§ 3.33 p.m.
§ THE LORD CHANCELLOR
My Lords, I beg to move that this Report be now considered. In rising to move this Motion, I should like to tell your Lordships that certain manuscript Amendments to this Bill have been tabled. They are numbered 6A, 6B and 10A respectively, in the names of the noble Lord, Lord Goodman, my noble and learned friend Lord Dilhorne and, again, with regard to Amendment 10A, in the name of the noble Lord, Lord Goodman. Copies of these Amendments are available in the usual way. I am asked to point out that in the supplementary Marshalled List the name of the noble Lord, Lord Goodman, has been erroneously omitted from Amendment No. 10A.
§ Moved, That the Report be now conconsidered.—(The Lord Chancellor.)
§ On Question, Motion agreed to.
§ Clause 11 [Sentences imposed by Crown Court]:
LORD PARKER OF WADDINGTON moved Amendment No. 1:
Page 8, line 27, after ("of") insert ("whichever is the shorter of the following periods, that is—
§ The noble and learned Lord said: My Lords, as your Lordships probably know, Clause 11 as at present drafted is designed to perpetuate the present practice at assize and quarter sessions whereby a judge of assize or court of quarter sessions may change a sentence at any time during the assize or the sessions, as the case may be. Now that assizes and quarter sessions are to be abolished and there will be a Crown Court in almost continuous session, that practice must clearly be modified, and for the ordinary case Clause 11(2) provides that the sentence may be varied or rescinded within 28 days. That was an arbitrary date, though to be right, bearing in mind that there are 28 days within which to appeal.1532
§ When, however, one gets to subsection (3), dealing with two men tried on an indictment, one of whom pleads guilty and the other not guilty, the final trial, when alone the judge can assess what is the proper sentence, may be at some distant future date. As originally worded it provided that the sentence might be changed within 28 days of the conclusion of the whole trial. It has been pointed out that that might mean a very distant future date, when maybe the judge concerned had forgotten all about the case. The object of the first Amendment here is to provide that the period during which a judge can alter a sentence or order will be whichever is the shorter of the two periods—28 days from the conclusion of the joint trial, or 56 days beginning with the day on which the sentence or order was first imposed.
§ The next Amendment, which substitutes a new subsection for subsection (5), is really to clear up ambiguities. It is to provide that the varied sentence shall take effect from the date of the original sentence, unless the court otherwise orders; but for the purposes of calculating the time within which one may appeal the period during which one may appeal is to start, as is the present practice, from the date when the sentence was varied.
§ Finally, subsection (6) is designed to cater, as it were, for exceptional cases: by paragraph (a) for cases in which two men may be tried quite separately but on related facts, where some special period of time can be determined by court rules. Paragraph (b) is designed to deal with cases, among others, where the sentence or order which it is proposed to vary is not a sentence or order connected with the offender. It may be an order, for instance, in the case of a breach of recognisances on a surety, somebody who is not before the court as an offender. These are technical matters which have been pointed out by the Criminal Appeal Office. In these circumstances, I beg to move the first of these three Amendments.
§ THE LORD CHANCELLOR
My Lords, I have absolutely no hesitation in advising the House to accept all three of these Amendments in turn, and I am grateful to the noble Lord the Lord Chief Justice for having moved them.
§ On Question, Amendment agreed to.1533
LORD PARKER OF WADDINGTON moved Amendment No. 2:
Page 8, line 28, at end insert—
(b) the period of 56 days beginning with the day on which the sentence or other order was imposed or made.
§ The noble and learned Lord said: My Lords, I apologise to the House for having perhaps dealt wrongly with Amendments Nos. 2 and 3 in speaking to them at the same time as moving Amendment No. 1. They are all technical points, to clear up the provisions of Clause 11. I beg to move Amendment No. 2.
§ On Question, Amendment agreed to.
§ LORD PARKER OF WADDINGTON: My Lords, I beg to move Amendment No. 3.
§ Amendment moved—
Page 8, line 39, leave out subsection (5) and insert—
(5) Where a sentence or other order is varied under this section, the sentence or other order, as so varied, shall take effect from the beginning of the day on which it was originally imposed or made, unless the court otherwise directs:
Provided that for the purposes of section 18(2) of the Criminal Appeal Act 1968 (time limit for notice of appeal or of application for leave to appeal) the sentence or other order shall be regarded as imposed or made on the day on which it is so varied.
