Extent of Duty to Fund Advice and Assistance

Clause 1 – in the House of Commons at 5:08 pm on 2nd April 2001.

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Photo of Eric Forth Eric Forth Conservative, Bromley and Chislehurst 5:08 pm, 2nd April 2001

I beg to move amendment No. 1, in page 1, line 15, at end insert— '(3) No regulations under subsection (1) of section 13 shall be made unless a draft of them has been laid before Parliament and approved by a resolution of each House.'. Although the Bill is relatively limited in scope, the House would do well to consider its implications in detail. There is an increasing tendency for Bills to include provision for regulations or statutory instruments, and to allow almost complete discretion to the Secretary of State of the day as to how those will be carried forward.

The Bill touches on several important topics. It refers to the duty of the Legal Services Commission to fund advice and assistance", which potentially interests a large number of people. I am sure that many hon. Members are aware of the extent to which the role of the Legal Services Commission regarding funding, advice and assistance can have a distressing impact on people's lives. I am sure that we have all heard about our constituents' experiences and are in no doubt that the Bill is of considerable importance in that respect.

However, that importance is increased by phrases such as shall be treated as having been enacted". Regrettably, more and more of the Bills that are considered by Parliament are inadequately drafted, although bad provisions are more likely to be introduced because the Government have made amendments on the hoof. Furthermore, we are not given sufficient opportunity to give such measures proper scrutiny and consideration in Committee or on Report. We increasingly have to correct legislation long after it has received Royal Assent. Indeed, another such Bill will be considered later this evening.

The Bill is a graphic illustration of the fact that legislation introduced in the current Parliament has become increasingly fragile, as the Government are either incapable of allowing proper parliamentary scrutiny or are unwilling to do so.

Photo of Mr John Burnett Mr John Burnett Liberal Democrat, Torridge and West Devon

Is the right hon. Gentleman aware that we are considering a corrective Bill that seeks to rectify errors that were made in the drafting of the Access to Justice Act 1999?

Photo of Eric Forth Eric Forth Conservative, Bromley and Chislehurst

The phrase "correcting errors" is of key importance, as we find ourselves constantly having to return to legislation. I could name any number of measures to which I should like to return, not least among which are the Dangerous Dogs Act 1989, the Child Support Act 1995 and many others for which the Conservative Government were responsible. I do not make any particular distinction in that regard, but whether such Bills originated under the previous or under the current Government, I suspect that the common strand is either that they were the worst type of provision—that which was achieved on an all-party or consensual basis, which inevitably ensures poor legislation—or, even worse, that they were rushed through without proper provision for parliamentary scrutiny.

I would be the first to accept that the Government of whom I had the honour of being a modest and minor member for some years resorted to guillotines, but it was unusual rather than routine for them to do so. Of course, that might be what the hon. Member for Torridge and West Devon (Mr. Burnett) had in mind, but I point out that the previous Government almost always introduced such limitations after Bills had received fairly lengthy consideration in Committee. The difference is that the current Government resort to automatic guillotining before they are aware of the full extent of a Bill or its scope.

Photo of Sylvia Heal Sylvia Heal Deputy Speaker

Order. I remind the right hon. Gentleman that he should be speaking to the amendment.

Photo of Eric Forth Eric Forth Conservative, Bromley and Chislehurst

Thank you, Madam Deputy Speaker. I shall try not to provoke hon. Members into making interventions to which I shall have to reply. I realise that that would be most unfortunate.

My amendment seeks to change clause 1(2), which ensures that regulations introduced under section 13(1) of the Access to Justice Act 1999 may include provision treating them as having come into force at the same time as that subsection. Such regulation-making provisions are not unusual, but it is becoming all too routine for there to be a lack of provision for proper parliamentary consideration or scrutiny with regard to them. In this case, that is especially concerning, as the regulations can include provision treating them as having come into force at the same time as that subsection. Such phrases are starting to emerge ever more frequently. The term "deeming" is another of those phrases with which it seems we will have to become ever more familiar in badly drafted provisions. There are many such provisions, whether they contain the words "treated as having" or whatever else.

