By the Select Committee appointed to report whether
the provisions of any bill inappropriately delegate legislative
power, or whether they subject the exercise of legislative power
to an inappropriate degree of parliamentary scrutiny; to report
on documents laid before Parliament under section 3(3) of the
Deregulation and Contracting Out Act 1994 and on draft orders
laid under section 1(4) of that Act; and to perform, in respect
of such documents and orders, the functions performed in respect
of other instruments by the Joint Committee on Statutory Instruments.
ACCESS TO JUSTICE BILL [HL]
1. This bill has rightly been heralded as the
greatest shake-up of legal services since legal aid was introduced
by the Legal Aid and Advice Act 1949. Many of the changes are
made in the bill itself but important issues are left to be settled
by the use of delegated powers cast in wide, enabling terms. Some
of the issues to which these suggested delegated powers relate
are of fundamental importance within a democratic society. They
affect the extent to which a citizen may be granted or denied
access to justice to promote or defend rights and liberties. They
raise for consideration how far control by the state of the means
of access to justice may erode the separation of powers and put
individuals at a disadvantage when seeking to defend themselves
against claims brought by the very government which also has the
power to prescribe how effectively they may be represented. So
the proposed delegated powers fall to be considered rigorously.
2. In addition to the memorandum from the Lord
Chancellor's Department, we have received evidence from the British
Medical Association, from the General Council of the Bar and also
from Jonathan Hirst QC, its Vice-Chairman, and from the Law Society.
This is printed in the annex to this Report.
legal services commission
3. Clause 1 establishes the Legal Services Commission,
which is to have wide-ranging functions relating to the work of
the Community Legal Service and the Criminal Defence Service.
Clause 2 empowers the Lord Chancellor to establish two separate
bodies, rather than one, to carry out the functions of the Commission.
Clause 3 gives the Commission its powers. Clause 4 provides that
the Lord Chancellor may give directions to the Commission requiring
it to discharge its functions in any manner specified in the directions.
The power to give directions is amplified by clause 6(4), which
empowers the Lord Chancellor to impose requirements on the Commission
as to descriptions of services to be funded from any specific
amount paid into the community legal service. They are further
amplified by clause 7(1) (directions setting priorities in funding
services), clause 7(7) (directions requiring the funding in specified
circumstances of services otherwise excluded by Schedule 2) and
clause 18(2) (directions as to funding of services relating to
foreign law). By clause 9 the Commission, in the code governing
the provision of services to the community legal service, must
take into account all factors which the Lord Chancellor may require
it to consider by directions under clause 4. So the Commission
has wide-ranging responsibilities crucial to the sound administration
of both civil and criminal justice and the standards of advice
and service to be provided in each area of our law. In turn, the
nature and scope of directions given by the Lord Chancellor will
be crucial to the operation of the Commission and the way in which
it provides access to justice. Yet the power of the Lord Chancellor
to give directions is almost untrammelled. We view this with considerable
4. The explanatory notes state (paragraph 62)
that the purpose of these provisions is to establish a flexible
mechanism by which the Lord Chancellor can ensure that the Commission
discharges its functions in a way that meets the government's
policy objectives and, in particular, that it allocates the resources
of the Community Service Fund according to "national priorities".
The Committee sees such very wide-ranging power to give direction
as a legislative power. The policy objectives and national principles
are not set out in the bill, which contains no parameters or criteria
for the exercise of his powers by the Lord Chancellor, but are
simply left to be supplied by directions. We see the setting of
objectives and priorities which will have such important consequences
for citizens as a legislative act. At Second Reading Lord Bingham
of Cornhill urged that fundamental principles which will determine
how the machinery established by the Bill will work should be
clearly set out on the face of the bill (Column 1126). Lord Mackay
of Clashfern stated that there was, in the interests of fairness,
a need for criteria to be known and he suggested they should be
part of the primary legislation. So long as these principles and
criteria are left to be established by directions it is, in our
view, impossible to accept that the directions are merely administrative
arrangements and that the only formal requirement is that they
should be published (clause 4(4)).
