§ 9.56 a.m.
§ The Lord Chancellor (Lord Mackay of Clashfern) rose to move, That this House takes note of the consultation papers The Work and Organisation of the Legal Profession (Cmnd. 570), Contingency Fees (Cmnd. 571) and Conveyancing by Authorised Practitioners (Cmnd. 572).
§ The noble and learned Lord said: My Lords, the proposals put forward in the Government's three Green Papers published on 25th January this year are put forward in the context of a comprehensive programme for securing a better and more cost-effective service to the public from lawyers and the courts.
§ One part of the programme is the Children Bill, which recently received its Third Reading in this House and is now in another place. That Bill seeks to provide for better court procedures for parents and children and a flexible approach to the level of court jurisdiction appropriate to a particular case. With the agreement of the President of the Family Division, I have recently appointed Her Honour Judge Bracewell to assist the president in the judicial administration necessary to ensure the best possible transition to the new procedure under the Bill.
§ Another part of the programme is the decision to implement the recommendations of the Civil Justice Review, set up by my noble and learned friend Lord Hailsham of Saint Marylebone, as Lord Chancellor, 1308 over a five-year period. The Civil Justice Review identified the key to reducing delay and cost as a more appropriate distribution of business between the High Court and the county courts. It is right to say that, well before the Civil Justice Review was published, the High Court itself put that policy into operation and many cases were sent down to the county courts. The High Court will be reserved for public law and other specialist cases including judicial review, and for general cases of unusual importance, substance or complexity. This means that a large number of cases at present triable in the High Court will in future be heard in the county court.
§ The review body pointed out that ease of access for the public is an important test of the effectiveness of the civil justice system. It also made recommendations in relation to standards of practice of lawyers and specialisation. It pointed out that the need for written professional standards are identified by the Royal Commission on Legal Services in 1979, but that need had not yet been fully met by the Law Society or at all by the Bar, according to the review's conclusion. The review body considered that its recommendations would require major changes in the working practices of lawyers and that those changes should be accompanied by clear compelling statements of standards of professional practice, addressed by the professional bodies to each branch of the profession and designed to ensure that the public are properly protected. This is a recommendation fully endorsed by the proposals in the Green Papers.
§ In addition, the review body recommended that schemes for specialisation, already in existence for child care and mental health proceedings, should be extended to all the main areas of litigation, subject to the application of rigorous criteria for competence and experience. That again is an approach fully endorsed in the Green Papers. Finally, the review body recommended that the Government should investigate the possibility of contingency fees. These are of course considered in one of the Green Papers to which the Motion refers.
§ The third part is the new Legal Aid Act together with the Legal Aid Board which took over the administration of legal aid on 1st April. This will provide a system that is efficient and effective and give to all concerned the best possible value in return for the money spent on it. It will also have greater flexibility to meet changing demands and circumstances.
§ The proposals in these three Green Papers are the fourth part of the programme for securing a better and more cost-effective service to the public from lawyers and the courts. The overall objective of the Green Paper on the work and organisation of the legal profession is to see that the public has the best possible access to legal services and that those services are of the right quality for the particular needs of the client.
§ It is correct to say that the Government now wish to take action in areas where in 1983, in responding to the Royal Commission on Legal Services, they considered no action was necessary. However, it may 1309 assist if I remind your Lordships of some key events affecting the legal profession which have taken place since then.
§ To begin with there have been legislative changes. The Administration of Justice Act 1985 permitted solicitors to incorporate their practices with limited liability. The same Act removed the solicitors' conveyancing monopoly by creating the new profession of licensed conveyancers. In 1986 the Building Societies Act allowed the Lord Chancellor to recognise building societies and other institutions as suitable to provide conveyancing services. To date no recognition rules under this Act have been made. I do not believe that the protection of the public requires, as the Building Societies Act provides, that the Lord Chancellor himself should consider individual applications from those who wish to offer conveyancing services. Nor do I believe that it requires the setting up of elaborate machinery to oversee the granting and refusal of recognition. That would be direct executive control, which is as undesirable for conveyancing as it would be for advocacy. But I shall come to advocacy in a moment.
§ In March 1988, the Government published the Green Paper, Review of Restrictive Trade Practices Policy. This suggests a general prohibition of agreements which have the effect of restricting or distorting competition. There are provisions for granting exemptions, but on economic grounds only. The Government have concluded that the professions should be subject to the new legislation and that the rules of professional bodies should be subject to the same tests administered by a new competition authority as others.
§ Now let me turn to the legal profession's recent efforts to examine its structure and practices. The Marre Committee was set up by the Bar and the Law Society in 1986 to examine the structure and practices of the legal profession to see whether or not these met the needs and demands of the public; and to make suggestions for change acccordingly. Both the Bar and the Law Society thought that the time had come to reappraise their traditional views. The resulting report contains much of great interest, but what was the result of the committee's deliberations on rights of audience after two years? A complete impasse—because the Bar Council made clear on 19th March 1988, in advance of the committee reporting, that the council would not agree to any extension of rights of audience.
§ It seemed to me that the way out of this impasse was to go back to first principles. My approach to the question of rights of audience is this: what should justify any person having a right to charge for his skills as an advocate? I believe the answer is that he must have the necessary level of competence and be governed by an appropriate code of conduct. So it is competence and conduct.
§ To achieve this the Green Paper proposes a new statutory framework. Primary legislation is required to make it plain that the only purpose of prescribing qualifications and principles of conduct is to achieve proper standards of advocacy in court. Decisions on rights of audience will be implemented according to the proposals by the Lord Chancellor in secondary 1310 legislation after he has consulted both the Advisory Committee on Education and Conduct and the full-time judiciary. This process is of course subject to parliamentary control. Even then, although the decisions had passed through the parliamentary control, if the Lord Chancellor were to seek to abuse those powers in any way that constituted an abuse of power, the remedy of judicial review would be available in the courts. The Government are fully committed to the remedy of judicial review as is made clear in what I said about the civil justice review. The Government propose that it should be reserved by primary legislation to the High Court.
§ I should make it clear that, although the advisory committee will be advising on which professional bodies may grant the advocacy certificates to be required before an advocate may practise in a particular court, it will not issue or grant these certificates itself. This needs emphasising because in its initial response the Bar obviously misunderstood this. I make no complaint about that. These responses were issued very quickly following the issue of the Green Paper. However, it has never been intended—and the Green Paper, I think, makes that absolutely plain—that these certificates should be granted by the advisory committee. It is plain that what we envisage is that these certificates would be granted by the professional bodies concerned. It will be left to the individual professional bodies to grant the licences, just as it will be left to them to draft the necessary codes of conduct, subject only to the principles to be prescribed by secondary legislation.
§ I believe that there has to be some framework of this kind. It cannot be left entirely to the professional bodies because past experience has shown that the Bar and the Law Society have not been able to agree on this matter. I believe that the public also have a legitimate concern in these matters. But within that statutory framework the professional bodies will be entirely free to make their own decisions and in particular will be entirely free to consider and decide upon individual applications. There is no question whatsoever of these proposals suggesting that the Government would have control directly or indirectly on which individuals should be entitled to practice.
§ This modest framework, which I am proposing for the sake of preserving and improving standards and providing a framework against which more than one professional body can operate, has been attacked, I think it would be fair to say, as state control of the legal profession. Why? The judges will remain in control of their courts and, as I have just explained, the Lord Chancellor's decisions and those of his advisory committee will be subject to the approval of Parliament and to judicial review. I am particularly glad that our constitutional arrangements enable so many of my noble and learned friends who are serving Law Lords and also my noble and learned friends who are the senior members of the serving judiciary, my noble and learned friends the Lord Chief Justice and the Master of the Rolls, to be here today to present their views on these proposals.
§ It is said that I am removing the rights of judges to decide who shall appear before them. However, rights of audience in the magistrates' courts, the 1311 county courts and, to an extent, the Crown Court are already regulated by statute. Parliament had to intervene in the 19th century to grant barristers a right of audience in the magistrates' courts, thereby reversing an earlier judicial decision to the contrary. The Bar has not withered and died as a result of competition. In fact in all courts and tribunals where the Bar shares rights of audience with solicitors it has, I believe, prospered and thrived.
§ In this connection it is interesting to note a recent survey by the Law Society of the Crown Courts at Barnstaple and Truro. These are two courts where I have exercised the power under the Supreme Court Act 1981 to permit solicitors to appear in cases otherwise reserved for the Bar. In these courts solicitors are permitted to represent clients before a jury in respect of the lowest class of indictable offence. I am not aware of any complaint that these cases are not conducted satisfactorily. But it also appears that few solicitors exercise their current rights and the local Bar is growing.
§ This matter can be brought to an important single question. Why should a solicitor, however highly qualified, be debarred from appearing before a jury in a case in the Crown Court when such a solicitor is already entitled to appear in claims in the Family Division of the High Court for ancillary relief where very large sums may be at stake? These are cases where there can be a considerable incentive on the part of one party to keep secret from the other the precise assets which he or she possesses.
§ It has been argued that I am threatening the independence of the Bar. In this connection it is worth considering what is meant by independence. Sometimes it is spoken of as a reference to financial independence. Certainly the Bar presently prohibits partnerships but it permits arrangements which have come to be known as "purse sharing" which permit the sharing of professional receipts and expenses. I am not against such arrangements: quite the contrary. They are a recognition by the Bar that the ideal of total financial independence may be incompatible with survival in present conditions. Yet are not those benefiting from purse sharing arrangements financially dependent on another member of the Bar? And if so, how does this affect their ability to act as independent advocates?
§ Is there any difference between the independence of barristers who practise from chambers and the independence of those barristers who may be employed? Would there really be any difference between the independence of barristers practising on their own and barristers in formal partnership with others? Can one really believe, for example, that the independence of the present holder of the office of Director of Public Prosecutions—a distinguished and much respected member of the Bar—is compromised in any way now that he holds that office under the Crown?
Let me make one final comment on this aspect. Why is it that so many young people are attracted to the solicitor branch of the profession who might have been thought of in earlier times as coming to the Bar? So writes David Poole QC in a recent letter
to The Times. This loss of potential advocates to the court concerns me very much. My proposals will make it possible for such people to practise advocacy. But my proposals should also lead to the Bar itself being able to offer more flexible financial arrangements to young people thus preventing this loss in the first place. Perhaps that is why, according to an article in The Times, Bar students have broadly accepted my proposals, rejecting arguments that greater rights of audience for solicitors would lead to the destruction of the Bar. In their opinion, as stated in The Times,
Any lawyer who has proven his competence and is bound by a code of professional conduct to give objective independent advice … should be entitled to appear before any tribunal".
§ I should also say as a matter of fairness that later the report states that although a minority supported the suggestion that lawyers employed in the Crown Prosecution Service should have rights of audience in higher courts the majority opposed the idea. I believe firmly that independence for which one looks in a lawyer is independence of mind.
§ Perhaps I may now turn briefly to the Green Paper on authorised practitioners. This proposes that I should be empowered to authorise banks, building societies, other institutions and individuals to offer conveyancing services to the public. The aim is to increase the supply of practitioners allowed to offer conveyancing services to the public. The proposals should open up the possibility of one-stop shopping, as it is sometimes referred to.
§ Some solicitors are concerned about lending institutions being allowed to offer conveyancing services to their borrowers. Their worry is that they will be unable to compete and so will be driven out of business. This would, they say, destroy the country-wide network of legal services and so deny the public access to these services; it would thereby, they say, also reduce the number of solicitors wishing to use the services of the independent Bar. They are concerned that competition for conveyancing should be fair. So are the Government. Paragraph 1.3 of the Green Paper spells out how the Government believe that level playing fields could operate. This is a real commitment on the Government's part, although the task of ensuring it, I quite accept, is not without difficulty.
§ Finally, let me emphasise yet again that these Green Papers are consultative documents containing provisional views from the Government. They were intended to stimulate debate both among the legal profession and the general public on these important issues. I think it is fair to claim that they have succeeded at least to some extent in doing just that. So far my department has received over 850 replies to the consultation papers and I am most grateful to all those who have responded. I now look forward to your Lordships' contributions to this debate and in particular to the detailed suggestions that I have no doubt will be made. If it is thought that I have gone wrong by making proposals which should not be implemented, I should like to hear what I should be doing instead.
§ The two branches of the legal profession have been deeply divided for some considerable time now about rights of audience in the superior court. I do 1313 not believe that this public dispute is good for the legal profession or for its public image. One of the fundamental questions that these Green Papers, in particular the first—a major document—address, is a possible answer to that question. I am sure that the health of the legal profession is vitally important in this country. These papers are produced in the belief that their proposals, if implemented, would assist in that connection. However, as I have said, they are proposals for consultation. I know that there are different views about these proposals and, as I say, I look forward very much to hearing your Lordships now.
§ Moved, That this House takes note of the consultation papers The Work and Organisation of the Legal Profession (Cmnd 570), Contingency Fees (Cmnd 571) and Conveyancing by Authorised Practitioners (Cmnd 572)—(The Lord Chancellor.)
§ 10.18 a.m.
§ Lord Elwyn-Jones
My Lords, the massive list of speakers,—a good cricket score of over half a century—must have broken the record for the House as a whole and certainly for early morning sessions on a Friday. The number of speakers, and, if I may say so, their authority and distinction, reflects the importance of the many issues that are raised by the three Green Papers which the noble and learned Lord the Lord Chancellor has introduced. Those issues are of great importance, and not only to those involved in their various ways in the administration of justice—the judges, the barristers, the solicitors —several of whom it is a great pleasure to note are to take part in this debate.
The Green Paper proposals also concern the public at large and our fellow citizens who are subject to the laws of the land, their protection and, indeed, their enforcement. Everyone will be affected in one way or another by these proposals. In my observations I shall be referring mainly to the Green Paper on The Work and Organisation of the Legal Profession.My noble friend Lord Mishcon will be dealing, among other matters, with the papers regarding conveyancing and contingency fees.
The main Green Paper raises questions of considerable professional and, if I may say so, constitutional importance. I well remember that in Nazi Europe and the Fascist countries before the war the authoritarian regimes' first victims were the independence of the judiciary and the independence of the legal profession. There must be no surrender of that.
At the outset—I believe the House may have the same feeling—I should like us to be assured that the main Green Paper is to be treated as a consultation paper. Is there to be a White Paper? That would normally be the provision between a Green Paper and a Bill. Is a Bill arising from these proposals contemplated for the next Session? If so, does that account for the haste in which these proceedings have been brought forward? The importance of treating the main Green Paper as provisional is that there appears to have been—I put it mildly—very little consultation of any kind outside the office of the Lord Chancellor before the Green Paper was published. It was sprung out of the blue upon the 1314 public, the judiciary and the legal profession. That contrasts markedly with the lengthy consultation which took place in the two years before the Royal Commission on Legal Services chaired by the noble Lord, Lord Benson, which reported, as the House will know in October 1979. That Royal Commission is touched on in the Green Paper, but its findings and its recommendations are not mentioned. No doubt many questions will be raised in the course of this debate about the Government's change of mind in their attitude towards that Royal Commission report since they have been in office.
I venture to stress at this stage in our debate that the mere three months' consultation period which is to be allowed by the Government is wholly inadequate for proper and public consideration of the great issues raised by the Green Paper. While there has been discussion over the years of some of the issues raised, there has been no opportunity for Parliament to consider the package of proposals which is brought before us as a whole or its many controversial features. The time factor is particularly important because of the change of mind which the Government have displayed on some of the crucial issues.
I have no doubt that many questions will be raised in the debate about the reasons for the Government's volte face on some of the recommendations that have previously come forward from Royal Commissions. The Green Paper itself seems to have been the result of a short and hasty process. I greatly hope that, in order to enable full consultation to take place in Parliament on the Green Paper, the noble and learned Lord the Lord Chancellor, when he replies at the end of the debate, will indicate the Government's willingness to allow a substantial extension of time beyond the three months that have been proposed. It is far too important an issue to be rushed and we shall not only ask for a substantial extension of time, but shall expect it.
We on this side of the House—and, I suspect, the House as a whole—will support what the main Green Paper describes as the Government's overall objective in publishing the Green Paper. I read that it is to see that the public have the best possible access to legal services and that those services are of the right quality for the particular needs of the client. That is clearly a desirable aim and purpose, but alas ! the Green Paper fails lamentably to set out how that objective is to be achieved in practical terms or how the finance to give better access to legal services will become available. Reliance on market forces and on the discipline of the market, which is the essential theme of the Green Paper, has never provided adequate legal services for our people as a whole. There is no reason to think that it will do so hereafter.
The Government's reliance, as one sees in paragraph 1.2 of the Green Paper, is that they believe that:free competition between the providers of legal services will, through the discipline of the market," — —this is the eternal theme— —
ensure that the public is provided with the most efficient and effective network of legal services at the most economical price".1315 The proposals signally fail to set out how the stated Government objective is to be achieved in practical terms and how the finance to make the aim a reality will become available. To widen freedom of competition, the Government propose to abolish a number of restrictive practices. Some of those proposals we on this side of the House certainly welcome. But they have also produced others of a somewhat bureaucratic character with the purpose of protecting professional standards. All these proposals have been highly controversial and have been rejected in many significant quarters. As was said in the Marre Report, failure to make proper provision in public expenditure programmes for access to justice will have adverse consequences for the social coheson of the community. That is not a hollow warning. It is an important one.
It is remarkable that a Green Paper which claims that its purpose is to improve access to legal services gives hardly any and certainly no proper attention to legal aid, although it is briefly mentioned in paragraph 2.7 of the report. Yet legal aid was introduced in 1947, after all-party preliminary discussions in support—a step which I remember vividly from the days when I assisted the noble and learned Lord, Lord Shawcross, to steer the first Legal Aid Act through Parliament. That initiative by Parliament and the Government was the most significant action by any government to meet the unmet need for legal services, and to meet the challenge and the high cost of going to law or of being taken to law.
Although any analysis of the provision of legal aid and the extent of it is complex, the percentage of the population which is now eligible for legal aid has declined from 70 per cent. to almost 50 per cent. That is a most substantial decline and it continues. There is no indication in the White Paper, or rather the Green Paper. I mistakenly called it the "White Paper"; we may never see one. There is no indication in the Green Paper that there will be an improvement in the position.
The provision with respect to green form entitlement, so important in regard to the provision of legal advice, is even worse according to the calculation of Mr. Cyril Glassner, the former special consultant to the Legal Aid Advisory Committee. Yet the need for legal advice has never been greater. It is also extremely disturbing to know that an increasing number of solicitors' firms dealing with legally-aided work are giving up. The information I have received is that about 40 per cent. of legal aid solicitors' firms are considering giving up the work because of the inadequate rate of remuneration. It is far below market levels in the private sector. That is a curious requirement from a government who are such passionate believers in market forces. I fear that the result may well be that the legal aid service will be a second-class service, and that under this Government—and in spite of the provisions contained in these papers—the downward trend will continue.
I find it to be greatly disturbing that the Green Paper does not mention any plans to extend legal aid to areas where there is an outstanding unmet 1316 need for it; that is immigration, housing, employment law and suchlike. The annual report of the Council on Tribunals, the statutory watchdog on tribunal performance and procedure, has expressed strong regret that legal aid is available for so few tribunals when the issues with which those tribunals deal—housing, rating, employment, health, education and social security—are often vital to the lives of so many people with little money or resources to fight for themselves.
The most cost-effective forms of legal assistance which are available are those provided by citizens advice bureaux, and the law centres. Yet those have suffered and are suffering from chronic overfunding—
§ Lord Elwyn-Jones
My Lords, I beg your pardon let —me go back to square one! They are suffering from chronic underfunding and that, alas! is the serious case. In particular, law centres have suffered long, and still suffer, from local government finance. The Government's attitude has been, "It is nothing to do with us. Local government must finance that". As the noble and learned Lord, Lord Hailsham, and other noble Lords will know, I have had many long battles on this issue.
Long ago the law centres should have been put on a proper centrally funded footing. That is something for which we on this side of the House have been pressing for a long time. Voluntary organisations, some of which I have mentioned, are often run on a pittance salary by young people with a social conscience. They are of critical concern to a large number of relatively deprived people throughout the country. It is disturbing to note that, despite the fine stated aim in paragraph 1, nothing is said about those requirements in the Green Paper.
The further anxiety which noble Lords may well feel is that over the 13 years since the Royal Commission reported in 1979, the damaging future has been that the Government have done far too little to modify civil, criminal and tribunal procedures with a view to avoid delay, costs and inconvenience. It is true, as the noble and learned Lord has said, that recently the Civil Justice Review was produced. I am glad that it is still in the Government's mind because some of us were worried that it had been forgotten. However, that failure over the years—allowing procedures which have clogged up the courts and imposed such intolerable burdens on the litigants —should have been dealt with a long time ago.
There are many speeches yet to come from men of distinction and authority and they will raise the many serious constitutional and professional issues to which the Green Paper gives rise. I make no apology for having concentrated in my observations on the extent to which the Green Paper lamentably fails to ensure its stated objective; that is, to provide for the public the best possible access to legal services. That is what the public need; that is what the public will demand and expect.
§ 10.38 a.m.
§ Lord Hooson
My Lords, I should like to say at the outset that I have an important and longstanding engagement this evening. If by any mischance the debate continues beyond the time at which I must leave, I apologise in advance for being unable to hear the final speeches.
By its very nature the legal profession is conservative—regrettably, often with a capital "c". Proposals for change inevitably provoke a protective reaction. The noble and learned Lord the Lord Chancellor asked the professions for a constructive response. In my approach to the subject I shall speak as a politician, rather than as the professional lawyer that I am, and I shall do so because I believe it to be an essentially political issue.
The public will expect politicians to pose the following three questions in relation to the Green Papers: first, are the proposals likely to make access to the courts and the remedies of the law easier and cheaper? I have come to the conclusion that the answer is, no. The qualification I add is this. It might make the whole process cheaper for the state but it will be more expensive for the general public and the community at large.
The second question is: are they likely to result in a higher standard of service to the public? To that question my answer is an emphatic, no. The third question is: what perils, if any, are inherent in the proposals? I believe that in the longer term to the general public the perils are very considerable.
The noble and learned Lord the Lord Chancellor in a very persuasive speech—which I must say did not persuade me—raised rhetorically the question: is the Director of Public Prosecutions less independent because he is a civil servant? Of course the Director of Public Prosecutions was nurtured and reared on the independence of the Bar. He was appointed to that position after a lifetime of service at the Bar and exercising independent judgment. Presumably that is why he was appointed. It would be very different if he had spent his whole life in the prosecution service of the Crown and if he had different disciplines. The noble and learned Lord also posed the question whether an independent practitioner is more independent than a partner in a firm. Of course he is more independent. I have no hesitation in answering his question in that way.
The reasons why I have come to those conclusions in answer to the questions which I posed will emerge partly from what I have to say but I shall try to condense my remarks as much as possible. However, a feature of the Government's approach is that they rely heavily on their unquestioning faith in the efficacy of competition. It so happens that both branches of the legal profession are, in their respective ways, already fiercely competitive. The noble and learned Lord the Lord Chancellor cited today the 1988 Green Paper A Review of Restrictive Trade Practices. When he appeared before The Timesforum he also quoted the 1987 Conservative Manifesto, although at the time he was not a politician but a judge. However, he seemed to cite it with approval. It stated:Competition forces the economy to respond to the needs of the consumer. It promotes efficiency, holds down cost, drives 1318 companies to innovate and ensures that customers get the best possible value for money".I submit that there is a limit to the efficacy of pure competition and the profit motive when applied to the professions if standards are to be maintained. The worst competition you can ever have is when decent practitioners have to compete with people of lower standards who are prepared always to drag down the level. To me, the whole approach smacks of a determination to go on the American route with all its limitations and deficiencies. There, resort to the law is expensive, uncertain and perilous. Personal and professional insurance premiums are enormous. Predatory lawyers are licensed to seek the maximum return for themselves and their clients from every human misfortune, and the speculative lawyer, whom the Government propose to let loose on the community, is a very dangerous animal.
It seems to me that the dangers of the Government's approach to the professions—and I use that term broadly—are manifest in a demoralisation of the nursing, teaching and medical professions and now possibly the legal profession. We have honourable, responsible, decent professional bodies in this country, and professional practitioners not in any whit, in my experience, inferior to their counterparts abroad. To demean them as opposed to prompting them to reform themselves in this way is to embark on a very perilous path.
Another astonishing thing about the approach of the Green Papers is that they seem largely to ignore the historical background and the evolution of the legal profession in this country and claim to go back to first principles. That might have been appropriate for a blueprint for a former colonial territory about to achieve dominion status. There are obvious dangers in that approach. Oddly enough, the Green Papers do not go back sufficiently to first principles if they are determined to go there to query, for example, whether our adversarial system in a modern sophisticated world is the best way of discovering the truth of matters in issue.
Perhaps I may say immediately that I have hugely enjoyed the adversarial system: I love it. However, after many years of experience I have considerable doubt as to whether or not we should continue with it indefinitely save possibly in the criminal sphere and certainly in the appellate sphere.
One of the worst aspects of the Green Paper proposals is that the Lord Chancellor, that is the state, should be the eventual decision maker—and I use the word "eventual". I know that the noble and learned Lord today qualified the position, but the eventual control within the state will be decisions on legal education, specialisation, professional standards, handling complaints of the public, the rights of direct access to advocacy and its standards and on the control of rights of audience. Of course, I accept that at the very least those matters should be safeguarded by the kind of committee which Sir Max Williams suggested recently.
The proposed powers of the Lord Chancellor are, in my view, totally excessive. The power of the Lord Chancellor to prescribe the principles which must be embodied in professional codes of conduct presents a 1319 grave threat to the independence of the legal profession—and I use the word "independence" as I have always understood it. We are dismayed at the example which that sets to countries such as South Africa, Malaysia or Singapore where the legal profession today resists threats to the rule of law.
Paragraph 4.12 of the Green Paper states:The Government is not prepared to leave it to the legal profession to settle the principles which these codes should adopt".That is a dangerously authoritarian statement. We do not suggest that the legal profession is above the law. For example, it is right that professional codes of conduct should be brought within the ambit of the Restrictive Trade Practices Act 1976 and made subject to investigation under that Act. However, if there is to be any legislation relating to codes of conduct for the legal profession, it must be in very broad terms and must be primary legislation adopted after full consideration by Parliament. Secondary legislation (which, as your Lordships all know, is not subject to amendments or, normally, even to full consideration by Parliament) is plainly wrong for a matter which is so constitutionally sensitive.
It is also wrong that proposed codes of conduct should be submitted to the advisory committee for approval. If the codes of conduct do not comply with any relevant statutory provisions, the codes should be open to challenge in the courts. There should be no pre-approval by any government body.
To achieve sensible and meaningful reform it is also necessary to look at the strengths of our system and to consider what the proposals add to the strengths of our system today. Perhaps I may just mention a few strengths. I believe that judges at all levels are reasonably well regarded and respected. They are also felt by the general public to be completely independent of the state. I referred to the fact that we are in danger of going down the American path. I have a number of American friends, and one of my greatest friends (who is a managing partner in a very large firm of solicitors in New York) happened to be over here as a guest of mine when the proposals came out. His reaction when he read the account in The Times was, "You must all be crazy". Judges are not so well regarded and there is not the same faith in the judicial system by the general public in the States as there is here.
The independence of the Bench to a large degree hinges on the independence of the Bar. Most enlightened opinion in this country accepts as entirely beneficial the two essential characteristics of the Bar; namely, its independence and its consultant nature. I do not accept that there is a great conflict between the solicitors' branch of the profession and the Bar. There may be conflict between a couple of small pressure groups within each, but certainly in my part of the country—I have always been a circuit practitioner, largely in the Wales and Chester circuit—there is the greatest possible amity between solicitors and the Bar. They work marvellously together.
1320 Advocacy is seen in this country as a separate, independent skill requiring provision for the protection of the individual under the law. That skill is available from the Bar to all solicitors and members of other professions entitled to direct access, whatever the size of their firm and wherever they are geographically situated. This is of very great value. Furthermore, both solicitors and clients are reassured by the detachment that barristers bring to cases; and that is the essence of the independence—their detachment and the ability to follow that detached view. The very well known solicitor, Mr. Andrew Phillips, in a letter to one of the national newspapers, described family firms of solicitors as the workhorses of the law, and they particularly depend heavily on the immediate availability of the Bar at all levels.
I certainly could not accept that there should be a common starting point for all lawyers; that is, that barristers and solicitors should have the same basic professional examination for qualification. Clearly, solicitors or barristers, if they want to practise advocacy in whatever courts, should then do a further course in the principles and practice of advocacy. Bar finals in the future might be confined to that. I totally accept, as I believe most members of both branches accept, that there should be easy means of transference between one branch of the profession and the other. I do not even object to solicitors becoming Queen's Counsel provided they are appointed on their merits as advocates. I am totally against any artificial silks appointed for any purpose. The badge of a Queen's Counsel should be a badge of recognition of skill in advocacy, and nothing else. If any solicitor was so appointed he would have to transfer to the Bar and accept the status and conditions of the Bar, where he would be in competition without the cushion of the partnership account.
I have no objection to solicitors of the right calibre eventually being appointed to the High Court Bench. However, there is a great deal to be said for the view that no solicitor or barrister should be appointed to, say, the Bench to consider criminal cases if he had no experience of criminal law. I have no personal objection to extended rights of audience. There are two courts in my part of the country where solicitors have a right of audience and rarely exercise it. However, one has to be extremely careful to ensure that barristers obtain the kind of experience necessary for them as young men and women to achieve that standard of excellence which alone is the justification of the Bar. I am totally reconciled to accepting a smaller Bar in this country; but that depends largely on the future of criminal legal aid, and particularly in the way it is to be dealt with. We must give much greater consideration to these matters.
The Green Paper's stated objective is,to see that the public has the best possible access to legal services".I do not think the Green Paper will do very much to achieve that objective. The main problems that have not been addressed are: the decline in the number of people eligible for legal aid; the withdrawal of many firms of solicitors from legal aid 1321 work because it is uneconomic; the absence of legal aid in the industrial tribunals, and other tribunals, which these days are often much more important than the courts; and inadequate funding for law centres, the Citizens' Advice Bureaux and the specialist advice centres.
I come back to a view which I urge the noble and learned Lord to consider. There is room, I believe, for radical reform in the legal system. It is necessary to look at our adversarial system which I accept will have to be retained in certain spheres. However, if the law is to be brought closer to the people, to be made cheaper and its procedures swifter, the noble and learned Lord should look, for example, at the Criminal Injuries Compensation Board in regard to assessment of damages in claims for personal injuries, and so on as the means of a road forward; to keep formality and procedural rules to a minimum and to use barristers and solicitors much more in tribunals where they can be much closer to the people.
I conclude by saying that I do not believe—and here I wear my professional hat much more—that the reception given to the Green Paper proposals by the Bar were entirely justified. I have no fears of the imminent demise of the Bar. I entirely agree with the noble and learned Lord and the Lord Chancellor that there is a great future under his system. The real fear is for the standards of the future, for the eventual independence of the Bar and the eventual independence of the Bench. The whole thrust of the Green Paper ensures that able youngsters will almost inevitably be tempted to go for the safety net of the solicitor-based practice. In my experience, the vast majority of solicitors want to see an independent, strong, excellent Bar. The real problem is how we reconcile present immediate problems with the great future needs of the profession in this country.
§ 10.57 a.m.
§ Lord Rees-Mogg
My Lords, it must be with a sense of profound awe that anyone addresses your Lordships' House for the first time. This sense of awe can only be increased by the fact that this is a great debate, as is shown by the number of speakers on these great and passionately felt issues. I feel an additional degree of modesty because I speak not as a lawyer, only as someone who has had occasion to use legal services, and in front of so many learned peers who have so much more knowledge of these subjects than I.
I am also conscious that the Green Paper makes it somewhat difficult for those who have to make maiden speeches to remain inside the rule that they should not engage in controversy. Should I, by accident, slip into any measure of controversial opinion in what I have to say, I hope that the House will forgive me.
I should like first to refer to costs, because that is where I have had some experience. It is the aim of the Green Paper to produce a more cost-effective system. My own experience, whether one is speaking about litigation in the United States or in this country, is that costs rise proportionately to the size of the firm of lawyers that one employs. Large firms cost a very great deal. Smaller firms are sometimes 1322 quite moderate in their costs. My experience is that the leading law firms in the City of London charge between £100 and £200 an hour for partners' time.
I have made inquiries about the costs that experienced junior barristers receive under legal aid business. I am told that it works out at about £25 per hour. It is clear that if you put business which is being done by people at £25 per hour into a system of overheads that is being run by people who charge £100 or £200 per hour, it is unlikely that the costs will be reduced. We have had an experience of this. We had hoped that when the City went through the Big Bang process it would lead to better and cheaper service—the aim of this Green Paper—for the ordinary small shareholder. In fact it is notorious that stockbrokers have withdrawn from serving small shareholders at all. There are brokers in the City who say that they will now only take on the business of people who are prepared to give Them absolute discretion to handle funds of more than half a million pounds. If we were to get that kind of movement into large firms of the best of legal practice, that would be a disaster from the point of view of cost effectiveness.
What is more important than these questions of costs that can be argued about and on which we need more research, are the constitutional questions that arise. It seems that the liberties of this nation depend on three separate institutions. They are a free and independent Parliament; a free and independent legal system and a free and independent press together with freedom of speech. It is very dangerous to tamper with these systems and it is particularly dangerous to allow one of these three to have too much infuence on either of the other two. I believe that each needs to stand back and to leave the other two to have their own independence if the system is to work and to be maintained. The respect which our judicial system deservedly enjoys depends on the remarkable character of the independence of our judges. That character has been maintained over the centuries. It is drawn from the training and the culture of the British Bar. The structure of independent law depends on this House.
I said that I regarded this debate as of perhaps almost unique importance. That is because we are the ultimate guardians of the independence of the law. The other place is the ultimate guardian of money. Law is our affair. That is shown by the fact that we have the honour of always having in our midst the noble and learned Lord the Lord Chancellor while the other place has the honour of always having in its midst the Chancellor of the Exchequer. Either when acting as a court or in the days when the whole House acted as a court, we always decided who should have audience before us. It is a part of our procedure. These decisions on audience go back centuries. I refer your Lordships to the case of the unfortunate Earl of Winton. In 1716 he was tried on impeachment in this House. It determined what counsel he could have and what areas his counsel could address himself to. Through the centuries it has always been determined here what audience this House would give.
I believe that it would be wrong if this matter were to proceed without the wholehearted consent of this 1323 House. I wish to look back on one of the great constitutional cases that determined a very important point—that each House is the master of its own internal affairs. The case is that of Bradlaugh v. Gossett. Your Lordships will remember that Bradlaugh was an atheist. He was elected to the House of Commons. He was not prepared to take the oath on the Bible and wished to affirm. I am speaking about the 1880s. In those days affirmation was not acceptable to that House. Bradlaugh proceeded against the Serjeant at Arms for refusing to admit him to the House. The case was taken to the Queen's Bench and the judges refused to admit Bradlaugh's plea.
To quote briefly from the judgment of the learned judge, Mr. Justice Stephen, it was that,no precedent has been or can be produced in which any Court has even interfered with the internal affairs of either House of Parliament, though the cases are no doubt numerous in which the Courts have declared the limits of their powers outside of their respective Houses.… If we were to attempt to erect ourselves into a Court of Appeal from the House of Commons, we should consult neither the public interest nor our own dignity. We should provoke a conflict between the House of Commons and this Court, which in itself would be a great evil; and, even upon the most improbable supposition of their acquiescence in our adverse decision, an appeal would lie.… to the House of Lords, which would thus become the judge in the last resort of the power and privileges of the House of Commons".That establishes beyond doubt—and I cannot see how it can be altered—that one of the few fragments of pure sovereignty that exists in our constitution is the sovereignty of each House of Parliament separately over its own procedures. If that is so the question of audience to this House, as the supreme court of the land, is a question that can only be determined by us. I believe that it is right that any great changes in our legal system should depend not on the grudging consent but on the full-hearted consent of this House. I was very glad to hear that the noble and learned Lord the Lord Chancellor said that he welcomed this consultation and the process of discussion which might lead to agreement in the end.
Speaking as a non-legal Peer, I feel sure that agreement would be given enthusiastically to a pragmatic reform that was known to command the preponderant support of the judges, the Bar, and the solicitors of the legal profession and which preserved the independence of the Bar that has been one of the great glories of our nation and also the separation of powers. I hope very much that this debate will lead to consultations of a kind which will produce that result.
§ 11.8 a.m.
§ Lord Irvine of Lairg
My Lords, it is my privilege to congratulate the noble Lord, Lord Rees-Mogg, on a distinguished maiden speech. The House would have expected no other from the noble Lord, who has enriched our national life in so many spheres. It is I who follow in awe of his non-controversial contribution and we look forward with even greater awe to his truly controversial contributions.
The declared overall objective of the Green Paper is to see that the public has the best possible access to legal services and that those services are of the 1324 right quality for the particular needs of the client. No one need quarrel with that as an objective. The medium for achieving it is to be,free competition between the providers of legal services through the discipline of the market".This, we are promised, will,ensure that the public is provided with the most efficient and effective network of legal services at the most economical price".There follow conclusions—forgive me, preliminary conclusions—prior to consultation about the practices of the profession which must be changed to secure the objective.
The lawyers are so soft a target that this absurd free market hype has been unreservedly welcomed by many, not least some of the tabloids. The day after the Green Paper was published, the Daily Mail, under its page 1 headline, trumpeted:Open up the law to the people. The entrenched privileges and hidebound customs of the legal system are to be swept away in a deal to bring cheap and fair law to the people".So, on day one, the tactic, the simplistic populist line, was working a treat. The tactic was to say: "The Government are getting rid of the restrictive practices of the lawyers so, at a stroke, access to legal services and consumer choice will be guaranteed."
The trick is all too familiar. Confuse deregulation with securing consumer rights, access and quality of service. The debate became one about the vested interests of the legal profession, including the judges. What kind of lawyer should have the right to appear in what court and is it the inalienable right of the judges to decide this, or should others have a look-in too? The more vested interests took up the cudgels in defence of their perception of the public interest, the more the public thought that the noble and learned Lord on the Woolsack was the champion of the public interest.
The Green Paper and the resultant debate—that is, until today in your Lordships' House—must surely have earned for itself a distinguished place in the panoply of propagandist distractions from the real issues. Noble Lords will recall the Green Paper. I quote:Free competition will ensure that the public is provided with the most effective and efficient network of legal services at the most economical price".The simple truth about any market is that it operates to provide services only for those who are able to enter the market. The free market does nothing whatever for those who have no access to it, those for whom no one competes because they cannot afford legal services.
The truth about most of the debate before today is that it has been about the possibility, or the risk, depending upon the interest being served, of the transfer of particular kinds of legal work and legal business from one group of lawyers to another within the existing market with no increase in access, certainly with no reduction in cost, and with the risk of the reduction of consumer choice because of the tendency of a reduced number of larger conglomerates of lawyers to form and to charge cartel prices. The technique of the Green Paper, a winning technique so far, has been to promote the vocabulary of choice while prescribing nothing to promote the 1325 genuine access to systems of provision and benefits which alone can enable people to enjoy real choice.
The Green Paper is a distraction because it does not have a single word to say about giving legal aid back to the millions who are outside the absurdly low qualifying limits. Litigation is too long, too cumbersome and too expensive. It is the privilege of the rich and the very poor. Middle income Britain is left out in the cold. Thirteen million people have dropped out of the protection of legal aid since 1979. But, in a sentence which is breathtaking to anyone with even a passing knowledge of the legal aid scheme in practice, the Green Paper says:Those who cannot afford to pay for the legal services they require can often get the help they need from organisations supported by public funds and where necessary they can get access to lawyers through the legal aid and advice schemes".The first part of that sentence is unworthy because of what it suppresses. The second part is a travesty. On the second matter, legal aid, this is not the occasion to go into detail. However, by 1979 my noble and learned friend Lord Elwyn-Jones had been responsible for raising the limits so that at least 70 per cent. of two-parent families with two children had become eligible for civil legal aid. More than 30 per cent. of these received it without paying a contribution. Since then, more than 13 million people have gone out of civil legal aid on income grounds alone. The National Consumer Council has recently conducted an independent investigation and has concluded that the Government's published figures are inaccurate and that there has been a serious decline in eligibility since 1979.
The Legal Aid Advisory Committee, under suspended sentence of death by the noble and learned Lord on the Woolsack, has called for an independent inquiry. But that has of course gone unheeded by the Government. The truth is that the Government's intention is to restrict coverage to the minimum. Dependants' allowances have been slashed, eligibility has declined and the scope of the Green Form system has been narrowed.
I again quote the words of the Green Paper:Those who cannot afford to pay for the legal services they require can often get the help they need from organisations supported by public funds".That is a sentence of remarkable boldness after the unchallenged picture that emerged in this House during its consideration of the Legal Aid Bill, now the Act of 1988. For the vast majority, the Citizens' Advice Bureaux, the advice centres, the law centres, provide the only access to justice, yet they are starved of funds and have a hand to mouth, week to week, existence. The Government have no policy for a geographically fair network of securely funded centres across the country.
How the market works here rather escapes me. The great bulk of the funding of these organisations comes from local government. The uninformed reader of this part of the Green Paper would be astonished to learn that there is next to no central government funding, that provision is haphazard across the country, with gross geographical inequalities, and that local government does not even have a specific power, far less a duty, to fund. So the service has to fall back on the old twopenny rate 1326 and discretionary hand-outs by local government, already squeezed so hard that these bodies—the law centres and advice centres—have no assurance that they can pay wages or stay open. So much for this part of the humbug of the major Green Paper.
The Labour Party is committed to a comprehensive and sensibly funded national network of general and specialist advice and law centres. The Government by their acts do not accept the duty of the state to secure access to justice for their citizens. The Green Paper's sole suggestion to improve access is to promote the idea of speculative actions by lawyers on some contingency basis. I regard contingency fees in any shape or form, however, diluted, as abhorrent.
§ Lord Irvine of Lairg
The argument that professional standards are so high that there would be no risks does not impress. Lawyers are ordinary human beings. No lawyer at the front end of litigation should be in the position that the ability to pay next month's mortgage turns on the outcome of the case. Litigation turns on advocates being trusted by the courts and by one another to play fair. Flirting with contingency fees is another gimmick to avoid state responsibility and to secure justice on the cheap. Like so many bargain basement practices, the lawyers would be no exception to the risk that shoddy standards would result.
I turn now from the real issues concerning the public interest, concealed or ignored by the Green Papers, to what has become a major issue in the debate and which actually resulted from their publication; that is, whether the existence of the independent Bar, of which I am a member, is in peril. The independent Bar consists of a pool of specialist advocates whose existence guarantees huge consumer choice, as the solicitors' firms in the high streets and the regions have been busy testifying. If the Bar ceased to exist, or was significantly reduced, consumer choice would suffer severely. That would be contrary to the public interest.
However, I agree that the Bar competes today with commanding success in every court or tribunal where solicitors have rights of audience along with the Bar; that is, in the magistrates' courts, in the county courts, in planning inquiries, in private Bill proceedings in Parliament, in industrial tribunals in the employment appeal tribunal and in commercial arbitrations. Since it competes so successfully in those forums, I am unpersuaded that it cannot compete at least as successfully in the higher courts where knowledge and expertise may be at an even higher premium. But, having said that, I argue most strongly against allowing barristers to form multidisciplinary partnerships with solicitors.
The noble and learned Lord on the Woolsack has said many times that he believes an independent Bar will flourish after implementation of the Green Paper. I hope that he will also take the opportunity of this debate to say clearly that he believes an independent Bar, and its continuance, to be in the public interest. The very nature of barristers is that 1327 they are consultants who are consulted and engaged by other professions. If there is no genuine demand for them, then, without exclusive rights of audience, they will wither away. But if there is that genuine demand, as I have no doubt, then they should stand separate and apart because the raison d'êtreof professionals is that they have unique functions to perform. Chinese walls never work.
If barristers formed multi-disciplinary partnerships with solicitors, or other professions, they would inevitably cease to be what barristers are in practice. If exclusive rights of audience go, the consumer will be free to choose a solicitor/advocate or a barrister to represent him in any court. Therefore, the consumer will have free choice. However, I urge the noble and learned Lord to consider whether consumer choice does not tell strongly against multidisciplinary partnerships of solicitors and barristers. I also hope that in reply the noble and learned Lord will feel able to indicate some flexibility of mind on the subject.
The noble and learned Lord may also be able to recognise expressly the distinctive characteristic of barristers; namely, that of consultants accepting instructions from other professions in cases that are ready for court. Their involvement in advocacy is therefore necessary and much more continuous and intensive than that of solicitors who accept instructions from lay clients. I ask whether that fact will be clearly reflected in the new criteria for the grant of advocacy certificates. If the noble and learned Lord could say something substantial and tangible of that kind and say too that he believes not only that the Bar will continue to flourish, but also that he believes that it is in the public interest that it should continue to flourish, that would go some way towards lifting the debilitating cloud of uncertainty which hangs over the Bar today to the advantage of no one.
§ 11.24 a.m.
§ Baroness Oppenheim-Barnes
My Lords, it is with great humility, diffidence, a sense of great privilege and above all—I hope—brevity, that I rise to make my maiden speech in this historic debate. In doing so I hope not to be considered presumptuous, since I have no personal legal expertise whatever and I am very conscious that your Lordships' House is well endowed with a great wealth of such knowledge. Indeed, I cannot hope to share the great skill of advocacy that so many noble Lords who are members of the Bar possess.
However, I am chairman of the National Consumer Council, which has recently published a book called Ordinary Justice, concerning the widest possible choice for consumers and easy access to justice. The book covers many of the matters that we have been gratified to find in the Green Papers. I do not intend to go into in detail on this occasion—not wishing to be controversial—except to say that I welcome particularly the proposal to appoint a legal ombudsman with powers to recommend compensation.
It would appear that both branches of the legal profession, unlike the famous James Bond cocktail, 1328 have been both shaken and stirred by the Green Papers which your Lordships are debating. I personally cannot help feeling instinctively, deep down, that that is a rather healthy sign from the point of view of the consumer. I entirely accept that a number of noble Lords who are members of the legal profession do not share that view. I quite understand why and I sympathise with a number of their concerns.
However, with the greatest respect, the law is not there for its practitioners, whether they be judges, barristers, solicitors or even their clerks—invaluable though their input is; the law is there for those who are forced to use it in order to try to obtain justice. It is to those people that we owe our overriding responsibility and I do not believe that any noble Lord or noble Lady would disagree with that view. Indeed, I am confident that that will be the guiding principle which will prevail throughout your Lordships' debate today.
I hope therefore that your Lordships will think it appropriate for me to try to set out simply (from the point of view of those of us who use the courts) why the law, and its processes, are so important to us. Things are not perfect all the time. People make mistakes and others suffer. Sometimes exploitation and cheating are deliberate. Individuals get themselves into muddles with their marital problems, with debt and with a myriad of other matters. In a free society, therefore, we should have good systems for dealing with disputes and for defining who has right on their side. That, of course, is the function of the courts and of the legal services which give each of us, as individuals, ultimate access to justice.
We are all consumers and in that role we have a direct interest in the way the law underpins the marketplace. If we are to go confidently about our business, we must be sure that we can enforce the rights which the law gives us. Yet, going to law can be a daunting experience for the lay person. Many of us are justifiably discouraged by the worry, by the delay and by uncertainty about the cost. In the end, respect for the rule of law itself depends upon its ability to protect the individual. If the processes of law are perceived to be obscure, inaccessible or irrelevant, then people will not see the law as the protector of their rights and, perhaps more important, as the arbiter of their responsibilities.
I know that lawyers are themselves concerned about these problems. I hope that I shall not be considered controversial if I say how much I welcome the steps that they have taken to address such problems; equally, I hope that I shall not be considered controversial if I say that the Government also have a role to play. I have been much heartened by the approach that the Civil Justice Review, presented by my noble and learned friend the Lord Chancellor, has taken.
This has been described by the media, before it has taken place, as a controversial debate; but these are Green Papers that your Lordships' House is debating. I have no doubt whatever that a number of noble Lords will have some very trenchant criticisms to make, while others will warmly 1329 welcome certain aspects of the proposals. I feel sure however that my noble and learned friend the Lord Chancellor will welcome, as he has already acknowledged, constructive criticism.
After 700 years we are, in today's debate, standing at the crossroads of legal reform. We must use the opportunity to embark upon the right route to reform—a route that is, on the one hand, modest enough not to undermine a system that has, throughout its history, set British justice at the pinnacle of world legal practice, and yet, at the same time, a route that is sufficiently ambitious to give those of us who use the services of the legal profession genuine choice and with it an easy and effective access to justice accompanied, of course, by a high quality of advice and performance.
I realise that the balance is a delicate one. No doubt much will be said in the course of the debate, and I therefore wish my noble and learned friend the Lord Chancellor well in his pursuit of that objective. I am grateful for your Lordships' patience and forbearance and look forward to the clarity and wisdom that I feel sure will characterise the debate.
§ 11.32 a.m.
§ Lord Lane
My Lords, perhaps I may congratulate the noble Baroness, Lady Oppenheim-Barnes, on her powerful maiden speech. It is clear that her presence here will greatly enhance the proceedings in your Lordships' House. She indeed brings a breath of fresh air wherever she goes, especially here.
