§ 4.44 p.m.
§ Second Reading debate resumed.
§ Lord Lane
My Lords, I should like to make one or two general observations. I shall speak first on Part II of the Bill which your Lordships are considering. The judges are concerned about the long-term effects of the Bill, much of which, one is bound to say, is drafted in such a way as to make its outcome difficult to predict. For example, it seems, as the noble Lord, Lord Hutchinson, said, that the legislation will omit what is perhaps the most important objective contained in paragraph 2.3 of the White Paper. The wording of that document is not repeated in Clause 14 of the Bill. There is no repetition of the third paragraph which expressly introduces the limiting concept of the interests of justice. I am sorry that the interests of justice have gone. I hope that I shall not be accused of sabotaging the Bill if I ask what the purpose of that omission may be. I appreciate that the noble and learned Lord the Lord Chancellor said —correctly of course —that the language of the statute is necessarily different from the language of the documents which may have gone before. But what is the necessity for that alteration?
Secondly, I wish to refer to a point which was also raised by the noble Lord, Lord Hutchinson. It concerns the role of the so-called "designated judges" among whom, to my surprise, I find myself. It is a position which is not easy to fathom from the Bill. It involves a very abtruse correlation between Clause 14 and Schedule 4. Perhaps I may ask that those matters be clarified during the course of the Bill's proceedings.
One hopes that at the end of the day, when all these arguments have seen the light of day, two matters remain clear: first, the independence of the judiciary from control by the Executive and, secondly, the 147 recognition that in the adversarial system which we operate, the judge is largely dependent upon the efficiency, the skill and the integrity of the advocates who appear before him. Of course, the efficiency and the skill will vary from advocate to advocate. Moreover, in this highly competitive field, the greater the skill and efficiency the higher the earnings will be and vice versa.
However, the standard of integrity must be the same in the case of every advocate. Under our system, when dealing with a matter which is sometimes difficult to explain and to appreciate, the advocate owes a duty to the court which in many ways transcends his duty to his client. Let us take one simple example: he must not present a case which he knows is not true; and he must not present facts which he knows to be untrue in order to assist his client's case.
There are many matters which the judge under our system must necessarily accept on trust from the advocates who appear before him. If you destroy that trust you begin to erode the whole basis of justice as we try to administer it. Much of the training of a barrister and many of the rules by which he is bound are aimed at ensuring that integrity. One would have thought it scarcely needs to be stated that it is essential that every advocate should be bound by the same set of rules enforced by the same ruling body. For centuries, so far as concerns the higher courts, that has been the case. The judges have decided who should be permitted to appear before them. They have had a controlling hand in many ways over the creation and the enforcement of the disciplinary procedures of the Bar. If that process is to change and if there is to be, as is proposed, a number of bodies able, so to speak, to authorise and promote advocates, then I respectfully suggest that the rules for all must be the same and that the enforcement of those rules must be consistent throughout.
Analogies are dangerous, but it would cause a bit of a stir in the golfing world if, in the next Open championship, those competitors from Britain were bound by the rules of the Royal and Ancient and those from other countries were bound by the different rules operating in their own countries. That would cause chaos. I suggest that the same chaos would result if there were not a cohesive body of rules governing all advocates in this country. There must be that centralised control and one would have thought that that must in the end come from the judges who are in control of the conduct of the court and therefore in control of the advocates who appear before them.
Perhaps I may mention in passing that it is important to draw a distinction between the ease of making a set of rules and the difficulty of ensuring that those rules are observed, especially when they lack uniformity. That is particularly so where the observance of the rules depends so greatly upon the integrity of each advocate.
Having said that, perhaps I may, with your Lordships' permission, turn to Part I of the Bill. Many of the proposals contained in Part I have 148 already been pre-empted by what the judges have done by way of redistributing work, where possible, from the High Court to the county court as my noble and learned friend the Lord Chancellor said in his opening remarks. That has been achieved by using Section 40 of the County Courts Act 1984. Less important cases have been transferred down by Queens Bench masters either before or at the time of setting down. That system, to take the matter briefly, has now been extended by practice direction to the provinces. We now have, long before Part I takes effect, 45 county court trial centres in operation dealing with transferred cases. All that took place, as I say, long before the Bill's emergence.
However, it is one thing to initiate reforms of that nature and it is another thing to make them work. Whether any court operates efficiently or not will depend upon the standard of service provided by the court officials and the efficiency or otherwise of the infrastructure organised by the Lord Chancellor's Department. That was made clear in the report of the Civil Justice Review Committee at page 57, where it pointed out, if it needed to be pointed out, that if there is that shift of work from the High Court to the county court:Implications for staff numbers and accommodation will require to be assessed at an early stage".Let us note those words. It continues:this assessment should have regard to the proposed improvement in standard of service as well as the increased volume of work".In opening today's debate my noble and learned friend the Lord Chancellor clearly appreciated the necessity for what one might call an adequate and efficient ground staff in his department. It is perhaps not generally understood, or may not have been understood until the noble Lord, Lord Mishcon, rose to his feet this afternoon, how serious the situation is, not just in the county court but in the Crown court which of course deals with crime. To a large extent those two courts are interdependent. In many cases they share the same building.
However good the advocate, however good the judge, a court system cannot operate without an efficient administrative organisation to back it up. There must be adequate buildings in good condition. There must be properly trained, adequately paid staff in sufficient numbers. There must be an efficient filing system, properly maintained. Letters must be answered expeditiously. Cases must be listed so as to avoid overcrowding on the one hand and empty, idle courts on the other.
Let me reiterate what has already been said: the staff of the Crown and county courts, those who still remain in post at any rate, are loyal and hardworking to a degree and are doing their level best to cope with the enormous difficulties which face them at the moment; but there is a limit to the strains which can be imposed upon them, beyond which morale inevitably starts to crumble. That limit has in many cases been reached.
I have letters from a number of court centres which make the situation regrettably clear. Difficulties arise almost exclusively from a lack of sufficient resources and from underfunding. The more senior staff see the younger members disappearing away from the service as soon as they are trained into better paid 149 jobs. They themselves are overworked. They see the standard of service that they provide deteriorating. They are ashamed of it, and so the downward spiral of morale continues.
I shall give, if I may, a few examples. There is an acute shortage of court clerks and ushers, both of whom are an essential feature in any well-run court. It is no rarity these days —I now turn to the Crown court for a moment —for a judge to try a serious criminal case for three or four weeks on end without any court clerk in attendance. It is no rarity for the only member of the administrative staff present in court to be a part-time usher who does his or her best to act as court clerk, dock officer, exhibits officer and usher. That is an intolerable situation. To take one small example, it means among many other difficulties that the dock telephone and the court clerk's telephone are both unmanned and accordingly, sudden emergencies cannot be dealt with as they should be.
On 30th November last at the Old Bailey, 14 courts shared seven clerks. I understand that an embargo has now been imposed on the employment of any local, casual staff, to save money. The situation will worsen. Indeed, in some centres in the North, courts are standing unused because of a lack of staff.
Even more serious, as the noble Lord, Lord Mishcon, has said, is the clerical side of the county court, the very court which is at the proposed receiving end of the proposed increased workload. The shortage of staff is acute. In one large complex not far from your Lordships' House 50 per cent. of the staff have less than six months' experience. In many courts the paper work is way behind schedule. Taxation of costs and payment of fees are all in arrears. Correspondence has perhaps been the main sufferer. An increasing number of mistakes are made. In two centres —I suspect that this is a great deal more widespread —a 50-day backlog exists in dealing with general correspondence. That means that if a litigant or a legal adviser writes a letter to the court in plain language, he or she cannot expect an answer for two months. That is no way to run a court. It is no fault of the staff. It is the fault of under-funding.
In one court £30,000 is held in a suspense account. That money represents fees paid by members of the public for services which have not yet been provided to them. It has already reached the ludicrous situation, as has been indicated, where courts and windows stay filthy because the staff who should be cleaning them cannot be paid as there is not enough money. Clocks remain unadjusted through lack of funds. I shall not weary your Lordships with more examples, save to say that the supply of The Times newspaper at 30 pence per day has been cut off to most courts as a measure of economy.
It is not for me to allocate blame; indeed it does not matter who is to blame. The fact remains that it is fantasy and misleading fantasy to suggest that Part I of the Bill can be implemented when the infrastructure of the county court is already crumbling. Perhaps I may read a passage of a letter 150 written to me by a presiding judge on one of the circuits:The Courts in this area have always been, with, of course, the occasional exception, happy and efficient places. Within the last two years or so, morale has sunk to a record low. Staff are being poached with ease by Solicitors, Estate Agents and the like with the offer of markedly higher salaries. They are either not being replaced at all, or their replacement is so young and inexperienced as to be of no value for a year or two by which time he or she is quite likely to be lured away in their turn. This accordingly increases the burden on the competent and experienced staff who are, in my view, the backbone of the system. One of them told me a few weeks ago with misery, that they were making mistakes; they hated the idea that this could happen but the pressure of work was such that mistakes were unavoidable".It is no good saying that it will be all right on the night. It is no good saying that by 1991 all will be well. It will not, because trained staff do not spring from the ground at any Chancellor's bidding. Morale does not rocket up at the first injection of fresh staff or the first injection of higher salaries. Once the system has been allowed to reach this pitch of inefficiency, it will take time and great effort to effect a cure.
Perhaps I may suggest that the efforts should start at once if disaster is to be avoided. One does not wish to see the same mistakes as were made with the Crown Prosecution Service, from which that organisation is only now starting to recover. Unless something drastic is done, and done soon, Part I of the Bill at best for the time being at any rate should be put on ice.
§ 5.3 p.m.
§ Lord Hailsham of Saint Marylebone
My Lords, I do not wish to detain the House unduly long but there are one or two general remarks that I wish to make. In a sessional programme already crowded —perhaps overcrowded —with contentious business, we are discussing on Second Reading a Bill about 120 pages long with 13 schedules, dealing with a large number of quite separate issues generated entirely inside the government machine.
I had believed that the methodology of legal reform, to which I am deeply committed, had been reasonably clearly understood for some years now. There was the Law Commission set up by the noble and learned Lord, Lord Gardiner; there was the Criminal Law Reform Committee set up by Mr. Butler when he was Home Secretary. The Home Office retains control of the criminal law with the same ferocity as a tiger preserving its cubs. The Law Reform Committee was set up I think by Lord Sankey. Underpinning that were the various types of specialist reviews like the Civil Law Review Committee to which numerous references have been made.