Photo of John Bercow John Bercow Shadow Spokesperson (Home Affairs) 5:15 pm, 2nd April 2001

I, too, have considered that matter, although probably not as closely as my right hon. Friend. Do I take it from his comments that the Government intend the proposed regulations to be subject to the negative rather than the affirmative resolution procedure, so that there will be no opportunity for parliamentary debate? Would he care to reflect on the irony—nay, I understate the case, the sheer absurdity—of inviting us to presume a given in relation to regulations which have not been debated and a draft of which we have not seen?

Photo of Eric Forth Eric Forth Conservative, Bromley and Chislehurst

Indeed. The Bill is silent on parliamentary scrutiny; I suspect that that is deliberate because it reflects the Government's routine approach. If my hon. Friend is suggesting that, in the absence of explicit guidance to the contrary, I would assume that the negative resolution procedure would be used, he would be correct. In his relatively brief time here, he has achieved a mastery of such matters that few of us would attempt to emulate, so he is probably right. However, the amendment would put the matter beyond doubt. I am happy that a similar amendment has been selected for debate on another Bill, which, of course, I shall not mention. I shall try to table such an amendment every time the opportunity arises, not least to the Bill that we are now to consider on Wednesday.

One of the few ways in which we can try to hold the Government to account and properly scrutinise primary and secondary legislation is to provide for positive resolution procedure on regulations, hence my amendment, which would ensure that a draft was laid before each House and approved by resolution of both.

The word "draft" is important. I hope that it contains the procedural possibility of laying the matter before each House, and thus providing time for perusal and consideration before each House is obliged to deliberate on it. It is happenstance, but we have little opportunity to consider the Bill that is under discussion and the measure on the election imprint cock-up, which was tabled for debate later this evening. Some of it will be rushed through on Wednesday after the Prime Minister's peremptory decision to delay elections. If we had the opportunity for which the amendment provides, and drafts were available and we had time to consider them properly before both Houses of Parliament pronounced on them, we would at least have some protection. That is increasingly absent from our parliamentary process.

Photo of John Bercow John Bercow Shadow Spokesperson (Home Affairs)

I am sorry to trouble my right hon. Friend, but this dog does not wish to abandon the bone yet. My right hon. Friend's demands are always timid and moderate, and I wonder whether I can stiffen his backbone on the amendment by urging him to demand a minimum of three months for consultation on the proposed regulations and a minimum of three months' notice of their required implementation.

Photo of Eric Forth Eric Forth Conservative, Bromley and Chislehurst

I do not want to teach my hon. Friend to suck eggs or anything else, but one of the difficult judgments that has to be made is whether to push one's luck. One has to ascertain the likelihood of an amendment being selected for debate. Pushing too far may diminish the possibility of selection and therefore debate. If my amendment appears weak, weedy, pathetic and inadequate, I can only apologise to him and stress that it was the best that I could do while trying to ensure that it was selected. I have, happily, been successful and we have the opportunity at least to discuss the matter. However, I accept his comments. Perhaps I shall try harder next time to get a stronger, more effective amendment selected.

At least we have the opportunity of trying to persuade the Government—I accept that it may be impossible—to contemplate some parliamentary scrutiny, which they want positively to avoid in most other circumstances. I should have thought that even the Government might have realised by now that they only cause themselves more trouble if they avoid such scrutiny. It is becoming obvious that every time they seek to cut off by guillotine proper consideration of a measure, they subsequently have to return to the matter and take up parliamentary time correcting their earlier error.

On this occasion, my objective is somewhat different. I want to bring into play the full panoply of parliamentary scrutiny and accountability, even in a matter such as this. I said earlier that the Bill and the amendment were matters of moment and substance. Although the Bill is short and modest, it covers important territory and can affect individuals in the most dramatic way

My amendment seeks to provide for both Houses of Parliament to consider any regulations that might arise from the Bill, to satisfy themselves that they are as they should be. Here, the role of the two Houses of Parliament can often be quite different. Those of us who spend most of our lives in this building, and in this Chamber, understand that, because of the Government's enormous majority, proper scrutiny and accountability have been a struggle in this Parliament to put it mildly. Although my hon. Friends have worked manfully, and, in some cases, womanfully, to hold the Government to account, it is very difficult, particularly in a Standing Committee in which the Government may have 14 members and the official Opposition

Photo of Sylvia Heal Sylvia Heal Deputy Speaker

Order May I once again ask the right hon. Gentleman to confine his remarks to his amendment?

