§ The Lord President of the Council and Leader of the House of Commons (Mr. John Wakeham)
I beg to move,That the draft Lord Chancellor's Salary Order 1989, which was laid before this House on 14th March, be approved.The need for this order arises out of the link between the salaries of the Lord Chancellor and the Lord Chief Justice. The independent Top Salaries Review Body recommended in 1983 that the Lord Chancellor should be paid more than the Lord Chief Justice in recognition of his position as the head of the judiciary and of his wider responsibilities. The House accepted the principle of the TSRB recommendation, and has successively reaffirmed that with the approval of the Lord Chancellor's salary orders for the years 1984 to 1988.
An annual Lord Chancellor's salary order is necessary because the Lord Chief Justice's salary is set annually following the recommendations of the Top Salaries Review Body. This year the TSRB recommended a salary of £89,500 for the Lord Chief Justice—a 5 per cent. increase. The Government accepted that that figure be paid from the due date of 1 April 1989.
§ Mr. Dennis Skinner (Bolsover)
Is the Leader of the House quite sure that he has got all his Tory Back Benchers into line on this issue?
§ Mr. Skinner
Already, we have heard the first cuckoo.
Is the right hon. Gentleman aware that there has been a lot of talk in the corridors from Tory Members of Parliament, barristers and others in the legal profession, who are fuming with the current Lord Chancellor—on his big fat salary of £91,500 a year—for trying to introduce those new measures and upsetting their cosy little existence? How many votes does the right hon. Gentleman expect to get tonight if there is a Division?
§ Mr. Wakeham
I have been here long enough to know not to count the votes before a Division. I attended the debate in the House of Lords on Friday and I did not see the hon. Gentleman there.
§ Mr. Wakeham
I was in here, too, earlier on. The debate was a much more balanced affair than the hon. Gentleman might have thought.
The Lord Chancellor has a salary lead of £2,000. The House accepted this figure in 1983 and it has remained at that level since. Its real value has eroded since it was first established, but that is of little significance in itself and is not a valid reason for changing it. The lead exists because the Lord Chancellor is head of the judiciary, and that makes it right that an appropriate differential should exist between him and the Lord Chief Justice.
The order establishes the Lord Chancellor's salary at £91,500 from the day it comes into force. It cannot be made retrospective. The salary level derives directly from a TSRB report and embodies a principle established six years ago, which has been accepted by the House on six previous occasions. I hope that once again it will commend itself to the House this year.
I commend the order to the House.
§ Sir Nicholas Fairbairn (Perth and Kinross)
It may be appropriate for me to comment, as a member of the Scots Bar, about the salary of a Lord Chancellor who appears determined to make alterations to the structure of the law of England that I regard as devastatingly improper in relation to the benefit of the client in England. I feel that I can say so for two reasons. First, as it is not my Bar and it will not affect me, nobody can say, "He would say that, wouldn't he?" [HON. MEMBERS: "He would say that wouldn't he?"] Those hon. Members may know that there is a consultation paper in Scotland that does not make the proposals which have been made by the Lord Chancellor for the law in England.
I know that the Leader of the House listened to parts of the debate in the other place on Friday. Some of us also heard large parts of that debate, including the remarks of the Lord Chief Justice and the Master of the Rolls. Whatever their language, it was clear to those of us who listened that they did not take the view that the Scottish Lord Chancellor, as head of the English judiciary, had consulted them. From the language of the Lord Chief Justice's speech I should have thought that the order, which provides for the Lord Chancellor to receive a £2,000 lead over the Lord Chief Justice, might have been irked in the circumstances.
There are three matters that I will put before the House for its consideration. The first is the allegation in the proposals in the Green Paper entitledThe Work and Organisation of the Legal Profession.that the changes will make it cheaper for the client.
When the Lord Chancellor was dean of the Faculty of Advocates in Scotland it was suggested that the costs of divorce would be reduced if divorce were transferred from the exclusive right of audience in the Court of Session to the sheriff court. Costs have doubled.
The Green Paper says that barristers in England face the extraordinary difficulty of being unable to find chambers in the crowded facilities of the Inns of Court. The Lord Chancellor has a flat in the Inns of Court as well as a tithe cottage at the other end of this House.
Most important of all, if one removes from the people who have to go to law the right to choose a specialist one will not only remove the service that they should receive, but increase the price of that service. In addition, it will destroy what is most special about the difference between specialist advocates and general solicitors. The general solicitor has a symbolic relationship with his client whereas the relationship between the advocate and his client is singular and provides a service of excellence that is infinitely cheaper than would be the case were the system destroyed by the current proposals which have been poorly thought out. They are in contradistinction of the recommendations made by the Lord Chancellor when he was dean of the Faculty of Advocates which spoke of the essential requirement to keep the Bar intact and separate. I say that as a Scotsman. It is an ill-service to the law of England.
Opposition Members on the funny Benches frequently say that Scotland is being used as a guinea pig for the community charge. I do not like England being used as a guinea pig by a Scottish Lord Chancellor. If he wants freedom of choice and a legal profession that we can all afford, what about if he forgoes his salary until his case is proven?
§ Mr. Ivan Lawrence (Burton)
The question is: is the Lord Chancellor doing such a fine job that he deserves a salary increase? What a pity that we have only one and a half hours in which to discuss this extremely important matter, because I have enough to say on the subject to make the four and a half hour speech that I dedicated to trying to stop the poisoning of our drinking water by the addition of fluoride seem like the twinkling of an eye. It is also a pity that we have only this golden one and a half hours once a year to exercise any control—or at any rate, any influence—over the Lord Chancellor's discharge of his political duties.