Apart from Part I of the Bill, to which I shall revert in a moment, the Bill as a whole has been generated entirely inside the government machine. It began with the Green Papers in January, for which about two months were allowed for consultation. The consultation, completed by the beginning of May, was followed by a White Paper, I think in July. Both Houses of Parliament were denied the possibility of debate on the White Paper. Now we are discussing the Second Reading of a Bill of these 151 proportions dealing with this important subject which was printed, I think, on 6th December. It is now 19th December. This is no way to carry out serious law reform.
I must start by saying that almost every principle of the methodology which law reform ought to attract or which ought to be followed in law reform has been disregarded by the Government in relation to the Bill. I find it distinctly paradoxical that a government of which I am an ardent if critical supporter, devoted largely to the privatisation of industry, should publish a document of this kind. The effect of the document, as I shall try to show, is the nationalisation of the legal profession and part of the judiciary.
I pass rapidly to Part I of the Bill which is separate from the rest because it is largely designed to carry out the part of the report of the judicial review body —the Civil Justice Review —which dealt with the interface between the High Court and the county court. I must say that I am wholeheartedly behind that as an objective; I wish it had been done years ago. However, I can only underline the words that have just fallen from my noble and learned friend the Lord Chief Justice about the state of the county courts. The essence of the change is to transfer to the county court a very large proportion of cases which would otherwise fall to the jurisdiction of the High Court.
To my mind, the state of affairs in the county court at the moment is exactly as described by my noble and learned friend the Lord Chief Justice. I need not repeat what he said. I only add one circumstance which I think is the crux of the whole matter. The great defect of the county courts, in the course of my own rather long-past experience, was their inability to guarantee continuous hearings. I hope that the House will forgive me if I explain what is meant by "continuous hearings". That is to say, if a case is not finished on Monday afternoon it will continue on Tuesday morning. I do not wish to spend my time in anecdotes, but I can remember a situation in which an admirable county court judge failed to finish a case in which I was engaged in 1948. He could not sit on it again until three months later.
We might think that that was a thing of the past. After all, in 1948 we were dealing with the aftermath of the war. But if the present situation is anything like it was two and half years ago, it is this: out of about 280 county courts, 30 could offer the prospect of continuous hearings. But that was before the additions to the burden of work which have already taken place, as my noble and learned friend has said, and without taking into account the additional burden which will be placed upon it in the present state of the infrastructure if Part I of the Bill is put into effect. I do not know how long that will take, but if it were put into effect tomorrow the result would be a total shambles. I think it will be a matter of years rather than months before it is in place. My own view, for what it is worth, is that Part I of the Bill should have formed a separate Bill altogether and should not have been contained in this omnium gatherumpiece of legislation. I believe it should have 152 taken a form in which primary legislation played a greater part. This is basically an enabling Bill which, in the nature of things, will require largely secondary legislation and regulation to bring its provisions into effect at all.
I turn from that to Part II of the Bill because it is here that I feel the greatest anxieties. The speech of my noble and learned friend on the Woolsack revealed admirable ideals and objectives. They are, I suppose, identical with my own. The public interest, by which I mean in this case the proper administration of justice, must come first. However, if that is so, as more than one speaker has pointed out something has gone wrong with the draftsmanship of the Bill. The draftsmanship of Part II of the Bill is governed by Clause 14. Clause 14 is governed by what is called the statutory or general objective. In Clause 14(1) that objective is defined as:the development of legal services in England and Wales (and in particular the development of advocacy, litigation, conveyancing and probate services) by making provision for new ways of providing such services and a wider choice of persons providing them".There is not a word there about the public interest, nor about the proper administration of justice. In fact there is not even a reference to the improvement of the administration of justice or to improved ways of administering. The clause mentions "new ways". Therefore, provided that they are new, the statutory objective is observed.
However, if they are only improved ways but not new, or if they maintain the standards which we have already achieved, the statutory objective is not observed. But, observe this, when one comes to the advisory committee and to the functions of the designated judges, as the Heads of Division are politely called, one notices at once that they have to observe the statutory objective in preference to any other consideration. They are bound to further it under the terms of Schedule 4 and they are forbidden to do anything against it.
It must be pointed out that whereas the advisory committee, which is appointed entirely by the noble and learned Lord the Lord Chancellor —I shall discuss the composition of that committee in a moment —has a complete immunity from being sued for the mistaken use of any of its powers, the four designated judges are liable to suit. They are liable to suit by way of judicial review and one of the remedies which can be obtained against them is a remedy by way of damages if they misuse the powers under Clause 14. Moreover, that is somewhat paradoxical in view of the fact that magistrates under a later clause are to be given complete immunity under the changes proposed by the Bill. That must be wrong.
The advisory committee has so many duties to perform that I wonder whether such committees will be any easier to recruit than the court clerks referred to by the noble and learned Lord the Lord Chief Justice a moment or two ago. Membership of the committee seems to me to constitute nearly a full-time job. As far as I can see, there is ony one judge of any kind on this committee. Certainly no circuit judge can be a member of the committee. The judge may be a Lord of Appeal in Ordinary and 153 he may be a judge of the Supreme Court, but there cannot be both. In the meantime there are two barristers, both of whom are appointed by the noble and learned Lord the Lord Chancellor after consultation with the Bar Council, whatever that may mean, and two similar solicitors. The relevant part of the Bill carefully ensures that they may be totally employed, that is to say not practising in the ordinary sense but totally employed for salaries by large corporations. It further appears that a majority of the committee will consist of laymen.
I have no objection to laymen. When I appointed the members of the Civil Justice Review I appointed a majority of laymen to the concern of some people. I appointed a layman in the chair. However, they were to constitute a consumers' advisory council to advise on the working of the courts and whether the consumer was getting satisfaction. The people on the advisory committee constitute quite a different kind of body. These people will advise on legal education, qualifications and on the ethical standards of advocates and of professional bodies. I should say in passing that there has been a certain amount of dispute between the barristers' profession and the solicitors' profession. I have been sorry to observe that dispute. I have been a member of one of those professions and I have profound respect for the other. However, the real object of Clause 14 is to make sure that neither of those professions has a monopoly of legal practice.
The real object of the statutory objective is that various other persons, some of whom were mentioned by the noble Lord, Lord Benson, in his speech on the Green Paper, should have the right of audience in the courts independently of barristers and solicitors. There we have to my mind the point to which the noble and learned Lord the Lord Chief Justice adverted. One cannot play the role of advocacy by different sets of rules. One must have a single set of rules applicable to any professional advocate appearing before the same tribunal. That is absolutely vital. However, that will be impossible if Clause 14 remains unaltered.
I have to observe now, coming back to the four designated judges who are the Heads of Division and the most respected judges in the whole business apart from the Law Lords that they —one of them is a Law Lord —are not only to be subject to suit, possibly for damages, but if they choose to exercise their veto the noble and learned Lord the Lord Chancellor in his infinite wisdom will be able to publish the name of the judge who has differed and publish the reasons he has for differing. Incidentally, we do not know who the Lord Chancellor will be as we do not know how long this legislation will remain in force if it becomes an Act. If that is not inconsistent with judicial independence, I could almost say that noble Lords may call me a Dutchman.
However, I am seriously concerned about ethical standards and the administration of justice. I say little about what I still call the contingency fee, or the principle of no win, no pay. I believe that is inherently corrupting and it is inconsistent with the duty of the advocate to the court, with the duty of 154 the advocate to his opponent and with the duty of the advocate to his client.
Let us suppose that one is operating on what I gather are the enforceable terms of no win, no pay and it becomes apparent that one should settle the case early on; even if that can be called a win one will receive very little. I am not sure what win means, especially if one is a defendant and has to pay something out on account. At any rate the temptation may be to prolong the costs until the same result is obtained two years later. I cannot see that the contingency fee in the form in which it is proposed is anything but a corrupting influence on the ethics of advocacy.
I am not in the least mollified by the thought that in theory the principle exists in Scotland, because the Scots, the wily birds, have voted with their feet. I understand that in Scotland only 1 per cent. of cases are conducted on that basis. I must warn the House again that this particular device, although it may assist the problem as regards legal aid for plaintiffs —to which the noble Lord, Lord Mishcon, referred and to which I shall make no further reference —may be death and destruction to defendants.
How often have we had to say to a well-heeled defendant, say a newspaper or an insurance company dealing with an ordinary running down case, when faced with frivolous, vexatious or even blackmailing litigation from an impecunious plaintiff, "if you pay this man £500 to go away you will be better off than if you fight it out and win at the end of the day"? I wish newspapers which favour the proposals would realise that they will receive the brunt. No action for defamation can be brought under the legal aid proposals; therefore they are bound to be showered with writs for defamation by impecunious plaintiffs acting in a no win, no pay basis. I hope that they will reflect upon that before they accuse lawyers —to use an absurd combination of metaphors —of being a group of fat cats seeking to feather their own nests.
I have already spoken for too long, but I hope that I have conveyed to the House that this is not a particularly happy day for me. However, I have no particular interest, so far as I know, to serve. I am an old man who has run his course and who has nothing further to hope for in this world. I hope that I may receive favourable treatment in the next.
§ 5.22 p.m.
§ Baroness Phillips
My Lords, I am very honoured to be placed in the list of speakers following the noble and learned Lord and before a maiden speaker. That will enable other speakers on the Bill to leave the Chamber and get some tea, which I see they are proceeding to do.
I had not realised how much I should feel that it was necessary to support the noble and learned Lord the Lord Chancellor against members of his own profession. During the debate on the White Paper I said that I had never seen so many professional people spring to the defence of their profession as on that day. I have done a little work and I find that of the 36 speakers today, 28 are trained in one branch of the law or another.
155 The noble Lord, Lord Hutchinson, made me feel very humble. However, as an upstart magistrate perhaps I may intrude in the discussion on the Bill. I wonder whether the noble Lord realises that his approach is precisely the one that we lay people do not respect in a magistrate or a judge. He referred, in a very superior way, to the noble and learned Lord, the Lord Chancellor, pointing out that he was not experienced in one branch of the law. He referred to my noble friend Lord Mishcon —who made a superb speech —as "a much loved solicitor", with the emphasis on "solicitor". We knew exactly what that meant.
