HL Deb 09 February 1972 vol 327 cc1137-42

2.50 p.m.


My Lords, with the leave of the House I would desire to make a statement to your Lordships about Section 12 of the Courts Act 1971. Noble Lords will remember that, following debates on the Committee stage in this House, Section 12 of the Courts Act 1971 was amended in such a way as to give to the Lord Chancellor power lo give directions regarding the rights of audience of solicitors in the new Crown Court. I wish now to make a Statement in the House regarding the first uses to which I am putting this power. The section of the Act gives me power to make directions either general in scope or limited to sittings in a particular area or group of courts or to sittings at a particular court centre. At the time of the Second Reading of the Bill I undertook to give directions under this section giving rights of audience at places in which solicitors had previously had similar rights at quarter sessions before the commencement of the Act. I have already redeemed this undertaking by the first directions I gave under the Act on December 7 last.

I now have to consider what further directions, if any, are desirable in the public interest, having regard, among other things, to the views expressed in Parliament during the passage of the Courts Act through both Houses and to the representations which I have since received from the Law Society and the Bar Council. In considering these representations, I have borne in mind three matters of equal importance; that is to say, first, the interest of the public in the maintenance of adequate standards in the administration of justice; second, the importance of maintaining a sufficient supply of specialist advocates of high professional standards for the use of prosecution and defence in criminal cases, and thirdly the importance of enabling an individual client to be represented by the advocate of his choice. In particular, I have borne in mind the strong speeches on this subject of the noble Lord, Lord Tangley, the noble and learned Lord, Lord Parker of Waddington, and the noble and learned Viscount, Lord Dilhorne.

I have decided to give a general right of audience in the case of all appeals to the Crown Court from magistrates' courts and of all committals to the Crown Court for sentence. In the case of criminal appeals and committals for sentence this will be limited to the solicitor who appeared for the defence in the magistrates' court. I have not extended the right of audience to the solicitor who appeared for the prosecution, not out of any want of regard for prosecuting solicitors but because the arguments advanced for an extension of the right of audience on appeals and committals for sentence in Parliament were largely based on the importance of enabling the defendant, if he so desired, to be represented by the advocate of his choice and because I find no sufficient reason for altering the present balance between the Bar and the solicitors' profession in the conduct of prosecutions, whether by public authorities or private individuals. I must also emphasise that I regard the presentation of a prosecution case in the higher courts by counsel, properly instructed by a solicitor, as an added safeguard of individual freedom since it involves that a second opinion is always brought to bear. I have come to the conclusion that in those cases where a solicitor has a right of audience in the Crown Court this should extend also to any partner of his, as well as to any qualified solicitor employed by his firm, in case the original advocate is not available.

I do not envisage any further use of my powers of direction under Section 12 on a nation-wide basis in England and Wales in the absence of a change of circumstances until sufficient time has elapsed to enable the effects of my present direction to be fully assessed.

In addition to my right of direction on a nation-wide basis, I have to consider the possibility of extending rights of audience on a purely local basis. Any further extension of rights of audience on a geographically limited basis must depend on the existence of satisfactory evidence in regard to shortage of counsel and not on general considerations of policy. As I have said, I have already used this power once to redeem the undertaking I gave on the Second Reading of the Courts Bill. I do not consider that I am yet in a position to make further use of this power. I should expect any request for such an extension to be addressed to the Lord Chancellor by the local law society concerned and I would hope that no such request will be put forward until both branches of the legal profession have had time to adjust themselves to the conditions of the new court system and to the operation of my new direction. On receiving such a request I would consult the Presiding Judge of the Circuit and the appropriate Advisory Committee, as well as the Leader of the Circuit and the representatives of any local Bar who might be affected by the proposal. Once a direction has been given or refused, it is unlikely that the Lord Chancellor would be willing to entertain any further application in respect of the same area or court centre until there had been sufficient opportunity of judging the effects of the earlier decision. My Lords, that is what I wish to say.