By what criteria should we presume to judge whether the work of so eminent a legal luminary, so highly regarded a judicial figure, so well-admired and well-liked a political person, is worthy of the accolade that we are asked to give him tonight, expressed in the sordid terminology of money? May I have the temerity to suggest a test? Is the Lord Chancellor going to improve the legal system of the United Kingdom so that it will better serve the people—not the lawyers—of Britain? Is he making the legal system cheaper and more accessible for the consumer? Will it be a service of higher quality for the consumer?
By these criteria, sadly I have to conclude that many people who know and understand these matters are by no means convinced that—however good, honourable and well-intentioned a man, however brilliant a Scottish lawyer and judge he may have been, however eminent and well loved he undoubtedly is to anyone who has been privileged to know him personally in his work—the Lord Chancellor is the wrong man for this salary at this time.
No other Lord Chancellor in living memory, perhaps in our history, has succeeded in antagonising almost the entire legal profession throughout the land. Has there ever been a debate in the House of Lords, on a Friday of all days, in which 56 of their Lordships rose—nearly all of them in anger—at his well-meaning but destructive proposals? They will pull up by the roots the legal profession as we know it, which—for all its faults—still works reasonably well and is the envy of the civilised world.
Are all the greatest legal minds of the land incensed for no reason? These include the Lord Chief Justice of England, two former Lord Chancellors, the Master of the Rolls, all nine Law Lords and a most distinguished former Attorney-General who threatened to resign the Conservative Whip. There is also an impressive list of non-lawyer luminaries—many from the Opposition side —including Lord Benson, chairman of the recent royal commission on legal services, Lord Rees-Mogg, the former editor of The Times, who felt so strongly that he used his maiden speech to speak against the proposals, Lord Murray of Epping Forest and Lord Longford. That is a long list of unquestioned authority and influence from Opposition as well as Conservative Benches and outside Parliament are the——
§ Mr. Lawrence
I shall give way in a moment. Outside Parliament are the High Court and circuit judges, and most of the Bar.
692 None of the people in the House of Lords have the slightest financial interest in seeing the proposals defeated and cannot conceivably be said to be speaking in self-interest. It is a great achievement for the Lord Chancellor to have set so many of the people in the land who are best qualified through experience and judgment to assess the likely effects of the proposals against the Government and against their proposals for legal reform.
§ Mr. Wareing
Does the hon. and learned Gentleman agree that what distinguishes the Lord Chancellor from all the other people he has mentioned is that the Lord Chancellor was chosen by the Prime Minister, and that none of the present Government of yes men and women would defy her? If the hon. and learned Gentleman is suggesting that the Lord Chancellor's salary should be decreased, at least in real terms, should not the same be done to the Prime Minister's salary? Should not the hon. and learned Gentleman direct his wrath against the Prime Minister and the Government, who consult no one?
§ Mr. Lawrence
If I raised my wrath against the Prime Minister, I would be called out of order would I not, Madam Deputy Speaker?—as this is a debate about the Lord Chancellor's salary. Since I have no complaint to make about our excellent Prime Minister, who, in every field of her endeavour as leader of the ——
§ Madam Deputy Speaker (Miss Betty Boothroyd)
Order. The hon. and learned Gentleman is now being called to order. He is straying from the point.
§ Mr. Lawrence
It is only out of deference to your ruling, Madam Deputy Speaker, that I forbear from dwelling even longer on the achievements of our Prime Minister, the great leader of the country, who, in the——
§ Madam Deputy Speaker
Order. I have called the hon. and learned Gentleman to order. I am sure that he will contain himself now and speak to the order before us.
§ Mr. Lawrence
In the matter of the Lord Chancellor's salary, my right hon. Friend is making her first-ever error.
There are many reasons why the three Green Papers have been so angrily attacked. There are constitutional reasons and reasons of principle. I want to mention one particular sort of harm that will be done—the harm to the ordinary consumer of legal services. The claim that these proposals will be consumer-friendly is about as absurd as the claim that the salmonella scare will boost the sale of eggs.
Let us consider the cost of legal services under the proposals. If a young man or woman wants to leave university and go into the legal profession now, he or she has the choice of going to the Bar, which will be slow in yielding its returns but which in due course will give the right of audience to the higher courts, the right to become a Queen's Counsel, and the right to become a High Court judge. If the proposals go through, the graduate wanting to enter the legal profession will find all those advantages in becoming a solicitor, because the solicitor will have the right of audience in the higher courts, the right to become a Queen's Counsel and the right to become a High Court judge.
On top of that, the graduate will be able, if he joins a solicitor's firm, to be guaranteed a pension, holidays with pay, a car, steady work and a roof over his head—the kind of attractions which the Bar does not offer. In those 693 circumstances, who in his right mind would choose the risks of the Bar in preference to the absence of risk involved in joining a solicitors' firm? Almost every graduate in his right mind will choose to become a solicitor, and very few—there may be some—will prefer the misery of going to the Bar to the luxury of becoming a solicitor. If such people want to become advocates, they will become solicitor advocates, and the supply of barristers of the independent Bar will dry up.
At the other end of the profession, there are people at the Bar who have spent 20 or 30 years running around Britain. They are the people who have to wait for two, three or four weeks for another case to come on stream after the case in which they were involved has collapsed. They would leap at the offer of an advocate solicitorship with a leading firm in the City with all the luxuries and the assurance of the steady income that would accrue. At that end of the profession the Bar would be depleted.
