COURTS BILL [H.L.]

HL Deb 03 December 1970 vol 313 cc648-741

3.27 p.m.

THE LORD CHANCELLOR

My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.

Moved, That the House do now resolve itself into Committee.—(The Lord Chancellor.)

On Question, Motion agreed to.

House in Committee accordingly.

[The EARL OF LISTOWEL in the Chair.]

Clause 1 agreed to.

Clause 2 [Location of sittings and business of High Court]:

On Question, Whether Clause 2 shall stand part of the Bill?

LORD GARDINER

The noble and learned Lord the Lord Chancellor will remember that on the Second Reading debate of the Bill I pointed out that the Bill provides that on certain minor matters, such as empanelling juries, and so on, the questions are to be decided by the Lord Chancellor, but that on other more important questions a distinction is drawn, in that these are to be decided "by or on behalf of the Lord Chancellor". If I raise this matter on Clause 2 it is because this raises the important question, where in future is there to be a civil assize. Subsection (2) of Clause 2 says:

1. "(a) the places at which the High Court sits, outside the Royal Courts of Justice, and
649
2. (b) the days and times when the High Court sits outside the Royal Courts of Justice,

shall be determined in accordance with directions given by or on behalf of the Lord Chancellor." It seems to me very important that Parliament should know who is really going to decide these important questions.

The noble and learned Viscount, Lord Dilhorne, went rather further than I did, because he suggested that these decisions should be made in a Statutory Instrument so that there would be an opportunity to move against them. I did not go as far as that; I merely wanted to know who was to make the decision. In his reply all I obtained from the noble and learned Lord, the Lord Chancellor was this statement: In some cases the presiding judge will do it; in other cases the circuit administrator may do it, and in other cases it may be done in his office."—[OFFICIAL REPORT, 19/11/70, col. 1309] I submit that we ought to know who in fact will do it. The question of where the High Court outside London is going to sit is a question of public importance. I am quite content to leave it to the Lord Chancellor. I am not suggesting, as the noble and learned Viscount did, that these decisions should be subject to a Statutory Instrument, but the Beeching Royal Commission clearly concluded that this was a point of great importance and should be decided by the Lord Chancellor himself. I had anticipated that that was the reply I should receive, whatever the wording might suggest: that the Lord Chancellor himself would decide it. From his reply, apparently that is not so.

The other matter to be decided in this way is the days and times when the High Court sits outside London. In paragraphs 422 to 425 the Royal Commission gave a number of reasons why the Long Vacation should be progressively reduced. On the Second Reading of the Bill I asked the noble and learned Lord on the Woolsack what were his proposals on this point. I am not in the least complaining that I did not obtain a reply; he had a great many points to deal with, and I did not expect him to deal with them all at that time. But I think the Committee would be interested to know whether he shares the view of the Royal Commission that the Long Vacation should be progressively reduced, since this, presumably, will now be largely a matter for him because, under Clause 2, he has to decide the days when the High Court sits outside London. It is for those reasons that I would respectfully ask the noble and learned Lord to enlighten the Committee on those two points.

VISCOUNT DILHORNE

I should like, if I may, to add a word to what the noble and learned Lord, Lord Gardiner, has said on this matter. I feel that Clause 2 suffers from too much brevity. I can well see that there must be power to vary from time to time the sitting of a particular court, but, at the same time, that must be within the limits of the general system that is set up. It is all very well to say that at a particular month, or at a particular place, there shall be a sitting just once in a while, and I think I should be perfectly content for that to be done by, or on behalf of, the Lord Chancellor. But in the case of what one might call the permanent courts throughout the country, with their permanent sittings, I do not think that any changes should be made by anyone other than the Lord Chancellor; and there I agree with the noble and learned Lord my predecessor. As he said, I go further than he does, because I regard these directions, whether they are given by the Lord Chancellor or by someone on his behalf, as to the places where these courts will ordinarily sit, as matters of great public importance. I can see that when the time comes we may want to say something about the original places chosen, but there may from time to time be changes made, and permanent changes, that will affect a great many people. It seems to me wrong in principle that under this Bill as it now stands there should be no power for the matter to be raised in Parliament by a Prayer. It would not be raised unless there was some public anxiety, and if there was that public anxiety then the Lord Chancellor would have the opportunity of allaying it.

Why I think this clause tries to do too much in too few words is because it does not distinguish between what I might call permanent arrangements for the sitting of the courts and temporary alterations, which may be convenient because some court is occupied, or because of congestion of business in a particular place. I would ask the noble and learned Lord the Lord Chancellor whether he would reconsider revising this clause so as to distinguish, if he can, between changes of a permanent character in the location of a court, while reserving the power to make temporary changes. I would not mind those temporary changes being made on a particular occasion by someone on his behalf, but any permanent change—any change intended to last—should, I think, certainly be made by the Lord Chancellor himself in a Statutory Instrument which is prayable.

3.37 p.m.

THE LORD CHANCELLOR

The noble and learned Lord, Lord Gardiner, undoubtedly raised this question on the Second Reading of the Bill, but of course he raised it then in connection not only with this phrase where it occurs in Clause 2 but where an exactly similar phrase occurs in Clause 4. It may be for the convenience of the Committee if I indicate what is meant under both, because the same word is used for the same thing in the two cases. The actual draftsmanship is, as I indicated at Second Reading, meant to define the fact that the Lord Chancellor is the responsible Minister.

Under Clause 2, of course, the permanent arrangements will be made personally by the Lord Chancellor after normally consulting—and I think in every case consulting—with the Lord Chief Justice, whose opinion will have great weight in the matter. It will also, however, enable special sittings to be fixed at short notice, should this be necessary. I should expect this to be done by the Lord Chancellor personally too, but I should not like to lead the Committee to assume that there could never, in any circumstances, be cases where it would be done under a general authority given on his behalf by a high official. The Lord Chancellor might be ill (he has no other Minister), or he might be out of the country, sometimes on official business; and emergencies do arise. But I would expect to keep this under my own hand, in every case consulting the Lord Chief Justice. If it ever were done in my absence and on my behalf, I should expect the Lord Chief Justice to have, if possible, a greater say in the matter, assuming, as would almost certainly be the case, that he was available.

The same phrase is used in Clause 4(5), which provides for a rather different class of case. It says: The cases or classes of cases suitable for allocation respectively to a judge of the High Court, and to a Circuit judge or Recorder, and all other matters relating to the distribution of Crown Court business shall be determined in accordance with directions given by or on behalf of the Lord Chief Justice with the concurrence of the Lord Chancellor given by him or on his behalf. In other words, whereas under Clause 2 the Lord Chancellor is the person who does it, under Clause 4 he is the person who concurs in what somebody else does; and there rather a different set of considerations would arise. But I would expect the Lord Chancellor to concur personally in any matter of a formal or permanent character.

Again, there might be ephemeral matters, as for example when a particular magistrates' court might be committing cases to an already overburdened centre, and might be asked for a short period to commit them to a neighbouring centre. Then directions would almost certainly be given on the spot, and this would probably be done through the Circuit administration by the presiding judge, acting in the name of the Lord Chief Justice. In that case almost certainly the Lord Chancellor's concurrence would be given, on his behalf, by the Circuit Administrator. This is the machinery in that case for implementing paragraph 198 of Beeching, which says—and I will read the words, in order to remind noble Lords: To enable him to see that all cases are tried as soon as possible, we recommend that the Presiding Judge, acting through the Circuit Administrator, should have power to give directions as to where cases should be committed for trial. Of course it is desirable that there should be Parliamentary responsibility, in the sense that some Minister has to answer if, for any reason, it is desired to challenge a decision of that kind.

The noble and learned Lord also raised the question of the Long Vacation, and correctly reminded the Committee that the Beeching Commission recommended in paragraph 424 that the Long Vaction should be made progressively shorter … than it is at present. In doing so it differed from the conclusion reached by the Joint Professional Committee of the Bar Council and the Law Society in 1968, that none of the existing Vacations should be curtailed. The Joint Committee did, however, consider that the amount of interlocutory work done during Vacations should be increased.

The Long Vacation is regulated by Orders in Council made under Section 53 of the Judicature Act on a recommendation made by the Council of Judges, with the concurrence of the Lord Chancellor. The Joint Committee's Report was considered by the Council of Judges under my predecessor in 1969. As a result, additional work was undertaken by the judges during the Long Vacation, and all additional interlocutory business that could not be undertaken with existing staff during Vacation was made Vacation business. The hours of opening of the Supreme Court during the Long Vacation were also extended.

Quite apart from questions of judge power, unless I were able to command essential supporting staff it would not be possible, for the time being at any rate, to do anything further about the Long Vacation. That does not mean that when the Courts Bill is in operation we may not have to reconsider the matter again. As the noble and learned Lord realises, curtailing the Long Vacation is not simply a question of bringing the judges back. In criminal trials you have to bring jurors on the spot, you have to bring witnesses on the spot, you have to bring the court attendants on the spot; and in a case involving a jury and a considerable number of witnesses that might be very difficult to do during the summer months with effective justice.

But I have no fixed plans beyond what have said; that is to say, beyond the judges' meeting of 1969. On the other hand, I intend to re-examine the matter again when the Courts Bill is in operation. Of course I will take note of what was said by my noble and learned friend—if I may still call the occupants of the Cross Benches by that friendly appellation—about the distinction between ephemeral arrangements and formal and permanent ones, and will reflect upon it, but I should not like to give him any assurance at the moment. I hope that that deals with the questions put to me.

LORD GARDINER

As this is a Committee stage, perhaps I may speak again. I thank the noble and learned Lord for his explanation, which is very satisfactory, except that in dealing with Clause 4 he dealt with subsection (5), which covers classes of cases, and so on, with which the noble and learned Lord, the Lord Chief Justice, is to be concerned. Subsection (6) states that places at which the Crown Court is to sit shall be determined "by or on behalf of the Lord Chancellor"; in other words, what places are no longer to have any criminal court higher than a magistrates' court. I should have thought that that would be solely a mailer for the Lord Chancellor himself.

THE LORD CHANCELLOR

I quite agree. I inadvertently omitted that, and the noble and learned Lord is perfectly correct.

Clause 2 agreed to.

Clause 3 agreed to.

Clause 4 [Establishment of the Crown Court]:

3.44 p.m.

LORD GARDINER moved Amendment No. 1: Page 3, line 6, leave out from ("Court") to end of line 11.

The noble and learned Lord said: I have been a good deal concerned as to what course I should take about a number of Amendments which are on the Marshalled List, all of which relate to the special privileges shown by this Bill to the City of London. I apprehend that your Lordships will not want me to make one speech on each Amendment, so if it is convenient, while moving this Amendment I shall speak to the others. This Amendment is not the most important one, but it may be that in a Division the Committee will have an opportunity of expressing a general view one way or the other about these Amendments.

May I make it plain, in the first place, that I have the highest regard for the gentlemen of the City of London—the Lord Mayor, the Sheriffs, the Aldermen and invisible exports? But we are here concerned only with the City in its relation to our system of justice. May I start by taking up two points which were made in reply to what I said on Second Reading? The first was an observation made by the noble and learned Viscount, Lord Dilhorne. When speaking of the delays at the Central Criminal Court, he said: It is not the division of responsibility that is causing the delays there. It is the congestion of work."—[OFFICIAL REPORT, 19/11/70; col. 1289.] The second was an observation made by the noble and learned Lord the Lord Chancellor, to the effect that the Bill dealt with the substance of the matter and the points I was raising were really the frills. I am afraid I am unable to agree that the position which has arisen at the Central Criminal Court is in no way the fault of the City of London. Delays can only arise because there are not enough judges, or because there are not enough courts, or because there is an insufficient court staff.

May I take first the question of judges? In every other court in the country it is the responsibility of the Lord Chancellor—that is to say, in a sense, the responsibility of the Government—to see that there are enough judges. Of course, they are usually limited as to a maximum by Act of Parliament. So it is the Lord Chancellor's responsibility to look ahead and come to Parliament in time with a Bill to increase the maximum number. Under the last Government the position was improved, in that this can usually be done now by a Statutory Instrument. But it is still the Lord Chancellor's responsibility to move in time to see that the maximum number of judges may be increased. This applies everywhere except in the City of London or, to be more accurate, the Central Criminal Court. It is not, and it has not been for a very long time, a City court—I mean taking cases only from the City. For about 150 years, since, I think, at least 1834, it has taken cases from Middlesex and parts of Kent, Surrey and Sussex, and for over a hundred years could take any crime outside London. But there, and there alone, the maximum number of judges is not provided for by any public Act. It is dealt with from time to time in a City of London (Various Powers) Act.

This is not a matter which I am producing in this House for the first time to-day. Nearly three years ago, on January 29, 1968, on the Administration of Justice Bill, I said: The maximum number of judges which can be appointed additional judges to the Central Criminal Court is entirely a matter for the City of London. They deal with this under a City of London (Various Powers) Act. The City pay for the judges and for the Central Criminal Court, and how many courts there are is entirely a matter for them. For the last three years —that was going back to the beginning of 1965, practically the whole of my period of office— I have been in the position that although there are only four regular courts at the Central Criminal Court, another was carved out on the ground floor and the Library and a committee room were turned into courts. There are no more rooms which might be turned into courts. I can appoint commissioners but I cannot appoint any additional judges because the maximum number has been reached, and there was no City of London (Various Powers) Act under which action could be taken."—[OFFICIAL REPORT, 29/1/1968; cols. 634–5.]

The first answer from the City, when I wanted the maximum number of judges increased, was that they said, "You cannot do this here, because we do not have a City of London (Various Powers) Bill." I went on to say: When this question was taken up with the City (they are always very generous in these matters) they found a building immediately opposite and quickly produced three temporary courts to which I could appoint commissioners to sit. But that was all I could do, and the state of things at the Central Criminal Court has been getting worse and worse. Men who could not get bail have been staying in prison for three or four months before their trial—men who, when they are tried, may be found to be innocent. When at long last the City of London produced a Various Powers Bill last Session, it got hung up in another place, not over the increase in the number of additional judges but because of something to do with the City walk-ways and, I think, something to do with Epping Forest. This shows the Lord Chancellor's difficulties."—(col. 635.) While the present Bill meets that point, I cannot agree that in the past it has not been in any way the fault of the City of London.

The matters for which this Bill provides are as follows. There had been a Mayor's and City of London Court, which had a higher jurisdiction than the county court; a court half-way between a High Court and a county court. The Beeching Royal Commission, in paragraph 368 of their Report, recommended that that jurisdiction should be abolished. They gave all their reasons and said, in paragraph 373: For these reasons we recommend that the unlimited jurisdiction of the court should be abolished and that the court should, in future, serve purely as the County Court for the City". At first sight that was to happen here, because if one looks at Schedule 2, which is at page 41 of the Bill, it appears to provide that the Mayor's and City of London Court should cease to exist and that it should be simply an ordinary county court, the County Court of the City of London.

Then, under Clause 28 the Bill provides: The courthouse and accommodation which up to the appointed day have been respectively known as the Central Criminal Court and the Mayor's and City of London Court shall continue to be known by those names, and it shall be the duty of the Common Council of the City of London (in this section referred to as 'the Common Council') to continue to make the said premises available for use for the sittings and business of those courts respectively". It is still to be called the Mayor's and the City of London Court although it has nothing to do with the Mayor at all. Then, under a previous clause, the Mayor and all the lay aldermen of the City of London are to be able to sit on the Bench at the Central Criminal Court, which is simply to become a Crown Court. Now I appreciate that this does not matter enormously, but it seems very odd, in 1970, to continue this historical anomaly under which laymen, who may like sitting on the bench in their robes, do so at only one court in the country.

The point about which I am most concerned is that concerning court buildings. The Royal Commission, in paragraphs 299 onwards of their Report, made it plain what they thought was the only remedy for the difficulties of court administration which had arisen. They say: It is clear that many of the present inadequacies of the higher courts are attributable to the lack of any overall court service". They go on to say: In our view, the first step must be the assumption of responsibility by one Minister, answerable to Parliament, for the running of all the courts above the level of Magistrates' Courts and for the establishment of a single court service". The Bill itself provides for this to happen everywhere else in the country, and for the Lord Chancellor to be responsible for seeing that there are enough courts. Indeed, in the Schedules, in particular in Schedule 2, power is given to make requisition orders on premises in order that he may be able to achieve that very desirable result. This is all set out in Schedule 2 and in Schedule 3. This is for the purpose of securing that we shall, at long last, in all courts above the level of magistrates' courts, have adequate court accommodation.

But when we come to paragraph 10 of Schedule 3, we see that it reads: Nothing in this Schedule applies to any premises in the City of London". So in the City of London, and only in the City of London, and in relation to the Central Criminal Court (which, after all, is our largest court of assize), we are in this position. The Royal Commission said, "If the City want to go on paying for the Central Criminal Court—although we do not see any reason why they should, and why the Central Government should not pay—we do not see any special reason why the Government should refuse to let them". But it was clearly contemplated that there, as elsewhere, the Lord Chancellor would be responsible for securing that there were sufficient courts.

This the Bill does not do. The most it provides for is that the City shall continue to make the existing premises available for use for the sittings and the business of those courts respectively". Then subsection (2) of Clause 28 says: The Common Council shall not undertake any alteration or extension of the buildings or accommodation which they are to make available for the purpose of the said courts, or provide further accommodation for that purpose, without the consent of the Lord Chancellor". So the Lord Chancellor can say, "No: do not build any more courts; no more courts are necessary". What he cannot say is, "More courts are necessary, and you are to build them". In the whole country, this is the only place where there can be no requisition of premises, and therefore so far as I can see there is no practical way of implementing the intentions of the Royal Commission.

I think many of these privileges of the City of London are wrong. I do not mind anything remaining with them which assists them and does not do any harm. I remember that the noble and learned Lord the Lord Chancellor said that it was extraordinary how much we agreed about all this, but that he thought we were rather two different kinds of animal: I was really dealing with the frills, and he referred as an example to the fact that at my instance Parliament had abolished the ex officio justices of the peace, but he said that that did not do any harm. I would remind him that we had at that time a provision whereby nobody was appointed a justice of the peace who did not undertake to undergo a course of training and to sit regularly; and that sitting alongside them we had literally hundreds of ex officio justices of the peace—every chairman of an urban district council, of rural district councils, county councils, boroughs and so on—who were not under any obligation to undergo a course of training, and did not, who insisted on sitting but did not sit regularly. That had been causing great resentment to those who had been appointed on their merits.

So, here, I feel that these provisions, taken together, go too far. I hope I have made it plain that, if I take the first Amendment by itself, it is to stand for all of them, if this is a convenient course. I do not regard the first one as being of signal importance. Nor do I mind the Common Serjeant continuing to be called the Common Serjeant. I do not suppose that it will do any harm. It is just one of those things which makes the law look silly. When you tell your client that he is to be tried before the Common Serjeant, he says, "Why is he a serjeant, and in what respect is he common?". That is not a question which anybody has ever been able to answer, and it just makes the law look an ass. The thing I am really troubled about is that the Bill leaves not only, as I understand it, the Central Criminal Court, but also the county court for that district as the only county court in the whole of England which it has not, ever since the county courts started, been the responsibility of the Lord Chancellor to provide; and I can see no way in which, if there are not enough courts now at the Central Criminal Court or within the City, there is any real power to force the City to build proper courts. I beg to move.