Photo of Eric Forth Eric Forth Conservative, Bromley and Chislehurst

I certainly will, Madam Deputy Speaker. My amendment refers to a draft of the regulations being laid before Parliament and approved by a resolution of each House. You do not want me to give my modest analysis of the inadequacies of the scrutiny process in Standing Committee, Madam Deputy Speaker, so I shall have to deny that to myself and to the House. However, I want to emphasise the importance of proper scrutiny at the stage of introducing regulations—rather than in Standing Committee or in the introduction of primary legislation—to try to provide a safety net so that if, by some chance, proper scrutiny has not been possible in Standing Committee, we have the opportunity to pick up the pieces and provide the necessary degree of scrutiny.

That process would, nevertheless, be inadequate because—as my hon. Friend the Member for Buckingham (Mr. Bercow) would be the first to point out if I did not—no amendments would be allowed to be made at that stage, and I regret that. That is something we have to live with. The Procedure Committee has considered from time to time whether it should be possible to table amendments when introducing regulations, but has not yet seen fit to take the matter further. We must therefore accept that, in this case, scrutiny and accountability are available only on a take-it-or-leave-it basis.

If my amendment were accepted, it would still be possible for the Government to lay the draft regulations before this House—and, I believe another place—and then say, "We, the Government, want you to approve this, and if you do not, it will fall." That is often used as a kind of blackmail, in which the Government say, "If you do not accept this, nothing will happen." I would often prefer nothing to happen. I often feel happier with nothing than with something flawed, bad or undesirable. Perhaps I have not yet been able to persuade my hon. Friends of that in a sufficient number of cases. However, in this case, I shall have to be satisfied with this degree of scrutiny and accountability, because, that is all that is procedurally available.

It is important to understand why I want both Houses to be involved in this process. I am very keen that we should always acknowledge the role of a bicameral Parliament, such as we have here. For those who argue for the so-called primacy or supremacy of the House of Commons over the House of Lords, my answer these days is that Members of the House of Commons show it increasingly less respect. They are prepared to turn up less and less often, so why we constantly talk about the supremacy of this place is increasingly beyond me.

For that and other reasons, I am more and more enthusiastic about ensuring that we involve the House of Lords in such processes as often as possible. If we undertook an analysis, which you would not want me to do at this stage, Madam Deputy Speaker, we would probably find that the attendance record of Members of the other place is better than that of Members of this place. Looking round the Chamber perhaps provides a good example of that.

More importantly, I want the regulations to be approved by both Houses because we have in the other place expertise and experience that is often not available in the House. That is an important factor. Notwithstanding the fact that there are distinguished legal experts sitting on all Front Benches, even they would perhaps admit in their different ways that scrutiny by another place might provide that extra bit of added value and quality in the parliamentary process which we, even on a good day, may not be able to provide.

Parliamentary scrutiny by both Houses provides that extra dimension, which is very valuable, and I leave it to my colleagues to make their own judgment about the value of scrutiny by the House of Commons when we have a Government with such a large majority. It is for another time for us to digress and debate the relative merits of majorities of various sizes, but size does matter in this example. I hope that all Members present agree that scrutiny by the House of Lords of a Bill covering territory and issues such as these would be extremely valuable and would greatly reassure people, particularly in relation to the Legal Services Commission and access to justice.

Photo of John Bercow John Bercow Shadow Spokesperson (Home Affairs)

I understand the significance of the point that my right hon. Friend is making, but I would not want his important amendment to be subject to the grisly fate of the self-congratulation of the lawyers—I am not a lawyer and I say that as a matter of pride. Does he agree that, in addition to any consultation that might usefully take place with them, consultation with other parties, including representatives of victims' groups, could be of inestimable value?

Photo of Eric Forth Eric Forth Conservative, Bromley and Chislehurst

That is true, but my hon. Friend has put a rather worrying thought in my mind. Rather uncharacteristically, I praised those on the Front Benches and they all looked appropriately modest and humble.

