THE LORD Chancellor has made a historic climbdown over criticisms about his new powers in the Access to Justice Bill.
Lord Irvine's surprise concessions came on the first day of the Bill's committee hearings in the Lords. He accepted most of the recommendations of the Select Committee on Delegated Powers and Deregulation which recently attacked his “almost untrammelled powers” under the Bill (reported in The Lawyer 18 January).
Over 300 amendments to the Bill have been tabled – more than 60 by the Bar Council and Law Society – and although Lord Irvine so far accepts none wholesale, he apparently accepts that the Bill should express its purpose and that parliamentary scrutiny is needed on matters of “principle and substance which are of a major legislative character”.
His department, he says, will draft amendments reflecting the following principles:
The Lord Chancellor will be allowed minor intervention into the rules of bodies such as the Law Society and the Bar Council, only if he feels that their regulations unreasonably restrict rights of audience or rights to conduct litigation.
The purpose of the clauses covering rights of audience and rights to conduct litigation be set out.
A clause setting out the purpose of the Criminal Defence Service and the Community Legal Service be included.
The kind of directions the Government plans about the exercise of the Legal Service Commission's functions be outlined and, where appropriate, made subject to parliamentary approval.
The first draft of the Funding Code to require parliamentary approval and the “significant parts” of the final draft to receive parliamentary scrutiny.
The Bill should reflect a person's rights under the European Convention on Human Rights (a defendant's right to free legal assistance – under Article 6(3)(c) of the Convention – is already guaranteed by the Legal Aid Act 1988, says Lord Irvine, so further criteria are unnecessary).
Parliament's approval to be required if the Lord Chancellor wants to vary the interests of justice test in the context of criminal legal aid, or exercise his powers concerning immunity from costs for certain officers.
Lord Irvine says he will consider an amendment allowing people to be given reasons when turned down for legal aid.
Explaining his historic climbdown, Lord Irvine comments: “In almost 12 years in the House, I have spent too long listening to Government spokesmen who were obdurately insistent on adhering to their briefs, and who were unwilling to accept manifest improvements to Bills under consideration. I hope that I have said enough to satisfy your Lordships that that is, and will be, the opposite of my approach.”