VISCOUNT DILHORNE

I must confess that I am not in the least convinced by what the noble and learned Lord, Lord Gardiner, has said that the congestion at the Central Criminal Court is the fault of the City. Nor am I convinced that he has made out a case for transferring the powers of appointing judges with regard to the Central Criminal Court from where that power now resides. My experience of working with the City was that it really was not necessary for the Lord Chancellor to have power to give directions to the City. It was quite enough to make a suggestion; and I always found the City did all they could to carry out any suggestions or proposals made by the Lord Chancellor. It is true that there is a limit under their Act as to the number of judges that they can appoint; but there is no limit to the number of commissioners that can be appointed by the Lord Chancellor to meet the needs pending an amendment to the Act and pending the City getting power to appoint more judges. I do not think myself that there is much in that criticism of the City.

With regard to the building of courts, I forget the precise figures, but I am sure I am right in saying that since my time the City have, at their own expense and not at the expense of the taxpayer, multiplied the number of courts very extensively. The noble and learned Lord mentioned the number of four courts. I believe that it will shortly be 18 courts. Great expense falls upon the City for maintaining the Central Criminal Court. I do not think we ought to criticise the City for what they have done in a difficult period throughout the whole country with regard to the administration of justice; I think that rather we should express thanks to them for what they have achieved.

The real trouble with the Central Criminal Court is that the catchment area is far too large; far too much business goes to the Central Criminal Court and it is wrongly placed, right in the heart of the City, to deal with the criminal cases which emanate from such a wide area. That makes it necessary to bring the patties, the witnesses and the jurors into that part of the City. When the noble and learned Lord the Lord Chancellor comes to consider locations for the trial of criminal work, he may perhaps consider whether the time has not come to build another centre, not far away but more on the outskirts of London, to which a great number of the cases now going to the Central Criminal Court could in future be committed. But that is another question.

As to the point that the noble and learned Lord, Lord Gardiner, made, about the Lord Mayor and the Aldermen being part of the court under Clause 4(7), what harm does it do? I can think of none. It carries on an old tradition. The noble and learned Lord, Lord Gardiner, referred to it as an "historical anomaly". I always feared—it will not happen to me now—while I was occupying the Woolsack that someone might get up and say that I was an historical anomaly; but that is no argument for the abolition of the office. I rather like some of these anomalies, particularly when they have no harmful consequences. I like some of these old traditions and I think it would be a great pity if that long-established court, the Mayor's and City of London Court, ceased to exist. So far as the premises are concerned, it matters not who owns them, so long as the Lord Chancellor of the day can get what he wants done. I feel sure that Lord Chancellors have had, and will continue to have, the full co-operation of the City. Therefore I do not find it possible to support these Amendments.

4.4 p.m.

THE LORD CHANCELLOR

The noble and learned Lord, Lord Gardiner, inadvertently misunderstood and, I think, misquoted what I said on Second Reading. What I was saying was more relevant to the Amendment that is now being proposed than he supposed. As for the delays at the Old Bailey, I never said whose fault it was; I did not administer a rebuke either to him (and he is certainly more responsible than I am) or to the late Lord Mayor, who was more responsible than the present Lord Mayor. I said—and I have my words clear in mind—that the delays at the Old Bailey were not clue to the Lord Mayor sitting next to the High Court judge on the Bench. I stand by that. Whether the Lord Mayor sits by the side of the High Court judge when he is on the Bench makes no difference at all as to whether or not there is any delay. He sits there by tradition and takes no part whatever in the proceedings.

The noble and learned Lord erected an elaborate façade to show that the position of the Old Bailey and the other City courts was in some way the fault of the City. Broadly speaking, for the reasons given by my noble and learned friend Lord Dilhorne, I consider that that is not the case. But if it were the case, it would be necessary to relate them in some way to the Amendments proposed. The noble and learned Lord, Lord Gardiner, began with a great, and no doubt sincere, expression of respect for the City Corporation, the Lord Mayor, the Sheriffs and the Aldermen; but I must say that I felt reminded of the young gentleman who said, "You may be discreet to dissemble your love, but why did you kick me down the stairs?" Because the situation which the Amendments are designed to remedy, and to which the noble and learned Lord drew such graphic attention, all arose during his own term of office.

The remedies proposed are: one, not to let the Lord Mayor sit on the Bench with the High Court judge; two, to abolish the name of the Common Serjeant; three, to omit the word "Mayor's" from the "Mayor's and the City of London Court"; and, four, to subject some unnamed, unoccupied buildings in the City to requisition. If he can tell me of any unoccupied buildings in the City which are suitable for use as criminal courts and which have the ancillary equipment, then I will make representations to the Lord Mayor to-morrow. If he cannot, his Amendment is utterly devoid of any sense at all. I am delighted to find something about which I can so profoundly disagree with the noble and learned Lord, Lord Gardiner. We have been far too amicable. It will soon be said against us that we are running in cahoots with one another. On this occasion I can honestly say I differ from him profoundly. All his Amendments are designed to cause deep offence to the City Corporation. They are not calculated to create any useful purpose at all, any difference whatever, for good or for bad, to the administration of justice. They are designed only to cause offence and they will have that effect.

In fact there are 18 courts, as my noble and learned friend reminded us, being built by the City; and I am rather grateful for that. The courts were designed and planned during the term of office of the noble and learned Lord who has proposed these Amendments. I did not recall any public protest by the then Lord Chancellor about their number or location. If there had been a conflict between the City authorities and the noble and learned Lord one would understand his resentment. What was he doing all the time when he was sitting on the Woolsack with, to his knowledge, the City authorities planning 18 courts and proposing to build them? It seems to me that he was either neglecting his duties or he concurred in the plans they were making. Yet he now wants to subject some other unnamed buildings to requisition and to abolish the name of the Mayor's and City of London Court, which is an ancient and honourable name, and to abolish the name of the Common Serjeant, and to abolish the right of the Lord Mayor and Aldermen to sit on the Bench with the High Court judge.

I think that even on technical grounds the last proposal is fairly misconceived. The Bill preserves the existing position to the extent that the Lord Mayor and the Aldermen will be judges of the Crown Court when it sits within the City, where it will keep the name "Central Criminal Court" by which it is very well known—only a little less well known than its unofficial name of the Old Bailey—but in future they will not be able to sit alone but only under the chairmanship of a High Court or Circuit judge or recorder. That is the effect of Clause 5(8), which provides that when a judge of the High Court, Circuit judge or recorder sits with justices of the peace he shall preside; and the Lord Mayor and the Aldermen are, I believe, justices of the peace to the City.

During the debate on the Second Reading, the noble and learned Lord, Lord Gardiner, criticised Clause 4(7) of the Bill on the ground that it would enable the Lord Mayor and the Aldermen to try even the more serious cases, including murder. This cannot happen, because under this Bill the most serious cases will always be allocated to the Queen's Bench judges sitting alone. But even under the existing system, the Lord Mayor and the Aldermen do not take part in the trial of any serious offences, and the City authorities and the recorder have given assurances that they will not do so in future. All that these Amendments do is to cause offence to a body which, whatever its merits or demerits, is one for which the noble and learned Lord holds (as we have now learned) the greatest respect and which has provided a great amount of funds to save the Revenue. The Amendments will perform no useful purpose whatever. I would hope that he would not press any of them to a Division, but if he does I shall advise the Committee to vote against them.

4.10 p.m.

LORD GOODMAN

I cannot lose an opportunity of demonstrating this afternoon that there are some matters on which I find myself in agreement with the noble and learned Lord the Lord Chancellor. I do not want to say more than this: that I thought we had fought out this issue at some considerable length some little while ago and that on the whole a fairly satisfactory decision had been reached—satisfactory to the City and satisfactory to the then Lord Chancellor. But I should like to add this. There are, of course, traditions that are wholly beneficent and kindly and do not hold up the progress of mankind. I believe that these traditions to which the noble and learned Lord, Lord Gardiner, is referring, are in that category. I believe that what have been called the frills or the trimmings bring great benefit, because they are the inducement that makes the corporate life of the City worth while to people who give an enormous amount of time and effort in other directions. City companies in their activities are, I think, wholly beneficent. To strip them of these little traditional trimmings seems to me not only unkind but also, on the whole, a little small-minded, if I may use that phrase.

I do not think that the administration of justice suffers in the slightest degree by the retention of trimmings and trappings of this kind. I think that there are other features of our system of justice—to which perhaps we may be alluding later—where the administration of justice is seriously disturbed and affected by seeking to retain traditions that have long outlived their utility. With regard to these matters, I should think that we could generously leave them where they are, even if they do have slightly anomalistic features. They are more than compensated for by the inducement they give to a large number of worthy people to do worthy work.

LORD GARDINER

I made it plain that I have no strong view about this first Amendment, but no Member of the Committee has disagreed with the proposal that we should take this Amendment, as it were, on behalf of this group of Amendments to save repeated discussion or repeated Divisions. With regard to the noble and learned Lord Chancellor's reference to my period of Office, the fact remains that it is not at all easy to persuade members of the Bar to be commissioners from time to time at the Central Criminal Court; and that throughout the whole of my period of Office, while anxious to appoint additional judges to that court, I was unable to do so because the City of London had not got a City of London (Various Powers) Bill. That was the first stage, and, of course, when they got one, it took considerable time before I had the Act. This contributed in marked measure, I think, to the difficulties we experienced at that court.

I am concerned about building for the future. I have no objection if the City want to pay for the buildings or they are paying for them; that is a matter for them. I am sure that Central Government would have been ready to pay if the City

had not been. There has been no difficulty in finding sites in the City. A site was found immediately opposite for a temporary court and they are now building more courts. I am not suggesting that they are not at present building enough courts; but, starting as I did in 1964, it will be 1972, before we have enough courts—that is, if the work does not increase still further. The position remains as I outlined it, that if in the future there is a need for more courts in the City, or an expansion in particular of the Central Criminal Court, the City of London will be the only place in the whole country where the Lord Chancellor will have no power of law at all to requisition premises and to see that courts are built there. I cannot think that that is right and I shall respectfully ask the Committee to say so.

4.19 p.m.

On Question, Whether the said Amendment (No. 1) shall be agreed to?

Their Lordships divided: Contents, 58; Not-Contents, 128.

CONTENTS
Ardwick, L.	Geddes of Epsom, L.	Royle, L.
Balogh, L.	Gifford, L.	Sainsbury, L.
Beswick, L.	Greenwood of Rossendale, L.	St. Davids, V.
Birk, Bs.	Hamnett, L.	Serota, Bs.
Bowles, L.	Jacques, L.	Shackleton, L.
Brockway, L.	Janner, L.	Shepherd, L.
Brown, L.	Kennet, L.	Shinwell, L.
Buckinghamshire, E.	Leatherland, L.	Silkin, L.
Burntwood, L.	Lee of Asheridge, L.	Sorensen, L.
Chalfont, L.	Lindgren, L.	Stocks, Bs.
Champion, L.	Listowel, E.	Stonham, L.
Citrine, L.	Llewelyn-Davies of Hastoe, Bs.	Strabolgi, L.
Constantine, L.	McLeavy, L.	Summerskill, Bs.
Davies of Leek, L.	Moyle, L.	Wells-Pestell, L.
Diamond, L.	Nunburnholme, L.	White, Bs.
Donaldson of Kingsbridge, L.	Pargiter, L.	Williamson, L.
Douglass of Cleveland, L.	Phillips, Bs. [Teller.]	Wilson of Langside, L.
Faringdon, L.	Raglan, L.	Wootton of Abinger, Bs.
Gardiner, L.	Ritchie-Calder, L.	Wynne-Jones, L.
Garnsworthy, L. [Teller.]
NOT-CONTENTS
Aberdare, L.	Beaumont of Whitley, L.	Clwyd, L.
Aberdeen and Temair, M.	Belhaven and Stenton, L.	Cohen, L.
Abinger, L.	Belstead, L.	Colville of Culross, V.
Albemarle, E.	Berkeley, Bs.	Conesford, L.
Alport, L.	Bethell, L.	Cork and Orrery, E.
Amherst, E.	Birkett, L.	Courtown, E.
Ampthill, L.	Bourne, L.	Craigavon, V.
Amulree, L.	Brentford, V.	Crook, L.
Annan, L.	Brooke of Cumnor, L.	Crowther, L.
Ashbourne, L.	Brooke of Ystradfellte, Bs.	Daventry, V.
Auckland, L.	Carnock, L.	Derwent, L.
Audley, Bs.	Carrington, L.	Dilhorne, V.
Avebury, L.	Clark, L.	Diplock, L.
Donovan, L.	Hives, L.	Rochester, L.Bp.
Drumalbyn, L.	Hodson, L.	St. Helens, L.
Dundonald, E.	Howard of Glossop, L.	St. Just, L.
Ebbisham, L.	Hylton-Foster, Bs.	Salisbury, M.
Effingham, E.	Ilford, L.	Sandford, L.
Elliot of Harwood, Bs.	Inglewood, L.	Sandys, L.
Emmet of Amberley, Bs.	Jellicoe, E. (L. Privy Seal.)	Shannon, E.
Fairhaven, L.	Jessel, L.	Skelmersdale, L.
Falkland, V.	Kindersley, L.	Somers, L.
Foot, L.	Lauderdale, E.	Southwark, L.Bp.
Fortescue, E.	Leicester, L.Bp.	Stamp, L.
Fraser of Lonsdale, L.	London, L.Bp.	Strang, L.
Garner, L.	Loudoun, C.	Strange, L.
Gisborough, E.	Lucas of Chilworth, L.	Strange of Knokin, Bs.
Glasgow, E.	Mais, L.	Strathcona and Mount Royal, L.
Goodman, L.	Malmesbury, E.
Goschen, V. [Teller.]	Mancroft, L.	Sudeley, L.
Gray, L.	Meston, L.	Swanborough, Bs.
Greenway, L.	Milverton, L.	Swansea, L.
Grenfell, L.	Molson, L.	Swinton, E.
Gridley, L.	Morris of Borth-y-Gest, L.	Tangley, L.
Grimston of Westbury, L.	Mowbray and Stourton, L. [Teller.]	Thurlow, L.
Hacking, L.		Thurso, V.
Hailsham of Saint Marylebone, L. (L. Chancellor.)	Moyne, L.	Vivian, L.
	Nugent of Guildford, L.	Wade, L.
Hankey, L.	Ogmore, L.	Wakefield of Kendal, L.
Hanworth, V.	Parker of Waddington, L.	Waldegrave, E.
Hatherton, L.	Rankeillour, L.	Wilberforce, L.
Hawke, L.	Rea, L.	Wolverton, L.
Helsby, L.	Reay, L.	Yarborough, E.
Henley, L.	Redesdale, L.

On Question, Motion agreed to.

4.28 p.m.

THE LORD CHANCELLOR moved Amendment No. 2: Page 3, line 15, leave out ("other express provision") and insert ("provision contained in or having effect under this Act").

The noble and learned Lord said: I rise to move Amendment No. 2 which stands in my name. This Amendment would be wholly unintelligible, as would Amendments Nos. 3 and 4, as they are purely paving Amendments for Amendment No. 11 which comes afterwards unless I explained to the Committee what Amendment No. 11 is about. Therefore, perhaps it would be convenient if I were to do this so that your Lordships may judge the paving Amendments that precede it. Amendment No. 11 is a new clause to be inserted after Clause 13, and its purpose is to provide a general rule-making power for the Crown Court so that its practice and procedure may be regulated by rule, As introduced, the Bill provides for the Crown Court Rule Committee to be set up for the purpose of making Crown Court rules, but the matters for which rules may be made are dotted about in various parts of the Bill, and the purpose of this group of Amendments is to provide a general rule-making power and bring them together.

Subsection (1) of the new clause provides that Crown Court rules may be made for the purpose of regulating and prescribing the procedure and practice to be followed in the Crown Court. The power contained in the new clause covers not only criminal proceedings but also any civil proceedings for which it may be appropriate to make rules in the Crown Court. Consequently, there is no longer any need for a specific power to do this, and Clause 9(7) will, in due course, I hope, be deleted. Similarly, references made to matters being subject to "other express provision" in Clause 4 and the "express provisions of this Act" in Clause 6 will be modified by Amendments to make clear that Crown Court rules may, if necessary, regulate such matters as the attendance and examination of witnesses, the enforcement of orders and the preservation of practices and procedures in the Crown Court which exist at present for assizes and quarter sessions.

Subsection (2) of the new clause replaces Clause 9(6), which is to be brought into the new clause, and subsection (3) provides that no rule involving increases of expenditure shall be made except with the concurrence of the Treasury, which is a constitutional necessity. There will be other minor Amendments which are consequent on this. Therefore, with the Committee's consent, I beg to move the first of this group of Amendments, which is purely paving to the Amendment I have tried to outline.

LORD GARDINER

I have no objection to any of the Amendments referred to.

VISCOUNT DILHORNE

We are not now discussing Amendment No. 11, are we? I have a point that I wish to raise on that. The noble and learned Lord the Lord Chancellor has referred to No. 11 but I imagine that the right time to raise my point will be when we come to deal with it.

THE LORD CHANCELLOR: Of course, that is entirely for the Committee to decide, but I thought that the Amendments would be wholly unintelligible if I did not explain what they were about.

Clause 4, as amended, agreed to.

Clause 5 agreed to.

Clause 6 [Exclusive jurisdiction in trial on indictment]:

THE LORD CHANCELLOR

I beg to move Amendment No. 3, which is another paving Amendment.

Amendment moved— Page 5, line 14, leave out ("the express provisions of") and insert ("any provision contained in or having effect under")—(The Lord Chancellor.)

THE LORD CHANCELLOR

I beg to move Amendment No. 4, which is another paving Amendment.

Amendment moved— Page 5, line 20, leave out ("the express provisions of") and insert ("any provision contained in or having effect under").—(The Lord Chancellor.)

Clause 6, as amended, agreed to.

Clauses 7 and 8 agreed to.

Clause 9 [Appeals to Crown Court and civil proceedings in the Crown Court]:

THE LORD CHANCELLOR

I beg to move Amendment No. 5. This is another paving Amendment of the same group.

Amendment moved— Page 7, line 27, leave out subsections (6) and (7).—(The Lord Chancellor.)

Clause 9, as amended, agreed to.

Clauses 10 and 11 agreed to.

Clause 12 [Right of audience]:

4.30 p.m.

LORD TANGLEY moved Amendment No. 6: Page 9, line 20, at end insert— ("(A1) Solicitors may appear in, conduct, defend and address the Crown Court on any hearing of or in connection with—

1. (a) any appeal;
2. (b) any proceedings on committal to the court for sentence;
3. (c) any proceedings on indictment for an offence triable summarily but for any reason committed to the court for trial;")

The noble Lord said: I rise to move Amendment No. 6 standing in the name of my noble friend Lord Goodman, and in my own name and the names of other noble Lords. I have now served in the solicitors' branch of the legal profession for 55 years, and the time has long past when I felt the slightest passion about barristers and solicitors or barristers or solicitors. I care not a rap about the relative prestige and status of the Bar and solicitors. But I do find this: that as the shadows draw longer, shall I say (because after all those years my time in the law must be nearly up), there are certain things that become all the while clearer to my mind and closer to my heart. Three of them, I believe, are relevant to our discussions this afternoon.

The first and foremost is that nothing really matters in the administration of the law, the organisation of the legal profession, except the client and his interests. One hears a lot about barristers; one hears a lot about solicitors, and we have been reading in the Press a lot about them lately. But we have read almost nothing about the one person who really matters—the client—and particularly the client who finds himself enmeshed in the proceedings of the courts. He is a figure whom I keep constantly before my mind and my imagination, and I hope that your Lordships will do the same in the course of this debate.