The noble Lord also referred to "these designated judges" who did not have a capital letter. It seems to me as a teacher of English that it is reasonable in a Bill not to use a capital letter when referring to a group of people. However, in the case of the Director General of Fair Trading there is only one of him, or of the Lord Chancellor, and it is reasonable to use a capital letter. It seems to me that the construction is quite correct.
I say to the noble Lord, Lord Hutchinson, that I greatly resented the way in which my profession, the teaching profession, was referred to in a particular Act —"a licensed teacher" small "1", small "t". There was a reference to the "pool", and I had visions of saying "I am come from the pit to solve all your difficulties in school". We all have to submit to the normal rules of description in Acts of Parliament.
There is one image that comes across to me every time. Perhaps the remainder of the debate will dispel that image. The judges I know convey a sense of arrogance. It may be unconscious. They give the impression of having a monopoly of words of wisdom, which they dispense to us very kindly, and that the rest of us are very lucky to have the opportunity to hear them. As I say, in this debate since there are 28 lawyers among 36 speakers I can safely leave the matter to them.
I welcome the Bill. I speak as a layman. I am very interested in all the briefing material that I have received, including some opposing the Bill. It seems to me that most of those who sent me material were happy with the Bill. They may have suggested minor amendments. We all know that the Bill will not be the answer to every problem that we have encountered in the courts but at least it represents a dent in the armour. Some of the measures which are proposed are a step forward.
I am constantly confronted by friends and other people who write to me who say that they have a genuine claim in civil law —and when one looks into it they have. They say, wearily, that they are apparently "too rich" to qualify for legal aid and too poor to engage a barrister. I shall not weary your Lordships with my own case. I have a claim against an insurance company, of which I notice the directors are all Members of this House. I hope that that will enable me to obtain justice. A barrister friend said that I had a good case and that he would take it before the High Court for me. I had to say to him, "I am not in the business of making your profession rich". I am sorry that the noble and learned Lord does not want the profession to be 156 called "fat cats", but I can only say that it seems pretty expensive to talk to anyone in the law. To walk down the street with them or even to say goodnight, seems to cost £100. They are even worse than accountants, and that is saying something.
The Bill will not change the situation as regards legal aid but it will at least give an indication that we can move on and make justice available for every citizen who wants to take advantage of it. That is what the Bill is all about so far as I am concerned.
The raising of the limit for small claims courts has already been indicated by the Government. It must be increased speedily, to a reasonable figure in today's cash terms. After all, many consumer disputes do not come below the £500 limit. If you are talking about a car, or almost any item which you can now buy in a shop, I should have said that you were talking as a minimum of the order of £2,000.
In this House we are always hearing the phrase "in real terms". I have never discovered just what that means. If people ask for more money the Government will say that, "in real terms we have already given more", "in real terms we are giving more to the National Health Service". That is why the hospitals remain empty. The same applies to the courts, which do not have the necessary staff, but in "real terms" we are all getting much more money. Therefore, perhaps I may say, let us ask for a reasonable figure in "real terms" for small claims courts.
I am delighted to see the establishment of the office of the legal services ombudsman. Law practitioners have for too long tried to dazzle and impress their clients by their importance when there has been a complaint about their advice. All professionals used to take that attitude. No one dared to challenge a doctor. People thought that he was so learned that he must know what he was doing. When a person died because of his mistake, that was quickly buried, so there was no problem. Teachers were never challenged. Surveyors were never challenged. However, we now live at a time when consumers want to know whether they are getting value for money. Even the right reverend Prelates the Bishops are challenged; if they were women they would be challenged even more. This profession is no different from any other. It is expected to give value for money.
I am delighted to see the widening of the choice of conveyancing services. Anyone who has gone through the trauma of trying to buy a house is absolutely mystified by the number of professionals whom one must consult and pay. One starts with estate agents, and they want some beating. They collect for doing nothing at all. It is quite fascinating. They say that they sell the house, but what do they do? They put up an objectionable board and perhaps introduce one or two people, but they collect a substantial amount of money. There are then the conveyance and mortgage providers, and so on. I shall not go on; there are so many of them. The provisions of Clauses 31 to 42 should provide the means for a one-stop exercise which the consumer has requested for a long time.
157 What about Clause 47? I ask quite seriously —I am not sure whether the noble and learned Lord who has just spoken will agree with me on this point —why should a client not be able to obtain redress for an act performed by a solicitor when the procedure works the other way? A barrister may sue a client if he does not pay, and would sue him. I cannot see why a client should not be able to sue if he does not obtain value for money and the service provided is not good. It does not seem unreasonable to me, but I do not want to be accused of putting everything on a vulgar, monetary basis. I merely point that out as so many people now have to use the services of the law.
I want to see far more cases dealt with in the seemingly less remote county courts rather than in the more formal High Courts. But I want to underline what has already been said much more eloquently than I could say it; namely, that county courts must be given the proper resources to do the job. My noble friend Lord Mishcon described the state of the county courts. I remind noble Lords that access to the courts does not necessarily mean that there will be greater resources for legal aid, which will be needed if the provisions are to work properly.
Before I conclude, I must apologise that I cannot stay until the end of the debate. I have twice withdrawn my name from debates, which I do not like doing, but I felt that this was so important a matter that I had to say my piece. I have to conduct a carol service —good will to all men, which will include judges and barristers.
The opening words of the White Paper which led to the Bill were:The legal profession exists for the benefit of its clients, and for the proper administration of justice".Perhaps I may add the following words: "The immunity of advocates from liability for their negligence exists for the benefit of the legal profession and results in a denial of justice to their clients".
§ 5.34 p.m.
§ Lord Byron
My Lords, it is with extreme diffidence and a deep sense of privilege that I rise to speak in your Lordships' House for the first time. My sense of privilege can only be increased by the knowledge that it is 79 years since any member of my family addressed your Lordships and by the fact that I speak today before so many eminent members of the legal profession.
I am also conscious that I have chosen to make my maiden speech on a subject in which the requirement not to be controversial does not lie easily with the matters before your Lordships. If I should fail in my obligations in that respect, I hope that noble Lords will forgive me.
The reason that I seek noble Lords' indulgence today is that I feel I have some small contribution to make to the debate, albeit from a much more humble perspective than the majority of your Lordships. I must apologise to the noble Baroness, Lady Phillips; I too was legally trained. I spent 15 years pursuing a career in the law —three years at the Bar in the chambers of the noble and learned 158 Lord, Lord Rawlinson, and 12 years in a City firm dealing with commercial and shipping matters. I have therefore seen the conduct of litigation not only from both sides of the professional divide but from the perspective of very different types of work.
I should say at once that, as a major user of the services of the Bar, I and I believe the rest of my colleagues in the City enjoy an extremely good relationship with the Bar. The fact that the Bar is almost invariably used for the conduct of commercial arbitrations must say something about the services offered by that branch of the profession. I am also well aware from the days of my practice of the vital function that the Bar performs for many smaller firms of solicitors and at very competitive rates.
However, I hope that it will not be taken amiss if I say that the Bar has perhaps clung just a little too long to some of its more arcane practices. I am glad to say that much has changed in recent years, although doubtless there is stall room for improvement. I have no doubt that there is room for improvement in the way that both branches of the profession conduct their affairs, without necessarily going in for the rather extreme measures which Dick the Butcher recommended to Jack Cade.
There are a number of provisions in the Bill which are not controversial and are very much to be welcomed. I respectfully endorse the proposal for a legal services ombudsman. I would single out one other provision which affects my practice; namely, Clause 70, which amends the 1950 Arbitration Act to allow arbitrations to be struck out for want of prosecution.
It has long been an anomaly that arbitrations, once started, can be left to linger on for years and sometimes even decades without any effective remedy for the dilatory claimant. Even now I can sense a slight stirring in the City where very old files are being dusted down in contemplation of that amendment. It is much to be welcomed, although I should put in a quiet plea that one day we may have an entirely new arbitration Act to bring together those various amendments.
There is also in the Bill much that has proved controversial. On any view, the Bill must be regarded as radical. I shall say nothing about conveyancing because I know nothing about conveyancing, although I believe that there are things to be said. As for the conduct of litigation and rights of audience, I shall offer certain observations which I hope will not be regarded as controversial but which I believe may have some relevance when the matters are considered further hereafter.
My first observation is that the Bill goes far beyond simply giving solicitors rights of audience in the higher courts. The provisions of Clauses 24 and 25 will allow other authorised bodies to grant those rights and the right to conduct litigation if they meet certain requirements. I confess that I find it extremely difficult to know how that will work in practice and what the qualifications will be. But I feel a certain sense of unease at the idea that the services of a lawyer can be chopped up into watertight compartments, and that it may be possible 159 to become a licensed litigator without a full understanding of all branches of the law.
It may be that it is a unique characteristic of this country that the division between barristers and solicitors is kept alive, but I cannot say that I know of any country where the practice of law is carried on by those who are not lawyers.
My second observation is that much has been written and spoken about the importance of the independence and integrity of the Bar, and no one doubts the importance of this. But I venture to suggest that the independence and integrity of the solicitor's profession is of even greater importance because it is in performing that role that the scope for abuse is so much greater. It is not easy to explain to a foreign client who is litigating in this country and is not familiar with the procedures here that he is obliged to disclose to his opponents a document which will almost certainly ruin his case. But if the conduct of civil litigation is to be properly carried out, that is the advice which a solicitor has to give. Moreover he has to feel confident that others will do likewise.
Finally, the provision of legal services and the administration of the law will never be cheap. That is not to say that we must not continue to strive to improve procedures that will speed up the resolution of disputes and keep costs to a minimum. I respectfully endorse all the procedural amendments in the Bill which seek to do that.
I cannot say whether the implementation of the statutory objective in Clause 14 will help to achieve that aim or not but I am sure that if the practice of law is to be undertaken with the degree of integrity, skill and professionalism which the people of this country are entitled to expect and which the administration of law requires, at the end of the day those services will only be available to all who need them if ways are found to provide adequate funding in all areas. I believe that we delude ourselves if we think that by means of simply changing the structure of the profession we can make the law available to all those who need it.