At the end of the day fewer people will come to the Bar, there will be fewer people at the top and a much smaller independent Bar. Anyone who wants to be represented by a Marshall Hall or by my hon. and learned Friend the Member for Perth and Kinross (Sir N. Fairbairn) can go to the cab rank. People can go to the wonderful firm of solicitors of my hon. Friend the Member for Dorset, North (Mr. Baker). Someone seeking legal services can instruct my hon. and learned Friend the Member for Perth and Kinross and will get the best barrister in the land instructed by the best solicitor in the land.
But if my hon. and learned Friend the Member for Perth and Kinross decided to join the firm of my hon. Friend the Member for Dorset, North, people who need the services of a barrister would have to go to that firm in London to get his specific representation in court. The cab rank principle will disappear, one of the achievements of the British Bar and the British legal system will be diminished, and the consumer will suffer.
If there is a smaller cab rank and the number of independent barristers is reduced, what will happen to the provincial solicitor? I am talking about the small two or three-man firm in the country areas—most of the areas of Britain. Most of our constituents employ small country solicitors who cannot afford to have an advocate partner but instruct barristers to represent the interests of their clients in the most effective and efficient way. If there is no cab rank and those solicitors cannot make a living because their conveyancing work has all gone to estate agents, building societies and finance houses in the high street, they will close down and go to the big towns and cities to make a living.
The smaller consumer who wants to seek legal advice from a solicitor in a small town will not be able to find one and will have to go to the big towns and cities and pay big city prices. If that is one of the likely results of the Green Papers, who will suffer because of the lack of legal advice and legal services, not just from the Bar but from solicitors? The ordinary consumer, the person who sends us to this House and expects us to vote for salary increases for Lord Chancellors who will improve legal services, will suffer.
There is also the matter of quality. I accept that solicitors are inherently as capable as barristers. However, they are not specialists and they are not trained in court 694 work in the way that barristers are. They are unlikely to do the job as efficiently as barristers. Most of our solicitors deal with divorces, wills and conveyancing and with many kinds of problems, some of which are referred to us in our surgeries. Now and again they go to court and are expected to conduct an adequate defence of someone charged with rape, with running someone down or with killing a citizen through dangerous driving. If they are not doing that kind of work all the time, of course they are not as skilled.
I understand the points about monopoly and restrictive practices. We have a parallel in the medical profession. We would not expect the general practitioner who is advising Mrs. Bloggins about her cold, her varicose veins, her limp, her tiredness—a thousand different ills—to turn up and do a heart-lung transplant. We would, however, expect a surgeon who does heart-lung transplants, hip operations or lip operations day in, day out to be a skilled operator.
We do not say, "Let us abolish the rank of consultant" or "Let us abolish the rank of surgeon" because the general practitioner is as able as any surgeon or consultant to operate or give detailed advice. That would be nonsense, and we should adopt the same approach to solicitors and banisters. The barrister is the surgeon who operates in court; the barrister is the consultant. The solicitor is the general practitioner. That is the system which the Lord Chancellor is seeking to overthrow, and that is the reason why we should seriously consider whether his salary ought to be paid at all, let alone increased.
§ Mr. David Martin (Portsmouth, South)
Can my hon. and learned Friend explain why in Truro and Barnstaple rights of audience are already equal for solicitors and barristers? Are people in those areas getting a poor service from solicitors?
§ Madam Deputy Speaker
Order. I should be obliged if the hon. and learned Gentleman would not go down that path. The scope of the debate is very narrow. May I remind the House that it should be addressed to the merits of the increased salary levels specified in the draft order?
§ Mr. Lawrence
Solicitors do not operate the same code as barristers. Solicitors take statements from——
§ Madam Deputy Speaker
Order. I have called the attention of the hon. and learned Gentleman to the scope of the debate. I am sure that he will not ignore guidelines from the Chair.
§ Mr. Lawrence
I have those guidelines constantly in mind, Madam Deputy Speaker, but to save time I will not repeat them every time I start a new sentence. I am saying that any changes in the visiting system whereby solicitors can take statements from witnesses and barristers cannot —which means that the present way of conducting criminal trials in particular is the best way of achieving high quality and high representation—should not be changed by the Lord Chancellor. When we decide whether his salary is appropriate, we must give that matter consideration.
Barristers are forbidden to take statements directly from witnesses. If a solicitor were able to appear in the higher court and take statements directly from witnesses, the temptation to tarnish the purity of a legal system, 695 which means that the integrity with which we conduct our criminal trials is of the highest, is a risk simply not worth taking.
A ruthless professional code maintains the integrity of our Bar. The barrister is watched by the solicitor, and by the judge; he dare not do anything wrong. But no one will know whether the high street solicitor who is taking a statement from the witness is doing wrong or right.
The integrity of that aspect of the system has nothing to do with the inherent integrity of a barrister and that of a solicitor, but everything to do with a system that encourages the right approach; and that system is under threat. The professionals—the judges in their Lordships' House—know the dangers of the proposed changes.
Many things are wrong with the legal system. Much could be done to improve it, but tearing the legal profession up by the roots will not solve any of the problems that face our constituents as consumers. They want greater access to legal aid, and to be able to go to a court on a particular day for a particular case and be sure that it will come on. If we want to achieve that, we need computers everywhere, and we need to make sure that the Lord Chancellor's office improves the administration of our courts. Those are the solutions to the problems that concern our people.
Nothing that is suggested in the Green Papers—whether it is replacing the system of payment by a win at all costs proposal, or stripping conveyancing away from the country solicitors so that they are no longer available, or taking away the independence of the Bar by shrinking it so that it is not available or is available only at increased costs, because those costs have to include pensions, overheads, holidays with pay and a car—will set right what is wrong with our legal system.