He is a lonely figure. He is probably in court for the one and only time of his life. It is a traumatic experience for him. He is bewildered, lonely and frightened. At that moment of his life, beyond all other moments, he needs beside him a trusted and known adviser and advocate to whom he can turn. If the administration of the law as at present organised does not provide him certainly with that, then there is something wrong with the administration of the law, and something wrong with the organisation of the legal profession that ought to be put right. A man who has not that help available to him—and, I emphasise, help that he knows and trusts—cannot do himself justice; and if he cannot do himself justice, it is very unlikely that justice will be done, however hard the court, the advocates, the jury and everybody else may try to do it. That is the first thing that has become so much clearer to me now than it used to be when I was younger.

The second thing is this. I am absolutely certain—and I wish to take this opportunity of stating it in no uncertain terms—that the best interests of the client to-day, in present conditions, are served by the separation of the legal profession into the Bar and the solicitors' branch of that profession. I know that here I part company totally with my noble friend Lord Goodman. He believes in fusion. I totally disbelieve in fusion; and in that I am supported by the great bulk of the opinion among solicitors and the entire opinion of the Law Society. If I thought that this Amendment that I am moving would do anything to impinge on the privileges or the importance of the Bar, or would do anything to bring about fusion, so far from moving the Amendment I would certainly be seen in the Lobby against it. But, of course, this Amendment does not have that effect, as I hope to show your Lordships very shortly.

The third thing that I think I see now much more clearly than I used to, though I have seen it for some time (that may sound paradoxical, but it is true), is that the separation between the two branches of the profession can be maintained only as a result of the closest possible working together and co-operation of both branches of the profession. They have to work very hard together in order to keep separate if the interests of the client are to be preserved and extended: and if the interests of the client are not preserved, then the whole basis of the legal profession falls to the ground.

It is easy to be misunderstood about this. This is not a notion which I have thought up for the purpose of this present debate; it is a conviction that I have had for some years. I have preached the doctrine in season and out of season. I have been misunderstood and misrepresented by many people, but I have also acted upon it and worked with the Law Society, and the Bar, with these ends in view. We have had some success, and indeed, when the noble and learned Lord, Lord Denning, the Master of the Rolls, referred to the flexibility which exists now whereby solicitors can more easily become barristers, and barristers solicitors, he was pointing to things which stem back to initiatives taken by myself and my friends some years ago. I want that happy condition to go on. Therefore, I deeply regret the tinge of "anti-Bar" or "anti-solicitors" which has crept into the newspaper controversy on this subject, and also on the subject of Clause 20.

I want to make it quite plain that I am not being inconsistent in what I have already said with my action in moving this Amendment, because in all these discussions which have taken place with the Bar, and in all the discussions which can conceivably take place—as I hope they will—in the future, there will always be some marginal area where adjustments of functions are needed. This Amendment covers a marginal area where I hope I shall be able to demonstrate that this adjustment is needed at the present time. May I take your Lordships back to the client in litigation, in the dock, or in the witness box, and his need to have a trusted and known adviser alongside him? The three cases we are dealing with in this Amendment are appeals; cases which have been referred to quarter sessions for sentence, and cases which could have been heard in magistrates' courts, but which have been passed on to quarter sessions for one reason or another—generally for some administrative reason. Those are the only three cases that we are dealing with.

May I first of all take the case of an appeal? As your Lordships know well, an appeal to quarter sessions differs from any other kind of appeal in that it is a re-hearing. The case has been heard before the magistrates' court; witnesses have been called, cross-examined and so forth, and the decision has been given. When you get to quarter sessions, or the Crown Court as it will be known after this Bill becomes an Act, you are dealing with exactly the same sort of situation. Before the magistrates' courts in mast cases the defendant has been represented by a solicitor. If it is his own appeal he has been unlucky, for his solicitor has not succeeded, but it can very well be the prosecutor's appeal, because either side may appeal to quarter sessions from magistrates' courts. At any rate, he has been represented in all the stages of the case by his own solicitor.

Then comes a re-hearing, when the same facts are heard all over again. At this re-hearing the defendant cannot be represented by the same man who has represented him up to that point of time; at that traumatic moment he is deprived of the man on whom he has relied and trusted. What does he get in place of that? If he had a free choice of all the barristers, and could afford to pay for them, the position might not be so bad, although to see a strange face at all—especially when it has a wig on—at that stage of the proceedings can add to the state of trauma. But in fact the man has no idea whom he will have to represent hum.

His solicitor will choose a barrister, if he can find one. I do not want to go into the details (they are too discreditable to the profession) unless I am forced to do so. I will content myself with the general observation that there is only a fifty-fifty chance, taking the country as a whole, that the barrister of the solicitor's choice will actually appear and do his work on the day of the trial. I am not saying that somebody will not appear; but who it will be goodness only knows ! That is a terrible state of affairs for the unfortunate client, who is extremely anxious about his fate. That is an appeal.

Suppose a case has been heard by the magistrates' court, has been decided, and has been sent on to quarter sessions, or, as it will be, to the Crown Court, for sentence. Somebody will have to make a plea in mitigation of sentence when the matter comes before the Crown Court. The only person who cannot do that is the solicitor who has conducted the case up to that particular point of time. He is the person whom the accused, or in this case the convicted man, has chosen to represent him all through those proceedings. What does the solicitor have to do? He has to try to find a barrister who will attend for a relatively small fee and do this rather miserable job of making a plea in mitigation. I assure your Lordships that this is so, and I will prove it if I am forced to do so to-day, although I do not want to do so. The chance of getting anybody of any experience to come and do that work in very many courts up and down the country is almost non-existent. That is the way in which the profession serves the clients at the present time. We do not think it is good enough; we think this is one of those cases where there is a marginal need for a readjustment of functions, and we would have hoped that there would be co-operation in bringing that about.

The third case is that in which a solicitor is entitled to appear for his client in a magistrates' court but, for some reason or another, the case goes on to quarter sessions, and is heard there instead of in the magistrates' court. The solicitor dealt with the case, saw the client, went through all the preliminary work, and at the last moment, just because there is a change of venue there has to be a change of advocate. That is not good enough from the point of view of the client, and I emphasise that the chance of actually getting the barrister to appear whom the solicitor had chosen is not much better than fifty-fifty—if that; and this is not good enough.

In finishing my remarks, I come back to exactly the same point from which I started: that there ought to be one figure, and one figure only, before our minds' eye while we are discussing this Amendment. That is the unfortunate client, entangled in this web of legal proceedings, and longing to have beside him the man whom he chose, the man whom he knew and who had seen him through up to that point, but whom at the present moment the law denies him. I beg to move.

4.48 p.m.

THE LORD CHANCELLOR

I do not wish in any way to curtail this debate. Let me say that by way of introduction. I hope that the noble Lord, Lord Janner, whom I am eager to hear upon this subject, will not feel that he has been interfered with in any way if at this stage I offer one or two observations upon this important Amendment. It is the more important because it has to be seen in connection with later Amendments which deal with a slightly different subject but which inevitably, as I shall try to show, are rather closely connected with it.

The reason I have intervened thus early in the debate is because I have an object in view. I think the earlier I put that object to the noble Lord, Lord Tangley, who has moved the Amendment, the more likely it is to be attained. I hope that we shall have a full discussion on this and the other related Amendments, but I hope that at this stage the noble Lord will not feel it necessary to press matters to a Division. The reason underlying my own desire that he should not do so, is precisely one of the reasons which he said he had come to see very clearly after a long life devoted to the profession of the solicitor—longer than mine—with, I think, the very highest distinction which that profession can offer him. As I have known him, if he will allow me to say so, for many years, and have sat under his presidency as the Chairman of the Alpine Club, as a fellow member of the Committee, I am sure he will accept what I say in the spirit entirely in which it is meant.

He said—and I agree with him—that he deplored more than anything an element of emotionalism and rancour which has begun to creep into the public discussion of this and related issues. I want, if I may, at this early stage in the debate, and without any kind of desire to pre-empt discussion in the matter, to point to what I believe to be—what I hope to be—a wise and statesmanlike approach to the whole subject. The noble Lord, Lord Tangley, said that what mattered to him was the client; and that, of course, was the view of my predecessor Lord Brougham, expressed in passionate terms on the occasion, or at any rate about—I think, on the occasion—of the trial of Queen Caroline before your Lordships' House. A Lord Chancellor, of course, has no clients; but he has a duty to the House, and he has a duty to the country of rather a different kind. It is that duty that I want to put before the Committee—not in replacement of the duty to the client, of which Lord Tangley has spoken and which we have all of us had to shoulder at some time in our professional lives.

Let us not lose sight throughout these discussions of one absolute essential fact. Many things about this country have been devalued in my lifetime. We have lost our two-power Navy; we have lost our Empire, which was a quarter of the earth's surface and the earth's population. Our currency is no longer the gold sovereign, as it was when my father went to his Chambers in the morning with a sovereign case, instead of a wallet, in his frock pocket. But one thing has not been devalued at all, and that is the quality of English justice. It is as high now as it was fifty or a hundred years ago—indeed, I would claim without doubt that it has never been higher. It is one of the great glories of our country, and indeed of modern civilisation; and, although much that has gone from this country has gone for ever, that has not gone.

I feel intensely that in all that we do, whether it is on this Amendment or any other, and particularly when we are discussing the structure of the legal profession, with which these Amendments are inevitably concerned, we must not inadvertently do anything to devalue the quality of the justice for which we have become famous: in spite of delays, its speed; its notable impartiality; above all, the independence, quality and integrity of its judges and of the lawyers of both branches of the profession. All these, I think, have not merely been maintained in our time but actually been improved. Let us therefore start from this point of view. In this Courts Bill we are carrying out important reforms, but we are not so much reforming abuse as improving upon excellence.

The first thing I want to say to your Lordships is this. I do not believe that the pride we take in our judges or in our lawyers is either false or fortuitous. I believe that it is founded on a number of postulates which are not always common to other legal systems; and they are interrelated postulates. In many ways our common law as it has developed is not superior to the civil code adopted by most Continental countries. The common law we share with many other countries, among them the United States of America. But I mean no criticism of our Continental neighbours or our American cousins when I say that I believe that our courts are better, our judges are better and our lawyers are better than those of other nations, however good these may be. And I repeat, in saying that I mean no kind of criticism of anyone.

What are the postulates? The first, I believe, lies in our method of selecting judges. Most Continental nations select their judges from the law school, hardly dry, as graduates, behind the ears. They become judges almost as soon as they pass. They are irremovable, but in the sense that civil servants are irremovable. They are appointed to junior positions as civil servants are appointed to junior positions. They rise largely by seniority, tempered by ability, to the highest positions, as civil servants rise. Not for them the competition and the stress of private practice; not for them the midnight hours devoted to briefs, or the contact with the client, the familiarity with juries and classic observation of judicial habits and foibles because they are sitting in their courts mainly alone. They are judges from the first, and from the first they have been nothing else. In the absence of misconduct, from the age of graduation they are secure in their employment. They cannot help but rise.

By contrast, our judges are selected in middle life. During the whole of their professional life they have been subjected to the intense scrutiny of a small, critical and highly competitive profession. They are selected from those who have succeeded in the courts.

LORD TANGLEY

By attracting the attention of solicitors.

THE LORD CHANCELLOR

May I say that, like all members of my profession, I owe any small success that I may have had to the confidence which solicitors over 37 years have occasionally shown in me.

LORD TANGLEY

The noble and learned Lord will realise that it is a very strenuous selection process.

THE LORD CHANCELLOR

I realise that there were many others who deserved the confidence of the other branch of the profession better than I did. But that is how our judges are selected. Their independence is based, not on removability only but on the fact that they have never been Government servants and have never been taught to think and behave as Government servants.

They are selected from one branch of a legal profession divided into two, neither of those two branches intrinsically more honourable or more capable than the other, but each, I am firmly convinced—and in this I may be forgiven a pardonable national pride—as capable as, and perhaps more honourable than, any other legal profession in the world. The integrity of English lawyers, I believe, like the noble Lord, Lord Tangley, has been based upon the mutual co-operation of two branches of a divided profession, each indispensable to the other in its nature, each supporting the other in its separate function. Of course, this separation of function is not easy to explain to the outside world. The separation is not, for instance, based on subject matter. There are barristers who have general practices and there are solicitors who have general practices. There are barristers who have practices specialising on tax and tax questions, and there are solicitors who have practices based on specialisation in tax cases. The analogy is not exactly comparable, for instance, to that between physicians and surgeons, or between specialists and general practitioners, or between G.P.s and consultants, though each in fact offers some valuable analogies.

The distinction has grown up around two fundamental propositions. A barrister may not take his instructions, broadly speaking, from a member of the public; he has to take them from a solicitor. A solicitor may not appear as an advocate before the superior Courts of record; he must employ a barrister to do so. Obviously there are exceptions both ways, and will continue to be exceptions both ways, based on utility or custom; and obviously, as the noble Lord, Lord Tangley, said to the Committee, from time to time there will be areas in dispute and areas requiring adjustment. It may be, or it may not be—I will come to the details a little later—that this is one. But the professions take on their separate characteristics and their peculiar economics from the rule and not from the exceptions.

For instance, an English barrister has an experience of litigation far superior to that, I believe, of the busiest American trial lawyer. He may carry 50 or 60 solicitors' names regularly on his fee book; he may read draft documents in 30 or 40 cases during a day and a night and appear in court at the same time. As I ventured to point out in the Second Reading debate, he writes no letters, he keeps virtually no accounts except the minimum required for income tax purposes, he indulges in no property transactions, he administers no trusts, he can leave his job at almost a moment's notice to try a case on assize, or even to become Lord Chancellor. His clerk, for whom he works, is not employed by him but by a syndicate, comparatively numerous, and will continue after his departure. He has no goodwill, no partners and very few overheads.

By contrast, when a solicitor reaches the upper levels of his profession he has an office with overheads sometimes running into thousands of pounds; a goodwill which he can sell or share with partners; a capital investment which I do not want to exaggerate, because when on Second Reading I spoke of half a million pounds a well-known solicitor who happened to be at the same party with me said, "In my case it is only £300,000", and therefore I may have been exaggerating. He has partners, managing clerks, typists—if he can find them—and a huge range of individual clients.

Each man is neither better than the other nor worse than the other. Each has developed over the course of a profession into different kinds of creature. I do not think it is worth while discussing which is the better, but I should like to say this—and I know the Committee will bear with me while I do so—and I think the noble Lord, Lord Tangley, may not disagree with me, in view of what he said, al-though I should not expect to find the total agreement of the noble Lord, Lord Goodman. The noble and learned Lord, Lord Gardiner, contributed to a book which was published this year called Current Legal Problems. In that he publishes two American views of the set of facts which I am seeking to describe. They were views based mainly on the efficiency of the English system. I put efficiency second; I put integrity first, but these are mainly based on efficiency. Mr. Dewey, for instance, who was very nearly (but not quite) President of the United States of America—he was beaten by Mr. Truman—wrote this: Your legal procedure is of course superb. There are four judges in London doing the same work that we have 30 judges for in New York. Only this morning I saw a murder case at the Old Bailey that took an hour and a half; it would have taken a week to finish it in America. Your judges have a great deal more power than ours and your barristers are specially trained for the particular job they are going to do; our lawyers have to tackle any case. Then the noble and learned Lord went on to quote another American view, by Mr. Francis Welman of the New York Bar, on the art of cross-examination. He is talking of the congestion in the American courts and he says: The congestion is largely the fault of the system in vogue in our American courts of allowing any lawyer duly enrolled as a member of the Bar"— that is, of the fused profession— to practise in the highest courts. In the United States we recognise no distinction between barristers and solicitors. We are all barristers and solicitors by turn. One has not to frequent the courts to become convinced that so long as more than 10,000 members of the New York County Bar can avail themselves of the privilege to appear in court and try their own clients' cases"— of course the verb "to try" in America means in this country to appear as an advocate— the great majority of the trials will be poorly conducted and much valuable time will be wasted. The conduct of a case in court is a peculiar art for which many men, however learned in the law, are not fitted. We are beginning to appreciate in this country what the English courts for so long recognised, that time is a valuable commodity and has to be paid for by the litigant or the State. I quote those somewhat lengthy passages to indicate what I believe to be true; namely, that the balance of adjustment between the two parts of the legal profession in this country ought, as the noble Lord, Lord Tangley, said, to be a matter of pride to both of us and a matter of adjustment between us, and not a matter of rivalry or comparison and, if possible, not a cause of demarcation disputes. I know that there are people who want to change this. The noble Lord, Lord Goodman, I believe, has gone on record as saying that he wants a fused profession; and the noble Lord, Lord Fletcher, in the course of his speech on the Second Reading of the Bill indicated as much. There are fusionists at the Bar, although this is not generally supposed. But I believe, with the noble Lord, Lord Tangley, that in both branches of the profession fusionists are probably in the minority.

What I want to say to the Committee is really this. This Bill is, I hope, a piece of useful legal reform about the structure of the courts. I recognise that the legal profession, as such, is approaching a number of problems of a quite fundamental nature. I do not myself take quite the easy view that Lord Tangley takes about the possibility of viewing these three Amendments to Clause 12 wholly in isolation from the others. I believe that they do affect the balance of the professions. Nor do I think that the two professions can long fail to approach some of the more difficult problems which are rapidly crowding in upon them. The problem of recruitment, the problem of accommodation for the Bar in different centres, perhaps precipitated by this Bill; the problem of education, which cannot be discussed until the Ormrod Committee report—as I hope they will do soon—but which must profoundly affect the two branches and must, at any rate in my judgment, demand that the two branches seek to co-operate with one another.

There is, of course, the profound and difficult and extremely controversial complex of problems facing the two professions on entry to the Common Market. Which profession will be allowed to practise, and in what circumstances, in the Common Market Courts and Commission, and so on; and which foreign lawyers will be allowed, and in what circumstances, to practise here? I ask all three noble Lords who have put their names to this Amendment to consider whether the future of the legal profession, of which I am so proud of both its branches, can best be tackled in an atmosphere of mutual recrimination and criticism, or whether it requires a joint approach by the two branches, removed from criticism and mutual antagonism. I do not want in what I have to say to criticise anybody individually, but I think that, for instance, the correspondence which is currently taking place in The Times has not done the prestige of either branch a great deal of good. I think that on balance, both branches have come off badly. The picture which is being painted to the public is not that of the finest legal profession in the world, which I believe it to be, but of a legal profession one branch of which is defending entranched positions and the other seeking to share a monopoly. I do not think that either is really attractive or true.

I would therefore ask the Committee whether the way to approach the question is not this. But before I put that to the Committee may I say something which I think has not so far been mentioned, and which I can mention only with some delicacy. Ever since litigation began, and particularly criminal trials, one has to recognise that the professional practice and conduct of litigation is a matter which is peculiarly subject to trials and temptations and problems of an ethical kind. Why is it that we have managed to have a Judiciary that is never bribed, and always impartial—as I believe we have; barristers who never conspire to permit perjury or to connive at perjury; and solicitors who do not put forward false cases to argue before juries? I think it is very largely because in the higher ranges of the courts, in civil cases which cost a lot of money, and in criminal cases where life and liberty may be at stake, the two branches of the profession each contribute a member of its own to co-operate together and participate in what has to be done, each supporting the other and each helping the other to maintain the standards of British justice.