§ 5.41 p.m.
§ Lord Alexander of Weedon
My Lords, it falls to me to congratulate the noble Lord, Lord Byron, on his maiden speech. I do so with very much warmth and pleasure. I congratulate him particularly on offering us such an even-handed approach on topics which are not free from a measure of disagreement in your Lordships' House. I should also like to express the hope that he will speak more frequently than has been the family average during the course of this century.
I start with an area in which I too seek a measure of agreement. The principal complaints about the delivery of legal services rightly focus on the delay and the cost of going to law. This Bill should be judged not by the language of consumerism but by the hard practicality of asking the question: what contribution does it make to meeting these concerns? Does it, as the noble Baroness, Lady Phillips, impliedly asked, further access to justice?
The proposal to transfer many cases to the county courts, if effectively implemented, could 160 undoubtedly do much to make the law easier of access. Whether in practice it will do so will depend on the extent to which the Government commit the resources, including—I particularly emphasise this —extra administrative skills, to improve the efficiency of the county courts. I believe there is general recognition that the present position, even with the existing workload, is wholly unsatisfactory. I am glad to say that the Government clearly recognise that there is much to be done but I suspect that it will call for far more in terms of financial and human resources than they are budgeting for at present. However, if wholehearted action is not taken there will be far more in the way of disillusioned litigants than we have at present.
We all know that access to justice depends not just on the grant of legal rights. Such rights have little meaning unless they can be enforced. Hence there is the whole great concept of legal aid. In their recent White Paper the Government stated:The Legal Aid Scheme ensures that legal services are available to those of small or moderate means".I believe that that is a high ambition. I believe also that it is a partial truth. There are important tribunals where no legal aid is available. Eligibility for legal aid has diminished dramatically in the past decade. In any event, the costs of litigation of any substance under our sometimes cumbersome procedures are simply unaffordable by many of those who have never qualified for legal aid.
We are told that the Government's review of legal aid will not be complete for some little time. In my view that is too measured a pace. I believe that that is a much more important priority in terms of access to justice than restructuring the legal profession. As I see it, that restructuring will not enhance access to law. In the past that has depended on two central pillars: the high street solicitor and the independent Bar. This Bill creates risks to both those pillars without compensating advantages. High street solicitors are threatened by the proposal that banks and building societies should carry out conveyancing.
I shall disclose an interest. I am the new chairman of the National Westminster Bank. My institution and other institutions theoretically stand to gain from this new source of work. But for all that, I personally as a lawyer am deeply sceptical of the proposals. I think that it will not be easy to deal with the issue of conflict of interest. Can lawyers employed by lending institutions act independently and, as the White Paper says, owe their first duty to the purchaser? How real a possibility is that?
In any event, conveyancing services between solicitors at present are highly competitive. Clear warning has been given that, if enacted, this proposal could damage the practice of high street solicitors. If that happens it will diminish the availability of legal services in the area of the greatest need.
What about the second pillar of access to justice —the independent Bar —which is available at present to all high street solicitors, so that the services of litigators are not just restricted to the large firms? The consultation process in which the Government so thoroughly engaged this summer 161 made it clear that there was an overwhelming belief that the independent Bar was vital to our legal system. As the noble and learned Lord the Lord Chancellor said, the Government attach great importance to the continued existence of a vigorous and independent Bar. However, I and I think many others consider that the proposals on rights of audience as at present drafted carry a real risk to the future of the Bar.
The general objective of the Bill focuses prominently on what is described as wider choice. As at present set out, it does not focus with equal emphasis on the importance of maintaining the safeguards that secure the full interests of justice. It may be that that is an error. The Government have often said that their objectives are not only to improve access but also to safeguard our system of justice. I hope that the objectives of the Bill can be rephrased to make that absolutely plain. I hope that they can be rephrased so that those concerned with the evolution of the profession —and I accept that there must be evolution —can take account of the declared concern to maintain a strong and independent Bar.
Indeed, this afternoon I thought that we had a ray of hope in that direction from the noble and learned Lord. He spoke of the fact that the rules of conduct which could be considered by the advisory committee and the judges would include rules of practice. I interpreted that, I hope rightly, as meaning that the rules of conduct would not simply be limited to conduct in court but would cover the general practices that govern the profession. I welcome that declaration and I hope that for the avoidance of doubt and so that we may go forward without controversy that can be written into the legislation.
I conclude with a word of unease about the role allotted to the judges. In the summer the judges responded fully and clearly to the Government's consultation papers. Based on their experience, which I as a recently retired practitioner of 28 years' standing ask the House to accept is genuinely concerned with the administration of justice, it was their belief that the most difficult cases needed to be conducted by a sole practitioner, unshackled by financial and administrative responsibility to partners, who dedicated himself to the presentation of his cases leaving the preparation to his solicitor. It is these characteristics, together with the important principle that barristers accept instructions from all, that have been the cornerstone of the strength of the services given by the Bar.
To the disappointment of many of us, the Government have never responded clearly one way or another to the response of the judges. Yet under the new structure the judges are to be allotted a role with others in deciding what are the appropriate disciplines to be accepted by an advocate practising in the higher courts. Some have expressed fears, I hope unfounded, that that will give judges a complete veto. Others have expressed the opposite fear —I hope one that is also unfounded —that the judges are being put in a straitjacket with the threat of judicial review if they seek to escape its confines. All, I believe, would agree that the judges must play a part in this process. It is, after all, they who have 162 to administer the courts. It is they who have to ensure the proper administration of justice in practice. But, when given this role, are they to be free to give effect to the views for which they currently stand, and have so clearly expressed; or are they to be precluded from applying the principles in which they believe, if they continue to believe in them?
This year has been an immensely sad one for those who care about the administration of justice and believe that there is much to be done to improve our law, and that there is much that the Government, the judiciary and the profession need to do together to improve our substantive law and procedure. The division, bitterness and distrust created during the conflict over the structure of the profession need to be ended if we are to tackle the real problems that affect access to justice. I respectfully suggest that it would greatly help if my noble and learned friend would tell us this when he replies. Do the Government accept that the interests of justice require an independent Bar? Should the legislation ensure the freedom of the judges to enforce the rules of practice that they consider right?
These are vital issues. I believe that if my noble and learned friend gives us a clear answer he will do much to lance the dissent and concerns of this year and enable us all to approach the Bill as we would wish to do: in a positive spirit.
§ 5.52 p.m.
§ Lord Donaldson of Lymington
My Lords, perhaps I may add my congratulations to those already expressed to the noble Lord, Lord Byron. The legally qualified consumer of legal services is a relatively rare animal, if one excludes conveyancing —upon which every sensible barrister and judge rushes at once to a solicitor for advice. However, leaving that aside, anybody who is legally qualified who has my noble friend's experience of using legal services will inevitably be able to make a great contribution in the later stages of the Bill, and indeed generally.
In April the House debated the Government's Green Paper containing their then proposals for the reform of the legal profession. Fears were expressed on every side that those proposals threatened the independence of the profession; and not only of the profession but of the administration of justice itself. Happily the Government took note of those expressions of view.
The Green Paper was followed in July by the White Paper, which adopted a wholly different approach. Under the revised proposals both branches of the legal profession, the four senior judges, and the Lord Chancellor, were to work together to achieve certain statutory objectives. In so doing they were to be assisted by an independent advisory committee. I thought, and I said, that this approach was wholly admirable. I welcomed it publicly. I welcomed it then and I welcome it now. As I understand it, it has two outstanding merits. First, it preserves the independence of the legal profession from the government of the day. That is absolutely essential to the administration of justice as we know it. At the same time it takes account of the legitimate interest of government in the work of the courts, which is after all a public service. Secondly, it recognises that 163 decidng who does what is only simple for those who have a vested interest or lack knowledge of what is involved. If one puts vested interests on one side and considers it only from the point of view of the public interest one is at once faced with problems. Perhaps I may mention a few.
How does one make legal services readily available and yet achieve essential levels of skill? How does one avoid pricing people out of justice? How does one combine speed with quality in the administration of justice? How does one ensure that justice triumphs over the client's wish to win? How does one create and maintain peer pressure for the maintenance of standards, for, as the judges pointed out, professional probity is not achieved by promulgation?
These questions give rise to other questions concerning the structure and general practices of the legal profession which will be in the minds of all noble Lords. I have been professionally involved in the law for some 43 years, 23 of them as a judge. I frankly confess that I do not know the answers. Compromises will assuredly have to be made but they must be based upon the fullest possible information, and they must result from rational discussion. As I understood it, that is what the White Paper set out to achieve.
What troubles me about the Bill, and it troubles me greatly, is that it wholly omits the most important of the White Paper statutory objectives. It reproduces the White Paper objective of ensuring competence in those who provide legal services. Your Lordships will find that in Clause 14(3)(a). It reproduces the White Paper objective of maintaining appropriate standards of conduct in advocacy and the conduct of litigation. That appears in Clause 14(3)(b) and is also reflected in the definition of rules of conduct that appear in Clauses 24(7) and 25(4).
As the White Paper intended, in Clauses 14 and 15 the Bill also calls for a wider choice of providers of legal services and requires that expansion to be achieved at the earliest possible moment. But nowhere in the Bill do we find any trace of the White Paper's remaining statutory objective. That called for the removal of all obstacles to access to justice, of all restrictions upon the client's choice of how he would obtain legal services, and of all restrictions upon what qualified providers might do, other than such restrictions as are necessary in the interests of justice. Where, I ask the noble and learned Lord the Lord Chancellor, has that principle gone? It was the key objective of the White Paper. It set both the target to be achieved and the essential qualification. Without it, I have to say that in my judgment that part of the Bill is fatally flawed.
I had hoped, and I still hope, that this omission reflects the speed with which the Bill was drafted rather than a change of policy. The Bill is about the achievement of justice for ordinary citizens. That being so, the interests of justice must not only be paramount but must be seen to be so.