It is Her Majesty's judges to whom falls the task of operating the legal system, whatever that system may be. It would therefore perhaps have been courteous, or even helpful, if those responsible for drafting the paper on the organisation of the legal profession had seen fit to consult the judges upon the draft, at least, before proposing in "white" rather "green" terms to disembowel the system.
It is a system which has developed slowly and painstakingly over the centuries. Your Lordships may think that it deserves more respect, whatever its faults may be. There was no such consultation. A three-month period has been granted for views to be expressed. The response of the Court of Appeal and the High Court judges is to be decided at a meeting to be held, attended by all of them, on 17th April (10 days from now). It has been no easy task to collate the various opinions in the short time that has been available. The views that I venture to put forward to your Lordships today do not necessarily coincide with the views of the judges.
No doubt if the Lord Chancellor's Department had been left to its own devices it would have appreciated the position in which the judges find themselves; but the language of Chapter 1 of the Green Paper betrays clearly the influences which have been at work. Such expressions as:a market providing legal services",the widest possible choice of cost-effective services",the discipline of the market",andthe discipline of competition",are classic Department of Trade and Industry jargon.
1330 The expressions show that the draftsman has failed to realise that he is, or at least should be, dealing with complex human relationships, with standards of integrity, and with concepts of freedom which go far beyond the ideas of the market place, and its limitations, where the prime consideration is what is the best buy.
All the many issues raised by the main Green Paper will doubtless be dealt with by your Lordships. Many indeed have been touched upon already. I wish, if I may, to confine myself to one aspect and to do so as briefly as possible.
Most people take the rule of law for granted. If anyone pauses to consider what it means—and few do—it means, broadly speaking, that once the legislature has made the laws, then everybody must obey them. No difficulty arises so far as concerns the criminal law. Those who transgress it, once they can be identified, can be dealt with. They may threaten our possessions; they may threaten our person; they may threaten our safety; but they do not threaten our freedom.
Much less newsworthy, and therefore much less publicised, but a great deal more insidious, are apt to be some of the actions of Government departments. The executive branches of government, of which ironically enough the Lord Chancellor's Department and the Department of Trade and Industry are two prime examples, have to abide by the law just as, in a different context, does Bill Sykes. How, one may ask, can one rest assured that they do obey the law? The answer is that if they break the rules, if they exceed their powers, if they exercise their powers in a grossly unreasonable way, in short, if they start to bully the citizens whom they are there to serve, they can be brought to heel by judicial review—as the noble and learned Lord the Lord Chancellor mentioned in his speech applying to his own department—whereby any individual or company which feels that his or its rights have been infringed, can obtain redress.
Generally speaking, government departments are apt to abide by the rules, often because the responsible Minister is likely to pay the penalty in lost votes or a lost job if he does not. However, situations may arise where the parliamentary majority is so great, or the Opposition is so weak, that the Executive may get ideas above its station, and the delicate balance—and it is a very delicate balance—and the equally delicate counter-balances may be upset.
Even now, the separation between Parliament on the one hand, and the Executive on the other, is sometimes difficult to discern as Parliament is increasingly liable to do what the government of the day wish it to do. It is, in short, becoming more and more necessary to preserve intact the court's power of judicial review. It may be the one thing that will stop a bullying government in their tracks. Government departments know that. They have even published an in-house booklet entitled The Judge over your Shoulder, which describes the best ways to avoid clashing with the Divisional Court and its power to issue judicial review. How does the Green Paper affect that province of the law? Under 1331 the adversarial system, about which the noble Lord, Lord Hooson, has doubts, but which we operate, there are three essential elements: the advocate for the plaintiff, the advocate for the defendant and the judge. If the defendant is a government department, it is quite clear that the advocate for the plaintiff, and of course the judge, must be independent of any influence from a government department: that is, if justice is to be done.
However, throughout the Green Paper and in the various situations with which it deals, the so-called Lord Chancellor's Advisory Committee on Legal Education and Conduct makes its appearance. It is an ill-sorted conglomerate, comprising, inter alia, a majority of lay persons. It is expressly to be staffed by civil servants from the Lord Chancellor's own department. It will advise the Lord Chancellor. He will on some matters consult the judges; but one wonders how much or how little in practice that would in fact mean. This in short is an elaborate mechanism which threatens, whether intentionally or unintentionally, to give the civil servants control of who is to be the advocate, how he shall be educated, how he shall behave in court and indeed in what courts he shall appear. These are matters which up to now have been the province of the judges, acting in some instances through the intermediary of the Inns of Court. With all those powers in the hands of the executive, if these proposals become law, the one thing which at all costs must be avoided is likely to come about; and that is control by the executive of the principal means available to the ordinary citizen of controlling that same executive.
No doubt the fears which I have expressed will be pooh-poohed in some quarters: of course they will. But loss of freedom seldom happens overnight, as the experiences of the noble and learned Lord, Lord Elwyn-Jones, in Europe immediately after the war taught him. Oppression does not stand on the doorstep with a toothbrush moustache and a swastika armband. It creeps up insidiously; it creeps up step by step; and all of a sudden the unfortunate citizen realises that it has gone.
In some common law jurisdictions in other parts of the world with British-style systems of government, the administration of justice has indeed come under the heel of government. Judges there are no longer independent. The principle of the rule of law is observed so long as it suits the government and no longer. The private legal profession is bullied. We are told, and people say, "Of course it couldn't happen here". Could it not? The growth in the powers of the Executive, and therefore of the Government, over the administration of justice has steadily increased in recent years. The signs are that it will extend still further, and one asks whether we are now seeing tools being fashioned which by some future, perhaps less scrupulous, government may be used to weaken the independent administration of justice and so undermine the rule of law.
One may ask: to what purpose are all these proposals directed? They are populist proposals which inevitably will be applauded by the tabloid press, and have been. They do nothing to alleviate 1332 the popular complaints, and those popular complaints are two-fold: first of all, the expense of justice; and, secondly, the delays in justice. Indeed, the proposals which are made are likely in their effect to increase both.
If there are to be changes is it too much to ask that they should be made cautiously, leaving room to retreat if they prove unworkable or counter productive? Is it asking too much that the judges—that is to say, those people who have the task of operating any changes—should receive a little more courtesy and a little more consideration than has so far been extended to them? Much in this sphere can be done gradually by co-operation: nothing in this sphere can be done by confrontation.
§ 11.46 a.m.
§ Lord Hailsham of Saint Marylebone
My Lords, I am very glad that I came to this Chamber without a prepared speech. It will be my duty to say how much I agree with what has been said, far better than I could have said, by a whole succession of speakers. But one thing I should like to say for myself. I hope my noble and learned friend on the Woolsack will not take amiss any criticism I may offer of the Green Papers. He has appeared before me as an advocate, when he was Dean of the Faculty; he was my colleague as Lord Advocate; and since he has occupied the Woolsack he has, I think, won both the affection and the respect of every Member of this House.
§ Lord Hailsham of Saint Marylebone
I therefore do invoke the long and noble tradition of this country that one may differ sharply on policy without losing friendships.
I first knew of the intention to publish the Green Papers when The Timesnewspaper commissioned me three weeks in advance and told me they were coming. I did not get them until a matter of hours—and then thanks very largely to my noble and learned friend—before I had to write what I then wrote in review of them. I was frankly appalled by what I read, and the first thing which appalled me was the timetable. As the noble and learned Lord who has just spoken has reminded us, we have in this country—and for this purpose I speak only of England and Wales—a system which has been developing slowly and subtly over 700 years. And it has developed, in a field which is peculiarly prone to chicanary, quackery, charlatanry and sheer dishonesty, into perhaps the most upright and the most independent legal profession known to man.
The Green Paper was issued towards the end of January. We were given until 2nd May to comment upon its provisions. I regard that, frankly, as an outrage and it gives rise to the obvious conclusion that it is intended to introduce a comprehensive Bill in the next Session of Parliament without prior consultation with the judges, without prior consultation with the profession and without real investigation by the public, except in that two-and-a-half-month period before 2ndMay. If there were any way of causing disturbance, 1333 disruption and ill feeling between the branches of the profession and the consumers of the courts, it would be to force that kind of straitjacket upon a very subtly adjusted traditional institution. Therefore I hope that the first point that my noble and learned friend will take on board is that he must extend the timetable within which any primary legislation is introduced.
That was the first thing which shocked me. The second thing which shocked me is what I may call the constitutional point, which has been deal with from different points of view by earlier speakers. The late Lord Diplock, a lifelong friend of mine, said in a recent case that it could not be too often emphasised that the constitution of the country is based upon the separation of powers and the independence of the judiciary is the weakest and the most vulnerable of the three parts. Since the Glorious Revolution, the distinction between the executive and the legislature has become largely blurred owing to the predominance of the House of Commons and the use in support of the Executive of an elected Government majority within it. However, the judiciary remains the guardian of the liberties of the people. Under our system of law, the judiciary is recruited solely from successful practitioners of the law. The independence of the judiciary depends more upon the independence and integrity of the legal profession than upon any other single factor.
It is proposed in the Green Paper that a member of the Executive, advised by an advisory committee which is staffed secretarially by his own department and composed of a majority of persons unqualified in the law, shall be in command of the qualifications, the ethics and the statutory framework within which the right to practice is exercised. That same member of the Executive is to be in command of the whole of that apparatus. Where are we going if that is to remain the case?
I should like to say this to my noble and learned friend on the Woolsack; the noble Lord, Lord Rees-Mogg, in a remarkable maiden speech to which we listened with enjoyment, spoke of the position of the Lord Chancellor in this House. That position is constantly challenged by the press; it wants a Minister of Justice. How long will it be before the position of the Lord Chancellor, who ought to be the defender of the independence of the profession and the judiciary and who sits in this House, is demanded in another place to sit on the Treasury Bench beside the Chancellor of the Exchequer and the Prime Minister and to be part of the Government majority inside that place? The constitutional implications of these Green Papers, to be decided apparently within a period of two months, is rather more serious than people have yet realised.
My noble and learned friend says that he starts from first principles. My view, for what it is worth, is that that is about the worst point from which to start. When I hear a person say that he starts from first principles, I know in advance that he is going to rely either on unproven dogma or else on platitude. Both are bad sources of policy. The right place from which to start is a correct analysis of the relevant facts.
1334 I should like to give an example of an area where the relevant facts have not been correctly analysed. It comes from one of the shorter of the Green Papers: Contingency Fees. Perhaps I may say in passing that I wholly agreed with the comments made on that subject on the other side of the House. Contingency fees are inherently immoral and corrupting.
My noble friend Lady Oppenheim-Barnes, whose maiden speech I also enjoyed, who sits almost directly behind me and who speaks to some extent for the Consumer Council, spoke about the users of the courts. I think that the Consumer Council does not quite realise that the users of the courts are persons who fall into two wholly opposed classes whose interests are divergent. There are those who have chosen to go to law to obtain a remedy and those who are reluctantly compelled to go to law because they have been brought there.
The advocates of the parties and the judge who has to decide between the rival cases each have different interests and different duties. An advocate for a potential plaintiff has a duty above all things to the court not to deceive it. He has a duty to his own client to do his very best for his client within certain very highly technical, but wholly ethical, rules. But he also has an interest in not cheating his opponent. Each of those duties is thrown into doubt if any form of contingency fee is introduced into litigation, whether in the aggravated form in which it exists in the United States or in the modified form in which it is proposed in the Green Papers.
Had a proper analysis of the facts been made, a great many mistakes could have been avoided. It must therefore be said that if there had been a little consultation and prior discussion and if the facts had been gone into, this mistake would not have been made.
As one noble Lord has said, lawyers are a soft target. They are not popular. In England and Wales the spirit of Jack Cade still rides abroad. We are on a hiding to nothing. Most of our life is spent in giving unpalatable advice. If we indulge in contested litigation and the case is successful, in the eyes of our client justice will have triumphed. If we lose, it is: "What do you think of my bloody mouthpiece? Was the judge not biased and incompetent? Was the opponent not dishonest?" We are on a hiding to nothing.
This raises something which must be said before I sit down. Some months ago I happened, quite by coincidence, to write an article about the professions for the Spectator. This brings me to the question of market forces. Of course members of professions are fiercely competitive between one another: solicitors, barristers, accountants, dentists and doctors all compete with one another. However, they are not like the grocer's shop at the corner of a street in a town like Grantham. If you run a butcher's shop or a grocer's shop, everybody will wish to buy your products if they are competitive in price and quality. If they go every week they will know pretty well who is giving good service and who is not. Very few people, with respect to my noble friend on the Consumer Council, go to law more than once or twice in their life. When they go to law it may be 1335 because they have got a copyright case or they want the interpretation of a will or because they are accused of murder or have been run over in the street. They do not have a clue who to go to, except that they know that if they go to a solicitor he will choose the right man.
The real truth is that there has grown up in our country—I am talking still only about the part of the country with whose legal profession I am familiar—a very sophisticated, delicately adjusted system in which two branches interact, each monitoring the performance of the other and each founded upon a different economic basis. A solicitor has high costs, high rents and high rates. He has plenty of clerks and skilled secretaries. He interviews clients, because that is the only way he makes his money. He has to sit in his office while clients come in. One man comes into the office because he wants to make a will, another because he has quarrelled with his wife and another because he is accused of murdering a child. All those people need different kinds of service.
At the other end of the scale there is another kind of profession, the members of which do not write letters, cannot keep accounts—at least I cannot keep accounts—and do not like looking after other people's money. Nevertheless they have to run on a system which enables them to kick their heels in a court for hours, and sometimes days, on end waiting for their cases to come on. They have to spend endless time in the libraries running through millions of statutes and thousands of reported cases to see whether one grain of corn can be sifted out of a heap of chaff.
Obviously, these two professions perform different tasks, operate on different principles and try to serve the public each in their own way. One should not run at these things like a bull in a china shop, they are far too delicate. The end product of what I wish to say to my noble and learned friend is that he must proceed more cautiously than he has been doing, and he must give more time for public discussion and exposition.
§ 12.2 p.m.
§ Lord Murray of Epping Forest
My Lords, my concern with the Green Paper stems from its proposals on the maintenance of professional standards which are dealt with, in the main, in Chapter 4, and Annex D. I speak essentially as a layman and as a lay member of the Professional Conduct Committee of the Bar Council. In serving on that committee, I have been struck in particular by the dedication of the barristers who are professional members; by their toughness on their fellow barristers who are in breach of the code of conduct; by their concern to uphold the standards of the profession; and by their willingness to examine and to improve the procedures which are provided by the Bar Council.
Recently there has been a major overhaul of the procedures and of the standards. That was carried out long before the Green Paper was published. There is no reference in the Green Paper to that 1336 overhaul. Nor, incidentally, do I find in the Green Paper any criticism of the Bar Council's procedures in Chapter 4 although I find criticism of the procedures of the Law Society. But the ability of the Professional Conduct Committee to exercise discipline and the diligence of that committee rest, I believe, on two main pillars. The first is the ability of that committee, and of its barrister and lay members, to pin responsibility on to an individual barrister. The second is the accountability of that committee to its barrister peers through the medium of the Bar Council itself. I believe that both those pillars would be very seriously weakened by the proposals in the Green Paper.
Now we have the proposals in the Green Paper for a massive change in those procedures. The difference between the changes already made by the Bar Council itself and the proposals within the Green Paper are, as has already been pointed out, that the changes made by the Bar Council are based on a study of what is happening and on its experience, whereas the proposals in the Green Paper are based on a purely ideological approach to what are defined and adored as market forces. That is not surprising coming from the present Government. The Government do not like institutions of any kind which interfere with the free flow of market forces. That has been shown very clearly in their attitude towards trade unions.
I digress to say how much I welcome the late conversion of some of your Lordships to the idea of consultation and proper study before legislation proposals are brought forward. We saw that in the case of trade unions and in the case of local government, the education institutions and the health service institutions. None of those institutions commends itself to the present Government because they interfere with the wash of market forces over the economy and over society. As has been said well already, the logic of market forces is that, at the end of the road, somewhere sometime, it becomes the length of the purse that determines who gets the product. Justice is given to those who can afford it. I am not saying that that is the intention of the present proposals. I am sure that that is not in the mind of the noble and learned Lord the Lord Chancellor, but that is, as the noble Lord, Lord Hooson, pointed out, the contingent danger within the Green Paper itself.
Our attention has been drawn to the objectives set out in paragraph 1.1. However, I prefer the Bar Council's own definition of its purpose which is:To satisfy the need of every man and woman for ready access to independent legal advice and independent legal representation in Courts and Tribunals, of a high standard, and of the same standard whoever is paying".I believe, with deep respect to the noble and learned Lord the Lord Chancellor, that that independence could be threatened by these proposals. Others who are much better qualified than I have talked about the dangers of partnership between barristers, solicitors and members of other legal professions. From the point of view of the exercise of oversight of professional standards by the Professional Conduct Committee, I believe that an additional danger of partnership is that it would reduce that personal 1337 responsibility to which I have already referred. In the present situation a barrister who comes before the committee cannot blame anybody else. He cannot blame his clerk, a lawyer, accountant, or a partner in his chambers. He or she carries the can.
More specifically, I wish to add my voice to the attention which has already been drawn to the proposal that in future the power of entry into and exclusion from the profession should be in the hands of the Lord Chancellor of the day. I am not reassured, with respect, by the comments made by the noble and learned Lord the Lord Chancellor in his introductory speech.
The fact is that paragraph 3.13 makes it clear that the noble and learned Lord the Lord Chancellor would decide which professional bodies should be recognised and should be able to authorise individual practitioners. Paragraph 4.12 makes it clear that the noble and learned Lord the Lord Chancellor would determine what were to be regarded as satisfactory standards of conduct and of behaviour. I quote from a remarkably dismissive passage in that paragraph which states:The Government is not prepared to leave it to the legal profession to settle the principles which these codes should adopt".So we should have a Lord Chancellor acting on behalf of a government of which he is a member, able to accord recognition to or remove recognition from any legal professional body, and to lay down requirements for the licensing of advocates. To paraphrase Job: the Lord Chancellor giveth, the Lord Chancellor taketh away; blessed indeed is the name of the Lord Chancellor.
As the noble and learned Lord, Lord Hailsham, has cogently asked, what is there to prevent an ill-disposed government with an overwhelming majority in the other House, acting through a compliant Lord Chancellor—very different from the one who occupies the Woolsack today—from putting pressure on to a barrister defending a client accused of a crime against the government? We are seeing that kind of pressure being exercised around the world today in some surprising countries with a United Kingdom connection.
We are told that the Lord Chancellor will act on the advice of the Lord Chancellor's Advisory Committee on Legal Education and Conduct. We should bear certain points in mind. As we have already been told, the Lord Chancellor will appoint all 15 of its members; he will provide and pay its secretariat; and he will take the final decisions.
The noble and Learned Lord the Lord Chancellor has referred to the possibility of a judicial review. I do not think that we should count on the continued existence of a judicial review in its existing form if a government of the kind which we contingently fear came into power determined to bring the judiciary under its control. By all means let us have an advisory committee on education and conduct, but let it be one which is independent of the government and able to advise both the Lord Chancellor and both of the professional bodies on their professional standards, and let it be a body which manifestly and clearly can not be regarded as a creature of the government.
1338 We are also told of the intention to appoint a Legal Services Ombudsman to examine allegations about the way in which complaints have been handled by the relevant professional bodies. By all means let us have an ombudsman, but let him be clearly independent of the government and of the legal professions, able to monitor the handling of disciplinary matters by both professions, and able to monitor the administration of the courts and tribunals by the government departments concerned.
I was surprised when I read the proposals. It was my impression that hitherto the noble and learned Lord the Lord Chancellor appeared to have agreed on the importance of preserving the independence of the Professional Standards Committee and of the Professional Conduct Committee of the Bar Council. Lord Chancellors are entitled to change their minds. However, let us remember that governments are able to change their minds too. Governments are able to change their Lord Chancellors, and to change Lord Chancellors who are not to their liking. I do not for one instant believe that the present occupant of the Woolsack would in any sense abuse his powers, but can he bind his successors—who may not even be lawyers?
Of course the professions are capable of improvement. Of course disciplinary methods and the enforcement of professional standards are capable of improvement. But, as has been said by the noble and learned Lord, Lord Hailsham, and others, it is possible to do so in practical, pragmatic and cautious ways. It is possible to do so in ways which do not conflict with the necessary independence of barristers and which do not impair, and which do not seem to impair, their ability to act for any client however unpopular he or his cause may be with society or with the government themselves.
§ 12.15 p.m.
§ Lord Templeman
My Lords, the Green Papers contain far-reaching proposals, some good, some bad and some indifferent. On the principal question that has been raised this morning, namely the constitutional issue, I for my part am—as I believe we all are—very well satisfied that the noble and learned Lord the Lord Chancellor intends no attack on the integrity or independence of either the legal profession or the judges. At the same lime I hope and expect that the noble and learned Lord will recognise the depth of feeling and the importance of the subject, not only to the professions but to the citizen. I have no doubt that he can and will make amendments to the proposals which will have the effect of restoring the confidence of the Bench, the Bar and the Law Society in the proposals which have been made with regard to the control of the profession and its practice.
I intend to focus only on one problem and that is a proposal which in my view will be profoundly bad for the citizen, not for the profession. That problem is the proposal for the multi-disciplinary firm. That takes two forms. It could be a multi-disciplinary firm of barristers and solicitors or it could be a wider multi-disciplinary firm of barristers, solicitors, accountants and estate agents, with its own tied-in building society and its own tied-in insurance 1339 companies. For my part I fail to see how either of those multi-disciplinary firms will have the effect of reducing costs. As regards the second establishment, like the Ritz Hotel it will be open to every battered wife, but heaven help her if she wants to set foot within its portals.
The Green Papers themselves recognise that a legal profession divided between solicitors acting as local general practitioners and barristers acting as expert consultants and expert advocates provides a service to the public which would suffer if that system were drastically changed. A member of the public who has a legal problem seeks assistance from a local solicitor. Local solicitors are to be found all over England and Wales; they are known as high street solicitors. A member of the public goes to one of those solicitors. That solicitor is usually a man of great experience of a vast number of legal problems. He also knows the neighbourhood, the magistrates and the planning authorities, and he knows the price of property. What the citizen wants is a solicitor to whom he or she can go, whether the citizen is a battered wife or a man who is thinking of buying a house. The man in the street wants advice on almost any subject. It may be a very serious matter; it may be that his son has been involved in a very serious accident for which the damages may be enormous.
The solicitor is the first point of call. He provides the advice which quite often settles the problem without any more ado. However, if he finds that the problem is complicated, he goes to the barrister. The barrister has two specialities. He is an expert in a particular branch of the law and he is an expert in advocacy. The solicitor chooses a barrister who specialises in the particular subject in which his client is interested. That has two results for the organisation of the two branches of the law.
The barrister needs only two things—time and practice in advocacy. He can shut himself up in his chambers in the Temple, for which the much maligned Inns of Court charge him a rent of about a fifteenth part of the rent paid by solicitors and accountants. He can there delve into one problem, and one problem only at any one time. He can prepare himself for advocacy and he can then go into court and do his job. He could not do his job properly if he were at the mercy of some solicitor-partner ringing up to say "Look here, George, I know you're busy, but Mr. Maxwell has an important matter on which he wants advice and he wants to see us all at 12 o'clock". Such things happen.
Similarly, with the best will in the world, the solicitor cannot maintain his practice overall if he is to devote the whole of his attention to one client, and nor can he develop expertise. He cannot be as good as an Admiralty barrister, a landlord and tenant barrister, a criminal barrister or all the other specialities. If he tries to do so, he will make a mess of it.
We know that because the Chief Justice of the Supreme Court of the United States of America told us that that is what happens. He said that in America any attorney can appear in any court. They fuse the two. He said that we have a much better system in England and we would be mad if we were to tear it up. In America when an attorney in the far west 1340 finds the one case in 10 or 20 years, or in a lifetime, which is marvellous to take to the Supreme Court, he will not give that case to any other attorney. He will get into his coach and, like Abraham Lincoln, will go off. When he finds himself before the Supreme Court in Washington, faced with nine judges, he will either dry up or make a complete mess of it. The Chief Justice of the Supreme Court of the United States has said publicly, both in the United States and in this country, that the attorney does make a mess of it and that the only way to do it is to stop the blurring of distinction between the barrister-type expert and the general practitioner who is the solicitor.
No one has suggested that the consultants of Harley Street should be driven out and should set up multi-disciplinary practices. No one has suggested that general medical practitioners, who know all about measles, should be allowed to out with their scalpels and try to take out tonsils and appendices. That is the analogy for the present. So far as barristers and solicitors are concerned, I say keep them separate. It seems to me that the Green Paper does not force them to go together. My plea to the Bar and the solicitors would be that whatever the Green Papers may say, keep quietly doing those things so well that you have done in the past and which by common consent have produced a legal profession that is known throughout the world for its integrity, incorruptibility, efficiency and the fact that it competes on cost. There is no reason why the profession should not continue in that vein.
However, it is a different matter when one comes to multi-disciplinary firms that are to include solicitors. Here the greatest damage to the public will be caused, and is being caused, by the fact that no distinction is made between the legal profession and any other business. In conveyancing matters, if there are mutlti-disciplinary partnerships, the citizen will have no choice. The purchaser sees a house in the front window of an estate agent's. He goes to see it and his wife likes the kitchen. He comes back and says that he wants to buy it. The estate agent is employed by the building society, which has a sole agency with an insurance company. If the proposals are accepted, the building society will be able to do the conveyancing. So, if it employs the estate agent, it will in effect dictate to the purchaser the price of the property, the amount and terms of the loan, the amount of the policy and the cost of conveyancing. Assurances may be given that codes of conduct will be drafted, but anyone who thinks that an estate agent will pay any attention to them is divorced from reality. I concede at once that there are many estate agents of the utmost probity, but we all know that there are many who are not to be trusted.
On 4th March this year, the Daily Telegraph reported:The confirmation this week that the Halifax Building Society is tying with Standard Life for its life assurance and pension business began a scramble among other leading societies and insurance companies to sign exclusive contracts…the society which ties can only sell the life insurance, pension and investment products of the insurance company to which it is tied…the Halifax said"—here one has a flavour of the Green Paper—
the link-up will make its operations more efficient and cost-effective but these savings will result in reduced premiums for customers.1341 On 11th March The Times reported that:Some estate agents are 'blackmailing' potential housebuyers into arranging mortgages through their firms, according to local trading standards officers … Since many estate agents have become subsidiaries of banks and building societies, local authorities had been receiving a growing number of complaints about the practice … The estate agent says 'if you arrange your mortgage through us we'll be in a stronger position to advise our client to accept' ".A building society that also acts as an estate agent is an agent for the vendor. It is the duty of the building society, acting as an agent for the vendor, to get the highest price that he can. It is in the interests of the building society because its commission then increases. Similarly, if the building society act sin respect of a tied insurance premium, all the interest of the building society and that multidiscipline firm is in favour of the vendor and the amount of money that can be loaned in turn, and there is no one to advise the purchaser. In my view, there is such an irreconcilable conflict between the interest and duty owed by an estate agent to the vendor, and the advice that he purports to give to the purchaser, that it should be made unlawful for an estate agent who acts for a vendor to advise a purchaser. It should also be made unlawful for him to derive any benefit, directly or indirectly, from the purchaser or from any conveyancing transaction, save the commission payable by the vendor.
The noble and learned Lord the Lord Chancellor said two things. First, he said that he wanted a level playing field in multi-disciplinary firms. He also said—I shall not say plaintively, but as a request— "What should I do?" If one wants a level playing field for conveyancing transactions, one must stop the estate agent obtaining his money both from the purchaser and the vendor. One must make it unlawful for an estate agent to put himself in a position of conflict of interest.
This matter has a knock-on effect. If there are multi-disciplinary firms which, in effect, hold purchasers within their thrall—they do all the conveyancing—the high street solicitor will lose his conveyancing and will either be bound himself to go into a larger firm or will have to join the mob and go along cap in hand to see whether he can become a solicitor employed by a building society. The interests of the public require the maintenance of the high street solicitor and his work depends on conveyancing.
Similarly, the high street solicitor both needs and feeds the Bar. If one gets rid of the high street solicitor, one gets rid of the Bar because one will simply have large firms of solicitors, on that hypothesis, half staffed with barristers. The tendency develops that, time after time, everything is on the side of the big battalion and no one is on the side of the small citizen. If one goes, as I did when I was on the Royal Commission, to see solicitors' firms in deprived areas of East Ham and Leytonstone and concentrates not only on clients charged with 550 counts, one sees the very close alliance between the local solicitor and the man who through no fault of his own may require legal advice and assistance.
For that reason I urge the noble and learned Lord the Lord Chancellor very strongly to turn his face against multi-disciplinary firms, or at any rate to make sure by some penalties and not by mere 1342 exhortation that the playing field is reasonably plain. Before the announcement of this debate I had undertaken an important and inescapable engagement. I put it off until this afternoon, but I have made my apologies to the noble and learned Lord and I hope that the House will forgive me as I am unable to be present after one o'clock.
§ 12.31 p.m.
§ Lord Hutchinson of Lullington
My Lords, I suggest that the public debate on the profession has been bedevilled by the extraordinarily low calibre of this Green Paper. As a lifelong reformist of the criminal Bar I awaited publication of the paper, knowing its source, with the keenest anticipation, but when I read it I too was shocked and disillusioned. The paper contains a mass of claptrap and many platitudes. It is woefully uninformed. At times it is misleading. It suppresses known facts and it is overwhelmingly authoritarian. As the noble and learned Lord, Lord Devlin, said, it also masks its true intentions.
I am bound to say to the House that for the head of the judiciary to present to Parliament a paper that drew from his own Chief Justice the epithet "sinister" and from the Association of Black Lawyers the comment that it was nothing more than a cost-cutting exercise leading to a second-rate service would seem to me in itself to be sufficient condemnation. I must agree with the noble and learned Lord, Lord Devlin, that the aim of this paper is to break the Bar and the criminal Bar in particular.
After the DTI claptrap the Green Paper goes on to reflect the overt hostility of the Lord Chancellor's Department to those who act for the most disadvantaged in society—those in receipt of legal aid. The attitude seems to me to be one of "Why should such people be defended or prosecuted by fully qualified independent advocates? Why should the taxpayer pay for the luxury of jury trial for defendants who should not be disputing their guilt? Let us cut this ever-increasing rise in the cost of legal aid by providing a bargain-basement advocate, not necessarily even a lawyer, on a narrrowly restricted front". As we have already heard, he must be licensed with a limited certificate of competence authorised by the Lord Chancellor. Where he practises, how he qualified and how he is educated must be decided by the Lord Chancellor. His performance must be monitored and his conduct prescribed by the Lord Chancellor.
I fear that here the noble and learned Lord discloses an authoritarian streak, which was apparent in his opening address and is apparent in the timetable that he has laid down. This astonishing imposition of executive control is matched and must be considered with the draconian powers that the Lord Chancellor already has in place in the Legal Aid Act of 1988. There the executive decides for the citizen what kind of advocate he shall have, for what type of case, for what renumeration and for what purpose. In that way this ersatz advocate becomes truly the servant of the state. Henceforth the fully qualified barrister is to practise only in the High Court where the Civil Service considers that he really belongs. This is a cost-cutting exercise dressed up as a battle with an intransigent profession.
1343 We come to the so-called restrictive practices; namely, the rules that govern the profession. They are set out in the paper with no explanation whatever for the public as to why they exist. A requirement for a legal qualification is now described, believe it or not, as a restrictive practice and as the operation of a closed shop. To belong to an Inn of Court, a set of chambers or a circuit calls down the same description and to employ a clerk, negotiate fees, run the office or be a member of a referral profession are wicked, restrictive practices.
Those rules govern the barrister's behaviour. They do not add one penny to his income. They seek to guarantee, as they have guaranteed, a continuing flow of honest and independent judges and above all a genuine choice to the consumer. Like doctors, barristers pursue an ideal: the pursuit of justice. Barristers who practise criminal law believe passionately that, however unlikely and unpopular a person's cause may be, no one shall be denied his services—the cab rank rule, as it is called. It is the Inns, the chambers and circuits which teach and then monitor and above all see the duty of the advocate is first to the court and only secondly to the client. Not one word of that is mentioned in the Green Paper. If all that is now thought redundant and ought to be swept away, surely in all honesty it should be put in the Green Paper so that the public can judge fairly where their interests lie.
At a forum which I also attended the noble and learned Lord the Lord Chancellor was asked why there was no mention of those matters in the Green Paper. He replied by denigrating the cab rank rule and citing as an example a scene in a hyped-up movie about Marshall Hall. I find it hard to forgive him for that remark. Let me tell him now that that rule has governed the whole of my professional career in the criminal law. Maybe in the élite and small Bar in Scotland where there are no criminal chambers and where the prisons nonetheless are fuller than anywhere else in Europe, this rule is unknown. I know not. But I doubt whether the noble and learned Lord has ever sat in a cell at the Old Bailey or spent many hours in Brixton or Wormwood Scrubs. I doubt whether legal aid cases formed a large part of the noble and learned Lord's practice as a Silk.
How and why does he think that as a silk I spent so many hours in defence of alleged child abusers, rapists, traitors and even terrorists? For money? For fame? For fun? To cross-examine children and unhappy women or even corrupt policemen, I can assure the noble and learned Lord, is but painful work. Who would know from the Green Paper that all these questions were asked and answered at length in the Benson Commission, and mainly in favour of the Bar?
The criminal Bar can absorb competition. It is one of the most competitive professions in the world, and it has no fear of competition. What the practitioner cannot believe and cannot accept is the total failure of this paper to grapple with the implications of its populist proposals. Certificated criminal advocates with direct access to potential offenders setting up on their own in the high street, or in mega partner 1344 ships with surveyors and accountants, advertising broadly their wares, taking statements, visiting police stations, interviewing witnesses, closely in touch no doubt with the local police, and undoubtedly with the local villains, selecting the most profitable and the most prestigious cases, and in all this no doubt exercising their independent minds—is that really the basis for the future business of the Crown Courts in this country?
Is this the new Jerusalem of the consumer? Are we to have state prosecutors alone presenting and conducting all serious criminal cases, with the resulting polarisation of prosecutors and defenders? Where are your judges going to come from then? Are they to come from the Crown Prosecution Service? Is that what is really desired and intended? Where is the choice—the informed choice—for the accused? The choice is not like the choice of a tin of peas in a supermarket. It is a choice which may settle a man's future and his liberty for the next 10 or 20 years of his life. The Green Paper is not about the tearing down of antiquated rules and restrictive practices. Nor is it the battleground of a fight between the two branches of the profession. It is a cost-cutting exercise based on political ideology dessed up as a radical reform.
Already this paper has done a sad disservice to the administration of justice. It has savagely cut recruitment to the Bar among the most gifted young men and women. It has given the intellectual Murdoch mafia—the Levins, the Crossmans, the Simon Jenkins—a field day as they pop up from the squalor of their own profession, which they dare not criticise, singing from their masters' hymn sheet of the great God of the morality of the market place.
So long as the noble and learned Lord the Lord Chancellor and the Attorney-General have kept their political role quarantined from the political role just so long have they sustained the respect and loyalty of the legal profession. But this paper—shot through with political ideology—has for the noble and learned Lord the Lord Chancellor, I hope only temporarily, lost all that, while the Attorney-General, the Leader of the Bar, sulks in his political tent, deafening in his silence.
The criminal Bar is in the forefront of reform. The Criminal Bar Association, founded by my noble friend Lord Wigoder, and myself, illustrates that, although many of its proposals gather dust in Government offices, not least in the Lord Chancellor's office itself.
It is my earnest wish that the noble and learned Lord the Lord Chancellor should tear up this Green Paper, consult with those who know the Bar of England and Wales, and come forward with proposals that honour the great traditions of the Bar and of the solicitors. Let lawyers have a common education. Let them choose which branch they prefer. Let them combine their different and equally vital skills and make them truly available to all those who need them when in adversity.
§ 12.46 p.m.
§ Lord Havers
My Lords, I was still in practice at the Bar when the Benson Royal Commission was appointed in 1976. I was Attorney-General when the 1345 report of that commission was submitted in October 1979 and when the Philips Commission on Criminal Procedure presented its report in 1981.
In July 1987, I expressed my view as Lord Chancellor that I was not persuaded by any of the arguments put forward for the extension of solicitors' rights of audience, and that. it was my real belief that only a minority of solicitors had any interest in an unnecessary squabble about advocacy rights.
That I did so was a consequence not only of my experience at the Bar and as a Law Officer, but also as a member of this Government, which has had presented to it in the form of two Royal Commissions, a volume of evidence unprecedented in terms of its detail and quality, upon the question of the provision of legal services.
The Benson Royal Commission produced recommendations which were accepted by the Government as recently as November 1983 and were adopted in the White Paper presented by my noble and learned friend Lord Hailsham in that month. That response is wholly at odds with the proposals now contained in these Green Papers. The work of the criminal courts considered by the Philips Royal Commission formed the basis of the Prosecution of Offences Act. On 29th November 1984, in introducing the Second Reading of that Bill, my noble friend Lord Elton said,I should emphasise that the Government hold strongly to the view that rights of audience in Crown Court trials should continue to be confined to an independent Bar which both prosecutes and defends".—[0fficial Report, 29/11/84; col. 1017.]As recently as 26th March 1987, when I was still Attorney-General, the Government in their White Paper Legal Aid in England and Wales: a New Framework, confirmed,the Government does not intend to extend rights of audience in the Crown Court. This would be contrary to the view, accepted by the Government, of the Royal Commission on Legal Services".Within two years all that has been reversed.
I therefore find it impossible to share the Government's new-found enthusiasm for a further re-examination of the much considered area of rights of audience and for questioning the fundamental distinctions between the practice of the law as a barrister and as a solicitor.
The Civil Justice Review is about to have the most profound effect upon the legal system. The legislation which that review requires is far too important for parliamentary time to be taken up with matters which are not only a complete reversal of this Government's declared policy over all those years, but which also may endanger the independence and standards of the legal profession as a whole.
After eight years as the head of the Bar, I am unable to accept the transfer of responsibility for control of the profession from the two self-regulating governing bodies to the office of Lord Chancellor, with minimum professional standards of competence and conduct prescribed by statute. The voluntary submission to self-regulating standards of conduct seems to me to be the essence of professional responsibility.
1346 The possibility that advocacy certificates will not be confined to barristers and solicitors, but may extend to "a variety of professional bodies" and that,depending on the areas of legal services, the providers may not need to be lawyers",comes with no previous history of research, public demand, or expression of disquiet by other professions.
The maintenance of proper professional standards is fundamental to the balance of justice. The provision of services in court is provided by the Bar on what is usually a unique experience for the lay client, but on a continuing basis to the solicitors whose duty it is to instruct counsel.
The areas in which most individual members of the public encounter the need for lawyers are housing, family law, employment law and the criminal law. For the great majority of these, access to lawyers will be made possible only by legal aid. The client is neither articulate enough, nor experienced enough, to have access to information which will enable him to differentiate between the variety of lawyers, or para-legal agents. who are offering their services to him. For those members of the public the great protection in the present system is that the present demarcation of responsibility requires the solicitor not to assess his own suitability for the conduct of the case in court, but to use his professional judgment and expertise to select an independent advocate, whose ability he can assess without reference to any considerations of his own. or his partnership's income. There is no discussion anywhere in these Green Papers of how the monitoring of these various professional bodies is to be financed or administered.
I am very conscious that the introduction of the Crown Prosecution Service was marred by the initial funding calculations, which were underestimated by 50 per cent. Unhappily my experience of putting proposals to the Treasury does not lead me to believe that leaving in the hands of those who provide the finance for the services of lawyers, the decisions as to whether lawyers are required for those services and, if they are required, the kind of advocate who should conduct those proceedings, is a good augury for the independence of the legal profession and the maintenance of standards.
The legal profession needs to adapt to modern requirements and it has been doing so very largely for the past 10 or 20 years. I sense a real willingness in the profession to look ahead. But if development is to take place to the best advantage, a period of evolutionary change is called for, not a radical breaking down of the very features which identify this profession. That means that there must be adequate time for consultation.
With the greatest respect to my successor for whom I have the highest regard, I believe that he was badly advised to produce these papers with no consultation, let alone extensive discussions with those who will be most affected. I find it quite remarkable that no one, not even the judges, was consulted before these documents suddenly popped up out of the green. I hope very much that the consequence of 1347 today's debate will be to provide time for those consultations, because so far the debate has run one way only.
Let us therefore look for flexibility between the Lord Chancellor and the profession, and thereby create a profession which will not only continue to be the envy of the world but will play a major part in making the law available as widely as is possible.
§ 12.55 p.m.
§ Lord Hacking
My Lords, on the several occasions on which I have addressed your Lordships' House since I became a Member I do not think I have ever been more nervous than I am now as I rise among almost all—as it seems to me—the leading judges and lawyers of the land to disagree—in some degree —with them. I am more nervous than I was when I addressed some of these learned brethren when I was at the Bar. The nervousness then arose not out of their ferocity but out of my inexperience and their great ability in the law. Nevertheless, in my unusual career—12 years at the Bar; 12 years as a solicitor in litigation and, in the interregnum of four and a half years in the United States of America, becoming a member of the State and Federal Bars of New York, a member of the American Bar Association and the Bar Associations of the State and the City of New York—I believe I have something to contribute towards the debate.
My career—especially that part of it in the United States of America—has led me to the firm conclusion that the public is best served (I use my words carefully) by a separate and independent discipline of advocates. My further firm conclusion is that a separate and independent discipline of advocates cannot effectively exist in a fused legal profession. Advocacy is a special skill. It can be acquired only by training and experience. It can be retained and perfected only by regular practice. Even my skilled pupil-master, who is in your Lordships' House, needed to warm up a little in the first week or two after the long vacations that members of the Bar could then enjoy throughout the months of August and September before returning to the fray in October at the opening of the Law Courts.
The question is: can we retain a separate and independent discipline of advocates by the Bar and the solicitors' profession as presently constituted? My answer is, no. Indeed the entrenched opposition by the Bar to sharing the rights of audience in higher courts (because in the end they would have to give way) will lead to fusion and all the other changes that the Bar most fears. To this extent, it is regrettable that thus far the Lord Chancellor's proposals have not been better regarded by the Bar as grounds for discussion. The starting point must, or should, be that we are in one legal profession. As such, the present separatism between the Bar and solicitors cannot be in the interests of the public or ourselves.
The separatism goes right to the roots: separate recruiting, separate professional examinations—although the common professional exam now for non-lawyer graduates joins them together—separate career structures and, in many intents, a separate 1348 profession within the one major profession of the law. It may all have happened out of an accident of history. It may all have happened a long time ago. I do not believe that 700 years, which was the time mentioned today, is wholly accurate, because the present structure of the Bar did not become clearly evident until about the end of the 18th century, when the eight Inns of Chancery eventually went into decay. This enabled the members of the Inns of Court to dominate—as they have ever since—rights of audience in all the major courts of the land.
It is not unique to have a bifurcated profession. In Paris, for example, there are avocats and conseils de jurists.Nor does the medical profession come from a single foundation. Until the last century, surgeons, or barbers, led a separate professional career from their learned and medically-wise physician colleagues. However, for many years the medical profession has been joined together in one common medical education. It is five years with one further year's registration before the doctor can embark upon a specialist career.
That brings me to what I believe to be one of the major disadvantages of the separatism within the legal profession. It lies in the wholly premature selection for entrance into the profession by a solicitor and a barrister. It takes place in only the law student's second year at university when he is descended upon either by members of the Bar or law firms and asked to make his choice between becoming a barrister or a solicitor. The students then know little of the law and even less about their legal skills.
That is not new. In my time at Cambridge University in the early 1960s an early decision had to be made if one wanted to go to the Bar. Otherwise one fell behind in the eating of dinners for three years at one of the Inns of Court. In even earlier days the election had to be made by the noble and learned Lords, Lord Hailsham and Lord Elwyn-Jones.
The circumstances of the profession were different. At that time the universities of Oxford and Cambridge regarded the Bar as being the elite profession of the two. Most ambitious law students at Oxford and Cambridge naturally gravitated towards the Bar. That was unless the family firm of solicitors was holding a place for a son. There were further dimensions. If the noble and learned Lords to whom I have referred will allow me to drop their natural modesty for a moment, I can point out that by the time they had acquired their first-class degrees and had been Presidents of the Union they must have had a clear idea that the Bar was for them.
In these changed times we have not only a change in numbers but also in the quality of the students who aspire towards legal careers. In 1963, when I was called to the Bar, there were only 2,000 members of the Bar and almost 25,000 solicitors. Although there were a number of overseas students, which made calculations more difficult, only about 200 students a year were graduating to be members of the English Bar and about 805 to become solicitors. Now in 1989 the Bar consists of about 6,000 members and every year there are about 800 entrants. There are now 70,000 solicitors and an annual entry into the profession of 3,300.
1349 The problem could be eased by transfer from one side of the legal profession to the other. It is not efficient for members of the legal profession to switch careers, although it was a task that I undertook. Secondly, there are examination requirements. Although it is left to the discretion of the appropriate board, the Bar Council requires in certain instances examinations in civil and criminal procedure and evidence and, as regards solicitors, in conveyancing, accounts, wills and probate. It was part of my curious experience that I was admitted to the Bar by the State of New York without a single examination but I was required to be examined by the Law Society when I returned.
I do not believe that rights of audience will have the devastating effect feared by the Bar. I have the good fortune of having an assistant who is an Australian barrister and solicitor. He tells me that there are now throughout Australia free rights of audience. The Bar continues to flourish. He tells me that there are no partnerships and that there is a common education and training for lawyers. Therefore young lawyers there do not graduate towards the Bar until their late twenties. That is one of the defects which I have pointed out in the present structure of both sides of the legal profession in this country.
I should like to mention briefly the Bar's campaign. Noble Lords will clearly understand the Bar's worry, and none of your Lordships will lack respect for the integrity of the campaign. However, I must suggest that, in the vigour of the campaign, it is politically unrealistic. It has also developed into a campaign which is too confrontational and, in parts, divisive. For example, the decision to issue that two-page advertisement in The Times was, in my judgment, a most unhappy one.
I also regret having to comment that I found the Bar paper, Justice In Dangerto be disappointing. It is highly defensive and does not truly argue its case. It recites what was said by the noble Lord, Lord Benson, in the Royal Commission report—the 1983 White Paper—and even relies in parts on the Marre Committee. I believe that it contributes little to the debate in which we are engaged inside and outside the profession. It fails to tackle many of the shortcomings of the Bar; namely, double meaning, diary control, switching of counsel and chambers organisation.
As a former member of the Bar, I am not unsympathetic but, alas! it must be said that the Bar has been very slow to adapt and change. For too long it has clung to restrictive practices. The special fee for appearing off circuit which the client had to pay (about £50 in times when that was of greater value), the two-thirds junior rule fee and the two-counsel rule have disappeared, but they did so too slowly and with opposition and reluctance from the Bar. Now, one of the issues which we are considering is of course the restrictive practice over right of audience. Beyond the restrictive practices there are a number of problems which we must consider in relation to the Bar. There are chambers organisation, accommodation, arrangements for pupilage and the obtaining of tenancies. It must be said that, as yet, the Bar has been unable to tackle and solve these problems either wholly or sufficiently.
1350 I am tempted to offer further sympathy to the present Bar Council because it may be carrying some of the sins of its predecessors. The noble Lords seem to have escaped the Chamber, but at least four former chairmen of the Bar Council are to particiate in the debate today, including the noble and learned Lords, Lord Ackner and Lord Templeman. I see that one former member of the Bar Council is present—that is the noble and learned Lord, Lord Rawlinson.
There is insufficient time to deal with many other matters which were raised by the noble and learned Lord in his Green Papers. However, I should like to give short answers in order not to take more than a few minutes of your Lordships' time. As regards barrister partnerships, my response is "no" because it would erode the individual independence of members of the Bar and result in limiting the choice among members of the Bar. My response to solicitor/Bar partnership is "no" because it would destroy the separate and independent discipline of advocates, which I have urged upon your Lordships, although not necessarily under the present structure of the Bar. I also say "no" to multi-disciplinary practices, largely for the reasons advanced by the noble and learned Lord, Lord Templeman.
There is also insufficient time to canvass other points raised in the Green Papers by the noble and learned Lord. However, I wish to be positive because I believe that much good can come out of the noble and learned Lord's proposals. The Bar Council speaks in terms of accepting evolution but resisting revolution. There is in the noble and learned Lord's Green Paper on the organisation of the profession one interesting chapter upon which there has been little comment thus far. I refer to Chapter 3 on specialisation. There is one clearly identified specialisation; namely, advocacy at the Bar. The noble and learned Lord, Lord Hailsham, refers to the law as one of the greatest social sciences. There are many areas where specialisation in the law could be better developed and identified for use by the public.
Out of all of that I believe that, despite the criticism raised from all sides of the House, your Lordships should give more positive consideration to the noble and learned Lord's proposals. I also believe that both sides of the profession could draw advantage from co-operating and discussing these proposals with the noble and learned Lord in order to improve them.
§ 1.10 p.m.
§ Lord Rawlinson of Ewell
My Lords, I have spent 35 years in this House and the other place. I have sat on these Benches among friends in a party which I was brought up to believe conformed with the ideas of Disraeli. The ideas of Disraeli were that the purposes of the Conservative Party were to elevate the condition of the people, to maintain our institutions and to conserve what is good. It is because I believe that the thinking, the concept and the manner in which these proposals have been presented threaten one of our institutions, namely, the structure of the administration of justice, that I find this a very melancholy occasion.
