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Lord Campbell of Alloway: My Lords, before the noble Lord sits down, perhaps I may quite calmly ask him a question. I have a great respect for the noble Lord, as the House knows. He said that the Government have a mandate. Of course, they have a vast mandate. Let us assume that some people read the manifesto and let us assume that at that time they all thought it was a good idea to do away with hereditary Peers, without, so to speak, putting anything else in their place and to set up a wholly nominated Chamber. The noble Lord talks about a mandate. Surely the noble Lord will accept that that mandate no longer subsists; it is long past its sell-by date.
Lord Graham of Edmonton: My Lords, I listened carefully to the noble Lord, Lord Campbell of Alloway, whose views I respect. I refer to a mandate which is clear and unambiguous. However, I take his point as
Lord Sudeley: My Lords, in contrast to the speech we have just heard, I believe that the Bill to eliminate the hereditary peerage is a tragedy owing to the understanding which the aristocracy has of inheritance and tradition. As regards the power of inheritance and tradition, one has to consider only the existence of the present state of Israel.
During the summer Recess the noble Baroness, Lady Jay, who is a hard rationalist on matters of House of Lords reform, wrote to me to say that during the debate on the future of the House which took place last month the Government would answer the question which I put to her in my correspondence as regards whether any Bill to abolish the hereditary peerage would be illegal under the Parliament Acts. As no answer was given by the Government during that debate--rather on the level that not answering letters is the way the world works--I had to table a Question for Written Answer on this subject so that the question cannot be evaded.
Under the Parliament Acts we are used to the inability of the House to delay legislation from the other place for more than a year. However, with the abolition of the hereditary peerage we may be entering a different area. Is it legal under the Parliament Acts for one House to dismantle the other House without its consent; in other words, can Parliament commit hara-kiri with itself?
During a speech which he made before the election, the Prime Minister said that his fundamental objection to hereditary Peers--whose titles, he said, emanate from illegitimacy in the Royal bedchamber, though, in point of fact, it is more often the case that they were awarded for honourable service to the government (if we cannot libel the dead at least we should honour them)--is that they have voting rights and thereby provide an in-built Tory majority in this House. However, speaking rights are much more important than voting rights. In consequence of speaking rights things happen. We have to consider only the number of amendments won in this House simply by argument on the Floor of the Chamber in Committee. In consequence of the debate which I introduced in the House in 1973 on the export of manuscripts--one of the quiet glories of England which represent the continuity of our institutions since the Middle Ages--the provision of copies of manuscripts going overseas has much improved. Our present Government seek to disrupt that continuity.
Without the success of my Prayer Book protection Bill in 1981, it is thought that the Prayer Book would have disappeared. That was an important victory as the new services secularise Christianity when that is not what Christianity is about. I can claim only less than half the credit for that victory, as much was due to the skill with which Professor David Martin of the London School of Economics handled a press conference so that not a single national newspaper did not favour the traditionalist case.
I may be an hereditary Peer and a Tory Back-Bencher, further to the right than my own side, but I believe the situation is difficult when so many hereditary Peers do not believe in their own case. We need to rely on a life Peer to advocate our cause. The noble Lord, Lord Beloff, is the best advocate of our cause. On individual issues I have received much support from Labour parliamentarians. My debate on the export of historic manuscripts was suggested to me by the noble Lord, Lord Strabolgi, who was then on the Labour Front Bench. As regards my Prayer Book protection Bill, my principal supporter was the noble Lord, Lord Glenamara. My forthcoming initiative on bankruptcy has been much welcomed by a Labour Member of the other place, the Member for Great Grimsby, with whom I am working over opposition to usury in its old sense of lending money without taking a share of the risk. I hope that more parliamentarians will join our isolated cause. Usury was appropriately condemned in the Middle Ages. When Henry I was absent, this House emasculated all moneylenders and the present damage caused by usury is evident when banks need the support of public opinion for the sake of their own custom. With the present Government's conviction as regards political democracy, why do they not give us economic democracy, with the abolition of usury and the reassumption by elected governments of the supply of our money on a debt-free basis?