5. In regard to the Community Legal Service,
we consider that, if significant delegated powers are to be granted
under clause 4, the Bill should be amended so as to contain (a)
a clear statement of principle that the objective of the Community
Legal Service is to promote and enhance the opportunities for
citizens to have access to legal advice and the opportunity to
resolve disputes, and (b) the criteria which the Lord Chancellor
is entitled to take into account in giving directions. We believe
that it is the more important to circumscribe the Lord Chancellor's
powers in this way since, as the Explanatory Notes explain, the
Community Legal Service Fund will "not be an open-ended fund,
as the legal aid fund is now."
By clause 6(1) the Lord Chancellor shall
pay to the Commission sums which he determines are appropriate
for the funding of their services. Unless there is a statement
of principle, as well as the inclusion of criteria for giving
directions under clause 4, directions could be given in the interests
of financial stringency which take too little account of the important
aims to which the explanatory notes and the Lord Chancellor's
speech at Second Reading clearly suggest the Act aspires.
6. In respect of the Criminal Defence Service,
it is not clear why the Lord Chancellor should need power to give
directions. Legal assistance in criminal cases is of particular
importance as the defendant's reputation and liberty are at risk.
Moreover, the state is a party to the case and it would be disturbing
if a minister has an undefined power to change the arrangements
for giving legal assistance to the impecunious defendant. It appears
to us, as we would expect, that directions in relation to legal
assistance in criminal matters are intended to be limited to purely
administrative arrangements. If so, it would be helpful if this
were made clear on the face of the bill. If not, and the directions
can deal with matters of principle and substance, it has to be
remembered that one of the Convention rights protected by the
Human Rights Act 1998 is the right of a person charged with a
criminal offence who "has not sufficient means to pay for
legal assistance, to be given it free when the interests of justice
so require" (Article 6.3(c)). Parliament will wish
to be confident that the bill will ensure that this Convention
right is guaranteed. The difficulty in establishing that this
will be the case is that the general terms of clause 4 would allow
directions to be given which might restrict the protection that
the Commission are able to provide under clause 12. If the
general power to give directions is to apply to criminal matters,
the House may consider that unless the bill is amended to establish
appropriate criteria for the way directions can be used, it will
not be possible to guarantee that Convention rights will be respected.
7. We are also conscious that the power in the
bill to give directions is intended to cover not only the matters
of principle and substance which we have discussed in earlier
paragraphs but also instructions about administrative matters
where there is no need for formality and where urgent action may
be required. We see this as reinforcing our opinion that the bill
fails to distinguish between legislative and administrative acts.
The House will wish to consider whether the power to give directions
about other than administrative matters should be replaced by
a power to make such provision by order (or regulations) leaving
directions to deal only with administrative matters. We have said
earlier that we believe that the bill should state the objectives
of the Community Legal Service, and the factors to be taken into
account by the Lord Chancellor in giving directions to the service.
While this would go a long way to meeting our concerns we believe
that directions of substance should be made by orders (or regulations)
which should be subject to affirmative procedure.
CODE ABOUT PROVISION OF FUNDED SERVICES
8. Clause 9(1) requires the Commission to prepare
a code setting out the criteria according to which its funding
decisions are to be taken. Subsections (2) to (7) make supplementary
provisions about the preparation of the code and subsection (8)
provides that the code shall not have effect unless approved by
the Lord Chancellor. Subsection (9) provides for the Lord Chancellor
to lay before each House a copy of the code once he has approved
it. We accept that it is appropriate that this legislative power
should be delegated to the Commission but in view of the significance
of the code for those seeking access to justice we are concerned
that Parliament is given no part to play in the control over the
exercise of the power. The Committee invites the House to consider
whether the bill should be amended to provide that the code should
be laid before Parliament in draft and brought into force by an
order made by the Lord Chancellor and subject to affirmative procedure.
ALTERATION OF QUALIFICATION REGULATIONS OR RULES
9. Clause 35 gives effect to Schedule 5, paragraph
2 of which substitutes a new Schedule for Schedule 4 to the Courts
and Legal Services Act 1990. Part III of the new Schedule is concerned
with the alteration of regulations and rules by order. Paragraph
17(1) provides that "If the Lord Chancellor is of the opinion
that it may be appropriate for him to make alterations of any
of the qualification regulations or rules of conduct of an authorised
body, he may give written notice to the body." Subsequent
provisions in Part III set out the procedure which is then to
be followed. The process ends with the Lord Chancellor considering
the advice he has received (including that of the four designated
judges) and then deciding whether or not to make the alterations.