These Amendments obviously revolve around the right of audience. The right of audience is one of the great preserves of the Bar in the higher courts. The right which the solicitor has in exchange is that the barrister cannot be approached directly by the client. They are mutual rights, and they are closely connected. When we come to the later clauses, Clauses 15 and 20, we can discuss the effect of this upon eligibility for the Judiciary, but in the meantime I should like to put this thought to the Committee. If what the House wants, if what Parliament wants, if what the public wants, is an inquiry into the structure of the professions with a view to mutual adjustment, then it ought to have what it wants. But to use this Bill, which is a Bill about the structure of the courts, without inquiry, without evidence, and on these Amendments at least without any recommendation from an impartial inquiry in their favour, is, I think, a mistake.

The history of this matter has been as follows. On the Second Reading the noble Lord, Lord Goodman, raised what was in substance the question of eligibility to the Judiciary; and that arises on Clause 15, and not on these Amendments. In reply to that, I ventured to say to the House that I thought two things. The first was that as this was a Bill on the structure of the courts and not on the structure of the professions, it would be unfortunate if this matter were pressed beyond a point in connection with this Bill. But the second thing I said (it may have been a foolish thing to say, but I believe it was absolutely true, and therefore I do not apologise for having said it) was that you cannot discuss eligibility to the Judiciary without at the same time examining the right of audience; because, especially in the light of this Bill, every Circuit judge is going to be a man who has to try cases in front of a jury—that is, criminal cases on indictment—as well as to try civil cases; and as the matter stands solicitors have never addressed a jury in their lives, except in a few isolated cases which have a certain relevance to this clause. I said that, and I believe it to be true.

Apparently that has created the situation in which the noble Lord, Lord Goodman, and the noble Lord, Lord Tangley, on behalf of the solicitors' profession, have said, "Very well, we will take you at your word. You say that eligibility to the Judiciary is bound up with the right of audience. Right, let us have it looked at in Clause 12". I think that may be to some extent the genesis of these Amendments. Whether or not I am right in seeing logic in that, it is, if I may say so, a perfectly legitimate view to take. But it goes on to underline what I have hitherto been contending about it. In connection with Clause 15, the noble Lord, Lord Goodman, had this to say in its favour: that there was a halfhearted recommendation of the Beeching Commission in favour of the change. They said, "We are inclined to the view that …" and then spoke about eligibility of solicitors to the Judiciary. They had not, I think, taken any evidence; they were only a majority; they were only rather modestly of the opinion, as it seemed to me; and they were, I think, a little outside their terms of reference. But again they argued a perfectly legitimate point of view. On this set of Amendments, dealing with the right of audience, so far as the Beeching Commission are concerned you are dealing with terra incognita; they did not consider the matter, they made no recommendations, took no evidence, and it was not within their terms of reference.

Clause 12, as it stands, gives the Lord Chancellor power to open certain courts to solicitors where the case is made out, I said on Second Reading, and of course I stand by it, that the first thing that will happen is that I will open the courts which at present are open to the solicitors, which are the successor courts to the quarter sessions where they can already practise as advocates. I told the Law Society, and I tell the Committee now, that if other cases are put before me I really believe I am capable of adopting a fair-minded view of them. When I had heard both sides I would view with a certain amount of respect, and with every endeavour to do justice, the needs of any particular courts to receive solicitors as advocates.

The present Amendments go a good deal further than that, in two quite separate ways. The first is that they do not relate to particular courts but to three general classes of case, and, with great respect to the noble Lord, Lord Tangley, they are three separate classes of case which do not altogether stand on the same footing as one another. There are the cases which start in the magistrates' court and proceed by way of appeal or by way of committal for sentence to quarter sessions. By the way, may I correct the noble Lord, Lord Tangley, in one minor respect. He spoke of appeals by the prosecution. I think that was per incuriam. I do not think he will find that they take place from magistrates' courts to courts of quarter sessions. I think he will find that I am probably right about that, but I do not think it damages his argument at all.

Then there are those cases which start from magistrates' courts and are carried through to the court of quarter session. I can see that some kind of case can be made out. I do not go all the way with the noble Lord, Lord Tangley, in this respect. If you have lost your case in the court below, or even if you have won it, my experience is that on retrial you never do it quite so well again, and for this reason I always tried myself, when a jury disagreed or the case was sent down for retrial, not to do it the second time. I can understand the client taking the view that he wanted to keep the same horse or that he wanted a new one. But I can see the noble Lord's point; it ought to be considered.

LORD TANGLEY

If I may interrupt the noble and learned Lord, may I say that it is very hard to explain to the client why he cannot have you if he wants you and you cannot explain to the client whom he will get or what his status or experience will be. That is the situation at the present time.

THE LORD CHANCELLOR

There are other things which it is hard to explain to the client, too. I remember a case I appeared in at the Old Bailey two years ago, in which I got the jury to disagree on a charge of murder in the first trial. In the second trial the man was convicted, and he wrote to his solicitor complaining that in the first trial I had made a speech for two hours and in the second only spoke for one and a quarter hours. It was impossible to explain to the client why I made a shorter speech in the second case. There are lots of things that are difficult to explain to the client, but ultimately it is the interests of the client which matter and not what you can easily explain to him. However, if I may return to the point, it is obviously a case which is worthy of consideration.

Then there is the third case, the hybrid offence which could be tried in the magistrates' court if both parties and the court consented, and which in fact, either because the prosecution or the defence wanted a trial by jury, or because the magistrate said that it is too serious for a magistrates' court to try, it goes to trial by jury. I think that again is on a rather different footing, because if you have a different tribunal, one involving a jury and one not involving a jury, there is, or may be, a good case for a different advocate.

However that may be, what I am saying to the noble Lord is this. If he wants to give the Lord Chancellor power, as he has in all the other cases under Clause 12, to examine these matters, I certainly would consider that; or if he wants an inquiry, which I should vastly prefer, between the two branches of the profession, I should vastly prefer them to set it up themselves, but if I can be of any assistance in helping them to do so I should more than welcome the opportunity.

What I would rather ask—and this comes back to the actual verbiage of these Amendments—is that he should consider very carefully whether it is wise to pursue this matter without any inquiry, without any preliminary consideration, without the opportunity to the other side to put their case or to argue their case in public, and without any report in its favour: to pursue these things to a Division. I think we can both rather take these arguments to heart and take them away and think about them, and then we can approach one another with further thoughts in view.

These Amendments in themselves do not give an enabling power; they impose upon the law of the land the obligation, in three rather ill-assorted classes of case, to give solicitors the right of audience in the higher courts of the land. That may or may not be a good thing to do. But I would seriously suggest to the Committee that with so much at stake, with so many complex problems ahead, the sensible thing would be to hold some kind of discussion or inquiry before pursuing this dispute, which has been an unpleasant one for us all, à l'outrance. At the beginning of the debate I put this idea to the noble Lord, Lord Janner. I said that I did not wish to pre-empt discussion; but I do want to suggest a course of action which I believe to be in the interests of all.

5.23 p.m.

LORD JANNER

I have listened with considerable interest, as I am sure everybody has, to the excellent speech which has been made in a humble spirit by the noble and learned Lord, although I do not agree with some parts of it. Perhaps I may also respectfully say to the noble and learned Lord that to me, as an old House of Commons man, it appeared to be a Second Reading speech rather than a speech on this particular clause. I am sure that he will forgive me for putting it in that way, because we were, and are, accustomed in the Commons to deal with a specific point and, at the end of the clause, perhaps to have that type of speech. But I appreciate his reason for having made this speech and for giving us the opportunity of saying, first of all, that everybody, I think, throughout the country accepts what he has said; namely, that our system of justice as it stands is as good as, and probably better than, any that exists anywhere else. I have not the slightest doubt about that. I have visited many countries, as no doubt have other noble Lords, and have found the same thing prevailing. When we meet lawyers in other countries there is no doubt that they have a great admiration for what happens in this country so far as justice is concerned.

But surely we have now come to a stage where we are considering a new set-up. It is 100 years since this kind of problem was tackled; and again, with great respect, I say to the noble and learned Lord that there are many items in this particular Bill which could come under the heading of the kind of material to which he himself was referring, and equally could be considered to be irrelevant from his point of view but relevant from our point of view when we are considering this most important change in so far as the courts are concerned and, for example, in so far as magistrates' duties will be concerned in future. They will be sitting together with judges, apparently in a judicial capacity, and so on.

No one wants to bring a spirit of acrimony into this matter. What the Committee are being asked to do is to say, now that the system of courts is being changed, whether or not there is something which is wrong with regard to advocacy or those who are entitled to be advocates in the courts. It is as plain as that. That is what these Amendments stand for—nothing more, nothing less. And, of course, in the course of argument one must bring forward facts—the noble Lord, Lord Tangley, has already mentioned some of them. Some of us are practising lawyers. It is a terrible thing if you cannot get a counsel; if they are not available, or if counsel has to be changed, or if, at the last moment, counsel hands in a brief because he is either engaged in two courts at the same time or has to go to the Court of Appeal in consequence of the fact that the Court of Appeal has prior right.

Surely, we are entitled to examine this matter, and to ask ourselves without any disrespect to the Bar or to either profession this question. Is not this the time, when we are changing the system itself, to decide who should be allowed to become an advocate? I am not dealing with the question of chairmen—I shall come to that later. But I happen to be a practising lawyer. I approach this subject first as a citizen; secondly, as a person who has spent the main portion of his life in public work through Parliament; and thirdly, as a person who has been a solicitor for over fifty years, in continuous practice.

May we regard this first of all from the point of view of the citizen. Of course this is the important feature of this case. We have to be just. To the individual, the man in the street, we have to appear to be just. He does not know about the intricacies of the law. I have been a Member of Parliament, as have so many of your Lordships. We know from our "surgeries" that in the vast majority of cases when people came to see us some legal issue was involved. They came to the layman in his surgery. Sometimes he was a lawyer, and they came to him for advice. What advice was given? If he himself did not know, he either had special legal sittings by friends, or he advised the individual concerned to go to a solicitor. With the experience of being a Member of Parliament, we know—as I think every Member of Parliament knows—that on a vast number of occasions we have advised people to go to solicitors, and they have received advice.

Now may I come to the third aspect of this matter? What does the individual do when he goes to a solicitor's office? He explains his case at length. The solicitor makes all his inquiries, and he knows not only the case but the nuance of the case. He knows what is behind the person's thinking. He has the opportunity of constant contact with him throughout the whole of the proceedings. He appreciates, with his experience, what is in the client's interest, and what is not. Therefore, when it comes to the preparation of a case, although he may give a brief to the barrister he cannot possibly put into that brief the whole of the information which he has assimilated in the course of his inquiries. I see a practising solicitor nodding. That is why sometimes, when you are sitting in a court, you see the solicitor becoming impatient when the barrister is pleading the case, and the barrister just pushing him off. The solicitor is in a position to explain things which a barrister sometimes cannot possibly see because he does not know the nuances of the case.

Of course the Bar has a very important part to play. For my part, if it were a question of talking about fusion I think, on balance, I would be against it, because there is specialist work for the barrister to do. A solicitor has not always the time to go into the legal aspect of the case as much as he would like. There is no doubt at all in my mind that the barrister, in so far as the law is concerned, is almost invariably a specialist. I do not say that he is always a good specialist, but he is invariably, after a time, a specialist because he goes into chambers which specialise in the particular kind of work with which he is concerned. He is as necessary as the solicitors' branch of the profession. But here we are not talking about that; we are not talking about a conflict between the Bar and solicitors. We are talking about the practical issues which confront both professions in respect of serving the public.

I do not want to carry this matter too far. I have plenty of illustrations of a very serious nature indeed in which, at the eleventh hour—and I know this from my own experience—briefs have to be handed over to a youngster who is not very experienced (and that is a great under-statement) and who has not had an opportunity of reading the case properly. That is not fair to the individual; and this is the point we are driving at. How can you cope with a situation of that sort? You may not be able to cope with it in the High Court, but let us go step by step. This has always been our method in this country of remedying a situation which is difficult. You want an inquiry. You have publicity and much more if you have a public inquiry; and in that event is not everything going to come out in fullest detail with regard to the incidents and instances that I have referred to? Who wants that? The Bar knows it as well as I do. The Bar knows it as well as the solicitors' branch does.

What are we asking for here? I think most people realise that there are 25,000 solicitors, but there will not be 25,000 people who want to plead cases. However, there are some people who go into courts, particularly the younger people, and they have a flair for it. It is no good saying to a solicitor, "All right, join the Bar". I must point out to the Committee that if a solicitor who has been in practice goes to the Bar, he is eligible for a judgeship in the same way as a barrister, because the experience he has had before that time counts in so far as his eligibility is concerned. So the fact of the matter is that a competent solicitor, an able solicitor, a person who is experienced in advocacy—and many of my colleagues are experienced; they like advocacy work very much, while at the same time carrying on their general practice—is allowed to practise in the magistrates' court.

What does it all mean? If a person has never been in a court before, even if he is liable only to a fine of ten shillings or a pound, his case is as important to him as a case which goes to the High Court. Every person who comes into a solicitor's office with a case considers his case to be equally important as any case that involves very heavy financial sums. If he appears in a magistrates' court he wants a person to defend him in the same way, and with the same competence, so that his case will be properly dealt with. In fact, there are solicitors in the court who do this kind of work, who enjoy doing this kind of work, and who are prepared to continue it. If they can do this in a magistrates' court—and this is all that is being asked here: one step, and not a very big step—in the same way as a barrister can, and if the solicitor is capable of defending or prosecuting, surely he ought to be able, in those cases which are not indictable offences but which cannot be tried in a magistrates' court (there is a difference because the case which can be tried in the magistrates' court could have been finished in the magistrates' court although it might have gone to a further court), if the client so wishes, to continue with the case. What is wrong with allowing the person who knows the case to appear in another court on precisely the same kind of case as he would have been able to participate in in the magistrates' court? Is there anything wrong with that? On the contrary, is it not reasonable to believe that some people who are satisfied with their solicitor would want him to continue with the case in another court?

If a solicitor has successfully carried through maintenance order proceedings in the lower court, is it not reasonable that the person concerned—his client—should want him to carry on with the case if there is an appeal? So far as I can see, that is a reasonable thing to expect in those cases—and I am trying my best to keep off anything which could be regarded as acrimony in any way. We claim that in those cases—and I think the Law Society is 100 per cent. right in this—it will help the individual: it will cost him less, and it will cost less in legal aid cases. It is estimated that as much as £500,000 might easily be saved if solicitors were allowed to appear in the Crown Court, and the public would be properly served. All we are asking here—and it is a most reasonable request—is that the public interest should be best served.

I do not understand the argument about the Bar being affected. The Bar is up to its ears with work and finds it impossible to cope. Many are placed at a disadvantage because the Bar cannot cope, and I am sure that members of the Bar want someone to help them in the same way as they want junior barristers to help. So I ask my noble friends and others on the opposite side of the House (I hope they will accept it from me when I also call them "my noble friends") to weigh up this matter in that way. It is not a political issue, nor an issue between the Bar and the solicitors. It is purely and simply an issue about what is in the best interest of the man in the street, whom we are serving.

I have never, or only very rarely, come across a case where, if a barrister has appeared for an individual, that individual has not wanted the same barrister to represent him on an appeal. I have no recollection of that happening. The person concerned wants the same barrister because he knows all about the case; and the same applies with a solicitor. What we are asking for here is not only reasonable, but also highly important from the point of view of justice. By this method justice will be brought to many people who will not otherwise be able to afford the kind of legal aid which they need. Secondly, the country itself will benefit financially to a considerable extent. I hope that we shall pass these Amendments without feeling in the slightest way that anyone is being attacked. It is only a question of balancing arguments and, with the greatest respect, I believe that the argument which my noble friend put forward, which has been very poorly supplemented by myself, will persuade the House to vote for the Amendments.

5.45 p.m.

LORD PARKER OF WADDINGTON

My relations with the Bar Council, and also with the Law Society, are, I hope, happy relations and I think it is important that those relations should remain good. Accordingly, I very much hesitate to take part in this debate, because it inevitably means treading on somebody's toes, but I think it is my duty to state where I stand in this matter. Let me say at once that I am very happy to agree with the noble Lord, Lord Tangley, particularly because I was once one of those inexperienced counsel that he found, and he gave me some of my first briefs. I am sure that there is a case for extending the right of audience to solicitors on a far wider scale than exists at the moment. It is quite clear that the resources of the Bar are stretched to-day to the uttermost. When the recommendations of the Beeching Commission come into force under this Bill, I can see that they will be stretched still more. If nothing is done it will result in the very delays which this Bill is designed to avoid.

Accordingly, if I had to vote on this Amendment alone—in other words, if it were divorced from the later Amendments that follow—I should certainly be in favour of paragraphs (a) and (b) of subsection (A1) in the Amendment. I think there is a case for opening to solicitors the rights of audience throughout the country on appeals from magistrates, and also on the hearing of committals for sentence to the Crown Court. As those who have already spoken have indicated, a practice whereby the solicitor has to go in those matters to a counsel—not a counsel of his choice; perhaps somebody of no experience at all—is a practice which cannot be defended. It is not in the public interest. There is no doubt to-day that, for that class of work, a barrister who can be briefed—if one can be found—is obviously going to have less experience than the solicitor concerned, quite apart from the fact that he will know less about the offence and less about the client.

But it is a long step forward from paragraphs (a) and (b) to paragraph (c), and paragraph (c) I would do my best to resist. As the noble and learned Lord, the Lord Chancellor, has already indicated, the cases covered by paragraph (c) are referred to by lawyers as hybrid offences, offences which are set out in Schedule I of the Magistrates' Courts Act 1952, and include a number of very serious offences—wounding, perjury, forgery, to mention but a few. It is not, as the noble Lord, Lord Tangley, said, an accident of venue—magistrates' court or assize and, under this Bill, Crown Court. It is provided that cases of the serious character of this type are to go forward. They will go forward under indictment and, being of this type of case, will now go before the assize judge and, under this Bill, before the High Court judge sitting in the Crown Court.

I venture to say that, at the moment at any rate, presenting a case in a magistrates' court, or before a Crown Court with the Circuit judge and magistrates sitting with him, is a very different matter from appearing in a case on indictment before a High Court judge. Having said that, believe me, my Lords, I am not suggesting that the time may not come when it will be perfectly right and in the public interest for that to happen. I am quite satisfied that at the moment it would not be in the public interest, certainly until a reasonable number of solicitors have had experience in work in the higher courts through increased rights of audience, for it to be allowed at this stage. Accordingly, if one were looking at this Amendment alone, divorced from the Amendments which follow later, I would be in favour of it, subject to the deletion, by way of a further Amendment, of paragraph (c).

5.50 p.m.

VISCOUNT DILHORNE

I suppose that anyone who has come from the Bar to the Woolsack, when he reaches that position starts thinking primarily of the Bar; but it does not take long for him to realise that he has to take a wider view and to pay as much attention to the interests of solicitors as he does to those of members of the Bar. In a sense, he is completely responsible for both sides of the profession. Before I reached the Woolsack I, like Lord Tangley, did all I could to foster close association and friendly relations between the Bar Council and the Law Society, to remove misunderstandings and to try to get them to work together; and I think our efforts were not without considerable success. One of the things which I was most keen upon and did what I could to urge forward was to make it easy to transfer from one branch of the profession to another, because when you are young it is so easy to make the wrong choice. It is very easy for a young man to come to the Bar and then find, after a few years, that the life and work of a solicitor is more attractive; or for a young man to become a solicitor and then find that advocacy has its charms and that he wishes to go to the Bar. A great deal has been done in that direction: it is much easier to change from one side of the profession to another, and that ought to be borne in mind when considering this Amendment.