During the debate last month on the future of the House of Lords much was said about the danger--by the removal of the independent hereditary element of the House of Lords--of not curbing the power of the Executive. This quarrel has existed ever since the struggle in the Middle Ages between the Crown and the baronage, to whom I was then related. In the Chronicle of Robert of Gloucester there is a vivid account of how during the conflict between Henry III and the baronage the barons' sheriff of Gloucestershire was ridden over by horses on the royal side. The Quinquennial Act is important. Whatever mask may be assumed by the Government as regards greater democracy, we are moving in the direction of a dictatorship, not only in this area but in other areas too.
The Home Secretary has advocated the abolition of the Royal Prerogative. The arrest of General Pinochet took place without consideration of whether we have an independent judiciary. Shakespeare and Bernard Shaw would have dealt with all this very well but they are now both dead. We need another gifted playwright to take over and to lay on an entertainment for us in the West End. The Prime Minister's smile may destroy him in the end.
Lord Goodhart: My Lords, today has been a truly historic day because I believe it is the first day in living memory, perhaps in all history, when a Lord Chancellor has sat in your Lordships' House elsewhere than on the Woolsack. I look forward to the even more historic day when for the first time he will wear his trousers in this House!
But, more seriously, we are now at the start of an historic Session. Today's debate has not matched the seriousness of the occasion, which is perhaps inevitable. That is because what we have had is largely a re-run of the debate we had some six weeks ago. When expressing reservations about the quality of the debate today, I wish to make an exception for the three maiden speakers. The noble Lord, Lord Norton of Louth, made a thoughtful and constructive speech. The brevity and charm of the noble Earl, Lord Dunmore, set an example which some other noble Lords would have been wise to copy. I hope that they will both forgive me if I give a particular welcome to the speech of the noble Lord, Lord Butler of Brockwell. I do so because he now holds an office, that of the Master of University College, Oxford, which my father held some 40 years ago. The noble Lord spoke today with the experience and wisdom derived from a long and brilliant career in the Civil Service.
The debate today has been on legal as well as constitutional affairs. Not surprisingly, constitutional affairs have dominated. Legal affairs have been touched on only to a limited extent, notably in the most distinguished speech by the noble and learned Lord, Lord Wilberforce, and in the powerful speech by my noble friend Lord Phillips of Sudbury.
It is difficult to make comments on legal matters now because the noble and learned Lord the Lord Chancellor is to wind up the debate. Until he does so, we have little information to go on and, of course, when he sits down, that will be the end of the debate, so this is the time for questions rather than comments about the proposed access to justice Bill.
I come to my first question. We had a lot of discussion in the last Session about legal aid. The noble and learned Lord the Lord Chancellor accepted that the rules on legal aid could not be changed as quickly or perhaps as fundamentally as was originally proposed. Does the noble and learned Lord the Lord Chancellor now accept that legal aid will remain essential for many types of case; for example, in medical negligence cases where there is a need to commit oneself to substantial expenditure before it is possible to find out even whether there is a viable case?
My second question is: Will the noble and learned Lord the Lord Chancellor give a proper trial to the contingency legal aid fund system advocated for many years by Justice--perhaps I should say that I chaired a committee which prepared the original pamphlet on the subject--and more recently by the Bar Council and the Law Society?
Fourthly, there have been suggestions in the press that an exclusive franchising system is intended to be extended to criminal legal aid. If implemented, that would mean that legally aided defendants in criminal trials could use only firms or chambers approved by the Legal Aid Board or some other official body. That would be the end of the defendant's right to be defended in a criminal trial by counsel of his choice. Are those suggestions true? If so, they are likely to meet with strong opposition from these Benches.
Before leaving legal matters, I should like to endorse very strongly the speech by the noble and learned Lord, Lord Wilberforce. No Law Commission Bill has been enacted since the general election and if none is enacted in the coming Session, there will be a gap of at least three years in enacting any Law Commission proposals. I would remind the noble and learned Lord the Lord Chancellor that the Law Commission was created by one of his predecessors, the Labour Lord Chancellor, Lord Gardiner. A great deal of valuable work has been done by the Law Commission. I hope that the Government will now ensure that it comes to fruition.