§ (6) Crown Court rules—
- (a) may, as respects cases where two or more persons are tried separately on the same or related facts alleged in one or more indictments, provide for extending the period prescribed by subsection (2) above.
- (b) may, subject to the preceding provisions of this section, prescribe the cases and circumstances in which, and the time within which, any order or other decision made by the Crown Court may be varied or rescinded by the Crown Court."—(Lord Parker of Waddington.)
§ On Question, Amendment agreed to.
§ Clause 12 [Right of audience]:
§ LORD TANGLEY moved Amendment No. 4:
Page 8, line 41, at end insert—
(A1) Solicitors may appear in, conduct, defend and address the Crown Court on any hearing of or in connection with any appeal or any proceedings on committal to the court for sentence.
§ The noble Lord said: My Lords, I beg to move the Amendment standing 1534 in my name. Some of your Lordships may remember that on the Committee stage of the Bill I moved an Amendment dealing with this subject matter. That Amendment had three branches, all dealing with the right of audience of solicitors in matters before the Circuit court which are at present dealt with at quarter sessions. The first branch of the Amendment dealt with the case where a solicitor has represented a client in proceedings in the court below, there is an appeal, which is a rehearing at quarter sessions (and will be a rehearing at the Circuit court), and the client wishes the solicitor to appear again.
§ The second branch proposed that a solicitor should have a right of representing his client before the court on a question of a plea of mitigation of sentence when the client had been sent from the magistrates' court to quarter sessions (in future to the Circuit court) for sentence. The third branch of my Amendment went much wider than that. After considering the weighty views which were expressed by the noble and learned Lord the Lord Chief Justice, and the noble and learned Viscount, Lord Dilhorne, I have come to the conclusion that it went rather too wide. I have omitted it from my present Amendment and have confined it to the first two points.
§ May I remind your Lordships that at the Committee stage both the noble and learned Lord the Lord Chief Justice, and the noble and learned Viscount, expressed strong support for my Amendment, and even went so far as to say that it should be voted for; and they said that they would vote for it if it were cut down to the extent to which I have cut it down to-day. I do not know what their attitude will be to-day.
§ I do not think your Lordships would wish me to take a long time in moving this Amendment or to repeat a great deal of what I said on the Committee stage. I think perhaps I have said enough already, subject to one point. This Amendment seems to be the first of what I may term a maze of Amendments on Clause 12 of the Bill, and those Amendments include a number put down by the noble and learned Lord on the Woolsack, which, between them, virtually transform the original Clause 12 into a new clause, and a new clause which would give much wider and deeper 1535 powers to the noble and learned Lord and subsequent Lord Chancellors.
§ Perhaps I may permit myself this observation. I believe it would be very much for the convenience of your Lordships if, in referring to my Amendment, the noble and learned Lord on the Woolsack could give us some idea of the reasons for widening the scope of Clause 12 in the way that he has, and possibly some prevision of the way in which he might be prepared to act in the event of his being given those additional powers. If that were done, I believe it would be for the convenience of your Lordships' House, and would be a clue to getting through this maze of Amendments on Clause 12.
VISCOUNT DILHORNE moved, as Amendments to the proposed new subsection (A1), Amendments Nos. 5 and 6:
Line 1, leave out ("Solicitors") and insert ("The solicitor who appeared for an accused person in a magistrates' court");
Line 2, after ("Court") insert ("on behalf of that person").
§ The noble and learned Viscount said: My Lords, I beg formally to move Amendment No. 5, and I will at the same time, if I may, formally move No. 6. I say "formally" for this reason. As the noble Lord, Lord Tangley, has indicated, there are Amendments in the name of the noble and learned Lord the Lord Chancellor which appear to overlap with his Amendment, and to deal with the same problem. It would save time and would, I think, be to the convenience of the House if we had explained to us, while we are discussing Lord Tangley's Amendment, the purpose and effect of the Lord Chancellor's Amendments. If, at the end of that discussion, the noble Lord, Lord Tangley felt that he should withdraw his Amendment, then there would be no need for any debate on my Amendments to his Amendment. If he felt that he should not withdraw his Amendment, then I would ask, with the leave of the House, to put forward the reasons why I have tabled Amendments to his Amendment. I think that it would take up perhaps unnecessary time were I to do so now.