Photo of Eric Forth Eric Forth Conservative, Bromley and Chislehurst

Indeed. That is why I praised them—in the context of what I was saying, it was appropriate—but my hon. Friend has shown us the other side of the coin. He is right that, time and again, we in this House—and, I expect, those in the other place—find that the very people who scrutinise such Bills have not only the most knowledge but some professional interest which, albeit a proper one, may none the less affect their judgment.

At what point could we expect input or involvement from those we would expect to benefit from the measures in the Bill? My hon. Friend mentioned victims' groups, whose involvement may be the most appropriate, and we might think of many other such bodies. Who would represent the taxpayer here? I leave that to one side, but one can already identify what dilemmas would arise during consideration of such a matter. Of necessity, we would require a degree of expertise to be brought to bear.

Photo of Eric Forth Eric Forth Conservative, Bromley and Chislehurst

Talking of expertise, I give way to the hon. Gentleman.

Photo of Mr John Burnett Mr John Burnett Liberal Democrat, Torridge and West Devon

I am extremely grateful to the right hon. Gentleman, who is being very shy. He should not underplay his own contributions to legal affairs debates. Does he recall a Committee debate on conditional fee agreements in which he took part? Does he remember the points that he made?

Photo of Eric Forth Eric Forth Conservative, Bromley and Chislehurst

The hon. Gentleman is very kind. Were I to try to remember all the points that I have made in my brief and inglorious parliamentary career as a Government Back Bencher, a Minister and an Opposition Back Bencher, I would have to be Mr. Memory Man. Perhaps I have allowed the contributions mentioned by the hon. Gentleman to slip my memory, but I am flattered that he remembers them: that is very reassuring.

5.30 pm

I do not want to detain the House for long, but I believe that this is an important matter, to which we should give serious consideration for at least a short time. On occasions such as this, we are being asked to decide whether we trust the Government. If the Bill proceeds as it is currently worded—without my amendment—the Government will be contemplating regulations that would presumably be made under the negative resolution procedure, as my hon. Friend the Member for Buckingham pointed out, and therefore potentially made by default. Do we wish to allow that, or do we want the reassurance of a provision predetermining the procedure by stating that both Houses must give positive consideration and approval to the regulations?

The issue is no less important than that—and, as I have said, the fact that it is arising in connection with more and more Bills, albeit of varying sizes and importance, suggests that we may have to return to it ever more frequently, for as long as the Government insist on trying to get legislation through Parliament guillotined, with provisions such as this half-hidden in it.

I hope that I have said enough to persuade my right hon. and hon. Friends, but more particularly the Government, that the matter requires proper consideration. Perhaps, if I am lucky, the Government may even see fit to accept my amendment.

Photo of Edward Garnier Edward Garnier Shadow Attorney General

I congratulate my right hon. Friend the Member for Bromley and Chislehurst (Mr. Forth) on highlighting a particularly important constitutional question that the Government have failed to recognise during their four years in office.

The Bill, which seeks to correct the so-called Access to Justice Act 1999, clearly demonstrates the problem described by my right hon. Friend: the Government's use of secondary legislation to make changes in primary legislation. I think—and I know our Government did it as well—that that is an appalling development in the modern history of our Parliament.

In the Access to Justice Act, the Lord Chancellor gave himself—or this supine Parliament gave his office—some 37 powers to make regulations. We are discussing this Bill now because the Lord Chancellor's Department made a mess of it. No doubt overburdened by the number of regulatory powers conferred by this supine Parliament, it has had to produce a Bill that, in my view, would more properly be called the Access to Justice (Cock-up)(No. 1) Bill. No doubt, if the current Parliament continues for much longer, we shall be presented with subsequent cock-up Bills—Nos. 2, 3 and 4—to deal with other parts of the Access to Justice Act that need correcting. I shall say no more about that, however: my general point is one that I have made on a number of occasions, and repetition never made a good point better.

My right hon. Friend has drawn attention to an important subject, which the Government continuously fail to recognise and of which any Opposition worthy of the name should continually remind the House.