I turn to constitutional issues. Perhaps I may start with the two Bills where drafts have been promised for this Session and legislation deferred until the next. I welcome the practice of publication of draft Bills and hope that that will be extended as far as possible.
First, I turn to the Bill to implement the report of the Neill Committee on party funding. As a member of that committee, I welcome the confirmation that the Government will legislate on that report and I entirely accept the decision not to include that in legislation for this year. The report was not delivered until mid-October. It was more extensive and perhaps more radical than was generally expected. It will require extensive consultation with parties in all parts of the United Kingdom and cannot in practical terms be ready for legislation this Session.
I am, however, much less happy about the delay in introducing legislation on freedom of information. That was a manifesto commitment. An excellent Green Paper on the subject was published in December 1997. It asked for comments by the end of February this year. Nine months on, all we are promised is a draft Bill.
I agree with the noble Lord, Lord Butler of Brockwell, that freedom of information legislation should not inhibit frank discussion on policy issues. There has been plenty of time to take that kind of issue into account. I fear that the delay means that the departmental rats have been gnawing at the Bill. The Home Office has taken over control from the Cabinet
I turn finally to the two issues that have become interlinked over the past weeks: the future of the European parliamentary elections Bill and the future of the hereditary peerage. What happened last week was, I firmly believe, unconstitutional. I agree with the noble and learned Lord, Lord Ackner, that this House has a duty to scrutinise carefully the provisions of a Bill and, if it thinks it proper, to amend it. But that is not to say that this House should insist on the amendment to the end, against the opposition of another place.
Speaking from these Benches three weeks ago, in what was, I believe, round two of the battle, I said that if Conservative Members were serious in trying to insist on their amendment, they would push us into the most serious constitutional crisis for decades. That is exactly what has happened. For the first time for nearly 50 years--with the sole exception of the War Crimes Bill in 1991, which was a minor Bill and a special case because of the circumstances of its passage in the other place--this House has triggered the Parliament Acts procedure, and it has done so on a manifesto issue.
The Government are not faultless. There was scope for compromise which would have given the Conservatives slightly more than a review while preserving the essence of what the Government were seeking. But for the Conservatives in this House to pose as defenders of democracy is humbug. Their real motive--as, to be fair, they have made perfectly plain--is to block the Bill and force us back to first-past-the-post for the elections next June.
I do not want to go at great length into the respective merits of closed and open lists. We have spent too much time on that topic already. But I must say one thing. The open list system chosen by the Conservatives is perhaps the one system that is arguably worse than that of closed lists. It means that the 80 or 90 per cent. of voters who will probably want to vote for a party list will not be able to do so. To say that you cannot vote for a party list seems no more democratic than to say that you must vote only for a party list.
The Conservative amendment has had a better press than it deserves. The Conservatives succeeded last time round in hoodwinking no less than five Bishops into voting with them. But we are reaching a point where they are in danger of believing their own propaganda. Some speakers seem to believe that the leaders in the Daily Telegraph are the voice of the people. They really believe that across the country in pubs and clubs, on buses and in the tube, people are saying, "God bless Lord Mackay of Ardbrecknish, the champion of open lists and democracy, the scourge of closed lists and dictatorship!" That is not in reality what is happening. What is happening is that your Lordships' House is seen to be flexing arthritic muscles to block the will of an elected House of Commons.
I know that the removal of the rights of hereditary Peers is in a sense the end of seven centuries of history. I can understand why the descendants of great historic families like the Cecils or of those who have more recently rendered outstanding service to this country do not wish to leave this House. But they will have to do so. Before the end comes, I believe there is one last service they can give to their country; that is, as the noble Lord, Lord Monkswell, said, to leave this House with dignity and self-restraint.
I fear they may not do so. I fear that because in the past few weeks I have felt a presence in your Lordships' House of a ghost. It is the ghost of the first Earl of Halsbury, the ancestor of the noble Earl who spoke earlier this evening. The first Earl of Halsbury was a former Lord Chancellor who, at the age of 87, led those Conservative Peers who wished to die in the last ditch in defence of the rights of the peerage against the Parliament Act of 1911. He must be looking down with pleasure at the recent behaviour of the Conservative Party in your Lordships' House and hoping that this time there will be a fight to the finish.
