anyone who is not consulted at the behest of the Minister or the committee can make submissions and express his views. Other than by involving those whom the Minister thought were the appropriate people to consult, it is hard to see how one would trigger the consultation process. That is a parliamentary process, not a process which should be driven by court decisions.

I hope that in the light of those explanations the noble Baroness will withdraw her amendment and not move her other amendments in the group.

Baroness Buscombe: I thank the Minister for his response. I shall read with care what he said in answer to my proposed amendments. If the executive acts responsibly, it should have nothing to fear from the courts. I shall also read with care paragraph 26(2) of Schedule 2 to the Financial Services and Markets Act 2000. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 20 not moved.]

Lord Burlison: I beg to move that the House do now resume. In moving the Motion, I suggest that the Committee stage should begin again not before 8.40 p.m.

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

House resumed.

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Legal Advice and Assistance (Scope) (Amendment) Regulations 2001

7.41 p.m.

The Parliamentary Secretary, Lord Chancellor's Department (Lord Bach): rose to move, That the draft regulations laid before the House on 11th December be approved [2nd Report from the Joint Committee].

The noble Lord said: My Lords, these regulations will extend the assistance by way of representation scheme to cover applications to a judicial authority for an extension of detention under the Terrorism Act 2000. The Government are making this change to the scheme in order to ensure that appropriate representation is available to detained individuals when these applications are heard.

Before explaining the amendments in a little more detail, I should first give some background on the procedure to which they relate. A person suspected to be a terrorist may be arrested and held for up to 48 hours by the police under powers contained in the Terrorism Act. During this time the detained person is entitled to consult a solicitor for advice at any time unless a senior police officer authorises a delay in such a consultation. Where permission is given to consult a solicitor, help will be available under the existing police station duty solicitor scheme for the detained person to consult either a quality assured solicitor of his or her own choice or the solicitor on duty at the time. Such help is available without reference to the means of the detained person. I should make it clear that free legal advice in these circumstances is provided under the arrangements as they exist now without the need for any amendment to the scheme.

Where the police wish to extend the period of detention of a terrorist suspect an application must be made to a judicial authority for a warrant of further detention. In England and Wales the application will be made to the senior district judge, or chief magistrate or her deputy, or any other district judge (magistrates' courts) designated for the purpose by the Lord Chancellor. Such a warrant, or an extension of it, will authorise further detention for a specified period of time not exceeding seven days.

This is a new procedure and so we have looked carefully at the form of legal help that should be provided. The hearings for an extension of detention under the Terrorism Act may well take place at very short notice and so it will be essential that help is available without any avoidable delay. For these cases we are therefore proposing that a solicitor will be able to give assistance by way of representation without the need for approval by the Legal Services Commission, or anyone else, and without the need to assess the detained person's means. This means that in these particular circumstances a solicitor acting for the detained person will be able to provide advice and representation straightaway.

This form of help is already available to a person in connection with an application to a magistrates' court for a warrant of further detention under the Police and Criminal Evidence Act 1984. The new regulations

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effectively extend these current arrangements so that they will also cover applications to a judicial authority under the Terrorism Act. The regulations are compatible with the rights conferred by the European Convention on Human Rights. I commend this instrument to the House. I beg to move.

Moved, That the draft regulations laid before the House on 11th December be approved [2nd Report from the Joint Committee].--(Lord Bach.)

On Question, Motion agreed to.

Access to Justice Act 1999 (Bar Practising Certificates) Order 2001

7.45 p.m.

Lord Bach rose to move, That the draft order laid before the House on 15th January be approved [3rd Report from the Joint Committee].

The noble Lord said: My Lords, the draft order before this House amends Section 46(2)(b) of the Access to Justice Act 1999 which currently restricts the purposes for which the General Council of the Bar may raise fees from the issuing of practising certificates to the purposes of the,


    "regulation, education and training of barristers and those wishing to become barristers".