The House will be aware of the arguments that have been advanced
at Second Reading that the judges have a constitutional role in
relation to rights of audience and that the Lord Chancellor should
not act without the consent of the designated judges (or a majority).
10. The Committee's concern is that the bill
does not provide any indication as to the basis on which the Lord
Chancellor is to form his opinion as to whether it is appropriate
to make alterations to the regulations or rules. There must be
strong justification for requiring a professional body to change
its own rules of conduct or the regulations which determine qualifications
for membership. The Department's Memorandum draws attention to
the general principle and statutory objective set out in section
17 of the Courts and Legal Services Act 1990 (paragraph 66). That
objective is the development of legal services by making provision
in new or better ways of providing such services and a wider choice
of persons providing them, while maintaining the proper and efficient
administration of justice. This provision, however, does not significantly
limit a power of the Lord Chancellor to alter the rules of independent
professions, since by paragraph 17(1) he is able to act if he
"is of the opinion that it may be appropriate for him . .
." to do so. Paragraph 67 of the memorandum states that the
government does not wish to take away from the authorised bodies
general power to regulate the rights of audience and rights to
conduct litigation of their members; this is a "reserve"
power to ensure that "the will of Parliament is not defied".
At Second Reading the Lord Chancellor (Column 1111) described
it as a "fall-back power to intervene in the rules of professional
bodies if they unreasonably restrict rights of audience".
Lord Bingham of Cornhill, while not disputing that the Lord Chancellor
should have this power, nonetheless suggested (Column 1126) that
the bill should specifically include the principle that a strong,
independent and self-regulating legal profession should be preserved.
11. We conclude that, if a delegated power
were to be granted to the Lord Chancellor of the kind sought,
the House would wish to consider (a) whether Schedule 5, paragraph
17, could be circumscribed allowing the intervention of the Lord
Chancellor if, and only if, he was of the opinion that the regulations
of the profession unreasonably restricted rights of audience or
rights to conduct litigation and (b) whether the principle referred
to by Lord Bingham should be stated on the face of the Bill. Even
if amended in the way we propose, this important power to give
directions should be subject to the affirmative procedure.
Henry viii clauses
12. Clause 7(6) allows the Lord Chancellor to
make regulations amending Schedule 2 (which lists legal services
which may not be funded by the Legal Services Commission as part
of the Community Legal Service). This is an important power and
it is properly made subject to affirmative procedure by clause
13. Clause 61 is concerned with the transfer
of administrative functions of justices' clerks to justices' chief
executives. Schedule 9 effects the statutory transfers but clause
61(2) allows the Lord Chancellor by order to transfer other administrative
functions and subsection (3) allows the order to make amendments
to enactments. An order is subject to negative procedure. The
Committee considers that this should provide the appropriate degree
of control as Parliament will consider the case for transferring
administrative functions and once that is agreed, the transfer
of particular functions will not raise further important issues
for Parliament to consider.
14. Schedule 3 is concerned with the new Criminal
Defence Service and an individual's right to representation. Paragraph
4 confers on the Lord Chancellor power to make regulations conferring
on the Commission power to grant rights of representation in respect
of criminal proceedings or to delegate that power. Regulations
may restrict or exclude the power of a court to grant representation
and may amend the Schedule or any other enactment. Regulations
under paragraph 4 are subject to affirmative procedure (clause
23(3)), which the Committee considers appropriate.