Photo of Mr John Burnett Mr John Burnett Liberal Democrat, Torridge and West Devon

I too support the amendment, but I am surprised that the right hon. Member for Bromley and Chislehurst (Mr. Forth) did not make one point—unless I missed it during his eloquent summary. The regulations may have retrospective effect, which makes the case for the amendment even more compelling.

Photo of Mr David Lock Mr David Lock Parliamentary Secretary, Lord Chancellor's Department

The right hon. Member for Bromley and Chislehurst (Mr. Forth) is entirely correct: the amendment would substitute the affirmative for the negative resolution procedure. In other words, we would have to have a debate on every single regulation made under section 13(1) of the Access to Justice Act 1999, rather than giving the Opposition the opportunity to scrutinise regulations and decide for themselves whether to pray against them. That level of parliamentary scrutiny would certainly be unusual, given the type of regulations that could be anticipated in the future, and in the particular case of the regulations already contemplated under the Bill, it would be positively unwelcome.

I am grateful for the right hon. Gentleman's comments about scrutiny. He is fabled for his scrutiny, and I was certainly grateful for his suggestion in our debate following Second Reading that the time allocated for Committee proceedings in the programme motion was wholly inadequate. He may be aware that the Committee did not take the full 10 hours allocated: it took 18 minutes.

Photo of Mr David Lock Mr David Lock Parliamentary Secretary, Lord Chancellor's Department

That may well be true.

Generally, the affirmative procedure is considered appropriate for powers substantially affecting the provisions of Acts of Parliament, powers to impose or increase taxation or powers involving considerations of other special importance, such as powers to create new varieties of criminal offence of a serious nature. The powers to make regulations under section 13(1) of the 1999 Act do not fall into any of those categories. That section, as amended, will give power to prescribe situations in which individuals involved in criminal investigations or proceedings should receive publicly funded advice and assistance.

Hon. Members know, because we debated it during earlier stages of the Bill, that our intention is to replicate the current circumstances in which advice and assistance are available. Those circumstances are prescribed in regulations made under the negative procedure under the Legal Aid Act 1988, passed by the previous Government.

It is possible to imagine a situation in which a new procedure would be needed—for example, if changes had to be made in social security benefit levels—to ensure that advice and assistance financial limits remain in line with the changes, but those are not the sort of changes that should automatically be debated in both Houses. The negative procedure, to which the regulations will be subject, will ensure that if the regulations proposed are more controversial, there will be an opportunity for debate, should the Opposition pray against them.

In the case of this Bill, the amendment would have very serious effects. Hon. Members will be aware that the Bill and the regulations made under it are capable of retrospective effect. That was to ensure that if Royal Assent was given after the Criminal Defence Service was commenced there would be no gap in provision. The CDS has come into existence today, and clearly we have yet to receive Royal Assent for the Bill. As soon as that is given, regulations will be brought into effect that provide that advice and assistance will be available in exactly the same circumstances as under the Legal Aid Act 1988.

If we had to wait for parliamentary time to be available for two further debates, both here and in the other place, the law would remain uncertain for a considerable period, because no power would formally exist to provide advice and assistance in criminal cases. That is the lacuna that the Bill is intended to close.

Photo of Eric Forth Eric Forth Conservative, Bromley and Chislehurst

The Minister may have partially answered my question already. At the beginning of his remarks, he said that he envisaged that a number of such regulations might have to be brought forward. I know that it is asking for a gift of foresight, but it would be helpful if he could tell us whether he has any idea of the number and frequency that may be involved. If the regulations were to come in a steady flow, that would be one thing; if they were to be occasional and sporadic, that would be quite another, notwithstanding his point about the need for speed of response.

Photo of Mr David Lock Mr David Lock Parliamentary Secretary, Lord Chancellor's Department

I am prepared to answer that question in this way. Two types of regulations are likely to be made under section 13(1). First, there are regulations that will extend the advice and assistance to new circumstances. If, for example, the House were to pass into law the International Criminal Court Bill, so the International Criminal Court came into existence, it would be necessary to prescribe circumstances in which advice and assistance could be given to persons coming before the court.