§ 3.45 p.m.
§ THE LORD CHANCELLOR
My Lords, I will readily accede to the invitation of the noble Lord, Lord Tangley, to 1536 take this opportunity of explaining both what has happened since the Committee stage, when this matter was last before your Lordships, and also the effect of the subsequent Amendments, which I intend to move in due course, if circumstances permit me to do so, and to explain the reasoning which underlies them. I hope that the effect of my so doing will persuade the noble Lord, Lord Tangley, to withdraw his own Amendment, since I believe that my own give him as much as he could reasonably ask for if his own Amendment were carried, and perhaps more.
As he has correctly told your Lordships, although my own Amendments, Nos. 8 and 9 on the Marshalled List, appear in a somewhat mystifying and unintelligible form, they were intended really to recast Clause 12 into virtually a new clause. I think the best service I can do your Lordships, before I give my reasoning and explain why I have put this Amendment down, is to read Clause 12 as it would read on the assumption that these Amendments were moved into it; because as I say, it is intended as a new clause, although the actual mystery of the draftsman's art has led the Amendments to be put down in this form. If Amendments Nos. 8 and 9 were passed, Clause 12 would read as follows:(1) The Lord Chancellor may at any time direct that solicitors may appear in, conduct, defend and address the court in any proceedings in the Crown Court, or in proceedings in the Crown Court of such description as is specified in the direction.(2) A direction under this section may have effect as respects all places where the Crown Court sits, or as respects a specified area, region or circuit, or as respects one or more specified places where the Crown Court sits.(3) In considering whether to exercise his powers under this section as respects any one or more places where the Crown Court sits the Lord Chancellor shall have regard to any shortage of counsel in the area in question, any rights of audience formerly exercised by solicitors at any court of quarter sessions in the locality in question, and to any other special circumstances.I think it is at that point that the manuscript Amendment (No. 10A), of the noble and learned Viscount, Lord Dilhorne comes in, to omit the word "special" before "circumstances", and insert after "circumstances" "affecting the public interest". May I say, in passing, that if we get so far, it is my intention to accept that manuscript Amend- 1537 ment, subject to any drafting improvement that the drafters may subsequently desire to put in. The final subsection, at present subsection (3), of course remains unchanged. It reads:Any direction given under this section may be subject to such conditions and restrictions as appear to the Lord Chancellor to be necessary or expedient".Having discharged that task, I should like to make it clear that in doing this I am aiming in this and the subsequent Amendments, Nos. 13 and 15, relating to Clauses 16 and 21, respectively, to perform the obligations that I undertook to the noble Lord, Lord Tangley, and the noble Lord, Lord Goodman, at the Committee stage of the Bill. I made it clear, both in discussing the Second Reading of the Bill and on the Committee stage, that my overriding motives throughout have been to preserve the integrity and improve the efficiency of English justice—a priceless trust which we have all inherited from our predecessors and which I earnestly desire to hand down to my own successors untarnished, and improved by such reforms as this Bill seeks to effect. Even the interests of the client, which I have sought to serve all my own professional life, and which the noble Lord, Lord Tangley, so rightly emphasised in his speech during the Committee stage, can be safeguarded only in the context of this overriding requirement.
Both branches of the legal profession are working under strain at the present time. Both, as the noble and learned Lord, Lord Gardiner, reminded us at the Committee stage, are seriously undermanned as a result of the constant increase of legal business since the war and possibly also of the increases in taxation and shorttages of ancillary manpower which have been the characteristics of those post-war years. The solicitors' branch is seriously undermanned and, probably as a result of shortage of ancillary staff, if anything worse understaffed than the Bar. Both are working under strain. It follows that if either, or both, choose to make dossiers at the expense of the other, both can uncover some failure in the standard of public service which they ought legitimately to wish to supply.
It also follows that a sufficient supply of really mature barristers and solicitors to fulfil each their separate functions will 1538 not be fully available for some years to come. Given adequate recruitment, both branches of the profession can hope to provide qualified practitioners fairly rapidly, compared with some other professions which have longer periods of training. But good lawyers, like good port, mature slowly, whether in bottle or in cask, and I am mainly concerned with the mature version which we produce.