My noble and learned friend the Lord Chancellor (if I may call him that: he is sitting on those Benches) has made, if I may say so, a most powerful and eloquent speech dealing with the whole problem of relations between the two sides of the profession and with the public interest in the matter. I do not think anyone who has been Lord Chancellor would take one side or the other; he would be governed by his views as to where the public interest lay. I am sorry that this controversy has arisen, both in regard to rights of audience and in regard to eligibility for the judicial Bench, because fear, judging by the correspondence which has been published in The Times, that it will lead to increased acrimony between the two sides of a great profession. That I should regret, and that, I think, may do considerable harm. If it does, I hope the harm will not last. I should have liked a proposal of this sort to come forward after consultation with the Bar Council by the Law Society, and after due inquiry. I thought that was the most powerful part of my noble friend's speech. I do not know, but I do not think that the Law Society would find the Bar Council entirely unresponsive. The situation has changed. My own views have changed considerably.

I should like to reinforce the plea to the noble Lord, Lord Tangley, that he should not press this Amendment to a Division to-night, for two reasons, primarily. The first is that this Bill is bound to take a long time to get through, and I cannot think that there would not be time to make proper inquiry with the Bar into the proposals contained in this clause before it is too late to table the Amendment again, if need be in another place. It would be a pity to try to divide on this now, and perhaps carry it in the face of strong opposition from the Bar, if that could be avoided. I would say to the noble Lord, Lord Tangley, that, sitting as I do—until this Bill comes into effect, when I shall be cut off—as a deputy chairman of quarter sessions, I have the greatest sympathy with his proposal that solicitors should be allowed to have a right of audience on appeals from magistrates' decisions. That would be very desirable, subject to one limitation: it should be provided that it is the same solicitor.

The noble Lord, Lord Tangley, has said that there was only a 50–50 chance that an appellant would get the same barrister. In these days, when solicitors are so busy and so many of them are wanted so often in so many magistrates' courts, I wonder whether the chance of getting the same partner to appear on an appeal as appeared in the magistrates' court is really much more than 50–50. But if the noble Lord, Lord Tangley, limited his Amendment to saying that the same solicitor should have the right to appear on the hearing of an appeal as the one who had acted in the magistrates' court, I myself should find that very hard to resist. In fact, if I were sitting as deputy chairman I would welcome the presence of the solicitor who had appeared when the case was first heard before the magistrates and when a barrister had not been briefed, regrettable though that might be. Equally, in the case of proceedings on committal for sentence, if, again, appearance was limited to the same solicitor, I should find it very hard to oppose.

But I agree with the noble and learned Lord, the Lord Chancellor, that when you come on to the third category—that of trials on indictment—then, indeed, you are moving into a different region, and here, I think, the Amendment is making an encroachment on the position which up till now has been occupied by the Bar. The noble Lord, Lord Tangley, is as opposed to fusion as I am, not because of the interests of one side or the other of the profession but because neither of us believes that it is in the interests of the public that that should take place. I know the noble Lord, Lord Goodman, disagrees with that, but that is his view and I hold my view. It is because I think that the third proposal goes too far and tends towards fusion that I would put that forward to the noble Lord, Lord Tangley, as another reason for asking him not only to place great weight (because I think great weight should be placed) on what the noble and learned Lord the Lord Chancellor has said but also to place great weight on what the Lord Chief Justice has said, and on the criticism that his clause as it stands is not entirely satisfactory. I would suggest to the noble Lord that after this debate—which, if I may say so, I having listened to most of it, has seemed to me to reach a very high level—it would be worth while to respond to the call made to him not to press the Amendment to a Division, bearing in mind that there will be other opportunities here or in another place.

I cannot speak for the Bar Council, but I am sure that in the light of what has been said to-day from so many quarters, and of all the comments that have been made, they would certainly co-operate with the Law Society in an immediate inquiry into this problem. How happy it would be if, as a result of consultation of that kind, the noble Lord, Lord Tangley, could come forward at a later stage of this Bill, which is bound to be after Christmas, with proposals supported not only by the Law Society but also by the Bar Council.

VISCOUNT BRENTFORD

If I may detain your Lordships for a few moments, I must first declare my interest in this Bill as a solicitor (though comparatively juvenile to those who have spoken before me, as I have not quite completed fifty years in the profession as yet) but as one who can definitely state that he has no practical interest in this Bill because he is far too old to be appointed by the Lord Chancellor to any of the offices of which we are speaking. I listened with the greatest interest and attention to the speech of my noble and learned friend the Lord Chancellor, and I thought he really made out a wonderfully good case for the elimination of the rights of any solicitor to practise and receive audience in any courts at all.

THE LORD CHANCELLOR

I did not mean to.

VISCOUNT BRENTFORD

My noble and learned friend says that he did not mean to. That I am quite sure is so. It would not be his wish to remove the right of audience for solicitors in magistrates' courts. But every argument he produces against the right of audience for solicitors in the superior courts would have applied pretty well to their rights of audience in the magistrates' courts.

My noble and learned friend said that this Bill deals with the structure of the courts and not with the structure of the profession. I agree with that entirely. But where you have a Bill which is making provision for a number of new courts, surely you must also take into account the production of those who are going to man the courts, both in the Judiciary and also in the right of audience. Therefore I cannot agree with my noble and learned friend that this Amendment is in any way out of place in this Bill. He mentioned that the Beeching Commission did not have before them any evidence on this subject; but in that I venture to think that he was not quite so accurate as usual, because both the Law Society and the Bar Council submitted evidence before the Commission.

THE LORD CHANCELLOR

Perhaps I may intervene for a moment. I do not think that my noble and learned friend wants to misrepresent the situation. On these Amendments, which are confined to the rights of audience, unless I am mistaken (and perhaps he will correct me if I am) the Commission made no recommendation at all. The only recommendation of the Commission was in relation to eligibility for the Judiciary. If I am wrong I shall be happy to retract; but I thought I was right.

VISCOUNT BRENTFORD

I think that my noble and learned friend is correct; that was not quite the point I endeavoured to make.

If I may I will turn to the question of our friends in the other branch of the profession, and their availability to take on the additional work which will be involved in the increased number of cases. I do not see how they can do it, particularly if their branch of the profession is further to be reduced in its top echelon by the withdrawal of people to take up judicial posts in the new courts. I can tell the Committee that I had occasion the other day to seek advice from counsel. I submitted the papers to him; his clerk rang up and said, "I will put them before him in about six weeks." I said, "Why? I want the answer now." He replied, "He has so much work to do that he cannot possibly look at the papers for about six weeks." This is the sort of state in which we find ourselves in the profession at the present time. As the profession is organised at present, I do not believe the answer to that problem can be that there are always more young people ready to come into the profession. I heard recently of an exceedingly able, personable, suitable young man who wanted to become a barrister. I applied to the heads of one or two Chambers who were delighted to read about him and who said he was just the sort of fellow they wanted. But, they added, "we have not got room to take him into Chambers." Eventually, one said, "We have a rule whereby these young gentlemen can spend only half their pupilage in our Chambers, and they then move because we are so full." When you get a profession as crowded as that appears to be at the present time it is difficult to see what justification we have for imposing still further additional burdens on them without endeavouring to relieve them to some extent, at any rate to the extent of what is proposed in this Amendment.

Finally, as the Committee are aware, it is a fact that in certain of the courts solicitors have a right of audience where they have enjoyed it in the past. It seems to me the height of illogicality that there should be a right of audience in certain of the courts but not in certain others where they are on parallel lines. It seems to me completely logical that if a solicitor has a right of audience in one court he should have it in all other courts of that grade and type. I very much hope that it will be to the pleasure of the Committee to accept these Amendments.

6.5 p.m.

LORD GARDINER

I feel that the Committee will expect me to say something on the matters which have been adumbrated. I do not want to. What I want to do is to retire from public life as soon as possible. I have worked very hard all my life. I am 70, I have a pension and I do not see why I have to go on. However, here I am. I thought I ought to say something on the matters before the Committee because I am in a sense in a special position. I was four years on the Bar Council as a junior counsel before the war, and four years as a Silk after the war; and there had been a change. Before the war, there was a tendency for an atmosphere of hostility to exist between the Bar Council and the Law Society.

After the war, when we started again, we took the view that this was unnecessary, and we adopted the opposite policy. Personally, I have always had amicable relations with solicitors. We set up a Joint Council of the Bar Council and the Law Society to consider how together we could give better service to the client. I agree with the noble and learned Lord, Lord Tangley, that that is the thing that matters. In addition, the Chairman, Vice-Chairman and Secretary of the Bar Council and the President, Vice-President and Secretary of the Law Society lunched together once a month, and we never told our executives what we talked about. They knew that that was the position and they accepted it.

After that, having been twice elected Chairman of the Council, I had ten years on the Bar Council. I have taken part in more discussions on questions of this kind—and I have always had friendly relations with solicitors—than possibly any other Member of the House. With the exception of my noble friend Lord Stow Hill, I rather believe that I am the only non-academic barrister who has ever become a Peer. There are a number of solicitors in this House, and for all these reasons I thought I ought to say something on the matter before the Committee I believe that the consideration we should have in our minds when considering this Amendment are substantially the same as those we should have in our minds when we consider later Amendments in the same names with reference to eligibility for judgeships. I think there are really two preliminary questions that must be considered. No non-lawyer could be blamed for not appreciating all the considerations involved. I think there are two basic questions. The first is this. In the times in which we live, and with the growing feeling about monopolies, has not the time come when, instead of having a divided legal profession, we should have one legal qualification of lawyer; and then everybody can specialise as he likes? Why should we have to have two lawyers when we want only one? Would not this be to the advantage of everybody?

The importance of the basic question is that if you answer the first question, Yes, then I imagine that you are in favour of these Amendments. The noble Lord, Lord Goodman (though he did not tell us), is, I know, a very strong fusionist. Few lawyers are. He is entitled to his view. If you take this view you are in favour of this Amendment. If you answer the first question, No, a second question arises. If we are to maintain a divided profession what ought the division to be?

On the first question, may I explain the three reasons why I personally am in favour of the divided profession. The first is that the barrister and solicitor have substantially different functions. The solicitor is, in the main, the office lawyer; the barrister is, in the main, the advocate and increasingly a specialist. After all, in 99 per cent. of cases (or whatever the actual percentage is) when you do not feel well and go to your doctor, he deals with your trouble perfectly all right. It is only in a very small proportion of cases that he says, "I am afraid that you have got to have a major operation. I do minor surgery, but I do not do major surgery, and you will have to see a surgeon." Or he says, "Well, as you know, I think there is something wrong with your heart. I have done all the tests that I know of, and I have never seen a case like this before. I think you will have to go and see a heart specialist." The patient does not say, "Why do I have to see two doctors when only want to see one?"

In the same way, in 99 per cent. (or whatever is the right figure) of cases when some legal question worries you, your solicitor deals with it all right. You may want to make a will; or you may want a house conveyed; or you want legal advice. It is only very occasionally that he says, "This means a High Court action: you will have to see a barrister"; or, "This is the most complicated tax position I have ever come across, I think you ought to see tax counsel." They really are separate functions.

One of the last cases in which I appeared before leaving the Bar was in the Court of Appeal. I had not been in the court below, but it was one of those cases where there was a huge pile of papers, and it had taken a very quick judge six weeks to try. My opponent for the appellant, Mr. John Foster, talked for three weeks before I had a chance to say anything at all. Every night I had to work on the cases which he had cited during the day. Now how could a solicitor do all that, while answering the telephone, seeing other clients and dictating correspondence? Solicitors could do a half-day case all right in magistrates' courts or county courts, but High Court advocacy is a separate function.

I remember that when I was Chairman of the Bar Council a man came to see me, and said, "I am a New Zealander; and there, as you know, we have a fused profession; we all practise as barristers and solicitors in firms of barristers and solicitors. Six years ago I applied to the Law Society to be allowed to take out my certificate as a barrister only. As this had never happened before, they took an awfully long time to decide. Of course it meant that I would not have to subscribe to the compensation fund, but eventually they said, 'Well, ail right'. So I left my firm of barristers and solicitors and set up in practice as a barrister only; and I let it be known that I was going to do only High Court advocacy, and then only on the instructions of a firm of barristers and solicitors. I did well because, as you know, where there is a fused system the small firms cannot do High Court litigation. When it comes to a trial they send you to the advocacy partner of one of the large firms, and very often the client does not come back. They knew that if they came to me there would be no question of clients not coming back. I did very well, and now there are six barristers-advocacy; and as we are in court every day and the advocacy partners in the large firms are there only occasionally, they are no match for us. It is only a question of time before the barristers only get an exclusive right of audience".

I believe that has not happened yet, but I am told that in Auckland there are now six Queen's Counsel who are barristers only and fifteen juniors, and this looks like being a case of a fused system becoming de-fused; not on any theoretical grounds but simply because High Court advocacy really is a separate function.

Secondly, there is what is to me a much more important reason. I have attended meetings of lawyers of all nationalities, in Europe, Asia, Africa and in South America. They do not always think a lot of our law, but they almost always end by saying, "Your judges are the best in the world", and by paying a very high tribute to the integrity of our system of justice. I have been told (it is not within my own personal knowledge, so I will not mention the name of the country) that in the court of appeal of a country not far from ours one judge quite regularly gives judgment one way, a second judge gives judgment the other way; then there is an adjournment—and the lucrative position of the third judge (they take it in turns to be the third judge) is said to be good.

Two or three years ago two American High Court judges were convicted of taking bribes from litigants. About ten days ago I read in The Times that an American judge, having been acquitted of charges with reference to prostitution and obscenity, was nevertheless removed because he was not doing his work properly. It is so long since anybody suggested that an English judge took a bribe that nobody can remember when it was. We are, I think, in grave danger of taking this very high standard of integrity too much for granted, and I believe that this high standard is entirely due to our divided profession.

It is not, of course, that barristers are intellectually, morally or socially any better than solicitors—of course not. It is the system. From his earliest years in Chambers a barrister has the ethics of the profession drummed into him. He must not discuss outside Chambers any pending cases; he can have no dealings with the clients; he must not see witnesses, except his client and expert witnesses. I remember telling an American lawyer this, and he said, I simply cannot understand it. I am a trial lawyer myself, mostly for the defence in accident cases, for insurance companies, and I always get all the witnesses together, sometimes for a whole day. If you do not get all the witnesses together, how can you be sure that they are all going to say the same thing?" This is the sort of thing that our system is designed to prevent.

In an important case—say a High Court case—you could not have a false case presented to the court unless the barrister and solicitor were in it together. It is not that the barrister is any better than the solicitor. But as he does not touch the clients' money he cannot embezzle it. He is protected at all points; and because barristers work together in Chambers, and lunch together in Hall, the good opinion of other barristers matters a lot more to a barrister than the good opinion of other solicitors matters to a solicitor. The barrister has no call to go wrong because it would not pay him to get up to tricks. His colleagues would know, and then the judges would know; and judges themselves are men who all their lives have lived under this very strict ethical system. This, I think, is shown by what happens elsewhere.

LORD GOODMAN

Before the noble and learned Lord continues, I wonder whether I might ask him one question. We are discussing an Amendment to give a limited right of audience to solicitors. He is quoting examples of appalling behaviour in other parts of the world. Is he seriously suggesting that if we accept this Amendment that will happen in this country; that judges who are drawn from the ranks of solicitors will thereby subborn witnesses, become guilty of offences relating to prostitution, and generally behave in so discreditable a fashion that they would not be entitled to be bootblacks, let alone barristers?

LORD GARDINER

No, of course not. But I think that the very first question to decide is whether or not we are in favour of a fused system. If we are, then I quite agree—

LORD GOODMAN

I am compelled to ask the noble and learned Lord why he cited the instances of behaviour in other countries, and what relevance of any kind they have in this matter?

LORD GARDINER

For the very reason that I mentioned: namely, I am persuaded that our high standard of integrity is largely due to the fact that we have a divided profession and not a fused one. The difficulty is to find a fused system. Mr. E. J. Cohn, a lawyer, who has been a member of the English Bar, but who was a judge in Germany and an acknowledged authority on comparative European law, has pointed out that in the four large countries of Western Europe none has an undivided legal profession. He writes: In France, West Germany and Spain it is split more often and no less deeply than in Britain. The drafting of documents, probate work and a good many other types of professional activities are largely in the hands of notaries, who either form a separate profession or are civil servants. Then he deals with each country separately.

The one country where there is fusion is the United States. The noble and learned Lord the Lord Chancellor has referred already to observations made by Mr. Dewey and by Mr. Wellman of the New York Bar. I should like in addition, if I may, to refer to a witness who I suppose is a reliable one; namely, the Chief Justice of the Supreme Court of the United States. Three years ago he delivered a lecture to the Association of Trial Lawyers in his country and in the course of the lecture he said this: From more than 20 years of active practice, only part of which was in the court room, and for more than ten years on the Bench I think I have gained a fairly reasonable and representative view of what goes on in court rooms. When I first reached some tentative conclusions some years ago my appraisal of court room performance was so low that I began to check it with lawyers and judges in various parts of the country as I attended meetings to see whether I had misjudged. From time to time, for example, in meetings with judges, I would ask what proportion of the cases tried before them were properly presented. The highest figure ever stated was 25 per cent.; the lowest was 10 per cent. From that general and sweeping proposition, I began to probe for the specific reasons why trial judges—the best available observers—took such a dim view of the performance of lawyers in the courts. The answers covered the entire range of the acts performed in the court room. On the most favourable view expressed, 75 per cent. of the lawyers appearing in the court room were deficient by reason of poor preparation, inability to frame questions properly, lack of ability to conduct a proper cross-examination, lack of ability to present expert testimony, lack of ability in the handling and presentation of documents and letters, lack of ability to frame objections adequately, lack of basic analytic ability in the framing of issues, lack of ability to make an adequate argument to a jury. Also very high in the list of deficiencies was the lack of an understanding of basic courtroom manners and etiquette, and a seeming unawareness of many of the fundamental ethics of the profession. Later he said: I do not know how many full-time trial lawyers would be needed to handle all the litigation in courts of general jurisdiction in this country, assuming they devoted their full time to trial work. England, with about one-fourth of our population, manages to do quite well with 2,000 professional barristers, who, as you know, are the only lawyers who can appear in courts of general jurisdiction, Admiralty and divorce courts. We cannot to-day make a comparative analysis of British and American litigation, even if I were competent to make that analysis. But I have spent a great deal of time in British courts and I know, as those of you must know if you have watched it, that it is a far more efficient process because only highly trained professionals are permitted in the important litigation. I believe the vastly greater efficiency of the British barrister (and I must add the greater efficiency of the British judge) enables them to try cases in much less time than we do it in this country. I do not suggest for one moment that the best British barristers are better than the best American trial lawyers. Not at all!The foremost trial men in this country are as good as the top level in England. But below the upper level, the picture in this country is a dismal one indeed. The performance below the top 25 per cent. in this country is not only poor in terms of those who must watch it and those who must stand or fall on the performance, but it is also wasteful. Indeed, much of it borders on malpractice. Even when the 'occasional trial lawyer' gets a tolerable result, he is likely to take five days to try a case which a competent professional could try in one day. In those five days he has pre-empted the courtroom, the time of jurors, of witnesses and a host of others. Then the writer made some unfavourable remarks about American judges, which in the presence of the Judicial Committee I do not propose to repeat.