Wiser heads prevailed in 1911. Will they do so again or will the Conservatives die in the last ditch in defence of the indefensible, as Lord Halsbury wanted them to do in 1911? Will the noble Viscount, Lord Cranborne, be the Halsbury of 1999? We shall see.
Lord Kingsland: My Lords, I cannot help beginning by saying that I found the final remarks made by the noble Lord, Lord Goodhart, to your Lordships' House to be a bit rich. Many noble Lords will recall that 30 years ago your Lordships' House voted by a vast majority to reform yourselves. The fact that that did not happen was due to a decision by the government, in a democratically elected place, another place, the following year.
There is no complaint, and I do not speak as a hereditary Peer but I hope I speak for the hereditary peerage, about the fact of the departure of the hereditary Peers. But there is a complaint about the proposed manner of their departure. No better evidence of that exists than the vote of your Lordships' House 30 years ago.
My noble friend Lord Cranborne allotted to me the task of dealing with those matters that arise out of the impending access to justice Bill. Like others of your Lordships, I have not yet seen that Bill. I do not know what its contents are. Therefore, I thank my noble friend Lord Cranborne for allotting to me this part of the day's business. However, coming at the end, I feel I have a duty to cast some glances at what has been said on constitutional matters.
I start by referring to the three excellent maiden speeches that we heard today. The noble Lord, Lord Butler of Brockwell, as befits an astute orator declaiming his maiden speech, tantalised us on controversial issues without positioning himself. I refer to the freedom of information Bill. I thought, in the last remarks that he made, that I detected some blades of long grass.
I turn to the speech of the noble Lord, Lord Norton of Louth. I must say how lucky your Lordships' House is to have such a distinguished constitutional expert joining your Lordships' ranks. He made an important point that one of the many items, but perhaps the most important one, missing from the Government's constitutional agenda is the strategy behind it. We do not know what that strategy is. We do not think the Government know what that strategy is. Of course, it has not been a question that any government needed to answer during the previous few centuries--because our approach to constitutional change has been gradualist. Since Oliver Cromwell no government have dared such an adventurous programme. Therefore, it is not surprising that the noble Lord should pose such a fundamental question.
As yet we have no answer to that question. But I hazard that the real threat is that the centre may not hold. We have devolution to the judges and to the component nations of the United Kingdom but nothing to hold the centre together, save perhaps the political parties. Should we be asking questions about how democratically run those parties are since they seem to be the only part of the constitution that will hold the periphery together?
Lastly, noble Lords heard the maiden speech of the noble Earl, Lord Dunmore. He reminded your Lordships' House of its trans-continental reach. I agree entirely with the noble Lord, Lord Goodhart, that the noble Earl's speech was characterised by charm and brevity--characteristics that are, almost invariably, dominant in your Lordships' House. I understand that the noble Earl's eldest son is called Viscount Fincastle. I record our gratitude to that famous name who, a century ago, won the Victoria Cross on the North-West frontier in the most brave and distinguished circumstances. It reminds us of one of the reasons why we value the hereditary peerage in your Lordships' House.
I was struck by two remarks by members of the Government in the course of the controversy the previous week about the European Parliamentary Elections Bill: "affront to democracy" and "frustrating the will of the democratically elected House". I regard
Since those powers have been given to your Lordships' House it must have been anticipated by another place that from time to time they would be used. They have been used very sparingly. I believe that this is only the fourth time that your Lordships have taken the matter this far. There are no grounds whatever for saying that your Lordships' House is frustrating the will of another place.
There are two other reasons for regarding the remarks as nonsense. The Bill is itself inherently undemocratic. The noble Lord, Lord Williams of Mostyn, admitted that when he said that one of the advantages of the closed list was that it allowed candidates to be elected to the European Parliament who would otherwise not be elected on open lists. What better refutation of democracy can one have than that?
Finally, I should have found the allegations about an affront to democracy more firmly based had they been made with the background of an intention by the Government to replace the present composition of your Lordships' House by a democratic Chamber. But that is not the case. As noble Lords know, the composition of the present House will be replaced by a purely nominated House. It is therefore simply not fair to accuse this House of not being democratic when it will not be given the opportunity of being democratic, at least in the foreseeable future.
