PART VII - SUPPLEMENTARY|
CLAUSE 75 & SCHEDULE 10 - TRANSITIONAL PROVISIONS
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
CLAUSE 78 - COMMENCEMENT
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
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.
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.
Head, Parliamentary Unit
14 December 1998
Memorandum by the General Council of the
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.
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
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
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
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
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.
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)
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
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
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.
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
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