This is the system in which the noble Lord, Lord Goodman, believes and in which, for the reasons I have ventured to give, I do not. If your Lordships share my view, then the second question arises: if we are going to have a divided profession, we must have a dividing line. Our present dividing line is fairly old. Only a solicitor can have direct dealings with the client; only a solicitor can have financial dealings with the client; only a solicitor can indulge in the most lucrative form of legal work, which is conveyancing. I remember that when I was chairman of the Bar Council the Law Society complained because there were barristers as well as solicitors in local government service and some were reaching the top. And one cannot be a clerk to a local authority without being responsible for the authority's conveyancing. The Law Society said that this was wrong. They said that barristers ought never to get to the top because it involved conveyancing. They were good enough to say that those who were already town clerks need not resign. But we upheld them.

On the Second Reading of the Bill the noble Lord, Lord Goodman, permitted himself to say of me—but I assure him that I took no offence; I never do; there is no amour-propre so far as I am concerned— Of course, he is a member of the Bar. So far as the Bar are concerned, that freemasonry will not be altered by any considerations from arty other part of the world."—[OFFICIAL REPORT, 19/11/1970; col. 1295.]

LORD GOODMAN

I hesitate to interrupt the noble and learned Lord but he has made several references to views I hold. All I would say is that I adhere totally to that statement and would not alter a single word of it, and it has been more amply demonstrated by the noble and learned Lord's speech in the last 14 minutes than by anything I have ever heard previously.

LORD GARDINER

Then, if I may, I will permit myself to comment on it. First of all, we know that a Lord Chancellor is very peculiar—I do not mean the present occupant of the Woolsack—and one peculiarity is that the Lord Chancellor is Visitor to Newcastle University. When I went to open the new law school at Newcastle University, there was a very fine engraved stone with the words: This has been opened by the right honourable Lord Gardiner, Q.C., Lord High Chancellor of Great Britain. I had to point out that they would have to alter it, because as I was not a barrister I could not be a Queen's Counsel. If what the noble Lord meant was that in former times I had practised at the Bar, and therefore on any difference between barristers and solicitors would always decide in favour of the barristers, I think, with the greatest respect, he does me less than justice. First of all, I should have betrayed my trust as Lord Chancellor, if I had not held a perfectly even hand between barristers and solicitors. Secondly, let me remind the noble Lord that I myself introduced legislation, with nobody behind me, no Committee to back it, which for the first time in our legal history enabled solicitors to do undefended divorce cases, which they had never been able to do before. That involved a straight transfer of quite a lot of money from the pockets of barristers to the pockets of solicitors—and I know that that was a serious thing to some divorce chambers. I did that because I thought it was right.

Again, it was then the law, by Statute, that if a solicitor could not get to a county court he ought to be at he had to get a barrister to appear. Here I would say, as I have told the House before, that there is a chronic shortage of lawyers. There are parts of the country where at quarter sessions there are not enough barristers to go round and solicitors ought have the right of audience. There is a deficiency of from 100 to 200 barristers, some 15 per cent. Solicitors are in a far worse position. The solicitors gave an estimate to the Prices and Incomes Board that they were 5,000 solicitors short, a shortage of between 20 and 25 per cent. Whenever I had complaints as Lord Chancellor about delays by solicitors, I always pointed out that the complainants must realise that every solicitor is overloaded and simply cannot get through all he has to do. He finds it difficult to get staff. He works all the hours he can. And there is no remedy, except in an increase in numbers, and this both branches of the profession are trying their best to achieve. I am glad to know that last year the increase in the number of those going to the Bar was an all-time record.

But I was saying that where a solicitor could not get to a county court to do a case himself, it was the law, by Statute, that he had to get a barrister to appear. He could not get another solicitor to appear as an advocate. I thought that that was wrong; and that also I altered to the advantage of solicitors. I still mildly resent the suggestion that because until six or seven years ago I was at the Bar, I must always, in a difference between barristers and solicitors, take the view of the barristers. It is, after all, the client that matters, and not either branch of the profession.

May I conclude by saying that if my analysis is right, the Committee will appreciate that this question and the following one about eligibility are not to be answered by asking: "May not a solicitor make a good High Court judge or Crown Court judge?", as though, if the answer to that is, "Yes", that concluded the matter. One might just as well ask: "Might not many members of the Chancery Bar be good at conveyancing? Might not one of the silks practising in the Companies Court make a good director of his client company?" If we are to maintain a divided profession, we must have a dividing line. The Committee may not believe this, but I can assure your Lordships that two separate solicitors have said to me, in almost exactly the same words, "I do not want fusion. I am all against fusion. All I want is for solicitors to be able to do High Court cases and be eligible for High Court and county court judgeships". But that is plain nonsense, because those are the only things with which the Bar have been left.

The line tends to move in favour of solicitors and to the disadvantage of barristers. In return for the solicitors' right to be the only man to see the client, to have financial dealings with him, to do conveyancing and so forth, these are the only things that the Bar have. If solicitors had the right of audience in the higher courts, and to High Court and county court judgeships no-one would be a barrister. What would be the point of being a barrister? All lawyers would then be solicitors, because they could do anything, and we should have fusion. That is why if one is against fusion one realises the importance of maintaining a divided profession, and then one must have dividing lines.

For my part, I think that we should think seriously before further altering the dividing line, except in the sort of case to which the noble Lord, the Lord Chief Justice, referred. That was outside the terms of reference of this Royal Commission. This is a Bill to see that we have enough law courts and a greater degree of flexibility in the judicial power. It was outside the terms of reference of the Royal Commission, as they themselves realised. They heard no evidence for or against fusion. They heard no evidence as to where the dividing line between the two professions ought to be drawn. Therefore, for my part—and there is nothing Party political about this, obviously—I would strongly support what the noble and learned Lord the Lord Chancellor has said. I would not myself be against a Royal Commission or Committee to consider the legal profession, but I cannot regard this Bill as a suitable place. It emanates from a Royal Commission of great distinction, with whose Report I very much agree, but who have not made any recommendation, except in relation to quarter sessions, and that is embodied in the Bill.

I agree with the Lord Chancellor that both branches of the profession are primarily concerned with service to the client but might very well consider some of these questions further. For the reasons I have ventured to give, I am afraid at too great length, my own hope is that the Committee will agree with the view put forward by the noble and learned Lord the Lord Chancellor.

6.34 p.m.

LORD BEECHING

The noble and learned Lord the Lord Chancellor and the noble and learned Lord, Lord Gardiner, have both made the point, quite rightly, that the Royal Commission did not make any recommendation about rights of audience. We failed to make any recommendation for what I believe was a good reason and with your Lordships' permission I will talk about it later in connection with other clauses. It has also been said that we took no evidence in relation to this matter. But that is not true. We did not set out to take evidence systematically with a view to considering the whole question of whether it should be a fused or separated profession. We did not think it necessary to do that, because it was marginal in relation to our main job of considering the structure of the courts. We realised that if we got involved in this very controversial question we should detract from the effectiveness of our other deliberations. So we agreed among ourselves that, so far as we could, and if possible completely, we would avoid treading on this stony ground. Nevertheless, we did of necessity, in the course of taking evidence on many matters, hear a great deal that had bearing on this question.

For my part, I was convinced that the question of where the boundary should be drawn should not be left to bargaining between the two branches of the profession in all details. I think that the interest of the client, which has been referred to by many noble Lords, is the main consideration, and I think it will be served only if in some matters it is decided what; the court should do, rather than have the two branches of the profession bargaining one concession against another.

I was much impressed by what the noble and learned Lord the Lord Chief Justice said on this matter. The arguments that he used are arguments that have appealed to me strongly in the past in relation to the question of limited movements in the line of demarcation relating to rights of audience. I felt when he was speaking, and referred to the three classes of cases covered by this Amendment, that I should have been absolutely certain of the rightness of the Amendment had it been limited to the first two. But I feel that if it is to be voted upon in its present form, it will still be right for me to vote for it with the three classes of cases included: because I would remind your Lordships that already in some parts of the country these three classes of cases are dealt with at quarter sessions, where solicitors have rights of audience. So it is no good treating this simply as a matter of high principle. The principle has already been breached to that extent.

The noble and learned Lord, Lord Gardiner, when he drew attention to the parallel of the medical profession, where the general practitioner sends a patient to a specialist if an operation seems necessary, drew a good parallel if it is carried right through. Of course the general practitioner, if the patient has a boil or some minor disfigurement which the doctor can deal with by pulling a scalpel out of his drawer will deal with it there and then—or at least he used to do so in the good old days, although now he would probably send the patient to hospital. I think the same position occurs here. There are these relatively simple cases which it is already accepted should be heard in courts where solicitors have rights of audience and which could well be heard in other places with solicitors representing clients. While I think it is right that the Royal Commission did not make a recommendation on one particular facet of this whole question, as to where the line should be drawn, except I may say (and I hope to refer to this later) in relation to eligibility for appointment to the Circuit Bench, I personally, in common with some other members of the Commission, have a quite firm conviction that there ought to be a somewhat extended right of audience.

LORD FLETCHER

I had not intended to intervene in this debate, and I do so briefly only to make two comments. Listening to my noble and learned friend Lord Gardiner, I felt that he was devoting most of his speech to opposing any suggestion that there should be a fusion between the two branches of the profession. That seems to me to be an entirely separate matter, and not directly connected with the subject that we are discussing to-day.

Since the noble and learned Lord the Lord Chancellor, in the course of his remarks about fusion, referred to me, I think I ought to make it clear that I have an open mind on the subject. When sitting as a member of the Evershed Commission, which inquired into the law and practice of the Supreme Courts a few years ago, of which my noble and learned friend Lord Gardiner was a member, I ventured, in conjunction, I think, with the noble Lord, Lord Crowther, and others, to advocate that that was a matter which required a separate and independent inquiry as soon as possible. Personally, I very much regret that there has not been hitherto a separate inquiry into the organisation of the legal profession as a whole. But it does not seen to me that a judgment on the particular Amendment that we are considering to-night ought to be affected one way or the other by any views that any of us may hold or not hold on the subject of fusion. Nor do I happen to believe that if the Amendment before your Lordships to-night is carried, either in whole or in part, it will necessarily, or indeed at all, lead to any closer fusion between the two branches of the profession.

Listening, as I did, to the speech of the noble and learned Lord the Lord Chancellor, and also my noble friend Lord Gardiner, I felt that much of what they said would have considerably more weight if there were adequate numbers of experienced counsel at the Bar. In an ideal world the public would be better served by the separate division between the two branches, provided there was an adequate number of experienced counsel who were able, as and when required, and without delay, to protect the interests of the client. As the noble Lord, Lord Beeching, has just reminded your Lordships, and as the Report of the Royal Commission shows, a good deal of evidence was given to the Royal Commission to the effect that there is an acute shortage of suitable counsel, not only at quarter sessions in the more remote towns, but also in some of the larger conurbations outside London.

Listening to this debate I am left with an impression that I should like to record. Whatever may be said about the wider principles involved, I am convinced from my own experience over a number of years that there are a number of cases arising year by year in which members of the public suffer injustice because the solicitor whom they engaged has not the right of audience, either on appeal or in proceedings on committal. There are cases in which the unfortunate person charged with an offence suffers considerable injustice because there is no counsel available, either with adequate experience or with adequate time at his disposal, to look after the interests of that particular individual. That injustice can be cured only if, as the noble and learned Lord the Lord Chief Justice suggested just now, with, as I understand it, support from the noble and learned Viscount, Lord Dilhorne, the present right of audience of solicitors is extended to the hearing of an appeal from the magistrates' court and to proceedings on committal.

I hope that, in view of all the evidence before your Lordships' House, and the speeches that have been made, effect will be given to paragraphs (a) and (b) of the Amendment. I am not sufficiently familiar with the procedure in your House to know how that result can be achieved, in view of the fact that some of your Lordships may be willing to support the suggestions with regard to paragraphs (a) and (b), but not with regard to paragraph (c). But that is a procedural matter on which I have no doubt we shall have experienced advice.

LORD SEGAL

I rise with great hesitation, particularly at this stage of the debate, merely to put in a plea that this Amendment as between solicitors and barristers ought to be considered entirely on its own merits, and to say that not too hard a parallel should be drawn with the case of the medical profession. There are many important differences that arise, particularly where the general practitioner and the consultant are concerned. Where matters of life and death are at stake—as, fortunately, rarely happens with the legal profession—it is imperative that the consultant should have direct access to the patient, and not merely access through a general practitioner. Further, in many known instances a consultant has a right to sue for fees directly to the patient.

I am just taking at random two or three instances where this parallel does not hold good. An ordinary general practitioner, who may happen to be a ship's surgeon, without any specialist qualifications, is fully entitled to perform, if necessary, a major emergency operation on a ship at sea. In the one instance, you have the case where the patient's life may be immediately at stake. In the other, you have the time factor and other factors as to the particular locality, the relative shortage of qualified barristers, and so forth. So I want to put in an earnest plea that this parallel between the legal profession and the medical profession ought not to be driven too hard.

LORD PARGITER

May I say, entirely as a layman who tries to keep out of the clutches of both of these professions, that I hope we may have a good deal more unbiased evidence as to where there should be a dividing line—if there should be one—as against the protagonist arguments of both sides on this matter. There is a case for the solicitors, and there is also a case for the barristers. It is important that your Lordships should have all the facts that are available, or that may be made available, before coming to a decision on a matter so important to the general public.

LORD GOODMAN

I had not intended to speak on this Amendment, and I am only minded to make two observations. The first is that, despite the immense provocation extended to me by the noble and learned Lord, Lord Gardiner, I do not intend to reply to his speech at all, because it had absolutely no relevance to this particular Amendment. There may be other and better times for dealing with it. I believe that the noble and learned Lord, Lord Gardiner—who professes to have ceased to be an advocate, but totally underrates himself—is seeking to introduce into the discussion the question of fusion. I do not regard fusion as quite the unmentionable word that some other members of the profession here do. I am perfectly happy to accept the fact that fusion is something that ought to come about. I do not believe that fusion has anything to do with this discussion this evening on either of the Amendments. I wish to state that with the utmost possible clarity. I do not believe—and I regret it—that the acceptance of either of these Amendments will bring us one inch nearer the fusion of the professions. It would be wrong if I did not say this, otherwise my support of these Amendments might be an embarrassment to my colleagues in view of the appallingly revolutionary attitude that I take on the question of fusion. That is the first point that I ought to make with as much emphasis as I can.

Secondly, I should like to ask the noble and learned Lord the Lord Chancellor what he meant by his most impressive address to us. I speak as one of the signatories to the Amendment, and if the noble and learned Lord is proposing to say that there is a reasonable prospect that this matter will be reconsidered before the Report stage, it may well be that we can curtail this discussion. I do not believe that any of the portentous issues which it is suggested are involved in this minor administrative change are remotely connected with it. It is a minor administrative change which will bring substantial benefits to the public. If, having heard the arguments, and particularly the views of the noble and learned Lord the Lord Chief Justice, the noble and learned Viscount, Lord Dilhorne, and the valuable intervention of the noble Lord, Lord Beeching, the noble and learned Lord the Lord Chancellor is prepared to offer us, not an assurance on the matter, but at least an assurance that it will be reconsidered before the Report stage, we could curtail this discussion and keep it within reasonable bounds, having regard to the size of the issue.

6.48 p.m.

THE LORD CHANCELLOR

If I may make one or two remarks, as this is Committee stage, and I have a second right of audience without the instructions of a solicitor, I should like to comment on the debate in the light of what the noble Lord, Lord Goodman, has said. The noble Lord, Lord Janner, accused me of making what he called a "Second Reading speech". I admit that I did so. The reason was an absolutely irresistable one. This debate is extremely important to all of us, as is shown by those noble Lords who have taken part in it. On the other hand, it is absolutely peripheral to this Bill. In my Second Reading speech on the Bill I did not mention this subject, except in passing, until I came to reply to the debate. I thought that it would be absolutely inappropriate for me to do so. What we do or do not do about this extremely important subject is peripheral to the Bill. Therefore, although I recognise the truth of the accusation, I think I was justified.

LORD JANNER

Would the noble and learned Lord the Lord Chancellor allow me to say that I did not say it in the form of an accusation; I merely said it because I thought that in another place it would not have been allowed to go on. I was interested to hear it was possible to do so here. I thought his intervention was excellent.

THE LORD CHANCELLOR

The noble Lord said it in his usual agreeable way. I can assure him that I took no kind of offence about it, although I thought there was an implied criticism in what he said, and I thought it was a justified one, but for the special circumstances which I have tried to outline which I think gives me a confession and an avoidance here.

The noble and learned Lord the Lord Chief Justice and the noble and learned Viscount, Lord Dilhorne, were of course members of the Bar at one time just as much as the noble and learned Lord, Lord Gardiner, was. I think it shows that those of us who have practised at that profession are not approaching this matter with closed minds or with a biased view, but genuinely with a view to handling this subject in the manner which is most conducive to the public interest. But it is clear enough that, so far as concerns this Amendment, there is no means of taking bits of it out and voting on them to the exclusion of the others.

The logic of the two speeches from the Cross-Benches which was heard is that this Amendment will not do if you agree with those speeches; it is only if you would go what in any other circumstances I would call the whole hog that you can vote for this Amendment. But I should very much like to give the kind of assurance which the noble Lord, Lord Goodman, suggested. I certainly do not want to appear not to give it, because it is conceivable that one could do this. But we are working to a very tight schedule in this House on this Bill. I think I could almost certainly guarantee that before the Bill left Parliament the matter could have some wider reconsideration. It is possible that we could do it in this House before Report. But this is trying me rather hard on the schedule which I have been trying to live up to.

I hope I have made it plain that the division in this Committee, if one leaves out the question of the third category of the case, is really between two alternative sets of argument and about two alternative courses of action. There are those who say, "These Amendments are relatively trivial"—I think "trivial administrative arrangements" was something like Lord Goodman's phrase—"They do not involve fundamental questions at all. Therefore, they can be decided out of hand without very much further consideration on general a priori arguments about the needs of the client and the shortage of barristers." And there are those who feel with me, and I think the noble and learned Lord, Lord Gardiner, that the implications of these Amendments are rather more serious than some at any rate of the proponents of the Amendments believe, and certainly than Lord Tangley believes, because he said he would not have proposed the Amendment if he thought it had the implications which some of us have seen in it. I take the view that the implications are rather more serious and that they ought to be carefully considered. That is all I say.

I think they are more decently considered, as the noble Lord, Lord Pargiter, suggested, by discussion between the branches of the profession, the Law Society and the Bar Council, and other interested bodies, in the light of the things which have been said in public in this debate. Quite obviously, the opinion of the noble and learned Lord the Lord Chief Justice, and of the noble and learned Viscount, Lord Dilhorne, will have a great deal of weight in forming political opinon. But, if both noble and learned Lords will forgive me, in order to have their weight they must be given time to have their impact. I should have thought my original suggestion was right, that we have a goad deal to think about as a result of this debate. I did not take the view that the speech of the noble and learned Lord, Lord Gardiner, was irrelevant. He sees wide implications and repercussions in this provision. I think he is right. And he thinks, as I think—and may I say I had no words with him about this beforehand; our speeches were independently contrived although I think they had a rather similar viewpoint—that the integrity of British justice depends upon a divided profession, and therefore the point at which you draw the line between the two divisions, between the two branches, is a matter which cannot be treated lightly even at its marginal points. I do not think that is irrelevant to this.