The far more usual way in which regulations are made under section 13(1) is to reflect the financial limits that are available to prescribe who can and cannot receive assistance in these circumstances. Clearly, it would not be right for the matter to be debated by both Houses of Parliament every time that there was a financial change, because benefits are uprated annually, or however it may be.

It is not the Government's intention, save in the very unusual circumstances of the International Criminal Court, which is an example of extension in scope, to make a change to the method or substance of the way in which advice and assistance are given. On that basis, bearing in mind the situation concerning the Criminal Defence Service, which comes into effect today, and despite the right hon. Gentleman's desire for proper scrutiny, I invite him to withdraw his amendment.

Photo of Eric Forth Eric Forth Conservative, Bromley and Chislehurst

I am grateful to the Minister for his detailed reply to the debate. Although I appreciate his point about the need for what may be frequent—he said annual—adjustments resulting from benefit upratings or changes, the difficulty is that neither the wording of the Bill as it stands nor my amendment can distinguish between regular, relatively minor, changes and occasional, rather substantial changes. He said that he thinks that it will be mostly routine annual or semi-annual adjustments that are made, but other fairly large changes could take place in the meantime.

Photo of Mr David Lock Mr David Lock Parliamentary Secretary, Lord Chancellor's Department

Does the right hon. Gentleman agree that if he felt strongly about substantial changes under the International Criminal Court Bill, it would be appropriate to pray against them and have the debates? If the changes were more routine, would it not be appropriate to allow them to go through without a debate? Is that not the precise purpose of the negative resolution procedure?

Photo of Eric Forth Eric Forth Conservative, Bromley and Chislehurst

Indeed it is. I am grateful to the Minister. However, I think that the problem with his suggestion is that praying against, in my experience, tends to work almost entirely or exclusively if it is done by Front-Bench Members, and rarely if it is done by modest, humble and obscure Back Benchers. Of course, my trust in my Front-Bench colleagues is almost boundless. However, I can imagine the odd circumstance in which it might just be possible that my Front-Bench colleagues were prepared to allow something to go through unchallenged and on the nod and I might not feel entirely happy about it, so I accept the Minister's point only partially.

I am grateful for the opportunity to raise these matters. I sense that it probably is not the will of the House to have a Division on the matter at this stage. I am prepared to let it rest on the basis of the Minister's assurances and the points that my hon. and learned Friend the Member for Harborough (Mr. Garnier) has made. On that basis, and with some reluctance, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Order for Third Reading read.

Photo of Mr David Lock Mr David Lock Parliamentary Secretary, Lord Chancellor's Department 5:44 pm, 2nd April 2001

I beg to move, That the Bill be now read the Third time.

This is a short Bill, but an important one for anyone who is concerned with criminal justice. It will allow the Legal Services Commission to continue to fund the same level of essential legal services for those facing criminal charges and ensure that the Legal Services Commission may fund, under section 13, advice and assistance that includes advocacy. Additionally, the Bill seeks to ensure that advice and assistance are available to those who are involved in criminal proceedings rather than only to those who are involved in criminal investigations.

There was a short but constructive debate in Committee, with no amendments being moved. As the House is undoubtedly aware, on Report in the other place, the Government moved three amendments to the Bill, the combined effect of which will allow the Bill, on enactment, to have retrospective effect. When we amended the Bill to make it capable of retrospective effect, we felt that we might be erring on the side of caution. However, by the smallest margin, it has proved to be a necessary amendment. The provisions establishing the Criminal Defence Service came into force today, and I confirm to the House that regulations will be made under the Bill immediately it receives Royal Assent.

The draft of the Access to Justice Act 1999 that was originally presented to the House would not have left the lacuna. However, in attempting to respond constructively to amendments and issues raised by hon. Members on both sides of the House, the Government accepted various amendments. Unfortunately, during the scrutiny of those provisions, it was not appreciated that amendments that had been moved both by Opposition Members and by Labour Members would leave that small lacuna. The gap is, nevertheless, an important matter, and I should be grateful if the House would close it by allowing the Bill a Third Reading.