I read that a Member of another place said that as former chairman of the Bar my credibility was 1351 destroyed because I was putting my profession before my party and, therefore, before my country. I have never identified party with country and I do not believe that any traditional Tory ever has. However, it is my honest belief that if enacted these proposals inevitably within one generation—there is no use fudging it—will see the end of the Bar and will seriously affect the quality of justice.
I believe that the English and Welsh system—I adopt the same terms as my noble and learned friend Lord Hailsham—is superior to all others. I am therefore putting my honest belief for country before the interests of a government many of whose policies I wholeheartedly support despite my belief that they appear to have become quite obsessed with the application of their ideas of market forces.
I wonder at the advice given to and accepted by so distinguished a jurist and so distinguished a man as the noble and learned Lord. I suspect that he has been bounced into his present posture by other Ministers. The noble Lord, Lord Murray, quoted Job. I could say that the voice may be the voice of Jacob who is the Lord Chancellor but the hand is that of Esau which, I think, is the Department of Trade and Industry, as has been said by the noble Lord, Lord Irvine, with the Treasury behind it.
However, let there be no fudging and let us be honest. If the Executive takes control, as has been suggested, of the right to plead in the courts with the remedies and liberties of our people depending upon it—if that control is taken from the judges and given to the Executive or given to civil servants because that is what it means—then it will do great damage to the liberties of this country.
I should like to emphasise what the Lord Chief Justice said, first, as regards the Government and the media. That relationship should always be sharp and spiky for that is the duty of the media; namely, to criticise, to press, to inquire and to probe. However, it should also be the relationship between the Government and the courts. The development of administrative law should be seen as a challenge to Ministers and ministeries. I saw that developing when I was a law officer, with the exception of one noble and learned Lord, the noble and learned Lord, Lord Simon. I was a law officer before even some of the most distinguished former Lord Chancellors who are here today. However, in those days I saw that there was, as there always has to be, a conflict involving the interests of government. There is always the judge over his shoulder, as the Lord Chief Justice said. That is constant, and Whitehall is very well aware of it. Whitehall is always looking at what the judges are doing. It is right and healthy that that should be so.
No Minister can say that this Green Paper contains the Government's proposals unless he has the authority of the Cabinet. Cabinet has considered this Green Paper; otherwise there would be no proposals. Therefore, that is what we are dealing with. We are dealing with subordinate legislation which would make professional bodies submit codes of training and conduct. What does training and conduct mean? Training means who, because of qualifications, may plead. And conduct means how they may plead. That 1352 is to be the responsibility of this committee, these creatures, with respect, of the Minister, answerable to the Minister. Only if the Minister's people approve are the professional body's codes to be approved. I do not not mean particularly the Minister who sits on the Woolsack at the present time. Let us eliminate him from our views and merely remind ourselves that a Minister occupying his position can impose those conditions. He ultimately licenses who shall plead in our courts.
I confess that I cringe when, listening to the Lord Chancellor of England from one side of this House and the Lord Chief Justice of England from the other, I hear complaint by the latter of lack of courtesy arising from the absence of consultations. That is a sad, sad thing to have happened. How could it have come about? Who advised the Lord Chancellor that he should not immediately consult with the judges. Why did he not wish to consult the professions and particularly the judges? That is something which I do not believe any of us in our political life have experienced before between the two great legal figures of this country.
We have heard about the volte face, as my noble and learned friend Lord Havers said. He took us through exactly what happened. The time given for consultation is insulting: a government ultimatum is presented to their supporters. The Government propose and the Cabinet approve. So what are the supporters to do? They have to oppose their own Government because that is the position in which they have been put. I am sorry that the noble and learned Lord the Lord Chancellor referred to a hysterical reaction. It is all so extraordinary. What did he think would happen? There must be outrage. I believe that the attack on the Bar Council by a distinguished jurist is quite unworthy.
What about the certificate scheme? Who thought that up? It is a bureaucratic nightmare. Who were the civil servants who advised the Lord Chancellor about a certificate, a form? Is there anywhere else in the world where this great liberty, this great important right, is dealt out with a certificate? Of course it is through a professional body but sitting behind it is the advisory committee. Of course there are transitory revisions which mean that it will go on as it is for the present, but within a generation the Bar will end. How can anyone now honestly recommend to young men and women which branch of the profession they should enter and what they should do? How can one honestly do that if these are the proposals of this, a Conservative Government?
I have for a long time been an honorary member of the American Bar Association—like the noble Lord, Lord Hacking, who is a full member—and of the American College of Trial Lawyers. I have close family connections and I know much about that country. There is one aspect, however, that I do not admire. I refer to the system for the administration of justice. It is the most litigious society there is, mostly due to its system of contingency fees. Do not the newspapers, including my old client the Daily Mail realise what that means? Do they not realise how many people will now be going into the Temple on a contingency fee basis and bring proceedings against newspapers with our laws of libel such as 1353 they are? I cannot understand how they could welcome the proposals—but perhaps they have not read the small print.
We must compare the costs of the American system to those of the British system. They are much greater. We must compare the delays. They are much greater. We must compare the quality of judges. Where in our system have we had judges brought before the courts for dishonesty? It has been said that the former Chief Justice of the United States came here to give evidence. He said, and one's friends in the American College of Trial Lawyers have said time and again, "Do not follow our path. We have gone into it and are left with it. Make your own path".
I have made it perfectly clear that we must have a proud and independent Bar. An independent Bar means a man practising on his own, not in partnership and not involved with anyone else. He must stand as a champion for the people and a champion for their liberties. That is what he is all about. He has given service and integrity. I ask the noble and learned Lord the Lord Chancellor why he is now trying to destroy that system—not, I believe, deliberately—by what he is doing.
The Government perhaps underestimate the wound that they have inflicted. I hope that the present Government do not have some hubris, because I agree with many of their policies. I was first adopted as a Conservative candidate nearly 40 years ago and I was asked what I would do if I thought that my party was conflicting with the interests of my country. I had no hesitation in saying that which I would put first. It is therefore with the deepest of regret that I have to say that if the noble and learned Lord the Lord Chancellor, with the backing of the Cabinet, comes before Parliament with a Bill to enact the proposals set out in the Green Paper, I would with deep sadness and great melancholy leave the companionship I have enjoyed for so many years.
§ 1.24 p.m.
My Lords, I make no excuse for putting down my name to speak in this debate. After the war I spent 25 years in practice at the Chancery Bar followed by 16 years sitting in various capacities in tribunals, Crown Courts, county courts and the High Court. The first lesson that one learns as an advocate is not to repeat at length points already made by those speaking in front of you. Therefore, may I say at the outset that I should like to adopt as my own the arguments put forward by the noble and learned Lord, Lord Elwyn-Jones, in speaking to this debate.
The question proposed in the Green Papers is that these proposals will reduce the costs of legal services to the public without materially reducing the quality of those services. The comment I should like to make after adopting the remarks of the noble and learned Lord, Lord Elwyn-Jones, is that there is no evidence whatever in the Green Papers to back up that assertion. There are no figures for costs of legal services today to be compared with estimated and expected costs in the future if these proposals are put into effect which would show any reduction in 1354 the costs of legal services. The evidence that we have as to costs of legal services is in the other direction.
When I was at the Bar I was always conscious that there was another person at the Bar in practice who would do the work cheaper than I, and there were probably many other people in practice who would do the work better or in a different way. It is a highly competitive profession. The other point in relation to competition at the Bar is that many are called but not all stay in practice. As the noble Lord, Lord Hacking, pointed out, many go after a period at the Bar into other activities and that the size of the Bar increases as there is a supply of work for the Bar to do. There is demand and supply. If there is a greater amount of work, or the legal fees available for members of the Bar rise, then the number of people in practice rises. It has done so since the war. Immediately after the war there was a difficult period at the Chancery Bar when about eight years entry into the Bar all suddenly appeared together on the scene in 1947 and competed against each other. It took some time to obtain a balance of those in practice so that demand equalled supply.
My second point is that solicitors work on an entirely different basis. The noble Lord, Lord Hacking, in his criticisms of members of the Bar who are speaking, did not address his mind to the question proposed by the Green Paper. The issue is whether these proposals will reduce the costs of legal services. As I heard the noble Lord's speech, he did not consider that at all. It is that question we must consider today.
Having said that, I should like to make one brief comment on another aspect. The costs of legal services are high. That is another arm of the attack which the Bar is facing. The legal services are provided by trained experts. The costs are high for professional experts whether barristers, solicitors, accountants, surveyors or top managers in industry. The amount of remuneration that such people can now command is not a fair ground on which to attack the Bar. It will not assist in reducing the cost of litigation to allow a solicitor with a certificate of advocacy to compete with members of the Bar. They have different systems of working and higher costs and expenses. In those circumstances I can see no benefit at all from the introduction of such certificates. It would be substituting for the present Bar, lawyers with a certificate of advocacy.
The high cost of litigation should not be tackled in the present way but in others. My opinions as to why the costs of legal services are so high are these. First, there is the weight of complex new legislation imposed daily by Parliament and the Civil Service. The legal cost was high for implementing a measure like the Financial Services Act for the City. Secondly, there is the outdated system of courts and tribunals based on the Victorian system of 1875. Is it necessary to have three or four hearings to dispose of a dispute between the taxpayer and the Revenue? Do we need all the tiers? Thirdly, we have a Rolls-Royce system of practice and procedure both in the High Court and the Crown Court based on complex statutes and statutory instruments regulating the business of the courts and the tribunals.
1355 I believe that this system can be streamlined. I am sure that the civil law review mentioned by the noble and learned Lord the Lord Chancellor will assist. A major operation is needed on the courts and these complex tribunals in order to bring into existence a simplified system. As regards tribunals, of which I have had a certain amount of experience, part of their trouble is that they are being made to determine administrative matters for the benefit and assistance of the Civil Service. But they are not always entrusted with judiciable issues to try. The tribunal system has got out of control. Tribunals should only be set up to decide judicial matters and not administrative policy.
Fourthly, we have a heavy administrative layer that is now required to keep up the system of courts and practice. I do not wish to say more because everyone else has set out far better than I the main points against the Green Paper.
§ 1.34 p.m.
§ Baroness Phillips
My Lords, as usual when addressing your Lordships' House, I brought a prepared speech but as the debate has proceeded—if you can call it a debate—I have had to change what I am going to say. I am probably the first to congratulate the noble and learned Lord the Lord Chancellor on having the courage to attack this profession. When he was writing the Green Paper I do not believe that he thought it was an attack, but the nature of the response has shown that that is how the profession see it. I say to it that this Government have brought in a great deal of legislation to deal with trade unions, the teaching and the medical professions and to take over the community enterprises of water, electricity and transport. In each case the cry has always been "Competition and cost-effectiveness bring better efficiency".
Why should not the legal profession be subject to a similar exercise? I ask noble Lords in the legal profession where they were when we had this kind of debate on the teaching profession. I am very proud of my profession. We are to have a Bill that will introduce a strange animal into this profession. You can call it a multi-disciplinary procedure if you like. Where will the legal profession be when we discuss the medical profession? I suspect that members of the legal profession will not bother to come. This morning they came in great numbers. What I am about to say may be a little harsh. If I were looking for an advocate—I often am—I should be very happy to have my noble friend Lord Mishcon to represent me. He is a member of a profession which it has been suggested in a very delicate way is not quite on the same level as the Bar. I wonder whether it is realised how arrogant that seems to a mere layman like me.
I sat as a magistrate. I had been a member of government for four years when the then noble and learned Lord the Lord Chancellor, Lord Gardiner, said to me "Norah, you should not have been sitting as a magistrate because you are a member of the Government". He gave me a long lecture about the legislature and the executive. I said to him, "My 1356 Lord, you are wrong. It was a marvellous consumer exercise. I made laws and then I saw that they did not work". The interesting point is that the lawyers and the judges can sit in this House and, without declaring a vested interest, can intervene in the making of laws. It is a very subtle matter when one thinks about it. Perhaps we shall have a Green Paper on that.
I wish to say something about the way in which the ordinary person sees the law. The former noble and learned Lord Chancellor said that not many people go to the courts; that it is only a small proportion. That is true. But many people have to have contact with the law. Perhaps I may cite one interesting example. I refer to the house purchase market. Millions of people buy houses and come into contact with the law for conveyancing. Many people feel that that are held to ransom because they do not understand the processes.
It has been subtly suggested that the training of a solicitor is not quite that of a barrister. Someone made reference to doctors and surgeons. I have two or three doctors in the family and one is a surgeon. He had to go through exactly the same training as a doctor before he went on to join another level of his profession. It is a multi-disciplinary procedure. I take the point made by the noble Lord, Lord Hacking, that lawyers are asked too early in their training in which part of the profession they will specialise
I shall not pursue the point raised concerning legal aid. I endorse everything that my noble friend Lord Irvine has said. We appeal to the Lord Chancellor to look much more closely at the group that is caught when he prepares another Green Paper which he will undoubtedly have to. The level at which you can qualify for legal aid is too low. The people caught are now in roughly what we call the middle-class.
If I put myself forward as a victim I am sure that several barristers would spring to my defence. I was knocked down while standing on a crossing outside the House. I was invited by a friend of mine who is a lawyer to take the case to court. He said that he would get me a vast amount. That I will believe when I actually receive it. Because of my income, low that it is, I could not get legal aid. I was faced with the prospect of spending possibly thousands of pounds and not getting anything at all. The lawyer would collect his fee. This is the one profession where regardless of the result of the exercise, the lawyer receives his fee. I said that I did not want to throw good money after bad, and so I am now in the hands of a very able solicitor who is dealing with the matter out of court.
My case was not too serious but it could have been very serious indeed. The legal aid system must be examined very carefully. The law must be available to everyone. It can be available only if people can afford it. That is the crux of the matter.
The noble Lord, Lord Hooson, referred to the detachment of the lawyer. One can certainly speak of that. A friend of mine was divorced in the days when one had to go to court to fight the case. I remember him saying to me—he was a distinguished man—that he sat for half an hour 1357 beside the lawyer representing him at a very high fee and thought, "This man is interfering with the rest of my life". The lawyer had not addressed a word to him. When he went into court the lawyer said to him, "Don't say anything". My friend said that the lawyer did not present the case properly but he received his fee. The lawyer was certainly detached. I can assure the House that the general public see lawyers as being very detached. That point has come over this morning. I am sorry to say that I have felt a strange arrogance. They come in numbers to listen to one another and then they depart as soon as they have heard someone from the top of their own profession.
§ Lord Hailsham of Saint Marylebone
My Lords, the noble Baroness is doing us an injustice. The noble and learned Lord on the Woolsack has remained in his place throughout the debate, and except for about 30 seconds I have remained throughout.
§ Baroness Phillips
My Lords, I would always include the noble and learned Lord in courtesy, and certainly the noble and learned Lord the Lord Chancellor because it is his debate. I would certainly expect him to be here.
The noble and learned Lord, Lord Rawlinson, referred to the integrity of the profession. One expects there to be integrity in the profession. Every profession I have known or have had the privilege to be part of has had integrity. The legal profession does not have a monopoly of integrity. This point should be made perfectly clear.
I should like to congratulate my noble friend—if I may call her that—Lady Oppenheim-Barnes on her excellent maiden speech. It was short and brief in the way that is necessary to put over the facts but tellingly it put the point of the consumer. The noble Baroness, Lady Burton, should have been here and she too would have spoken for the consumer.
The Green Paper has a good deal to offer the consumer. I have referred to the house purchase market and the Green Paper has a good deal to offer in that respect. The consumer will benefit from being able to choose either a solicitor or a barrister to represent him, even in the higher courts. Is it suggested that one receives an inferior standard of justice in the lower courts where the solicitor represents the client? That is the implication.
I should have liked to make many other points but I shall say only this. Every profession needs occasionally to be looked at to see whether it is giving value for money. I should like to say to the noble and learned Lord the Lord Chancellor that at least some of us think that he is trying to make a dent in the system. It will not produce every answer—nobody would expect that—but it is a start. If the debate was being run only one way I have tried to redress the balance. I conclude on a point made by my noble friend Lady Oppenheim-Barnes. Law is not there for the practitioners; law is there for the citizen.
§ 1.45 p.m.
§ Lord Allen of Abbeydale
My Lords, it so happens that during the course of my career I have had quite 1358 a lot to do with the legal profession, including, on occasion, correcting its mistakes when it fell to me to tender advice about the prerogative of mercy. However, I am not a lawyer and, especially since sitting on the Pearson Royal Commission, I have tended to look at legal problems from the point of view of the consumer. It is from that standpoint that I should like to volunteer a few comments today. Perhaps I may venture to be a trifle more controversial than was the noble Baroness, Lady Oppenheim-Barnes, in her maiden speech which we so much enjoyed hearing.
A number of professions, including my own, have been radically re-examined in recent years. It is fair to say that the legal profession, or at any rate the Bar, when its turn came, did not do itself all that much good in the eyes of the man in the street by its reaction. Lawyers must be reconciled to being unpopular, as the noble and learned Lord, Lord Hailsham, said earlier on. I do not think they rank very much higher than the Civil Service in public esteem. It is not surprising that a good many people thought there had been an over-reaction and a somewhat regrettable tendency to make it clear that the profession was determined to defend all its restrictive practices to the end.
§ Lord Simon of Glaisdale
My Lords, is my noble friend talking about the reaction to the Benson Commission or to the Green Paper? The Bar was exhaustively investigated by the Benson Commission.
§ Lord Allen of Abbeydale
My Lords, I am proposing to make my speech as I wish. The lawyers have had a run from ten o'clock until the noble Baroness, Lady Phillips, spoke. I propose to develop my thoughts as I have prepared. I repeat that the Bar's reaction to the Green Paper was not one to receive great popular approval.
I am well aware that many members of the Bar do not throw out everything in the Green Papers holus-bolus and would be only too anxious to enter into a really meaningful discussion. However, so far their voice has not been heard very clearly. There was a good deal of surprise at the complaints, which we have heard repeated today, that there was no consultation before the Green Papers were issued. It seemed to bear out the impression that lawyers were living in a world of their own if they could not understand that Green Papers are the beginning and not the end of consultation. The question whether more time should be allowed is an entirely separate issue on which the noble and learned Lord will have heard the points put forward.
In the past I have had friendly disputations on a number of occasions with officials of the Lord Chancellor's Department, and on occasion with the Lord Chancellor of the day himself, and in general I feel that the Government go much too far in enlarging the powers of central government. However, I am bound to say that I simply cannot understand the fears expressed about the consequences which might flow from enlarging the responsibilities of the Lord Chancellor as outlined in the Green Paper, particularly in the light of the 1359 explanation which the noble and learned Lord gave in the speech with which he started the debate some hours ago.
Those fears, and the fears about laymen being involved—laymen who may be able to bring some expertise from the outside world and may, indeed, be able to consider the interests of the consumer—would carry slightly more conviction to my mind if the profession had done rather more itself about, say, training and codes of professional conduct.
We have heard several times today—it has often been said—that our legal profession is the envy of the world. I can only say that I have taken part in discussions with lawyers in quite a number of other countries and they have been quite successful in managing to conceal any feelings of envy they may have had. Indeed, amore customary reaction has been one of surprise that the profession is so conservative and set in its ways that it finds difficulty in assimilating new ideas, like "no fault".
We have heard a good deal today about the merits of the profession and the magnificent work it does in various ways; we have not heard so very much about what is wrong with it. There are many aspects which puzzle the innocent layman like myself. To start with, there are the delays. I know that the noble and learned Lord the Lord Chief Justice referred briefly to that aspect. But it is disquieting that it is not uncommon to read in the newspapers of awards for personal injury being made five, six or seven years after the event. Then, there are the costs involved. An incredulous public read that the costs involved in the case recently referred to the Court of Appeal by the Home Secretary would exceed £1 million. On Pearson we learnt that the operational costs of the tort system at that time came to some 85 per cent. of the value of tort compensation payments. I should be surprised if the percentage is any less now.
Then there is the problem of the barrister ever getting started. This must be one of the very few professions where it depends on who you know, rather than your own merits, before you can even find an office in which to set up shop and start your career. It is also difficult to believe that among the 94 circuit judges and recorders who were solicitors, there is not a single one who is suitable to be made a High Court judge. It is frustrating if a solicitor wins your case in the county court, the other side appeals and he then has to hand over the case to some newcomer, however ably he himself may have argued the case in the court of first instance.
I could go on, but I think that I have said quite enough to make the point why many of us think that all is not well and why there has been such a wide welcome outside the profession—and, apparently, outside the House—for proposals which looked as though they were at last introducing a breath of fresh air. It is not just the tabloid press which thinks there is merit in what is proposed; many thinking members of society also take that view.
I recognise at once that the Green Papers taken with the Civil Justice Review—we must not lose sight of the fact that that process is going on, nor of 1360 the announcements which have just been made about the Government's decision on the review—do not tackle head-on all the problems that I have touched upon; but they look to the consumer as though they are moving in the right direction.
I had hoped to say a little about the proposals in some of the Green Papers, but I do not wish to continue for very long. In any event, I cannot persuade myself that my views would carry much weight. However, I should like to make just one or two comments.
First, I must say that I disagree with everything that has been said about contingency fees. I hope very much that an experiment will at least be tried of some kind of speculative action in England and Wales on the lines permitted in Scotland, and perhaps going a little further than that. Whatever one does about legal aid there is bound to be a gap if you are neither rich nor poor. This proposal may make a very modest contribution towards solving the problem. I say "modest" because one must not have exaggerated hopes on that issue, especially as our rules about costs distinguish our proposed procedures very sharply from those in the American courts.
I should like to say a few words about probate. I must say that I very much welcome the Law Society's latest view that the solicitors' monopoly can go. I should also like to touch upon the issue of conveyancing. I see some need for caution about obtaining independent legal advice. If estate agents can offer not only to buy the house but—in order to earn commission—can also arrange mortgages and life policies with the new tie-ups to which reference has been made, and provide conveyancing as well, all in one package, I think there is a shadow over what the prospective purchaser can hope to obtain in the way of independent advice.
Indeed, something rather similar applies to the multi-disciplinary practices. A solicitor in such a practice might find himself in real difficulty. In my view there is a serious risk that the bigger practices would absorb the commercially attractive work and leave small solicitor practices in the suburbs, and in the provinces, with not enough profitable business to equip them to provide a satisfactory service to their more humble clients. However, I know that the noble and learned Lord is perfectly well aware of those problems and will be thinking about them in the light of the views expressed today.
Finally, I should like to say a word about the future of the Bar. I find it extremely hard to believe that the proposals in the Green Papers would spell the end of the Bar; indeed, I would not go along with them if I did. As I see it, most solicitor firms will not want to set up their own advocacy departments in any event. The proposals in the Green Paper itself, as the Consumers' Association has pointed out, will make for stronger areas of specialism. It is my view that there will continue to be, in full measure, a desire to go to those who provide independent and authoritative advice, and who will be the leaders in discharging the expert and professional function of advocacy. Clearly, the views of those who have a lifetime of experience cannot be lightly set aside, but I hope and believe that they will prove to be mistaken.
§ 1.58 p.m.
§ Baroness Faithfull
My Lords, I speak as a lay person. What I lack in not being a member of the judiciary perhaps I make up for in objectivity on the issue we are debating. As a social worker I am enabled to speak for those who come before the courts or who need and seek the services of the law, and, indeed, for a number of clients of the legal system. I should like to pay tribute to the noble and learned Lord on the Woolsack and thank him for the Green Paper. I am surprised that there is so much worry that the document should have been produced as it is. If we had not a Green Paper, how would those of us who are lay people know what was under discussion and what were the points being put forward?
I am most grateful for the Green Paper. Not unnaturally, however, there are some things with which one agrees and others with which one cannot agree, but we are grateful to have it as something to argue from and for.
A number of the recommendations in the Green Paper, if carried out, would remove some matters which one fully realises are beloved by the judiciary but which look strange and unnecessary to the lay person. Axiomatic to the lay litigant, whether criminal or civil, is that he should be free to choose to be represented by a lawyer of his choice, be it solicitor or barrister. The litigant should surely not be forced by arbitrary rules to have X when he wants Y or to have X as well as Y when he would be content to have Y only.
The Bar constantly tells us that it is better for the Crown Court defendant and the civil litigant in the High Court to be represented by a barrister than by a solicitor. It is questionable, especially in the Crown Court, whether that is so. It often means that defendants have to be represented by a barrister who is a complete stranger to them instead of by a solicitor to whom they have previously explained their case and who knows their background. To say that it is always in the Crown Court defendant's interest to have a barrister to represent him squares ill with the other argument in favour of the Bar's monopoly of the Crown Court, which is that the Bar needs it as a training ground for inexperienced barristers.
Whether or not it is better for the litigant to be represented in court by barrister X rather than by solicitor Y, there is no reason why he should be forced to have what is considered to be better for him if he does not want it, and, most important of all, cannot and does not want to afford it. Under the Green Paper proposals it would be the litigant who would choose. That is welcome.
Similar arguments apply to the proposal with regard to conveyancing. It is true that the purchase of a house is the most important financial decision that most people make in the course of their lives. They would often be wise to have fully independent legal advice; but the services of a solicitor are expensive. Why should it not be up to a client to choose whether he wants service A, which is 22-carat and expensive, or service B, which is 15-carat and perhaps less expensive?
1362 It is said by the Bar, and to a lesser extent by solicitors, that they need the restrictions that the Green Paper proposes to remove if their professions are to survive. That would be easier to believe if the legal profession had not said that every time in the past that it was proposed to remove a restriction. For instance, when there was a proposal to remove the monopoly on divorce, the change was made. There is still a flourishing family law Bar. Surely the legal profession will agree that it cannot have the argument both ways. If it provides a uniquely satisfying service, then barristers and solicitors do not need the restriction on competition, which the Green Paper proposes to remove, in order to survive. On the other hand, if it would not survive without those restrictions, would that not mean that the services are not the best on offer?
Every profession has rightly had a survey of that profession. We are all grateful, and we all admire, the Bar and the law; but the ordinary person—I fully support the noble Lord, Lord Allen, on this matter—feels that many lay people are suffering at the moment for the reasons that the noble Lord gave. They suffer from the delay, the cost and the lack of understanding of how the Bar operates I hope that we shall all support my noble and learned friend the Lord Chancellor and use the discussion paper as something that might bring forward an even better judiciary than we have at present.
§ 2.5 p.m.
§ Lord Wigoder
My Lords, perhaps I might also return to first principles—I do mean first principles and not first prejudices—and put forward an elementary proposition which I have no doubt will have the support of everyone in your Lordships' House; that is, that it is in the public interest—it is of crucial importance to our society—that there should be a core of people able and willing to stand up for the ordinary citizen, for the little man, in his constant battles against the big battalions, and the power, the size and the potential oppression than can be represented by the activities of government; by the activities of state departments, such as the Home Office, from which the noble Lord, Lord Allen of Abbeydale, hails; and the activities of the police, local authorities, nationalised industries, big business or the trade unions.
My contention will be, and I shall put the argument as briefly as I can, that the existence of that core of people, able and willing fearlessly to undertake that task, will be threatened in the future by some of the proposals in the Green Paper. I come at once to what I regard as the principal threat. It is that contained in paragraph 5.11 of the Green Paper which refers to the Crown Prosecution Service and states:The Government therefore considers that it is likely to be feasible as a matter of principle for lawyers employed by the Crown Prosecution Service to have rights of audience in all criminal courts",subject to certain provisos. It is true that the paragraph indicates that there should be a separation of responsibility for the conduct of the prosecution from the conduct of the investigative process; in other words, two members of the Crown Prosecution 1363 Service should be involved in each case, separated by the kind of Chinese wall which was referred to earlier and which has been such a singular failure in various parts of the City.
The recommendation will lead, if it is carried out, to the major prosecutions in this country becoming increasingly conducted by civil servants.
§ Lord Wigoder
My Lords, there is no way of arguing that that is not correct, if the Green Paper means what it says. That is a situation which totally misunderstands the role of prosecuting counsel (of the prosecutor) in this country. I talk about this country; I am not interested in arguments about what goes on in Scotland, Outer Mongolia or anywhere else. We are concerned only with this country's traditions.
The proposal that such prosecutions should be conducted by members of the Crown Prosecution Service (by civil servants) will have three disastrous results.
§ Lord Gifford
My Lords, before the noble Lord turns to the results, does he accept that under the Green Paper proposals it would be feasible, and likely, for the Crown Prosecution Service to brief independent specialist counsel in the conduct of serious cases?
§ Lord Wigoder
My Lords, the answer to that is: feasible it certainly would be; likely it certainly would not be. It would not be likely because it would be regarded as being cheaper for the Crown Prosecution Service to provide its own counsel. Secondly, it will not be feasible in the long run because, as I shall endeavour to show, the members of the Bar with the necessary experience will cease to exist. They will not be there to be instructed.
I was going on to say that many of us in your Lordships' House have had experience at the Bar of prosecuting in serious cases. Many of us have had the painful task of telling our instructing solicitor, or the senior police officer in charge of the case, that the case will not do; that a particular charge will not stand up; that a particular piece of evidence ought not to be called because, in our independent judgment, it was tainted; that it would be our duty in due course at the end of the trial to ask the jury not to convict on some of the charges. Many of us have undertaken that task. We have undertaken it knowing perfectly well that it will be to our detriment, because we all knew— they were not merely idle anecdotal stories—of the many prosecuting authorities who kept lists of counsel and decided whether to continue to brief them in future by the proportion of convictions they managed to obtain in what were then the Quarter Sessions.
The role of the independent practitioner in prosecution in this country is clearly not understood and not appreciated in this Green Paper. I must confess I find that very puzzling and very disturbing. The argument in what I have just been saying is so 1364 self-evident that it has in fact been accepted by this Government, as we know, over and over again in the last few years. It was an argument that was accepted specifically by the Benson Royal Commission after three years of inquiry, which is approximately 36 months longer than the inquiry which the Government recently carried out, before presenting the present Green Paper.
It is an argument which, having been put forward by the Benson Royal Commission was specifically approved, as we have heard from the noble and learned Lord, Lord Havers, in the Government White Paper in November 1983; by Sir Michael Havers (as he then was) as Attorney-General in July 1984; by the noble Lord, Lord Elton, on behalf of the Home Office in November 1984; again by the noble Lord, Lord Elton, in December 1984, when he wrote a letter to me about this issue; by the noble and learned Lord, Lord Hailsham, in January 1985; by the new Attorney-General, Sir Patrick Mayhew, in April 1985; in the same month by the new Solicitor General; and as recently as a couple of years ago, as we know, again by the present Government in March 1987, in the paper dealing with legal aid in England and Wales, where the Government again set out,The Government does not intend to extend the rights of audience in the Crown Court. This would be contrary to the view accepted by the Government of the Royal Commission on Legal Services.That was in March 1987, and there is not a word in this Green Paper nor in the opening speech by the noble and learned Lord and Lord Chancellor to suggest that evidence has arisen since then that would cause the Government to change their minds.
The Government to which I keep referring have not always over the last five years been composed of the same people. But presiding over them has been the same Prime Minister—the lady indeed who boasted that she was not for turning. For a government to turn on the proposition that they have repeatedly accepted over and over again in recent years would be a case not of not being for turning but of a rotation of almost unparalleled frenzy on the part of the Government.
So the first proposition that I wish to put forward is that a proposal which will lead in due course to the vast majority of criminal cases being prosecuted by civil servants is totally undesirable and will have disastrous consequences.
§ Lord Hailsham of Saint Marylebone
My Lords, I did not wish to interrupt the noble Lord, but he has so much more experience in this matter than I have. Would he not also agree there is another question of principle involved here; namely, if you want to prosecute fairly you ought to have done a fair number of defences, and if you want to defend efficiently you ought to have done a certain number of prosecutions?
§ Lord Wigoder
My Lords, the noble and learned Lord has anticipated my next point in words more effective than I can use. All I was going to say was that once you get a corps of people concerned solely with prosecuting, as civil servants, then all that is left for the rest of the Bar is defence. There will be 1365 in fact two classes of criminal practitioner—those who prosecute and those who defend—and it has been the experience of all of us in the courts in this country that a proper balanced approach can only be obtained by advocates who have had experience of both sides of the process.
My third point is this. Once that situation arises there will be a very real deleterious effect on the Criminal Bar in this country. Half their work will be removed, not overnight but in the course of a few years. The "cab rank rule", which many of us were very proud to operate because we regarded it as a service to render to the people of this country, will go, because there will be only defence work to do for independent advocates and there will only be prosecution work for employing advocates. The Criminal Bar will then become increasingly less attractive for young people to come into, and in the result there will be, I have no doubt, a substantial decline in the attraction of the Criminal Bar and in the number of people who will enter it.
I do not wish—I want to make this quite clear—to be seen to be pleading on behalf of the Criminal Bar: the Criminal Bar can look after itself. I am seeking to plead on behalf of the original principle with which I started these few observations, which is that it is important for there to be this corps of people who are independent advocates, able and willing to stand up for the ordinary citizen. I believe that the proposals in the Green Paper will very materially weaken their existence.
In conclusion, I should like to make it clear that this is not an argument about rights of audience. It is not an argument which suggests that barristers are superior to solicitors as advocates. It is not an argument which suggests that there may not be a role for the advocate as a member of a solicitor firm—perhaps a large solicitor firm—in the future. That may well be so, but it would be idle to expect the advocate in a large city firm of solicitors to be prepared to go to court and put the reputation of his firm on the block by standing up for some extremely unpopular cause against, let us say, the Bank of England or some other similar body of authority. I believe there is an absolute necessity for the independent Bar to remain and for independent advocates to remain, from both branches of the profession if necessary, as a very real preservation of our liberties. I regard that proposal in paragraph 5 as being not only very harmful to the future proper conduct of prosecutions in this country, but also very harmful indeed eventually to our basic liberties.
§ 2.17 p.m.
§ Lord Donaldson of Lymington
My Lords, for the past few years I have been intimately connected with both branches of the legal profession, not only as a judge but as President of the Inns of Court Council and, in relation to the solicitors' branch of the profession, as Master of the Rolls. Over that period, to my own knowledge, both branches on their own initiative have made tremendous improvements in their organisation, in their practices, in their rules and in their complaints procedure. Neither branch would, I know, suggest that there is nothing more to be done. Indeed, a considerable part of my time—too 1366 much, I sometimes think—is spent in discussions with their governing bodies on ways and means of carrying this process forward.
All that is most welcome, but if there are any doubts in the Government's mind that there might perhaps be some residual slothfulness or complacency on the part of the two branches of the profession—which there certainly is not—I can assure the Government that the publication of the Green Paper and the vigorous advocacy of the noble and learned Lord the Lord Chancellor of the proposals therein contained, must have removed any such attributes on the part of either branch of the profession.
The great question is: where do we go from here? The solicitors' branch undoubtedly needs primary legislation to free it from the straitjacket of some parts of the 1974 Act which inhibits it from further progress. It may be that in some circumstances the Bar itself might welcome primary legislation in support of its own self-regulation. The noble and learned Lord the Lord Chancellor certainly needs primary legislation to enable him to recommend the most suitable candidates for appointment to the High Court Bench, irrespective of whether they happen to have been members of the barristers' branch of the profession or of the solicitors branch. That is a reform which, I hope, will come about in the very near future. As I have said, legislation is required in order to achieve that end. After that, the matter becomes rather more complicated. Even then, I expect a wide measure of agreement.
The rule of law has no real meaning unless the citizen can obtain appropriate advice as to his rights and duties and appropriate assistance in invoking the law in his defence. Any reforms which make this advice and assistance more readily available in terms of cost and ease of access are to be welcomed, provided always that they do not imperil the foundations upon which the rule of law is based. This proviso is absolutely crucial and lies at the heart of the debate.
As I am a serving judge and with so many noble Lords wishing to speak, I shall limit my contribution strictly to the effects which the Green Paper proposals would have upon the administration of justice in the courts. For centuries it has been axiomatic that judges must be wholly independent of the government of the day. That is something we all know and that Government accept. However, it is worth remembering why that situation is essential. All governments enjoy great power; all governments know that they know best; all governments, in seeking to further what they regard as the public interest, are tempted, through no doubt the most impeccable of motives, to ride roughshod over the rights of minorities who disagree with them. The record of the present Government is no better, even if it is no worse, than that of previous governments.
Those who find that their rights are threatened can appeal to the media and to public opinion. But, by definition, minorities—in particular, unpopular minorities—are not likely to have public opinion on their side. Alternatively they can appeal to Parliament either through a Member of this House 1367 or of the other place. However, the parliamentary timetable and the fact that a majority of Members support the Government limits the effectiveness of this remedy. In the end, their only real hope lies in the enforcement of their rights through the courts.
The independence of the judiciary alone should suffice to secure them that right of redress if, but only if, justice were administered in this country on the basis that judges investigated claims, searched for, found, sifted, brought forward and then evaluated the evidence before giving judgment. However, that would involve vast expenditure of public money. It would produce horrendous delays in the system; it would be grossly inefficient. Accordingly, our practice is, and has always been, that most of this work is delegated to the two branches of the legal profession.
That involves both branches of the profession in a dual duty, first, a duty to their clients and, secondly, a duty to justice and the law, although I should have put them the other way round because the duty of upholding justice and the law is and has always been accepted as being absolutely paramount. It is this feature which distinguishes the members of the two branches of the legal profession from all other professions. I know of no other profession which is in that position. That is why members of the solicitors' branch are called officers of the court and why members of the barristers' branch are officers of the court.
If, for the reasons I have given, the administration of justice must be a combined operation, to maintain the independence of the judiciary is not nearly enough. We must maintain the independence of the entire judicial process. This involves providing protection and independence for the legal profession from governmental (as distinct from parliamentary) pressures and interferences. As already pointed out, one does not have to look far beyond our shores to see what happens if this is not achieved.
To a limited extent this point is accepted by the Government. In paragraphs 5.3 and 5.6 of the main Green Paper eloquent tribute is paid to the fact that the quality of justice depends upon advocates of a high standard of competence and integrity. That, at present, is the function of the barristers' branch of the profession. What is the position of the solicitors' branch? The quality of justice is even more dependent upon that than it is upon the barristers' branch. In the field of criminal law it is the solicitors' branch which obstructs the manufacture of spurious defences and the adducing of perjured evidence. In the field of civil law, it is that branch rather than the barristers' branch which ensures full disclosure of evidence which does not assist the client and which assists the other side. The competence, integrity and independence of the solicitors' branch is every whit as important as that of the barristers' branch, as is the possession of a fearless independence without which lay clients, ordinary citizens, will never get their causes to court to be upheld by the judges at the end of the investigation.
The Government propose to widen the range of professionals and professional bodies who will play 1368 these key parts in the administration of justice. They propose that any professional body which accepts the approved codes of conduct should be recognised. This assumes that the skill and integrity of both branches of the legal profession as at present constituted are maintained by codes. Nothing could be further from the truth: codes play a part but only a very minor part. The real safeguard, which has existed for centuries and still exists, is a sense of tradition, vocation, brotherhood in the law, and, above all, of peer pressure from within the profession. That kind of independence is bred in the bone and is not achieved by codes.
The existence of two separate branches of the profession, each involved in the administration of justice, is, I confess, something of a disadvantage. I say that because it divides control of conduct and standards. However, it is something with which we have lived for some time. On the other hand, the further fragmentation proposed by the Government would be an unmitigated disaster. The weakening of judicial control which would inevitably follow would compound the error.
I say nothing about the dispute between the two branches of the profession with regard to rights of audience. Both branches of the legal profession and the Government seem to be agreed on the need for specialist advocates. The issue is simply whether the Government's proposals would produce this result more economically and without any sacrifice of quality. I do not know the answer and I am pretty sure that the Government do not either. It seems to me that we would do very much better to indulge in a little more research and a little less rhetoric. For my part I am loath to follow the Government in an irreversible plunge into the unknown. To follow them in an irreversible plunge into the known would be something different on which we could form a judgment—but not into the unknown, which I fear is the present position. However, despite all the thunder, that is not the real issue. The real issue is who shall prescribe the standards of education and training and the standards of professional conduct of those engaged at the heart of the administration of justice. Who shall decide who does what, and who shall supervise complaints procedures? The Government's answer is simply to say that the Government will do that and that they will do so by statutory instrument.
That approach was condemned by Lord Chief Justice Hewart in his book The New Despotism published exactly 60 years ago. He rightly described it as using the sovereignty of Parliament to frustrate the rule of law. In the present context it is, in my judgment, an affront to the constitutional doctrine of the separation of power. It spells dependence, not independence, for the legal profession as administrators of justice. That the effects may not be, and probably will not be, felt in the immediate future is absolutely no comfort. As that very great Scottish judge the late Lord Reid remarked in a case in this House, we have too often seen freedom disappear in other countries not only by coup d'etat but by gradual erosion.
There is a better way and one which preserves the constitutional propriety. It is to have a legal 1369 profession which is bound by primary legislation to seek to achieve specific objects determined by Parliament; it is to give the judiciary statutory powers which will enable it to exercise greater supervision of both branches of the legal profession in so far as they are involved in the administration of justice; it is to establish a truly independent advisory body containing elements and representatives of all those concerned—consumers, lawyers, administrators, government—in fact, the lot; and it is to establish a truly independent advisory body which will point out to the profession and to the judiciary the respects in which the parliamentary objectives are not being achieved and to suggest remedies for any such failures.
In my judgment that is the way forward to better and cheaper justice and also constitutional justice. We are told that this is a listening government. I hope so. I hope that the Government will not misinterpret the moderate language used by many of your Lordships as indicating mild anxiety. My anxiety for the future of the rule of law, if the Government are given the powers they seek, is quite profound. It should not be necessary for me to spell out my message in the terms reportedly employed by a distinguished former Prime Minister to a distinguished former president of the AUEW. The former Prime Minister said; "Get your tanks off my lawn". But, if necessary, I shall say just that.
§ 2.33 p.m.
§ Lord Campbell of Alloway
My Lords, your Lordships may feel that the way forward and the perspective have been truly and authoritatively set by the noble and learned Lord the Master of the Rolls who has just spoken and by the noble and learned Lord the Lord Chief Justice. Within that broad perspective, I propose to make a small contribution. In thanking my noble and learned friend the Lord Chancellor for introducing this debate, I have a dual interest to declare. I am a member of the Bar, in practice, on the cab rank as it were, and I am also a partner in an international arbitral and legal consultancy which undertakes foreign work under the overseas practice rules.
While welcoming evolutionary reform—I take the term from my noble and learned friend Lord Havers—I welcome, as does my noble and learned friend, and as no doubt most of your Lordships welcome and recognise, the need for evolutionary reform. I say, only for myself, that I also welcome many of the proposals in the Green Paper.
Nonetheless, even against that background, my main purpose is still to assert, as Erskine once had to, the independence, dignity and indeed the integrity of the Bar, because these now are being called into question, although that may not be the Government's intention. As I see it, they are called into question in the main by three proposals. The first concerns the whole of the advocacy certificate machinery, the second concerns the partnership aspect; and the third concerns the abolition of the traditional system of self-regulation, as approved by Benson.
The purpose of this speech is also to identify those rules and customs; the citadel which, if stormed or 1370 taken by stealth, would emasculate the Bar as a viable institution, and with it undermine the whole structure of the legal profession. The burden of this speech is to canvass some tentative proposals for compromise on rights of audience, elegibility for judicial appointment and other matters, and also to question the Government's approach in the Green Papers to public interest. Finally, in my speech I wish to propose a period of consultation after the deadline of 2nd May so that accommodation may be sought between both branches of the profession, and the Government as guardian in the public interest.
If the Bar is to survive as a viable institution, it is my personal belief according to my own experience —and I have spent some time there—that fair account must be taken of the career structure and of the average earnings potential. It must be remembered that the Bar is not merely a means of livelihood, but a way of living and a calling which involves unsocial hours, uncertain prospects and relatively modest average returns.
If the career prospects or earnings potential were to be slighted, how can the Bar attract new entrants, certainly entrants of the requisite standard? How also can it or shall it maintain its lustre? Not only would the traditional relationship between Bench and Bar inevitably be destroyed, but the public, contrary to the stated intention of my noble and learned friend the Lord Chancellor, would be deprived of a variety of specialist skills at a reasonably competitive cost. That is a matter of most serious concern to solicitors up and down the country.
The Inns of Court would be destabilised and the independence of the judiciary and the legal profession would be put to the hazard. This is a matter of vast constitutional importance, as the noble and learned Lord the Lord Chief Justice has said, especially as we have no written constitution and no administrative court in which misuse or abuse of power by the Executive can ever be reviewed on the whole merits. In those circumstances the cautionary observations of the noble and learned Lord the Lord Chief Justice surely should be given full account by the Government.
The public interest is the issue which lies at the epicentre of the debate. It is a nebulous concept which belies accurate definition. It is an amalgam of law, economics, social morality, political dogma, pragmatism and expediency. However, with an ancient institution any step taken in the name of reform must truly be in the public interest as seen by your Lordships.
It is recognised by many of us in both branches of the profession that the trilogy of Green Papers introduced by my noble and learned friend represents a facet of the broad manifesto approach to restrictive practices. It was preceded in March 1988 by the Green Paper on restrictive trade practice, to which my noble and learned friend referred. It was followed last month by the Green Paper on union practices, and yesterday by proposals concerning dock labour practice. As in the case of other professions, the Bar and solicitors are now 1371 represented by unions with full-time officials and the usual administration. As both of those unions impose a substantial mandatory annual subscription as a licence to practice it was inevitable and it is entirely reasonable that scrutiny of all practices should be entertained, even those granted and sanctioned by the judiciary. In that perspective, from where I speak on these Benches as a rank and file member of the Bar union, rhetoric affords no substitute for reason on this occasion.
I decline to regard the main Green Paper as a Trojan horse planted among the foliage of the Inns of Court. I for my part trust the noble and learned Lord the Lord Chancellor and accept his assurances. I also trust the Government to keep an open mind to reasoned argument. I take great comfort from the fact that both branches of the profession are now represented by unions so that the due process of collective bargaining may ensue. Also the Law Society brief Striking the Balance seems to me to invite reasonable compromise while retaining the essential structure of our profession. Therefore there is the reasonable prospect of fair compromise.
In all this, perhaps the central issue is rights of audience. That issue has not been resolved between the two branches of the profession, the Bar having failed to accept the recommendations of the Marre Report. If that issue were to be resolved on a reasonable compromise proposal, there would be no need for the means of resolution which are open to criticism and which have caused so much concern. I refer in particular to the advocate certificate machinery. There would be no need for it.
That machinery has been criticised by two eminent jurists with both English and Continental experience who wrote in The Times on the subject. One is Dr. Mann of Herbert Smith and the other is Professor Lipstein of Clare College. With their Continental and English experience they concluded that if the proposed advocacy machinery were to be introduced it would have the most catastrophic results. Time does not allow me to deal with the matter at greater length, but those two jurists said that the proposal would increase delay and would involve mounting costs. The other objections I found in paragraphs 4(c) and 4(f) of the Law Society brief.
If, in a process of compromise and consultation under the aegis of my noble and learned friend the Lord Chancellor, accommodation can be sought I earnestly suggest that there would be no need for the introduction of the proposals which give rise to so much concern, in particular the advocacy certificate machinery.
As regards the proposals for compromise, for my part I would concede certain rights of audience to solicitors, both in the Crown Court and in the High Court. I should not go quite so far as the Law Society brief, which claims an extension, but in principle its approach is not unreasonable. I should certainly retain the existing system of self-regulation for each of the two branches of the profession on all matters, including competency, fees, discipline and conduct. That would enable the Government, if so advised, to issue codes of practical guidance on such matters. However, I have to be straight with your Lordships. 1372 I should be committed wholly to opposing the advocate certificate machinery. As I see it, it would adversely affect the public interest. As a matter of conviction and conscience, as a practising member of the Bar, I could not support it.
I wish to take little more of your Lordships' time save on the question of approach, in regard to which I should like to raise two questions. An erroneous approach to the public interest inevitably leads to a flawed conclusion. The first problem is this: is the concept of a single uniform set of rules governing both work within the jurisdiction and overseas work misconceived? I suggest that assuredly it is. Your Lordships will find the relevant references in paragraph 1.8, Annex A and paragraph 1.11 of the main Green Paper. It is the apparent intention of the Government to impose a single uniform regime. The answer is to amend the overseas practice rules and not to seek to impose uniformity. I say that it would be wrong and wholly irresponsible to wreck the structure of our traditional system in order to accommodate a handful of members of the Bar who in whole or in part, like myself—the other interest I declare—operate under those rules. The answer is to amend the rules.
The other problem of approach is whether it is appropriate to test the rules and customs of the Bar against the public interest without any evaluation of the loss which removal of the restrictions would involve. Here, with respect to my noble and learned friend the Lord Chancellor, I suggest that there is a fundamental error of approach. My noble and learned friend said that the test for the retention of a restrictive labour practice—which these are—is the same as the test for a restrictive trade practice. With great respect, it is not.