I want to see this matter properly discussed and decently discussed without any kind of rancour on either side. I think it was a very important point that the noble and learned Lord, Lord Gardiner, made when he pointed out that the shortage of barristers is exceeded by the shortage of solicitors. It is true that we are undermanned in the legal profession, but we are undermanned in both branches and, if anything, the shortage of solicitors is worse because their shortage is not only greater numerically and percentagewise but accentuated by the shortage of typists—a disease from which barristers suffer to only a lesser extent.

I would quite frankly ask the noble Lord who proposed this Amendment to withdraw it to-day. It can be put down again on Report to see how far we have got. I repeat my offer that, if I can bring the two branches of the profession together to discuss it rationally, or if I can use my office in some way as a catalyst to encourage some form of inquiry—not a public inquiry, but an impartial inquiry—between them, in which these matters and their implications can be frankly discussed, I will do anything I can. To-day I think we have gone as far as we can. I would very greatly deplore a Division. If there were a Division, I should ask my noble friends to vote against the Amendments. But I would ask the noble Lord, on the kind of assurance I have given and the degree of good will I have tried to show, not to press the Amendment to-day, in the knowledge that he can do so on Report if he is not satisfied.

6.57 p.m.

LORD GOODMAN

I hope that the noble and learned Lord the Lord Chancellor will not regard it as remotely discourteous if I press him a little. I acquit him of any prior consultation with the noble and learned Lord, Lord Gardiner. It is quite unnecessary. It is as unnecessary for two penguins to agree on coordinating their flapping of fins as for two Lord Chancellors to agree about what they are going to say on this issue. What I want to say is this. We have reason to entertain grave doubts about our capacity to persuade the Bar—and I accept that the Bar in this matter are in total good faith and hold their views with absolute sincerity—that this is an issue upon which there can be any compromise. I certainly do not want to aggravate feeling or exacerbate the matter by making any further comment on that.

What I should like to feel is that the noble and learned Lord will confer with his colleagues to the extent to which it is necessary, and before the Report stage give us some final answer on the governmental view. If I may say so, I think he underrates his own influence in the matter. I believe that the one person he needs to persuade is himself, if I may say so with absolute respect. I think he needs to commune with himself in the evening, struggle with himself throughout the night, locate himself in the early hours of the morning, and deliver the judgment at breakfast. If he will undertake to do that, I think we shall arrive at a highly satisfactory conclusion. And if we can have an answer before the Report stage which leaves the people who are marshalled here to-day prepared to do battle, able to reassemble for a resumed battle—which we all hope will not take place, because nothing is more undesirable than that there should be public division between the two branches of the profession—this will be entirely satisfactory to us.

THE LORD CHANCELLOR

Appearing as I shall before myself, and giving judgment before breakfast, I am rather afraid I might have a divided court or a hung jury. I am anxious to help as much as I can. I am very reluctant to declare a governmental point of view ipsissimis verbis. It would be a rather artificial point of view if I were able to produce one. That is because this is not the kind of thing about which Cabinets, I think, ought to take a policy decision if they can avoid it. It may be that Cabinets must shoulder the responsibility—they have broad shoulders—but I think it would be artificial to put Government Whips on in either House and have to force a Division against an Amendment of this importance. This is why I have rather sat a little on the fence about this issue.

If I may, I should like to put another thought into the mind of the noble Lord, Lord Goodman. I know he has a profound distrust, which he has expressed, of Lord Chancellors and ex-Lord Chancellors, which I can understand. We were all members of the Bar and, equally, we are all men—and I suppose noble Ladies might feel a distrust of us for that reason. But I would suggest that this Amendment in its present form is of a rather brutal kind; that is to say, it forces a right of audience in respect of these classes of case. The rest of the clause gives a power to the Lord Chancellor to declare these things open, which is discretionary; and the power would not be exercised in the event until both sides of the profession had agreed. For instance, if somebody wanted to open the Oxford Sessions or the Oxford Crown Court to solicitors there would be some sort of inquiry at which both sides would be able to put their case. The difficulty of getting barristers would be established by evidence, and so on; and also the number of solicitors available.

If an Amendment in that form were moved on Report stage I should find it very much easier to give judgment in favour of the noble Lord, Lord Goodman, than to persuade myself that I can on the form of Amendment which is now proposed. I do not want to force that on the noble Lord, but I want him to have the thought in his mind when he leaves this House to-night. What I am not sure about is whether we shall settle this matter on Report, because I think all members of the Committee must face the fact that this proposal will arouse just as much excitement and interest and discussion in another place as it has done before your Lordships. And if we in this House were to throw open the right of audience, I am sure there would be a concerted attempt in the other place to put it back; and, equally, if we refused the Amendment in this House I am quite sure there would be a battle in another place. My real interest in this Bill is to get it through.

I hope that this matter can be settled out of court, and that is why I would rather not declare a Government position. I would far rather see an honourable settlement, based upon an inquiry—not a public inquiry—at which both sides could put forward their viewpoints; or an enabling clause, rather like the existing Clause 12, which would enable the right of audience to be given. But what I want to do to-night is not to take up a position from which it would be difficult for me or for the noble Lord to resile. Let us take this debate as having given us all something to think about, and let us resume this discussion on Report without definite commitment but in the hope that we can achieve some kind of honourable understanding.

7.3 p.m.

LORD WIGG

I never intended to intervene in this debate until a moment ago when the noble and learned Lord the Lord Chancellor said that his object I was to get the Bill through. I think that is absolutely wrong. I came down here with an open mind and I moved first this way and then that way; first I thought that there was a considerable case for the Amendment, and then that the Lord Chancellor had made a point that we ought to have an examination, and I must say I share his view that it would be unwise to press the Amendment.

As we have been told, there are two sides to the question. There are those who want to fuse and those who think we should be separate. There is a grave shortage of barristers and there is no training accommodation for young men who wish to enter the profession. There is a shortage of solicitors and they have not got typists. Yet we were told, certainly by the noble and learned Lord, Lord Gardiner, in what, if I may say so, I thought was an exhilaratingly xenophobic mood, that every legal system in the world is corrupt except our own and that ours is all but perfect. But the two just do not go together.

It seems to me that there ought to be a far-reaching inquiry, but, please God!, not an inquiry consisting of representatives of solicitors and barristers, because that really would be a "carve up", if I may use an expression which is perhaps more familiar in my other capacity. But that would be no race; it would be all carved up before we started. The Lord Chancellor has made a powerful case. He is going to report progress on the Report stage. What I think he ought to do is go back to his colleagues in the Government and say, "On the basis of the debate, which was good-tempered, far-reaching and probing, public opinion in this country has been informed that even if ours is the best legal system in the world it is a very long way short of what it ought to be and there is need to look both at the recruitment and the training of solicitors and barristers. There ought to be an objective examination to see whether, in view of the shortage of personnel of the right quality, there cannot be fusion". That should be done, not in the interest of either the Law Society or the Bar Council but in the interests of the public at large; whose interests, after all, both professions exist to serve.

If that were the point of view, it would have my support; but in this highly important and, as the noble and learned Lord the Lord Chancellor said, peripheral but nevertheless far-reaching matter, for the only object of the exercise to be to get the Bill through is not right and is not in accordance with the traditions of your Lordships' House. Therefore I hope the Lord Chancellor will stick to his guns: I hope he will go away and see what he cart do with this matter and then come back to the House. At the same time I hope he will please accept the case which has been made out, perhaps unwittingly, by almost every speaker in this debate, to ascertain whether we are, not the best in the world but as good as we ought to be.

THE LORD CHANCELLOR

I do not want to weary the Committee but I should just like to comment on that speech. When I said I wanted to get the Bill through, it was precisely because of some of the things to which the noble Lord, Lord Wigg, has referred. We must have this Bill if justice is to be done and we are to get rid of the legal delays, and we ought not to allow a dispute between the two branches of the legal profession about a peripheral matter to jeopardise it. I do not think there was anything dishonourable or contrary to the traditions of this House in that. I also do not want a "carve-up", but I do feel that both barristers and solicitors ought to agree to a procedure whereby their differences can be solved without loss of prestige or credit to either party. They have legitimate interests to defend and they have succeeded in evolving a system which, I repeat, is the best in the world; and they should not, by a side wind perhaps, undermine it. I agree with every word the noble Lord, Lord Wigg, has said.

7.8 p.m.

LORD TANGLEY

When, a good many hours ago now, I moved this Amendment I did not expect to find so much interest taken in it or so many weighty speeches made about it. I am deeply grateful, as the other sponsors must be, to those who have spoken, and particularly the noble and learned Lord the Lord Chancellor, the noble and learned Lord, the Lord Chief Justice, and the noble and learned Viscount, Lord Dilhorne.

Certain appeals have been made to me as the mover of this Amendment. We had a long speech from the Lord Chancellor. It was four times the length of my speech, and I suppose his client would have said that it was in consequence four times as good. I do not think so. But I had great sympathy with the noble and learned Lord, because he had obviously expected somebody to make a speech in favour of fusion: he had worked up an excellent speech against fusion, and it does take the wind out of one's sails if the mover of the Amendment takes the other line. Therefore I thought a good deal of the early part of his speech was not really germane to the Amendment that I had put before the Committee.

The second thing which struck me during the course of the debate was the weighty support which I received—and again I had no suspicion that it was coming—from the Lord Chief Justice and the noble and learned Viscount, Lord Dilhorne. After all, to be two-thirds supported by the Lord Chief Justice and nearly two-thirds by the noble and learned Viscount is a lot for a solicitor. I am very grateful indeed for that support. With regard to the fractional reservation which was made by the noble and learned Viscount, Lord Dilhorne, I must confess that I had not contemplated that a solicitor would be given the right of audience on appeal unless he himself, or perhaps his partner, had appeared in the first court.

VISCOUNT DILHORNE

I did not think that the noble Lord would have contemplated that, but I think the clause as it now stands would enable it, and I pressed that as an argument for further thought on the clause.

LORD TANGLEY

That, if I may say so, is perfectly legitimate criticism, which I accept.

The main part of the speech of the noble and learned Lord, the Lord Chancellor, was couched in terms of the sweetest possible reasonableness. I was delighted to hear that, because I could have made a pretty nasty speech in moving this Amendment, and I carefully refrained from doing so. I also carefully refrained, in the interests of an amicable debate, from citing a good many facts about what really happens to clients. I had the facts all ready for use, and it there had been any echoes of any bellringing I should have felt bound to bring them out. I do not want to do it if I can help it.

I should like, if I can, to respond to the appeal made by the noble and learned Lord the Lord Chancellor. I thought at times during his speech that he had something which vaguely resembled an olive branch in his hand, but I could not quite make out what it was.

THE LORD CHANCELLOR

An olive branch.

LORD TANGLEY

It seemed to me to appear and disappear, and to change its shape in the course of the movement between the sleeve and desk, and so forth. If all the Lord Chancellor is suggesting is that we enter into a long discussion between solicitors and barristers, then I must say that I do not think that is a very good olive branch—for two reasons. The first is this. I do not believe that this is a matter which ought to be settled merely as a compromise between solicitors and barristers. This is a matter of public interest on which I think your Lordships' House ought to decide one of these days; and I can think of no tribunal in the world which is more suitable to decide on a question of this kind than your Lordships' House. Its Benches are crowded with people who have had long experience in public life, many of them in local government, many of them as magistrates, many of them as solicitors, many of them as barristers and judges. Where could you find a better tribunal to decide a point like this than the one which I have the honour to be addressing at this particular moment of time? I do not think that a long discussion between solicitors and barristers would be in any way a substitute for that.

The other reason why I doubt whether such a solution would be suitable is this. I have had too long and hard experience of discussions between solicitors and barristers. There was a reference to the Ormrod Committee on legal education. I started that one. I remember that when I was president of the society at London University which was graced by the noble and learned Lord, Lord Gardiner, the other day, I started the theme of perhaps a common education for solicitors and barristers. Then we took it up. For a long time it was suggested there was nothing to discuss, and that there was not any urgency for discussing it; and then the Bar discovered that they had nobody on their side who could discuss it. Two or three years were spent setting up a Senate, and then we started discussing it again. After that the Ormrod Committee was set up. So the discussion of the subject has been going on for sixteen years. Sixteen years is a pretty fair natural timetable for discussions of this kind between solicitors and barristers. But the clients I have tried to talk about, and for whom I feel so strongly, cannot wait sixteen years for justice in this matter; they must have justice given to them soon, and quickly and obviously. Therefore I do not believe that an inquiry of the kind suggested would be at all apt or suitable in this case.

We have made a great deal of progress in the course of this debate. We have had some negative progress, in that we have been able to avoid any serious exasperation with one another. We have had extraordinary progress, I think, with the contributions made by the noble and learned Lord the Lord Chief Justice and the noble and learned Viscount, Lord Dilhorne. We have had, from the noble and learned Lord the Lord Chancellor, if I may say so, what was to me a very pleasantly, but slightly unexpectedly, kind speech. We have had other speeches with which I do not want to deal. Take, for example, the noble and learned Lord, Lord Gardiner. I agree with him against fusion, for the reasons given by my noble friend Lord Goodman in favour of it. I think that that is the fairest thing I can say about that.

What does one do with this Amendment? I should like to have a decision upon it. I believe that the Committee are in possession of sufficient facts Lo come to a conclusion about this, but there is the possibility that we might consider the solution suggested by the noble and learned Lord the Lord Chief Justice; namely, that part of this Amendment is good and part of it not so good. What I should like to do, if the noble and learned Lord the Lord Chancellor will say he is willing to do this, is to meet him—not a great body of barristers and solicitors—between now and the Report stage, to review with him the course of this debate and see whether we cannot put into this Bill at Report stage something which at least goes some way to meet the points I have made.

VISCOUNT DILHORNE

May I put a point which occurs to me? I agree with the noble Lord that discussions between the Law Society and the Bar Council on matters like education have taken an unconscionable time. I do not want to attribute blame. I should have thought it possible, if the Lord Chancellor held a meeting between the Law Society and the Bar Council, under his chairmanship, between now and Report stage, that some progress might be made. That is worth trying. Lord Tangley says that he wants to take a decision to-night. I beg him not to, because I think a decision to-night will have very serious consequences which it might be possible to avoid.

LORD TANGLEY

I of course could not have the slightest objection if, in the course of discussions between now and Report stage, the Lord Chancellor asked for the assistance of a group of solicitors and barristers, as assessors, or whatever you like to call them. That would be perfectly all right. But I feel we ought to decide this matter before Report stage and not leave it to the Greek calends. Could the noble and learned Lord give me any help on that approach?

THE LORD CHANCELLOR

There are two things I would say about that. The first is that it is always a pleasure to meet the noble Lord, Lord Tangley, and if he wants to see me I would prefer to meet him with, at any rate, the officers of the Law Society and the Bar Council, because I do not want to try to settle this in the absence of, if I may put it rudely, one side. That certainly could be done before Report stage, I hope. But I think the noble Lord was forgetting this. He said that there could not be a better tribunal than this House. I must point out that Parliament has two Houses, and this House cannot settle the matter at all. It can vote on the matter. It can send the Bill down to the other House in one state rather than another. But unless we do this with a certain amount of general agreement we are going to have this row in the other House and have an amended Amendment coming back here. I would point out that between 16 years and the time between now and Report stage there are many intermediate stages. May I go step by step, and say that I would like to meet him to arrange a meeting with the wider representation, as suggested by the noble Viscount, Lord Dilhorne.

LORD TANGLEY

With a view to suggesting some solution of this problem at the Report stage in this House?

THE LORD CHANCELLOR

I do not know when the Report stage will be; but no solution which does not command the respect of both Houses of Parliament is an agreed solution. This must be understood. I mean no disrespect to your Lordships. It cannot be settled here because we have no power to settle it. We must settle it in a form in which public opinion as expressed in both Houses of Parliament will take it.

LORD TANGLEY

I wonder whether it would be of help to say this to the noble and learned Lord. If an agreement is reached as a result of these discussions, this will be an agreement that is acceptable to the Law Society and to their spokesmen, and presumably acceptable to the Government. In that eventuality, surely there would be no question of there being any possible opposition to that agreement in another place?

THE LORD CHANCELLOR

I think the noble Lord underestimates the capacity of the other place to oppose.

LORD TANGLEY

I think perhaps the noble and learned Lord also underestimates the willingness of your Lordships to form an opinion and to express it. If the noble and learned Lord is willing to meet me on the terms that he has suggested, with a view to trying to produce some solution which we can recommend to this House before the Report stage, certainly I should not reject that as an olive branch. I would certainly join in such a discussion, and in order to facilitate it I would not press this Amendment to a Division. But I first want to be quite sure what I am getting.

THE LORD CHANCELLOR

What the noble Lord is getting is a meeting in good faith, on the basis that I wish to find an honourable settlement of this problem as soon as possible. I cannot give a date line, because obviously other people have to be consulted and another House has to express its opinion. But I will do my best. That is all I can do.

LORD TANGLEY

On those terms, I beg leave to withdraw this Amendment. May I say now that I never intended to press it to a Division, for the good and sufficient reason that I did not think that the Committee could come to a proper conclusion unless they had decided on this and on the Amendment to Clause 15.

Amendment, by leave, withdrawn.

LORD GOODMAN had given notice of his intention to move Amendment No. 7: Page 9, line 21, at beginning insert ("Without prejudice to the generality of subsection (A1) of this section,").

The noble Lord said: I wonder whether we might now curtail this discussion, in view of the arrangements that have been made, by agreeing for practical purposes to withdraw all the controversial Amendments. It does not seem to me to make any sense to have a long debate on the question of the eligibility of solicitors, following upon the undertaking by the noble and learned Lord the Lord Chancellor, if that undertaking will apply as well as to the other matter.

THE LORD CHANCELLOR

My undertaking is a general one. I shall be grateful if noble Lords do not move the Amendments unless there is something that they particularly want to say upon them.

LORD GOODMAN

In that event, may I say at this stage that I shall not move any of the Amendments standing in my name and in the names of my colleagues, until we are driven to come back again, which I hope will not be necessary.

On Question, Whether Clause 12 shall stand part of the Bill?

VISCOUNT DILHORNE

I want to ask one question in regard to Clause 12, and in case the debate takes a long time I had better say that I have no intention of dividing upon it. Under Clause 12 the Lord Chancellor has power to give directions about right of audience. It is, I think, the case at present that if sessions become open they are open for ever—they cannot be closed again. I am only asking the Lord Chancellor this. Would this clause give him power to make a temporary order giving a right of audience to solicitors, or is it a power which can only be exercised once and for all? I should have thought it desirable, if the power was not wide enough, to make sure that it was a temporary power, for this reason: that if it was a power that could only be exercised once and for all, the Lord Chancellor might feel more reluctant to exercise it than if he could exercise it provisionally for a period. I do not think the point is covered by the Bill. Perhaps he would look at it. May I ask this further question? In view of the lateness of the hour, is it proposed to carry on with this Bill much further to-night?

THE LORD CHANCELLOR

As regards my noble friend's second question, it will be entirely a matter for the Committee and for those who are more familiar with our operations than I am. I want to go on as far as possible, but not to strain the patience of the Committee unduly. In view of what the noble Lord, Lord Goodman, said about his subsequent Amendments, I hope that we can make a little progress. I take the noble and learned Viscount's first point. I should have thought that the clause is either ambiguous on the point as it stands, or alternatively does not give a power to revoke such a direction. I will consider this matter by Report stage. If the noble and learned Viscount would like to put down an Amendment in the direction he suggests, we can discuss it on Report. So far as I know, the power has never been revoked when it has been once exercised, and I think that those who framed Clause 12 did not contemplate that a revocation should be exercised. But it is a matter which deserves consideration.

