HC Deb 22 June 1999 vol 333 cc1052-5
Mr. Vaz

I beg to move amendment No. 34, in page 24, line 31, leave out 'an advocate,' and insert 'a Crown Prosecutor or in any other description of employment,'.

Mr. Deputy Speaker

With this, it will be convenient to discuss Government amendments Nos. 35 to 37.

Mr. Vaz

The purpose of the amendments is to clarify the drafting of clause 36, which enables all employed advocates, including Crown Prosecutors, to appear as advocates in the higher courts if otherwise qualified to do so. It disapplies any professional rules designed to prevent them from exercising rights of audience because of their status as employed advocates.

Amendments Nos. 34 and 37 make it clear that the clause applies to all employed lawyers, not solely to those employed principally as advocates. If suitably qualified, an employed lawyer may exercise rights of audience on even the most occasional basis.

Amendments Nos. 35 and 36 clarify an issue that my noble Friend the Lord Chancellor addressed in another place. The word "capacity" in subsection (2)(a) could be interpreted as enabling an employed advocate to offer their services direct to the public or to the clients of their employers, as distinct from their employers themselves.

Although the Government do not rule out that option in future, as the Lord Chancellor has explained, it is not our intention to authorise that development by means of this clause. The word "capacity"—as the amendments now make clear—was intended to strike down those professional rules which prevent an employed lawyer from appearing as the sole or leading advocate in a substantive case on behalf of his employer.

This is an important clause and is at the heart of the Government's policy on rights of audience. The amendments will help to ensure that the policy cannot be misinterpreted or mistaken.

Mr. Hawkins

It gives me great pleasure to respond to the Minister's helpful clarification of the amendments. As I declared in Committee, when I spoke from the Back Benches, I am a former chairman of the corporate counsels' organisation—the Bar Association for Commerce, Finance and Industry—and in that capacity I welcomed the Government's long-awaited removal of the bar on employed counsel and employed lawyers generally appearing in court on behalf of their employers. It is something for which the organisation that I used to chair campaigned for many years and it is a welcome change.

Some will wish the Government to go even further, and I am grateful to the Minister for indicating that they may be prepared to do so in future legislation, but at this stage the employed Bar generally has got a great deal of what it has long sought.

I think I am right in saying that I am the first corporate counsel ever to be either a Minister or a shadow Minister in any of the legal Departments, and it is therefore with a sense of humility that I speak in that capacity from the Front Bench. Having campaigned for these changes for many years, as a committee member and during my chairmanship of the Bar Association for Commerce, Finance and Industry, I have particular pleasure in welcoming them and the helpful clarification that the Minister has given this evening.

Mr. Dismore

I very much welcome the amendments, particularly those extending rights of audience to employed advocates, particularly solicitors. I am pleased that the clause as amended would get rid of restrictive qualifications, regulations and rules of conduct, but in this context I would highlight the rules relating to court dress, particularly wigs. Unless we have equality of court dress between different advocates there is a risk that although rights of audience may be extended, judges and those trying cases will discriminate between one variety of advocate and another. I therefore urge my hon. Friend the Minister to address that issue.

Mr. Burnett

We support the amendments and the increased rights of audience for the Crown Prosecution Service. In some parts of the country, notably Cornwall, the CPS has enjoyed rights of audience in Crown courts for many years. We also welcome clause 41, which is applicable to all exercising rights of audience, providing for an overriding duty to the court to act with independence in the interests of justice.

The Minister will be aware, however, that we oppose a state defender system. Can he confirm to the House that at the very least the Crown Prosecution Service and the criminal defence service should not come under the aegis of the same Department of State?

Mr. Grieve

The Government are addressing two matters in these amendments. First, they have sought to clarify that employed advocates should appear only on behalf of the person or group employing them and should not sell their services. I am sure that the Minister will find common ground with us in approving of that clarification.

