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Lord Falconer of Thoroton: My Lords, I am grateful for the general welcome that the noble Lord has given to the proposals. Perhaps I may deal first with the points that he made. The noble Lord asked whether it was sensible to make these changes now before the approval of the across-the-board rules which, I believe, are due to come into force on 26th April 1999. The answer is that this order must come into force at or before the same time as the Civil Procedure Rules are made because this order contains some of the powers which are necessary for those rules (which will come into force on 26th April 1999) to be brought into force.
Therefore, I believe it is sensible for these provisions to come first because, legally, they provide the foundation for some of the rule changes that are to come. For example, at the end of his remarks the noble Lord referred to Sections 133 and 134 of the 1984 Act. They remove the restriction for a signature in certain cases. However, as to what will replace it, that will come in the rules themselves. So, to some extent, these provisions pave the way for some of the rules. I give way to the noble Lord.
Lord Kingsland: My Lords, I thank the noble and learned Lord for giving way before he has got into his stride. Behind my question there is not just a procedural issue but a constitutional one. By approving this order now, does the noble and learned Lord not agree that we are anticipating the legislative discretion of your Lordships' House? I know that it would be constitutionally close to a revolution if your Lordships' House were to refuse an item of delegated legislation; but your Lordships' House does have that power. Is not the noble and learned Lord anticipating a discretion which your Lordships' House has not yet exercised, and making assumptions about what your Lordships' House will do which are not necessarily valid?
Lord Falconer of Thoroton: No, my Lords. With great respect to the noble Lord, we are making certain changes that are free-standing and which would happen in any event: for example, the removal of the requirement for the court to consider whether proceedings between husband and wife should be stayed. However, we are also taking measures which are sensible paving measures before the rules themselves are brought before the House. I have in mind the provision relating to the removal of the requirement that there should be a signature in certain cases for proof of
It seems to me that certain things must come first before we get to the rules--like removing restrictions that prevent the rules containing sensible provisions; for example, on methods of proving service. With the greatest respect to the noble Lord, I do not believe that we are in any way usurping the function of the House. Indeed, we are taking the necessary steps to pave the way for the rules which are to come into effect in April. That is why we are doing it this way.
The noble Lord also asked about the interrelationship as regards Section 17 of the 1838 Act, Section 69 of the County Courts Act 1984 and Section 39A of the Supreme Court Act 1981. There will be an area of overlap in relation to all these provisions, as the noble Lord rightly identified. However, it makes it easier if there is room under the 1838 Act to have a discretion as to when to award interest before a judgment because, as the noble Lord rightly said, it permits the court to encourage people by the exercise of discretion to accept reasonable offers that are made. I accept that there is an overlap but, equally, it seems to me to be a sensible one and one which would give the court greater flexibility in encouraging the settlement of disputes and in extracting a price from litigants who do not settle at a reasonable time.
The noble Lord then asked about pre-trial discovery and wanted to know whether there were any records available as regards the use of the existing orders in relation to personal injuries. There may be some, but unfortunately I am not aware of them. In my view, it is a sensible provision to extend the power in relation to actions apart from personal injuries actions. It is the power which can be used only on the say-so of a master, a judge or a district registrar. It is a sensible way for litigants to discover whether they have a case--or, more importantly, whether they do not have a case--thereby avoiding unnecessary litigation.
I believe that that is a sensible course to take and a much better way to deal with this sort of issue than the subpoena process, because a subpoena can be ordered without judicial intervention. In effect, it is a way of ensuring through the means of judicial intervention that parties can legitimately obtain documents from a potential litigant at an early stage. There is judicial control to ensure that it is not abused. It is probably a means of cutting short litigation rather than encouraging it. However, it also permits people to find out whether they have a genuine case. In my view, the courts are perfectly able to judge when it is appropriate to make such an order and when it is not.
I turn now to the final point--and the noble Lord will correct me if I am wrong. I believe that the noble Lord raised concerns about removing the requirement of the certificate of service as being under the hand of the relevant officer; that is to say, getting rid of the need for a signature. That protection will be removed. It is plainly not intended that there should not be some protection to ensure that there is proper authentication of whatever the record is. That will be dealt with in the rules for civil procedure.