Because the Lord Chancellor is proposing destructive measures rather than such constructive measures as the extension of the legal aid system to those who need it or the improvement of the administration of our courts, I invite my colleagues on both sides of the House to consider carefully whether this is not the moment to show the Lord Chancellor that we are not as enthusiastic about his Green Papers as he appears to be. He is so enthusiastic that precious little time is being given for consultation——
§ Madam Deputy Speaker
Order. This is the third time that I have got to my feet to remind the hon. and learned Gentleman that this is not a debate on the Green Papers. For the third time, I am telling him that he must contain himself and speak to the order before us, and not stray from it.
§ Mr. Lawrence
The order concerns an increase in the salary of the Lord Chancellor. If he is making proposals that will make legal services less available to the consumers and at a higher cost and lower quality, surely we are able to say that he ought not to be entitled to this increase in salary, and so I say.
§ Madam Deputy Speaker
Order. Not in this debate. The hon. and learned Gentleman has made an extensive speech, and covered a great deal of ground. Other hon. Members wish to speak, so I should be glad if he would refer to the order.
§ Mr. Bob Cryer (Bradford, South)
The hon. and learned Member for Burton (Mr. Lawrence) will have an opportunity to vote against the order, and it will be interesting to see what action he and other barristers in the House take.
I am not opposed to the order on the ground that the activities of the Lord Chancellor are necessarily wrong. I do not share the view of the vested interest expressed by the hon. and learned Gentleman. I am opposed to it because it proposes a salary of £91,500 for an individual, which is far too much. It demonstrates the massive inequality in our society when one bears in mind that, about 12 months ago, the House passed orders cutting housing benefit and income support, and that child benefit has been frozen for two years. Someone who has the patronage of the Prime Minister, who has been endorsed and appointed by the Prime Minister, is to be given such a salary because there must be a differential of £2,000 over the salary of the Lord Chief Justice. What a load of nonsense it is to the millions of people who are suffering under this Government because of cuts in a wide range of supplementary benefits, and because pensioners were so badly hit by the cuts——
§ Madam Deputy Speaker
Order. I shall call any hon. Member to order, whether he speaks from the Government or the Opposition Benches, if he or she strays. I ask the hon. Member for Bradford, South (Mr. Cryer) to confine himself to the order that is before the House, which concerns the merits of the proposed increase for the Lord Chancellor.
§ Mr. Cryer
I am getting back my breath after hearing the rude noises that have come from the hon. Member for Lancaster (Dame E. Kellett-Bowman), who has been shouting at you, Madam Deputy Speaker, in what I would describe as an undignified way. I would like to defend you against these incursions, Madam Deputy Speaker.
§ Dame Elaine Kellett-Bowman
May I say with respect, Madam Deputy Speaker, that, while you were quite properly speaking to the Clerk, I was seeking to draw attention to the fact that the hon. Member for Bradford, South (Mr. Cryer) was straying vastly from the point? That is what I was seeking to bring to your notice, Madam Deputy Speaker.
§ Mr. Cryer
I was seeking to clarify your useful ruling, Madam Deputy Speaker, by referring to the massive inequalities that are imposed on the poorest of our people by the Government. That can he referred to in passing by way of explanation. Having done so, I wish only to say that the Lord Chancellor is not worth £91,500. It is an outrage and a disgrace that anyone who secured his job through patronage should be paid such a sum. The Lord Chancellor's job was not advertised and he did not go through the interview process to which ordinary people have to subject themselves. It is because he happens to 697 have the beneficial eye of the Prime Minister upon him that it is proposed to pay a massive sum to keep him ahead of the salary of the Lord Chief Justice. That shows to ordinary people that we are engaged in the economics of the mad house.
I propose to divide the House on the order when the Question is put. All those, including the hon. and learned Member for Burton, who wish to vote against it will have that opportunity. We shall see what the outcome is.
§ Mr. Ivor Stanbrook (Orpington)
It would be wrong and deplorable if it were thought by the public that the sentiments of the Bar were adequately conveyed by the remarks of my hon. and learned Friend the Member for Burton (Mr. Lawrence). Many members of the Bar support what the Lord Chancellor is attempting to do.
I have been a member of the English Bar for nearly 30 years during which time there have been five or six Lord Chancellors. Every one of them until the present one has sat on proposals for reform. The Bar knows that reform is urgent and that its privileges rather than its excellence sustain its position and status in society. As time has passed that has become increasingly the position. The only thing that should guarantee the status of the independent Bar of England is its quality and its excellence. It does not need the artificial privileges which it has secured over the years because of the way in which it has been able to persuade Lord Chancellors and other judges.
It is said by those such as my hon. and learned Friend the Member for Burton that the Bar is opposed to the Lord Chancellor and what he wishes to do by way of reform. The present Lord Chancellor came to us like a breath of fresh air in a fetid atmosphere. He is proposing to do something which previous Lord Chancellors have not had the courage to do. He is worth every penny of the proposed increase.
§ Mr. Alex Carlile (Montgomery)
Before the Lord Chancellor can be worth an increase in salary, he should put his house in order. I am speaking not about anything to do with the legal profession but about the processes of the courts and of the Lord Chancellor's Department.
The legal profession is sometimes accused, rightly—usually the blame falls on solicitors—of holding up the process of justice. However, many of the most worrying delays in that process are caused in the courts administered by the Lord Chancellor. For example, a constituent of mine, a boy with no previous convictions aged about 19, was convicted of an offence of arson. He applied for leave to appeal against his sentence, which was 15 months youth custody. By the time his application for leave to appeal had been rejected in what is not much more than a paper procedure carried out by a single judge, he was one month from his parole. It is unforgiveable that such delays should exist in the administration of justice.