The remedy for this situation can, I think, be found in two related prescriptions. The first is to remove unnecessary inefficiencies in our court administration. That is what we are trying to do by this Bill. But it would be quite wrong to adopt panic measures which would undermine the foundations on which judicial and professional integrity have been slowly built up over the years. The second prescription, however, is at least as important as, and perhaps more important than, the first. With two branches of the legal profession working under strain, it is vitally necessary to reduce to a minimum mutual friction between the two, and to increase to a maximum mutual co-operation and trust between the two. Maximum co-operation and maximum communication must be the order of the day, and not mutual recrimination and suspicion.
Although I hope I may say this without giving offence to either of these branches of a distinguished calling, it is no use pretending that this issue does not have some of the features of a demarcation dispute, just as the disputes which take place, let us say, between the boilermakers and the engineers give rise to something in the nature of a demarcation dispute. But I should not myself recommend fusion or federation as a remedy in this case. The formula in any kind of dispute of this kind is to wish to create the maximum of trust. The way of doing that is to exhaust, and use to its fullest, existing negotiating joint machinery, or, if such machinery is not available, to see that it is made available; and at all times to keep the channels of communication open and unblocked. By that I mean the channels of communication between the two bodies concerned and the sponsoring Department—in this case, the Lord Chancellor's Office—and not simply the mutual communication channels between the two.
1539 That brings me back to the situation as I left it at the Committee stage. The noble Lord, Lord Tangley, very kindly, at my request, did not press his Amendments to Clause 12, in exchange for an undertaking by myself to bring about a meeting at which he and I could discuss the matter in the presence of the representatives of the Bar Council and of the Law Society, with a view to an honourable and reasonably rapid improvement in the terms of the Bill. The Amendments which I have now put down are the result of that meeting, in the sense of their being the consequence of that meeting. But I must make it clear that they are my Amendments. They are not the result of some secret bargain which was arrived at in that meeting, or some secret bargain between the Law Society and the Bar Council. I put the Amendments forward on their merits, and their merits are what I now wish to discuss.
Your Lordships will remember that Clause 12, as it stood unamended and as it stands now, gives the Lord Chancellor power to open the Crown Court on a geographical basis—in our discussions the noble Lord, Lord Tangley, described it happily as a horizontal basis—when a case is made out for so doing. The noble Lord put down on Committee, and has now put down in a revised form, an Amendment which would open the courts automatically and without inquiry on what he called, equally happily, a vertical basis; that is to say, the opening would be nationwide and dependent oil the type of case and not on the geographical area.
It seemed to me, on looking at these Amendments, that there were three main defects or criticisms which could be made of them. The first was procedural. The case was attempted to be made, I thought, without adequate previous discussion, rather than on the basis of the full use of the machinery which exists between the Law Society and the Bar Council in the form of joint committees and which ought to be used if the professions are to go forward on a basis of mutual trust and co-operation, as they should.
The second was that the Amendments lacked the flexibility which I hoped was one of the main virtues of the present Bill. There could, it seemed to me, be 1540 no case for making the provisions relating to the opening on a vertical basis rigid and virtually immovable, while those for the opening on a horizontal basis remained discretionary. I should have thought there was no reason for rigidity in either; no reason to suppose that both professions, which are evolving very rapidly, will stay as they are for another hundred years, which may be the interval before another Judicature Act, and will not require further adjustment from time to time as their relationships develop.
The third criticism which I pointed out at the time and which was also strongly emphasised by the noble and learned Lord, Lord Parker of Waddington, and by my noble and learned friend Lord Dilhorne, was that the cases differed wholly, both in nature and in virtue; tile first two, which remain upon the Marshalled List now, depending upon the type of jurisdiction possessed in the higher court, and the third depending upon an unrealised potentiality of a jurisdiction in the lower court.
But by far the most significant feature of the debate on the Committee stage, at any rate so far as my own thinking was concerned, lay in the support given by the noble and learned Lord, the Lord Chief Justice, and by my noble and learned friend Lord Dilhorne, to the first two of the then Amendments standing in the name of the noble Lord, Lord Tangley, and their opposition to the third. I made so bold as to draw the attention of the Bar Council to this, which I regarded as the most significant factor in our discussion. This was the state of affairs when I had the pleasure of joining the meeting which was called as a result of my promise to the noble Lord, Lord Tangley.