As we move forward technologically with so many different forms of document, apart from those written by hand, it seems to me to be sensible that there should be other methods of authenticating such documents. In the methods that we prove, we shall seek to ensure that they are just as adequate as a signature. However, we all know from our own experience that signatures are not entirely foolproof as a method of authentication. We shall aim to do just as well in relation to whatever replaces it, and that will come in the rules of civil procedure which will be available at a later stage.
The noble and learned Lord said: My Lords, the amendments to the Advice and Assistance (Scope) Regulations relate to proceedings for anti-social behaviour orders, sex offender orders, parenting orders and child safety orders. The four orders I refer to were introduced in the Crime and Disorder Act 1998. The measures in that Act are aimed at tackling crime and disorder and helping to create safer communities. The Act received Royal Assent in July.
At present assistance by way of representation can be provided to respondents in these proceedings on the day of a hearing, at the direction of the court. This is provided so that a person within the financial eligibility condition does not go without representation where the court thinks it is necessary.
When the court grants assistance in this way it will ask either the duty solicitor or another solicitor within the precincts of the courthouse at that time to act for the respondent. The solicitor will then give advice to the respondent and represent him before the court.
These arrangements will mean that for the majority of cases assistance by way of representation will be provided. However, there will be the minority of cases where a court does not have a duty solicitor, there is no other solicitor in the court willing to act, or the case is too complex for advice to be given on the day. For these cases the court may have no alternative but to adjourn the hearing.
The instrument before your Lordships today addresses this by extending the circumstances in which assistance by way of representation can be granted. It does this by allowing respondents to approach a solicitor of their choice in advance of the hearing, and ask that solicitor to provide assistance by way of representation for them. The solicitor will then apply to the Legal Aid
It is necessary to do this for three reasons: first, to adjourn a hearing so that a respondent can obtain representation will expose the community to the continued threat of the type of behaviour the order is intended to prohibit; secondly, to refuse representation will deny respondents their basic right to a fair hearing; thirdly, we recognise that in complex cases, where a solicitor is already familiar with the people and issues involved, not allowing that same solicitor to provide representation may mean that the court would not have all the relevant facts before it. By allowing people to use a solicitor of choice in these circumstances this situation will not occur, and the court will be able to make an order that is fair to all the parties.
In considering when assistance by way of representation should be granted in advance of a hearing, the Legal Aid Board will assess whether it is necessary for assistance to be given before the day of the hearing, and, if not, whether the court is likely to have someone available on the day to provide assistance. Any assistance provided in this way will be subject to a means test.
As well as extending the regulations to initial hearings and applications to vary or discharge these orders, the instrument also extends the regulations to allow for assistance by way of representation in appeals against anti-social behaviour orders, sex offender orders, and parenting orders made in some civil proceedings. There is no form of representation currently available for appeals against these orders, although breaches of orders carry the risk of imprisonment. Where there is this risk we believe that representation should be available so that people are guaranteed their basic right to appeal. The reason no publicly funded representation is available is a technical one. The existing regulations are worded in such a way that legal aid is not available for appeals against civil orders in the criminal courts. Anti-social behaviour orders and sex offender orders are both civil orders, but appeals against them can be made only to the Crown Court. Parenting orders made at the same time as an anti-social behaviour order or sex offender order are also civil orders, where appeal is to the Crown Court.
The amendments will mean that assistance by way of representation will be available for these appeals. As with the first extension to the regulations, any assistance provided in this way will be subject to a means test, and an assessment of whether it is reasonable and necessary for representation to be provided in the circumstances of the case.
A further instrument, not requiring affirmative resolution, was laid before the House on 6th November to amend the Legal Advice and Assistance Regulations 1989. This instrument incorporates the proposed
By laying this second instrument in advance of consideration of the instrument before the House today the Lord Chancellor is not pre-empting your Lordships' approval. It is a technical measure necessary for the first instrument, if approved, to come into force on 1st December, the date when applications for sex offender orders can first be made. I commend this instrument to the House. I beg to move.
Moved, That the draft regulations laid before the House on 19th October be approved [45th Report from the Joint Committee].--(Lord Falconer of Thoroton.)
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