The basis for the proposed amendment to Section 46(2)(b) can be found in Section 46(3)(a) of the Act which provides that the Lord Chancellor may, by order made by statutory instrument,


    "amend subsection (2)(b) by adding to the purposes referred to in it such other purposes as the Lord Chancellor considers appropriate".

Section 46 of the Act was intended by the Government to resolve the unfairness of the current system whereby some barristers do not contribute to the costs of regulation by the General Council of the Bar; regulation from which all barristers benefit. Section 46(1) of the Act enables the General Council of the Bar to make rules requiring all barristers to hold a practising certificate in order to practise, and requiring them to pay fees for those certificates. The intention behind this order is to extend the purposes for which these fees may be raised.

In contrast to the position of the General Council of the Bar, by virtue of Section 11 of the Solicitors Act 1974, the Law Society has long had the power to require solicitors to hold a practising certificate in order to practise, and to require solicitors to pay fees for those certificates. But the Law Society has not been restricted as to the nature of the purposes for which it sets those fees. As the noble and learned Lord the Lord Chancellor said during the passage of the Access to Justice Bill,


    "our belief is that it is right in principle that a professional body should be able to spend money generated from compulsory subscriptions only on certain activities".

Section 47 of the Act provides for the Lord Chancellor, by order made by statutory instrument, to limit the

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purposes for which fees may be raised by the Law Society to:


    "(a) the purposes of the regulation, education and training of solicitors and those wishing to become solicitors, or


    (b) both those purposes and such other purposes as the Lord Chancellor considers appropriate".

Such an order has yet to be made, but the noble and learned Lord the Lord Chancellor is currently considering an application from the Law Society which seeks to extend the purposes set out at Section 47(1) of the Act for which it may raise fees in the event that the Lord Chancellor exercises his power to amend the Solicitors Act 1974, thereby ending the ability of the Law Society to raise fees for any purpose. The purposes proposed by the Law Society are similar to those proposed by the General Council of the Bar. If the Lord Chancellor decides to approve the Law Society's application, he will lay a separate order before this House for its approval.

However, in the context of considering the order now before this House and the additional purposes sought by the General Council of the Bar, I draw your Lordships' attention to statements made by my noble and learned friend the Lord Chancellor when debating the implementation of Sections 46 and 47 of the Access to Justice Act 1999. He said:


    "I make it clear to the House that 'practice support' or practice management and the 'raising and maintenance of standards' will be covered by compulsory fees for both the Bar and the Law Society. These activities are entirely compatible with the role of the regulatory body and should be included in any order made under any of these amendments".

He went on:


    "Those functions of the Law Society and the Bar Council that we can agree are in the public interest will qualify for funding from compulsory subscriptions".

He also made the important point:


    "The Government have no wish whatsoever to stifle the many useful functions in the public interest that both bodies currently perform and from which both the public and the Government benefit".

While the Access to Justice Act 1999 restricts the raising of fees from practising certificates to an amount necessary for the,


    "regulation, education and training of barristers and those wishing to become barristers",

importantly it also includes a provision to extend those purposes to add,


    "such other purposes as the Lord Chancellor considers appropriate".

The Lord Chancellor made it clear during the debates on the implementation of Section 46 in this House on 14th July 1999 that the wording of the Act was constructed in this way so as to avoid creating a vague and unalterable category of purposes for which fees might be raised. He made it clear that he would be prepared to consider extending those purposes listed in Section 46(2)(b) of the Act. He said:


    "I much prefer agreeing activities that justify compulsory fees on a case-by-case basis to creating a rather vague and problematic category".

The General Council of the Bar has recognised the need for a clear statement of purpose in raising fees from barristers. Following discussions between

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officials of the Lord Chancellor's Department, the General Council of the Bar and the Legal Services Consultative Panel, the General Council of the Bar submitted an application to my noble and learned friend for the approval of rules made under Section 46(1) of the Act to prohibit barristers from practising unless authorised by a certificate issued by the General Council of the Bar. After taking advice from the Legal Services Consultative Panel and the designated judges, the Lord Chancellor has signalled his approval for the new rules to be made.