I shall give another example of why, before tearing the profession apart, the Lord Chancellor should rip up some of his procedures in his Department and the courts and start again. In most magistrates courts, because of the blockage of work, both an accused person who chooses, as is his right, to have contested committal proceedings in a 698 criminal case, and the prosecution—they are affected equally—will have to wait months for the proceedings to take place.
What are the consequences? Every case that comes before a jury depends on a question something like, "Who killed Cock Robin?" Who was standing at the bus stop at half-past five on the afternoon in question? Who signed the document in question? What was in his mind at that time? It all depends on the credibility of witnesses. If these cases have to linger before they are heard, how can juries be expected to make reliable judgments on the credibility of witnesses?
The Lord Chancellor's salary, like, apparently, the salaries of everyone else at which the Government look closely, should be related in some way to his Department's efficiency and performance. Despite the considerable efforts of the Lord Chief Justice, the Master of the Rolls, Lord Justice Watkins and the judge in charge of the civil lists to hasten proceedings, the efficiency of the Lord Chancellor's Department as expressed through the speed of the courts is not very good and certainly does not justify such a large increase in salary.
The Lord Chancellor's aim, and presumably the justification for increasing his salary, on the ground that he is becoming more effective, is to make the law more accessible to the consumer. The hon. and learned Member for Burton (Mr. Lawrence) started on an interesting little list when he was talking about the provincial solicitor. He said that the provincial solicitor advises the consumer on all sorts of matters—I think that the hon. and learned Gentleman mentioned probate, matrimonial law, conveyancing——
§ Mr. Carlile
Matrimonial law includes divorce. It is a long time since the hon. and learned Gentleman did a divorce case.
Then the hon. and learned Gentleman ran out of subjects. He did so because the Lord Chancellor in his Government is failing in the most obvious method of bringing the law closer to the consumer. The consumer should be able to obtain a solicitor's advice if he is sacked from his job and wants to go to an industrial tribunal. The consumer should be able to obtain a solicitor's advice freely if he has problems with the Department of Social Security. Those are just two examples.
The consumer should be entitled to legal aid if he has been defamed. We can test the Lord Chancellor's efficiency by the accessibility to the courts that he is giving the ordinary consumer. An obvious way of achieving that, which would earn him a much bigger increase in salary, would be to change the mingy legal regulations that the Government are imposing, rather than tearing up the professions.
§ Sir Nicholas Fairbairn
I do not wish to stray from the matter, but I must point out that legal aid provisions are nothing to do with the Lord Chancellor's Department. Matrimonial law is to do with the law of marriage and children and the law of divorce is called consistorial law.
§ Mr. Carlile
The Lord Chancellor's efficiency is apparently being judged by his own lights, in the accessibility to the law that he gives to the consumer.
Now let us assume for a moment that the Green Papers are turned into legislation in some way in the next Session.
699 Despite what I have said so far, in that event it seems that the Lord Chancellor will be given far too small a salary increase. If the Green Papers become law, he should be given far more; for look at the extra burden that he is taking upon himself. He is taking control of the ethics of the legal profession. No Government in the history of the country—apart for the Government of Oliver Cromwell, if they merit the name Government—have sought to take control of the ethics of the legal profession. If the Lord Chancellor is to take that responsibility on himself and if the Government intend to destroy the independence of the Bar and other advocates by telling the profession what its professional ethics should be, he probably merits £10,000 more a year in his salary for the extra responsibility involved.
I venture to suggest that when there has been mature reflection, the Government and the Lord Chancellor—who is a thoughtful man—will decide that it would be a dangerous step for the Government to dictate to lawyers whether, for example, they can cross-examine police officers, or whether they will be able to exercise the independence shown in the constituency of the hon. Member for Bolsover (Mr. Skinner) during the miners' strike, as independence that barristers exercised so effectively in cases concerning miners. The hon. Gentleman knows that well.
§ Mr. Carlile
I can name barristers who stood for the independence of the people whom his union supported in the miners' strike—such as Ms. Lang, a member of my chambers—and who supported by their independent advocacy the miners of his constituency. If the Government take over the professional ethical code of lawyers——
§ Mr. Carlile
I may give way to the hon. Gentleman if he shows some evidence of listening. If the Government take over the professional ethics of barristers, that is one step down the road of tyranny. It may be a tyranny that the hon. Gentleman's brand of Socialism will welcome. I am very suspicious about it and I am surprised that real Tories are willing to go down that road.
§ Mr. Skinner
There used to be a story, which the hon. and learned Gentleman destroyed tonight, if it had not already been destroyed, that members of the old Liberal party were radicals, or "wadicals" as "Woy" used to call them. The hon. and learned Gentleman now says that it is all right to hammer the dockers and every working class group in England but that the lawyers must be left alone.
§ Dame Elaine Kellett-Bowman
On a point of order, Madam Deputy Speaker. What have the dockers to do with the Lord Chancellor's salary?
§ Mr. Carlile
I do not think that I mentioned the dockers, but let me clarify what I am saying to the hon. Member for Bolsover. It is important to leave the independence of lawyers alone and not to take them under Government control.