When the meeting was called, I found, not wholly to my surprise but to my great sorrow, that there had been a lamentable lack of communication between the two branches of the profession, and between them and my Office, and that the existing negotiating machinery had not been wholly exhausted or even used as fully as it might have been. At the meeting two documents were produced—a printed document and a Press handout—neither of which I had seen at the time of the debate on the Committee stage, although the former was subsequently shown to me by a Member of the other place who 1541 had had it sent him by a constituent, and neither of which had been seen in advance of distribution by the Bar Council.
I mention this not in any sense of reproach but simply as fact when I say that they both contained complaints of a breakdown in the administration of particular courts, which complaints, at any rate in my view, ought not to be kept to be used as ammunition in argument but ought to be raised at once between the two branches of the profession as soon as they arise; and which, if satisfaction is not obtained at that level, ought to be brought in good time to the Lord Chancellor's attention for remedy, and not saved up for some future date in the event of legislation. My Lords, if our meeting has achieved no other result, I would hope sincerely that one consequence will be the unblocking of the channels of communication between the Law Society, the Bar Council and the Lord Chancellor's Office. In the event, I found the Bar Council resentful at having, as they thought, been put into the dock without an adequate opportunity to reply; and the Law Society suspicious because they believed themselves to be in deadlock with the Bar. I hope that this will never happen again.
My Lords, I next had to deal with the substance of the Amendments we were there to discuss. In this connection I thought it decisive that the Lord Chief Justice's speech required that something should be done. I could not overcome the resentment of the Bar or, as it seemed to me, do justice to the case unless I gave an opportunity for their side of the matter to be considered. I could not overcome the suspicions of the Law Society unless I made it clear beyond a peradventure that the opinion of the noble and learned Lord the Lord Chief Justice as expressed in your Lordships' Committee, backed as it was by the opinion of my noble and learned friend, should be given adequate weight. I accordingly proposed that Clause 12 should be re-cast on the lines of my present Amendment. If this be accepted, both vertical and geographical cases will be placed on the same footing and made to depend on an argued application in which all interested parties have an opportunity to state their views.
1542 Moreover, I think an added advantage is that full flexibility will be maintained. Not only will the first two parts of the Amendment originally set down by the noble and learned Lord, Lord Tangley, be open to discussion, but the third as well, and any other adjustment which either branch may wish to make from time to time. There will be no need to wait for another Courts Bill; no need to mount a Press campaign with resulting damage to the public interest and to the prestige of both sides of the profession. The third point is that it must be recognised, and I think recognised by all, that the expressions of opinion which fell from the noble and learned Lord the Lord Chief Justice and the noble and learned Viscount, Lord Dilhorne, must be expected to weigh with me very heavily indeed if, as I assume to be the case should my Amendment go through, an application under the new Clause 12 is made to me immediately after Royal Assent.
I can therefore assure the noble Lord, Lord Tangley, as I have promised him privately to do, that in the event of my Amendment being accepted in preference to his own, and in the event of such an application being made, I would pay high regard to the observations of the noble and learned Lord the Lord Chief Justice and of my noble and learned friend Lord Dilhorne in coming to any conclusion on such an application. In these circumstances, I have no hesitation myself, or shall have no hesitation if I am permitted to do so, in commending my own Amendment to the House. It is not designed as a compromise; it is not, to use a phrase used by the noble Lord, Lord Wigg, on the last occasion, "a carve up". It represents a considered opinion of my own as the best possible and most honourable solution to a genuine dispute, after listening to the debate on the last occasion, which included such weighty opinions as those I have described from the Cross-Benches, and after listening privately to the representatives of both the Bar Council and the Law Society in the presence of one another. My Lords, should the noble and learned Lord, Lord Tangley, as I hope he will, accept the assurances that I have given, I shall at a later stage have much pleasure in moving my Amendment.
§ LORD GARDINER
My Lords, I am not too happy about any of these Amendments, but I hope that the House will accept the proposals made by the noble and learned Lord the Lord Chancellor, and that the noble Lord, Lord Tangley, and the noble Lord, Lord Goodman, may take the same course. These proposals have the great advantage, as I think, of flexibility, which indeed is one of the objects of this Bill—to introduce into the administration of justice a great deal more flexibility than we have now. Without taking up more of your Lordships' time, I hope the House may so agree.