But the General Council of the Bar has also invited the Lord Chancellor to make an order under Section 46(3)(a) of the Access to Justice Act 1999 to add the following purposes to those specified in the Act for which fees may be raised: the participation by the General Council of the Bar in law reform and the legislative process; the provision by barristers and those wishing to become barristers of free legal services to the public; the promotion of the protection by law of human rights and fundamental freedoms; and the promotion of relations between the General Council of the Bar and bodies representing the members of legal professions in jurisdictions other than England and Wales.

My noble and learned friend is of the view that all of these activities, which are already undertaken by the General Council of the Bar on the basis of subscriptions from its members, are useful functions clearly in the public interest, and that provision should be made within the General Council's new practising certificate rules for them to continue to be undertaken on that basis. Having taken advice from the Legal Services Consultative Panel and designated judges as to the suitability of the proposed additional purposes and consulted the General Council of the Bar and parliamentary counsel as to the specific wording of the proposed amendment, my noble and learned friend has signalled his approval to the further purposes sought by the General Council.

The Lord Chancellor is aware that parliamentary approval of this draft order is required under Section 46(4)(b) of the Act. I believe that the provisions of this order which amends Section 46(2)(b) of the Act are compatible with the rights set out in the European Convention on Human Rights. Since an amendment of this nature adding to the purposes for which fees might be raised by the issuing of practising certificates was anticipated during the implementation debates on Section 46 in this House, and Section 46(3) makes specific provision for the exercise of these amending powers, I therefore invite the House to approve the order. I beg to move.

Moved, That the draft order laid before the House on 15th January be approved [3rd Report from the Joint Committee].--(Lord Bach.)

7.55 p.m.

Lord Brennan: My Lords, during 1999 I had the honour to be chairman of the Bar Council of England and Wales. That task required me to sit across to the right of your Lordships' Chamber beyond the Bar for

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many hours as this House debated reform of my profession. Of all the reforms that the Access to Justice Act 1999 achieved, this small step may turn out to be one of the most significant. The Bar is not a statutory body and, until this Act, did not have the power to require its members to pay an annual subscription. That they should, anyone else would regard as self-evident.

In the years since I was chairman, and, before that, my noble friend Lord Goldsmith, we sought to modernise the Bar. This step furthers that task. It is little known, but deserves mention, that by raising subscriptions the Bar can better serve the public interest. It does it in education by ensuring that members of the Bar who represent the public have achieved a reasonable measure of professional training. It also does it in regulation by a system of professional discipline which the legal ombudsman regards as the most successful of the schemes with which she must deal. Her assessment is that there is well over 90 per cent satisfaction in those cases where we deal with the public.

Last but not least is the importance of general education and training. The last time I looked at the Bar's annual budget about one third of its total income was spent on education and training. The order seeks to enlarge the purposes on which subscriptions and income can be spent. These purposes are not new but are characteristic of the Bar in times past.

It is little known but well recognised in government that the Law Reform Committee of the General Council of the Bar regularly submits private memoranda to government and civil servants about proposed changes in the law. That contribution has always been welcomed. It deserves to be better known--I am sure that my noble friend Lord Goldsmith will refer to it--that one of the main features of the Bar's services to the public is the provision of free legal services. The aspect to which I refer--I hope that my noble friend will mention the other with which he has closer connection--is the Free Representation Unit. Every young member of the Bar is encouraged to undertake work in representing the public at no cost to them.

The final matter may in years to come be very important. I refer to the international role of the Bar. Lawyers in this country, as in many others, are vilified day by day because of the obsessional media interest in what they earn. The fact is that solicitors and barristers achieve invisible earnings in this country and abroad of over 1 billion a year. The Bar plays its part in that achievement by expanding its relations with Bars in other countries around the world. I have mentioned just some of the purposes for which this order will allow subscriptions to be raised. I welcome unreservedly this extension. There are occasions when there is a happy union between government action and

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professional interest, and this is one such. I welcome the order and ask noble Lords around me to forgive me if I do not stay to listen to their contributions.


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