VISCOUNT DILHORNE

I do not think it is a power that lies possessed by the Lord Chancellor. I think it happens that in certain circumstances, once the sessions are opened they can never become closed sessions again. But I may be wrong about that. I will not put down an Amendment on Report—I tell the noble and learned Lord that straight away. It may be answered by the power to vary a direction. Perhaps that is the answer.

THE LORD CHANCELLOR

Yes; the noble and learned Viscount is quite right. I am now answering rather rapidly, but it appears to be covered by the provisions of Clause 54(4).

Clause 13 [Process to compel appearance before Crown Court]:

THE LORD CHANCELLOR

This is a minor drafting Amendment, and unless the Committee wish me to expatiate on it I merely beg to move it.

Amendment moved: Page 10, line 34, leave out ("(b)") and insert ("(a)").—(The Lord Chancellor.)

Clause 13 agreed to.

THE LORD CHANCELLOR moved Amendment No. 11: After Clause 13 to insert the following new clause:

Practice and procedure: power to make rules

".—(1) Crown Court rules may be made for the purpose of regulating and prescribing the procedure and the practice to be followed in the Crown Court.

(2) Without prejudice to the generality of subsection (1) above Crown Court rules may provide for the procedure and practice as respects appeals to the Crown Court, and in particular may make provision as respects—

1. (a) the time within which notice of appeal is to be given, and the circumstances in which further time may be allowed,
2. (b) any particulars to be included in the notice of appeal,
3. (c) the persons on whom notice of appeal is to be served, and the particulars, if any, to accompany the notice,
4. (d) the abandonment of an appeal,
5. (e) the circumstances in which a person concerned with the decision appealed against is to be disqualified from hearing the appeal, and the circumstances in which proceedings on the hearing of an appeal are to be valid notwithstanding that any person hearing the appeal is disqualified,
6. (f) the amendment or repeal of any enactment about appeals to the Crown Court so far as it relates to any matter within this subsection.

(3) No rule which may involve an increase of expenditure out of public funds shall be made under this section except with the concurrence of the Treasury, but the validity of Crown Court rules shall not in any proceedings in any court to be called in question either by the court or by any party to the proceedings on the ground only that it was a rule to which the concurrence of the Treasury was necessary and that the Treasury did not concur or are not expressed to have concurred in the making thereof."

The noble and learned Lord said: I explained this Amendment at an earlier stage, on the paving Amendments, and unless the Committee wish me to go further into it, I beg to move.

VISCOUNT DILHORNE

There is one point that one ought to comment on before passing this Amendment. This is a case where power is being taken by Crown Court rules in regard to: the amendment or repeal of any enactment about appeals to the Crown Court so far as it relates to any matter within this subsection. The appeal to the Crown Court under this Bill is something new, and it seems to me that this is taking power by Statutory Instruments—they will be prayable against, I think—or taking power by rules to amend an Act of Parliament. In the old days in the other place one always viewed a provision of this kind with a certain degree of suspicion. I have noticed once or twice that there are other instances in this Bill where power is taken to amend Acts of Parliament by rules or Statutory Instruments. It is not a desirable practice, as I think the noble and learned Lord the Lord Chancellor, will agree. Sometimes it is necessary. A case should always be made out in order to take power to do that.

THE LORD CHANCELLOR

With regard to precedent, I think the same power exists in other rule-making powers as respect the Supreme Court, although I have not checked the point for the purposes of this matter. It is something to which the noble and learned Viscount is entitled to draw attention. But where you are dealing with rule-making powers and with something as complex as this, there usually is a provision of this kind because very often there are consequential amendments to the Statute Law which are implied in the change of rule. The appeal to the Crown Court is of course taking the place of the appeal to quarter sessions, and there must be a rule-making power of a general character in order to prescribe the procedure in relation to those.

Clause 14 [Crown Court rules]:

7.30 p.m.

VISCOUNT DILHORNE moved Amendment No. 12: Page 11, line 23, leave out ("or any other Act")

The noble and learned Viscount said: I put down this Amendment because I wanted to ask the noble and learned Lord the Lord Chancellor a question about what is meant by "any other Act". The Crown Court rules do not of course exist at present, but this seems to be legislating in futuro, as indeed was the provision to which the noble and learned Lord, Lord Gardiner, drew attention in the course of our Second Reading debate. Surely it is unusual in one Act to say that in subsequent Acts—because I would have thought this can be only in subsequent Acts—a particular expression shall have a particular meaning. Should not one leave it to the subsequent Act to say whether or not the language used in that Act should have the meaning in this Act, and not do it the other way round? At the moment I cannot recollect any precedent for doing it this way round in an interpretation clause. I beg to move.

THE LORD CHANCELLOR

The purpose of this Amendment is to limit the definition of the Crown Court rules in Clause 14(1) to the Bill. The noble and learned Viscount is right in saying that as at present drafted the clause extends the definition to "any other Act". The reason for this is that it is convenient to use the same words with the same meaning throughout a complex of statutory enactments, and it will be, and is, convenient to use the expression "Crown Court rules" to cover the rules made under this clause. I think that they will become generally known as the "Crown Court rules" in exactly the same way as the rules made under the Judicature Act are known as the "Rules of the Supreme Court".

If the Amendment were accepted, the expression "Crown Court rules" would have to be defined in all future Acts. These definitions might well differ, and confusion would result. It is thought much better to have one set of rules, known to all as the "Crown Court rules", than to have a number of different sets of rules under different Acts, only some of which may be termed "Crown Court rules" in those Acts. The clause is not, of course, binding on future Parliaments, any more than is Section 14 of the Interpretation Act 1889, which attaches a particular meaning to the expression "Rules of Court" in other Acts. If the noble and learned Viscount wants a precedent, I would refer him to that section.

VISCOUNT DILHORNE

I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 14 agreed to.

Clause 15 agreed to.

Clause 16 [Retirement, removal and disqualifications of Circuit judges]:

VISCOUNT DILHORNE moved Amendment No. 14: Page 13, line 7, leave out subsection (6) and insert— ("(6) No person appointed a Circuit Judge shall thereafter practise as a barrister or be directly or indirectly concerned as a conveyancer, notary public or solicitor or so long as he holds office as a Circuit judge act for any remuneration to himself as arbitrator or referee.")

The noble and learned Viscount said: This Amendment is an attempted re-drafting of the subsection on which I commented in the course of the Second Reading. The present subsection (6) seems to me a very curious provision. I will not take up time by repeating the criticisms I made of it in the course of the Second Reading. The insertion of the words "so long as he holds office" seems to imply, or might be capable of being read as implying, that he is free to do the things specified subsequently when he has ceased to hold office. I should not like any support to be given to any such impression by the wording of this particular subsection. I should have thought it clearly wrong that anyone who has held the office of Circuit judge should thereafter practise as a barrister or be directly or indirectly concerned as a conveyancer, notary public or solicitor. But I must say that I cannot see that it is wrong, after he has retired, for him to act as an arbitrator, or as a referee. Therefore, I have re-drafted this subsection to make it clear that those are perfectly proper functions for him to perform after retirement, but that the ban on practising as a barrister or solicitor still exists. I beg to move.

THE LORD CHANCELLOR

The existing subsection, as drafted, is really a reprint or a re-draft of Section 6 of the County Courts Act 1959, and the policy as hitherto enacted by Parliament has been that we prescribe what a judge may do while still in office, but we leave what he may do when he leaves office to the appropriate professional body. I think we should cause a certain amount of offence if we sought to change that policy without consultation. I would not in the least differ about the propriety of going back to the Bar. I think it has been accepted since the 17th century that this is not proper for High Court judges, and I should have thought the same is true of county court judges. Indeed, I thought there was a ruling of the Bar Council, and probably of the Law Society, to the same effect.

VISCOUNT DILHORNE

I am not entirely sure how far those rulings go, but this is a matter that perhaps it would be possible for the noble and learned Lord the Lord Chancellor to consider. The Act of 1959 may require revision. I do not intend to press this Amendment, but a re-draft of this language, by agreement with the Bar Council and the Law Society, may be desirable. I beg leave to withdraw this Amendment.

Amendment, by leave, withdrawn.

On Question, Whether Clause 16 shall stand part of the Bill?

LORD GARDINER

The noble and learned Lord the Lord Chancellor did not have time to deal with the point I raised on Second Reading as to the retiring ages of Circuit judges. The provisions in the Bill are a retiring age of 72 with a right in the Lord Chancellor to invite them to stay on until 75. I merely wanted to know what was the Government's view about this. I have always thought that this is a very invidious power to have. Suppose one knows that two county court judges are shortly to retire, and that both have let it be known that they want to stay on. In that event it is very difficult indeed to say to "A", "Yes, please do stay on", and to "B", "No". I wanted to ask the noble and learned Lord whether he did not think, on considering the matter, that it would be more satisfactory to have one retiring age and to stick to it.

THE LORD CHANCELLOR

The noble and learned Lord is quite right that I did not answer his question on Second Reading. I apologise for not having done so. The present Bill follows almost exactly the precedent of Section 8(2) of the County Courts Act 1959, and a number of other Acts. A few examples are the additional judges at the Central Criminal Court, the Recorders of the Lancashire Crown Courts, and the Chairman and Deputy Chairmen of Greater London Sessions. Quite obviously there are arguments both ways, and I acknowledge that there is force in what the noble and learned Lord has said to the Committee.

My judgment, for what it is worth, comes down marginally in favour of the present arrangement and not a rigid retiring age. It so happens that in the last few months (I hope nobody will do the necessary research) I have had to consider this matter in a direct way. Curiously enough, I found the power of enlargement both useful and, I think, equitable. One takes into account the state of a particular judge's health; the time the judges concerned have served, and other factors, and the way in which they are doing their work. It is invidious but I think, on balance, a useful arrangement.

Clause 16 agreed to.

Clause 17 agreed to.

Clause 18 [Pensions of Circuit judges]:

VISCOUNT DILHORNE moved Amendment No. 15: Page 15, line 16, after ("of") insert ("the Lord Chancellor and").

The noble and learned Viscount said: There is a point which I should like to ask the noble and learned Lord the Lord Chancellor to consider. Under Clause 17, a Circuit judge will be paid, …such salary as may be determined by the Lord Chancellor with the consent of the Minister for the Civil Service. Under Clause 18 the Lord Chancellor may, … recommend to the Minister for the Civil Service that there shall be paid … an annual sum by way of pension calculated in accordance with subsection (2)". There is of course the objection, to which the noble and learned Lord, Lord Gardiner, drew attention on Second Reading, to a reference of these matters to a Minister for the Civil Service, and I feel very strongly with him about that. It is a very undesirable nomenclature, and may tend to blur the margin between the Judicature and the Executive.

But if one comes to subsection (7) of Clause 18, I think the matter becomes even more important because, as the clause now stands, the Minister for the Civil Service will decide whether there will be any pension paid on a recommendation of the Lord Chancellor. It states that his decision on that is to be final … on any question arising with regard to—

1. (a) the application of any of the provisions of this section to any person, or
2. (b) the amount of any pension under this section, or
3. (c) the reckoning of any service for the purpose of calculating such a pension."

I really do not think that that will do. I really do not think it is right that judges, who are under the supervision of the Lord Chancellor and regard him as a father figure—

LORD MOWBRAY AND STOURTON

A young father.

VISCOUNT DILHORNE

Maybe young, maybe old. They differ in size, they differ in shape and they differ in many other respects. But, none the less, the Lord Chancellor is the head of the legal profession, and for the Lord Chancellor merely to recommend to the Minister for the Civil Service whether a pension should be paid to a judge, and, after the conditions for payment of the pension are prescribed in subsection (2), for the clause to go on to say that in relation to these Circuit judges the decision, not of the Lord Chancellor, but of the man to whom the payment is recommended, should be final on any question of interpretation, without any appeal, is wrong.

I am becoming lazy in my old age, and I thought that the simplest way of raising this matter was to put down the Amendment for the insertion—which I think would meet the point—of the words "the Lord Chancellor and", so that the subsection would read: The decision of the Lord Chancellor and the Minister for the Civil Service shall be final … That I think would meet the case, and if they disagree then one can leave it to the two Ministers to sort it out between themselves. I beg to move.

LORD GARDINER

I would respectfully venture to support what the noble and learned Viscount has said.

THE LORD CHANCELLOR

Under this pressure, I think I must agree to consider this Amendment before Report, but I should like to say this. The purpose of the subsection is practically identical with that of subsection (4) of Section 9 of the County Courts Act 1934, with the one qualification that, instead of the "Treasury", which I think was the Civil Service Ministry at that time, we have inserted the "Minister for the Civil Service" who is, as your Lordships know, a fairly new creation.

A formal decision under the subsection will be needed only in the event of some unforeseen doubt arising as to the intended application of the earlier provisions of the section to the circumstances of a particular case. The responsibility of the Minister for the Civil Service for superannuation schemes in the public sector generally makes it entirely appropriate that such a decision should be taken by him; although, naturally, I would expect that there would be the fullest consultation between his officials and those of the Lord Chancellor—and, if necessary, between the two Ministers themselves—before any formal decision was recorded. But I cannot really resist as firmly as I am otherwise instructed to do the pressure from two immediate predecessors. So with the leave of the Committee I will take this back and consider it again before the Report stage.

VISCOUNT DILHORNE

In those circumstances, I gladly beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 18 agreed to.

Clause 19 [Judges of county courts]:

LORD PARKER OF WADDINGTON moved Amendment No. 16: Page 15, line 32, leave out ("shall be available to") and insert ("if he consents to do so, shall")

The noble and learned Lord said: This is a minor but, none the less, very important Amendment. Its object is to preserve the constitutional position, that a judge cannot without his consent be called upon to do work other than that for which he was appointed. No one envisages that the noble and learned Lord on the Woolsack would banish one of Her Majesty's judges to sit in a county court. But in theory, at any rate, under the clause as at present drafted, a future Lord Chancellor could make a Lord Justice of the Court of Appeal go and sit for the rest of his legal tenure in a county court. I beg to move.

THE LORD CHANCELLOR

I promised on Second Reading to accept an Amendment to this effect, and I am very happy to fulfil that promise.

Clause 19, as amended, agreed to.

Clauses 20 and 21 agreed to.

Clause 22 [Circuit judge or Recorder sitting as High Court judge]:

7.46 p.m.

LORD AIREDALE moved Amendment No. 18: Page 17, line 15, leave out ("If requested to do so by or on behalf of the Lord Chancellor").

The noble Lord said: Clause 22 states that, a … Circuit judge or Recorder shall sit as a judge of the High Court … at such place and for such time as may be specified by or on behalf: of the Lord Chancellor. I read that as being an order or direction, and I do not think it can be read in any other way. But those words are preceded by the words: If requested to do so by or on behalf of the Lord Chancellor". So I think it follows that that is no ordinary request, in the usually accepted sense of the word "request". The same thing surely cannot be, at the same time, a request and an order; the two things are mutually exclusive. Therefore, I feel that this matter may give rise to confusion at some time.

A recorder will receive something from the Lord Chancellor's Department in the form of a request, and he may say to himself, "Is this merely a request? If that is all it is—a request to go and take on some assignment—then, presumably, I am at liberty to point out any particular difficulties which stand in the way of my doing this, which may not be known to the Lord Chancellor's Department." Or he may say, "On the other hand, is this not really a request at all, but a direction having the support of Section 22 of the Act? If that is what it is, and the Lord Chancellor has nobody else to turn to and is, in effect, giving a direction, I ought to make the best of it and not put forward any difficulties that stand in my way. I ought to go and take on the assignment." I really think that an Act of Parliament ought to call a spade a spade, and an order or direction ought not to be wrapped up in the form of a request. I beg to move.

THE LORD CHANCELLOR

The effect of this and the subsequent Amendments would be to oblige Circuit judges and recorders to sit as judges of the High Court in circumstances specified by the Lord Chancellor, without the need for him to make a specific request for them to do so. I am sorry to say that I cannot accept this Amendment. The clause is, in fact, modelled on the existing Section 7 of the Supreme Court of Judicature (Consolidation) Act 1925, whereby the Lord Chancellor may request any judge of the High Court to sit as an additional judge at the sittings of the Court of Appeal.

The point is that not all Circuit judges would have the necessary experience to try High Court cases, and so the clause as drafted enables the Lord Chancellor to select those judges who have the requisite experience. A blanket provision of the type envisaged or effected by the noble Lord would not enable this to be done conveniently. No formality will be involved in making a request, and it is unlikely that any delay will be occasioned. Accordingly, I think it can be said that the clause preserves the flexibility considered so desirable by the Beeching Commission, without any lowering of standards or any inconvenience to litigants. I do not think it is wrapping up an order as a request. The Act imposes the obligation, not the Lord Chancellor. All the Lord Chancellor does is to select the judge for the case, and this, I think, has to be done with some delicacy having regard to the case and having regard to the judge.

LORD AIREDALE

I appreciate that, having selected the judge, according to the Bill the Lord Chancellor's Department have to make a "request" to the judge. It is not really a request at all; it is an order, a direction. I think that one day a judge is going to be uncertain, because there must undoubtedly be some cases in which genuine requests, having nothing to do with this clause, will emanate from the Lord Chancellor's Department, and if they are genuine requests the judges will be able to say, if there are difficulties in the way, that there are difficulties in the way. But I have made my point, and the noble and learned Lord the Lord Chancellor has made his. I had better reconsider this matter. I think I shall be coming back to it on Report, but in the meantime I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

On Question, Whether Clause 22 shall stand part of the Bill?

VISCOUNT DILHORNE

The only point I want to raise with the noble and learned Lord the Lord Chancellor is to ask whether the powers he is taking under this clause are not a little too extensive. He says that it is modelled on a section of a previous Act. I thought it was. But with the power that he is now getting, both here and in the next clause, it might be the case that another Lord Chancellor, who is perhaps weak and subservient to the Treasury, would find himself faced with the situation that, when he wanted to have an enlargement of the number of High Court judges, the Treasury would come back and say, "There is no need for that; you can request a Circuit judge to sit for such time as you like, without any limit". The object of this clause, of course, is that he should sit temporarily and help out, giving flexibility. But the power goes wider than that. One might find a Circuit judge sitting and doing the work of a High Court judge at a Circuit judge's salary for quite a considerable time. I am merely asking the noble and learned Lord the Lord Chancellor to look at this—I do not want a reply now—to see whether some kind of limitation of the power would not be desirable.

THE LORD CHANCELLOR

I shall look at it, but I do not know that I can add very much more to what I said to the noble Lord, Lord Airedale.

Clause 22 agreed to.

VISCOUNT DILHORNE

I understood that we were going to get to the end of Clause 22 and that then the Committee was going to adjourn. Has there been some breakdown in arrangements?

THE LORD CHANCELLOR

I was told the end of Clause 22 or 8 o'clock, and I was hoping that it would be 8 o'clock. However, if the Committee wants to adjourn I do not think we shall do a great deal more before 8 o'clock, although I was hoping to do a little.

LORD GARDINER

I understood we were to adjourn at the end of Clause 22 or 8 o'clock, whichever was the earlier.

THE LORD CHANCELLOR

If that is the understanding which the noble and learned Lord had, I had far better keep it at that even if it was not the arrangement. In that event, if might be generally convenient if we now adjourned the Committee stage until Tuesday next, December 8, when we can take it after the Armed Forces Bill.

House resumed.