The problem is that the Green Paper of March 1988 envisaged, in the light of dogmas applicable to restrictive trade practices, that there would be no exception for professional services. The appropriate test is whether there is any undue loss of efficient manpower. That is quite different from the trade practice. That is the Donovan definition test for restrictive labour practices. I merely ask that this matter may be looked at again because, in the Green Paper, there is no reasoned evaluation of any relevant loss. Only by the composite wisdom of consultation in the irenic spirit of compromise may reasonable resolution be afforded. As other noble Lords have said, that is not only a pious hope; surely it is a fair and reasonable expectation.
§ 3.15 p.m.
§ The Earl of Longford
My Lords, we have listened to a long series of very expert speeches, mostly delivered by gifted members of the legal profession, including the noble Lord, Lord Campbell of Alloway. I do not know whether he would allow me to raise with him the question of whether the members of a beloved profession could ever be expected to take a dispassionate view of its structure and merits at any particular time. I speak as someone who also belonged to a profession that was not very popular. I should not like to say that the legal profession was unpopular, but the noble and learned Lord, Lord 1373 Hailsham of Saint Marylebone, made that abundantly plain in his fine speech earlier.
When I was a university teacher, I taught a number of pupils, each one of whom received an hour a week with me. That system seemed the obvious one in my time. If someone comes along and says, "That's very uneconomic in manpower. It must be scrapped in favour of something much more cost-effective", my first reaction will be hostile, but I hope that I should be ready to listen to the arguments. So with the Bar; I cannot believe that the members of the legal profession themselves would ever reform their own profession. I gather from what the noble and learned Lord the Lord Chancellor said that they have been extremely slow to do so, and that that is the inspiration of the measures before us.
I started with an initial prejudice in favour of the proposals. With respect, I am a great admirer of the noble and learned Lord the present Lord Chancellor. I have left instruction in my will that, when I die, he should be invited to deliver an address at my requiem mass, provided that that does not get him into any further trouble. I am therefore very much biased in his favour, but, as a member of the public, I share the view that I believe the noble and learned Lord, Lord Hailsham, expressed; namely, that there is a widespread suspicion that our legal costs are much too high.
For example, a little while ago, I was libelled in a ludicrous way on the front page of a Sunday newspaper. I was accused of lashing out at a security guard in a special hospital. Clearly, when we pass the age of 80, few of us are capable of lashing out at anyone at all, let alone a tough young security guard. As there was a thick glass window between me and him, it was inconceivable. It was therefore a cast-iron case, so far as anything could be. I went to see an eminent solicitor who is an old friend of mine and we chatted for a while. I asked, "By the by, how much is this costing?" He said, "A hundred pounds so far, plus VAT". From what the noble Lord, Lord Rees-Mogg, told us in his splended maiden speech, that was quite cheap. However, I chucked it in. I said, "I'm not Jeffrey Archer and I really can't go on with this thing at all". That is how most people look upon the law. They believe that it is highly dangerous to go anywhere near a lawyer and that one runs the risk of ruining oneself. I therefore start with a prejudice in favour of trying to sort out the law.
In my relative ignorance, I am still ready to believe that there are many things which must be improved that I do not fully understand. I am sure that that must be so; it is true of any institution that I have ever known from the outside. I should not like to say that this or that particular suggestion is wrong, though I certainly believe that solicitors should be allowed full audience in the High Court.
The matter of advocacy has been mentioned often today. A certain mystique has grown up around it. I have sat in this Chamber, or the other, for over 40 years and have listened to advocacy of one kind or another. When I first came here, there were two brilliant advocates—Sir John Simon, who was by that time Viscount Simon, and Lord Jowitt. I suppose that they were the top advocates of the day 1374 but, although there were very good advocates, they were no better than Lord Addison and Lord Salisbury. Lord Addison had been a doctor and Lord Salisbury was a landowner, so I do not believe that training at the Bar necessarily qualifies one to perform better than anyone else. Here we have my noble friend Lord Mishcon. Is there any better advocate in the House than he or, for that matter, my noble friend Lord Cledwyn of Penrhos, who is not here at the moment? I confine myself to my own dear colleagues. There are also my noble and learned friend Lord Elwyn-Jones and my noble friend Lord Irvine of Lairg. I shall not say in this House that solicitors perform any worse than do barristers. The whole matter of advocacy has been blown up rather beyond its deserts. I shall therefore not be so strongly taken in by that argument. There should be full access to the High Court by highly qualified solicitiors such as those whom I have mentioned.
I believe that improvements could be made, but, when we think of the total approach. I share the horror expressed by the noble and learned Lord, Lord Hailsham. I shall quote a passage that has been referred to more than once. In a sense, the noble Lord, Lord Hooson, expressed what I intend to say so much better than I shall that I hesitate to say it. On the other hand, he is a barrister and most people may feel it is a case of, "He would, wouldn't he?". so I believe I am entitled to repeat it. The short passage which I shall read and which was quoted earlier states:The Government believes that free competition between the providers of legal services will, through the discipline of the market, ensure that the public is provided with the most efficient and effective network of legal services at the most economical price".It goes on to state:The promotion of competition is one of the Government's fundamental policies".I see here a fundamental clash. The noble and learned Lord, Lord Hailsham, and the noble Lord, Lord Hooson, and others said that there is an element of competition. I shall take all the professions together—the academic profession, in which I performed for some time, the medical profession and the legal profession. On the whole, there is no doubt an element of competition in the sense that there are many people who want to succeed and reach the top of their profession. But, when one sees a doctor, one does not want to think that he is competing with some other doctor. When one sees a barrister, one does not want to see him as someone who serves one in a way that would be most acceptable to the client but would do down some other barrister. In my opinion, the idea of competition as a basic concept is repugnant to the professions. That is where I believe the Government go wrong.
The noble and learned Lord, Lord Hailsham, spoke about this matter rather more bluntly. He said that we here bring the economics of the Grantham corner shop into the world of the professions. I would never venture to personalise the issue in that way, but, since he has said that, I am bound to say that I could not agree more. Obviously, the idea of competition is a very strong element in successful business. Some noble Lords will have read Adam 1375 Smith. I cannot believe that there are any pupils of mine here today, but someone may have read him in my company many years ago. Adam Smith, writing 200 or rather more years ago, said that if we pursue our own interest it will secure the greatest interest of the community as a whole. That may or may not be a good idea in business. In economic debates people may say that there should be a limit set to that pursuit. However, certainly in the professions it is an outrageous application of a principle which even in business terms is very dubious.
So I recoil, on social and philosophical grounds—if I may call them such—from the whole tone of the main Green Paper. I shall risk one further observation. In the past my party—the Labour Party—has been attacked, not unreasonably, for the divisions in its ranks. It has sometimes been pilloried as a party that does not always agree within itself. Now in the Conservative Party I see revealed here today a fundamental clash. I am afraid I did not hear the speech of the noble and learned Lord, Lord Rawlinson, although I wish I had done so. I have read his book, however. The noble and learned Lord, Lord Rawlinson, represents traditional Conservatism against the so-called radical Conservatism represented in these Green Papers. In his book the noble and learned Lord says—I mentioned it to him the other day and I am sorry that he is not present to hear me say it again—that he was told that what he calls "the tenant of Number 10"is not on speaking terms with him; in other words, that today traditional and radical Conservatism are no longer on speaking terms. I am not surprised; but they can sort that out for themselves. There is however that very deep division.
I am afraid that I must call this a wrong kind of radicalism. In the Labour Party one likes to be called a radical but I hope that the Labour Party has always been aware of the greatness of the traditions. Take a man like the late Lord Attlee, who to the day of his death always wore a top hat at a funeral. He used to say, "I am a Victorian, you know". He always stood for the traditions. It was a great part of his strength as a leader of the party.
I do not believe that any party in this country will succeed—at least not for many years even though they may seem to succeed for a time—unless they combine traditionalism with radicalism. In my opinion, this paper represents the wrong sort of radicalism. I repeat what I said earlier: the noble and learned Lord the Lord Chancellor appears to me to be an heroic figure. He always seemed something of an heroic figure but even more so today. He sits there, calm, unaffected apparently by so many attacks. I think that he is a lovely man, yet he is absolutely in the wrong this time.
§ 3.1 p.m.
§ Lord Beloff
My Lords, I shall not be present in the House on Monday—by now we are looking forward to Monday—because I shall be attending with fellow historians a series of lectures and discussions called by the British Academy to meditate once more on the great events of 1689 1376 when the foundations of our constitutional liberties were affirmed.
The moment I read the Green Paper and long before I heard the mutterings of the two professions. it seemed to me quite extraordinary that on the anniversary of that great event proposals should be put forward to reverse the main element in the Constitution; namely, the independence of the legal system from the executive branch. It is as though the French, who this summer will celebrate the fall of the Bastille, should mark the occasion by reintroducing lettres de cachet or the droit de seigneur—for those whose legal French is scanty, ius primae noctis.
It is therefore a sad occasion for me, especially since I have very particular reasons for being gratified at not merely the independence of the judiciary, which I think depends upon the independence of the two branches of the legal profession, but also at their independence in respect of both conduct and education. The latter has not I think so far been touched upon other than briefly. Let me explain. It is a short story and the noble and learned Lord, Lord Hailsham, will be the only other person who as yet knows about it.
Many years ago when we were setting up what became the University of Buckingham there was very strong opposition from the Department of Education and Science. It was made clear that in no circumstances could the university's degrees be recognised by any further professional instruments over which it had control, so the graduates would not be able to become teachers. The department not only did that but through the Whitehall network which is very persuasive and all-powerful it persuaded the Ministry of Defence that such young persons could not apply for commissions in the armed services and persuaded the Civil Service Commission (which, legend has it, is independent of the executive) that they should not be allowed to take the Civil Service examinations.
When we approached the Bar Council and the Law Society, who at that time controlled their own views as to what was appropriate for legal education, they agreed for a period of years to accept these young people and their degrees. Without that the university would never have got on its feet and we would not have the honour of having the noble and learned Lord, Lord Hailsham, as its Chancellor. If the provisions now put forward had been in effect those many years ago, it is quite clear that the Bar Council and the Law Society would have had to go to the new advisory body with its lay majority and ask its permission. No doubt since civil servants will control that body—because what is a lay majority but a cover for Civil Service control? —they would have been told, "You can't do that; it's not in harmony with the general position of the Government on these matters".
This seems to me to be a matter of very great importance even though those particular circumstances are unlikely to recur. I do not think—and I differ from the noble Lord, Lord Hutchinson of Lullington, although I was much moved by his speech—that cost cutting is the explanation of the Green Paper. I believe that the explanation in a sense is a more sinister one. The explanation is that 1377 it represents another attempt by the Civil Service to establish its control over what has hitherto been an independent and separate part of our national life. It parallels exactly, with its lay majority and all, what was attempted to be done—and this House did something to remedy it—in the case of the universities.
It is clear that in this country we face a deliberate erosion of the separate status of the various bodies, interests and institutions which have grown up over the centuries in favour of an increased power of the executive branch. This Green Paper suggests using one pillar of the British Constitution, namely parliamentary sovereignty, to overthrow the other pillar which is, as I understand was pointed out by the noble and learned Lord the Lord Chief Justice, the rule of law dependent upon an independent judiciary and an independent legal system.
Noble Lords were prevented by their duties in this Chamber today from hearing the speech of Mr. Gorbachev at the Guildhall. We frequently tell the Russians that we are dissatisfied with their record on human rights. We tell them that we shall believe in the reforms or the durability of the reforms that they have introduced when they have law courts and lawyers wholly separate from the Executive. We make this the litmus test of the good faith of these reforms at the very time when we contemplate abolishing these things in our own midst. Again that surely is a paradox.
As a non-lawyer, I do not feel able to enter into the aspects concerning the professions—their relative roles and so on. As various noble Lords have said, these are matters that are capable of settlement. In spite of what the noble Earl, Lord Longford, has said, I do not think that anyone other than he has thought that neither branch of the profession has been without internal reform over the past few years. Indeed it has been pointed out by many noble Lords that reforms have been coming at a very considerable rate if one looks at the total record. These issues can be solved, should be solved and I believe will be solved within the boundaries of the constitution. They will not be solved by the imposition of control by persons who clearly are not suited to exercise such control.
Reference has been made to what I regard as the most extraordinary statement in the whole Green Paper: the Government's not being prepared to leave codes of conduct to the professions themselves. But if they do not draw up their codes of conduct, who draws them up? However hardworking the noble and learned Lord the Lord Chancellor is, I doubt whether he can spend his time writing out codes of conduct. Therefore it will be done by civil servants. Are civil servants the right people to prescribe codes of conduct? One can hardly open a newspaper without finding that some civil servant has leaked some document for some purpose to some other person. If I had some secret—and secrecy is part of the code of conduct of professional advisers—I would rather entrust it to my solicitor, indeed to any silk at random or any junior barrister, than to a civil servant. Surely as matters now stand the Government might reasonably suggest that the legal professions should propose a code of conduct for 1378 civil servants. That would at least put things the right way round.
However, to be more serious, when one considers the page which is devoted to what would be required for a certificate of advocacy, it seems to me that one has evidence there of people who know nothing about the matter describing things with which they are familiar—apprenticeships in the plumbing industry, for instance—and wondering how they could be adapted for this purpose.
I hate disagreeing with the noble Earl, Lord Longford, as he knows. However, I think that he was wrong about advocacy. Advocacy is not what he practises in this House, nor what I practise. Advocacy consists not only of rhetoric but also of knowing the law applicable to a case and being able to do the research required to make that law available to the judges. It is a combination of legal training and rhetoric in which rhetoric plays only a minor role. I therefore join with many others in hoping that these Green Papers will be withdrawn for a new and longer look. I join with my noble friend Lord Rawlinson in saying that if it came to the pinch and such legislation were to be produced in this House. I would find it my duty to oppose it every inch of the way.
§ 3.15 p.m.
§ Lord Henderson of Brompton
My Lords, I am very happy to follow the noble Lord, Lord Beloff, especially since he is going to consider the importance of the events of 1689. Five years ago when I asked the Government whether they would commemorate the events of 1686–89, I recall that only a little pedantic cold water was poured on the proposal by him. Now I am happy to see that he has educated himself in those matters.
The Green Paper, Cmnd. 570, states that these are not matters of concern only to lawyers. I have been encouraged by those words. For that reason I have dared to be a Daniel in the certain knowledge that those who are noble and learned in the law have their teeth in some other meat than mine.
I should like to say at the outset that I am a friend of the proposals of the noble and learned Lord the Lord Chancellor. It is also possible at the same time to be a friend of the Bar, as I claim, although after I have spoken my friendship may be disclaimed by the Bar. My credentials as a friend of the Bar are, first, that like the noble Lord, Lord Murray of Epping Forest, I served as a lay member of the Bar Council's Professional Conduct Committee for four years and of its Professional Standards Committee for what I believe Saatchi and Saatchi would describe as rather less years. I was also co-author of a report commissioned by the Bar Council which reviewed procedures for complaints against members of the Bar in which we made 26 recommendations and also said how impressed we were by the Bar's self-regulatory efforts and recognition of its duty to the public.
I should also like to add on a personal note, that I have a son and a daughter-in-law at the Bar, and a daughter who will shortly be knocking on the door to gain admittance, despite the daunting words about 1379 the future of the profession that have been uttered by its senior members and the judiciary.
Having said that. the responses of the leading members of the Bar and the Bench to the Green Paper on the work and organisation of the legal profession have been rather sad. It is sad that otherwise sane, sensible, intelligent and wholly admirable people should so demean themselves in public by the extravagance of their utterance. I believe that they have lowered their estimation in the eyes of the public and have severely damaged the standing of the Bench and of the Bar, I hope not permanently.
However, I am happy to believe that the public probably knows instinctively when to lay off for wind when interested parties are speaking, just as they know how to discount public utterance by representatives of all political parties when they are discussing, for instance, proportional repesentation. Members of the House will remember when the noble Lord, Lord Goodman, sought in this House larger access and greater rights of audience before the higher courts. Noble Lords will remember the arguments of those Members of the House, of the Bar or of the Bench, with some embarrassment and shame. I am very glad to say that none of those arguments which one remembers and which one had to discount on that occasion has been repeated today.
On the rather grandoise objections to the Green Paper on constitutional grounds, whenever I hear the word "constitution" or "constitutional" I reach for my scepticism, especially when they are uttered by interested parties. How is it that the Bench and the Bar take exception to the relatively harmless proposals of the Lord Chancellor on constitutional grounds when they have lived apparently happily and for so long with the prima facie objectionable status quo whereby the Lord Chancellor is both Cabinet Minister, head of the judiciary, indeed a judge himself, not to mention Speaker of this House? He also appoints virtually all the higher and the lower judiciary and all the Queen's Counsel.
It is within the recollection of many of us that it is only a short time since appointments to the Bench were on occasion made at least partially on party political grounds. Not a hand is raised in horror by the Bar and the Bench at these extraordinary combinations of functions when we are supposed to have separation of powers. To outside observers who question this, it is possible only for us to say that we have our funny old customs that have roots in history and if we only had time we could explain to the foreigner how they came about. The foreigner listens politely and remains puzzled and, in my experience anyway, almost entirely unconvinced.
My experience in this respect is much the same as that of the noble Lord, Lord Allen of Abbeydale. Without going into any detail, I believe that all or most of the so-called constitutional objections to the Green Paper are, if not invalid, at least grossly exaggerated. The Lord Chancellor will no doubt give due weight to those who consider that an independent legal services commission might be preferable, not least on presentational grounds, to 1380 his own proposal for an advisory committee; also that the proposed ombudsman, a proposal which I applaud, should report not to him but to the independent commission. I hope that he will give consideration to those suggestions.
I also agree with those who doubt the value and possibly the propriety of multi-disciplinary partnerships between barristers and solicitors, especially as it seems that neither branch of the profession much wants such partnerships. The public advantage of such one-stop shopping is not at once apparent. Equally I should be cautious about one-stop shopping at estate agents. The public should not be encouraged to accept their conveyancing and surveying from estate agents, who are themselves interested parties in selling the house.
Like others, I regret that there is no apparent reference in the Green Paper to the strengthening of the finances of the Citizens' Advice Bureaux. My daughter works for the Citizens' Advice Bureaux, not for £25 an hour but for nothing an hour. There is no mention about more money for law centres, nor are there any proposals for the extension of legal aid. I hope that this will be the subject of a further Green or White Paper or, better still, legislation.
As to contingency fees, I could not help observing that the noble and learned Lord, Lord Hailsham, after rounding on the noble and learned Lord the Lord Chancellor for starting with first principles, did just that himself on this subject. I hope, with the noble Lord, Lord Allen of Abbeydale, that the noble and learned Lord the Lord Chancellor will persist, though cautiously, with his proposal, because it has great potential for making access to the law more widely available.
§ Lord Hailsham of Saint Marylebone
My Lords, has it not occurred to the noble Lord that there cannot be a contingency fee for defendants and that therefore it makes defendants liable to blackmail and to frivolous and speculative complaints?
§ Lord Henderson of Brompton
My Lords, I am sure that there are dangers and that is why I ask the noble and learned Lord to persist with this cautiously. I am sure he will.
In conclusion I should like to record that to my certain knowledge the Bar, through its professional conduct committee, its professional standards committee and other committees, has struggled hard to implement on its own many of the proposals of the noble and learned Lord the Lord Chancellor. It is not through lack of initiative by many public spirited members of the Bar that greater progress has not been made. In my view the inherent inertia built into the governing structure of the Bar and its relations with the Inns of Court, the Bench and its own heads of chambers is responsible for the snail's pace at which attempts to reform have to creep. I am convinced that the Bar will be a better and a happier place as well as a better servant of the public if the Lord Chancellor's proposals do for the Bar what as at present constituted it seems incapable of doing itself this side of eternity.
§ 3.27 p.m.
§ Lord Bridge of Harwich
My Lords, with respect to the noble Lord, Lord Henderson of Brompton, I do not regard myself as an interested party. Unless the retirement age for the judiciary is unexpectedly raised in favour of increased geriatric productivity, I am near enough to reaching it to have no personal interest whatever in the outcome.
In June last year I had the privilege of attending as a guest and as a representative of the Inns of Court in England the annual general meeting in Washington, District of Columbia, of the American Inns of Court Foundation. The American Inns of Court movement is a very interesting and significant phenomenon. It owes its genesis to the series of Anglo-American legal exchanges which have taken place at intervals over the past 30 years. The primary protagonist of the movement has been that great man—to whom reference has already been made in the course of this debate—Chief Justice Warren Burger, the now retired Chief Justice of the United States.
There are now over 70 American Inns of Court established in the major cities across the United States. They have been organised as nearly as may be on the model of the English Inns of Court. They have sought and established social and cultural links with the English Inns of Court. The entire object of the American Inns of Court is to seek to inculcate in a rising generation of American trial lawyers the high standards of competence in advocacy and, much more important than that, of ethics in advocacy which so many American visitors have noted as a characteristic of the English system which is sadly lacking from their own.
I find a certain sense of irony in the situation. Lawyers on the other side of the Atlantic are seeking to emulate the ethos of a profession rooted in the traditions of the English Inns of Court—traditions which have been built up over the centuries. However, at the same time on this side of the Atlantic we are debating inter alia a proposal which would relegate the Inns of Court to an insignificant status as voluntary associations, subject of course to the approval of the competition authority for those barristers who did not want to exercise their new freedom to take instructions direct from the lay client.
I share the deep sense of unease which I believe is felt by the great majority of members of the judiciary about the Green Paper proposals. Some of the reasons for that have been cogently articulated today by my noble and learned friends the Lord Chief Justice and the Master of the Rolls. I accept that some changes are necessary and desirable. My personal opinion is that those changes could well include modification of the present rules which govern rights of audience.
However, the Green Paper proposals set out to achieve a radical change of the whole face of the legal profession and a fundamental change of the machinery by which it is to be regulated and controlled. It is said to be derived from first principles, produced without the benefit of prior consultation, as has already been said, with wholly 1382 inadequate time presently proposed to be allowed for subsequent consultation, consideration and discussion. The proposals, if implemented as they stand, would have implications for the administration of justice which, to say the least, are quite unpredictable. The rule of law is so dependent upon the calibre of members of the profession who sustain it that it is capable of suffering incalculable damage from hasty and ill-considered legislation. An ideological blueprint for restructuring the legal profession provides no basis on which to legislate.
If now, 10 years after the Benson Report, fresh legislation is required to reform aspects of the legal profession, then what is needed is an essentially objective and pragmatic examination of the existing system in order to identify its weaknesses and strengths and to make proposals for change which will be aimed at eliminating the weaknesses but will ensure that the strengths are maintained. That is what we had 10 years ago from the Benson Report; that is what we do not have from the Green Papers.
§ 3.33 p.m.
§ Lord Renton
My Lords, I am sure that other noble Lords are glad that the noble and learned Lord, Lord Bridge of Harwich, mentioned the position of the Inns of Court in our system. It is upon the collegiate life of the Inns of Court that the independence and integrity of the Bench and Bar of England and Wales are largely founded. We become members at an early age and then get to know each other. We continue our lives there, learning from each other all the time and trying to live up to the highest standards set by the best of us.
I am also glad that the noble and learned Lord referred to the fact that in the Green Paper there are some proposals which are acceptable and worthy of further consideration. No doubt the noble and learned Lord the Lord Chancellor will have been greatly discouraged by many of today's speeches; indeed, by the great majority. However, I should like to express the hope that some of the noble and learned Lords who have made those speeches will realise that there is more work to be done and will not allow my noble and learned friend the Lord Chancellor to be left in isolation over future discussions. That is most important.
My noble and learned friend Lord Rawlinson quoted Disraeli and I shall quote him in another context. Disraeli once said:it is when you are wrong that you need your friends".I am not quite sure what Disraeli expected his friends to do—whether to bend their consciences and agree with him about what was unacceptable to them or to give him friendly advice as to what might be done when friends considered him to be wrong. There is now an opportunity for all of us, even those who disagree with my noble and learned friend the Lord Chancellor, to see what part we can play.
I am proud and glad to have had the noble and learned Lord on the Woolsack as a personal and parliamentary friend since 1977 when I was his guest at the Jubilee dinner of the Dean and Faculty of Advocates when he was Dean. I wish that I could support much in the Green Paper. I can support 1383 some of the proposals. However, I see serious objections, as do others, especially in increased government control of both branches of the legal profession when, strangely enough, other Ministers are reducing their control over society. That is true even of the DTI.
I also find great difficulty with the proposal to allow the Bar to form partnerships or contractual arrangements with solicitors. I should have even greater misgivings about the Bar forming multi-disciplinary practices. The trouble is that, if the Bar is involved in multi-disciplinary activities, not only is the independence of the Bar threatened, which my noble and learned friend wishes to preserve, but the independence of the judiciary is also threatened because its members are chosen from the Bar.
My noble friend Lady Oppenheim-Barnes made an excellent maiden speech which showed an admirably open mind. As she said, our judiciary is widely respected at home and abroad. It is respected for its integrity, learning and efficiency. Its reputation is founded upon the fearless independence of the judges; that is independence not only from the Government but from each other, which is of vital importance. They are independent of the press and, above all, of commercial interests. If judges are to be chosen from members of the Bar who are involved in multi-disciplinary practices with commercial interests, I fear for the future independence of the judiciary.
In a sense the independence of the judges is derived from the separate kind of independence of the Bar from which they are chosen. That is founded, first, upon the barristers' duty to serve the rule of law, as well as to serve the interests of their clients, and, secondly, upon the individual responsibility of each barrister. Therefore, in my opinion, it would be utterly wrong for barristers to form partnerships or have any contractual relationship with solicitors.
In presenting the Green Papers today the noble and learned Lord the Lord Chancellor referred to the fact that sometimes barristers form corporate arrangements. They do so only for payment of their chambers' expenses and on a non-profit-making basis. However, as soon as they share their incomes and have a vested interest in each other's incomes, the individual responsibility of each barrister in a set of chambers to his clients as they come and go is impaired, in my submission. But in the Green Paper in paragraph 11.16 the Government list certain suggested advantages to barristers if they were to form partnerships. Without going through the detail, I simply say that each of those advantages can be achieved without forming partnerships.
Perhaps I may now mention the cab rank rule which has been briefly touched upon. That is vital because it ensures that nobody is deprived of legal representation and emphasises the responsibility of each barrister to provide a service. I must say that it can sometimes be embarrassing. I had an odd experience. In 1938 I was elected to the Bar Council. I believe that I am probably the earliest newcomer to the Bar Council among noble Lords who have spoken today. I was elected 50 years ago. At that 1384 time I was also commissioned in the Territorials, and I received instructions from a reputable London solicitor to act in two High Court actions on behalf of Hitler's Deutsche Bank. What was I to do? The cab rank rule told me that I had to accept my instructions, and I did. However, the only reason I was glad that the war came was that the Custodian of Enemy Property took over those two cases.
The attitudes of the Bar and the Bar Council are perhaps naturally often misunderstood. They are misunderstood partly for lack of knowledge. They are sometimes quite deliberately misrepresented. This truth is—and I can speak from recollection—that we are not opposed to change. It is a great many years now since we abandoned the restrictive practices with regard to the circuit system and since we abolished the two-thirds rule. Anyone may now approach a barrister direct merely to obtain advice without there being instructions from a solicitor. If it is a non-contentious matter, that can be done, as I understand it.
In its response to the Green Paper the Bar Council has volunteered to make or to agree to many important further changes, including allowing solicitors to become High Court judges. That was a voluntary concession, if one cares to use that word, on the part of the Bar Council. Secondly, it says that every barrister should be required to do legal aid work and to do some work each year without payment in spheres not covered by legal aid. Those are admirable suggestions. Therefore, let us not condemn the Bar out of hand for its stonewalling attitude because it does not exist and, in my recollection, never has done.
Perhaps I may say a brief word about specialisation, which is mentioned in the Green Paper. In my opinion it can be overdone. I see my noble and learned friend Lord Hailsham with whom I once had the pleasure and advantage of sharing chambers. He and I never specialised. I suppose that sometimes it was felt that we trespassed on other people's preserves. At the Scottish Bar, although I am not a member of it, I understand that it is out of the question to specialise because there are too few members, they are not arranged in specialist chambers and they have to cover the whole range of law, whatever may come. Specialisation can be overdone and it is important that there should be a great many members of the Bar who do not specialise too much. Without that we shall not have judges who can take a very wide range of cases in different branches of the law. Therefore, do not let us lean too much towards specialisation.
Perhaps I may say a few words about discipline. Over the years I have served as a Bencher on disciplinary tribunals which have tried cases of misconduct by barristers, and mercifully they have been rare. However, I assure your Lordships that at the Bar we deal very stringently with those who break the rules, not merely because they are letting us down but because they are letting the public down. It is significant that in Chapter 4, paragraph 20, of the Green Paper there is no criticism of the Bar's disciplinary procedures although there is of those of the Law Society.
1385 Perhaps I may now say a few words about advocacy certificates. I see no need for them. It seems to me that the system envisaged in the Green Paper, quite apart from the fact that it is an attempt by government to control the profession, would mean that in addition to the qualifications which barristers very properly acquire, there would have to be a system of vetting by personal scrutiny of performance in court by or on behalf of the people who issue the advocacy certificates. If there is not a system of personal vetting and scrutiny of that kind, those certificates will be allocated by people at a distance who do not really know what is happening. That is a case in which I say that it is better to let the market decide. If people are to advance in the profession, it is because their performance has been good; in other words, the clients give work to the barristers who are worth it. However, to have the system marked by the degradation of advocacy certificates seems to me to be most unwise.
In conclusion, this Government have taken many wise and courageous decisions in the past nine years, but with regard to these proposals—and I say this to my noble and learned friend—discretion would be the better part of valour. If this leads to legislation, I should have to oppose much of it, especially anything leading to partnerships, fusion, multi-disciplinary practice, contingency fees or the increase of government control.
§ Lord Hooson
My Lords, before the noble Lord sits down, perhaps he will allow me to correct an impression which he may have given; namely, that a lay client can directly approach a barrister for advice in this country. He cannot do so. The professional client, other than solicitors, and overseas clients can but not a lay client in this country.
§ Lord Renton
My Lords, I am most grateful to the noble Lord for that correction. I became confused. A decision had been contemplated and I assumed that it had been made and it has not; but I am glad that the noble Lord has told me the correct answer.
§ 3.49 p.m.
§ Lord Goodman
My Lords, I must be exceptionally cautious about what I say this afternoon because some of my social life may depend on it. For example, I have been invited to attend a grand night at one of the Inns of Court next week and I should very much regret it if that invitation were withdrawn as a result of any observations which I may make today.
It may be helpful if I remind you Lordships that we are exactly half way through the number of speakers and I shall certainly try to bear that in mind in the remarks which I have to make. It will also be helpful if I tell your Lordships of those topics on which I do not wish to speak. I do not want to talk about the criminal law because I have never practised criminal law. There are two eminent silks here today both of whom displayed their devotion to the Criminal Bar by retiring from it. Nevertheless, the fact is that I have had assistance from no less than five silks here today and the relationship that exists between them and myself has been immensely 1386 helpful and immensely friendly. It would be horrible if this debate were to corrode in any way the relationship between the professions. That would not be right and it is not necessary.
One noble Lord said, I cannot remember who, that he trusted the Lord Chancellor and he trusted the Government. I emphatically endorse the first of those trusts. I wholly trust the Lord Chancellor, but I do not trust this or any other Government. That is a healthy principle on which to work. I should also like to say, in the most mild terms, that I deprecate the terms in which the Lord Chancellor has been assailed. I have read the papers closely. They appear to be as carefully contrived as a speedy piece of work can be. Having read them, I am in some doubt as to whether I read the same papers as other Members of the House because the gloomy forebodings and such expressions as "a recipe for disaster" and "catastrophe", and so on, never occurred to me.
I was also a little puzzled about the constitutional issues. It is perfectly true that one can, if so minded and with a vigorous imagination, spell out constitutional issues and the threat to the constitution in the document. However, in order to do that one must have an exceptionally sensitive nose for smelling sulphur. I did not smell sulphur. I do not believe there is any intention to invade anyone's constitutional rights. It is necessary to remind the Bar that only a tiny cadre of people is involved. It represents at the most 4,000 practitioners—probably 5,000 on the register, 1,000 of whom are employed. Many of those people have immense intellectual distinction, immense academic distinction, and great distinction in advocacy, and they have dominated the philosophy and traditions of the legal profession for generations.
I should like to make a comment regarding the speed. One of the criticisms levelled against the Lord Chancellor is that he has moved with unnatural speed. I have been a legal practitioner for 53 years and nothing very relevant has happened to change the law or to change practice in those 53 years. The only important change that occurred came from a committee chaired by a layman. The change to which I refer was the creation of the Crown Courts. I regard that as the most significant change in those 53 years.
Of course there have been other changes. For example, reference has been made to the rule that a leading counsel does not need to have a junior. However, try to retain a leading counsel today in any heavy action and tell him that he is not to have a junior. You will suddenly find that there is a speedy abdication of the cab rank rule. He will discover that there is too much work for him to do.
Some of the comments I have heard this afternoon lead me to wonder whether I have been practising in the same profession as some of the orators here today. For example, I am told that a junior counsel has the most laid back life, that he reclines on his couch reflecting and meditating in quiet calm on such matters as the rule against perpetuities, remoteness of damage or whatever it is that occurs to him. There is no one who lives in a more agitated, febrile condition than a busy junior counsel. His clerk races in from minute to minute saying, 1387 "Linklaters are on the 'phone, where is that opinion?" or "Coward Chance are on the phone and want a consultation". If I am told that tranquility and quiet are to be found in the life of a junior counsel I shall have to reply that that is not the case in any of the chambers that I have ever briefed. The matter was best summed up by the very distinguished Lord Chief Justice Reading, who said that the Bar is no bed of roses; it is either all bed or all roses. That summarises the position with total accuracy.
Those people who have uttered extravagant criticisms of the Lord Chancellor should reflect again. I was somewhat disconcerted by the speech made by my very good friend the noble Lord, Lord Hutchinson. In making his speech he omitted to count how many people there were in the Chamber and failed to recognise that it exceeded 12 in number. He is obviously a highly skilled jury advocate. The forebodings that have emerged today are terrifying. The only place that one can find a parallel is in the Pickwick Papers, but I am slow to make any comment on anyone's obesity! Your Lordships may remember that there was a fat boy who kept making the most spectacular gloomy predictions about what would happen. It is indeed sad that people here this afternoon have imitated those forebodings. I cannot find in these papers anything that is going to cause a dramatic change.
We must remember that the first crucial change is the notion that solicitors may become High Court judges. It is a crucial matter and all I shall say—it is no reflection on my profession—is that there can be only a few solicitors who would qualify to be High Court judges. The point is well made in the Lord Chancellor's own paper (I believe on page 21) when he refers to the law-making function of judges. That function, of course, requires the highest degree of learning and academic scholarship. There are very few solicitors who would be able to engage in that. The law-making function of the judges has been of crucial importance in this century. It is an impertinence for me even to touch on this subject in the presence of so many learned judges, but there are many cases. There is Rylands v. Fletcher, which is the case which decided that there was absolute liability for a dangerous structure; Donoghue v. Stephens, and so on. These are all judge-made laws which required immense learning not only to enunciate them but to do so in the form of judgment that will stand an appellate test. That is why I feel that those members of the Bar who are fearful that they may be displaced in judicial appointments by solicitors can allay their anxiety for the time being.
We must bear in mind that almost the whole of this discussion has been conducted on the basis that everything will be petrified and that there will be no change. If solicitors are given what I believe is an undeniable right to appear in High Court litigations, after 10, 12 or 15 years the situation will greatly change. Very few solicitors want to engage in advocacy in the courts but there will be a considerable corps of solicitors to add to the existing corps of barristers and thus it is absolutely true to say that there will be a larger choice for those litigants entitled to ask for choice.
1388 I am glad that it has been pointed out in the distinguished maiden speeches this afternoon that the public interest is dominant in this matter. The law is not designed for the benefit or convenience of lawyers; it is for the benefit and convenience of the lay public. In looking back over the years and considering the question of delay, I invite barristers here to be kind enough to tell me how long they think it would have been before they would have voluntarily proposed these changes unless urged by the situation—certainly not in the 53 years in which I have been practising. That is a factor that needs to be considered when we accuse the Lord Chancellor of being too quick. It may well be that a few more months should be given. I regard the Lord Chancellor as an essentially reasonable man. I am sure he will listen patiently to the representations that there has not been enough time. I believe it was the noble Lord, Lord Hutchinson, who said that the law proceeded at a snail's pace. It proceeds at the pace of a rheumatic snail, if such a creature could be found.
There has been no relevant change. What we have heard this afternoon are the most soothing, honeyed comments about the good intentions that are forthcoming, but they have never been implemented. I venture to suggest that the Lord Chancellor does not intend anything malign. Some of the expressions used about him surprise me. I am not sure whether it is in order in this House to ask Members of the House to adjust their spectacles and whether it would embarrass the Lord Chancellor if I ask noble Lords to take a good look at him. If noble Lords can detect a single sinister feature in that Pickwickian face I will be happy to present a prize to anyone who can identify it.
The extravagance of the language reflects discredit on its users. I excuse it by saying that one of my few observations quoted against me—in fact it is one of my few observations that is quoted—is that I said that nothing that is wholly sincere can be wholly ridiculous. I qualify that by saying that some of the comments made this afternoon have cast doubts on that adage. I believe that some of them have been wholly ridiculous. Nevertheless, they have been wholly sincere. I give the Members of the House who uttered them the credit of believing that they really believe the things that they have said. They believe that there is a sinister constitutional threat hidden in this document.
I am not sure that it is right to comment criticially on a very remarkable maiden speech. Our recently arrived Member, the noble Lord, Lord Rees-Mogg, made the suggestion that one of the freedoms that had been preserved by the courts had been that concerning the case of Bradlaugh. I have to tell the noble Lord that Bradlaugh rendered no assistance of any kind. He relied on his own good right arm. Ultimately, having created every kind of fuss over years, he sneaked into the House of Commons and no one appeared to notice that he took the oath that he had been denied for many years. It is a nice sentimental notion that the freedoms of this nation are entrenched with 3,000 or 4,000 people. From time to time the judiciary have maintained freedoms; and from time to time they have done the reverse. I ask the lady Members of the House whether 1389 they believe that Mrs. Pankhurst was one of the greatest architects of liberty in this country. How many Members of this House will rise to tell me which judges gave their support when she was dragged off to gaol? I do not believe that Wilkes or Hampden were lawyers. I do not believe that Charles James Fox was a lawyer when he decided to remove libel as an issue to be tried by judges and gave it to the jury. It is quite wrong to arrogate to our profession, particularly to a small section of it, the notion that the liberties of the country depend on it.
The liberties of the country depend on something quite different; namely, the essential integrity and decency of the British people and nothing else. I was very alarmed to hear the suggestion that those liberties can in some way be injured by a short course of legal training that it is suggested will be dominated by the Government. The training of a lawyer begins at his home; the training of an independent and free character begins in the house in which he is born. It continues at his school and university. One of the points made by the noble Lord, Lord Renton, with which I profoundly agree, is the danger of over-specialisation.
I believe it very necessary for a lawyer to take an academic approach and to acquire an academic knowledge of the law before he takes vocational training. The notion that the students at the three universities with which I have been associated are likely to be subverted from independence of mind or affected by the guidance of their legal training or subverted from a decent moral approach, is absolute poppycock. When I was receiving training from an institution called Gibson and Weldon, I did not attend most of it; and when I did attend, I noticed that most of the other students who should have been there were out watching cricket matches.
The real vice of our present legal system is its non-availability. We need to study very carefully indeed what it is that dissatisfies people. We have nice contented middle and upper-class notions that there are lawyers available for us to consult at any time. We like to feel that we are such lawyers. My own feeling of contentment at being a lawyer is because I have often rendered services on a voluntary basis that have saved people from a dilemma or an embarrassment. However, that is not true of the entire community. Some while ago in a speech I referred to an incident, and I do not hesitate to do so again. When I left the Army after six years of service I enlisted as a poor man's lawyer long before there was any legal aid. This service was provided under an organisation called the Bentham Committee. Its only service (it was a valuable one) was to find accommodation from where we could give advice. I used to go there once a week with a very distinguished legal Member of this House who is present here today. I hope he will not be embarrassed by my remarks. I went with another lawyer who subsequently became the vice-chancellor of Southampton University.
The three of us would go once a week to the Commercial Road in the East End to premises exactly opposite the shop where my grandfather had established himself when he came from Lithuania. We dealt with about 30 or 40 applicants in the course 1390 of an evening. I realised how crucial it was to have a legal service in terms that people could understand. It is not only cost that makes the law unavailable, but the formality of it. It is the failure of people to understand it. I am sure that many of the judiciary must be Roman lawyers. They will remember that in Rome one of the complaints of the plebeians against the patricians was that they would not tell them what the law was. That was a very convenient way of going about matters so that the patricians could make the law whatever suited them when litigation arose. We have achieved almost that situation now, not by a deliberate denial of information, but simply by encapsulating it in such dog Latin and confused phrases that people cannot understand a word of it.
It is perfectly true that those who have been to good schools—and, if I may say so, the right universities—will not be bemused by legal language. However, in the East End of London there are people who are terrified of lawyers because they cannot understand a word that they are saying. The cost is a very prohibitive element. But it is not just the cost.
It would be disingenuous and uncandid to say that a united or huge legal profession would necessarily be cheaper. In my bones I believe that it would be on a simple arithmetical principle. In many cases if you can employ one person instead of three, that seems a very good reason for believing that the cost will be a good deal cheaper. I do not know whether £25 is the rate per hour that junior barristers charge. I should be very reluctant to put that charge on my own services. The fact remains that I give a great deal of unpaid time to many people—as indeed do all members of my profession. What is certain is that if the solicitor was able to regulate the entire matter so that he was responsible for all the outlay and out-of-pocket expenses, and that there was no certain requirement to employ a barrister whose fees he could not regulate, there is a strong likelihood that economies can be achieved. That is a guess.
I do not believe that is the basic matter. There is another considerable advantage in this proposed system. It will remove an embarrassment from those of us who have to advise the young. When I was the head of an Oxford college the most common inquiry I had from undergraduates who were going into the law was whether they should become solicitors or barristers. It was a very difficult question to answer. I can say to them: "Become a solicitor and then change to the Bar". But that is not so easy because you have to forsake all your connections and start again. The change proposed will absolve us from that inquiry. We can say to the young: "By becoming a lawyer"—I hope that one single word will link the two professions—"you will be able to do office work, advocacy or whatever you prefer". You will not be driven to the difficult choice that has to be made in the very early days.
The urgent requirement of law reform is as the Green Paper says. It is to make the law more available to ordinary human beings and not to the Members of this House, who have undoubtedly enjoyed good legal services all their lives. It is like the National Health Service. The ordinary middle-class person enjoyed the sentimental notion of the doctor 1391 who arrived in a horse-drawn trap on a Sunday morning. He would leap from it and enjoy a glass of sherry. He would look after everyone with the utmost attention. But that related to 1, 2 or 3 per cent. of the population. The great majority of the people had no medical services of any kind. That is very true of the law. The availability of lawyers is denied to great numbers of the population who have a real apprehension about consulting them.
Perhaps I may touch on the point of the constant praise that we are told is lavished on our profession by Continental or American visitors. I believe that this is largely a matter of politeness. The one salient fact is that if they love our profession as much as they profess, why have they never effected the change or made the slightest suggestion that there should be such a change? When I am told that 72 Inns of Court have been established in the different states of America, I reply by saying that any number of Tudor teashops are being established in the different cities of the United States. That convinces me of nothing at all. I do not believe that the American system is any better than ours. It has great advantages, some of which your Lordships might appreciate at this moment. In the Supreme Court in the United States an advocate may not occupy more than half an hour in presenting his address. The same importance is not attached to advocacy or to orality.
Perhaps I may say to the noble and learned Lord the Lord Chancellor—and I hope not to embarrass him—that in coming here as a Scottish lawyer he knows more about English law than most of the learned judges here would know about Scottish law. I had what I consider to be the advantage of having to some extent been trained as a Roman lawyer. I taught Roman-Dutch law at Cambridge University for some years because they could not find anybody else to do it. It enabled me to decide that on the whole I preferred a system of principles to a system of precedent. This matter has never been argued out. No one in authority has the slightest idea of the advantages of another system, or if he has, does not wish to air it.
I conclude by saying that the paramount consideration here is to make the law available. The Lord Chancellor has rendered a very great service. I do not think he has deserved the abuse that has been heaped upon him and I wish him well for the future.
§ 4.11 p.m.
§ Lord Rippon of Hexham
My Lords, I agree with the noble Lord, Lord Goodman, at least in one respect. Any human institution is capable of beneficial change. I do not believe that anyone who has spoken today would wish to echo the immortal words of the Duke of Cumberland, who said:Any change, any time, for any purpose is highly to be deprecated".On the other hand, the noble Lord has not really understood the nature of the anxieties expressed by so many others today. It is not that if the proposals in the Green Paper were implemented there would be some immediate disaster. What concerns so many of us is that we may be looking into a future where, as 1392 the independence of the legal profession is gradually eroded, so interference by the executive in the administration of the law will progress step by step. Of course there is a case for some considered changes provided that those changes are designed to improve the operation of the legal system without destroying historical and constitutional continuity. I share the regrets expressed by some other noble Lords about the lack of understanding in the Green Paper of the role played by the Inns of Court, to which my noble friend Lord Renton and others have referred. However, the fact that some changes can be justified should not blind us to the reality that, in my judgment at any rate, the Government's proposals as they now stand are fatally flawed in two respects; one is economic and the other constitutional.
First, they are founded on the assertion set out at the front of the Green Paper that the aim of government policy is to introduce competition, efficiency and market forces, and thereby stimulate a wealth-producing and growing economy in which the consumer will be able to choose services offering better quality and price. That has been referred to already, but it will also be noted that all this is to be in line with tests to be administered by a new competition authority, the justification for which is spuriously linked to Article 85 of the Treaty of Rome. I do not believe for one moment that there is any need to adapt our English legal system in the way suggested in the introductory part of the Green Paper to comply with the Treaty of Rome. We do not have to do that any more than we have to adapt our system to the French system, or for that matter to the Scottish system.
Some Biblical references have been made to, among others, Job, Jacob and Esau. The Conservative Party, it has been said, was born in the Garden of Eden. In that visionary abode, Adam represented stability, the first Conservative. Eve was the radical innovator, ready for reckless experiment and carried away by slogans such as "Eat more fruit" and "Free fig leaves for all". We are now being seduced by a modern Eve with the populist cry that lawyers are elitist and expensive and that there is some easy way to make justice cheaper, quicker and better. Everybody has some sympathy with Voltaire, who I believe said that he was ruined only twice in his life—once when he lost a law suit and once when he won one.
There is nothing in the Green Papers to justify any hopes at all that the proposals will make justice quicker, better or cheaper. On the contrary, I believe that we shall find the same consequences as have followed the operation of the Financial Services Act, which we were told would bring the same benefits to the consumer and which now has to be amended because it has been found that its provisions have driven the small independent firm out of existence or into amalgamations, with consequent restrictions on choice coupled with increased costs.
§ Lord Elton
My Lords, in declaring an interest as a regulator under the Act, perhaps I may say that, although it leaves much to be desired, the membership of the independent organisation is very 1393 nearly exactly the same as it was four months ago and that there is no sign of a stampede of independents out of it.
§ Lord Rippon of Hexham
My Lords, I rely on the report of Sir Gordon Borrie, the Director General of Fair Trading, who has made severe criticisms of the operation of the Financial Services Act. He has expressed similar anxieties about the proposals in the Green Paper and is reported in that regard in The Times of 8th March this year. Some of the difficulties which arise when there are amalgamations of firms leading to increased costs and less choice were indicated in the notable maiden speech of the noble Lord, Lord Rees-Mogg.
The second and most disturbing aspect of the Government's proposals is that they pose a direct threat, however serious one defines it, to the independence of our legal and judicial process. It is that which leads me to share the view expressed by the noble and learned Lord, Lord Lane, who has described the Green Paper, though not this afternoon, as one of the most sinister documents ever to emanate from government. "Sinister" is a word which my noble friend Lord Beloff also used, It is a strong word but I believe it to be justified. I particularly deplore, as others have done, the proposals for advocacy certificates and the setting up of the Lord Chancellor's Advisory Committee to advise on the appropriate codes of conduct which should be followed by lawyers and other practitioners recognised as suitable to undertake work in the recognised specialisms.
In his introductory speech the noble and learned Lord the Lord Chancellor tried to play down the role of this committee, but it is perfectly clear that such recognition and such codes would be derived from government. I say that because of the one sentence which has already been quoted several times but most be repeated over and over again:The Government is not prepared to leave it to the legal profession to settle the principles which these codes should adopt because they will be of such great importance both to the administration of justice and to the public".Thus it is that in one brutal sentence judicial and legal integrity and independence are summarily dismissed. One cannot escape the consequences of that sentence if that is the Government's policy.
Every conference on the rule of law and on human rights stresses not just the importance of an independent judiciary but also the need to preserve the independence of the legal profession. They know that their frail democracy—it is a frail thing—depends on that independence.
I am sure that it will not have escaped your Lordships' attention that the President of the American Bar Association, Mr. Robert Raven, has recently both written and spoken about the way in which the legal profession in the United States has consistently and successfully opposed the regulation of the practice of law by executive or legislative bodies, whether national, state or local. The association would not, for one moment, tolerate the President or Congress imposing upon the profession the kind of proposals which we see in the Green Paper. In Mr. Raven's words: 1394Under the present system, lawyers do not depend on the benevolence of the Government for the right to practise and therefore they are free to confront abuses of governmental authority".What is also certain is that the Government's approach does not satisfy the requirements for independence which one will find in other European Community countries. The noble and learned Lord, Lord Elwyn-Jones, touched delicately, but pertinently, on what happened in the dictatorships before the war.