15. There is another Henry VIII power in Schedule
3. Sub-paragraph (3) of paragraph 6 allows the Lord Chancellor
to amend by order sub-paragraph (2) (the list of criteria for
the grant of right to representation). Orders are subject to negative
procedure. In the light of the importance of the issue the House
may wish to consider whether the affirmative procedure is more
16. In addition to the two Henry VIII powers
discussed above, the following powers are subject to affirmative
procedure - orders under clause 2, regulations under clauses 11(2)(a),
(b) or (c), 14(6)(a), 25, 27 (new section 58(4) - see subsection
(2) of the clause) and 40(1), regulations under paragraph 4 of
Schedule 3, orders under paragraph 24 of the new Schedule 4 to
the Courts and Legal Services Act 1990 and Orders in Council under
Part I or Part IV of that Schedule (which is substituted by Schedule
6 to the bill). All these powers are significant and the Committee
considers the affirmative procedure provided for is justified.
powers not subject to parliamentary control
17. Clause 78(1) contains a simple commencement
power but it is supplemented by Schedule 10 which contains numerous
transitional provisions and savings. Paragraph 1 of that Schedule
is a general power to make by order transitional provisions and
savings. There are further transitional powers in paragraphs 8,
9 and 12. All these powers are of a kind which it is common to
find associated with the commencement of major legislation, and
are not normally subject to Parliamentary control.
18. Part V of the bill is concerned with magistrates'
and magistrates' courts. It contains a number of powers which
are not subject to Parliamentary control:-
In clause 49(1) (new section 1(2) of the Justices
of the Peace Act 1997 - order dividing England and Wales into
commission areas). But an order altering a commission area is
subject to negative procedure (new section 32A in clause 49(2)).
In clause 50, orders under new section 4(2).
In clause 55, orders under new section 27A(2), but
amendments are subject to negative procedure (see subsection (8)).
In clause 62(3), regulations under new section 60A.
In paragraph 14(3) of Schedule 8, an order under
new paragraph 15(2).
19. The Committee considers that all these powers
are such that it is not inappropriate for there to be no Parliamentary
clauses 68 and 72
20. All the other powers in the bill are subject
to negative procedure. The Committee is concerned that this may
not be appropriate for the powers in clauses 68 and 72.
21. Clause 68 inserts in the Justices of the
Peace Act 1997 a new section 53A about orders for costs against
justices or their clerk (the clause also makes similar provision
for Northern Ireland). The new section prevents a court making
an order for costs against a justice or clerk save in the circumstances
specified in subsection (2). Where the court is prevented from
making an order against a justice or clerk, subsection (3) allows
the court to order the Lord Chancellor to pay; but subsection
(4) provides for the Lord Chancellor to make regulations specifying
circumstances when a court shall or shall not exercise that power
and how the amount to be paid by the Lord Chancellor is to be
calculated. We anticipate that such a power would be rarely used,
but there is nonetheless an argument that regulations cutting
back a court's power to make such an order should be subject to
the additional Parliamentary scrutiny provided by affirmative
procedure (particularly as the regulations apply to all courts).
22. A similar point arises in relation to regulations
under the new section 2A(4) inserted in the Taxes Management Act
1970 by clause 72. The Committee invites the House to consider
whether affirmative procedure would be more appropriate for the
powers in clauses 68 and 72.
summary of recommendations
23. The Committee has in earlier paragraphs
drawn the attention of the House to a number of issues affecting
access to justice and the rights of the individual, including
the power of the Lord Chancellor to give directions under clause
4 (paragraphs 5-7), the code about provision of funded services
(paragraph 8), alteration of qualification regulations or rules
of conduct (paragraph 11), and the Henry VIII power in Schedule
3 allowing the Lord Chancellor to amend the criteria for the grant
of right to representation (paragraph 15). We also suggest affirmative
procedure for the powers in clauses 68 and 72.
24. There is nothing else in the bill which
needs to be drawn to the attention of the House.
FREEDOM OF INFORMATION BILL [HL]
25. The only delegated power in this bill is
in clause 9. This clause provides that the Secretary of State
may make regulations about a number of incidental matters (eg
proceedings and fees). Subsection (2) makes the regulations subject
to affirmative procedure. There is nothing in the bill which the
Committee wishes to draw to the attention of the House.
SEA FISHERIES (SHELLFISH) (AMENDMENT)
26. There are no delegated legislative powers
in this Bill.
1 Paragraph 68. Back
This report is also published on the Internet at the House of
Lords Select Committees Home Page (http:/www.parliament.uk), where
further information about the work of the Committee is also available. Back