There is another reason why the Lord Chancellor may need an increase in salary. His job as a judge will be that much more difficult. The proposals in the Green Paper would entitle lawyers to full advocacy certificates not on the basis of their competence there would be no test of competence—but because they had stood up in court and done a given number of a particular type of case, however, badly. That is what the Green Paper amounts to: there is no quality control whatever. Judges in this country—the Lord Chancellor earns his salary as a judge, the head of the judiciary—depend upon receiving guidance as to the applicable law from those appearing in front of them. If the quality of those appearing in front of them is not as rigorously controlled, both by competence and the market, as it is at the moment, we shall have a judiciary that is embattled, oversized and probably therefore less competent. The Lord Chancellor's budget will increase exponentially and that, I suppose, will force us to recognise, on that cynical basis, that he will have to be given an increase in salary.
I trust in what we heard from the Lord Chancellor in the other place last Friday, that if there is to be legislation in the next Session, careful consideration will be given to all the points put before him. If he is to be worth the salary that will, no doubt, be voted to him tonight, he must pay careful attention to those points and, above all other things, to the independence of the law.
§ 12.3 am
§ Mr. Tim Devlin (Stockton, South)
I feel compelled to speak because of what I have heard from other barristers on both sides of the House.
I shall support the order increasing the Lord Chancellor's salary, although I fully agree with the hon. and learned Member for Montgomery (Mr. Carlile) that there are failings in the Lord Chancellor's Department. I shall support the increase because the present Lord Chancellor is the first since the 1980s to make the people and the legal profession respectively sit up and think about what they want from the profession and how consumers' needs can best be met.
One important point seems to have been overlooked in the debate. The Lord Chancellor merits his salary because he has written three excellent Green Papers. I hasten to add that they are all green, which means that they are all being consulted upon. It can only be a welcome development for this country to discuss what we expect from our lawyers and how they ought to deliver their services.
There are many ways in which the present legal system is inadequate. Access to the Bar is at present pitifully small. When I was a young barrister—no, I am still a young barrister. When I was training there were 113 people on my course, but a mere 23 got pupillage. Of those, only four got chambers and those four were sons of judges or banisters who were already in Chambers. We must look at the way in which access to the Bar is awarded. It would be most welcome if people could become solicitors more easily and compete with those whom the 701 Bar has selected as being the most appropriate people, so that those who are the best advocates can represent the public.
Much has been said about the Lord Chancellor not meriting his salary because of the effect of the Green Papers on the Bar. But why is it expected that the Bar will disappear? Have we no confidence in our Bar and in its containing the finest legal professionals available?
About 80 per cent. of solicitors in this country are in partnerships of fewer than four people. All those solicitors, throughout the country, will need specialists on whom they can call, so there will be a market for the Bar. Why, therefore, is it assumed that all the barristers will be snapped up by big firms in the City? Large firms such as Coward Chance have already said that they are not interested in entertaining the prima donnas of the Bar. They are not interested in paying the sort of salaries that those at the top of the specialist Bar want to command and they are not interested in recruiting those who are not specialists.
The most important thing about the proposals in the Lord Chancellor's Green Papers has been the welcome fact that for the first time we are talking about the legal system meeting the needs of the consumer. Until recently the word "consumer" never appeared in the legal profession, but surely the whole system should be pointed towards the consumer. Many consumers who come to my surgeries seem to think that the legal process in this country is a lottery in which only the rich or the most determined take part, and I think that they are absolutely right. I hear nothing from my constituents about the legal system, apart from the fact that it is uncertain and that it takes a long time.
Most ordinary people do not think that the present legal system with its two tiers of solicitors and barristers is meeting their real needs in the best and most appropriate way. We all know that at the junior end of the Bar the consumer is being asked to pay for a two-tier system but is taking delivery of only one tier. When we are instructed to appear in the market towns of England we are given a piece of paper with perhaps little more on it than a chap's name, and we are expected to do what used to be called a "dock brief'—in other words, to find out what the case is about, do the necessary and send the brief back with a suitable fee on it. That is not what the consumer deserves and it is not what the consumer should have. That is why the Lord Chancellor's Green Papers are welcome.
§ Sir Nicholas Fairbairn
I am horrified that the law of England still has barristers who, without proper instructions, nevertheless appear for clients, which is in contradiction of their duty. I trust that my hon. Friend never has.
I am interested to know whether my hon. Friend receives complaints about the legal profession at his surgery, as I frequently do at mine, and how many he has had from people who feel that they have been let down by a member of the Bar and how many from people who think that they have been let down by solicitors, who will be all that they have if the reforms are passed.
§ Mr. Devlin
With the greatest respect, the cases that I have seen are roughly half and half, which is sad.
§ Mr. Devlin
It may be unbelievable to hon. Members in various parts of the House, but the fact is that there are complaints about barristers and complaints about solicitors—perhaps more about solicitors. People do not see the present system as delivering the services that they need.
The Lord Chancellor deserves his salary because he sat down and thought carefully about the future of the Bar. He has made the barristers respond. He has made them think out some good reasons for carrying on in the way that they do. It is very interesting to note, in the Bar's response to the Green Papers, that it is now putting forward a plan for a wonderful new scheme under which a barrister will have to take the next brief, regardless of whether it is a legal aid case, provided that it is within his area of speciality. One Left-wing barrister wrote to me saying how welcome that was. When I was at Bar school —not many years ago—I was told that that rule existed already; it was called the cab-rank rule.
It is about time that we looked carefully at our legal profession. The Green Papers have opened a welcome debate, and in that respect by itself the Lord Chancellor merits his salary.