The Lord Chancellor's committee is to be composed of a majority of laymen, but will include others. However, they are all to be nominated by the noble and learned Lord, the Lord Chancellor, and they are, as the noble Lord, Lord Beloff, pointed out, to be serviced by the government department. We had a short debate the other day, on March 22nd, on the subject of the increasing number of appointed nominated bodies. That fact is relevant to the way in which increasingly great blocks of power are today being transferred to Ministers and their nominees. It is always said—and indeed, the Green Papers say so—that these nominess are only appointed after the most careful and wide consultation. However, the fact remains that the nominees look to the people who appointed them.
Of course we may have an abounding faith in the present Lord Chancellor and his fellow Ministers. But, as has sometimes been pointed out, Ministers are but shadows and they come and go; but, the Executive machine remains. One cannot safely give to any person or group of people, however much one may respect them personally, powers which would be exercised either by them or by others in the future without restraint. I say that because power feeds upon itself, so that what starts off as being good in intent can be evil in effect.
As the noble and learned Lord, Lord Lane, pointed out, with the Executive and Parliament virtually combined our constitutional rights are a very fragile matter; they depend upon a government respecting our conventions. Indeed, the noble and learned Lord, Lord Donaldson, referred to Lord Hewart and the New Despotism. I suggest that the danger today is much greater than when Lord Hewart wrote that book in 1929.
In some recent debates dealing with the growth of government by statutory rule and order, some of us have referred to the Donoughmore Report, published in 1932, concerning ministerial powers. I think that we should read that report against most carefully if we are to curb the growing authoritarianism of government.
We have passed, by one day, the anniversary of Mr. John Dunning's historic Motion in another place on April 6th, 1780:That the influence of the Crown has increased, is increasing and ought to be diminished.".It is recorded that the mere fact that he could carry such a Motion through a venal assembly, nearly one half of the members of which were tied creatures of the court, indicated the intensity of the rage and despair that filled the nation as a whole. Today we substitute "Executive" for "Crown". Moreover, I 1395 am afraid that we have to pin our hopes on the other place where the number of place-men is far higher than even in the days of 1780. Let us be in no doubt of the potential constitutional dangers embedded in these Green Papers.
This matter transcends party loyalty. I think that there may well be many people who feel, like my noble and learned friend Lord Rawlinson, that what the Government are now proposing is so far removed from the basic conservative principles of the party which we joined that we should find ourselves in very grave difficulties if the Government proceeded with proposals anything like those contained in the Green Paper.
I conclude by saying that we ought to remember the words of Junius' Dedication to the English Nation:Let me exhort and conjure you never to suffer an invasion of your political constitution, however minute the instance may appear, to pass by without a persevering determined resistance"—I can assure noble Lords that there will be a perservering, determined resistance to these proposals if they should ever be embodied in a Bill.
§ 4.25 p.m.
§ Lord Gifford
My Lords, for the past 15 years I have had the honour to be head of a chambers of barristers, which is unusual in two respects which are relevant to this debate. First, we operate as a fee-sharing collective, or "common purse" as it is sometimes known. Our members pool their fees and draw a monthly salary which is fixed from year to year with reference to the experience and the earning capacity of its members. It comes as close to a partnership as the Rules of the Bar allow. Moreover, I can assure the noble Lord, Lord Renton, that we suffer no loss of responsibility to our work and no loss of independence as a result of that arrangement.
The reason we have such an arrangement is, first, that it allows us to make collective provision for matters such as sickness, maternity leave, sabbatical leave and other benefits to which the members are entitled. Secondly, and significantly, it enables us to pay a decent living wage to the pupils and young tenants whom we recruit. The Bar, to its shame, operates one of the most unfair and arbitrary methods of recruitment of any career in this country. It is arbitrary because vacancies for the precious places in chambers are rarely advertised. Moreover, as the noble Lord, Lord Allen of Abbeydale, said, one must have the right connections and be in the right place at the right time. It is unfair because those of private means naturally have a huge advantage. Indeed, the figures speak for themselves.
A pupil at the Bar receives either nothing at all or, at best, an award of £1,000 or so; a pupil at my chambers will start at the rate of £7,000 a year and move to £9,000 after six months. Of course, an articled clerk in the City will receive much more than that. One of the problems with the Bar's treatment of its young people is that it is based on a contradiction; it is trying to develop specialists who have had no opportunity first to be generalists.
I am totally in agreement with nearly every speaker who has spoken thus far—perhaps every one of 1396 them—when they stress the fundamental importance of a specialised independent advocacy profession. The Green Paper does not abolish the Bar. On the contrary, unlike many noble Lords who have spoken, I believe that the proposals of the noble and learned Lord, by opening up rights of audience, will open up the range of people, especially at the younger end of the profession, who can develop their talents of advocacy. I think that we will then generate better specialists who are more broadly trained from a wider class of people and less trained in the, frankly, elitist attitudes which are fostered by the eating of dinners in the Inns of Court. They will, therefore, be better able to serve the public. People will choose to become specialist advocates not because of some hunch they developed at university, but because their aptitude will have been tested through being solicitor/advocates.
There will always be a need for specialist advocates in our system, organised in much the same way as the Bar is organised now, who are available to be consulted and briefed by other lawyers. The best advocates will join that branch of the profession which meets that need. I intend to stay a barrister; but the noble Lord, Lord Alexander of Weedon, who is no longer in his place, was not going to tell us that he will take up a partnership as an advocacy partner in a big City firm.
In Victoria, Australia, where I had the honour of being a visiting lecturer for three summers, all lawyers have had access to all the courts since 1891. The top Melbourne firms can, in theory, hire all the best advocates, but they do not. There remains a thriving independent Bar. People join it after being trained in articles and then, after qualifying, or later, when they feel ready and fitted for it, they sign the Bar roll and agree thereafter to take instructions from other lawyers only.
The Bar takes all the best and most serious work. That is the point upon which I intervened in the speech of the noble Lord, Lord Wigoder. I can assure my noble friend Lord Hutchinson that the prosecution services in Australia brief independent counsel to prosecute the majority of more than trivial cases. Defence solicitors brief independent counsel to defend. The idea that independent specialists will disappear because rights of audience are opened up to members of solicitors' firms is frankly nonsense.
What is under threat from that aspect of the Green Paper are not the best traditions of the Bar, which I am the first to acknowledge as being admirable and existing, but some of the worst traditions—the traditions of many barristers and, more particularly perhaps, of their clerks which amount to abuse of their monopoly position to the detriment of the public. That brings me to the second feature of our chambers which is relevant. We earn most of our fees on legal aid, civil and criminal. We see a side of the barristers' profession which noble and learned Lords on the Bench have perhaps not seen for many years. We see how barristers and barristers' clerks maximise their profits and percentages and switch cases from barrister to barrister the night before the case; and how they turn away legal aid work, making a mockery of the cab rank rule. It is significant that 1397 it is only now, under the impetus of the Green Paper, that the Bar is saying that it should be a duty to take on legal aid work.
§ Lord Gifford
It is not rubbish. Many members of the Bar will take legal aid work, but many will have their clerks say that they are unavailable because the pay is not good enough. We see how barristers, especially at the junior, less trained end, fail to establish any rapport with the client, partly because they are briefed so late in the day, partly because there are such gulfs in experience, in class, and often in race, which makes it impossible for them to do so; and partly because many of them do not seem to try.
We see how solicitors in many cities of this country are at their wits' end to find barristers whom they can trust to present a case with the persuasiveness which is of course the essence of the profession. There is much bad advocacy in the lower reaches of the Crown Courts where many of our citizens experience the Bar.
The Green Paper proposals will present a challenge to that type of barrister. Solicitors and their clients will have the option, if the service they receive from the Bar is not good enough, or if the client's interests warrant it, to do the case themselves. In short, there will be a welcome shaking up of advocacy work at the junior end of the profession and an opening up of opportunities to younger people, to the betterment of the public service. At the senior end, where the public service is already good, I see no reason for change.
Having expressed my support for that aspect of the Green Paper perhaps I may point to two areas where I have serious reservations. First, like almost every noble Lord who has spoken, I cannot accept the proposals for the certification of advocates. The issues have been confused, especially by the leaders of the Bar. They have rested too much of their defence upon the existing restrictions on rights of audience, where they are frankly defending self-interest, and less on the question of certification, where they are defending a matter of principle.
I agree that those who practise as advocates in the courts should have had a course of training in the craft. I should be happy to see that principle embodied in statute. However, the Government, who are so often the target of advocacy, must not be the body to lay down any part of the conditions under which advocates practise.
The complexity of the proposed certification procedure seems more likely to restrict client choice than to guarantee competence. Competence is not secured by time serving, which seems to be the criterion for receiving the unlimited advocacy certificate. The complexity of civil certificates and criminal certificates appears to be likely to prevent members of the public from having people to represent them who should be able to do so. For instance, if a person who has been acquitted was satisfied with his barrister, why should that client be unable to retain the services of that barrister in the 1398 civil courts if there is a question of a civil action against the police?
The second area was eloquently touched on by my noble friend Lord Irvine of Lairg. The whole objective of the Lord Chancellor is to see that the public have the best possible access to legal services. I find it deeply disturbing that the noble and learned Lord the Lord Chancellor, who says that in the Green Paper, is at the same time responsible for imposing curbs and restrictions on the legal aid scheme which cut down that very public access. I refer to cutting down the remuneration of solicitors, cutting down the numbers eligible, enabling the Legal Aid Board to make contracts which are likely to deny choice to the client and failing to fund law centres. I had the honour to found the first law centre; I am deeply distressed at the failure to provide proper funding.
If the Green Paper is to have effect only in the private market, I would not find myself ready to support its major proposals. However, if the noble and learned Lord, in implementing it, maintains the principles of the legal aid scheme, especially the principle that a legally aided client has the same free choice of solicitor and counsel as the fee-paying client, then there are many aspects of the Green Paper which will do a service to the public.
As I say, I shall continue to be a barrister, but I hope to be part of a better service to the British people.
§ 4.37 p.m.
§ Lord Grimond
My Lords, long ago, at the beginning of the debate, the noble and learned Lord, Lord Elwyn-Jones, remarked that the proposals contained in the Green Paper had sprung out of the blue. Several speakers since then have complained that there has been insufficient time to consider the proposals, that they come as a surprise and that much longer is required to consider them. Only people matured in the Inns of Court, and used to their pace, could maintain that the proposals have sprung out of the blue. All my life, there has been endless talk of the need for some change in the legal system. We have had the Marre, and I do not know how many other, reports. The Green Papers appeared in January. It has not been noticeable in the debate that the judges, for instance, are tongue-tied about them. They have lodged some eloquent and cogent criticisms. It has not been apparent that they have been unable to think out their views.
Like others who have spoken, I say that we owe a great debt of gratitude to the Lord Chancellor. If legal reform had been left to barristers, it would have been on the back burner still. It is true that one or two odd reforms have been made. I understand that silks do not need juniors; but I also understand that in fact they always have them. I understand that if one leaves one's circuit, or Quarter Sessions, or whatever they may be nowadays, one no longer has to be made honest by having a member of that circuit or Quarter Sessions appointed with one. I am sorry to hear that, because the first five guineas that I made at the Bar was by holding the hand of the late Lord Dilhorne. It was considered improper for him to appear outside his circuit. I believe that that has been abolished.
1399 But the main complaints about the administration of the law have required a Lord Chancellor to come forward and say, "At any rate here are some Green Papers and some definite proposals that we can discuss". Of course the danger is, such is the general incompetence of the country, that any reform will be bungled. It was the almost unanimous opinion of everybody that the rating system was the worst conceivable system for raising local finance until the Government invented the poll tax. Therefore one must be very careful about reforms in the present state of the country.
However, as I understand it, this is a Green Paper, a consultation paper. It is not a White Paper laying down exactly what is to happen. I believe and hope that a lot of what has been said in this debate will eventually take effect and will improve the proposals. We must understand—and here I wholly agree with the noble Lord, Lord Goodman—that whatever we may think about the law, to a large proportion of the country the law is unsatisfactory.
Why is it unsatisfactory? They regard it as uncertain, unfair, unintelligible and far too expensive. It is a long time since a judge, I think, said that the law, like the Ritz, was open to everybody. That really is still the situation today. It is a Rolls-Royce service for those who have the money yet hardly provides a Model T Ford for some who do not have the money.
Nor does the citizen understand some of the no doubt very valid points which have been made during this debate. The independence of the legal system has been constantly stressed; yet the ordinary person notices that the Lord Chancellor is a leading member of a Cabinet. He notices too that the Home Office is deeply implicated in the administration of the law, and appears to suffer internally from all sorts of stresses due to conflict of interest. Anyone who has dealt with the Home Office cannot cross their hearts and say that it is a wholly satisfactory adjunct to the law. Yet if it suggests that we should have a Ministry of Justice, everybody holds up their hands in horror. I am not particularly in favour of a Ministry of Justice, but I do not think we should be too taken in by the slogans with which we are apt to cover what, to my mind, is a rather unsatisfactory state, outside the Inns of Court or indeed the law itself.
Again, I wholly agree with the noble Lord, Lord Goodman, that it is rather strange to hear the judges and barristers being upheld as the great bastions of liberty. One of the curious features of our country, and no doubt an agreeable one, is the deep reverence that exists for judges. I have no great experience of judges, but all my life I have known, liked and admired them. I have been a judge's marshal in my day and I have friends among them still. They are an admirable body of men, but they are not God. In point of fact they represent all sorts of different opinions and outlooks on life, and are bound to do so.
In so far as the law is unfair and incomprehensible, that is hardly the fault of barristers. It is a fault of Parliament largely; and all I would say here is that 1400 I welcome the protests which have been made by the judges about the modern drafting of laws. I think particularly of the words of the noble and learned Lord, Lord Simon of Glaisdale, but I hope they will keep it up, because it is a scandal that we should produce legislation which is unintelligible to the Lords of Appeal in Ordinary, much less to ordinary people.
There has been mention in this debate of the importance of judicial review. The noble and learned Lord the Lord Chancellor referred to it in his opening speech. What is judicial review? If it is vital to protect us from the power of the executive (as I believe it possibly is) we should know more about it. I have an idea that in the far-off days when I shared chambers with the noble and learned Lord, Lord Hailsham, we heard very little about judicial review. Now we hear a great deal about it, and I am very glad that we do. I have learnt a certain amount about it through debates here; but I wonder how much the ordinary person knows about it. How would one invoke it? It is the ordinary person, in relation to quite small matters, who very often suffers from the oppression of the executive. How does the citizen invoke this judicial review? It is only done, I understand, in the higher courts. I would suggest that if it is of great importance, as I believe it to be, there should be some way in which, if a person in a lower court feels that a matter has been raised which justifies judicial review, some sort of certificate should be given, and the person aggrieved should be entitled to raise the matter in a higher court at the public expense.
Regarding expense, by far the greatest criticism of the law is simply that it is too expensive. How does it come about that two women who are acquitted of shoplifting are faced with a bill for £20,000 for defending themselves? I do not know how that comes about. I am told that legal fees, except in the very top range, are not enormous—perhaps they are—so why is the law so expensive?
§ Lord Hooson
My Lords, would the noble Lord give way? He has referred to the case of the two ladies faced with a great bill. It is right to say that there had been a payment into court in that case of a certain sum, which they refused to accept.
§ Lord Grimond
My Lords, this appears to be a very typical lawyer's point. It has nothing to do with my point. What I want to know is: why should it cost £20,000 to defend them? That seems to be a different matter. Whatever the reason may be, there are two matters I would stress, one of which has not so far been raised in this debate. We should make it far easier for people who appear in person. When I was at the Bar such people were practically openly persecuted, and I am told they are not exactly welcomed now. Nothing is made easier for them. Yet if anyone is setting up a sensible system of law, one of the first things they would do would be to make it possible for people to argue their own cases. Secondly, we should give far more money to law centres and citizens advice bureaux. We should consider extending legal aid to all sorts of matters, 1401 particularly inquiries and so forth; and at inquiries I think we should probably forbid lawyers to appear, and ask people to appear in person.
As to the extension of the right of audience, I am all for it. I do not see why a person should not have whom he likes to represent him, within limits, so long as he realises what he is doing. As to the extension of firms to include lawyers, barristers, solicitors and others, I can see it should have advantages and it should make things cheaper. However, I am told that one result might be to cream off the best of the Bar into large firms in London and to deny smaller country firms the opportunity of getting a high-grade opinion. I rather hope that the noble and learned Lord the Lord Chancellor may feel able to say something more about that.
As to contingency fees, I think they are rather a red herring: I cannot believe they will make much difference. But in the modified form in which they exist in Scotland, in which I understand there is no question of getting a percentage of the winnings, so to speak, but simply your fee, I believe that they work moderately well. I also understand that somewhere under the carpet they are in fact operating in England, and that some people forgo their fees. I may be wrong about that of course and, if so, I withdraw it.
However, this brings me to the central issue. That is, to my mind: how far a legal system should depend upon getting hold of the highest legal talent: in fact, how far it should be gladiatorial rather than investigative. I would draw your Lordships' attention to an interesting letter to The Times dated 8th March written by the noble and learned Lord, Lord Scarman. I understand the noble and learned Lord has suffered a very bad fall. He is in hospital, and I am sure we should all like to send him our best wishes. I feel able to quote his letter because it is a very good exposition. It refers to a recent television programme about Marshall Hall. The case concerned a young prostitute who was accused of murdering one of her clients. Her solicitor went to Marshall Hall and asked him to take the case. Hall was at first extremely reluctant to do so—so much for "cab rank". However, he was eventually persuaded to do so because he was told that if he won the case he would achieve fame: not that justice would be done but that he would get on.
That is quoted by the noble and learned Lord, Lord Scarman, whom I deeply respect, as an argument for the present adversarial system. For the ordinary person it is an argument for exactly the opposite. The prostitute should not have depended for her life upon whether her solicitor could get hold of a particular advocate and the advocate should not have taken the case because he hoped thereby to achieve fame. In my view it is over time that we looked at the investigative system of law— —
§ Lord Campbell of Alloway
My Lords, on this cab rank let us nail the lie. I am on the cab rank; all of my friends who are still at the Bar, instead of being members of the judiciary, are also on the cab rank. I have never behaved in that fashion and neither have any of my friends. It is high time that somebody got up and said that publicly.
§ Lord Hailsham of Saint Marylebone
My Lords, would the noble Lord forgive me? It was my brother who wrote the biography on which the series was based. He has got that case wrong and he has misstated it.
§ Lord Grimond
My Lords, I thank both noble Lords for their interventions. Whether the case is right or wrong, it is interesting that the noble and learned Lord, Lord Scarman, feels that it is a powerful argument for our adversarial system. I think that it is a very powerful argument for an investigative system.
My last word is that I wish that the noble and learned Lord the Lord Chancellor would not talk about consumers. I do not consume my lawyer; I have not eaten him for years. I do not even eat his products. My relations with him are quite different from those with Sainsbury's or Marks and Spencer's. Ordinary people want to find a lawyer they can trust, whom they know and who will give them reliable and cheap advice in a system which they can understand. They do not want to, and cannot, shop around. One could not ask people where I live to shop around. It is nonsense. They do not want to go to Slaughter and May and, if they did go, they would get a nasty shock. They want an improvement by a simplifying of the law.
As I have said, I believe that the production of these papers is a thoroughly good move. They need alteration and improvement, but I congratulate the Lord Chancellor on his courage in letting us have them.
§ Lord Wilberforce
My Lords, my colleague here is disinterested. I may claim a fortiori to be more disinterested since I am further from the battle arena than he is. I join in this debate, not without hesitation, out of courtesy to the noble and learned Lord for whom I have a very great respect both generally and in relation to his attempts to improve the process of justice.
The vital areas, as I have often and boringly repeated in this House, are not the grand issues of substantive law reform but the issues of cost and delay. Those are the two matters that concern the individual subject. One may add a further issue which has been referred to by a number of noble Lords; that is the obscurity of the law, which is very great. That is not the fault of the legal professions; that is the fault of us, as legislators, and our draftsmen for not making the law intelligible. The legal profession has grown under that obscurity; it has suffered from it and has tried to overcome it, but it is not the guilty party.
In relation to the areas of cost and delay, very much is being done by the noble and learned Lord in continuation of what was started and continued by his predecessor the noble and learned Lord, Lord Hailsham. I should like to refer to a few of them: the Civil Justice Review, which is of monumental importance, the streamlining of legal aid, the extension of the small claims procedure, rationalisation of family procedure and the Children Act. In addition, a very important point which nobody has 1403 mentioned is the cutting down of the remand period during which people have to stay in prison pending trial.
The proposals in the Green Paper do not fall in that central area. Everybody agrees that they will not speed up the legal process by one minute and that they will do very little to cheapen it. We have heard of many generalities but the only concrete arithmetic that I have seen is a sum that has been done by Mr. Marcel Berlins which was published in a paper. He demonstrated with figures that the difference between a typical case where a barrister is briefed and a case where the advocacy is done by a solicitor is not very great. Indeed, in the latter case, where one man appears instead of two, it is in many cases likely to be slightly more expensive. However that may be, the proposals in the Green Paper are extremely important in the long term. They deserve a cool, hard look. I emphasise the adjectives "cool" and "hard".
I am not able to deal with many of the great issues; I must be content to express my general agreement with what has been said about them. I should like to refer to another letter from the noble and learned Lord, Lord Scarman, in The Timestoday in which he gives his considered proposals in relation to the Green Paper. In view of the sad fact that he cannot be here today, I am content to bring those proposals into the debate as comments with which I generally agree.
Equally, I cannot deal with the entire area of these papers in so far as they affect solicitors, a branch of the profession for whom I have the greatest esteem and as to which I find myself in disagreement with a number of the proposals in the Green Paper. I regret that this debate has got rather out of proportion. It has concentrated almost entirely and much too much on the position of the Bar and has neglected that of the solicitors. We have not heard so far any representative of the small firms of high street solicitors who are vitally concerned in the administration of justice. We look forward very much to the speech to be made by the noble Lord, Lord Coleraine; and the noble Lord, Lord Mishcon, is an army in himself and can speak for all sides of the profession.
I should like to deal with the subject of competition for two reasons. First, it is the key to the whole philosophy of the Green Papers. It was called by the Independent newspaper this morning the "buzz word". Secondly, I have had a little experience in relation to this matter because some years ago, in collaboration with the noble Lord, Lord Campbell of Alloway, and the noble Baroness who sits further down on the same Benches (who is not here today), we presumed to enlighten the public by producing some 600 pages on the subject of competition. I have had some practical experience in that area. Competition has been in our laws for approximately 40 years, since 1948. The principle of competition is a good thing and it has been carried out in relation to goods and services over that period. A number of cartels, price fixing agreements, resale price maintenance, time arrangements, etc. have been examined by various bodies to the great benefit 1404 of the legal profession but rather more doubtfully to the benefit of the consumer. Whether the consumers have benefited or not one must leave to the economists or perhaps to the judgment of the noble Baroness who is dressed in such an appropriate colour for today's proceedings.
The Government have decided to bring professions within the scope of the competition legislation. That is their decision as a matter of policy and we will see how it is going to be carried out. However, the important point is this: one cannot add professions as an item in the same way as one might legislate about rear seat belts when there has been legislation about front seat belts. Professions cannot be added to cartels as another item to be dealt with in the same way, on the same arguments and according to the same principles. That is an absolutely vital fallacy which underlies, to my mind, the Green Papers.
Let us just think for a moment what a profession is. I could not find a definition of a profession, but one can find certain characteristics of a profession. Professions normally involve a long training period which lasts over years and is carefully regulated. That training period is followed by a period of practical apprenticeship—what the French call a stage. It involves the acceptance of a code of conduct and ethics. It involves a self-contained disciplinary system with sanctions. It often, but not always, includes a fixed system of fees and limits on advertising. And very likely in this country and Europe, which are old countries, it involves a tradition going back some length of time. That is very often a strong tradition which exposes the profession, no doubt, to a certain amount of mockery. All of that taken together results in a corps to which one belongs as a member of the profession; that gives a status in society.
I shall quote the noble Lord, Lord Beloff, from a speech he made only this week. It is better to pay heed to these words than to my own because, as he is not a lawyer, he cannot be accused of partiality. The noble Lord said:Properly viewed, self-governing, autonomous professions contribute to the national interest by enabling people to express their own devotion to the particular tasks which they have to perform" —[0fficial Report, 5.4.89; col. 1167.]Those are wise words and very descriptive of what a profession is. So, when one decides to bring professions, within that meaning, under scrutiny, to be judged by a competitive test, one is concerned with far more than economic considerations. One is concerned primarily not with economic considerations at all, and certainly not exclusively with economic considerations. The question is: is one going to do damage to a valuable and important structure? That is the answer to the first principles argument. We are told that we start from first principles, and that we must try to see what follows from there.
However, one does not start from first principles in relation to a profession, one starts from the fact that one already has a profession, an existing structure which in itself and by its nature is in the public interest. Therefore one must consider the objections to it in quite a different way. My problem 1405 on the Green Paper, in which I find a good deal of constructive thinking, is that generally it does not seem to recognise that at all. It tells us in the introductory part that there is to be a new competition law, but it does not tell us what will be in it. In March 1988 there was a Green Paper on competition, and I understood that it was to be followed at about this time by a White Paper. However, no White Paper has apparently appeared, or at any rate it has not reached me, and we certainly do not know what will be in the legislation. Yet we are told in the Green Paper that the legal professions will have to be judged by the new standards, although we are not told what those new standards are. To some extent the Green Paper has already made up its mind in advance of those standards.
I recognise the difficulties of the noble and learned Lord on the Woolsack. He is not responsible for competition policy; that has to come from elsewhere. However, I ask him in all humility whether it would not be wiser first, before we go on to this new competition process of judging the professions and their practices, to debate in this House—we certainly shall want to do so—the broad lines of the new policy, and then see how they can be appropriately applied to professions in general and to our profession in particular.
I note also that no less a person than Sir Gordon Borrie, our very distinguished and enlightened Director General of Fair Trading, has expressed considerable doubts about this new prospect. All we have to go on are certain references in the Green Paper, and they are certainly disquieting. We find the standard jargon: market prices, value for money, cost effective, level playing fields, one stop shopping and all the jargon that has been worked out by the DTI over the years. That shows that the standard is to be one of short-term economic gain.
In paragraph 1.8 of the main Green Paper, we find a reference to "economic and technical progress", but no reference whatever to those values for which professions stand. I find myself very much in agreement with what was said by the noble Lord, Lord Hooson, in his excellent speech on this aspect of the matter. Then there is the proposal for licensed advocates which sheds a very great light, and a disagreeable light, on the future process. This problem of licensing seems to be something that has got into government thinking, because we have licensed conveyancers too. That is a very dubious experiment. The Government are now talking about licensed teachers. So it is one of these issues that gets into the thinking of the Government, as privatisation and competition have done. It was a very good idea to start with, but then it seems to have gone too far.
But the proposals for licensed advocates is in the end—is it not? —basically a denial of professional values. What it says is that one takes an examination on a limited range of subjects, one introduces a ration of practice logged up in a logbook; one adds a pinch of code of conduct and then the recipe gives one all one needs. That may provide an advocate of a sort, but it certainly will not provide a professional lawyer or a person who has any of the professional standards which one should be able to rely on. I find myself much in agreement with what the noble and 1406 learned Lord the Master of the Rolls said on this point. I regard this part of the proposals as extremely wrong and dangerous.
At the end of the day when one is considering restrictive practices, the only big one which really matters is the restricted right of action of the barristers in the High Court, and that which the Bar shares with solicitors in other courts. I am not going to argue that issue now as it involves far too many considerations. The Government will have to decide upon it and make up their mind. However, I beg the noble and learned Lord when he makes his very difficult decision, which I firmly believe cannot be made on competition grounds at all, to do so against the background that this concerns a profession of the nature which I ventured to describe as summarily as I have. The profession has a complex and delicate structure.
I wish to add one personal word in answer basically to what was said by the noble Lord, Lord Allen of Abbeydale, and to some extent by the noble Lord, Lord Goodman. I do this from the basis of a personal record. It is an amiable and amusing characteristic of the British to claim that they have the best of this, that or the other. We claim we have the best broadcasting system, the best television system, the best National Health Service and the best dog shows. One makes out of it what one wants. We may be correct, but it is a characteristic which we love to indulge ourselves in. I believe that characteristic to be true of the Bar, but I believe it to be correct in that instance. I have had quite a bit of experience in this field. I have been a member of a number of Bars in the Commonwealth. I have participated in their proceedings as a barrister. I have sat with judges in provinces of Canada and in states of Australia. I have also participated in proceedings in the wider Commonwealth, in India, Sri Lanka, Hong Kong and Singapore. I have an enormous number of acquaintances on the Continent with advocates and judges whose courts I have sat in in many instances. I firmly believe from personal conviction, not from talking to people and getting their opinions, but forming my own and from listening to advocates and meeting them that our Bar is outstandingly the best in the world. If one doubts that that is the case, one should ask the opinion of any judge of the court of the European Community. I firmly believe that is the case, and I believe it is a vital fact with which we must start. I know the noble and learned Lord will not dispute it. I am sure he fully appreciates the value of the Bar in this country and internationally, but I am not so sure that the writers of the Green Papers do. If that is right and we have here this excellent, outstanding legal profession, two consequences follow on. First, that means, as I have already said, that we must start from the basis that we have something that has a very good reputation and standing. If something works, do not fix it.
The second point which applies is that the Bar is a somewhat fragile organisation. People think of it as a solidly firm monopoly which cannot be displaced. It is a branch of a profession which has very serious dangers facing it. No one has talked very much about the young barrister doing legal aid work at the bottom of the scale. He has to struggle 1407 very hard. His fees are limited, he finds his expenses rising, he finds solicitors deserting legal aid work, and he finds that young men will not come in and take on the work at the scale of remuneration which is offered. At the top one finds the very best men being tempted away to other fields. They will be tempted away all the more if the Green Paper proposals go through. The Bar cannot be regarded as something you can change, tinker with, or tamper with with full impunity. It is something which you try to modify at your peril.
Not all the prophets of doom are credible. Many are very exaggerated. However, there have been some moving letters. I read one, as perhaps did your Lordships, from a Mr. Moseley writing in moving terms about the Bar's contribution at the time of the Aberfan disaster. There have been other tributes from people not connected in any way with the profession.
Where the effect of change is at best speculative—and it is speculative: it is a question of one opinion against another—where the competition rules have not been thought out and we do not know what they will be, where changes almost certainly will not result in cheaper or better advocacy, I believe with all humility that a period of further thought would be the path of wisdom.
§ 5.12 p.m.
§ Baroness Macleod of Borve
My Lords, it is always a very great privilege to speak following the noble and learned Lord, Lord Wilberforce. I am not learned in the law, but as a magistrate for about 30 years I had the duty of implementing most parts of the criminal law. It was therefore with mixed feelings of surprise and relief that I read the headline in the Daily Telegraph of March 22nd:Both sides of the bar hail proposals for greater choice".My surprise and relief were short-lived when I realised that the bar was one over which drinks were bought and sold.
The Green Papers which the noble and learned Lord the Lord Chancellor has asked us to discuss today have been brewing for some time, as noble Lords know. It was in 1986 that the Bar and the Law Society set up a committee, known as the Marre Committee, to look into the practices and structures of the legal profession. I understand that that was done because the members of both branches of the profession were aware that changes were needed, not only because of the acceleration of public demands, but also because of the increasing standards in public awareness. Unfortunately, the legal profession was unable to come forward with agreed recommendations and solutions. That is why today we are greatly indebted to my noble and learned friend the Lord Chancellor for having the courage and the wisdom to put the Green Paper before us.
The noble and learned Lord, Lord Wilberforce, referred to competition. I should remind him that the 1987 Conservative Party manifesto, on which the Conservative Party was elected to power, specifically drew the attention of the country to the need for competition in all facets of our lives. It stated: 1408Competition … promotes efficiency, holds down cost, drives companies to innovate and ensures that customers get the best possible value for money".It is because I believe in freedom of choice, which leads to competition, that I want to say a few words about the extension of the rights of audience.
To a defendant or a party in litigation it is of vital importance that the representative in court should have the benefit of the highest and most experienced advocate that the case and the court demands. His whole future may well hang on the persuasive words used on his behalf.
The Green Paper makes it quite clear that, through the full and limited certificates of competence which can be granted, the very high standard of advocacy is ensured. Although it will mean hard work and many appearances in the lower court, the fact that advocacy certificates can be awarded to more lawyers will, I am sure, be a great encouragement to them. However, I doubt very much whether any of them would aspire, as has been suggested today, to becoming High Court judges. The fact that certificates and the holders of them will be judged by the advisory committee will in itself reassure the public that only the highly qualified and most suitable applicants will be granted the right of audience and certificates.
For many years I was a member of the Lord Chancellor's advisory committee for the magistracy in Middlesex. Contrary to what some noble Lords have said about the proposed committee, that committee worked very well and, so far as I am aware, was unbiased.
The noble Lord, Lord Irvine, spoke very cogently about contingency fees. I can only say that I agree with all that he said. I am probably one of those people who earns just too much to be entitled to legal aid under the present arrangements. I certainly could not afford to go to litigation at my own expense. Therefore I would fall within that grey area which we know so well. Therefore, I wish that the law would share its knowledge and expertise with us at a price which we can afford.
My admiration for the legal profession at all levels in this country is second to none. I hope that in the light of the Green Paper proposals the legal profession will realise that change is its ally as well as ours.
§ 5.18 p.m.
§ Lord Goff of Chieveley
My Lords, I shall not detain your Lordships for long. However, I wish in particular to express my great sadness about the degee of confrontation which has developed between the Government and the judiciary about the Green Papers and the manner in which they have been presented. I believe that to be due to a combination of factors: the root and branch nature of the proposals, which are perhaps foreign to our traditions in this country for gradual change based upon pragmatic consideration; the still unexplained volte face from the acceptance of the Royal Commission's proposals; the absence of previous consultation; and the inadequate period for consultation, 1409 discussion and reflection and for the gradual emergence of, I hope, some consensus and certainly an informed opinion.
That situation has sadly led to a crisis of confidence which I believe must be defused. I also believe that some of the damage that has been done can be repaired by a fully adequate period of consultation.
This is not just a concern that is felt by practising lawyers, the Bar or the judges; it has been touched on by Professor Michael Zander of the London School of Economics in his evidence to the Lord Chancellor's Department. I wish to refer to it and to quote briefly from it because Professor Zander is no enemy of reform. He is no friend of the present structure and warmly welcomes many of the proposals of the noble and learned Lord the Lord Chancellor. In paragraph 3 of his report, he says:If the Lord Chancellor's Department now finds itself accused of having already made up its mind. it has only itself to blame. If it is genuine about wanting to give a fair opportunity for views to be expressed, it must allow more time for them to be collected".He makes other points and expresses them in language that I myself would not have chosen, but his conclusion is as follows:I believe that the only way to repair the damage undoubtedly done would be for the Lord Chancellor to make it known that there was no intention to legislate in the coming session and that accordingly time, say, until the end of July would be given for any further reflections on the issues raised".I respectfully endorse Professor Zander's conclusion. As has been urged in so many speeches in this debate, I beg the Lord Chancellor to give the proposal most serious consideration. If he were not to do so, his refusal would be widely understood as indicating an unwillingness to explore the practical effects of the proposals that he is now putting forward and the Green Paper would come to be regarded as a Green Paper with a large white middle.
There is little more that I wish to say, but I feel driven to say that I am troubled by two general matters about the Green Papers. First, I believe that there is an insufficiency of description of such merits as there are in the present system and of the many changes which have taken place over the years and which have been enforced both by the Bar Council and the Law Society. That has perhaps failed to present a rounded picture to the press and the public and has led to the professions being easily pilloried as being opposed to reform.
My second point is a matter touched on by my noble and learned friend Lord Wilberforce; namely, the proclamation of the virtue of competition as the sovereign remedy for all our ills. I do not believe that competition is at the heart of this matter. There must be an assessment of the qualified role to be played by competition in any reform of our legal services. There must also—perhaps most important of all—be an assessment of the practical consequences of any proposals that are based upon competition, especially if they are to be implemented as a package. If the present package were to be implemented as a whole, I should feel very concerned about the future of our legal system. In particular—I believe this view to be shared by many noble Lords—I do not think that it would deal with such matters 1410 as cost and delay which are recognised by many as the most difficult matters and most serious defects in our present system and, I believe, in practically every other legal system in the world.
On simple practical grounds, there are two particular proposals which, with all respect, I find to be objectionable. To my mind, the most objectionable is surely the proposal for multi-disciplinary partnerships. If they are open to members of the Bar, they appear to me to amount to a complete denial of an independent Bar. It is quite impossible and, with respect, I endorse the views expressed by my noble friend Lord Irvine of Lairg on that point. I understand that Sir Gordon Borrie has expressed the same opinion in the press.
The next most objectionable feature to my mind is the proposal to allow conveyancing by banks, building societies and other lending institutions. In my opinion, that would not lead to competition, but would promote a captive market for those large institutions. In addition, it could well lead to the demise of many high street firms of solicitors, to the detriment of the ordinary citizens of this country.
If those two comparatively isolated proposals were to be removed, the Green Papers would begin to look very different when we have to consider them as a package. However, I cannot help feeling that the whole structure of advocacy certificates, licensed advocates and all the rest has got out of hand. I believe that that is not due to any insidious motives on the part of anyone at all. I strongly suspect that it is due to an attempt to do too much. It certainly leads to some remarkable results. I need not go into them, but I certainly would not be here today because I would never have obtained a full advocacy certificate. The same applies to many judges and barristers. It also leads to many undesirable consequences and to some that are perceived to be undesirable by people whom I respect. I believe that this matter plainly needs to be looked at.
I respectfully agree with the noble and learned Lord the Master of the Rolls that too much emphasis is placed upon codes of conduct. No one ever created high standards of conduct by writing words down on a piece of paper. High standards of conduct are due to all kinds of other things. Statutory codes of conduct or codes of conduct may well be necessary, but they are not the key to the performance of barristers and solicitors.
Above all, I believe that we need time to absorb all those proposals, pick up the pieces, allow the dust to settle, abandon revolution and return to evolution, and perhaps not to attempt too much at one time.
§ 5.27 p.m.
The Viscount of Oxfuird
My Lords, I must first apologise to my noble and learned friend for not having been in my place at the start of the debate. It may well be that I have to leave early.
It is gratifying that this debate is open to others than those Members of the House whose lives have been led in the book-lined corridors of the Law for, as with every service, there is a customer and a supplier, and it is as a customer that I speak. The matter of concern to me is only in one area of the 1411 three consultative documents; namely, the meaning and practice of independence within the field of conveyancing. The noble and learned Lord, Lord Templeman, referred to that point in his speech. My point is solely one of my own experience.
Some years ago, I purchased a property from a developer through his appointed agent at an agreed price. The developer offered to arrange a swift conveyance through his own organisation. Fortunately, I did not avail myself of that offer and went to my own solicitor. It soon became apparent that the developer did not have title to all of the land upon which he had already built. It took a further two months before that title was forthcoming and the sale was completed. Without the independent advice of my own solicitor, my position could have been unfortunate, to say the least.
Today, the principle of market forces has been seen to result in improved quality at lower costs. However, in the matter of conveyancing, there arises the problem of conflict of interest. Where so much money is involved—we must remember that the purchase of a house is the major expenditure for any single person or family—that conflict can be controlled safely only by independent legal advice. If one thinks of a property developer, who may be a borrower, using the same financial source, wittingly or unwittingly, as his customer, and that financial source having the power to convey the property between the two parties, there must be a question-mark over the principle of that transaction in terms of conflict of interest. It is therefore surely essential to insist on independent legal advice in the matter of conveyancing.
§ 5.30 p.m.
§ Lord Ackner
My Lords, a recent announcement in an American newspaper was in the following terms:Instead of being arrested as we stated for kicking his wife down a flight of stairs and then hurling a lighted kerosene lamp after her, the Reverend James P. Wellman died unmarried some four years ago".Those who portray the present debate about the Green Papers as a 10-round contest between the solicitors and the Bar are equally inaccurate. The debate has centred substantially around rights of audience, as if rights of audience were a preserve and a restrictive practice imposed by the Bar for the Bar's benefit. It is a restriction imposed through the judiciary as a matter of procedure for the benefit of the litigant to ensure that in the higher courts he has the appropriately qualified advocate who is independent of any form of outside control.
The fact that the Bar has not given up the procedure is portrayed as intransigence. Memories are very short. The Royal Commission reported 10 years ago. It was set up partly because of pressure to bring in fusion. That pressure was exerted by my noble friend Lord Goodman, now absent from the Chamber, who gave evidence before the commission in favour of fusion. It is quite clear from the latter part of his fairly lengthy address to your Lordships' House that he is still of that mind.
1412 The Royal Commission reported that it was in the public interest that the two branches of the profession, namely solicitors and barristers, should remain. It believed that if they were to be fused together as one the cost of litigation would increase as big firms would proliferate to the disadvantage of small ones, access to advocates would be diminished and the quality of the advocacy would go down.
The commission considered in detail whether rights of audience could safely be given to solicitors in run-of-the-mill matters in the Crown Court without endangering the division of the profession and decided against it. Such a step would dilute the quality of the advocacy which, it said, was so essential for the proper and just administration of the law. Also, the Bar would be so injured as to be incapable of continuing as a separate profession. That opinion was endorsed by the 1983 White Paper, by the right honourable lady the Prime Minister in 1984, and by my noble and learned friend Lord Hailsham in the following year. The endorsement continued until within a few months of my noble and learned friend's appointment to the Woolsack. Therefore, the suggestion that the Bar, out of intransigence, has been fighting for a restriction which cannot be said to be in the public interest is a total falsity of the position. That ought to be emphasised.
If my noble and learned friend the Lord Chancellor thought there were a real possibility that his proposals would decrease the ability to find the right lawyer at the right cost and would involve a decrease in the quality of advocacy, surely the unseemly haste with which his proposals are intended to reach the statute book would have to stop. That real risk clearly exists as the proposals stand.
I have referred to the Royal Commission and its endorsement. I should like also to mention what the king of competition, Sir Gordon Borrie, said in 1986, nearly three years before these Green Papers were published. He said that if you allow barristers to go into partnership with solicitors—this statement was in the paper addressed to Ministers and will be found at page 77—then there would be,a substantial step towards fusion".Those were his words. The Marre Committee, to which reference has been made, said words to similar effect; namely, that one cannot expect to maintain the same division between the professions if one does precisely that.
To the surprise of no one who had read his paper in 1986, Sir Gordon Borrie returned to the charge and said, "If you do this there will be a considerable risk that the Bar will be seriously diminished in size, quantity and range of skills and that competition and clients' choice will be reduced". He said that that would be a very perverse effect of a policy designed to increase competition.
No one who has spoken today, except the noble Lord, Lord Goodman—and I have suggested why he should back them—has spoken in favour of these proposals. With that degree of danger as a warning, surely the Green Papers cannot proceed in this form. If the quality of advocacy were to be significantly reduced—and the Royal Commission said that it would be significantly reduced if rights of audience 1413 were opened in the Crown Court, let alone the High Court and all courts beyond—it would have obviously serious consequences for the administration of justice.
It is the strength and independence of the advocate that enables wise advice to be given that cases should not be brought; if brought, settled; or, if they are to be contested, limiting oneself to the issues that really matter and thereby saving time. It is on the competence and integrity of the advocate that the judge depends for his decision. If advocacy is to be substantially diluted, we shall have to follow the American system in which the judge has perhaps three law clerks, the top graduates of the year, assigned to him to check the voluminous papers that are full of the irrelevancies which are the inevitable by-product of bad advocacy. Decisions of the courts will be less reliable, the number of appeals will have to increase and the backlog and delay will be further exacerbated.
However, the matter does not end there. In the High Court judges' memorandum submitted to the Royal Commission, we said:That which weakens or detracts from the standards and quality of the advocates necessarily, in the long run, weakens and detracts from the quality and standards of the judges".The Green Paper states at paragraph 10.2:A strong and independent judiciary is one of the central supports upon which our liberties are based and upon which the rule of law depends. Moreover, our adversarial method of administering justice requires the judges at least at trial courts to be recruited on the whole from among seasoned advocates".I pass over those dubious reservations which I have emphasised. However, one does not breed a strong and independent judiciary save from a strong and independent body of advocates. If one ceases to have a strong and independent judiciary, it is the man in the street, who is meant to have better access under the Green Papers, who will lose the vital protection against abuse of power by the Executive and other powerful bodies.
A little over 30 years ago Mr. Justice Devlin, as he then was, in a lecture delivered in his capacity as president of the Bentham Society depressingly observed:The common law has now, I think, no longer the strength to provide a satisfactory solution to the problems of keeping the Executive, with all the powers which under modern conditions are needed for the efficient conduct of the realm, under proper control".He had not reckoned with the judicial activism of the noble and learned Lords, Lord Denning, Lord Reid, Lord Wilberforce, Lord Diplock, and, more recently, the noble and learned Lords, Lord Bridge, Lord Templeman and others.
In 1963 when your Lordships' House allowed Chief Constable Ridge's appeal against the decision of the Watch Commmittee to sack him without a hearing, and thus breathed new life into the rules of natural justice, the leading textbook on administrative law was a slim volume of 100 or so pages. It is now in its sixth edition—over 1,000 pages. The new growth which has caused this is judicial review. In six years the applications have gone up from 533 to 1,529. Currently there are 725 applications pending. Whereas in 1981 four judges were nominated to hear cases in the Crown Court list, there are now 18.
1414 Sir William Wade said this in his preface:Although this edition contains more examples than before of the witholding of remedies in judicial discretion and occasional comments on the over-employment of judicial review, these are no more than were to be expected in a subject seething with new ideas. They do not suggest that the judges are disposed to retreat from the high ground that they invaded so vigorously in recent years. In defiance of theoretical obstacles they have extended their empire by reviewing the exercise of the royal prerogative, the rulings of non-legal bodies such as the Takeover Panel, decisions which conflict with published policies or undertakings, and discretionary decisions which an earlier generation of lawyers would have considered impregnable. It might have been supposed from the previous decision that judicial intervention had been carried virtually to the limit but the courts have continued to spring surprises and they doubtless have plenty more in store".This development bears out the observations made by the noble Lord, Lord Goodman, in an article in the Sunday Times in 1966, albeit devoted to fusion, that:we have a judiciary of great wisdom, great fairness of mind and absolute probity".He added:It is to be doubted—and this is not a narrow chauvinistic claim—whether any country in the world possesses better judges viewed over the whole range of our judicial system".He concluded:The method of selection from a small élite of practitioners weighs the scales enormously in favour of our own Bench".But the small élite will as a result of the Green Papers have gone.
Let us not delude ourselves. A strong and independent judiciary, frequently exercising its power of judicial review, is often a most uncomfortable thorn in the flesh of the Executive. Ministers, and, perhaps more so civil servants who have advised them, do not like to be told that they have abused their powers, acted irrationally or failed to comply with the rules of natural justice, with the result that their orders must be quashed.
When my noble and learned friend the Lord Chancellor and I were guests of the Australian Law Society in Perth, Western Australia, some 18 months ago, we, and an audience of senior judges and lawyers, were somewhat severely lectured by the Attorney-General of Australia about the extent of judicial interference via the medium of judicial review into the activity of the Executive.
It must not be overlooked that in many common law countries the independence of the judiciary is protected by a written constitution. We have no such constitution. In this country this independence depends on a combination of rules and conventions and parliamentary practice, backed by the force of public opinion and by the tradition that it is the duty of the Lord Chancellor to prevent any interference with that independence by members either of the legislature or the Executive, a duty which the noble and learned Lord, Lord Devlin, in a recent and compelling article considered had been somewhat neglected in the Green Papers. The absence of a written constitution emphasises that this independence cannot be taken for granted, in particular when the power of the modern state has increased enormously and governments have become more authoritarian.
It would therefore be irresponsibly naive not to view the Green Papers with particular care, bearing 1415 in mind that it would be convenient for the Executive to return to those somewhat depressing days mentioned by the noble and learned Lord, Lord Devlin. However, as Lord Atkin remarked some 60 odd years ago, "justice and convenience are seldom on speaking terms".
Perhaps I may say that all this is not just imaginative anxiety. It is the High Court Bench which is the stronghold of judicial independence. It is not without significance that about 18 months ago in the consultative paper on the civil justice review issued by the Lord Chancellor's Department, an ill disguised attempt was made seriously to weaken in the long term the strength of the High Court Bench by proposals which would have resulted in the abolition of the circuit system as we now know it and the transfer to the county court of virtually all High Court work. As a result of strong judicial pressure, well recorded in memoranda submitted by the Court of Appeal, the High Court Bench, and a few timid and deferential written submissions of my own, these proposals were deleted from the final version of the report.The existence, strength and vitality of an independent profession and public confidence in it are fundamental to our freedom under the law".I claim no authorship for those sound sentiments which impliedly repudiate that Executive convenience has any part to play in the administration of justice. Noble Lords may think that they sound as though they come from a bygone age. They would be wrong.