§ 4.6 p.m.
§ LORD TANGLEY
My Lords, I am of course very grateful to the noble and learned Lord on the Woolsack for the trouble he has taken—and he has indicated part of the trouble that he has taken. I want to make just one or two points clear before I finally make up my mind whether or not I should ask your Lordships to proceed with this Amendment. The first point is that I absolutely disavow the idea that this is something to do with a demarcation dispute between the Bar and solicitors, or indeed that this can be settled by way of a deal between barristers and solicitors. As I tried to say on the Committee stage, this is a matter where the public interest, and in particular that of the client, is mainly involved, and the client's interests are not and can never be subject to a deal between two branches of the same profession. I would never have taken part in any of the discussions to which the Lord Chancellor has referred if I had felt that I was taking part in any such deal, which I certainly was not.
Therefore, it was with some apprehension that I heard the noble and learned Lord say that if these Amendments to Clause 12 which stand in his name go through, he would consider an application. My Lords, I should have thought he ought to consider this matter of his own motion, not on an application from solicitors or from barristers. That is entirely the wrong atmosphere in which to consider this. It may very well be that the matter will be brought before him either by the Bar or by the solicitors, but I would beg the Lord Chancellor not to wait for an application and to treat this as though it were a dispute between two parties which he had to decide, but to 1544 bear in mind, as he says he will, the very weighty remarks which fell from the noble and learned Lord the Lord Chief Justice and the noble and learned Viscount, and to consider this matter of his own motion as soon as the Bill goes through.
Before I finally decide whether or not to proceed with this Amendment, I think perhaps your Lordships may wish to hear the views of the noble and learned Lord the Lord Chief Justice and the noble and learned Viscount, because their support was far more important than anything I could say on the Committee stage, and it was unequivocal, to the effect that something must be done now. May I finally thank the noble and learned Lord on the Woolsack most gratefully for addressing me as "the noble and learned Lord"? I only hope it does not get him into any trouble with the Bar.
§ LORD SHEPHERD
My Lords, as a layman one has great hesitation in intervening in a debate in which so many notable and learned Lords are taking part, but I should like to know the reception, perhaps, of the House to the advice of the noble Earl, the Leader of the House. My understanding is that our Standing Orders prevent us from taking manuscript Amendments on Third Reading.
§ LORD SHEPHERD
If I may develop this point, I say again, on Third Reading; and the obvious reason is that the House should not have put before it a manuscript Amendment and be asked to accept it without having another opportunity, before the Bill moves to another place, to look at what has been finally agreed. It is perfectly true that we are to-day on the Report stage. We have had, rightly, a manuscript Amendment moved—or it is likely to be moved, or it is now being considered whether it should be moved.
§ THE LORD CHANCELLOR
My Lords, if I may interrupt at this point, I think that the noble Lord is under a misapprehension. There is no manuscript Amendment before the House now. Lord Tangley's Amendment appears on the Marshalled List; mine appears on the Marshalled List as well. It is not a 1545 manuscript Amendment; it is an Amendment to Clause 12. These Amendments appear on the Marshalled List as Nos. 8 and 9. I think that what may have misled the noble Lord is that I ventured to read out the whole of the clause as it would be if the Amendments were passed. But what I was discussing is in no sense a manuscript Amendment. The only manuscript Amendment—if my Amendment is passed—which the House may be asked to consider is No. 10A, which stands in the name of Lord Goodman.
§ VISCOUNT DILHORNE
My Lords, I can say to the noble Lord, Lord Shepherd, that the matter under discussion at the moment is the printed Amendment in my name to an Amendment of Lord Tangley. No manuscript Amendment is now being discussed. I should have thought, with the greatest respect to the noble Lord, that it was not in accordance with the customs of this House to introduce a discussion about manuscript Amendments, which may or may not arise, in the middle of a debate on an Amendment to an Amendment, when both are printed.
§ LORD SHEPHERD
My Lords, this is clearly a case where a layman should not have intervened, but I have been listening to the debate with considerable fascination and interest. I was clearly wrong in thinking that the noble and learned Lord who sits on the Woolsack was speaking to a manuscript Amendment. Since he was not, all my fears have been dissipated. The only reason I rose was to seek the protection of the House to see what we were being expected to send to another place and to make sure that we understood what we were doing.