I cannot predict what will happen to the Bill when it returns to your Lordships' House. But when it does, I hope that, whatever other allegations are made against Her Majesty's loyal Opposition, there will not be one of acting without full democratic authority.
My noble friend Lord Cranborne asked the noble Baroness, Lady Jay, a number of questions about the timing of stage two. I know that the noble and learned Lord the Lord Chancellor will wind up for the Government. Therefore perhaps I may remind the noble and learned Lord what those questions were. First, will the Royal Commission deal with the issue of powers as well as the composition of your Lordships' House? Secondly, when does the noble and learned Lord anticipate that the Royal Commission will report? Thirdly, when does the noble and learned Lord anticipate that the Government will react to the Royal Commission's report? Fourthly, does the noble and learned Lord believe that the Government will adopt the Royal Commission's recommendation, whatever it is? Fifthly, do the Government feel bound to introduce stage two immediately after the Royal Commission has reported?
I ask those questions because they are important to the Opposition. The Opposition have said that if there is a guaranteed stage two, our attitude to stage one will be different from the attitude that we adopt now. It must therefore be in the interest of the Government to give clear and unambiguous answers to these questions.
I turn to the few questions that I wish to ask the noble and learned Lord the Lord Chancellor about legal matters. Since the noble and learned Lord has become Lord High Chancellor of England he has introduced a radical programme of legal change, both in the administration of justice and in the procedures of the courts. I refer to the noble and learned Lord's proposals for legal aid; his proposals to change the rules of the High Court and county court; his proposals for contractual arrangements between the Government and solicitors for the carrying out of government legal business; and issues connected with the qualifications for appearing in the High Court for solicitors, barristers and employed lawyers.
Has the noble and learned Lord given any thought to what effect those changes will have on the structure of the legal profession? At present the legal profession is constituted somewhat like the medical profession. There are the solicitors--the general medical practitioners; and the barristers--the specialists. The noble and learned Lord has often spoken with admiration about the way in which the medical profession arranges itself. Does he continue to think that this relationship between solicitors and barristers should dominate the structure of the legal profession; or has he something else in mind?
Were the noble and learned Lord to stand back and consider his changes as a whole, would he not be tempted to come to the conclusion that they will dramatically change the relationship between the Bar and the solicitors' profession, in such a way as to create de facto fusion? If he were to reach that conclusion, would it be one that he would regret or one that he would welcome?
As regards legal aid, he was quoted in the Sunday newspapers--I know how unreliable they can be so perhaps he was misquoted--as saying that 46 per cent. of the legal aid budget is spent on 1 per cent. of criminal cases. I do not know whether that is accurate, but his reaction indicates that it is roughly accurate. If so, it suggests to me that 99 per cent. of criminal cases which are financed by legal aid provide very good value to the state. Does not that suggest to the noble and learned Lord that far from a radical reform of criminal legal aid something ought to be done simply about that 1 per cent. of cases?
I am reminded of the story of the taxpayer who received a tax demand from the Inland Revenue with his name misspelt. He wrote back to complain. The Inland Revenue replied that it would be better for the taxpayer to change his name by deed poll. I believe that the radical change of legal aid proposed by the noble and learned Lord is out of all proportion to the problem he faces.
He will be the first to recognise how dangerous that would be were it to be true. For two centuries before the advent of universal suffrage in this country, the fundamental guarantee of freedom was the separation of power. We were a free country for 200 years before we became a democracy because everyone was equal under the law, including and perhaps above all the Executive. So the separation of power, and the crucial role which his predecessors from their unique vantage point, played in protecting it, is very precious in our constitution.
If the noble and learned Lord the Lord Chancellor is to have the last word on the education of lawyers and on which lawyers can appear in front of which courts--indeed, on the whole question of rights of audience--does he not honestly believe that that will be a fundamental breach of the principle in circumstances where judges and barristers today are often the only protection the citizen has against an overweening Executive?
The Lord Chancellor (Lord Irvine of Lairg): My Lords, in replying to tonight's debate, I shall focus first on legal issues and then on constitutional issues. Noble Lords will appreciate that the debate has ranged far and wide and I shall not be able to answer every detailed point. I shall try to deal with the most important points. Noble Lords may write to me on any subject and be assured of a detailed answer.