§ Lord Gifford
My Lords, I am following the arguments of the noble and learned Lord with the greatest of care. I share many of his sentiments about the fundamental importance of an independent Bar and therefore judiciary. However, why does he think that the independent Bar will not continue on merit following the proposals in these Green Papers?
§ Lord Ackner
My Lords, I thought that I had expressed myself very fully. I quoted Sir Gordon Borrie. I quoted Marrre. Since my noble friend gives me the opportunity, I shall quote from a letter—reference to which I had omitted—received yesterday from the former Chief Justice of Australia, well known to your Lordships, Sir Harry Gibbs. I had sent him the Green Papers. He says this:A recent phenomenon in Australia, and I believe also in the UK and elsewhere, is the formation of the mega-firm of solicitors. Now, in Australia, firms of solicitors, enormous in size, span the continent and seek to command the commercial work of the nation. Their aim, which is undisguised, is to be self-sufficient in all the specialties of the law. If a right of audience in the superior courts were given to a class of advocates who might be either barristers or solicitors (or neither), and barristers and solicitors were permitted to practise in partnership, the consequence would certainly be that each large firm would have, among its members, its own advocates. The choice of the smaller firms in briefing counsel would be reduced. In the end, the best men and women would be attracted by the security and other advantages which the large firms could offer. It would be optimistic to expect that the provision of independent services of advocacy would survive".1416 He ends his letter with the dreary prognostication that not only would the independence of the Bar go, but also would its very existence. I hope that that answers the inquiry which was raised.
§ Lord Goodman
My Lords, I wanted to ask my noble and learned friend whether he had read a work called The Divided Legal Profession, which is an Australian publication and deals most faithfully with this question. I warmly recommend it to him.
§ Lord Ackner
My Lords, I am grateful for that recommendation. I believe that my letter is a great deal more up to date. It comes from a Chief Justice of enormous repute and vast experience, but I am grateful for the intervention, as I always will be.
The statement,The existence, strength and vitality of an independent profession and public confidence in it are fundamental to our freedom under the law",is a quotation from the White Paper. It represents the Government's first response. However, as we all know, a week is a long time in politics. It is, alas, political considerations, political dogma and doctrine which are about to do untold harm to the future quality of the administration of justice in this country.
In conclusion, in the speech of my noble and learned friend the Lord Chancellor delivered on 6th March, he said:It would be a brave Lord Chancellor indeed who would be prepared to ignore informed and well-reasoned advice from the judges".I hope that he will, on reflection, agree that it would not be bravery but obdurate in responsibility.
§ 5.52 p.m.
§ Lord Lloyd of Hampstead
My Lords, one thing is certain and that is that the legal profession does not lack critics. But at the same time it possesses, as has been reiterated over and over again this afternoon, two admirable features. The first is that of independence, both judicial and professional, and the second is the very high degree of integrity which applies to all branches of the profession and to solicitors equally with barristers. However, one cannot overlook the fact that, even though we may have, as the noble and learned Lord, Lord Wilberforce, reiterated, the best Bar or the best system in the world and though, as is often said, it is a thoroughly Rolls-Royce system, we have to pay the price for that system. We must not forget that the legal system that has developed is extremely expensive and is not easily accessible to the ordinary man in the street.
The great problem is how the costs are to be kept down. Many attempts have been made. I remember when some years ago Lord Evershed chaired a committee which went into these matters in great detail and made many recommendations. But nothing came of it in the end. Costs continue to rise all the time. In their Green Paper the Government, perhaps not uncharacteristically, pin their faith on increasing competition as the way in which costs may be brought down. Unfortunately, they do not give any facts or figures or elaborate elucidation in the Green Paper as to how this may be achieved. 1417 There seem to be many doubts about it. For example, it may be right but it is not obvious that putting solicitors into litigation will necessarily be cheaper than having barristers. It is a complicated business. We have already been reminded by one or two speakers of the effect of the Financial Services Act, which we were told would reduce costs. But, unfortunately, as the small investor knows to his cost, he is now having to pay much higher fees than he did under the old system. That is not to say that the new system may not be better but it points to the intractability of reducing costs.
In this context also one cannot but express some regret that the Government have not given more attention to extending the legal aid system and the category of legal aid centres, which are ways of bringing the law within the reach of the ordinary man in the street. That would possibly be more effective than the procedures to which the Government have pinned their faith.
Having spent some 50 years in law myself, as student, practitioner at the Bar and academic, but having now been retired for some years and therefore finding myself at some distance from the heat and dust of the daily hurly-burly, I hope it is possible for me to look dispassionately at one or two of the issues raised in the Green Paper. I shall do my best to be as brief as I can in view of the large number of speeches which still remain to be delivered.
First, I shall say a word about solicitors as judges. I was interested to note from the evidence of this debate so far that the opposition to that concept seems to have lost a considerable amount of steam. The argument in favour of admitting solicitors as potential High Court judges and above has now become irresistible. That does not mean that there is likely to be any sensational change because, as seems to be generally recognised, there are a number of outstanding solicitors. It would be invidious to mention names although the noble Earl, Lord Longford, mentioned one or two. It is obvious to all of us that a number of current solicitors would make admirable High Court judges, but the number can only be fairly small. For this purpose one does not altogether see the need for an elaborate vetting procedure or a complicated bureaucratic system of certificates before the Lord Chancellor can decide that a certain solicitor is sufficiently able and qualified to perform the very difficult role of a High Court judge.
I want also to say a brief word about the right of audience, which as I gather has been much more hotly resisted both by members of the judiciary and by members of the Bar. Of those so-called restrictive practices which affect the Bar, probably the most important is the right of audience before the High Court. The suggestion is made that in some way the whole future of the Bar will be threatened if this change comes about and—even more important perhaps—that the independence of the judiciary will be invaded.
These are not easy matters and one tries to reach an impartial conclusion. However, good advocates will always be needed and there will always be a flow of able people who will wish to perform the role of 1418 advocate in a way which has been traditional at the Bar. Although one might contemplate exending that right to solicitors, one feels that the Bar will remain the main source of advocacy.
There are a variety of reasons for that. Making such a change will probably increase the number of young people who will become solicitors and who might otherwise have wished to become barrister advocates. However, it does not seem probable that that will take effect on a large scale. First, large firms are unlikely to wish to employ a large number of house barristers. Small firms would find it impractical and too expensive to do so. They could not possibly cater for the whole range of cases with which a firm might have to deal. From those firms' point of view, it would be much easier and cheaper to continue to employ independent advocates.
Moreover, there is the question of lifestyle, as it is sometimes referred to in America. A would-be young advocate will be attracted by the more independent life of a barrister as against that of a solicitor. There is the freedom from organisation and office work and the fact that he can "do his own thing" without being part of a great office set-up. That will always attract a fair number of energetic, enterprising and able young people.
I know that in recent years the Bar has done a great deal to make advances but it still appears that it does too little to encourage new recruits. The real disadvantage that the young will suffer, and the factor which will tempt them to go into a solicitor's office rather than to the Bar although they wish to be full-time advocates, is an economic one. More economic facilities could be placed at their disposal in relation to fees, facilities for acquiring a place in chambers, sharing work with other members of chambers and perhaps (to mention the dreaded word) "partnerships" with other barristers. I do not refer to multipartite partnerships, about which there may be considerable reservation as affecting the character of the legal profession and which are probably not easily compatible with the ordinary life of a barrister as we now conceive it to be.
I should like to say a few words about firms of solicitors. If all the proposals in the Green Paper are implemented, I believe that there will be a certain threat to the continuance of small high street firms of solicitors. One may well find that so much competition—not all of it fair—is pressed upon the struggling high street solicitor that he may find it difficult to maintain a viable position. Therefore, one hopes that the noble and learned Lord the Lord Chancellor will give careful consideration to the implications for that aspect of the solicitors' profession upon which our whole system depends.
The ordinary person has access to the law through those solicitors. One cannot envisage a situation in which he must go to big city firms: it would be utterly impractical and far too expensive. It would mean that the individual practising barrister would lose one of his main sources of legal work because he would not have available the small firms which would normally provide it.
I should like to comment briefly on one other matter; namely, legal education. Criticism has 1419 already been raised by a number of noble Lords about the perfunctory way in which the issue was discussed in the Green Paper. I do not claim to have a close contact with universities nowadays. However, I understand that in those circles there is a definite apprehension that the kind of organisation proposed in the Green Paper, with an advisory committee largely weighted in favour of the Civil Service and including a strong lay element, probably consisting of businessmen, would be a disquieting method of supervising the education provided by the universities which is a basic element in every lawyer's instruction. It would affect the autonomy of the law teachers' profession because it might involve laying down rules and conditions to govern that education with the academic side having little say on the committee. I concede the fact that it is contemplated that some members would be drawn from that area, but they could easily be overruled by the more powerful elements.
Finally, some noble Lords have referred to the strong attacks that have been made on the present Lord Chancellor and on some of his proposals contained in the Green Paper. I share the regret that such attacks have been made. They appear to be unwarranted and to go a good deal beyond the fair criticism of what are, admittedly, important and sweeping reforms.
However, having said that, I share the misgivings expressed by a number of your Lordships on the question of undue haste. The noble and learned Lord the Lord Chancellor appeared to place some reliance on the well-known utterance of Dr. Samuel Johnson, who said, "If you know that you are going to be hanged in a fortnight, it concentrates the mind wonderfully". Of course, the danger of relying on that expression has been that it has perhaps encouraged the belief of the Bar that it really will be hanged in a fortnight. For my part, I exculpate the noble and learned Lord the Lord Chancellor completely of any such intention.
One ventures to urge that the pace of this reform, if it is to be carried out, does not need to be pressed on with with such a degree of urgency. After all, there is still a very great deal of detail in the Green Paper which appears to need full consideration by those most competent to study it. I find difficulty in understanding why the Government cannot concentrate on the production in some months' time of a White Paper which can discuss all those points which have raised the considerable unease which has been legitimately expressed by the Bar, by the judiciary and in other quarters. If it turns out that the effect will be that the legislation will be delayed for a few months, surely it is more important to get it right than to indulge in excessive speed. After all, as has been pointed out by a number of speakers, these proposals are likely to be irreversible. We should hesitate before we introduce irreversible changes without the fullest possible exploration.
Therefore, I add my humble voice to the pleas for a little more time, despite the fact that I recognise that some of these issues have been on the tapis for a very considerable period. At the same time, we need more time.
§ 6.12 p.m.
§ Lord Reay
My Lords, the first substantive words of the much referred to report of the Marre Committee on the future of the legal profession, published in July last year under the title, if I may remind noble Lords, of A Time for Change, stated:If the legal profession and the professions generally, do not initiate appropriate change, then it will be forced upon them.The committee saw three reasons why that should be so: first, because over the past two decades successive governments have placed increasing emphasis on the need for the professions to dismantle restrictions traditionally held to be essential to uphold professional standards; secondly, because of a growing awareness of the need for realism about the limits on public funding; and thirdly, because the legal profession itself felt it right to reappraise traditional values.
Yet, despite that appreciation of the historic forces impelling change, the committee felt able itself to make few recommendations. The only extension of the right of audience recommended for solicitors in the Crown Court was opposed in a note of dissent. The committee temporised with some suggestions but on most it voted to maintain the status quo. Frequently in reading the report one has the feeling that the instinctive response of the committee to any problem is to call for more public funding, and in particular more legal aid.
Of course funding is the problem. The total legal aid bill in England and Wales rose to about £400 million in 1987 from a level of £100 million in 1979–80—a rate of progress bound to alarm any responsible government. That was despite heavy downward pressure by the Government on remuneration for legal aid work. That has produced a solicitors' flight from legal aid work, as the Marre Report showed, and has apparently led to problems within the Bar over barristers refusing legal aid work and so infringing the cab rank rule, as my noble and learned friend the Lord Chancellor highlighted.
All the while there is constant pressure on the Government to extend legal aid in every direction. At the same time, the number of those eligible for legal aid must have fallen. The Marre Committee appeared to accept an opinion that had recently been published in the Law Society Gazette that by that time only just over half of the population qualified for legal aid—and I believe that that figure was referred to again today. Certainly, an increasing standard of living must have carried a number of people out of the entitlement limits.
While on the one side there has been pressure on funds available, on the other the demand for legal services has been increasing. People are less willing than they once were to accept everything that happens as being either the will of God or the inscrutable intention of a Government who know what is best. Part of that demand is met, as the growth of the Bar and solicitors' profession over the last decades indicates. A large part is unmet and will perhaps always be unmet, and a part is unmet and should be met.
The majority of people cannot sensibly contemplate going to court. I should like to give one example 1421 from personal injury cases to illustrate how expensive going to court can be. Personal injury cases account for 45 per cent. of all High Court trials. The Civil Justice Review Body tried to discover the costs of such litigation in a sample of such cases as a proportion of the compensation awarded. It found that in the High Court the combined costs of plaintiff and defendant amounted to 50 per cent. or 70 per cent. of the compensation awarded depending on whether the calculation was based on taxed bills or solicitors' reported costs. In the county court it amounted to 125 per cent., or 175 per cent. of damages awarded, depending on the basis of calculation. That surely shows how disappointing the self-defeating litigation can be.
I do not believe that it will do to leave the situation like that without remedy. The introduction of contingency fees would provide at least a partial remedy. Whatever its other side effects—and I confess that I have very considerable doubts about those—it will nevertheless enable some litigants with good cases to take them to court then they would otherwise not have been able to afford to do so. If contingency fees are to be rejected, what is the alternative? What else is suggested to enable non legally-aided claimants to obtain redress without risking financial ruin?
There perhaps are alternative courses of action. I should like the feasibility of a no-faults scheme to be tested. At the cost of higher insurance premiums that could remove certain classes of action from the courts altogether. If that could be achieved, perhaps it would be the best solution of all. However, I repeat: let us hear from those who find the idea of contingency fees abhorrent as to what they would like to do instead.
As regards conveyancing and the plight of the small solicitor, I am reminded of the time when we were told that the corner shop would disappear if supermarkets were allowed to sell whatever goods they liked at whatever price they liked. Of course, some did and for them and their clients that was a sad and sorry experience. However, it cannot be denied that supermarkets brought great benefits to the public. The corner shops are still with us fulfilling other needs. I wonder if the Government should have to treat small solicitors as though they were a social service, funded by a protected position on conveyancing. Of course, as the Government are seeking, there must be safeguards to ensure fair competition. The noble and learned Lord, Lord Templeman, raised objections which I for one certainly want to see answered.
It would be wrong to give the impression that nothing is ever done to improve the public's access to justice. The small claims court, for example, described by the Criminal Justice Review Body as the most widespread and radical innovation in civil justice in the past 15 years, handled 45,000 cases in 1986. Its operations are described in the Criminal Justice Review Report. It operates in a non-traditional way. Hearings are informal. The registrar conducts proceedings in whatever manner he thinks fit and legal representation is permitted but not required. The Criminal Justice Review body recommended— —
§ Lord Reay
My Lords, I stand corrected. The Civil Justice Review Body recommended an interventionist role for the registrar, lay representation for the client if he so wished and an increase in the limit to £1,000 for cases which can be heard there.
It seems to me, therefore, that progress can be made towards making justice more accessible, provided at least that traditional paths are foresaken. In this context I very much welcome a passage in the speech which my noble friend Lord Alexander of Weedon made to The Times forum conference on the Green Papers on 15th March. He said:We need wherever possible to encourage alternative dispute resolution. We need to consider whether we pay too high a price for our adversarial system and could sensibly and efficiently adopt some aspects of the continental system".This point about the expenses inherent in our adversarial system was implied in the remarks of the noble Lord, Lord Hooson.
I echo those words of my noble friend Lord Alexander. We in this country will not be able to fashion a system of justice suitable for the modern world unless we are willing to look out as well as in and backwards; and unless we look also among our neighbours instead of showing little interest in other countries' legal systems unless the country is a common law country and therefore at least 5,000 miles away. Our continental neighbours have the same problem as ourselves of a growing demand for legal services thwarted by an inability to pay for them. But to them we sometimes appear to have equipped ourselves with a special handicap.
Where money is little or no object, the law is perceived to work marvellously well. Best selling novelists or pop stars suing tabloid newspapers, international companies for which legal action is a part of daily life—for them justice of unassailable quality is available. I would not say that it is readily available because they may have to wait some years for it, but it is available. For the rest, a British trial with its immense concentration of highly trained talent, with almost unlimited oral pleading spread over days or weeks, seems a luxury from another age; one that cannot any longer be paid for in the general mass of cases, whoever picks up the bill.
The Bar is a crack élite, and I use the word "élite" without any offensive intent. It is a relatively tiny force of high-class professionals, though if Mr. Justice Lawrence is to be believed some are of higher class than others. We need such a body. I am sure we shall always have such a body. It has flourished mightily in recent decades. I do not believe talk about its imminent demise. The Bar has continued to expand even where rights of audience have been extended to solicitors in places as far apart as Cornwall and New South Wales, as we have heard today.
But should the Bar have a pleading monopoly? There is another expensive British product, also of legendary quality and also famous throughout the world—the Savile Row suit. But do we give Savile Row a monopoly on making suits? If we did, I suggest there would be as many people without clothes as there are today unable to obtain justice.
1423 The Government have been very courageous to introduce these proposals. The legal profession does not in all respects provide an adequate service to the public because it does not provide a service which is as widely available as it should be. I think that progress should be made at a faster pace than it has tended to be made in the past towards introducing greater accessibility to justice. It is with the hope and belief that this would be the ultimate, even if not the immediate, effect of my noble and learned friend's proposals that I give them my broad support.
§ 6.25 p.m.
§ Lord Benson
My Lords, I declare an interest in that I was chairman of the Royal Commission on Legal Services from 1976 to 1979. We made certain recommendations and, as has already been pointed out, in 1983 the Government under the present Prime Minister and the last Lord Chancellor but one approved the majority of those recommendations. The Green Papers reverse not only the recommendations but the approval given in 1983.
I speak tonight as I spoke in 1979 on behalf of the users of legal services. The only principle we have to consider today is what will improve the services to the public. The Green Papers are not founded on that principle. They are founded on the political dogma of competition and a large number of unsupported assertions. I believe that if they are followed in their present form the Green Papers will debase quality, reduce competition, and impair the public interest in many different ways.
I have time to speak on only four aspects. First, the Green Papers refrain from saying that there is already strong competition within the legal profession comprising 6,000 barristers and between 8,000 and 9,000 firms of solicitors operating from over 11,000 offices in different parts of the country. One of the aims of the Green Papers is to uplift to the status of lawyer a large number of para-legal services which now exist in the hope and, I suppose, the belief that in due course they will provide competition for the legal profession proper, comprising barristers and solicitors.
The para-legals designated for this purpose are all those who give legal advice for reward or who wish to engage in advocacy. They are listed in the Green Papers. They comprise notaries, legal executives, licensed conveyancers, patent agents, insolvency practitioners, banks, building societies, accountants, chartered secretaries, law centres, Citizens Advice Bureaux, trade unions and the Royal British Legion. The list is obviously inaccurate and is manifestly incomplete.
The conduct of the legal services of this astonishing bag of legals and para-legals will be dominated by the Lord Chancellor supported by a raft of civil servants, the majority of whom will never have been engaged in legal practice or, indeed, in a para-legal service. The Lord Chancellor will erect a further barrier of bureaucracy by a part-time quango called "Legal Education and Conduct". By statute the majority of those members will be lay members. The blind, by statute, will be leading the blind.
1424 The control and conduct of this mixed bag of trained and half-trained lawyers will be exercised by specifying the education and training to be adopted, issuing codes of conduct, setting professional standards, deciding the appropriate specialisms, considering the fitness of the governing bodies and dictating the arrangements for the issue and monitoring of advocacy certificates—indeed every phase of legal and para-legal work. This dirigiste policy more suited to a Marxist government will involve a great host of government restrictions and a large bureaucracy. The proposal is as ludicrous as it is alarming. It virtually assures a ragged and uneven quality of legal service for the public.
Secondly, another damaging effect of the Green Papers is to erode the independence of the legal profession in many different ways. Independence is the most precious obligation and privilege of the professional person. The uncontested evidence given to the Royal Commission was that it was the quality most prized by the public who sought legal advice. Independence is particularly important in the legal profession because the scales of justice have to be held evenly by all those engaged in it. By virtue of the Green Papers, the Law Society and the Bar, like the para-legals, will become creatures of the government to do their bidding. The whole of their business will be dominated by government. That is unhealthy and dangerous. The purpose of the legal profession is to be independent. When necessary it is important in the public interest that the legal profession should oppose the actions and decisions of government. If this country believes in freedom under the law and freedom under governments yet to be elected, it is imperative that these provisions be reversed. Let it also be remembered that as governments change there will be increasing pressure for the office of the Lord Chancellor to be abolished and for his place to be taken by a Minister of Justice in another place.
The legal profession has been independent of government not for years, not for decades, but for centuries. That independence will be lost by imposing rigid government control in the mistaken belief that it will create competition.
Thirdly, one of the aims of the Green Papers is to mix barristers and solicitors together so that they may conduct their business in partnership. Nothing is to be gained by that device. Sooner or later it will inevitably lead to fusion of the two branches. That will remove the independent objective advice of the Bar. It will reduce the specialisms available and the freedom of choice open to the user and the public. It will often increase costs. The uncontested evidence before the Royal Commission was that the one feature of the law most prized by the users of legal services was the right to go to a strong and independent Bar when the need arose.
The question of fusion came before the Royal Commission. I paid a special visit to Washington to consult the Chief Justice of America, the honourable Warren Burger, and his officials, to ascertain the facts. I invited him to come to London which he very kindly did, so that the 15 members of my commission could question him in person in order 1425 to find out his views. I took the same steps with the Chief Justices of Australia and of New Zealand. All of them said, "Do not tamper with the present structure of the legal profession. It is the envy and admiration of everybody abroad". That was startlingly brought to my attention last year. I was asked to go to South Africa to address the legal profession. The meeting was attended by the Chief Justice and the Minister of Justice of South Africa. It emerged from that conference that in a government that is almost wholly dirigiste, the only thin channel from that government to justice was the independent Bar. I threw the whole weight of the Royal Commission behind support for an independent Bar believing then that it was supported by the present Prime Minister and the last Lord Chancellor but one. I would have blushed with shame if I had known that within a few months these Green Papers would be presented before us.
In this respect I suggest that the way in which the Green Papers should have been drafted was to affirm the need to preserve a strong and independent Bar and to state the factors and principles that must be observed in order to maintain that Bar and to sustain it. In addition they should have been drafted to ensure that there was the power and ability to recruit students of the highest quality. Another consequence of fusion, aided by the government's proposals on conveyancing, will be to sound the death knell of a large number of small firms of solicitors up and down the country. That will be to the great disadvantage of the public. Here again, the uncontested evidence before the Royal Commission was what this country needs is not less access but more access to lawyers. When I speak of lawyers, I mean trained lawyers and not half-trained para-legals.
Fourthly, the quality of the judiciary is of outstanding importance if the public is to continue to have belief in the administration of justice. The trend of the Green Papers appears to suggest that in future they will permit persons who do not have the capacity or the experience. They say in terms that they may be neither barristers nor solicitors. What is needed is a much more professional method of selecting and appointing judges and, once appointed, providing them with training so that they may be kept up-to-date during their tenure of office. The Green Papers have been crudely prepared and presented without consultation or the necessary research and without the benefit of practical experience.
For my part, I have nothing but unstinted admiration for the record of this Government in the past 10 years for raising this country from the morass in which it was wallowing. These Green Papers have damaged the Government's image, particularly in the eyes of those who are familiar with the process of law and the administration of justice. They have been condemned by the users of the legal services; they have been condemned by the judiciary and by lawyers of the highest integrity and learning who have spent the whole of their lives in the administration of justice. The only way out of this difficulty is to halt the Green Papers where they are for a proper period of consultation and research. That consultation and research should include indepen- 1426 dent members of experience and understanding. If that is done it will avoid the pitfalls into which the Green Papers have fallen. If that period of consultation and research is properly used I am quite sure that a very large number of proposals will come forward on this issue which will greatly improve the whole process of the law which is at present too costly, too slow, too ponderous and not up-to-date. That is the area in which the Government should concentrate.
§ 6.40 p.m.
§ The Earl of Onslow
My Lords, it is almost impossible to follow a speech of that quality without intense nervousness. When the noble Lord, Lord Benson, talked about para-legal services and the fact that we shall be allowed to be represented in court, according to the Green Paper, by para-legalists. it could not help crossing my mind that I am not allowed to ask a para-farrier to shoe my horse. Under the law he has to be a qualified farrier.Woe unto you lawyers for ye have taken away the key of knowledge".Those words are taken from St. Luke.He saw a lawyer killing a viper on a dunghill hard by a stable yard".Those are the words of Coleridge.It is not what a lawyer tells me I may do but what humanity, reason and justice tell me I ought to do".Those are the words of Edmund Burke. Those are three of the nine references to lawyers in the Oxford Book of Quotations. None of the six remaining quotations is particularly complimentary. I am afraid that they show how the public tend to regard the legal profession. After all—the noble and learned Lord, Lord Hailsham, made this point—but for human unhappiness lawyers would be without a job.
The first reaction of the Bar to the Government's Green Papers appeared to those of us who are not lawyers to be slightly shrill. That by far the largest number of speakers in today's debate have been lawyers attacking the Green Paper may lead the public to the view that it is an exercise in special pleading. I hope that it will be possible to disabuse anyone of that view. The criticisms must be given the respect due to their undoubted intellectual calibre. There must be no misplaced prejudice against the English legal system or an over passionate love for the ideas of John Bright or Adam Smith.
When speaking about first principles, or attacking the idea of first principles, the noble and learned Lord, Lord Hailsham, recognised that before prescribing remedies it is essential to identify a problem and to define that problem's very nature. In the Green Paper I have been unable to find a definition except in the minor matter—it is obviously important to those involved—of the complaints procedure against solicitors and the Law Society. When the Green Paper has defined the problem it produces extremely sensible remedies for it.
The administration of justice must continue to be dominated by the platonic concept of public service. That sense of service is illustrated by the fact that when judges are appointed they take a substantial 1427 drop in income compared with the income of senior silks from whose ranks they are recruited. One could point to the noble Lord, Lord Gifford, as a perfectly good example. I agree with practically nothing he says, but I certainly respect the integrity of his mind and the attitude he adopts towards his clients.
In an intriguing speech the noble Baroness, Lady Oppenheim-Barnes, said that the English system was the pinnacle of world systems. Perhaps I may illustrate that further and draw some comparisons with others. These comparisons will show not only that it is good at the top end, as my noble friend Lord Reay said, but that the quality extends throughout the system. When the noble and learned Lord, Lord Brandon, was an Admiralty judge, an American vessel collided with a Scandinavian one in the English Channel. The United States vessel proceeded to Cherbourg and sank. Four law suits resulted—one in France, one in the United States and two in London. The English cases were tried and appealed before either of the other two cases came to court of first instance. In Texas at the moment the system of law has stopped, or so I was told today by a solicitor at luncheon, because they are waiting for the appointment of political judges as a result of the election of President Bush. Any casual reader of The Times Law Reports will see cases brought by foreigners against other foreigners in the English courts. The reason is that our system of justice appears to them to be accessible. It is fairer, cheaper and quicker.
In the United States Supreme Court the time that elapses between hearing and judgment is two years. In your Lordships' House it is two months. The time taken for either body to be appealed to is proportionately the same. The delays and horrors of the American system of criminal justice are equally something which we would never want in this country. There was a famous case a few years ago of a man called Chessman who was convicted of rape and spent 14 years, if not more than that, in the death cell. No system with such delays should be thought to be worth emulating.
If any of us had the misfortune to be remanded to Wands worth Prison the delay would be long before we came to trial. But it would be much longer if we had done the same thing in Italy and had been remanded to the much more felicitously named Queen of Heaven Prison, which was built during the 12th century and not during the 19th century. One would stay there practically for ever. The Heysel trial in Belgium continues. It would be over by now in this country. No one is saying that our system is blight-free. It obviously is not. There is still too little access on occasions and the costs are still too great. I am saying that we should be very careful, as I think the noble and learned Lord, Lord Templeman, said in an article in The Times, not to swat a fly on our foreheads, as the Chinese say, with a pickaxe. That hurts. The Green Papers at the moment have the shape of axes about them. A restrictive practice worth commenting on is the fact that the Inns of Court feel that one cannot properly address a court unless one has eaten so many indigestible meals. That is very silly. I am not sure that it affects the 1428 quality of justice, and it is a slightly unnecessary way to behave.
I am a conservative who believes that change must be evolutionary and not revolutionary. I believe that when change comes it must come as a result of a perceived need. There were perceived needs when the Government removed the anachronistic trade union privileges. The dock labour scheme is due to go soon. As a result of those anachronistic practices being abolished we have seen productivity increase in the older industries. Those increases are the envy of the German and Japanese coal industries. As a result of such changes, the breadth and quality of our newspapers has increased, so much so that it is possible now for Sunday newspapers to produce special editions on Thursdays to please their shareholders. However, there is no evidence—certainly not in the Green Paper—that our system is anachronistic, though it is perhaps unfortunate that the Bar Council still insists on these dinners.
The introduction of the licensed conveyancer has cut the price of house conveyancing. This reform was the result of action taken by Austin Mitchell in another place. The Law Society objected, wrongly in my view, to the extension of conveyancing rights. It objects now quite rightly in my view to the extension to building societies, banks and multi-disciplinary practices. It is also pressing for the extension of rights of audience.
I am informed by a local solicitor to whom I spoke this morning that this is not widely needed outside the great metropolitan firms. It looks as though the Law Society is saying, "What I have I hold, and I would quite like to hold on to something else as well". It is nullifying the validity of its criticism about the danger of multi-disciplinary practices and the conveyancing officer being in a bank or an estate agency. That is something which is not to be recommended. Incidentally, while talking about that matter, and underlying the remarks made by the noble and learned Lord, Lord Templeman, I do not know whether our Lordships have seen the recent Which? report on the habits of estate agents. It makes very unhappy reading. There is an attempt, following Big Bang, to increase estate agents' fees considerably.
The constitutional points seem arcane and remote to the noble Lord, Lord Goodman. They do not seem so to me, and I am not a lawyer. However, I have read light history and perhaps that is why they seem less arcane to me. We should be extremely careful before we do anything about them. I ask my noble and learned friend the Lord Chancellor to weigh carefully the weight of opposition which he has heard today. It is not just special pleading by lawyers. After all, they are all clever men and I suspect that even if the system is changed, they will suffer no drop in income.
If we change and upset 700 years of tradition, we may be in danger of forgetting Cicero's De Legibus maxim, Salus populi suprema est lex. All lawyers know that saying, but I looked it up in a book of quotations. It means that the safety of the public is supremely kept by the law. As a layman I hope that we shall not worship just at the altar of Adam Smith and by mischance ruin the independence of the Bar and the English legal system. That would be very difficult to repair.
§ 6.52 p.m.
§ Lord McGregor of Durris
My Lords, it is with trepidation that a layman must rise to speak on the work and organisation of the legal profession in a debate to which many of the most distinguished lawyers in the land are contributing. Nevertheless, the Government have said:These are not matters of concern only to lawyers. The public have a vital interest from many points of view".Indeed, laymen who wish for some at least of the desirable reforms proposed by the Government have a vital interest which ranges from the fundamental role of the law in maintaining free institutions, as well as in providing a machinery for the just settlement of disputes among citizens and between them and the state. Unhappily, ordinary folk, like the noble Lord, Lord Goodman, do not always think of lawyers as guardians of their liberties. It is true, as the late Mr. Justice Finer observed, that,lawyers have never won a prize in the popularity stakes. It is a safe prediction that they never will. One has merely to speak of the profession of law to detect that one has offended against the instinct that justice ought not to stand in need of the services of a middle man. The lawyer is an intruder into Eden … a fomentor of that tension which is bound to arise between the individual's feeling for justice and society's need for law".Unlike some other lay Members of your Lordships' House, I start from a sympathy, often an admiration—though untinged by deference—for lawyers. However, like other noble Lords, I have been saddened by the recent ululations of some members of the Bar and their resort to unseemly and unpersuasive methods of publicising their anxieties.
The Green Paper opens with a statement of the Government's belief that,access to legal services by those who need them is fundamental to the role of law and the preservation of liberty".Access remains a main prerequisite of citizenship in a democracy. Like other noble Lords, I am therefore astonished that the Green Papers say nothing, apart from the proposal to introduce speculative actions on the Scottish model, about the financial and administrative means of providing access to lawyers and the courts in present circumstances. Ever since the report of the Rushcliffe Committee, it has been widely accepted that legal aid ought to be available on appropriate terms to all those who cannot otherwise afford to litigate proper claims or defences. The committee recognised that very few could afford to litigate unaided and its scheme in 1950 set the financial limits so that well over 80 per cent. of the population were eligible on income grounds alone.
Mr. Cyril Glasser, at one time a special consultant to the Lord Chancellor's advisory committee on legal aid and now the leading authority on legal aid statistics, concluded in an article published two days ago—to which the noble and learned Lord, Lord Elwyn-Jones, and other noble Lords referred—that,over the last year, government spokesmen have been evasive, inaccurate and misleading in their attitudes towards eligibility for legal aid and assistance".Mr. Glasser estimates that,possibly over 13 million people have gone out of scope for civil legal aid on income grounds alone since 1979, so that only about half the population and about 60 per cent. of households are now covered".1430 His computation is in line with an estimate made by the National Consumer Council. Although the Government reject such conclusions, they have so far failed to provide in refutation any systematic statistical information and argument. Indeed, that is not surprising. When the Permanent Secretary to the Lord Chancellor's Office was asked in 1986 by the Committee of Public Accounts to comment on the reported view of the Lord Chancellor's legal aid advisory committee that,we do not know how or in what ways, or upon whom, money devoted to the legal aid and advice schemes is spent",he replied:We are very far from happy about the targeting of our information on legal aid … I and my colleagues are, and for a long time have been, troubled about the quality of our management information; we are not happy about it at all; it has got to be improved".Regretfully, there is no sign, at least in published information, that any improvement has yet occurred. The new Legal Aid Board began work just a few days ago and it remains to be discovered whether it will provide more or less useful information than that published in the past by the Law Society. So far the board has not said that it intends to conduct research.
Legal aid is a crucial issue because the primary requirement of a citizen in urgent legal need is to have access to the courts whether or not he can pay the market rate for lawyers. Crucial also is the capacity of the law and the courts to meet the felt needs of citizens. The Green Papers offer little to those who experience the three areas of civil law with which citizens are statistically most likely to become involved; that is, in matters affecting family life, or when they are in debt or suffering personal injuries.
The history of governments' responses to suggested reforms in these areas shows little care for the ordinary litigant. Since the Labour Government in 1975 rejected outright the recommendation of the Committee on One Parent Families to establish a family court, there are in prospect only narrow changes in the jurisdiction and structure of the courts dealing with family matters. More important, the Government show no willingness to respond to a now well organised and informed public opinion seeking radical change. Indeed, the Children Bill does not establish a family court.
In the case of debt, many of the recommendations of the Payne Committee of 1969, designed to assist debtors to solve their problems and pay their debts, have not been implemented. There is still no enforcement office dealing centrally with all debts, nor yet a social service office, with trained staff to assist the debtor to repay his debts, and the court, as recommended by that committee.
The utility of the recommendations for a social service office has been amply demonstrated by the great success of an unhappily small number of money advice centres which have been set up in recent years, especially by the CABs and other voluntary organisations. Thus, so far as debt is concerned, it is hard to discern any sensitive concern on the part of governments, past or present, for the needs of citizens in debt. Of the other area in which citizens 1431 frequently meet civil law, I agree with everything said by the noble Lord, Lord Allen of Abbeydale, about the reception by some lawyers of the recommendations of the Pearson Commission, of which he was a distinguished member. The failure to implement those recommendations has not been a failure of lawyers but a failure of government to legislate.
Although the Green Paper lists the areas in which legal services may be used, it says nothing of the reform of those which matter most to the public. We are told how important access is, but we learn nothing of the Government's intentions in respect of people's diminishing chances of obtaining assistance to secure it. The disappointed layman now turns to the proposals for changing the legal profession iself. He will welcome moves to end unjustifiable restrictive practices in the course of organising "cost-effective services" and "ensuring standards of competence and conduct" by opening the profession, as the Green Paper puts it,to competition which does not obviate the need to maintain its standards and integrity".Nevertheless, the layman will know that professional monopolies and restrictive practices were elaborated in the heyday of Victorian devotion to laissez faire and free competition; and he will know that the justification was to secure both technical efficiency and the observance of ethical standards. Ethical codes have been based on the belief that between professional and client there is a relationship of trust quite different from that between buyer and seller. The professions provide services; traders sell commodities. The principle of caveat emptor is plausible for the purchaser of a second-hand car: it makes nonsense when calling in a lawyer to advise upon a claim for personal injuries. Professional service is unique and personal, involving the whole personality of the professional man when dealing with clients who are usually ignorant folk.
The relationship of trust implies an obligation to the client, but the organised profession rightly regards itself as responsible also for directing the use of its knowledge and skill in the interests of society as a whole. The professional codes of the legal profession have so far been largely a matter for the profession. The Government now state that they are,not prepared to leave it to the legal profession to settle the principles which these codes should adopt because they will be of such great importance both to the administration of justice and to the public".But it is not a proper function of government to lay down professional codes. I was glad when the noble Lord, Lord Beloff, underlined the implications and dangers which stem from the erosion of independent institutions and professions.
Many commentators on the Green Papers have noted the extensive additional powers which they give to the Lord Chancellor, to be exercised by using statutory instruments and the reconstitued advisory committee on legal education and conduct. That body will have a lay majority, which I do not interpret, as did the noble Lord, Lord Allen of Abbeydale, as a desirable consumer influence. I see 1432 it, through the eyes of the noble Lord, Lord Beloff, as a potential instrument of manipulation by officials.
The office of Lord Chancellor has always been, in a sense, anomalous, as the noble Lord, Lord Henderson of Brompton, pointed out, in that the occupant is both a Cabinet Minister and head of the judiciary. But how long an anomalous role can continue and survive depends upon how it is played. It is hard to believe that a Lord Chancellor could for long deploy the powers over the administration of justice with which the Green Papers would endow his office without raising an insistent demand that they should be exercised only by a Minister responsible to the electorate and another place.
Finally, the layman must ask why proposals for fundamental reform of one of the central institutions in society should have been put forward without extensive public consultation and discussion. Surely, proposals so important should have been framed by a process designed to produce a consensus, not confrontation. Far too many fundamental issues are raised but not scrutinised in the Green Papers. For example, as a layman I feel passionately that the jewel in the English legal crown has for long been the incorruptibility of our judges. I value that virtue far more than I worry about this or that restrictive practice, however objectionable.
Naturally, it would be foolish to maintain that the existing system alone can produce fearless advocates and honourable judges who discharge their duties with an assured independence. However, neither am I satisfied by the Green Papers nor by what the noble and learned Lord on the Woolsack said in their defence when introducing the debate. Citizens who value their liberties should seek better assurances before embracing the radical changes of the Green Papers. I hope that the noble and learned Lord will now make such changes in his proposals as will build for them a genuine and general consensus.
§ 7.8 p.m.
§ Viscount Dilhorne
My Lords, it is with great modesty and considerable temerity that I follow—indeed, have to follow if I want to speak—the speeches of great authority and great distinction that we have heard today. I shall concentrate, if I may, on two aspects of this matter: first, partnerships and, secondly, funding. Partnership has two particular subdivisions; one concerning partnerships within the Bar itself and the other concerning multi-disciplinary partnerships. At first blush it might seem quite attractive to barristers when they look at paragraph 11.16 of the Green Paper as to what partnerships could offer, but a little consideration would show that to be a false dawn.
First, what is the nature of a partnership? It has been said many times today that the Bar is an independent profession. If one allowed partnerships into it the independence would go, and what you would get in its place would be inter-dependence because by the law of this country, under the Partnership Act 1890, I think, you have to consult your other partners. You cannot act against them.
One effect of that must be that there is a reduction of availability of barristers to appear for people. That 1433 reduction of availability must be a disadvantage to lay clients who wish to pick a particular barrister to act in their particular matter. In reality it is more pernicious than that, because if one person in a barristers' partnership is instructed in a particular matter, other barristers are prevented from advising or from appearing in matters that dispute that matter for the potential defendant, who does not perhaps know immediately what he has to face.
I have been told, though I have no experience of this, that in the United States it is quite a common practice, when one is considering bringing an action, for the plaintiff to work out the strategy and decide who to brief for small matters, in order to prevent the stars of that partnership from appearing. In our system of specialisation—and there are increasing areas of specialisation at the Bar of England and Wales—it would not be very difficult to achieve that. At the "landlord and tenant" Bar it would be possible to brief a leading silk in the chambers that I happen to be in and at the same time to seek advice from another set of chambers, in order to prevent the leaders of those chambers from appearing. I am sure no one here could advocate such a system. To me it seems to be pernicious, but it is inherent, I would think, if one goes down the road to a limited extent of having partnerships within the Bar.
Partners also, by the nature of that particular institution, have to be concerned about what their colleagues are doing. They are concerned about their profit-sharing ratios and about influencing their co-partners through each other's conduct. It seems to me that although, as I say, I have been at the Bar for only a very short time, such partnerships within the profession would detract from and damage the crucial and individual relationship that exists between a barrister, a solicitor and their lay client. That would affect, indeed must affect, the barrister's ability to make independent judgments as to his client's best interests and his responsibility for them. I would therefore, on that matter, urge my noble and learned friend the Lord Chancellor to consider most seriously the present state of affairs, whereby barristers are prevented from making partnerships within the profession.
The second matter relates to multi-disciplinary practices. Of course that is very closely related to partnerships. It is what is called a mega practice and various other modern words that I do not particularly like and it works like this. Success in litigation depends to a very great extent on instructing the right barrister for the particular matter that the client wants resolved. In other words, it is a question of picking the right horse for the right course without saying anything about the jockey. To continue with the analogy of the horse, if all the best horses are in the large stables of City solicitors or in multi-disciplinary practices, they will not be available to the ordinary litigant and certainly not to the legally-aided litigant.
In the present system many silks do legally-aided work. They will not be available to the ordinary litigant if they join a multi-disciplinary partnership for the reason which was touched upon in the outstanding maiden speech made by the noble Lord, Lord Rees-Mogg. If a barrister joined a multi- 1434 disciplinary partnership he would find himself in a larder and he would be asked to perform when the larder-keeper allowed him to perform. The disparity between the rates which the large City firms would receive for legally-aided work and the rates which they would have to charge to meet their expenses are so disparate that it is unlikely that the larder-keeper would release that eminent barrister, who is a partner, to do legally-aided work. That would reduce the availability of the stock of barristers to the ordinary man in the street.
The last matter that I wish to put to your Lordships for consideration is this. In the paragraph relating to legal funding a number of suggestions are made concerning the financing of legal services where people cannot afford them. There is possibly one omission from those suggestions. Before I was called to the Bar and practised at the Bar I spent a number of years in an insurance-broking firm. I have spoken to many of my friends in that field of activity and I am told that there is absolutely no reason why a proper insurance scheme with an acceptable premium could not be instituted along the lines of medical insurance schemes such as PPP or BUPA. One such scheme exists but it is not practised widely. That scheme has considerable attractions because there must be about 50 per cent. of Her Majesty's subjects who cannot afford to entertain any litigation. We live in a free democracy, yet that percentage—which is high—cannot have recourse to the Queen's justice without suffering financial penury or near financial penury.
If such a scheme was introduced it might be necessary for the Government to consider launching it with certain tax incentives. Such a scheme would provide justice or the availability of justice for many people. A great number of people fall just outside the parameters of legal aid and they are in a kind of poverty trap. We all know about that. The legal aid fund, rather like national health, always faces the prospect of having to meet the liabilities arising out of a bottomless financial pit. It might be very useful to consider such a scheme. I believe that it has been considered and that the insurance horse has been taken to the water; it has dipped its nose towards the water but has not immersed it; it went away saying that it would immerse it. I believe that it never did so. If ground work has been done on such a scheme it might be possible to resurrect it.
I have nothing further to say. I have made a modest contribution in what has been a marvellous debate.
§ 7.20 p.m.
§ Lord Griffiths
My Lords, for three years I laboured on the Civil Justice Review of the noble and learned Lord the Lord Chancellor. During that period we introduced about half a dozen consultation papers. We dared to think the unthinkable, which is the function of a body undertaking a radical review. We put into the consultation papers several suggestions which are now recognised as unthinkable. I remember that one of them proposed that we increase the length of the judicial sitting day. My experience today convinces me that was a most misconceived suggestion.
1435 However, one of the techniques to which I was introduced on those consultation papers was that if one wanted to provoke a reaction one did not frame a suggestion in the form of a question, one put it forward as a firm proposal. If one put forward what was conceived to be a firm, though outrageous proposal, one would certainly provoke a reaction. We were very successful in the reaction we provoked. I was virtually sent to Coventry for the best part of six months over one of the papers.
I only hope that the same technique has been employed in these Green Papers, because certainly some of the language of the papers hardly smacks of consultation. I hope noble Lords will forgive me if I quote from paragraph 4.12 of the organisation consultation paper. That paragraph has already been quoted from. It states:The Government is not prepared to leave it to the legal profession to settle the principles which these codes should adopt".That is hardly the language of consultation. I hope it has been deliberately employed to provoke discussion, and that minds are still open.
I have great sympathy with the noble and learned Lord the Lord Chancellor as regards the situation that he inherited in which the two branches of the legal profession were at each other's throats over rights of audience. I agree with the noble and learned Lord that that was an unseemly situation, and it was very damaging to the image of the legal profession, whose members were regarded as trade unionists scrapping over a demarcation dispute about who should put in the rivets or who should provide the paint. It seems to me that the noble and learned Lord had a duty to intervene in that situation and to assert his authority.
The suggestion to resolve the current impasse over rights of audience is that solicitors, subject to certain practising certificates, should have full rights of audience. I wish to assert as firmly as I can that it is my belief that, if solicitors are given full rights of audience, it will not be the death of the Bar. I am quite satisfied that the Bar can hold its own in open competition. However, what will damage the Bar irreparably is if it loses faith in itself, if it believes that it is doomed and if the word goes out to the universities and the polytechnics where the academic stage is taught, so that they advise their students not to go to the Bar where there is no future but rather to go to the solicitors' profession. If that happens, it will destroy our seed corn.
I now wish to address the question of multi-disciplinary partnerships. I think it would be a profound mistake to allow barristers to practise in multi-disciplinary partnerships. It would be the end of them as an independent consultant profession, which is what they are. I do not care what anybody says, if a group of barristers were to work in a vast multinational accountancy practice, they would not be perceived by the public as independent and, in a short time, they would not be independent. I very much doubt whether Chinese walls would be welcome in multinational Japanese accountancy firms.. I therefore urge a rethink of the suggestion that the Bar should be empowered to enter multi-disciplinary partnerships.
1436 So far as concerns partnership within the Bar, I am in a minority in thinking that on balance that might be acceptable. However, it is a matter which cannot be dealt with without proper consultation with the profession so that it can be properly probed.
The other matter I want to address is the constitutional issue. When I first read the Green Paper I did not recognise it as a constitutional threat. Equally, I regarded the proposals concerning principles enshrined in a statutory instrument as so much political window dressing. One does not promote good conduct by writing a set of rules on a piece of paper. Nor does one promote good conduct by enshrining those rules in a statutory instrument. Wearing different hats, the noble Lord, Lord Allen of Abbeydale, and I know how easy it is to formulate all sorts of rules dealing with security procedures which one would think would be foolproof. That is not the problem. The problem is the enforcement of the rules and the ethic that must be developed within the service that will apply the rules. What really matter are not written codes and rules but traditions, training, example, peer pressure and resolute self-disciplinary procedures.
As I read the Green Paper there is no criticism of the Bar in that respect. Indeed, the codes of principles suggested are clearly modelled on the Bar's code of conduct. Furthermore the principles that are set out in two codes are matters that you and I would be able to agree on in five minutes. They add nothing to the procedures which are already in place in the profession.
It occurred to me that the intention behind the proposals was to introduce into the legal process a number of other bodies, referred to in the Green Paper as different professional bodies but nowhere described or identified. If we are to introduce entirely new bodies of people which have not grown up with centuries of the ethic behind them, as solicitors and barristers have, we may have to spell it out for them. We may have to spell it out in such a solemn form that we enshrine it in a statutory instrument. That may have been the thinking behind the proposal.
Then I asked myself what those bodies would be. I could find no answer. I do not believe that there will be such different bodies. Before they can practise in the higher courts members of those bodies will have to have a legal training and degree, they will have to go through a practical training course, and then they will have to obtain an intermediate certificate and finally a full certificate. What other professional bodies will have the time to do all that? Are we really looking for Leonardo da Vincis? If so, I suspect that we shall not find them.
It seemed to me that those procedures were little more than window dressing, but I have had the advantage today of listening to others who perceive them as very much more of a threat than I recognised. I have listened to the noble and learned Lords the Lord Chief Justice and the Master of the Rolls and to my noble and learned friend Lord Hailsham of Saint Marylebone. I have also listened to the noble and learned Lord, Lord Rawlinson of Ewell. When persons of such perception and eminence perceive those codes and principles as a 1437 real threat, it surely behoves us to re-examine the degree of good that might come from enshrining them.