Photo of Edward Garnier Edward Garnier Shadow Attorney General 5:46 pm, 2nd April 2001

The Bill arose from the unintended consequences of the relationship between sections 13 and 14 of the Access to Justice Act 1999. The junior Minister in this place—the Parliamentary Secretary, Lord Chancellor's Department, the hon. Member for Wyre Forest (Mr. Lock)—and the junior Minister in the other place, Lord Bach, readily acknowledged those consequences, but they have not acknowledged that this little Bill is itself a direct consequence, undoubtedly unintended, of the Government's decision in the earlier weeks of this Parliament to crash through the 1999 Act without seriously thinking about the problems that could arise.

It is of some interest that the Minister has yet again sought to attach some blame to the Opposition for the sorry state of the 1999 Act, which is the reason that we need this Bill. As I recall it, none of the amendments to the Access to Justice Bill moved in Committee by official Opposition Members were accepted by the Committee, and the only amendments that were accepted were those moved by the Government and voted through— undoubtedly without adequate understanding—by Government-supporting Members.

Therefore, if the Government are worried about the state of the 1999 Act and the need for this Bill to correct it, they have only themselves to blame. The problem arises not least because the 1999 Act is a Christmas tree that allows the Lord Chancellor to aggregate to himself a huge and unprecedented number of powers to make secondary legislation, the effects of which we are now having to correct.

The Government fancifully called the original legislation the Access to Justice Act, but my view is that it should be called the "Denial of Access to Justice" Act, and the Bill demonstrates why. In the Legal Aid Act 1988, the initial advice and assistance available to those who are facing criminal proceedings included limited support in court. By contrast, it is unlikely that section 13 of the 1999 Act would have allowed the Legal Services Commission, via the Criminal Defence Service, to fund advocacy services in situations such as making a bail application or representing an accused person who is at risk of being imprisoned. Equally, the provision could well have inhibited the representation of someone who is at risk of being imprisoned for failure to pay a fine or obey a court order. Those are not small matters.

Indeed, the author of the error is happily with us now—I am delighted to welcome into the Chamber the Secretary of State for Defence, who, when the 1999 Act was considered in Committee, was the Parliamentary Secretary, Lord Chancellor's Department. How things have changed. None the less, the mistakes have lived on after his time at that Department.

I do not wish to prolong the Government's agony by letting this debate continue unnecessarily into the evening—although I gather that even this debate will be guillotined, at 7 o'clock. Nevertheless, I do not intend to spend the next hour or so dilating—as one of our Committee Chairman used to say—on the defects of the 1999 Act, as they will shortly be corrected on Royal Assent to this Bill. It is, however, an object lesson in the proper construction and making of legislation. The Government have a vast—indeed, an unhealthily large—majority. Nine or 10 Government Members served on the Bill's Standing Committee; only one of them, the Parliamentary Secretary, spoke. The others may or may not have listened, but their Committee activity hardly constituted scrutiny. Perhaps that is unsurprising in relation to a small Bill such as this, but had they not engaged with the Access to Justice Bill Standing Committee in exactly the same way, the problem faced by the Government might not have arisen and there might have been no need for the Bill.

The official Opposition give the Bill our broad but sad support—sad in the sense that we should not be in this position, but as we are, it is right that the Bill achieves Royal Assent as quickly as possible.

Photo of Mr John Burnett Mr John Burnett Liberal Democrat, Torridge and West Devon 5:51 pm, 2nd April 2001

I declare that I am a lawyer, but I do not practise as such.

The Liberal Democrats have also gone along with the Bill—for want of a better of expression. However, I warn the Parliamentary Secretary, Lord Chancellor's Department, the hon. Member for Wyre Forest (Mr. Lock), that the public defender system will not be as cost-effective as the existing provision through private practitioners. Private practitioners are competitive and do not require a huge new infrastructure and the administration costs that will be spawned by the public defender system.

I have said to the House on many occasions that real independence and the perception of real independence are crucial in the administration of justice. We have always opposed a salaried defender system because we do not believe that the state should provide the court administration, the prosecution and the defence.

I also warn the Parliamentary Secretary that the state defender system that the Government are intent on setting up will be significantly more expensive to operate than an efficient system of independent private practitioners working through the legal aid system It is regrettable that the Government are intent on continuing with the measure; nevertheless we shall reluctantly go along with it.