There is one other omission from the Bill which is important. Paragraph 8.5 of the White Paper 164 contemplated that whatever the formal position, the Lord Chancellor, the designated judges and the advisory committee would be involved in the early stages of the preparation by the professional bodies of the drafts of rules governing advocacy and the conduct of litigation. All that we now have is a choreographed quadrille in Schedule 4. The professional body drafts qualifications and rules of conduct and then applies to the Lord Chancellor for approval. The Lord Chancellor asks the Director General of Fair Trading and the advisory committee to advise. Later, having digested that advice, the Lord Chancellor decides whether to approve. Then, and only then, do the designated judges join the dance. For my part —and I do not care whether I have capital letters or not —I do not wish to be a wallflower. I do not believe that that is an appropriate place for any of the designated judges.
During the seven years in which I have held the office of Master of the Rolls I have been required by the Solicitors Act to perform similar duties to those of a designated judge under the Bill in relation to all that branch's professional rules. There has been only one occasion upon which I found it necessary to refuse my concurrence. It would never have happened but for a failure to involve me in the preliminary discussions.
Ever since then there has been the fullest consultation at the earliest stages. A large number of new rules has been made by the Law Society during the past seven years. In the course of their drafting, the Council of the Law Society has been open to persuasion by me, and, equally, I have been open to persuasion by it. No question of any veto has arisen. In the light of that amicable and productive co-operation, I must say that I was saddened and surprised to read in the Law Society's briefing paper for this debate that my statement to the Bar conference that,The interests of justice may demand special requirements as, for example, that the preparation and presentation of the case be in separate and independent hands",was no more than a transparent bid to retain the barristers' monopoly by other means. I regard that comment as being wholly unworthy of that branch of the profession. I am even more saddened that the noble Lord, Lord Mishcon, should have adopted it so uncritically during the course of the debate.
Be that as it may, the interests of justice may or may not require such a separation in some cases. I never said that it did in all cases. I shall go further and say that it is not required in all cases at the present time and it certainly will not be required in all cases in the future. Whether it will be required at all, and if so in what cases, is one of the matters that all concerned ought to be free to consider. For my part, I do not regard the answer as being self-evident one way or the other.
What is self-evident, and should not need to be said, is that none of the designated judges would hold their present offices if they did not have a proven track record of willingness, ability and experience in conscientiously giving effect to the expressed intentions of Parliament, whether or not they personally agreed with those intentions.
165 At various times during the debate I felt my flesh beginning to creep —or noble Lords trying to get my flesh to creep —at the prospect of what would happen if, as a designated judge, I did not concur in the Lord Chancellor's decision. I gather that the Lord Chancellor would name me and call upon me to publish the reasons for my decision. I hate to disappoint my noble and learned friend the Lord Chancellor. He will have no opportunity to do so. If I do not concur I shall make that fact public and I shall long since have published my reasons. That is precisely what I did on the only occasion on which I disagreed with the Law Society.
I am then told that I shall be judicially reviewed. I confess that that does not worry me one little bit. When I refused to concur in the Law Society's proposals it went to very expensive counsel for advice. I could have saved it the money. It asked him whether I could be judicially reviewed and the answer was yes. I knew that the answer was yes. In my defence, I must add that it asked him another question on which I should not have felt free to advise. It asked him whether I was right and he said that I was.
Lastly, I am told that I must be very careful because I may find myself being sued for damages for breach of statutory duty. I have not looked it up but I have an idea that some breaches of statutory duty can give rise to mandatory orders but do not give rise to claims on private individuals, or even bodies, for damages. I fancy that this case may come into that category. But if it does not I shall send the bill, via the Treasury solicitor, to my noble and learned friend on the Woolsack.
In conclusion, I am in total and complete agreement with my noble and learned friend the Lord Chief Justice in saying that the key to success of the very welcome reforms proposed in Part I of the Bill is the provision of adequate resources. From what I see of the way in which the courts are now being run, I am bound to say that I doubt whether the Government have yet contemplated additional resources on the scale which will be necessary to make a success of the reforms proposed in that part of the Bill. I hope that they will be a success. I hope that they will take effect at the earliest possible moment. However, it would be fatal to do anything about them until adequate resources are available.
I also support the plea made by my noble and learned friend Lord Lane for an overall disciplinary body for all advocates from whatever professional origin. I should go further and say that, in the context of litigation, I should like to see even now under the present organisation a single professional body for both solicitors and barristers. Every Wednesday morning I have what is officially known as a dismissal list in the Court of Appeal. Sometimes it is called an execution list. Either way, those who have failed to comply with the rules appear before the court. It is sad to find that there are occasions on which a barrister may indicate in the politest possible terms that perhaps the fault lies with the solicitor; and the solicitor may indicate one way or another that perhaps the fault lies with the barrister. We know very well that in the rare case in which we cannot resolve the matter and refer it to the two 166 respective bodies there will be a real risk that on the evidence before it —and probably it will be only partial evidence in each case—each body will decide that the professional member of the other body was to blame. That should be avoided.
Where two people are involved in a single process—whether as advocate or a conductor of litigation —and something goes wrong which requires investigation, it should be investigated by a single body. It is not an answer to say that that body is the court. Often the courts are not in a position to investigate because they cannot ask what instructions the client gave. It is also for those reasons that I support the remarks of my noble and learned friend. However, it is most important to be clear that the Bill incorporates the third statutory objective in the White Paper.
§ The Lord Chancellor
My Lords, before my noble and learned friend sits down, I wish to mention that whether we have achieved the idea may be open to question, but it was that part of the objective as described in the White Paper now contained in Clause 14(3)(a) and (b) as the general principle. In Clause 15(2) we have provided that the general principle is to prevail. In other words, the statutory objective is subject to the general principle and therefore the idea of what is,appropriate in the interests of the proper and efficient administration of justice in relation to the court or proceedings concerned",is to take precedence over the statutory objective. In order to make sure that that is the order of priorities we have used that method of expression.
§ Lord Donaldson of Lymington
My Lords, I am obliged. I had appreciated that the guiding principle took priority over the statutory objective. The statutory objective has a different meaning in this Bill from that contained in the White Paper.
Perhaps this is not the moment to debate a drafting point but the cause of concern to myself and many others is that in Clause 14(3)(b) the reference to standards of conduct is in relation to what is,appropriate in the interests of the proper and efficient administration of justice in relation to the court or proceedings concerned".Those are very confining words.
At a quarter to one this afternoon I had delivered on to my table some 250 pages of Notes on Clauses, for which I am deeply grateful. However, I was unable to digest all of them. A very brief look at those Notes on Clauses in relation to Clause 14 suggested to me that my construction was correct and that that referred to conduct in court and standards of conduct in court rather than the much wider organisation of the profession. There will be time to put that right and I am very much obliged to the noble and learned Lord for his intervention.
§ 6.10 p.m.
§ Lord Boardman
My Lords, I am sure that the noble and learned Lord, Lord Donaldson, will not expect me to follow him on that last point. I join with other noble Lords in congratulating the noble Lord, Lord Byron, on his maiden speech. As has 167 been said, it was so well balanced and so wise that I am sure we all look forward to the noble Lord participating with that wisdom at a later stage of this Bill.
I am a solicitor but have not practised for over 20 years and have no intention of practising again in the future. I am also a past chairman of a bank and if either of those are interests which I should declare, then I declare them.
I wish to confine myself to three points on this Bill. The first point is as regards rights of audience. I support the thrust of the Bill on that. I believe that qualifications for rights of audience should depend on the ability of the advocate to serve the cause of justice and his client most effectively. Although I see that the noble Lord, Lord Hutchinson, is not in his place, I was rather concerned that he was implying that solicitors were adopting somewhat lower standards than members of the Bar. I hope that that is not what he meant. I believe that the factor which we must bear in mind is that there are 10 times as many solicitors as there are members of the Bar. Therefore, we are just as likely to find 10 incompetent solicitors for every incompetent barrister. That may explain some sort of imbalance in the views which the noble Lord expressed.
However, I endorse what the noble and learned Lord the Lord Chief Justice was saying with regard to both branches of the profession, that the same rules and disciplinary procedures should apply. I accept that from whichever branch of the profession a person who has rights of audience comes, he should be guided by the same rules and be subject to similar disciplinary procedures in order that there is a standardisation.
I had hoped that the point about which the noble and learned Lord, Lord Donaldson, was concerned on the criticisms of the Law Society and of the noble Lord, Lord Mishcon, would be clarified in the noble and learned Lord's speech. However, I still remain somewhat uncertain as to where he stands on that point. Of course I shall read with care what he said but I do not understand his objection that the same solicitor should not prepare and present a case or that he should be, as the noble Lord, Lord Mishcon, said, the only lawyer in the whole country with a right of audience who cannot present that case, although he is the only one who really knows all about it. That seems to me very strange. I find it even more strange when there is no inhibition on the preparation and presentation in the county court. If it is all right there, why should it not be all right, given the standards which the advocate has to achieve, in the Crown Court? I do not accept that there should be, could be or can be two standards of justice —one for the Crown Court and one for the county court.
I understand the concerns which are often expressed that the lawyer preparing a case may become too involved. However, I feel that any lawyer worth his salt must recognise the point at which he should advise his client to take independent advice and to have the benefit of that. That is one reason that I feel very strongly that we must preserve an independent Bar. I believe that a strong and 168 independent Bar is essential and I endorse what the noble Lord, Lord Byron, and my noble friend Lord Alexander said on that. If the Bill does not give adequate protection to that independent Bar, then I shall be happy to support amendments tabled to achieve that.
I now turn from advocacy and rights of audience to conveyancing. I understand the superficial attraction to which the noble Baroness, Lady Phillips, referred of the one-stop shop that one can visit when buying a house. This matter was considered in 1985 and was ultimately rejected by the Government —and I believe rightly so. The purchase or sale of property is often the most important financial transaction entered into in a lifetime, certainly for a young couple. It is essential that they should have independent advice. I do not believe that that can be given by those whose interests conflict with the interests of the customer. I use the word "customer" advisedly because we are talking here of estate agents and other people to whom the person is a customer. It is not the client relationship that there is with a solicitor or lawyer.
I believe that there are bound to be conflicts when the person offering those conveyancing services is the buyer, seller, lender or agent of one of those. I was somewhat surprised that the Law Society has not been more vehement in its opposition to these proposals. I believe that they are directly contrary to the trend of consumer protection.