In my view, it is far too high a price to pay to enshrine those codes, upon which we all agree, in statutory form, rather than leaving their enforcement to the professions, should the price be the forfeiture of the confidence of the judiciary. We have no written constitution. The division of powers is based upon a delicate balance of convention in which confidence between the constituent parts plays a most important role. I implore the noble and learned Lord the Lord Chancellor to reconsider the matter fundamentally and not to imperil that delicate constitutional balance.
§ 7.31 p.m.
§ Lord Coleraine
My Lords, perhaps I may congratulate my noble and learned friend on having so strongly concentrated in thought the minds of my profession by publishing these Green Papers. Although I understand that many professional interests would like to have been consulted before the papers were published and that the consultation papers are framed aggressively and perhaps provocatively, nevertheless, through the Motion of my noble and learned friend, we are today being given a unique opportunity for open consultation, and it is clear that we have been ready to take advantage of that opportunity.
I am a marginal solicitor; that is to say, I have no law degree, although I have a smattering of vocational training. I took to legal practice because it seemed a good idea at the time and it has seemed a good idea over the following 30 years. I have no desire or aptitude for advocacy. As a solicitor, I do not care for litigation because I do not like sitting around in corridors waiting for other cases to be heard and I do not particularly care to sit behind the wigged barristers taking notes of evidence in their submissions. It is perhaps for that reason that I feel myself qualified to put the case for solicitors having rights of audience in the higher courts and at the same time for the rights of the public to have direct access to the Bar. Both those points are merely one aspect of improved accessibility of the law for the public. I shall not argue the case for liberalisation of rights of audience at length. Its success clearly depends on there being no diminution in the quality of advocacy and legal expertise and on the maintenance of standards in court between the advocates which our adversarial system demands.
Having said that, it must be right in principle that any advocate with the right experience and knowledge who maintains proper standards of professional conduct should have access to all the courts of the land as an advocate. That right of access is the right of the lay client as much as that of the solicitor.
Whoever wants to or is forced to litigate in the High Court or the appeal courts should be able to hire any properly recognised advocate, whether solicitor or barrister, and if that advocate should be a barrister, I see no reason why it should invariably be necessary for him to receive his instructions from a solicitor. By the same token I see no reason in 1438 principle why everyone should not have direct access to the Bar for advice and action in relation to all the other legal matters with which solicitors now deal or refer to the Bar for specialist advice.
There have been many articles and much correspondence in the press in the past two months and we have read the elegiac moaning of the Bar. We have learnt of the manifold qualities of the advocate which render advocacy an unsuitable avocation for the solicitor. We have been told that an advocate must be a regular advocate. We have read that because a barrister is not in a direct relationship with a client he will have a detached view of his client's situation and the circumstances leading up to it and will not exceed the limits imposed by the high standards of his calling in seeking to advance his client's claim. He will have all the legal expertise,' and assuredly he will put before the court all the law that the court needs in order to come to a proper conclusion
But what all those homespun truths quite overlook is that solicitors are called upon to deploy all those qualities every day as advocates when they appear in the county courts before experienced circuit judges where they are opposed by other advocates, both solicitors and barristers, who can judge them and their performance. Indeed, as the noble and learned Lord, Lord Donaldson, has pointed out, solicitors have additional responsibilities to the court which do not apply to barristers, in that solicitors must ensure that all the documentation that is relevant to the case is disclosed, whether or not it is damaging to their client.
The Civil Justice Review published last year recommends a substantial increase in the number of cases to be dealt with in the county court; so clearly more solicitors will be doing more advocacy as and when these recommendations are effected. It may be argued that procedures which are obligatory in the High Court are different from those in the county court and that skills acquired by solicitors in the county court will be no guide as to how they may perform in the High Court.
However, the Civil Justice Review proposes that there should be a common core of procedural rules in the High Court and the county court. It is said that that would offer advantages to petitioners, court staff and the public in terms of modernisation, accessibility and simplification. It would also reduce any force there may be in the argument that procedural differences between the courts have a bearing on rights of audience. Under no circumstances would I wish to see the Bar diminished as a provider of specialist advice and advocacy. I do not believe that the extension of rights of audience to solicitors will have any effect in that. direction. In fact I believe that the number of solicitors who wished to become High Court advocates would not be great.
I cannot speak as or for the small high street solicitor, but I shall take up the challenge of the noble and learned Lord, Lord Wilberforce, to the extent that I believe that the services of the Bar will continue to be available and sought by the small firms which are socially so important. However, although as a solicitor I would welcome a barrister 1439 partner, I do not believe that it can be in the interests of the profession or the public for barristers to practise as advocates in solicitors' firms and remain barristers.
I should like just to mention the question of unified civil courts, which the Civil Justice Review turns down and which certainly the Law Society and many in the legal profession consider desirable. We cannot see why there should be two courts of entry in civil litigation. The reasons given in the Civil Justice Review included among others the question of solicitors' rights of audience. If this problem can be got rid of once and for all, I am told that it would be possible to look again at the very difficult question of having one unified High Court.
I approach the paper on conveyancing services as the most important of the three papers before us. I know that this is clearly not the view of very many of your Lordships who have spoken today. I can only say that I am sorry that when my noble and learned friend addressed himself to this question in his opening speech, he spoke for about 50 seconds, and most of that was devoted to the—I am sure very important—problem of providing level playing fields for solicitors.
I suggest that there is a fundamental flaw running through the Government's proposals. It is a very basic and naive economic libertarianism which postulates the sweeping away of controls and restrictions as a good in itself. Without particular rhyme or reason, it then tackles each resulting ill effect on an ad hoc basis and either maintains that the ill effect is illusory, or, when this position cannot be maintained, invents a new restriction; and the name of the new restriction is creating a level playing field.
The trouble is that one cannot abolish all social controls and expect to return to primaeval innocence as easily as that. That is not free market economics and will not sustain the operation of a market economy. I am sure that any free market economist would agree. However it seems to me that it is a matter which my noble and learned friend's advisers have not got to grips with. They may say that the anti-competitive and anti-monopolistic aspects of what is proposed in relation to institutional conveyancing can be dealt with. I say that it has not been shown and should be shown conclusively before this is taken any further.
I should like to examine level playing fields in the context of conflict of interest to show from within the Green Paper the kind of ill effect that has followed from an ill considered attempt to sweep a problem under the carpet. I refer to the Government's present reaction to the problem of conflict of interest which may affect the lending institution which acts both as lender and as provider of conveyancing services to its borrower. The original thought of the Government three years ago was that because of the strong possibility that a damaging conflict of interest might arise in such a situation, a building society should not provide conveyancing services to enable the borrower to buy the house which was then to be charged to secure the borrowing. The new orthodoxy demands that this safeguard for the borrower, the purchaser, should be 1440 abandoned. It is interesting that the Government propose in its place not a levelling of the playing field but that the playing field be further tilted against the house purchaser with the centre line being moved a few yards nearer to his goal.
When my noble and learned friend spoke first, he said that if we had criticisms he would like to hear what we would do instead. I suggest that instead of proposing that in such circumstances the employed conveyancer should be debarred from offering financial services to the purchaser, the Government should have approached the problem quite differently. They should have proposed that any conveyancer should unequivocally have a first and overriding duty in all circumstances to the house purchaser, the consumer of his services. This is because the conveyancer is offering a service and not just a product. He therefore has a responsibility to the consumer which the mere seller of mortgage finance and endowment policies lacks. This should have priority over any duty to make a profit for his employer. That in my view is what true professionalism is and must be about. It is a failure to recognise this simple fact which makes the Green Paper a disaster for the consumer.
As a solicitor, I may believe that in the long run conveyancing services will best be provided by professionals standing quite apart from all the other financial institutions. Nevertheless, there is a large new market consisting of people who have not owned houses before. They are a force to be reckoned with, one which has grown out of right to buy and all the Government's incentives to encourage home ownership, the disposing of wealth more evenly throughout society and so on.
This new market is financially unsophisticated. It may not have the time to do the rounds of solicitors, insurance brokers, building societies and so on because of the constraints of employment and lack of knowledge of the right person to see about any individual problem. The new market is used to bargains to be had in supermarkets. It must also be recognised that the new market is right in thinking that much of the time it will not suffer through obtaining its whole house acquisition package from a one-stop source, whether that be bank, building society, estate agent, solicitor or whoever. I do not automatically oppose the one-stop idea. All I argue is that the Green Paper fails to recognise that the provider of the conveyancing services to the house buyer must be absolutely committed to the house buyer and to no one else.
There is an interesting section of the Green Paper where it is suggested that in the vast majority of cases the interests of the borrower and the lender in the conveyancing transaction will be identical. This is interesting because we are nowhere told what it means. We can only guess. There is a mutual interest in securing the passing of a title from seller to buyer. The only logical construction of the phrase seems to be that because the lender needs such a marketable title as will enable it to foreclose and recover its loan should the borrower default, the same marketable title is all that the borrower needs.
Of course we know that that is nonsense. But it is this nonsense that is used again and again to back 1441 the assertion that because borrower and lender use the same conveyancer for the conveyancing involved in the purchase and mortgage, it matters not whether it is the conveyancer who is engaged by the borrower or the lender's paid conveyancer who acts for both. Undoubtedly it matters.
Let me give a hypothetical illustration of this point and of what follows from it. I want to buy a flat. It is held on a lease. If I go to a solicitor for advice I may be advised that there are problems with the lease. It is unclear whether the landlord's liability extends to replacing the lift should it entirely cease to function. I am advised that I can go to court to have the lease interpreted. I could ask the court if necessary to have the terms of the lease varied. I am advised that the result is uncertain and will probably be costly, win or lose. The advice that the solicitor gives me may well be that I should look elsewhere for another, similar flat without this problem. Whatever advice he gives me he will have had no interest in the decision I make.
But what will happen if I am bundled up in a one-stop package? The lender's employed conveyancer can get me a good title and the lender is happy with the position because, with or without the lift, the flat is still good security for his loan. What duty has the employed conveyancer to me? That is something which the Green Paper does not examine. I can understand why. We know that the conveyancer has a duty to his employer to hook and land both the mortgage and the endowment policy commission. If he has a duty to advise me, and does so honestly, I may well withdraw from the proposed purchase and he will have jeopardised his employer's commercial interests. There is, therefore, a direct conflict of interest.
Does the conveyancer advise me to withdraw from my proposed purchase? I doubt it. Does he advise me that I should see an independent solicitor? I doubt that also. I suggest that his interest lies in advising me in such a way that I appreciate, but underrate, the problem and proceed with my purchase. Therefore, if ultimately things go wrong I have no resort to professional negligence against him or his employers for having not advised me. That situation is not desirable.
Here is another case, one which I mentioned during the debates in this House on the passing of the Building Societies Bill. A lending institution instructed the borrower's solicitor to act for it also in the mortgage. The borrower told his solicitor that he was unhappy about the policy which the institution recommended for repayment of the advance. The solicitor introduced the client to independent brokers and the client took out a policy recommended by them. Then the lending institution accused the solicitors of failing in their duty to it, the institution, and demanded repayment of lost compensation amounting to £800.
I hope that my noble and learned friend will think again about what his Green Paper states about institutional conveyancing.
§ 7.53 p.m.
§ Lord Saint Brides
My Lords, like other speakers in the debate I am a layman. But I am considerably 1442 more instructed layman than I was 45 speeches ago. When I asked myself what, as a layman, I could usefully contribute to the debate I thought that I should first say how the picture of the British legal system, as presented in the Green Papers, compares with a somewhat different and more favourable picture of the same system as perceived by our friends abroad. According to my count during the debate, six noble Lords have testified to the highly favourable opinion which many foreigners hold about that aspect of our affairs. Two noble Lords, one of whom is the noble Lord, Lord Allen of Abbeydale, have expressed reservations about how favourable the opinion really is. I can only say that my experience abroad—particularly in Commonwealth countries and in the United States—leads me to range myself with the six.
During the long time which I spent abroad I learnt that our system of justice is, and has long been, highly esteemed in much of the world. There are ways in which it can be further improved and I understand that it has been improved steadily in a number of ways. I looked at the Green Papers in vain for the kind of general statement with which I expected they might start. The legal system of this country, unlike some other institutions which have rightly been reformed by the Government during the past 10 years, has not led to glaring abuses. It works. So far as I can see it works well and by and large it seems to give the British people what they want and expect. Of course, they wish that the law was less expensive and that it operated more quickly but, my goodness, what would those people say if they lived in the United States, where the law is so much more protracted and where the expense is many times as high?
I should like to make the point, as nobody else has made it, that the system has produced over the years a succession of holders of high judicial positions, including that of Lord Chancellor, whose calibre is at least equal to that of their counterparts in any other country and far surpasses them in most.
Your Lordships will see what I am driving at. It is the very obvious point that we must be careful not to institute change for change's sake. I was sorry when the noble and learned Lord, Lord Wilberforce, shot my fox by quoting that splendid dictum by President Truman—and the House will forgive if I repeat it—when he said, "If it ain't broke, don't fix it"
Since 1978 I have lectured in 35 American cities; I have visited five American universities and I have taught in all of them. I have got to know a very large number of American citizens from different walks of life. As it happens, I have been in America during three presidential elections. I have got to know something about the legal system in America. It is impossible to be there and not to get to know quite a lot about it. The influence and presence of lawyers and the legal dimension in America is even more noticeable than here.
I should like to say firmly—and here again I am sorry to differ from my noble friend Lord Allen of Abbeydale although I believe that other Members of the House agree with me—that if Britain were to 1443 adopt the American system of contingency fees or anything closely resembling that, the result here would be an unmitigated disaster. The Green Paper does not recommend such a course, but the controls and restrictions which it suggests might be adopted if contingency fees were to be introduced in some less noxious form strike me as vague and optimistic.
What has been the effect in those states—and there are many of them—where unrestricted contingency fees are employed? That is a big subject and it is too late to go into in detail so I shall mention only one example of what we all have to regard as severe social damage. In some contingency fee states ambulance-chasing attorneys in search of a quick and lucrative pay-off for themselves by way of the contingency fee system have so boosted the number of medical malpractice suits that consultants in some branches of medicine, particularly gynaecology, obstetrics and plastic surgery, find themselves obliged to pay tens of thousands of dollars annually by way of insurance against the possibility of mounting indemnities to the tune of 1 million dollars or more per claim.
What has happened? Obviously consultants in those and other specialties—for example, cardiology—have been obliged to raise their own fees accordingly. It is a trend which has contributed to the astronomical cost of medical treatment in America with all its deplorable social results.
Not long ago my wife and I dined with a former surgeon near Boston who said he had given up his practice as a surgeon because of the acute anxiety and expense involved. He intended to stay in medicine but in the less threatening role of an administrator. In Buffalo, a not inconsiderable city in upper New York State, I heard last year that no consultants were left who were willing any longer to practise obstetrics and gynaecology and that patients requiring specialised help in the area must accordingly seek it elsewhere. Cmnd. Paper 571, on contingency fees, states on page 6 that in America the judge has the power to reduce damages initially awarded by the jury. All I can say is that it was not successful in persuading the Buffalo gynaecologist to stay.
The same Green Paper points out that in England and Wales damages are almost always awarded by the judge and rather bizarrely suggests that the judge need not be told that the case is being run on a contingency fee basis until after judgment has been given. That does not seem to be a satisfactory way of proceeding. Indeed, it is a poor sort of palliative to be obliged to adopt.
I continue to believe that to introduce contingency fees in this country would be to increase the risk of spurious blackmailing actions. to create temptations for the weaker brethren among lawyers which ought not to exist and currently do not, and it would endanger the relationship of trust which certainly now exists between our lawyers and their clients. Knowing the social harm which contingency fees have caused across the Atlantic we would be most unwise—palliatives or no palliatives—to bring them here.
§ 8.2 p.m.
§ Lord Trafford
My Lords, I speak as a potential consumer and also as a member of another profession. That profession is also at present under scrutiny and much of what I heard this afternoon and this morning gives me a sense of déjà vu. We are ourselves involved in debate at present about peer review, audit, regulation and government control. We also wrestle with the problems of competition in a professional context, which was discussed earlier in particular by two noble Lords. I do not go along with their suggestion that it is totally inappropriate, but I do agree that in a professional context it is more complicated than in a purely business context.
In listening to the debate it appears to me that three major issues have come to the fore. Perhaps I may paraphrase them. They are that the constitution is in danger, that the Bar will be destroyed and that the independence and integrity of lawyers will be compromised by the various suggestions contained in the Green Papers. I listened carefully to most of the arguments and speeches made today and I have read all the briefs with which the non-lawyers among us have been deluged. To those who have sought to argue those propositions, I must say that so far I remain unconvinced. I have to say that my verdict would be "not proven".
I turn to two aspects that have been widely discussed. First, there is the question of the Bar. I believe it was the noble Lord, Lord Hutchinson, who said that these measures were designed to destroy the Bar. On at least three other occasions we have heard comments suggesting that the proposals would lead to the destruction of the Bar. Perhaps it ill-behoves me as a non-member of the Bar to suggest that I have more faith in the Bar than its members appear to have themselves.
If rights of audience were granted as suggested it may be that some solicitors who felt constrained by their previous activities might wish to practise advocacy. Equally, some members of the Bar who felt that they were round pegs in square holes might join a solicitor's practice. I believe it is the nature of the beast that decides the profession that it follows. If the profession that it is intended to follow is that of advocacy, then that will be so. I expect that the special skills that the Bar deploys would be in as much demand as they are today if these proposals are implemented. It cannot be that it is only because of some artificial demarcation that maintains such a profession. Solicitors throughout the land would wish to choose an appropriate advocate in the same way as now. If barristers as such did not exist they would have to be invented.
In the lower courts advocacy through solicitors already exists. That has not resulted in any withering away of the Bar. There is already a precedent for the intervention of Parliament in the regulation of these matters in the Act of 1836 which supported the barristers. In all the talk about the independence of the Bar and the dangers to it, there is one caveat I would insert and which seems to be a contradiction. A number of noble Lords have spoken advocating the extension of legal aid, particularly the noble and 1445 learned Lord, Lord Elwyn-Jones. There is a great risk here not for the consumer but for the lawyer. If 10 per cent. of one's practice is dependent on legal aid, then the much-vaunted independence can be flaunted everywhere. But if 70 per cent. of that practice becomes dependent on legal aid, then what is that independence worth? The type and character of the practice would be dictated by the direction of legal aid and by the eligibility of certain types of client. After all, legal aid is just another government-funded social service. It would tend to dictate what the lawyers then did. That is a more insidious and greater risk to independence than any other.
§ Lord Trafford
My Lords, in a moment. The motto here is: he who sups with the devil needs a long spoon. It is that form of state intervention that may curtail many of the activities of lawyers. I do not profess to know the answer as regards middle income legal accessibility. For lawyers at least—argue about it though they do—it is a double-edged weapon of which they should be careful.
§ Lord Pitt of Hampstead
My Lords, as a consultant physician in the National Health Service, is the noble Lord suggesting that he is not independent when the whole of his income is coming from the state?
§ Lord Trafford
My Lords, I do not wish to be sidetracked into arguments about how independent are consultants in the National Health Service. I feel independent. As I am only half in the National Health Service and half outside it, my independence may or may not be qualified.
I turn now to the constitutional question. I agree very much with the noble Lord, Lord Rees-Mogg, in the quite outstanding maiden speech that he made this morning. He made the point that the freedoms we all enjoy depend upon a free Parliament, the separation of powers and an independent press. In this context we are referring to a free and independent judiciary. He left out one confusion in this matter which has also become apparent in this debate. I intend no offence when I say it, but whereas all of us would be convinced of the majesty of the law, we would need more convincing of the majesty of lawyers. Sometimes these become confused.
The suggestion that the very independence of the judiciary would be threatened seems to be overstating the case. Independence, after all, is not purely political or financial. The well quoted judgment of Lord Devlin in 1958 that independence is also a question of an independent mind holds quite correctly now, I am sure. Even if these proposals were introduced as they stand, it is still from lawyers, be they barristers or solicitors, that judges would be chosen. Can it really be that the quality of such people would fall so low that that very independence of mind would disappear?
Judges today are in effect appointed by the state, as indeed are magistrates; but there does not seem to be any evidence to suggest an impairment of their independence. The independence of judges is 1446 guaranteed also by the fact that only a vote of both Houses of Parliament can remove them. Even if (which I would not actually envisage) a well Whipped majority might be obtained in the other place. I cannot conceive that this could be achieved in your Lordships' House in an even remotely unjust cause. Thus the prerequisite of any such challenge or threat would necessitate all kinds of other conditions—the prior emasculation of this House and other changes. If such a revolutionary government, determined to attack the basic constitutional practices of the nation, were in power, then mere forms would present them with no barrier and it would not be only judges who went down under such a threat.
I know that we have to consider the possibility of such governments coming to power in the future, but each step becomes less and less likely. It is this that prompts me to feel that the case made by the judiciary has been somewhat exaggerated and that some of their descriptions of my noble and learned friend's proposals are somewhat overblown. I accept, however, the validity of some points about the creeping effect of bureaucratic intervention in general and about the powers of the Lord Chancellor's Advisory Committee in connection not only with the supervision of the licensing of advocates, but with professional conduct and legal education. However, as my noble and learned friend on the Woolsack has already stated, these proposals are not set in concrete. There are numerous models which could accommodate the views of those who have spoken this afternoon. I do not believe that out of this particular proposal it is necessary to create the suggestion of some impending or insipient constitutional crisis.
As legal services affect the public as a whole, it can therefore be argued that the public have a major interest in the integrity of the legal profession. I see no reason for any real objection to a statutorily constituted body with lay representation to oversee the general conduct of the profession. It could still be independently guided and led by the profession. One model that springs to mind is the General Medical Council. I know that it would not claim to be an ideal solution to the problems of its own profession, let alone be the solution to the problems of another profession. However, on this basis some such progress could continue. This type of solution would eliminate the present idea that an executive-dominated secretariat would interfere in a direct sense with the licensing of advocates or the conduct and regulation of the profession and put at one remove the power of the executive to interfere with the legal profession. At the same time it would satisfy the general public whom in broad terms we all serve and whom after all the system is designed to serve. It would satisfy them also of the continuing integrity of the legal profession.
In conclusion, although I have not expressed great sympathy with many of the views expressed during the course of the debate, I appear to have more faith in the Bar and its future than the Bar itself. I also appear to have more faith in the independence of our judges than they themselves foresee. But, I have heard no rumours that my noble and learned friend on the Woolsack has been seen creeping down from 1447 Mount Sinai with tablets of stone, albeit green ones. Moreover, as he himself has said, the proposals can indeed be modified after rational discussion.
I do support the general thrust of the Green Papers and I congratulate my noble and learned friend for bringing them forward and therefore provoking all this discussion. Further, I hope he will not believe that the expressions of opinion heard today in your Lordships' House, understandably dominated by members of the legal profession, are really representative. I urge him to recognise that he has very considerable support in many other fields, and also from the general public at large.
§ 8.15 p.m.
My Lords, I am a practising barrister. I make that declaration, although I think that most other members of the Bar who have spoken in your Lordships' House today have not felt it necessary to declare such an interest. That may be because, unlike me, they are so well-known as to render such a declaration unnecessary; or, it may be because, like me, they believe that the Green Paper proposals will not adversely affect those who are presently—I emphasise the word "presently"—practising at the Bar.
I intend to deal solely with the practical long-term effect of the Green Paper proposals to give unrestricted—I emphasise "unrestricted" —rights of audience in all courts to solicitors and other persons outside the Bar; and to consider the question whether a grant of those rights would be likely to lead in the long term to the substantial disappearance or the diminution of an independent Bar. Perhaps I shall thus be able to deal with some of the doubts raised a moment ago by the noble Lord, Lord Trafford.
I use the words "barrister" and "solicitor" not to distinguish between persons whose qualification can come on the one hand from the Inns of Court or on the other hand from the Law Society, but to distinguish between someone who is practising on his own and specialising in advocacy and someone who is a member of a firm which provides a wide range of legal services. Nothing that I say is designed to suggest that there should not be easy transfer between those two activities. The question therefore is whether under these proposals there will in the long run be a sizeable core of persons practising advocacy independently of a firm of solicitors. It is not a question of whether one wants to preserve those somnolent anachronisms, the Inns of Court; it is whether one wants a separate and independent advocacy profession.
I should also like to assure the noble and learned Lord the Lord Chancellor that although I am a member of the Bar, I am not singing from any hymn sheet, let alone a hymn sheet written by the Bar Council. I must say that in my view the reaction of the Bar Council to the Green Paper has been both shrill and inept. I regret that, and I am also sorry that that shrillness has been repeated at least in the speech made by the noble Lord, Lord Hutchinson of Lullington. Quite apart from that shrillness being counter productive in itself, combative overreaction of the Bar Council has involved the noble and 1448 learned Lord the Lord Chancellor in counter argument. Those exchanges he has won hands down. That is hardly surprising, as a forensic debate between the noble and learned Lord and the present Chairman of the Bar is not a very evenly-matched contest.
However, it is an unfortunate matter because once the noble and learned Lord has to descend into the arena of advocacy to defend his proposals from ill thought-out attacks, there is a risk that he will become convinced by his own forensic skill that he has won all those arguments which, until the debate today, may have obscured from him the real dangers inherent in some—I emphasise the word "some" —of the proposals.
On the key question of the danger, if there is one, of giving unrestricted rights of audience outside the Bar—it is not a question of whether rights of audience should be extended, but whether solicitors, in the sense that I have described them, should have the same right of audience as barristers—I do not believe that the grant of those rights would lead to the mass exodus of barristers presently practising to join solicitors' firms. I say that, first, because solicitors will not want to absorb into their firms persons from the Bar who are wholly unused to a corporate existence, wholly undisciplined in firms' methods and wholly incapable of delegation or organisation.
Every solicitor to whom I have spoken says with absolute confidence that once one has been at the Bar for five years one is wholly unemployable in any organisation.
Equally, on the other hand, the Bar will not want to try to subject itself incompetently, and uncomfortably, to the disciplines and restrictions of life in a firm. That is why I said at the outset that I do not regard these proposals as a threat to those presently at the Bar.
However, there is in my view a real danger to the future recruitment of young men to the Bar. There is already hot competition between the Bar and the solicitors' profession for able young men—basically one is talking about university graduates—and among the various firms of solicitors themselves. The scenario that I am about to suggest is based on a number of discussions that I and others have had with leading solicitors in leading firms. With little variation of emphasis, they all consider that it is virtually inevitable that at least some of the top firms will start recruiting in the universities on the basis that their firms will provide advocacy opportunities. Once some of the firms start doing so, the others will be driven to follow to ensure that they obtain the best recruits.
As those young men, having joined those firms, obtain what has been offensively but perhaps not inaccurately called their dog licence, start from the bottom doing advocacy work and slowly grow more senior, they will gradually do more and more of their firm's advocacy work until by the time they are of the age where they would be silks, those firms will 1449 be sending out work for outside advocacy only when they have an overspill or when they have something so extremely specialised that they cannot cover it.
The problem is not letting people who are called solicitors do advocacy; the problem is letting people, whether they are solicitors or barristers, do the advocacy when they belong to the firms and when the firm will inevitably primarily give its advocacy to them.
Once that situation begins to develop, indeed even when it is seen as a real possibility, why should any able young man come to the Bar? Solicitors already have the attraction of being able to offer immediate earnings, security and certainty. I know that it has been suggested that the Bar should do better than that, but no way can the Bar ever match solicitors in what they can offer along those lines. Once the solicitors can also offer the opportunity to do advocacy, there is then no counter-attraction which should take someone to the Bar.
The noble and learned Lord the Lord Chancellor has on past occasions said that the Bar should not need restrictions to keep people inside a profession and I agree. But equally any profession which is to survive must have some particular advantage to offer, something which by joining that profession you can do which you could do not if you did not join it. If solicitors have all the rights of audience that barristers have, the Bar has no unique advantage to offer. There is nothing which it can do which solicitors are no allowed to do, and of course there are lots of things which solicitors will be allowed to do which the Bar cannot offer. Therefore to that young man who asks, "Why do I go to the Bar?" there is no real answer; and no answer has been given during this debate. The noble and learned Lord, Lord Griffiths, said he did not think it would happen but he did not say why. The noble Lord, Lord Lloyd of Hampstead, extolled the joys of independence, but those joys are somewhat hollow when they are also the joys of no opportunity to do any work.
§ Lord Gifford
My Lords, I apologise to the noble Lord for interrupting him, but is not the answer to his question that there will be a market for the services of the young man or woman who has a talent for advocacy? Will that not attract such people back to the Bar where they will be able to do a whole range of advocacy which the firm will not be able to offer? Is that not the answer?
My Lords, it may be that, having risen to the dizzy heights at the top of his firm, the solicitor equivalent of the noble Lord, Lord Alexander, will wish to spread wings and go back to a very small specialised Bar with two chambers of mega-silks, who are so successful that even the largest City firm can no longer contain them. Fifteen mega-silks of that kind, if one can conceive of 15 Lord Alexanders, is one thing; but it is not an independent Bar. It does not provide the thing that is really going to do the damage if the Bar goes, which is that it will kill middle-sized firms of solicitors which cannot afford to have a full team of 1450 advocates, can only get advocacy by going to a larger firm and therefore will have to come in under their umbrella.
The Green Paper says it does not want this to happen. Paragraph 8.8 expresses the pious hope and expectation that independent advocacy services will flourish, but that hope is not backed by the taking of any evidence or by research. It is a somewhat feeble ground for taking a step which may over the next 30 years virtually eliminate the Bar.
Of course it can be said that those who are worried about change tend to overstate the dangers. Those who advocate reform tend to overstate the benefits. With respect to the noble and learned Lord the Lord Chancellor, surely he is in a cleft stick. If lots of solicitors gradually take up the opportunity to have advocates in their firms, that will kill the Bar. If very few people take it up then it will have made very little difference and there is no point in rocking the boat for the sake of the very small amount of change that that will make.
§ 8.29 p.m.
§ Lord Sudeley
My Lords, I shall be extremely brief and concentrate on just one small area. The Government are suggesting that the solicitors' monopoly over who may apply for grant of probate or letters of administration should be abolished. Here the Green Paper offers two options. Option B would mean that anyone would be able to apply for a grant as agent for another. Option A would extend the classes of persons entitled to apply for a grant for award to such bodies as trust corporations, chartered and certified accountants, authorised conveyancing practitioners and possibly others invited to suggest themselves.
Option A is to be much preferred due to the need for the work to be done by those who are honest and competent. There would be a need in this instance for a protective regulatory regime.
I should like to illustrate the constrictions which I recommend by giving two practical examples of a solicitor with a small practice who has frequently used green forms to draw up wills for elderly people often in modest circumstances. The first example is that of a house-bound grandmother of a lorry driver with a very limited estate, wishing to make her will. Despite her solicitor's earnest requests, she appointed a bank as executor. The cost of employing the bank halved the value of the estate. The lorry driver asked the solicitor why he allowed the bank to be executor. The second example is that of a comparatively well-off old lady who, to the chagrin of her firm of solicitors, appointed a bank as executor, though she made provisions that her firm should be used as solicitors. The solicitors' cost draftsman drew up a bill which he dispatched to the bank. The bank wrote back saying that they wished to receive a larger bill because the amount of it, compared with their charges, made their charges look excessive. The firm doubled the Bill, which the bank immediately paid.
I said that I would be very brief. I have taken two minutes. May I plead that these two practical examples and others similar in kind should be borne 1451 very much in mind if the solicitors' present statutory monopoly over applications for probate grants should be ended.
§ 8.32 p.m.
§ Lord Rees
My Lords, at this stage of the debate I regret that I cannot be as brief as the noble Lord who has just sat down, I congratulate him on the brevity of his intervention. I shall confine my intervention solely to the Green Paper: The Work and Organisation of the Legal Profession. I regret this because the questions raised both by the paper on conveyancing and on contingency fees deserve a fuller airing.
With regard to the organisation of the legal profession, it is possible to start from the premise once enunciated by George Bernard Shaw that all professions are a conspiracy against the laiety. Much newspaper comment has proceeded upon that basis. One may reach the conclusion that the question should be assimilated to the question of the sale of goods; but I do not start from that premise. I look at the matter in a different way. It seems to me that the authors of the Green Paper have fallen into that earlier error.
I do not deny that the great institutions of British life require to be considered and reformed from time to time, but the changes proposed when any great measure of reform is introduced must be judged by certain external yardsticks. I suggest—and this is not an original suggestion—that in this case they should be tested by reference to two questions. First, will the changes lead to better, more accessible, cheaper, legal services for the lay client? Secondly, will they advance the administration of justice?
Starting from the political position which I have always held during my life, I believe that the onus is upon those who introduce radical reforms of this kind to established institutions of this country.
I start my consideration of these questions by considering, as the noble Viscount, Lord Bledisloe, has done, the long-term consequences of the proposals in the Green Paper as I see them. If a barrister is to have the right to receive instructions from the lay client in other than a few exceptional cases, and if barristers are to have the right to form partnerships, even multi-disciplinary partnerships, then the Green Paper does not begin to address the acute questions of conflicts of interest that may arise which so exercised both Houses when the question of financial services was considered some years ago.
If a new body of licensed advocates is to be created, then over the years, even though pockets of high specialisation may survive, I believe it will result in a fused profession. That may not be what my noble and learned friend the Lord Chancellor intends, but to be realistic I believe that that will occur. If that is so, we are entitled to ask whether legal advice and assistance will be more or less accessible to the ordinary lay client.
The noble Lord, Lord Goodman, in a characteristically charming intervention reminded us very properly that the law is an intimidating and incomprehensible phenomenon to most of our 1452 ordinary fellow countrymen. I remind him that an ordinary person's first contact with the law is usually through the solicitors' branch of the profession and not through the Bar.
On the question of cost, I do not believe that the experience of any common law country with a fused profession supports the conclusion that such services will be provided more cheaply. Beyond that—this must be incontrovertible—the range of choice for the lay client must be diminished. On both these questions the conclusions of the Royal Commission, which reported only as recently as October 1979, deserve study. I am bound to remark that it is a matter of some curiosity that these Green Papers make no reference at all, I believe, to the very serious and thorough work undertaken by the noble Lord, Lord Benson, and his colleagues on that commission, very few of whom were members of the legal profession. I shall not recite in detail the conclusions of that commission because of the time. However, I shall merely refer to paragraphs 17.45 and 17.46.
Another issue concerns whether fusion would advance the administration of justice. As other noble Lords have observed, under an adversarial system —on some other occasion perhaps, if time allowed, we could debate whether we should resort to an inquisitorial system, but for the moment we have an adversarial system and, on the whole, I believe it has served us well—the quality of advocates appearing for the parties, on whose integrity and skill the courts must rely, is of critical importance. That is why the provision of legal services is qualitatively different from the sale of goods. Here again the conclusions of the Royal Commission in paragraph 17.46 are clear and unequivocal. As that conclusion is so brief, I hope I can be permitted to repeat it. It states that the weight of evidence is that a two branch profession is more likely than a fused profession to secure the proper quality of justice. I can only conclude therefore that if the proposals are tested by reference to the advantages claimed, the case advanced for the proponents of the proposals has not been proved or, in deference to the training which my noble and learned friend the Lord Chancellor has enjoyed over the years, perhaps one should return the peculiarly Scottish verdict of not proven.
Before concluding I must, however, make a few further comments or pose a few further questions. It is a great pity that the Green Paper makes no comparison between the English system and those of the other countries of the European Community. Over the course of years some form of conscious or unconscious harmonisation must occur. Perhaps my noble and learned friend will direct just a few remarks to that important dimension of this debate when he replies to it.
I hope that my noble and learned friend will forgive me if I ask him what has occurred since November 1983 to lead the Government to change their response to some of the key conclusions of the Royal Commission. Even if it is just out of respect to the members of that Royal Commission and to those of us who have loyally supported this Government over many years, I think that that question must be addressed.
1453 Finally, would it not be more profitable to consider, not for the first time and preferably not late on a Friday evening, how the cost, complexity, and speed of litigation could be improved to the benefit of the lay public and whether the legal aid system could be improved and possibly extended?
All those are difficult and important questions which no Green Paper does anything to resolve.
§ 8.40 p.m.
§ Lord Alexander of Weedon
My Lords, as an indifferent cricketer I rarely saw the magic number 50 beside my name, and never before in hours of darkness.
I believe that all of us who speak in this debate, whether as lawyers or non-lawyers, speak and declare only one interest. That interest is the administration of justice and the service which the profession gives to those who require access to justice. I should agree with the noble Lord, Lord Goodman, and I suspect that it is uncontroversial among all of us, that the law exists to serve the needs of the public and not of lawyers.
I have never been uncritical of my own profession. In the past the Bar was sometimes slow to adapt its traditions to attune with modern expectations, but in the last few years there have been striking changes going well beyond statements of intent. I should like to list just a few examples.
The Bar has radically improved its vocational training course. The Bar is modernising the administration of chambers. Better financial provision is being made for new recruits both by the Inns of Court and by sets of chambers. The Bar Council, strengthened by a new constitution shaped by my noble and learned friend Lord Rawlinson, is playing a more important role in public debate on reform in the law and its administration.
It was in that positive mood that the Bar and the Law Society together established the Marre Committee and together sought the help of experienced laymen to give guidance as to what was needed to make the law more accessible to all. The Marre Committee's report was called A Time for Change, a title which fairly reflected its many positive proposals. Again, perhaps I may illustrate a few of those proposals.
The report highlighted the need for improved legal aid funding so that rights given by law would be rights with true practical meaning. It highlighted the need for more effective funding of legal education to lessen the exodus of teachers of law from academic life. It emphasised the need for improved systems of alternative dispute resolution and for more widely available conciliation processes so as to lessen wherever possible the need for adversarial contests. The committee stressed the importance of increasingly streamlined court procedures with full use of modern technology, and it encouraged more widespread availability of legal expenses insurance.
All that was intended to help in tackling the problems of non-availability of legal services and the problems of expense and delay which your Lordships almost unanimously agree are at the heart of public complaints against the legal system.
1454 The Marre Committee, again illustrating the co-operation between the branches of the profession, also led the way in recommending that solicitors should be eligible for the High Court Bench. I am extremely glad that the Green Paper, although it does so without acknowledgment, adopts that proposal. However, to the other thoughtful recommendations of the committee the Government have yet to respond.
I mention that background of positive change because I should hope that my noble and learned friend would draw on the co-operation of judges, barristers, solicitors and academics to assist him in the immense challenges he confronts. There is a positive mood in the profession. I hope that as soon as possible that will be constructively and sensitively harnessed rather than, as at present, simply alienated. I think that it would be a mistake for the Lord Chancellor's Department to keep the judiciary, the Bar and solicitors at arm's length. I have sometimes felt—I hope wrongly—that there is slight institutional suspicion of the profession within the department. If so, I would hope that it could be laid aside as soon as possible by all those who are conscientiously concerned with the administration of justice.
Many noble Lords have indicated two grave concerns over the Green Paper proposals: the threat to independence and the dangers of the destruction of an independent Bar. As to independence, I shall add very few words. We are not simply concerned with financial independence, of which my noble and learned friend spoke. We are not simply concerned with independence of mind. We are rather concerned with independence from the state.
What is said to be the justification for altering the balance of the constitution which has previously taken for granted an independent legal profession? As many noble Lords have highlighted. we are told no more than that the issues are so important that they should be decided by the Government and not by the profession. The noble Lord, Lord Benson, told of visiting South Africa when the independent Bar perceived itself under threat from the government. I too trod that road and was proud to do so, knowing that I was safe in vaunting the values that our society attaches to a wholly independent legal profession. I am bound to say that if the language of this Green Paper had emanated from the Government of South Africa, there would have been howls of cynical protest throughout the civilised world.
To my mind, there is a most elementary conflict of interest, not even addressed in the Green Paper, for the Government to take power of control over the very profession that has as its central duty to act and stand up for the citizen against government power and state prosecution.
Perhaps I may now turn to advocacy. My own experience is not untypical of that of an independent barrister. It spans every circuit in this country and courts of every kind from the Workington magistrates' court to the Appellate Committee of this House. Sometimes I have been instructed by large City firms, sometimes by smaller firms, sometimes by a 1455 one-man firm of solicitors. In my view, that diversity reflects a central strength of our legal system; namely, the availability of all barristers to all 50,000 solicitors and therefore to the clients of those solicitors.
Not surprisingly, the president of the Law Society has said that he wants a strong and competent Bar. So, I believe—and I am glad of this—does my noble and learned friend the Lord Chancellor. But will a strong Bar survive? My noble and learned friend is optimistic. So are a few others who have spoken in the House today. Equally, others of very great experience in our profession profoundly and fundamentally disagree. No one can be dogmatic about that. For what it is worth, I personally think that the Bar will survive in the short term; but I also believe that recruitment will inevitably dwindle and that the risks for the future are grave and unacceptable. Where we cannot predict the future, I therefore deliberately speak in terms of risk that I suggest we should not accept.
In their proposals, the Government assert unequivocally the value of specialist advocacy but then make a self-contradictory proposal which will inevitably dilute standards and mean that advocacy can become a part-time occupation. How can barristers have direct access to the public and practise in multi-disciplinary partnerships and yet specialise in the way that they do at present? In my experience, advocacy—both in preparation and at trials—strains every nerve and sinew. It requires full-time commitment, unshackled by the dicatates of corporate policy or involvement in other aspects of legal practice. I am in no way surprised that Sir Gordon Borrie, our competition authority, has condemned as carrying the risk of gravely weakening the Bar and so lessening competition the idea that barristers can practise in multi-disciplinary partnerships.
What of cost? The research for the extremely thorough Royal Commission indicated that proposals of this kind would not reduce cost. The authors of the Green Paper have not researched the issue. They cannot and do not suggest that in practice costs will come down. Indeed, the noble Lord, Lord Rees-Mogg, today has clearly demonstrated his view, as a user of legal services, that they will not. But what I find wholly unexplained is why the Government should seek to redesign completely the profession of advocate. It must be the first blueprint for redesign of an organisation that does not contain a single criticism of the way it currently performs its role. The Green Papers, dignified as they are by being described as based on first principles, seem to me to be based on unproved dogma.
Why should we recreate the profession from scratch as if this country were a newly discovered land or a legal green field site? As I understand it, our Conservative Party is still the party of evolution, dedicated to improving and building on existing strengths. I sympathise with the need of my noble and learned friend the Lord Chancellor to seek to resolve disagreement on rights of audience. It is important that he should do so. It is also important that he should properly take the lead in seeking changes in the legal profession if he perceives it to be necessary.
1456 Perhaps I may briefly mention from my own experience areas where I would respectfully suggest he would be wise to look ahead. First, cases which do not call for specialist advocates should not be reserved for a specialist Bar. Some cases in the Crown Court fall into that category. Secondly, the Crown Prosecution Service, when it recovers from the structural weakness contributed to by initial ill-judged under funding, should be entitled, with proper safeguards for independence, to conduct Crown Court cases which fall into the same category as those of which I spoke under the first head. Thirdly, the Bar should be required to produce a blueprint for further improvements in its recruitment.
I agree entirely with the noble Lord, Lord Lloyd of Hampstead, when he says that more needs to be done about recruitment. We must counter the attractions of the large firms of solicitors and so prevent potential good advocates being lost to the profession. We have not done enough in that area although we have done much. I know that my noble and learned friend is highly concerned about recruitment. I suggest that he is fully entitled to ask the Bar to produce a blueprint in this area.
As my fourth suggestion, the Bar should also accept, as I believe it does, that its other practices should come under the scrutiny of the new competition authority. This is already a legislative proposal and it will mean that any conditions and practices that are criticised can be carefully and constructively considered.
Fifthly, if some oversight of the codes and educational standards of the profession is required—as to which I rather doubt—the Bar should be asked voluntarily to submit its rules to a committee which includes a majority of judges together with representatives of the Lord Chancellor's Department and, if thought appropriate, some laymen.
Having made those suggestions I ask my noble and learned friend this question: if the profession were to accept these suggestions, what more would he want? Would there not then be a constructive basis for gradual change, maintaining a high standard of advocacy and a high quality judiciary? That accords with the sensible approach of improving existing systems. By contrast, the present proposals, as so many of us think, carry the risk of destroying the strength of the profession.
In conclusion, the past few weeks have seen unprecedented discord between the judiciary and the Government. I do not seek to go into the debate as to whether there has been overstrong reaction or whether the judiciary and the profession were sorely provoked by the contents of the Green Papers or the manner of their presentation. We must look forward. I know that this discord is quite simply thoroughly bad for the administration of justice. There is much to be done to improve our legal system. Sweeping structural reform, not proceeding on a gradual basis, is a divisive distraction from this immense task. It is time to end this discord. I urge my noble and learned friend, drawing on all his instincts as a most distinguished lawyer, to call together at once those who care equally passionately about our system of justice to agree on a sensible, pragmatic proposal for 1457 change. I believe if he did so—and it is only he who can take the lead in this—that he would gain willing and constructive support and help. As the noble and learned Lord, Lord Goff, said, it is time to defuse this controversy. As the noble Baroness, Lady Oppenheim-Barnes, said, when we do, we must get the right answer. Unseemly haste will ignore our responsibilities to future generations.
§ 8.55 p.m.
§ Lord Oliver of Aylmerton
My Lords, I do not share the views of those who discern no virtue in the Green Papers, although my criticism would be that throughout they tend to confuse cost with value and to ignore so much in the existing structure which is of value but is imponderable.
However, for my part I am prepared to accept them for what on the face of them they profess to be: documents formulating controversial, interesting and novel suggestions aimed, whether we agree with them or not, at the provision of accessible and reliable justice for all the citizens of this country. I have also tried to regard them as proposals advanced as a basis for mature consideration and discussion to be distilled and acted upon only after proper research and the reception of the best available evidence of their likely results. I only hope that I am right so to regard them.
Having said that, I have to confess myself dismayed not merely by some of the proposals that have been advanced, but by the apparently unshakeable confidence with which they have been advanced, by what I think will be their likely effects if they are implemented, by the apparent shallowness of the consideration and research which has preceded their formulation, and, above all, by the almost unseemly haste with which, subject to a matter of a few months for the reception of public and professional views on a matter of crucial importance to our jurisprudence, it appears to be envisaged that these very radical measures, modified or unmodified, are to be implemented.
While I remain unconvinced that some at least of the more heavily criticised aspects of the Green Papers are really of central importance, or are incapable of sensible modification, there are three features which cause me particular concern. The first is the function and composition of the proposed advisory committee with its preponderance of lay representatives who may, for aught we know, simply be the political appointees of the government of the day. I share the reservations that have already been expressed about this but I am not sure that this proposal is an essential and immutable foundation for what is proposed in the structure. I say no more about it.
As to the other two matters, although they have been advanced as separate and unconnected proposals and as the subject matter of discrete documents, they are I believe—with regard to their cumulative effects—intimately connected in particular when they are considered in the context of the multi-disciplinary partnerships which it appears it is the Government's aim not only to sanction but to encourage. The first is the proposal 1458 that would sanction what has been referred to as corporate conveyancing. This is said to be justified by the interests of the consuming public in having access to what is asserted to be a cheaper and more convenient one-stop shop for the acquisition and disposal of real estate. We are told, however, nothing of the results of the studies which one must presume were undertaken to justify the predictions on which the proposals have been based. In relation to the extension of the conveyancing monopoly to licensed conveyancers, we are told simply,surveys suggest that the result of this increase in competition has been a reduction in the price of conveyancing".What are these surveys? Where can they be found? Who carried them out? Where were they conducted? Who was canvassed and what were the results? What has been the scale of the asserted reduction in conveyancing costs? We are not told.
The average citizen will probably consult a solicitor only once or twice in his lifetime and then on the occasion of the purchase or sale of his house. But that occasion is, for the majority of us, the biggest and most important legal transaction of our lives, save possibly for marriage when most of us do not seem to need legal advice.
If ever there was an occasion when careful and truly independent advice is needed, this is it. To throw the field open to competition from estate agents or financial institutions, whose every interest is to see that the transaction is completed willy-nilly, may (I emphasise the word "may") reduce the immediate price to the consumer, but at what ultimate cost as regards the independence or the quality of the advice given? Speaking for myself, what I find so worrying about these proposals is not only that I see the gravest risk of serious deterioration in the quality and the reliability of the service offered to the general public, but that the result of what is essentially a cost cutting exercise, regardless of quality, may be the virtual disappearance of the independent high street solicitor and his absorption into the corporate maw of some financial institution, possibly itself merely a branch of a multi-disciplinary practice.
It is for this reason that I have ventured to say that the conveyancing proposals are intimately bound up with the radical proposals in the Green Paper for the reorganisation of the legal profession as a whole. Let us make no mistake about it. These proposals, if implemented, are not only radical but irreversible, so the Government have to be very sure that they get them right. Once destroyed, that which is valuable in the existing structure is as irreplaceable as the ozone layer. Just as the high street solicitor is the natural and essential port of call for the general public—so that his disappearance would constitute not an increase in access to the law but are striction on it—so the independent Bar is the natural port of call of the high street solicitor whose client requires the services of an advocate. If you destroy the one, you are a long way along the road to destroying the other.