§ Mr. Alan Williams (Swansea, West)
May I say to the hon. Member for Stockton, South (Mr. Devlin) that, after 25 years of dealing with constituency cases, I do not pretend to have a statistical breakdown of the grievances against solicitors and the grievances against barristers. However—and in this respect the hon. Gentleman is right —a point of difference occurs to me immediately: most people making complaints against solicitors turn up at my surgery, whereas those making complaints against barristers normally correspond by letter, by courtesy of Her Majesty.
The first two speeches in the debate—those of the hon. and learned Member for Perth and Kinross (Sir N. Fairbairn) and of the hon. and learned Member for Burton (Mr. Lawrence)—gave very different perceptions of the Bar. The hon. and learned Member for Perth and Kinross gave the perspective north of the border. We recognise his particular knowledge and experience there. All that I as a Welshman can say is that I am overjoyed at the thought that a fellow Celt will do a bit better out of the system than perhaps his predecessor managed to do, though both of them seem to be doing pretty well.
I know that the speech of the hon. and learned Member for Burton was intended to be dispassionate and objective. That is why he did not declare an interest. Perhaps it is well that we have a special exemption for lawyers during the next couple of months, because it would take up too much of the time of this House if every lawyer speaking had to declare his interest before getting down to what he wanted to say. There is quite a substantial built-in lobby in the House. However, I watched the departures, and, having heard the hon. and learned Gentleman make his case, and having watched that case gradually disappear, I became increasingly convinced of the irrelevance of barristers in a successful court case. I started off far more sympathetic to the cause that I think the hon. and learned Gentleman was advocating than I was by the time he had finished his advocacy. Indeed, he put forward some rather novel propositions. I had to pass a tissue to my hon. Friend the Member for Bolsover (Mr. Skinner) when the hon. and 703 learned Gentleman was talking about all the poor barristers who will be homeless. The solicitors will have roofs over their heads, and they can have cars, but the poor barristers will be under the arches.
§ Mr. Lawrence
The hon. Gentleman has missed the point. The point is that, under these Green Paper proposals, the cost of a barrister will rise to pay for overheads—cars, pensions, holidays with pay—so that the cost to consumers will rise. The barristers will be in clover because they will be working for firms of solicitors, with steady, substantial incomes guaranteed against inflation. That is the point. It is much more in our personal interests to have the Green Papers than not to have them, but it is in the interests of the country not to have them.
§ Mr. Williams
I congratulate the hon. and learned Gentleman on the fact that he managed to convey, in his second presentation of his case, a degree of clarity that he failed to achieve in his first presentation. Indeed, on the first occasion he became so preposterous that he could even envisage a situation in which someone would ask for the assistance of the hon. and learned Member for Perth and Kinross before the courts. I should have thought that that was self-evidently irrelevant, in that such a person could get off on the grounds of diminished responsibility.
The basic proposition of the hon. and learned Member for Burton was strange. He said that the Lord Chancellor should not have an increase in salary because he was upsetting the legal profession. I hope that tomorrow when my hon. Friends the Members for Bolsover and for Bradford, South (Mr. Cryer), always aware of the mood of the House, table a motion that the Secretary of State for Health should have a reduction in salary because he is upsetting the doctors and a motion that the Secretary of State for Education and Science should have a reduction in salary because he is upsetting the teachers the hon. and learned Gentleman will be the third person to sign them.
There will not be an official Division on this issue, but we are an independent-minded party. The Lord Chancellor has been berated by his honourable colleagues because he is trying to attack the restrictive practices in his profession. In the 1970s a commission was set up to look into restrictive practices in the legal profession. It is recorded in the minutes that the secretary of the Law Society came before it and said that all the restrictive practices were in the public interest. Imagine if the National Union of Mineworkers or the Transport and General Workers Union put forward such an outrageous proposition.
The Lord Chancellor deserves some credit for opening up issues that need to be discussed. At least he has opened a public debate, not one in a closed group or for a small select commission. We all have a right and an opportunity to take part. We shall be convinced even further of his genuineness if he now gets rid of another restrictive practice, the strange one that we are debating here tonight.
There seems to be no logic whatever to defend the principle that the Lord Chancellor should have £2,000 more than the head of the judiciary, the Lord Chief Justice. The argument is that it is necessary because he is the head of the legal system. The Prime Minister is head of the Civil 704 Service, yet she receives £21,000 less than the permanent secretary, or the official head of the Civil Service. The Secretary of State for Defence is the ultimate decision-taker for the military services, yet he receives £34,000 less than the Chief of the Defence Staff. Any Secretary of State receives far less than his permanent secretary. Where, then, is the logic?
I remember when I was Minister of State at the Department of Prices and Consumer Protection and the head of my private office was leaving. The morning he was leaving he said, "I have not dared tell you previously, but tomorrow, when I take up my new job as a senior principal, I will be receiving £600 a year more than you are receiving as Minister of State."
§ Mr. David Ashby (Leicestershire, North-West)
The hon. Gentleman is right. The Secretary of State for Defence does not lead the troops in battle, but the Lord Chancellor sits as a judge. Is the hon. Gentleman aware of that? He is a judge and assists as a judge in the House of Lords.
§ Mr. Williams
I do not remember—perhaps the hon. Gentleman will remind me—when the Chief of the Defence Staff has led any troops into battle. The moment that the hon. Gentleman can convince me that that is the case I will concede that he has made a point. It is absurd that the Lord Chancellor receives £37,000 more than the Speaker of the House, who also has responsibilities—within his salary payment—as a Member of Parliament.
§ Mr. Williams
The fringe benefits are considerable, but one can do even better if one is a failed Chancellor of the Exchequer.