I have an illustration, which is of course under current legislation, but which illustrates the sort of dangers which exist today which I believe could be in many respects exacerbated by the Bill. This was a reply to someone applying for a mortgage from a well known mortgage corporation —and I make it clear that it was not a bank. The letter of offer said that it would not be necessary to instruct a solicitor in connection with the further advance. All the necessary legal work would be dealt with in house. In a further letter it was stated:The legal work will be undertaken by the … Corporation to ensure prompt processing of the legal formalities".That goes to the root of my objection to granting conveyancing rights to people outside the legal profession. It goes on to say that one of the terms of the offer is the requirement to take out additional life insurance cover which its sister company will be pleased to arrange. I know that that is covered by the Bill by tying in provisions and so on. This is a well known organisation. The letter was accompanied in that case by a mortgage deed and charge policy in blank which the customer was asked to sign and return without filling in any of the blanks. It also contained a clause whereby the customer undertook that he had seen, read and understood the terms and conditions applying to that mortgage, which were not enclosed. I believe that that is adopting standards which are quite unacceptable.
I am sure that it will be said that part of the intention of the Bill is to prevent that happening. However, if conveyancing services are extended to bodies outside the legal profession and licensed conveyancers, I wonder whether there is not a grave danger of that sort of operation being performed to the detriment of the consumer.
169 I have only one further point to make. I feel somewhat nervous and hesitant in making it in this company. It is in regard to the judiciary. Obviously the quality of the Bench is the most important part of the whole of our legal system. It is the guardian of our liberties and sets the standards of which the whole community is proud. Nothing in the Bill should, or, I believe, will, lower those standards; if anything, it will improve them.
However, I have one suggestion —that is to inquire whether advocacy is an essential experience in all cases. I wonder whether there may not be cases where the experienced senior partner in a large, respected firm of commercial lawyers might not make a very suitable judge in the commercial court. Some noble Lords may be able to think of other instances like that. In any case, the Bill prevents that. I believe it is a pity that that possibility should be excluded. I am not asking that the Bill should authorise such appointments but I believe that the door should be left open. I am sure that many noble Lords will know people with the sort of experience of which I have spoken who would make admirable judges in specialist courts. They would be very much better than someone who has spent 10 years on his feet at the Old Bailey; but I leave that for consideration at a later stage.
The Bill is one of great importance. I recognise that it cuts across some deeply established traditions, but if the interests of justice are to be safeguarded and possibly improved, that is a price that we should willingly pay. I support the Bill.
§ 6.20 p.m.
§ Lord Meston
My Lords, perhaps I may break with convention by adding a fourth set of congratulations to the noble Lord, Lord Byron, who has been a friend for many years. Like at least one other noble lord who is to speak, we understand that he crossed from the Bar to the solicitors' branch of the profession. I suspect that the Bar Council missed a trick; it could have scored a very powerful point by establishing what both noble Lords would now charge in their present opulent practices.
This Bill has been welcomed by, among others, the National Consumer Council and the Consumers' Association. It is therefore not right for practitioners to be too negative about it. However lawyers, and the Bar in particular, have now felt under scrutiny and attack for so long that they are inevitably apprehensive when looking at the proposed cumbersome statutory machinery which is to govern the rest of their working lives. They are apprehensive particularly if, like me, they wish to remain an independent advocate on the cab rank.
We can only speculate —as several noble Lords already have —as to how the Bill will work in practice. First, there is the advisory committee. Those more learned than myself have already developed the arguments and no doubt we shall hear more. I share the misgivings. On introducing the debate in your Lordships' House earlier in the year the noble and learned Lord the Lord Chancellor spoke of broad objectives designed to further the interests of justice. I do not see those broad objectives in Clause 14. I still see the dogma of the 170 DTI largely inappropriate to professional bodies. I see no hint of a reference to specialist skills, to the cab rank rule or to independence.
Independence is not some abstract concept. It is everything that my noble friend, Lord Hutchinson, said it was. It provides a barrister with the ability to give unpalatable advice —the sort of thing one would not get from an in-house lawyer or a solicitor if one was an important client whom the solicitor was concerned to cultivate and keep. Anyone listening to this debate so far as it relates to the advisory committee —if the Bill is enacted in its present form —must now realise that it will store confrontations for the future.
Secondly, we must look with concern at the provisions in the first part of the Bill allowing the allocation of more work to the county court. The county courts developed as accessible local courts dealing with small disputes. They still have great merit as such, but being accessible does not necessarily make a court efficient. Indeed, some of your Lordships will have read of the calls for specialist tribunals for things such as housing. That suggests to me that the county courts are not properly meeting their functions. The present anxiety is the ability of the already overloaded county courts to cope with the strain of extra work.
I can only echo the powerful remarks of the noble Lord, Lord Mishcon, and the noble and learned Lord the Lord Chief Justice, who have already made my speech in this respect and made it fair better than I could hope to do. All practitioners have horror stories about county court listing. They all involve time wasted for lawyers and money wasted for litigants. In a case in which I was involved a few years ago I was one of four counsel. The county court in that particular town was required to sit in the local town hall. It was at this time of the year. The judge emerged from behind a curtain on the stage, briefly revealing the set for "Puss In Boots". At four o'clock we had about three-quarters of an hour to go to finish the case (it had been properly estimated for one day) and the judge announced that he had to rise as the local ladies' keep fit class had booked the hall. We all had to go away and come back weeks, if not months, later.
That is beyond a joke. It is beyond a joke even more so if the litigation in which one is involved is acutely anxious litigation involving children or family finances. Everything that has been said about continuous hearings being a prerequisite of a transfer of more work to the county courts must be absorbed.
One hears other stories almost every day from solicitors in litigation practice about piles of unanswered correspondence in county court offices and wastage of staff. In one London county court I was told of a 100 per cent. turnover of staff in two years, all that despite the apparent attractions of London Weighting and all before the impact of the Children Act 1989 which, as the noble and learned Lord the Lord Chancellor told us, will be amended by this Bill a few weeks after Royal Assent to that Act.
Paragraph 77 of the Civil Justice Review Report quite crucially stated: 171The proposed transfer of business from High Court to county court will depend for its success on the quality of the county court facilities".In the excellent book entitled Ordinary Justice produced by the National Consumer Council it is firmly said at page 272:We do not wish to see the reforms implemented if resources are not available to make them work".The county courts, as the Government realise, will require more manpower, a higher calibre of staff, more space and, dare I say it, the odd functioning telephone. I should like to see the legal services ombudsman —an excellent innovation in this Bill —have direct power to deal with and to compensate for complaints about court administration. If the resources are not to be made available, the Government should adhere to their principle of choice. It is a fact that the preferred choice of many people is the High Court. If that is to be the choice of the consumer, the Government might wish to respect it, increasing the supply of resources to the High Court, which is, it must be said, more efficient. If necessary that could be achieved in part at least by an increase of court fees.
I mention also in passing that in altering the financial limits of county courts this is perhaps something which should go had in hand with a reappraisal of the damages for personal injuries which have been brought into sharp relief by recent defamation cases.
In leaving Part I of the Bill, I wish to ask a question about Clause 7 because this seems to impose potential restrictions on rights of appeal. Will the noble and learned Lord the Lord Chancellor inform us what is envisaged and why these provisions are now to be demoted to secondary legislation?
I conclude by mentioning some offences created by this Bill. Clause 9 creates a quasi-offence of wasting court time by not turning up for your case. There is nothing more infuriating for the advocate who has prepared his case, possibly long into the night, and for the client who has spent good money than for the other side not to turn up. I can tell your Lordships that that happens more often than one might think. Clause 9 allows the court to summon and punish the person who failed to turn up. I only say this: in such a situation priority should be given to compensating the parties who have taken the trouble to turn up. I should like to see written into the Bill that a precondition of a penalty under this clause should be, normally at any rate, an award to the other party of costs on an indemnity basis. Furthermore, the penalty under Clause 9 should rank after any order for costs in priority for payment. There are other people whose cases are unnecessarily held up by such behaviour and they cannot be compensated even by a penalty under this clause. I hope that if Clause 9 is enacted it will be used sparingly because in its very nature it inevitably involves another hearing and the use of more court time.
Finally, I turn, not entirely seriously, to Clause 49, which introduces the offence of impersonating an advocate. We should not favour the creation of unnecessary offences. I ask whether there is really a 172 potential mischief requiring this clause and, if so, why should not Section 16 of the Theft Act suffice? Do the Government believe that legal practice will become so lucrative and attractive as a result of this Bill that bogus barristers will be masquerading in the Strand? What is more, the penalties under Clause 49 include imprisonment, which is surely excessive. I have looked at the comparable provisions in Acts regulating doctors, nurses, health visitors, midwives and the like and they seem to impose a fine only. But surely a bogus doctor or nurse can do far more damage, and/or induce a victim to a state of undress which I have never hoped to achieve in over 15 years at the Bar.
That and more important matters will need to be looked at during the Committee stage. The noble Baroness, Lady Phillips, touched on an important point which almost justifies a debate in itself; namely, the difficult question of the immunity of the advocate. I hope that she will not mind my saying that it is perhaps a more difficult subject than she has realised. It is one that I venture to suggest needs a public airing and it may be a subject that should be debated at the Committee stage.
§ 6.32 p.m.
§ Lord Renton
My Lords, the noble Lord, Lord Byron, gave us the benefit of his experience in the City of London in the light of his training as a barrister. We are very grateful to him for his maiden speech. Perhaps I may be allowed to try to correct three assumptions which are made by lay people; we have heard mention of them today. These assumptions are fundamental to an understanding of the Bill.
The first is that barrister advocates in lower courts charge more than solicitor advocates. That is generally not so. The reason is that Bar fees are based on lower overheads than those of solicitors, who have to cover very high overheads even in cities out of London. The second assumption is that if a solicitor advocate were to appear in the High Court that would be cheaper than having a barrister. Again, that is not a correct assumption because a solicitor will always have to charge an advocate's fee in addition to the fees that his firm will charge for preparing the case. Again, the advocate's fee will be based on high overheads.
Thirdly, I refer to the Bar's monopoly on right of audience in the High Court. I suppose it is broadly accurate to say that there is such a monopoly, but it has to be looked at in the light of the fact that the Bar is a very competitive profession and, generally speaking, it is overmanned. Therefore no individual barrister could possibly be said to have any kind of monopoly of work in the High Court.