On the second issue, I have one reservation to raise. I do so conscious of the fact that it could also apply to anyone who practises infrequently, whether or not they are employed. The whole thrust of the amendment to allow employed advocates to practise is on the basis that large numbers of highly qualified, employed people are not practising in solicitors' firms or at the Bar, but have all the requisite qualifications to appear in court and should therefore not be denied the opportunity of doing so.

With the change of emphasis introduced by the Parliamentary Secretary and the removal of the word "advocate", it has become quite clear that anyone who may, at one time, have obtained the qualification required to become a barrister or solicitor and who has continued to pay their subscription will be able to appear in court—even if an interval of 30 years has elapsed since they previously did so.

It can equally be said that that problem may arise with people who purport to have practised at the Bar or to have worked for a firm of solicitors and who may not have appeared in court during that period. However, there has at least been the merit of a certain amount of self-regulation or self-criticism within the solicitors' and barristers' profession, which may tend to make it less likely that such people would appear long after their qualifications had become redundant.

The amendment has highlighted the fact that there may well be individuals who will be able, quite easily, to exercise a right of audience in future, claiming all the panoply—including whatever robes may happen to be advocated by the hon. Member for Hendon (Mr. Dismore)—to appear in court, when they are massively poorly qualified to do so, and in circumstances where their employer may not have any capacity to scrutinise their ability to present a case properly.

If we are to go down this road, we will have to start thinking creatively about continuous assessment for barristers and solicitors. Once we get to the point which the Parliamentary Secretary has advocated and almost welcomed, real difficulties will be seen to arise with people who have the nominal qualification, but one that is so old and unused and is being deployed on behalf of so uncritical a client that it will bring the professional qualification into disrepute.

Mr. Garnier

I wish to ask the Parliamentary Secretary one question. Is it the Government's intention—it may be made clear elsewhere in the Bill—to allow employed lawyers to appear in court on behalf of third parties; that is, for people other than their employer? [Interruption.] The Solicitor-General appears to be saying no. If that is the case, I will be satisfied. However, the language of the amendments was not as clear as it might have been, although it became marginally clearer as I listened to the Minister, However, the amendments do not deal with the point that I have addressed. If the Minister can give that simple assurance, I will be most grateful.

Mr. Vaz

I am happy to give the hon. and learned Gentleman that assurance.

I congratulate my hon. Friend the Member for Hendon (Mr. Dismore) on his genius in bringing up wigs in the middle of discussions on this amendment. He is incredibly frustrated because his amendments were not called, and he is trying to tempt me down the road of court dress, to which the hon. Member for Beaconsfield (Mr. Grieve) also alluded. I will not go down that road. My hon. Friend and I can have many happy discussions about wigs, but there is no change at the moment.

The hon. Member for Torridge and West Devon (Mr. Burnett) is trying to drive a wedge between my hon. and learned Friend the Solicitor-General and me. My hon. and learned Friend is responsible for the Crown Prosecution Service, and the Lord Chancellor will be responsible for the criminal defence service. There is no empire building. Of course an Order in Council could change the way in which Departments operate, but the Government have absolutely no plans for that and it would be daft of any Government to want to do that in the future.

11 pm

I thank the hon. Member for Surrey Heath (Mr. Hawkins) for his comments, although I said that I would stop thanking and congratulating him. He is very knowledgeable about these issues and I know that during his time as a member of the Bar Council he campaigned hard for these measures. In a spirit of generosity, as we have named some provisions after the hon. and learned Member for Harborough (Mr. Garnier) and the inquest provision is named after my hon. Friend the Member for Hendon, we will name this provision after him.

Mr. Grieve


Mr. Deputy Speaker

Order. The hon. Gentleman has already made a contribution to this debate.

Amendment agreed to.

Amendments made: No. 35, in page 24, line 37, leave out 'or capacity'.

No. 36, in page 24, line 39, leave out 'as advocates' and insert 'or limit the circumstances in which that right may be exercised by them by requiring them to be accompanied by some other person when exercising it'. No. 37, in page 24, line 43, leave out from beginning to end of line 2 on page 25 and insert 'employed.'.—[Mr. Vaz.]

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