§ VISCOUNT DILHORNE
My Lords, no one would wish to impute the motives of the noble Lord, Lord Shepherd, in the slightest degree. He was perhaps premature in what he said: future events will show whether or not he was.
My Lords, I speak with the leave of the House, for I have moved my Amendment formally; but the noble Lord, Lord Tangley, rather threw out a suggestion that it might help him to make up his mind (and I hope it will) if he heard my views on what the noble and learned Lord the Lord Chancellor said. I do not know 1546 whether it is right to call this a demarcation dispute or not; it rather depends on from what angle one looks at it. It has some of the features of a demarcation dispute; but I am sure of one thing—that the Lord Chancellor has not considered himself, holding the office he does, as an arbiter in a demarcation dispute. What he has had to consider—and it is his duty to consider it—is where the public interest lies. There are two professional bodies, with views as to the public interest which may differ but which are held by both with the utmost sincerity. It was his duty to make up his mind what should be done.
Speaking for myself, I think that the Amendment that he has put upon the Marshalled List is a very considerable improvement upon what was suggested initially by the noble Lords, Lord Tangley and Lord Goodman, and on what was suggested in the debate by the noble and learned Lord the Lord Chief Justice and myself; because it does give the Lord Chancellor and his successors flexibility over the whole field, which I think is very desirable. The noble Lord, Lord Tangley, commented upon the Lord Chancellor's reference to his considering the substance of Lord Tangley's Amendment on an application being made to him. I do not attach so much importance to the use by the Lord Chancellor of those words on an application", because I should have thought that if an application was necessary it would certainly follow upon the Royal Assent to this Bill. I do not myself think that it will be necessary. After our discussion in Committee and again to-day I believe that the Lord Chancellor will inevitably give consideration to this problem over the whole field.
May I say a word with regard to the Amendments that I tabled to Lord Tangley's Amendment now under discussion? The case that Lord Tangley made in Committee, and made again to-day, was to give a solicitor who had appeared on behalf of a defendant in a magistrates' court a right of audience on the hearing in the higher court of an appeal from the decision of the magistrates, and the right of audience where his client had been sent on committal for sentence to a higher court. I must say, as I have said before, that I think that the case for 1547 that change is made out; but the Amendments I have moved are to restrict it to that change and no more.
When I raised this point on Committee the noble Lord, Lord Tangley, said absolutely clearly—I need not quote his words—that that is what he intended. But his Amendment as drawn then, and as drawn again to-day, really goes much wider, for, as it stands, it would enable one solicitor to brief another solicitor to appear in the higher court; it would enable one solicitor to get another one to act, maybe a member of his own firm or of another firm, in the higher court. That was not what Lord Tangley asked for. No case was made out for that. The case that was made out was that the solicitor who appeared in the lower court for his client should have the right in those cases to appear for him again—and not that any other solicitor should have that right. I am sure that, inadvertently, in putting down his Amendment this was overlooked; and that is why I tabled my two Amendments.
I personally support the proposition that the same solicitor should have the right of following the case in the public interest and in the interests of his client, to the higher court only in those two categories of cases: appeals from the magistrates' decision where the solicitor has acted for the defendant at the original hearing; and in those cases which are sent for sentence to a higher court and where the solicitor is fully acquainted with all the circumstances. But one thing is absolutely clear: the Lord Chancellor's Amendment, which he has so clearly explained, can give full effect—and the Lord Chancellor has given a clear intention that it will—to the proposal of Lord Tangley, as, I think, qualified by what I have said. If that be the position, how satisfactory it is!
I hoped when we had our last debate that an adjournment and discussions between the Bar Council and the Law Society would lead, if not to complete agreement at least to a very substantial measure of agreement. From what the noble Lord, Lord Tangley, has said, and from what the Lord Chancellor has said, I think it has become clear that a very large measure of agreement has been reached. If the Lord Chancellor's Amendment is accepted, I think that it will give 1548 him the power to do all that is required in the public interest. He will have flexibility; he can make adjustments from time to time; he can see how things are working out. So, believing as I do that that is right, I should like to withdraw my Amendment which we are now discussing. But I can do that only if the noble Lord, Lord Tangley (who can also speak again, as I have spoken again, with the leave of the House) intimates that it is his intention and desire to clear the way for the Lord Chancellor's Amendment by withdrawing his own Amendment. If the noble Lord, Lord Tangley, would interrupt and say that he will withdraw his Amendment, then I think we can keep in order, because then I could proceed to withdraw my Amendment without saying anything more.