I am a keen supporter of the Government but I share the doubts expressed by noble and learned Lords concerning much of the Bill. Perhaps I may briefly be reminiscent and go back to the debate on the Green Papers. I tried then to be conciliatory and said that I did not want my noble and learned friend the Lord Chancellor to be isolated. I believe that he is less isolated today than he was then, but I hope that he will bear in mind the very serious doubts 173 that have been expressed already in the debate and others that may follow.
At the time of the Green Papers I hoped that a consensus would emerge dealing with the problems that undoubtedly exist in our system of justice and which were well described by the dear late Lord Elwyn-Jones, who for years was a close personal friend of mine. He referred to the high cost of litigation, the lack of legal aid for millions who need it, the delays in trying cases and the need to reform procedures still further. The judges have taken a great initiative, in co-operation with both branches of the profession, in improving especially the High Court procedures in the past 20 years. But there is still scope for further improvement.
In that debate I concluded by saying that I would oppose any legislation leading to partnerships at the Bar, multi-disciplinary practices, contingency fees or the increase of government control. I ask your Lordships to bear with me for a few moments in order to consider what effect the Bill will have on each of those matters. Thank goodness that the Bill does not deal with partnershhips between barristers. My noble and learned friend the Lord Chancellor has said that he wants the Bar to remain independent.
However, Clause 46 enables a barrister to enter into a contract with his client subject to what the Bar Council may have to say. Such a contract could be inconsistent with his independence as a barrister, especially if more than one barrister enters into the same contract with the same client. I therefore suggest that one way of affirming the independence of the Bar in this Bill would be to replace Clause 46 by a new clause affirming that independence.
Fusion is not mentioned in the Bill. It is not intended by the Lord Chancellor to result from the Bill; neither is it likely to happen for years. But when solicitors are given the right of audience in the High Court and the Appeal Court—and we do not object to their having it if certain safeguards are introduced—and when many young solicitors have been trained in advocacy, as is intended and as has already been planned by some of the bigger London firms, those attainments will make their branch of the profession one which, on a large scale, combines services normally provided by solicitors and barristers separately. Eventually—not soon—that will be a big step towards fusion.
In Canada and the United States they are stuck with fusion but they would like to get away from it. Once it is there it is not easy to get away from. We do not want fusion here and so I suggest that the rights of audience of solicitors should be subject to certain safeguards to be written into the Bill. We shall have to consider that matter later.
Multi-disciplinary practices are expressly allowed in Clause 48 of the Bill but both the Law Society and the Bar Council are against them. I hope that your Lordships will unite in preventing that. Thank goodness that contingency fees are not mentioned in the Bill, but, as my noble and learned friend Lord Hailsham pointed out, Clause 44 would legalise conditional fee arrangements in a wide range of cases in England and Wales. As he pointed out, in principle there are objections to that. There is no evidence of 174 public demand for it that I know of. I must say that if it is intended to alleviate the problem of legal aid it is a very poor way of doing it.
As to an increase in government control, I share the misgivings already expressed by noble and learned Lords. There are indeed serious constitutional implications affecting the independence of the judiciary from the executive. For all these reasons I find the Bill disappointing. I am also worried by various uncertainties which result from the way in which it is drafted.
I have such admiration for my noble and learned friend the Lord Chancellor that I regret having to express these doubts about the Bill. I do so not merely in the light of long experience at the Bar but because of what I conceive to be the interests of justice to the people of England and Wales.
§ 6.41 p.m.
§ Lord Benson
My Lords, I should like to speak to that part of the Bill that concerns the legal profession. Like its predecessors, the Green Papers, this Bill is an exercise in the political dogma of competition. It will damage one of our oldest professions, and in turn it will damage the administration of justice. In the future the control of the legal profession will be in the hands of 11 bodies: the Bar Council; the Law Society; the Lord Chancellor's Department; the advisory quango; the designated judges; the Director General of Fair Trading; the Solicitors Disciplinary Tribunal; the conveyancing quango; the conveyancing appeals tribunals, and two ombudsmen. The number of 11 will increase as each new para-legal body is approved.
It is difficult to believe that any government could devise so ludicrous an over-burden of adminstration. But what is the purpose of this administrative mountain? The sole purpose in the statutory objective in Clause 14 is to permit new bodies of persons, who will not be lawyers, to parade as para-legals and claim skills in advocacy, as litigators, and in conveyancing. There is no mention of the public interest; of the need for independence; of the integrity of justice; or the obligation to service the legal aid scheme. All of these qualities are presently in the legal profession.
The designated judges have been imported into this massive superstructure, but I do not believe that they can be effective as the Bill is drawn. They are not in a position to impose those qualities on the new entrants. Still less are they able to satisfy themselves that those qualities are maintained in the future. If they ever attempted to do that, their efforts would be the subject of political football. Anybody who has ever had contact or knowlege of a profession knows how difficult it is to maintain consistent quality and integrity even in a single body that is well co-ordinated. I know from bitter experience that if there are several bodies it is quite impossible.
For 30 years now the Government have been pressing my profession to reduce the number of accountancy bodies, and we are doing so. This Bill goes in exactly the opposite direction; it multiplies the number of bodies. It is difficult to hold in respect a government policy that sustains one profession on 175 sound principles, and abandons those principles to make obeisance to a populist clamour for reform.
The consenquences of this are easy to see. The legal profession will be a confused mess of legals and para-legals; a multiplicity of bodies where the ethical standards will be different, and the rights, obligations, and disciplines will be different. If your Lordships look at Clause 50(3) of the Bill you will notice that no fewer than six different types of qualification are envisaged for advocacy alone. The result will be that the service to the public will be ragged and uneven. The public will not be able to distinguish between lawyers and para-legals. They will not know the quality of person they are dealing with. The judiciary will not know whom they can trust and whom they cannot trust.
When I was chairman of the Royal Commission on Legal Services I was shown the unofficial list of lawyers who could not be trusted to conduct any litigation honestly. I take the liberty of warning the House that if this Bill becomes an Act—and I say this also to the noble and learned Lord the Lord Chancellor as head of the judiciar—that black list will become a library.
Let us look at some of the other provisions in the Bill. A strong and independent Bar is a necessary component of the adversarial system under which we operate. In recent months the noble and learned Lord the Lord Chancellor has acknowledged the need for this over and over again. There is no such provision in the Bill. There is nothing in the Bill to sustain a strong and independent Bar in the future. The reason is that, whatever may be the intentions of the Bill, the fact is that the Bill will impair the position of the Bar.
The Bill leaves open the question of partnerships between barristers and solicitors. The result of that will be that there will be a continuous lobby within and without the profession, some rooting for fusion and some not. This internecine strife has damaged the legal profession for years past and will continue to damage it in the future.
The Bill makes provision for certain conveyancing services, but the provisions are so complex and so incomplete that it is impossible to devine what the effect will be. The solicitors' branch of the profession has so far decided that it will not be to the public advantage. The Bill proposes contingency fees in a certain form, but once the principle of contingency fees is breached it will be an open door to malpractice and corruption.
All these defects stem from one cause only: a determination to impose competition on a playing field that is as uneven as the Canadian Rockies. The consequences will be a huge over-structure of administration; a debasement of quality at every level, including the judiciary; the confusion of the public; damage to the administration of justice and to the legal profession.
On 7th April this year we saw the degrading spectacle of the Lord Chancellor and virtually the whole of the judiciary in open conflict. That cleavage of opinion is still evident today. The Government may be able to square their conscience and scorn the 176 independent, dispassionate advice of the judiciary, but the knowledgeable public are satisfied that the judiciary are right and that there are a great many things wrong with the Bill—dangerously wrong—which need to be put right.
§ 6.49 p.m.
§ Lord Rawlinson of Ewell
My Lords, I share the misgivings that we have just heard expressed by the noble Lord, Lord Benson, For me this is an occasion of much sadness, brightened only, if I may say so, by the graceful and lucid speech of the noble Lord, Lord Byron, which made me feel how clever I was at picking people some years ago. I know that he will add greatly to the quality and to the style of our debates. However, as I said, that to me is the only aspect of brightness on this occasion—an occasion which, as a Tory and as a traditionalist, I never expected to witness, especially in the time of a Tory administration in three of whose predecessor governments I had the privilege to serve. I have also been a Conservative Privy Counsellor for nearly 25 years. I was bred to the Tory principles of Disraeli: that the purpose of a Conservative administration should be to improve the conditions of our people and to maintain our institutions.
Like the noble Lord, Lord Benson, I am convinced that the measure we have before us today will inevitably lead to the ultimate destruction of one of those unique British institutions; namely, an independent Bar. It will also hasten a change in the practice of what has been over the centuries the anomalous but effective office of the Lord Chancellor.
Neither of those changes will happen overnight. But when the Bill becomes enacted, the seeds of decline will have been sown making an eclipse of both those institutions inevitable. The motive for this, as has been pointed out by speaker after speaker, is the application of that catch phrase of the present Government; namely, market forces. Apparently this must apply to everything, including the professions, and, I presume, to the behaviour of the surgeon in the operating theatre and certainly now to the pleader in the courts.
I consider the maintenance of both institutions to which I have referred to be far more important than that philosophy which, admirable though it may be as a general economic theory, could never be appropriate in the administration of justice. That assessment of the ultimate eclipse of the two institutions is the reason I have made clear my hostility to the leadership of the present Government. I admit that that attitude has seemed to some of my political friends to be extravagant and not worth, in terms of practical politics, a severance from former associations. But I have spent a lifetime—in fact, 40 years—as a member of the first of those institutions and a lifetime under the shadow of the other. Regard for them is, to me, of greater importance than that of party.
I have no personal interest in the consequences of these proposals. I passed a lifetime as a barrister, but I retired from practice four years ago and I shall never practise in a court of law again. Moreover, no member of my family is in the profession. The effects 177 of the Bill matter not to me in any sense of personal advantage or disadvantage, although my judgment of these proposals is that lawyers in the future will hugely profit at the expense of the public.
Why do I believe that this Bill will have so great an effect? In my view, unlike my noble friend Lord Renton, it is because the proposals in Part II can only be a first step on the road which will lead to the establishment in this country of a system whereby the practice of the law will be conducted by legal factories which, while bringing rich returns to the practitioners, will restrict competition and increase the volume of litigation at a vastly increased cost to the public.