2.55 p.m.


My Lords, I know that the noble and learned Lord, Lord Gardiner, had he been able to be present this afternoon, would have wished to thank the noble and learned Lord the Lord Chnacellor for the Statement he has just made. In place of my noble and learned friend I desire most cordially to thank the noble and learned Lord for the extremely clear Statement that he has made of the reasons which have actuated him in formulating the terms of what is his second direction under Section 12 of the Courts Act.

My Lords, Section 12 itself was the product of a good deal of controversy on the question of the right of audience of solicitors, and itself represents in a sense a compromise, although, as the noble and learned Lord the Lord Chancellor explained during the Committee and the Report stages of the Courts Bill in this House, it is more than a compromise—it is rather a new approach which comes from him. It vests in him a discretion, and speaking for myself I feel quite convinced that that is the right approach to this difficult and controversial problem. May I go further and say that, considering the reasons proffered by the noble and learned Lord, I feel sure that he has most wisely exercised his discretion in relation to this second direction. In effect, he has limited himself to what were the first two limbs of the Amendment which, having been tabled by the noble Lord, Lord Tangley, was discussed in your Lordships' House and gave rise to the notable speeches to which the noble and learned Lord the Lord Chancellor has referred. If I may say so, I should have thought he was eminently right in limiting himself in that sense.

I was also very pleased to hear him say that he would not propose to extend the right of solicitors on the general plane until time had elapsed so that one could see how this present direction had worked out. I noted also that he has received representations from both the Law Society and the Bar Council since Parliament passed Section 12, and I am quite sure that he has given them most careful consideration.

The noble and learned Lord also referred to the previous direction that was given in December of last year with regard to particular local courts, and he indicated what he thought would be the appropriate procedure if it were desired in future that he should extend the facilities that he has given by the direction of December last year to other local courts. If I may say so, the procedure that he envisages is obviously highly convenient and is perfectly designed to elicit the opposing views that he might wish to take into account in formulating any future decision as to a fresh diection affecting local courts.

My Lords, I have carefully considered whether there was some question that I should ask the noble and learned Lord in accordance with what is rather your Lordships' custom when a Statement of importance is made. I cannot think of any questions. I am quite satisfied, and I do not want to take up your Lordships' time by asking questions, the answers to which I think are already perfectly apparent from the Statement. Therefore I have no more to say, except to thank the noble and learned Lord very cordially for the obvious care and anxious thought which he has given to this problem, which has aroused a good deal of somewhat heated controversy in the past.

2.59 p.m.


My Lords, I should like to join in thanking the noble and learned Lord the Lord Chancellor, for making this Statement. I welcome the decision he has reached as it seems that it will lessen some of the divisions which to-day are difficult to justify, between the two branches of the legal profession. The noble and learned Lord the Lord Chancellor will no doubt agree that the interests of the client must always be paramount. With regard to the future, the noble and learned Lord used the words "until sufficient time has elapsed". Can he give any indication as to what he has in mind regarding the time scale?


My Lords, I am grateful to both noble Lords for the generous way in which this Statement has been received. I certainly hope that any divisions there may be are lessened, if those divisions are accompanied by any bad feeling, and anything I can do will be done to lessen them. As regards the interests of the client being paramount, I said in my Statement that I think there are three things of equal importance, and the first is the administration of justice. It is not the individual client only who is concerned in this matter. The individual client's interest is to get off, and this is not the only interest I have in mind in conducting criminal proceedings. But so far as it can be reconciled with the administration of justice I think I would agree that the interest of the client has a very high priority. As regards the time factor, I should not like to be bound. It may be that this Statement, in spite of the friendly way it has been received, will develop holes more quickly than I hope it will, and they will have to be looked at. On the other hand, it may last better than my most optimistic hopes. I do not want to he pushed into any further directions unless there is a strong case for changing the status quo again.

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