§ LORD PARKER OF WADDINGTON
My Lords, as some of your Lordships may remember, on Committee stage I expressed myself rather strongly in favour of much wider rights of audience to solicitors and indeed indicated that, as then advised, I would vote for the Amendment of the noble Lord, Lord Tangley, if it was confined to what were then paragraphs (a) and (b) of the Amendment, which are now the subject of the Amendment which he has moved. Since then I have listened to the speech of the noble and learned Lord the Lord Chancellor. One thing that really impresses me—and it is something to which I drew attention on Second Reading—is that the real virtue of the recommendation of the Beeching Commission is its flexibility; and it seems to me that Clause 12, if the Amendment of the noble and learned Lord the Lord Chancellor is accepted, introduces that flexibility which is required in this, as in other matters in the Bill.
The clause as amended would provide extensive power over a wide area to regulate the rights of audience both geograpicaily—that is, horizontally—and vertically. There is complete flexibility, and to that extent I venture to think it is more extensive than the Amendment which now stands in the name of the noble Lord, Lord Tangley. I was interested in the point which the noble and learned Viscount, Lord Dilhorne, brought forward about the Amendment as at present drafted permitting solicitors to instruct other solicitors. I am sure that the noble 1549 Lord, Lord Tangley, never thought to provide for that or would think that the clause should cover that. But it might well be thought right—and this is another instance of where flexibility is required—that a solicitor who was unable to appear in an appeal against sentence might get one of his partners to do it and not instruct another firm at all. I am not saying whether that is right or wrong, but it illustrates how dangerous it is to put matters of this sort into a Statute. For my part, I would much rather leave it to the noble and learned Lord the Lord Chancellor who, under subsection (3) of this clause, would have the right to give directions, subject to any conditions or restrictions he thought right according to the circumstances of the case.
In these circumstances, I would hope that the noble Lord, Lord Tangley, may feel justified, particularly in view of the assurance given by the noble and learned Lord the Lord Chancellor, in withdrawing his Amendment.
§ LORD CHORLEY
My Lords, I should like to say a word about this Amendment. I was not able to be here on the last occasion, but as chairman of a quarter sessions in the North for over 25 years, I have had a great deal of experience of the difficulties which often occur as a result of the Bar being undermanned. What I like about the noble and learned Lord's proposed Amendment is, as the Lord Chief Justice has just said, its flexibility. We must remember that we are at the beginning of an important reorganisation of the law, and while we all hope that it will lead to smoother working it is difficult to forecast what is going to happen over the next 10 to 15 years.
The noble and learned Lord on the Woolsack said that we cannot expect to get another Bill of this importance probably for 100 years. What he has got, if he gets his Amendment, is the discretion to adapt his decisions to the situations that may arise under the new Bill, and this seems to me to be very important indeed. I, too, hope that the noble Lord, Lord Tangley, will not continue to feel too hot under the collar. There has been a lot of dispute about this—whether one might call it a demarcation dispute does not matter. The public interest requires that something should be done about it. In the 18th 1550 century solicitors became scriveners and there is no doubt that that was in the public interest. I think that the present proposals are very much in the public interest and it seems to me, as one with some experience in this work, that the proposals which are to come from the noble and learned Lord who sits on the Woolsack will give us the very best method of dealing with the situation. So I hope that the noble Lord will withdraw his Amendment and we can then get on to the Amendment of the noble and learned Lord the Lord Chancellor.
§ LORD TANGLEY
My Lords, I shall relieve your Lordships' suspense by saying that I beg leave to withdraw my Amendment.
§ VISCOUNT DILHORNE
My Lords, I must withdraw my Amendment first to keep in order. The noble Lord, Lord Tangley, having made it clear that when the time comes he will ask leave to withdraw his Amendment, I ask leave to withdraw my Amendments to his Amendment.
§ Amendments to Amendment, by leave, withdrawn.
§ Amendment, by leave, withdrawn.