The Times this morning described the proposals for legal reform as the biggest shake-up in legal services for 50 years. I agree. A leader in the newspaper suggested that the Government were taking on the lawyers. I disagree. Few lawyers, in their hearts, could defend some aspects of the present legal system, even though some will try. We do not aim to take on the lawyers. We aim to work with them to create a better, faster and more cost-effective system.
However, our focus is not on the lawyers; it is on the clients, on the people who use the system. Their interests must come first before the interests of those who work within the legal world. An access to justice Bill will be introduced which will bring about much-needed reform in many areas.
First, it will give the Government power to control the spiralling legal aid budget and focus the money where it is most needed. There is vast unmet legal need in our country. Much of that occurs in our most disadvantaged communities but it falls outside traditional legal aid. We cannot offer hope and support to people in acute need unless the existing system is brought under effective control. Year on year, the taxpayer has been paying more and more for legal services while fewer people
The Bill will replace the Legal Aid Board with the legal services commission which will be responsible for the community legal service and the criminal defence service. The community legal service will have power to enter into contracts with lawyers who have proven expertise in their area to provide legal services at fixed prices. That will be an opportunity for the good lawyers to flourish and a challenge to others to develop relevant specialist skills.
There is little logic about what areas are and are not supported by legal aid at present. The community legal service will analyse the legal needs of our communities, prioritise those needs; and then develop plans to deliver the legal services needed. The community legal service will work in partnership with other funders and providers of legal services, building on local expertise and local services to supplement legal advice and assistance where it is needed most.
A court-based legal solution will sometimes be appropriate. There are many other cases where mediation or alternative dispute resolution in other forms will provide a quicker, cheaper and more appropriate answer to the client's needs. The powers in the Bill will allow those services to be supported as well as the traditional routes to the courts.
There are some areas where public subsidy is unnecessary to provide access to justice. Lawyers employed by trade unions and their members have been effectively operating conditional fees in personal injury cases for years, with a zero uplift, at no cost to the unions. They have been a great success, delivering access to justice for their members. This Government are prepared to learn from their successes. Unions have succeeded in making their lawyers more efficient and with examples of good practice like that, it is impossible to justify the demand for public subsidy from the less organised and less efficient.
The Bill will also address unjustifiable restrictive practices about which lawyers can appear in which court. There is no justification for preventing employed lawyers appearing in our courts. I cannot accept the notion that an employed lawyer faces unresolved conflicts of interest, has lower ethical standards or cannot be trusted. Any lawyer appearing in any court has a first and overriding duty to the court, not to his client or employer. As a practising barrister for 30 years, I can tell your Lordships that I never saw any evidence that there were any doubts about that. That duty to the court, confirming the present position, will appear on the face of the Bill. We wish to ensure that advocates are chosen because they have the skills to do the job, not because they belong to one part of the profession or another.
The Bill will create a new criminal defence service to provide high quality legal defence services for those appearing before our courts. To ensure that anyone appearing before our courts gets the best possible representation, the Bill will take powers so that contracts for these services will only be placed with those lawyers in private practice who have proven ability in this complex area. Criminal law is too important to be left to anyone who does not have a specialist skill and cannot demonstrate sufficient competence. The contracts will, so far as possible, be at fixed prices so that the taxpayer gets value for money.
Contrary to the rumour mill, I am happy to confirm that the Government have no plans to move towards a wholesale public defender service. However, we have a duty to ensure that citizens charged with criminal offences get the best representation and the taxpayer gets the best value for money. That means we do not exclude the possibility of directly employed lawyers being a part of criminal defence services. It will be interesting to compare costs and quality with those of lawyers in private practice under contract. Meanwhile a public defender service is being piloted in Scotland.
These reforms--taken together with the reforms of court procedures inspired by the Woolf Reports--will change the legal landscape in Britain. Judges, barristers, solicitors, para-legals and advice workers will all see the way they work change in the coming years. I am confident that the legal professions recognise that change is needed if we are to provide a better service to the people who really matter--those who need legal advice and help and come before our courts.