The Government say that this simply will not happen. They may be right, but it seems an awfully big risk to take on the basis simply of assertion and unproven assumption. We are not told what research 1459 has been undertaken as the basis of these proposals; whether it has been ascertained, and if so by whom, to what extent solicitors throughout the country depend on conveyancing income for their survival as independent firms; what surveys have been conducted with what result; what studies have been made, for example, of the costs of conveyancing undertaken by lending institutions in the United States, where I am told that the conveyancing costs by such institutions amount to between 5 per cent. and 7 per cent. of the total price. Can it be that the Government's confident assertion that this will not or cannot happen is based upon some divine intuition which is denied to the rest of us? Or is it simply derived from that which is sometimes referred to as providing its own justification, common sense—a quality which was once defined as that instinct which teaches us that the earth is flat.
Let us consider for a moment the other and equally contentious proposal: the substitution for the advocacy service at present offered by the solicitors and the Bar of an entirely new structure of licensed advocates, untrammelled by any worthy tradition; freed from the collegiate restraints of close association, but governed by some new statutory code of conduct: a new invented creature which I am tempted to say has this in common with the mule—that it will have neither pride of ancestry nor hope of posterity.
We have heard a great deal in the press and in the Green Paper about monopoly and about restrictive practices, although the Green Paper is coyly reticent about precisely what so-called restrictive practices are to be deplored and why. The restrictive practices which are mentioned are merely the self-denying ordinances which are assumed by the Bar as the price of its monopoly. But do let us be clear about this: the Green Paper is not about outlawing monopoly but is about substituting a new and untried monopoly for that which already exists. The whole concept behind the section which concerns the exercise of rights of audience is itself one of monopoly. It is recognised that advocacy is a specialised service. It is recognised that it requires to be constantly and consistently practised and that the function of presenting cases in court is not one which can or ought to be thrown open to everybody —or even to everybody with legal training or knowledge.
Therefore, the starting point of the argument for the exclusive right of the practitioner in the envisaged new service of specialised advocates is exactly the same as the starting point of the argument in favour of exclusive rights of audience for the Bar. The difference lies only in the nature of the qualification for admission to the monopolistic college and the statutory regulation of the conduct of its members once admitted.
It may be a good idea. There may be a good case for some centralised control over specialised advocates. However, I confess that I have failed to glean from the Green Paper exactly what it is, or what shortcomings in the present organisation of the profession have been identified as necessitating it or 1460 as calling for statutory codes of conduct. We are told simply that the Government are not prepared to leave it to the legal profession to settle the principles that these codes should adopt. One is tempted to ask: why ever not? The legal profession has done it and, I venture to suggest, done it conscientiously and effectively for the past century or more. Is it, perhaps, that the abolition of the dog licence has released a reserve of Civil Service energy which must now be diverted into some other licensing system?
These proposals are ingenious and interesting but clearly they need to be thought out and examined in much greater depth than has been the case so far or than a period of a mere three months' consultation will permit. What is proposed is no less than the radical transformation, however it is to be effected, of the profession of specialist advocacy, so that it becomes, or potentially becomes, merely a facet of the provision of corporate legal services.
I am not, nor have I ever sought to be, numbered among those who are irreconcilably opposed to the extension to full-time solicitor advocates of rights of audience in the superior courts. It is absurd to suggest that among the 50,000-odd solicitors in England and Wales there are no men and women with the ability to operate effectively as advocates or, with suitable experience, to become judges. Like my noble and learned friend Lord Griffiths, I do not believe that the roof will fall in if advocacy rights are extended to solicitors.
But that is not the real point at issue. The central question is that of the terms and conditions upon which those who are granted the exclusive privilege of exercising rights of audience—whether they are called barristers, solicitors or licensed advocates is immaterial—should, in the interests of justice, of the public whom they serve, and of the judges who must be guided and helped by them, be entitled to exercise the monopoly which is accorded to them.
It is that aspect of the Green Paper that I find so disturbing. If a monopoly of rights of audience is to be granted to anyone, surely the corollary ought to be that his services should be available without restriction to those who need them. That is subject to the restriction that he cannot serve two conflicting interests at the same time. The moment you permit your monopolistic advocate to practice in partnership, or as the employee of some multi-disciplinary corporate business enterprise, you restrict the availability of his services, for he cannot act independently in any matter in which any of his partners or co-employees of his corporate employer is engaged in some other interest.
It is said that the proposed changes will make litigation cheaper and that they will provide an improved specialist service of advocacy. One wonders how. One asks whether experience suggests that. Have studies been carried out which demonstrate it? If so, where are they, who carried them out and where can they be seen? Is there evidence that the independent Bar practising as individuals has shown itself incapable of serving the public's needs? If so, where is that to be found? The Green Paper does not tell us.
It may very well be that the Government are right in their view that the extension of the rights of 1461 audience and the opening of the door to corporate or semi-corporate advocacy services as part of multi-disciplinary practices will not destroy the independent Bar. However, that is certainly not self-evident. We are told that the Government hope and expect that it will not do so. We are told that empirical evidence from other common law jurisdictions suggests that specialist advocates who act only as such and do not become involved in pre-advocacy work are well able to flourish in the marketplace. Does it? Where is that empirical evidence? Whence has it been obtained? What are the studies of the local conditions prevailing in those unspecified common law jurisdictions which have been undertaken by the authors of the Green Paper? What evidence have the Government received and considered as to the effects of the administration of justice in Australia of what have been described as "mega-firms"? Again, the Green Paper does not tell us.
However well intentioned, it seems to me that the Government are taking a terrible and unjustifiable risk in seeking to introduce, with no more than a perfunctory period of a few months for what is described as consultation, a fundamental and irreversible change in a structure evolved empirically over several hundred years—a structure which has already been the subject of the closest and most detailed inquiry within the past decade, when it was not found wanting.
I do not for a moment suggest that our legal system is not capable of improvement and possibly of dramatic improvement. It may need totally restructuring. However, a process which substantially amounts to a total reconstruction should not be undertaken unless, first, a powerful case for the need is made out—and the Green Paper does not even attempt to make out such a case—and, secondly, the most searching, careful and public inquiry is carried out and close consideration is given to all the possible options.
I have to say that the whole tone of these documents and the way in which they were launched without any prior consultation with the profession or the judiciary leave the most uncomfortable impression that they are in fact what I might describe as Dulux Apple White, rather than Green Papers, that the Government regard themselves as already committed in principle and that the consultation which is invited is sought merely in order to iron out the edges. I earnestly hope that that is not so, for that really would be a manifestation of the arrogance of that elective dictatorship spoken of by a former occupant of the Woolsack.
I come back to the point at which this debate started in the speech of my noble and learned friend Lord Elwyn-Jones. Hasty proposals invoke hasty responses and that is not the right climate for matters as important as this. We need more time. The Green Papers contain much that I believe is quite unacceptable but they contain much which provides a foundation upon which, after proper consultation, it should be possible to build—and I emphasise "after proper consultation."
Perhaps I may conclude by commending to my noble and learned friend the Lord Chancellor the 1462 wise words of those learned and worthy divines who said in 1662 in the preface to the Book of Common Prayer:Experience sheweth that where a change hath been made of things advisedly established (no evident necessity so requiring) sundry inconveniences have thereupon ensued and those many times more and greater than the evils that were intended to be remedied by such change".
§ 9.14 p.m.
§ Lord Elton
My Lords, after 11 hours and 17 minutes a mere layman is apprehensive about joining in a debate of this sort—apprehensive for a number of reasons. The debate itself has made me apprehensive. I feel as a layman that I can only be expected to seize a few salient points or address a broad issue. The broad issue, referred to on a number of occasions, latterly by my noble friend Lord Alexander of Weedon, is the sense of apprehension, tension and hostility that there has been between the Executive and the judiciary from the moment of the publication of the Green Paper until a quarter past nine this evening. As a layman I very much hope that this can be remedied, and speedily, because it does nothing but harm to all concerned.
Where does it spring from? I understand that there was a feeling of resentment on the Bench and elsewhere at the lack of prior consultation. I have to say as an ex-Minister that I regard a Green Paper itself as the vehicle for consultation. Although there are levels of authority and expertise which may make people feel that they are entitled to consultation before consultation, I do not think it should be taken as discourteous if a Green Paper is itself the basis of consultation.
There is then the apprehension that it is not meant to be a consultation. That apprehension depends on the language of the Green Paper. There is a sentence which has been quoted, I believe, five times in this debate suggesting that the Government have made up their mind. That is a question of language. My noble and learned friend the Lord Chancellor should be judged on his deeds and not on the language of the Green Paper. I believe that he has said and is committed to treating this as a genuine consultation and your Lordships' words have not been wasted.
I have a great sympathy for my noble and learned friend. I know how it feels to set without interruption for nine or ten hours on a comfortable bench. My noble and learned friend is faced with answering a debate with 53 of your Lordships expecting to be mentioned and knowing that if he speaks to each of them for one minute it is a total of 53 minutes—twice the allotted span. I hope noble Lords will be generous to my noble and learned friend in that respect.
Given that this is a Green Paper, I was a little depressed by the number of times on which it appeared that noble Lords and noble and learned Lords seized on a particular aspect of one of these Green Papers—I refer to The Work and Organisation of the Legal Profession—and threw the whole thing away because of that one proposal. The objections sometimes appeared to be ill-founded. It is said that the Green Paper proposes that advocates should be licensed, but that idea does not appear to be in the Green Paper. It appears to me that professional 1463 bodies will continue to provide authorisation for access to those who wish to be practitioners but that they will provide that service according to criteria set up by an advisory committee from which the Lord Chancellor will take the advice. That is not quite the same as the Lord Chancellor licensing the applicants.
I have a clear feeling that it is the advisory committee itself that is feared. Therefore, I was surprised that there was not a series of constructive suggestions on how it should be composed, whether the balance of it should be changed, whether its terms of reference should be different and whether its scope should be reduced. That would have been constructive criticism and I hope that that will be forthcoming later.
The principal issue raised right at the start when the Green Paper was published is that of the independence of the judiciary. That has a strong appeal to a lay historian. It is consequently an argument which strongly appeals to me. I began to wonder what this independence consists of which is so central to the arguments of so many of my noble and learned friends. I thought it wise to look at the areas where it might be most at risk and see how the profession protects itself.
I suppose that patronage is the most powerful influence which governments can exercise. Patronage over appointments and promotion must be a powerful weapon. An institution that is only appointed and promoted on the gift of the Executive presumably would not consider itself wholly independent, but I understand that all Queen's Counsel and all appointments to Queen's Counsel —I take it that the giving of silk is a promotion—is done on the recommendation of the Lord Chancellor to Her Majesty.
I asked my noble and learned friend the Lord Chancellor how many legal appointments he made within the judiciary. I received the reply that he either appointed or advised Her Majesty the Queen on the appointment of 82 High Court judges, 408 circuit judges, 628 recorders, 408 assistant recorders, 258 masters and registrars, 63 stipendiary magistrates, 24,000 justices of the peace and, for good measure, 4,100 general commissioners of income tax and 105 full-time tribunal chairmen.
To a layman that does not smack of absolute and unsullied independence from the Executive. Therefore I ask your Lordships to consider very carefully the extent to which this great prize is what we believe it to be. I hope that after this debate, when we have gone home and recollect it, tempers will cool a little. I hope that noble Lords who have understandably felt passionately opposed to the Green Paper will be able to reconsider whether there is not in the bath water a baby or indeed triplets before they insist on tipping it out. This is not a representative House and we have not had a representative debate, important though it has been.
There are very many people outside this House who are well aware of the imperfections in our present legal system and who will not think highly of those who, on whatever grounds, refuse to 1464 improve it. Therefore a constructive dialogue with my noble and learned friend would, I am sure, be to the immense benefit of everyone concerned, including the poor unfortunate litigant and the even poorer and more unfortunate person who at present cannot get into court at all.
§ 9.22 p.m.
My Lords, I am most sensible of the fact that I am speaking to a weary and patient House. I wish to make my position absolutely clear despite the fact that my somewhat eccentric taste—I actually like lawyers—has been very sorely tried today. The reason, I suggest, why I have been sorely tried is that I am not alone, even among lawyers themselves, in having been astonished at the reaction to the Green Papers that has sprung from members and practitioners of the law.
The papers should have been coloured red rather than green. As my noble friend Lori Elton has said, it is essential always to bear in mind that these are nothing other than discussion documents. It may sound impertinent, but I fail to understand how the noble and learned Lord the Lord Chief Justice of England could possibly get as excited as he appeared to get because the judges were not consulted on the documents. Where on earth does discussion start and end? You cannot take back discussion for ever and a day.
The service of the legal profession in this country has been considered by countless Royal Commissions for a very long time. I ask noble Lords to consider very carefully this question. What precisely have the Bar and the Law Society done of their own volition in the intervening periods to put their own house in order? I suggest that very little has been done. If nothing at all flows from these Green Papers and they do not give rise to a great deal of legislation but if they have stirred the practitioners into doing something for themselves, then I shall be very pleased. Many issues are involved. I shall not keep the House for long but I believe that the Bar itself should consider this important point.
It is the only profession that offers highly skilled advice and practice but is never paid prior to the work being in progress. Barristers have to wait for their fees from solicitors, and more often than not they have to wait for a long time. I ask my noble and learned friend to investigate how much money is held by third parties which rightly should be in the hands of barristers but has not been paid over to them as swiftly as it should be. If the Bar had the money for the work it had done and for the work that was anticipated, it would be in a much stronger position to organise its chambers and to plan its work. I know that this is a concern in the profession because I have spoken to many people about it. I have never been able to understand why barristers should not be able to enter into a contractual relationship with solicitors and clients regarding their work and thus be able to sue and be sued regarding fees. No argument that I have heard has satisfied me on this matter.
I can see no threat in the Green Papers to the independence of the Bar let alone to its existence. I 1465 have listened carefully to what has been said but I do not feel that that is either the intention or the effect of the proposals. I repeat that the Green Papers are nothing other than discussion documents.
In a considerable speech the noble and learned Lord, Lord Wilberforce, stated, if I remember correctly which I believe I do, that in itself and of its nature the Bar is in the public interest. That puzzled me because I have always believed that the user of legal services must and should be the final arbiter of the quality and the value for money of the service in the effective resolution of disputes. The Government have an absolute right to consider this matter not least because there are 55 million people in this country. There are 6,000 barristers and some 50,000 solicitors. The Government have a right and a duty to consider the interests of the user of these services.
The legal profession does not exist for the edification and the delight of lawyers but more for the proper administration of justice in a democratic society. There is currently little control over an advocate's ability other than that he or she at some time has passed examinations at the Bar or at the Law Society and has completed the relevant articles or pupilage. Other professions keep firm checks on the ability and competence of their members. Why should there not be an overview by government on behalf of the public in general? I see nothing sinister in this. Indeed, a certificate of confidence is not a sinister licence of state control, still less a substitute for a dog licence. It is a necessary safeguard to ensure that the user of legal services is properly represented by a competent advocate.
Another matter that I should very much like to mention is an issue which, I believe, is covered in Chapter 11 of the Green Paper; namely, the barristers clerks. I am well aware of how much the practitioners of the Bar depend upon the good management of their chambers; but I believe that the power which those clerks have in distributing the work which comes into the chambers is one which has a considerable, albeit indirect, effect upon the administration of justice. Indeed, I was pleased to see in the Green Paper that although Her Majesty's Government did not raise this particular point, they suggested that the Bar should look into the question with great care. I sincerely hope that the Bar will do so.
I do not see the Green Papers as being a threat to the Bar in any way; indeed, I believe that this discussion has been most valuable, both within and without this House, and that it will put the Bar on its metal. In my view, these Green Papers are more of a green light to the profession, rather than a Green Paper. Further, I am absolutely convinced that the Bar will not only survive but that it will triumph.
I should like to make one quick point with regard to the conveyancing Green Paper, and it is simply this. During the passage of the Building Societies Bill through this House, I well remember the noble and learned Lord, Lord Hailsham of Saint Marylebone, giving an undertaking that a provision contained in a lonely schedule at the back of the Bill, which stated that building societies should have the 1466 right to offer conveyancing services to their lenders, would not be brought into effect until such time as the problems of conflict of interest could be reconciled.
At the time, I very much welcomed that undertaking. In my view, the way in which that problem could be resolved is really quite simple. The in-house conveyancer in a building society should be directly accountable and report to the client; he should proffer his fee note directly to the client; and the client should then be able to use that report in any way he chooses. Moreover, he should not be responsible for reporting to the building society. I think that that provision would be a considerable protection in the matter. I am concerned about this issue mainly because of the argument I put forward at the time of that particular debate, and the experience in the United States of America.
I have spoken for far too long and I should now like to rest my case.
§ 9.33 p.m.
§ Lord Meston
My Lords, in attempting to wind up this debate it is not possible, after so many speakers, to make the kind of speech that one might have made nearly 12 hours ago. However, I declare an interest as a practising barrister, and as someone who wants to remain a practising member of the independent Bar. I do not apologise for so doing. To those noble Lords who have criticised the force of reaction of the Bar, and of the judiciary, I shall only say that it reflects the strength of feeling not just at the proposals contained in the Green Papers, but also at their manner of introduction. Having heard that that reaction is not just that of the Bar but also that of the highest judiciary in the land. I hope now that all will realise that it is not the product of self-interest but that it is the product of far deeper considerations.
The noble and learned Lord the Lord Chancellor in his opening remarks questioned what was meant by the term, "the independent Bar". The professional independence which I have, and which I want to preserve if I am allowed to do so, is an independence of partners, an independence of any one paymaster, and an independence of governmentcontrol—be it direct control, indirect control, actual control or merely potential control. It is an independence indeed of all interests except those of the client for whom I happen to be appearing or advising at the time. That is an independence which allows me to be detached in the proper sense of "objective" and to give unpalatable advice when necessary.
The noble Baroness, Lady Phillips, made some play with the word "detached", describing the arrogance of one particular barrister in a divorce case. I suspect that that was many years ago. That is behaviour which would not be tolerated nowadays, especially in the modern family law Bar of which I am a member. Such a person would not survive. Indeed, much of the criticism of lawyers and legal practice that we have heard, not just in the debate but in the media, is not fairly made of lawyers and legal practice in 1989.
The average member of the Bar is bewildered by the Green Paper on The Work and Organisation of 1467 the Legal Profession. He does not particularly want or expect to be liked or loved, but he does want to be left alone unless he is seen to be acting against the public interest.
The average member of the Bar works hard, indeed very hard by most people's standards, and he does so in the interests of his clients. It is in the legal profession in general, and the Bar in particular, that one soon realises the lesson that the world does not owe one a living. The average legal practitioner is now bewildered to be told that legal practice does not now meet up with someone's idea of a competitive market. We know that our whole existence is relentlessly competitive from the very first toe-hold that we achieve. We all know that supply and demand already dictate what we do and do not do, what we earn and do not earn. That was a point made by the noble Lord, Lord Grantchester.
Several noble Lords have told us of their reaction on reading the Green Paper. Mine was that of the noble Earl, Lord Onslow. It was to ask: what are the problems to which the main Green Paper is addressed? There is no statement in the Green Paper of the questions to which it is addressed, save only as to the inadequacies of the solicitors' complaints system to which some noble Lords have referred. In that respect I happily invite the Government to look at the recommendation for a simplified and clarified complaints procedure contained in the National Consumer Council book to which the noble Baroness, Lady Oppenheim-Barnes, referred in her excellent maiden speech.
What is also dismaying in the main Green Paper is, as my noble friends Lord Hooson and Lord Hutchinson said, that no reference appears to the strengths of the existing system. That does not mean that the Bar is, or should be, complacent about the status quo. The modern Bar and the modern Bar Council are not complacent, and indeed cannot now afford to be so, because—I hope that the Government will appreciate this—the Bar Council is reacting constructively and not obstructively to the Green Paper. I hope therefore that the Government will give full consideration to its views because, as the noble and learned Lord, Lord Havers, said, there is now a willingness to look ahead.
I was especially impressed by the remarks of the noble Lord, Lord Alexander, who outlined the changes that have taken place in the 15 years that I have been in practice. They are not only changes in the structure of the Bar, but changes in the attitude of barristers to their work and clients.
Perhaps the most bewildering contradiction in the Green Paper is that, although we are now to be exposed to market forces, we are also to be subjected to increased Executive control, through the quango—one can only call it such— (the advisory committee); thereby the Executive will provide legal education and arrange for the certification of advocates. Of course it is only indirect control, and of course it has potential for misuse only under an extreme Government. But we should heed the words of the noble and learned Lord the Lord Chief Justice, in his immensely powerful speech. To those who think that all the talk today about the independence 1468 of lawyers and of the judiciary is a lot of self-serving hot air, we should look at the corruption and oppression in countries where the independence of the lawyers has either been lost or has never been achieved.
All this proposed control comes from a government whose philosophy, as I have always understood it, was to let people earn their living with the minimum of outside interference. Why are such controls necessary? There is no answer in the Green Paper. The fact is that if on Monday next I were to fall short in standards of professional conduct, I should be answerable to the court, to my instructing solicitor and to my client; I should be answerable to my professional body and to my chambers. Why is that not good enough? What is the explanation, as the noble and learned Lord, Lord Oliver, asked, for the Government's statement in paragraph 4.12 of the main Green Paper? Why cannot the professional bodies now be trusted to provide their own codes? And if these are matters of such great importance, why are they to be only in statutory instruments and not in primary legislation?
The fact is that the Royal Commission under the noble Lord, Lord Benson, came down against fusion for two main reasons: first, because it believed that fusion would not help to maintain the standards of advocacy, both then and now, available from the Bar; and, secondly, because the Royal Commission wanted to preserve for the public the benefit of the services of small firms of solicitors. At this late hour I shall not attempt to rehearse the arguments, or to suggest a scenario if the proposals were to be put into effect. But one must bear in mind that the vast majority of the population who require legal services go to small firms. If the talented Bar are creamed off away from the "cab rank" and into partnership with solicitors and other professionals, what does the small solicitor do when a client requires a good barrister, and such a person is no longer available? How on earth does that help the Government's objective of freedom of choice and accessibility? In fact, I suggest that the law would become less accessible and more expensive.
The depletion of the number of small firms of solicitors will be aggravated if further inroads are made into their conveyancing work. It will certainly mean a depletion of the number of practitioners willing to take legal aid work. How can that all be said to help consumer choice or consumer interest? Those who do legal aid work in both branches of the profession will always find it hardest to survive, and this Green Paper seems to me to do nothing to arrest the continuing withdrawal of firms of solicitors from the legal aid system. As I understand the position, the Bar Council's proposals in reaction to the Green Paper will in fact include measures to arrest any loss of barristers from the legal aid scheme. As for standards of competence, the overall effect, I submit, will be that there will be a wider gap between the good and the second-rate.
I shall not develop this scenario because time does not permit. The fact is that the public does need the different and complementary skills of the two branches of the profession, and the judiciary needs the different and complementary skills of the two 1469 branches of the profession, as the noble and learned Lord, Lord Donaldson, said. The judiciary relies on the combined skills for the efficient preparation and presentation of cases, thereby saving time and money—and of course, as the noble Lord, Lord Beloff, pointed out, there is more to advocacy than mere rhetoric. If one wanted a good working definition of democracy in 1989, one need look no further than the remarks in the noble Lord's speech.
There are other points which can be made, but not at this hour. They involve the wider considerations of the involvement of the Crown Prosecution Service in the advocacy system. Subject to correction, I think that the Marre Committee spoke against that. The comments that one can make about the involvement of the Crown Prosecution Service do not reflect upon the present integrity of that service, but there are inevitably question marks over the ability of the Crown Prosecution Service as it is presently constituted and funded. A matter of wider concern is that there will be the inevitable development of a body of prosecution-minded civil servants. That cannot be better than the existing system. I wonder to what extent the circuit judges have been or will be consulted.
We have almost lost sight of the fact, but not quite, that there are three Green Papers to consider, not just one. I share the instinctive abhorrence of the idea of contingency fees because of the risk of conflicting interests and lowering of standards. Moreover, I see no demand for contingency fees. I suggest that there ought not to be any demand for such fees in a country which has, or ought to have, a fair and efficient legal aid system. Indeed, it is out of place in a system of compensatory damages, which are damages intended to compensate the litigant, not his lawyer. It is certainly out of place in a system which, in my view, provides woefully inadequate damages for personal injuries. If we are to have such a system there should be the most stringent safeguards, but, as several noble Lords have said, there must be a doubt as to whether even the most stringent safeguards will be sufficient protection. As the noble Viscount, Lord Dilhorne, suggested, perhaps legal insurance can play a greater role.
There is also the very important Green Paper on conveyancing. I hope that the Government will look at the carefully considered, powerful remarks made by the noble and learned Lords, Lord Templeman and Lord Oliver, and the remarks of the noble Lord, Lord Coleraine. We are concerned about the quality of service. Will the financial institutions be prepared to deal with small transactions or will they adopt the attitude of banks that have been appointed executors of renouncing probate if the administration of the estate will not result in an adequate administration fee? For example, will the financial institutions be prepared to deal with problems that often arise after the purchase of a dwelling house, such as the necessity to acquire a small area of land for a garage? These are problems which one could not begin to debate at this hour.
Returning to the main Green Paper, there is clearly a wide difference of opinion as to the effect of the proposals and as to the time-scale of any effect. The noble and learned Lord the Lord Chancellor hopes 1470 for the best. He believes that the Bar will survive and flourish. Other noble Lords fear the worst or take a position in the middle. Only more time and better evidence will allow us to evaluate the risks and the benefits. We lack objective information on cost-effectiveness and other matters of wider importance. As the noble and learned Lord, Lord Hailsham, has said, we must look at the facts. One of the facts that we must look at is that we have a system which has evolved over many years and which is admired throughout much of the world. I hope that the Government will treat these proposals as proposals in a Green Paper in the true sense of that expression as it is widely understood. Indeed, I wonder whether the Government will now, having heard this debate, indicate whether, after all, there will be a White Paper. If they believe in the value of an independent Bar, I hope the noble and learned Lord the Lord Chancellor will take the opportunity to say so, because it has to be said that the Green Paper on the future of the legal profession conceals any such belief, if it in fact exists.
§ 9.50 p.m.
§ Lord Mishcon
My Lords, I declare an interest immediately as I belong to a great, wise and beneficent union. I ask your Lordships to guess which union that may be, having regard to the debate that we have had. Having said that, this has indeed been, if I may say so in this winding-up speech on behalf of the Opposition, a remarkable and an historic debate. In one respect it was unique in that I heard the noble and learned Lord, Lord Hailsham of Saint Marylebone, say "Hear, hear!" on five occasions—I counted them—with regard to points made by peers sitting on this side of the House.
§ Lord Mishcon
My Lords, in other respects this debate was unique in that your Lordships always command the heights of courtesy in the debates of this House, but some of the speeches that were made had stronger language in them than your Lordships are usually accustomed to. I have an idea that the noble and learned Lord the Lord Chancellor who was a supreme advocate in his day, must have relied on the proposition that was made to most of us very early on in our tuition in the law; namely, that if one has a bad case one should bang one's opponent, and if one has a hopeless case one should bang the table. I felt that some of the strong speeches may have elicited that reaction from the noble and learned Lord.
I feel that it is necessary to go back to what the noble and learned Lord said when he addressed The Times forum. I have no doubt that his remarks were accompanied by the knowledge of what took place so often regarding drama, as the forum was that great building, the National Theatre. The noble and learned Lord said:I am listening, and shall continue to listen to what those responding to the papers have to say. If those responding to the green papers convince me that the proposals are bad and need to be modified, modified they will be. But it goes without saying that this process will be infinitely easier if those responding do so in a rational and constructive way".1471 I hope to be rational, constructive and reasonable. I start off with a quotation from that greatest of common lawyers, Sir Edward Coke, who practised his law and held high office in the reign of Elizabeth I. That was nearly three centuries ago. He stated:How long so ever it hath continued, if it be against reason it is of no force in law".I wish to say that if it be proven, however so long traditions and procedures have gone on in the profession to which I have the privilege to belong and of which I am so proud, that it lacks reason or it lacks indeed benefit for the public that we serve, then it hath no force, should have no force, and should be capable of change.
We have been invited to take the liberty of advising the noble and learned Lord who sits on the Woolsack of our reactions to his three Green Papers. I shall do so now on the basis of reason and of proper argument.
The first piece of advice that I should have ventured to give the noble and learned Lord if I had been able to whisper in his ear some weeks ago would have been to avoid the Ides of April. Having regard to the debate which has taken place today I think that that would have been sound advice.
It is a fact that there are some matters which are at the moment and have been for some time of grievous concern to the public. Those are matters to which my noble and learned friend Lord Elwyn-Jones and others have referred. They are the expense and slowness of litigation. Those are matters which ought to be looked at and must be remedied.
Whatever the colour of the three Green Papers, that colour does not apply to the noble and learned Lord. I observed, as others may not have observed, this morning's Hansard. Those noble Lords in the country—if I recall correctly questions and answers of a day or so ago—may not have received that yet; but those who are fortunate enough to live in the metropolis will have received it. Your Lordships may be astonished to learn that the noble and learned Lord forecast in Hansard that some participants in the debate today would take the point that the Green Papers had nothing to say about how to speed up justice and how to make it more economical. In a Written Answer to a Question from the noble Lord, Lord Colwyn, who asked Her Majesty's Government:What are the Government's plans for implementation of the Civil Justice Review",three columns in this morning's Hansard deal with the Lord Chancellor's proposals.
Those are matters of great moment which, happily, will speed up justice and may well make it cheaper. I have an idea that the noble and learned Lord inserted those columns into today's Hansard bearing in mind that it may be useful to be able to refer to them when he replies to the debate tonight.
The plans include a more appropriate distribution of business between the High Court and the county courts. A new system will be introduced to ensure that cases are handled and tried at the appropriate level. The upper financial limit of county court 1472 jurisdiction will be removed. The new system of case allocation will be accompanied by a number of changes designed to eliminate unnecessary differences between High Court and county court procedures. A number of procedural changes will be introduced as a means of speeding up and improving the handling of full trial cases in both the High Court and the county courts. There are provisions here for debt enforcement and for planning the changes in the handling of housing cases in the courts. Administration order procedures will be reviewed. Closer links between courts and advice agencies will be encouraged.
There are other matters to which I should love to refer but for the lateness of the hour and the fact that I do not want to take part of the speech of the noble and learned Lord away from him. Those are matters that deal with the very important considerations of cheaper access to the courts and a speeding up of court procedures. I shall not say that they are absolutely total recommendations that may come forward in this respect from the Government, but at least they are the beginning.
So we are left with the proposals in the Green Papers themselves. I repeat: we have been asked to advise the noble and learned Lord of our views. The first thing that I would say to him, with the greatest respect, concerns the message that comes from this Chamber tonight, not just from my colleagues in the law. I thought that the speech of the noble Lord, Lord Benson, was a quite remarkable one from a layman.
§ Lord Mishcon
My Lords, I know that no one will be offended if I mention that man with those words of eulogy. He is deserving of them. I thought that that was a remarkable speech from a man with all his experience, having chaired that commission and taken advice from all over the world from those who could best give it to him.
I believe that the message that comes from the debate tonight to the noble and learned Lord is this: please, festina lente—hasten slowly—in these matters and consult now with bodies which are more than prepared to sit down with him in the quietness of a conference room—not in the noisiness of a court or of a parliamentary chamber—and look at some of the matters that have been perfectly properly raised in this Green Paper and dealt with by consensus. That is the only way in this land that reforms of this nature will ever be carried through. Consensus is necessary. Consensus can be obtained if reason prevails.
I ask the noble and learned Lord to beware of multi-disciplinary partnerships and of the conflicts that could arise in that connection. I ask him to beware of contingency fees. If one wants an example of the conflict of interest there, I shall give it very speedily. Let us imagine counsel and a solicitor in a contingency fee case outside the doors of the court. It is a three-day hearing in front of counsel who is also asked to participate in the contingency fee basis. An offer is made by the defendant. Normally counsel 1473 would say, "You run the risk of being burdened with the costs if you lose, but I think you have a good case and I would advise you to refuse this offer".
Let us consider the conflict of interest when counsel is engaged under a contingency fee contract. If he goes into court and fights for three days, he has three days of labour and, at the end, he may end up with no fee at all. There is a small offer on hand which includes the offer of costs, as it normally does. Let us consider the conflict of interest. Three days of work have been saved. A fee will come to counsel which would not come if he lost. Can noble Lords see the conflict?
I ask the noble and learned Lord to be careful about contingency fees before he introduces them into the profession. If he is thinking of his glorious past north of the border, where contingency fees of a certain nature are allowed, I know that he will forgive me if I remind him that I am told that only in 1 per cent. of litigation in Scotland are contingency fees encouraged or do they occur. In those circumstances, it will hardly be a solution to the problem of those litigants who cannot afford cases and who come outside legal aid.
I should like to make one last point in regard to my own profession. Do be careful, I say to the noble and learned Lord, with deep respect, before introducing the reform which he believes is a great reform of allowing loan institutions and building societies to have their in-house lawyers offering a package deal with them so that they are allowed to do conveyancing work. I plead with him to think again and to do so for two reasons. When I have made those points, I propose to sit down.
First, I ask him to remember, as the noble and learned Lord, Lord Templeman, and my colleague the noble Lord, Lord Coleraine, asked him to remember, the work that is done—the valuable civic work of the little lawyer in the countryside and on the high streets of the suburbs of our towns. The little lawyer is a valuable pillar of the law in his own area. If one takes away from him the bread and butter work of his conveyancing and probate practice, one will find that the little lawyer has disappeared. I do not plead only on behalf of smaller firms in my profession. I plead on behalf of those districts which such lawyers serve.
Secondly, when he addressed another assembly at which I was priviledged to be present the noble and learned Lord gave the impression that he did not really know what was happenng in this world of ours in regard to conveyancing. At that time he said that when independant financial advice is wanted it can always be obtained from a separate solicitor to whom the client can turn. Perhaps I may tell the House what is happening now. I shall do it very shortly. I wonder whether the noble and learned Lord knows, for example, that at this moment, as a result of terrific activity over the past couple of years, mortgage lenders own more than two-thirds of the estate agency offices in this country. That is an accurate figure. They own more than two-thirds of the estate agency offices in this country.
I wonder also whether the noble and learned Lord is aware of complaints made to the Law Society 1474 about estate agents who say, "If you do not take out a mortgage or an endowment policy through us, we do not intend to put your offer to our clients". Those are actual complaints. Is he aware that only a couple of weeks ago, the Association of County Councils, which is an organisation that has nothing at all to do with my profession but which represents trading standards officers in England and Wales, expressed open concern about the growing number of complaints that they are receiving concerning agents who are blackmailing house-buyers into arranging mortgages through their firms. They say that such agents try to ensure that house-buyers do not receive independent advice on these arrangements.
Until estate agents are subject to some legislation in regard to ethical standards and until this whole matter with regard to encouraging the linkage with endowment policies and so on in pack age deals is inquired into, I ask the noble and learned Lord not to give his permission to those lending institutions to undertake conveyancing and wrap it up in their packages. My plea is for conciliation. My plea is for proper consensus to be obtained before alterations are made in a profession that, whether or not it is popular with the public, I for one am proud to belong to because of its great traditions of service to this country and to justice in this land.
§ 10.10 p.m.
§ The Lord Chancellor
My Lords, I am grateful to every one of your Lordships who has contributed to this debate. I say that with the deepest sincerity after a long debate. So far as I am aware I have not criticised the Bar or anyone else in respect of their responses to the Green Papers. In particular, I do not think that I personally have ever described the Bar's reaction as partaking of hysteria, so far as I know. Some comment has been made about that: I do not wish to say anything except in relation to what the noble Viscount, Lord Bledisloe, said.
I am very conscious that I have to explain and show what is meant by the various proposals in the Green Papers. I have tried to do that with vigour but I am not in the business of convincing myself in the course of these discussions. I have also to say that, insofar as he referred to the chairman of the Bar Council, I have the very highest regard for Desmond Fennell as an advocate and as the chairman of the Bar. Your Lordships have had the opportunity of seeing the nature of his work in the very distinguished report that he made in relation to the King's Cross fire.
§ The Lord Chancellor
My Lords, I should like to congratulate the noble Lord, Lord Rees-Mogg, and my noble friend Lady Oppenheim-Barnes, on their very distinguished maiden speeches. It is quite impossible for me to refer to everyone who has spoken. I could do so if that were thought: desirable, but perhaps all noble Lords who have contributed will take it that I refer to them when I thank them for what they said. The practical effect is that I shall take very careful in note further consideration of all that has been said.
1475 One of the difficulties one has as Lord Chancellor, with responsibility for policy in relation to the legal profession, is that the Lord Chancellor is in the position of being responsible with the other members of the Government for making proposals that are government proposals setting out the provisional views of the Government. Anyone who knows anything about it is aware that in order to reach these provisional views there has to be discussion within Government. It must ultimately be the responsibility of the Government when they make government proposals. On behalf of the Government, I take full responsibility for these proposals.
However, I was disturbed in relation to the speech of my noble friend the Lord Chief Justice on the matter of consultation. I am very glad that he is able to be here still. I wish to say this in his presence. Since his speech this morning I have had an opportunity to consider again the correspondence that passed between us last autumn immediately after the Government's announcement of their Intention to publish the Green Papers. In that correspondence the Lord Chief Justice said that they were of course essentially my proposals, some of which might meet with the approval of the judges, some not, and that it would be quite wrong for it to appear that the Green Paper had the backing of the judges or that they had had any hand in its preparation or the proposals. When it appeared would, he said, be the time for the judges to express their views about it; in the meantime, so far as this particular topic was concerned, it was essential that the judges remained at arm's length.
In my reply I made it clear that I wished the judges to have the earliest possible notice, in an informal way, of what these proposals were, as they were being developed, in order that when the paper was issued to the public and invitations given for responses to it, the judges might find it easier to give their views. I did not intend, however, that this should in any way involve the judges in the preparation of the proposals. I went on to say that the proposals must be seen as emanating from the Government, and although any wisdom that the Government could gather in formulating the proposals would be a great help, the Government must retain the sole responsibility for them.
I have made copies of this correspondence available to my noble and learned friend the Lord Chief Justice in the course of today. He has since indicated to me—and I feel it is generous of him—that he is happy for me to say that the word "discourteous" is withdrawn by him. I regret any misunderstanding which may have arisen. I am extremely grateful to my noble and learned friend for his courtesy in allowing me to make that statement.
Your Lordships must appreciate that there is a difficulty for someone putting forward proposals to know when he has proposals which are government proposals—that is, proposals of the Government as a whole—for consideration by others. I have been in continuous discussion with both the Bar and the Law Society about a great variety of issues, including during the period when the Green Papers were being prepared. But it was clear that until they became 1476 government proposals I was unable to say what they were. Once they became government proposals they were almost immediately issued, for obvious reasons. The proposals are issued for consultation and the opening words of the main Green Paper make it quite plain that these are the Government's provisional proposals.
Having made the proposals, the Government have indicated that they wish to make a statement before the Summer Recess on what action they propose to take. Therefore I should like to receive by 2nd May all the responses which are then available. I believe that it is very important—not least from the point of view of young people who may be considering what they may do—to say as rapidly as possible what is the Government's intention. But that does not mean that we would necessarily go ahead with these proposals in their present form or neglect the fact that in the representations to be received by 2nd May there were suggestions, areas to be looked at or other matters to be considered. Obviously we shall be considering what, if anything, may follow from the consultations. All that will be taken into account.
Your Lordships will appreciate that it is important for those young people considering coming to the Bar or entering the solicitors' branch of the profession to know as soon as possible what we are proposing. Your Lordships may not be surprised that I have had questions on that point from university and other students.
I should like to say that the purpose of the advisory committee structure and the statutory code of conduct would be to provide a statutory framework within which the Bar—that includes the Inns and the General Council of the Bar and the Law Society —could operate in respect of rights of audience. I am open to consideration of these matters but, in seeking to frame the proposals, I paid special attention to the work that had been done previously, and in particular to the work that was done by the Royal Commission chaired by the noble Lord, Lord Benson.
I agree with what has been said about that commission and the quality of its work. Chief Justice Warren Burger was a witness, and I paid particular attention to his testimony. In my understanding, he identified the point that the advocacy role in this country—and I refer to England and Wales—was performed by those who had attained a high standard of competence and were regulated by a proper code of conduct.
I do not suggest for one minute that merely putting a code of conduct on a piece of paper produces the desired result. I agree thoroughly with the view that at the present time the Bar Council and the Inns of Court, under the system which has been reformed as a result of the initiative under the leadership of my noble and learned friend Lord Rawlinson of Ewell, have functioned well. The point with which I must deal is that, if the Law Society is to be allowed to grant rights of audience in the higher courts, then there is need for a common framework against which it also can operate. If one is to have self regulation by two different bodies in the same area, surely one must have some form of framework against which they can operate.
1477 I shall consider most carefully what has been said about that matter by my noble and learned friends the Lord Chief Justice and the Master of the Rolls, my other noble and learned friends and others of your Lordships. I take seriously the approach taken by my noble friend Lord Beloff to the matter. I value the constructive suggestion made by my noble and learned friend the Master of the Rolls and I shall look at it carefully with that feeling in mind.
As my noble friend Lord Alexander of Weedon has said, the report of the Marre Committee referred to a time for change. I appreciate the work that was done there. I have indicated that, as my noble and learned friend Lord Griffiths has pointed out, the problem which was left over as a result of the resolution which the Bar Council took before the committee reported left me with a difficulty to resolve on coming to this office. The Green Paper is a proposal for resolution of that problem. I shall certainly consider carefully and with appreciation the ideas raised by my noble friend towards the end of his speech as being a constructive way forward in this matter.
The noble Lord, Lord Mishcon, was kind enough to be careful not to take away the whole of my reply speech. But I had referred in my opening speech to the Government's decision about the implementation of the Civil Justice Review. Therefore, I did not have it in mind to refer to that again.
As regards the issue of legal aid—and I entirely appreciate that this is extremely important—the legal aid aspects of these matters were discussed in connection with the Legal Aid Bill. It may be worth mentioning that I believe that the first paper which was put out in relation to legal aid in 1986 was a White Paper. That was followed by the Legal Aid Act, and there are flexible provisions in the Legal Aid Act which I hope may be able to help us to tackle some of the problems mentioned particularly by the noble Lord, Lord McGregor of Durris, the noble and learned Lord, Lord Elwyn-Jones, and others in relation to legal aid.
As regards the high street solicitor network in that connection, I believe that your Lordships may take it that I have very much in mind the problems of the high street solicitor and I hope that that was expressed in the Green Paper dealing with authorised practitioners. I certainly have that very much in mind, and the need for effective arrangements for fair competition certainly figures highly.
In that connection perhaps I may say a few words to my noble friend Lord Coleraine. I certainly envisage that if a building society or bank is offering conveyancing services to a client of the bank or building society, then that building society and bank's solicitor in charge of the transaction will have the ordinary responsibility of the solicitor for the conveyancing of that client. When I said in the Green Paper on authorised practitioners that the interests were the same, I meant that in the sense that there is no conflict of interest. Of course it is true that there may be some further interest which the client will want to pursue over and above those in which the lender has an interest, but on the matter of title the lender will want to have a good title—and that 1478 is also the essential concern of the purchaser. However, I certainly intend that it be made absolutely plain that if such service is offered to a client, the ordinary duty to the client will be incumbent on the solicitor employed by the lender in responsibility for the transaction.
I now turn to the Green Paper on contingency fees. A number of different views have been expressed about that. Perhaps I may say, first, that the contingency fee paper is put forward because the Civil Justice Review Report recommended that that matter should be further considered. I believe that it follows from that that the very distinguished review body did not consider that it was self-evident that those matters were so utterly abhorrent that they should not be allowed in any shape or form.
I have experience of the action in Scotland—of course I accept that that is not widely used but it exists—under which a lawyer can undertake to do a case on behalf of a client on the understanding that if he wins the case, and in consequence the client receives an award for expenses against the other side, the solicitor will receive those costs. Otherwise, the solicitor will not be paid because the client is not in a position to fund the action.
That is one form of contingency fee in the sense that it is payable on the contingency of success which is referred to in the Green Paper on that subject. The other two forms are that plus an uplift for the fact that the lawyer has funded the litigation, and the third, which is more analogous to the method available in quite a number of states in America and in other countries including Canada, is where some percentage of the damages awarded is allowed.
It has to be said that in the United States, for example, there is no normal rule of cost following success. Here, that would be the rule and therefore the client who makes such an arrangement with a lawyer, if he lost the case, would be putting any assets he had at risk of a finding of costs against him; so the discipline here would be somewhat different to that in the United States.
As I said, your Lordships would not thank me for going on at great length. However, I should like to say in response to my noble and learned friend Lord Bridge of Harwich that I certainly expect that if these proposals in the Green Paper were to be implemented in the way that I have put them forward there might well arise a solicitors' "Inn of Court" in addition to the present Inns of Court. The essence of the matter as I understand the arrangements in the United States is that these "Inns of Court" are intended to encourage high standards of specialist advocacy.
That is basically what I am saying about solicitors. It is not right to give a general right of audience to all solicitors because most of them are concerned mainly with other work. But there are some solicitors who might well be regarded as interested in qualifying to present arguments in court. If they are so qualified it seems, at least at the present moment, that it might be perfectly right for them to be heard in the higher courts. The arrangements under which that could bed one have been fully discussed and I 1479 shall not take up any more of your Lordships' time upon the matter.
This has been an historic debate. We have had the advantage of listening to those whose views are deeply respected. I am extremely grateful to all noble and noble and learned Lords who have taken the trouble to formulate their views for the benefit of the House and the debate.
It has been said that the popularity of lawyers is not particularly high. In my judgment that has no part to play in any discussion of this nature. I hope your Lordships will accept that I am fully committed to the independence of the judiciary and to the independence of the Bar as a profession which has given service. I do not regard the proposals which I have put forward in the Green Papers as in any way threatening that independence. I am content to consider carefully what has been said because, as I said, I respect those views and I will very much take them into account.
It is also right to say that the other and much larger branch of the legal profession is also properly regarded as independent. Though there are many partnerships in it, many of them large, it is still an independent legal profession. As regards partnership I agree with the view expressed by my noble and learned friend Lord Oliver of Aylmerton that if one has a right to be heard, then one has a corresponding obligation to give one's services. For example, I have suggested that if it were permissible for a person enjoying the advocacy right to be in partnership, he would be under an obligation to give his services as an advocate to anyone who asks for them and would not be entitled to require that the person should receive the services of his solicitors. So the cab rank rule in that extended form would apply if that kind of arrangement were to be permitted.
By the arrangements that are perfectly lawful under the Bar's code of conduct the Bar has recognised that the sharing of fees between barristers is allowed. Therefore the independence of the Bar allows barristers to share fees. As the noble Lord, Lord Gifford, pointed out, one of the results of that is that it is possible to make arrangements for young people to get financial reward in the early days at the Bar. The fact that the Bar considers this to be perfectly permissible is an indication that some degree of financial relationship is consistent with the independence of barristers. What is more, it is necessary for the survival of the Bar by making possible appropriate provision for the young people who wish to join.
I believe that it is time for me to propose the Motion that I proposed at about 10 o'clock this morning and to bring these proceedings to a conclusion.
§ Lord Elwyn-Jones
My Lords, before the noble and learned Lord sits down, perhaps I may be permitted to ask him to clarify, first, whether the Government are willing to give an extension of time for further consultations to take place; secondly, whether he is prepared even at this point of time to enter into consultations with the judiciary, the 1480 profession and others who are concerned, before a final decision is taken as to the future. Finally, can he say whether there is to be a White Paper arising from the matters that we have been discussing?
§ The Lord Chancellor
My Lords, I thought that I had dealt with that, but let me do it now if I have not done so sufficiently. I said that we have allowed to 2nd May for responses to be received. In my view there is a necessity also to implement the undertaking that we gave at the beginning of this process to make a Statement as regards these matters to the House before the Summer Recess. As I have said already, I believe that it is very important that students and others should not be kept waiting unnecessarily. I also said—and I repeat it—that the representations that are received by 2nd May may well contain suggestions for further work or something that requires to be done. In considering the Statement that the Government would make before the Summer Recess, that aspect of any such representation would be taken into account.
My Lords, I risk the impatience of the House, but it is vital that the noble and learned Lord tells us whether, between the beginning of May, which is the latest date for the receipt of representations on the Green Papers, and the Statement to be made before the Summer Recess, he will enter into consultations with the judiciary and the two professional bodies to see whether some consensus can be reached.
§ The Lord Chancellor
My Lords, I am sorry but I should have made that plainer. So far as I am concerned, my door is open to the judiciary and to both branches of the profession at all times. Therefore, that situation arises now. I would certainly hope to have full meetings with those concerned by the time the Government Statement before the Summer Recess is made. I am not suggesting that there will be any change as regards openness to receive representations and people coming to see me just because 2nd May has arrived. I am open now to hear what anyone has to say. I hope that I have already expressed my appreciation of what has been said today.
§ The Lord Chancellor
My Lords, this is a technical question. I do not know whether the answer I gave yesterday would be regarded as sufficiently "white" for this purpose. A good deal depends on what one has to say. I do not think I should pre-empt the form of the Statement at this stage. I promise that, all being well, the Government will make a Statement before the Summer Recess. The form of the Statement will no doubt be dictated at least to some extent by the nature of its content.
§ On Question, Motion agreed to.
§ House adjourned at nineteen minutes before eleven o'clock.