Photo of Eric Forth Eric Forth Conservative, Bromley and Chislehurst 5:52 pm, 2nd April 2001

It is not often that one hears such half-hearted support from both sides of the House. I feel that I should say a few words, as it looks as though I shall be the only non-lawyer to have said anything about the Bill during this stage of its proceedings. On behalf of all non-lawyers everywhere. I shall make a few comments.

Given the intimate relationship—about which we are learning—of the Liberal Democrats with the Government, how is it that the Liberal Democrat spokesman, the hon. Member for Torridge and West Devon (Mr. Burnett), finds himself having to express such grave reservations about the thrust of the Bill and of the legislation from which it emerged? Indeed, my hon. and learned Friend the Member for Harborough (Mr. Garnier), while giving the measure his reluctant and half-hearted support, also felt obliged to remind himself and the House of the fact that the Bill emerged from a series of errors and probably from a failure of scrutiny—not merely of this measure but of the previous legislation. We find ourselves in a sad and sorry state.

No one wants the Bill. Everyone wishes that it was not before us. The Government have not even apologised for it, but we are getting used to that. None of us is satisfied that it will add to the sum of human well-being, but we are stuck with it. The judgment of the lawyers among us is that the measure will bring some small net benefit or will limit the damage—one or the other—so we should feel obliged to accept it.

Photo of Edward Garnier Edward Garnier Shadow Attorney General

One of the sad aspects of this correcting Bill is that it exposes the Government's rubber-stamping of legislation under the Human Rights Act 1998. No doubt my right hon. Friend will remember that when the Access to Justice Bill was published, its cover carried a declaration from a junior Minister in the Lord Chancellor's Department that the Bill complied with the Human Rights Act. Clearly, it did not, but we were required to assume that it did because the Minister had said so. That measure will be brought back into compliance with the Human Rights Act because we are bringing access to legal aid for criminal defendants into line with the European convention and the Act. Regardless of what one thinks of the Human Rights Act and of the convention—

Photo of Edward Garnier Edward Garnier Shadow Attorney General

Well, one ought to think more of it unfortunately—certainly rather more than the Government do. At last, we have brought the Access to Justice Act 1999 back into compliance with the Government's own wretched legislation.

Photo of Eric Forth Eric Forth Conservative, Bromley and Chislehurst

I am tempted to say that that would almost be a reason for me not to support the Bill. I do not agree with the Human Rights Act. I have little time for the convention, which has long since passed its sell-by date and the Act is a mess and a monster that we shall all regret. However, for the sake of legislative consistency, I accept the point that my hon. and learned Friend makes. If, as he tells me, the measure will achieve the result of bringing us into compliance with the Human Rights Act—although I do not support the Act and have no interest in the human rights convention—I suppose, for that reason alone, that it is probably necessary for us to support this increasingly dreadful-looking little Bill.

All in all, none of us has any enthusiasm for the measure; we all regard it as an extremely regrettable necessity and for that reason, I suppose that we ought to let it go through. I hope that the lessons from it will have been learned, although I am not optimistic. One of these days, surely even the Labour Government, in the short time they have left to survive—although they gave themselves a little more life today—will learn that to do the job properly, to allow Parliament to do its job properly and to allow the Commons to scrutinise is not something to be avoided but to be welcomed. In the end, that is of benefit to the Government and, indeed, to the people of this country. However, I do not expect that lesson to be learned yet. It may be that the Government will have to lose an election before they are allowed to ponder those matters in opposition.

Photo of Mr David Lock Mr David Lock Parliamentary Secretary, Lord Chancellor's Department 5:57 pm, 2nd April 2001

With the leave of the House, I shall respond briefly to the debate.

I thank the hon. and learned Member for Harborough (Mr. Garnier) and the hon. Member for Torridge and West Devon (Mr. Burnett) for their support for the Bill. The hon. and learned Member for Harborough was fair. He made his usual criticisms. He said that repetition never made a good point better. I entirely agree, although as he has again demonstrated, it is capable of making a bad point worse. None the less, I am grateful for his support and that of the hon. Member for Torridge and West Devon. I hope that means that the House will not divide on Third Reading.

Question put and agreed to.

Bill accordingly read the Third time, and passed.