§ Mr. Williams
That is right. There is another one in line. The City of London pays them very well and, indeed, ex-Secretaries of Defence. Lazards could not get its hands on one quickly enough.
§ Sir Nicholas Fairbairn
As the hon. Gentleman probably wants an answer to his question, I can tell him that I believe that the last Chief of the Defence Staff to lead his troops into battle was Butcher Cumberland, who did us such harm in Scotland.
§ Mr. Williams
In that case, I think that the hon. and learned Gentleman will concede that the argument put forward by his hon. Friend the Member for Leicestershire, North-West (Mr. Ashby) hardly has much relevance in today's circumstances.
Several hon. Members have referred to the question of relating the pay to productivity and performance. No one will pretend that there is an easy measure, but let us look at the simple fact that in the past five years—since December 1983—the Lord Chancellor, with this increase, will have received increases in his salary of 56 per cent., 11 per cent. a year. We all know that throughout that time the conditions in our prisons, especially of remand prisoners, have been getting worse and the delays in having cases dealt with have been getting longer.
705 Until last year the explanatory note used to contain the following sentence:The salary quoted represents a maximum and may not be the actual salary claimed.In other words, some previous Lord Chancellors did not claim their full salary. I believe that, in the mood of the Lord Chancellor's proposals for a complete review of the restrictive practices within the legal profession, it would be suitable for this Lord Chancellor to say that he, too, would not accept, even though it has been granted—as his predecessors reserved the right to say—the increase until the waiting lists have been eliminated.
§ Question put:—
§ The House divided:Ayes 110, Noes 7.706
|Division No. 152]||[12.22 am|
|Amess, David||Chope, Christopher|
|Amos, Alan||Coombs, Anthony (Wyre F'rest)|
|Arbuthnot, James||Coombs, Simon (Swindon)|
|Arnold, Jacques (Gravesham)||Cran, James|
|Ashby, David||Davies, Q. (Stamf'd & Spald'g)|
|Atkinson, David||Day, Stephen|
|Baker, Rt Hon K. (Mole Valley)||Devlin, Tim|
|Baldry, Tony||Dorrell, Stephen|
|Batiste, Spencer||Dover, Den|
|Bennett, Nicholas (Pembroke)||Durant, Tony|
|Boswell, Tim||Fallon, Michael|
|Bowis, John||Favell, Tony|
|Brandon-Bravo, Martin||Fearn, Ronald|
|Brazier, Julian||Fishburn, John Dudley|
|Bright, Graham||Forman, Nigel|
|Brooke, Rt Hon Peter||Freeman, Roger|
|Buck, Sir Antony||Gale, Roger|
|Burns, Simon||Garel-Jones, Tristan|
|Burt, Alistair||Gill, Christopher|
|Butterfill, John||Glyn, Dr Alan|
|Campbell, Menzies (Fife NE)||Greenway, John (Ryedale)|
|Carlile, Alex (Mont'g)||Gregory, Conal|
|Carrington, Matthew||Griffiths, Sir Eldon (Bury St E')|
|Chapman, Sydney||Griffiths, Peter (Portsmouth N)|
|Hague, William||Neubert, Michael|
|Hamilton, Neil (Tatton)||Newton, Rt Hon Tony|
|Hanley, Jeremy||Nicholls, Patrick|
|Hargreaves, Ken (Hyndburn)||Nicholson, David (Taunton)|
|Harris, David||Oppenheim, Phillip|
|Hayward, Robert||Paice, James|
|Heathcoat-Amory, David||Porter, David (Waveney)|
|Howarth, G. (Cannock & B'wd)||Powell, William (Corby)|
|Hughes, Robert G. (Harrow W)||Raffan, Keith|
|Hunt, David (Wirral W)||Rathbone, Tim|
|Hunt, John (Ravensbourne)||Redwood, John|
|Hunter, Andrew||Rost, Peter|
|Irvine, Michael||Ryder, Richard|
|Jack, Michael||Sackville, Hon Tom|
|King, Roger (B'ham N'thfield)||Shaw, David (Dover)|
|Latham, Michael||Shaw, Sir Michael (Scarb')|
|Lightbown, David||Smith, Tim (Beaconsfield)|
|Lilley, Peter||Spicer, Michael (S Worcs)|
|Lord, Michael||Stanbrook, Ivor|
|Lyell, Sir Nicholas||Stern, Michael|
|MacGregor, Rt Hon John||Stevens, Lewis|
|Maclean, David||Stradling Thomas, Sir John|
|McLoughlin, Patrick||Summerson, Hugo|
|McNair-Wilson, Sir Michael||Taylor, Ian (Esher)|
|Mans, Keith||Taylor, John M (Solihull)|
|Martin, David (Portsmouth S)||Thurnham, Peter|
|Mates, Michael||Waddington, Rt Hon David|
|Mayhew, Rt Hon Sir Patrick||Wakeham, Rt Hon John|
|Miller, Sir Hal||Widdecombe, Ann|
|Mitchell, Andrew (Gedling)||Tellers for the Ayes:|
|Mitchell, Sir David||Mr. Alan Howarth and Mr. Kenneth Carlisle.|
|Moynihan, Hon Colin|
|Barnes, Harry (Derbyshire NE)||Wareing, Robert N.|
|Hughes, John (Coventry NE)|
|Lewis, Terry||Tellers for the Noes:|
|McAvoy, Thomas||Mr. Bob Cryer and Mr. Dennis Skiner.|
|McKay, Allen (Barnsley West)|
§ Question accordingly agreed to.
That the draft Lord Chancellor's Salary Order 1989, which was laid before this House on 14th March, be approved.