The Bar of England and Wales was founded and has existed for centuries upon the principle of the single practitioner owing nothing to any other person, save to the court before whom he appears; owing nothing to any partner or employer, but owing a great loyalty to a single and strict disciplinary authority which has monitored the integrity of conduct and the standard of behaviour under formidably stern rules of conduct. In what has been a small profession, this authority has been able to police its membership closely and carefully so that comparatively few have transgressed.
The duty to the public was ensured by the professional rule that any barrister must accept any brief, whatever the view the individual barrister may personally take about the client or the cause in which he has been briefed. All that will now be changed. The present barristers will face competitors who will be members of a legal firm and who will be licensed to enjoy the right to audience. The Bar should find no problem in meeting such immediate competition.
But such firms with their scores of partners will be able to provide the financial support and offer such a level of starting salaries to the new entrant into the profession that young people wishing to follow careers as advocates will realise that in future the only practical route for them to achieve their ambition must be by joining a law firm. By that means they would be comfortably nurtured through those early days when as tyros they have to learn the skill of advocacy. The potential new entrants and the tutors at the universities are already understanding this change. Therefore the flow of young barristers will soon dry up.
It is said that the changes proposed are modest and that only a few solicitors will take advantage of them. That may be true at the beginning, although already certain large firms are planning to apply for a licence under the Bill for all of their partners who were once barristers. They are also planning to establish full-scale litigation departments staffed by those eligible under the Bill to plead in the courts.
As the flow of recruits to the barristers' profession ceases, barristers in practice will be tempted to secede and will accept the advantages of practising under the umbrella of the large law firm with all the sweets of salary, share of profits, pensions and expenses. In the result, competition, presently so acute at the Bar, will decrease as the large firms seek out and then absorb batches of the leading barristers and form them into litigation teams. The cost of 178 litigation, deprived of the individual barrister with his low overheads, will enevitably rocket.
The Bar, especially the specialist Bar, may take a little time in the dying. Some of the present generation may survive; but die it will. Once the great leap is taken—a leap which is taken by this Bill—to abandon the principle of the single practitioner, further change must follow leading, inexorably, to the creation of the American legal factory system. It could be said that: that is an exaggeration and that the inclusion of just a few solicitors in the system will never cause an independent Bar to cease to exist. Well, to anyone genuinely taken in by that view, all I can say is that that is the triumph of hope over reason.
However, I believe that many have genuinely been taken in by that view. I say this because I am quite sure that those who conceived this Bill—far, far back—and who have left it sitting on the shelves, know that it is just the first step along the road which will end not with a legal profession like that in Australasia with its small populations, but with one like that of the United States.
I am an honorary member of the American Bar Association and an honorary fellow of their trial lawyers' association. Therefore, I know something about their practice in America. I also know about the complaints voiced by leading members of the profession in that country—complaints about how their profession is organised and about the quality of some of the judges it produces, many of whom are very fine but some are deplorable. They will tell you frankly that in the United States the law is no longer a profession but rather a business, like the marketing and sale of pots and pans. Moreover, it is a system in which all kinds of litigation are rampant, the costs enormous and the lawyers very rich indeed.
Therefore, whatever is said over the protections that the Bill provides to ensure that only well-qualified lawyers plead in court, once the development is introduced the ultimate result in the next generation of lawyers will, I predict, be the fusion of the two branches of the profession into the all-embracing role of the practice of law by large groups of attorneys. That will come if only because of the decision of new entrants who will have no practical alternative but to enrol in the large law firms.
To extend their Americanisation, the designers of this Bill have introduced the principle of, no win, no fee, to which my noble and learned friend Lord Hailsham of Saint Marylebone referred. I agree with what he said: nothing could be more harmful to the litigation climate. It is not as deplorable as the full contingency fee where the lawyers take a hefty percentage of the damages won; but it is, nevertheless, an introduction to that American practice where the lawyers descend like vultures upon the scene of every disaster, soliciting clients.
The introduction of a no win, no fee policy in England and Wales would be an objectionable development in our larger jurisdiction with its vastly greater amount of litigation than in Scotland. I presume that it has been introduced only as a kind 179 of figleaf to disguise the Government's poor record in failing to extend legal aid.
It would have been more open if the Administration had bluntly thrown open the right of audience to all lawyers, for that, in a few years, is what will occur. But no, we are proceeding in the English way, so beloved of Whitehall, the professional as well as amateur, the permanent as well as the ephemeral. We are proceeding to radical change by stealth and pretence under the banner of "the market place".
There is no halfway house between the single, independent practitioner system, obedient to a rigid disciplinary code, and the full scale American system of the litigator who is a member of the firm. That will be the eventual epitaph of the Bill. The noble and learned Lord the Lord Chancellor, who was once a proud Dean of the Faculty, whose words we have heard quoted today, must sadly accept his responsibility in his role as the undertaker who buried an old and effective British tradition.
The second institution which I believe will suffer is the office of the Lord Chancellor himself. First, it must be axiomatic that it cannot be acceptable for the Minister, who is in effect responsible for appointing the judges, to have in effect, the ultimate say through his appointees over who may appear in the courts to plead before those judges. Nowhere in the civilised world—certainly nowhere outside the fading Marxist societies—does a Minister have such powers.
As the Lord Chancellor has now chosen to take from the judges the power to rule who may appear before them in their own courts, then he will surely have to surrender his power to recommend the appointment of the judges. The time has therefore arrived to establish a statutory judicial appointments board to take over that duty. That could lead to an examination of the constitutional position of the office of Lord Chancellor. The Lord Chancellor is, after all, a political Minister who is also the head of the judiciary and who sits in the judicial committee of the House, the ultimate Court of Appeal, deciding individual cases, but who at the same time sits opposite the Prime Minister in Cabinet, a party to every political decision.
To those who believe in the separation of powers, that has always seemed odd; but it has worked, because the office of Lord Chancellor was designed for a Minister beyond political ambition to whom the Prime Minister and every other Minister deferred. In the past he was drawn from the ranks of those who had practised in the English and Welsh courts and who knew and could assess the practitioners in those courts. Because of that knowledge, he was given the power to recommend for advancement to silk (the rank of Queen's Counsel) from whom, in the main, the judges are appointed. That is an important duty.
When that much loved and, alas, now sorely missed Lord Chancellor, Lord Elwyn-Jones, finally left office in 1979, that was five years only since he had been in practice in the courts. During his time in office he was well able to make recommendations based upon his knowledge of the people involved. 180 My noble and learned friend the Lord Chancellor, distinguished as he undoubtedly is as a great Scottish jurist (a legal system different from that of England and Wales)cannot, through no fault of his own, know the English profession. He is therefore obviously obliged to leave appointments to judges and his civil servants, and the English law to commissioners. That cannot be satisfactory.
Modern Lord Chancellors, with the ever increasing legal aid bill, have been obliged to develop into Ministers responsible for substantial public expenditure, as they never were in the past. However, the Lord Chancellor is not answerable to the House, which is the House with responsibility for Supply. His department has no Minister who is a Member of the other place to answer for him there. He has to employ the Attorney General, who is not in his department, as his agent. That was acceptable when the Attorney General had to answer about matters of law only, but it is not when the Attorney General has to try to answer for public expenditure by a department of which he is not a member. How long in modern times will the other place tolerate that constitutional anomaly?
The Lord Chancellor is the guardian of the interest, powers and independence of the judges. Yet in the Bill he seeks to remove from them one of their most important powers, one which concerns the citizen who is often in dispute with government. Now, he has removed that power, apparently without their consent, and taken it in the last resort to himself as a member of the Executive and to those appointed by him. I do not see how that can be reconciled with his historic duty to withstand the encroachment and interference by the politicians with the powers and role of the judges. If the Lord Chancellor no longer stands for the judges and cannot personally exercise the important task of recommending judicial appointments; if he is now responsible, as he was not in the past, for a large public expenditure and has no presence in the other place; and if, like all his recent predecessors, he has little time ever to sit judicially, what remains of the traditional characteristics of his office, whose combination of judicial and political duties has, as a matter of principle, always offended some constitutionalists? Those who call for a Ministry of Justice will be encouraged.
This is an occasion of sadness for me. The Bill, with the substitution of one of the important powers of the judiciary by a system dominated by the Lord Chancellor as a Minister, will eventually serve to accelerate the cause of those who seek to change the office of Lord Chancellor, just as it will serve radically to change the practice of the law before our courts.
Those are the reasons which cause me to protest at the Bill which in another place I would have voted against on Second Reading. Forgive me, because I have spoken at length. I should explain why I now differ so vehemently from those who have been my political friends. As I see it, the Bill heralds inevitably the eventual end of the tradition of the English Bar which has for so long played a part in our liberties. It emphasises the decline in the independent authority of the Lord Chancellor; independent, that 181 is, of the politics of the Administration, and whose proud duty it was to protect the role and power of the judges. All that is coming about by the political will and decision of those whom I always believed were dedicated to maintaining this country's institutions. It is that which has brought me to my personal despair of the Administration and its leadership.
§ 7.7 p.m.
§ Lord Allen of Abbeydale
My Lords, looking at the list of speakers, I see that I am No. 15 and yet I am only the third non-lawyer to speak. I shall be taking a line different from the last non-lawyer to speak. I have in mind the noble Lord, Lord Benson. I was brought up as an inarticulate civil servant. I cannot hope to match the eloquence of the noble Lords who have spoken hitherto. However inadequately, I should like to speak in warm support of the Bill and the steps that it is taking to improve access to justice, to give the consumer a greater choice and to do something to make justice quicker and less expensive.
I look at the measure merely from the consumer's point of view: the ordinary citizen who for one reason or another is obliged to have recourse to the law or to legal services. If, to improve his prospects, the legal profession has to surrender some of its privileges and traditions, so be it. I like Clauses 14 and 15 which have come in for so much criticism. I hope that the noble and learned Lord will stick firmly to the Bill's main principles, not that he needs any great encouragement from me, as I well appreciate.
In doing so, the noble and learned Lord will earn the gratitude of the Consumers' Association and the National Consumer Council and also that of a great many ordinary people. It happens that they are not perhaps so well represented in the speakers' list today as is the legal profession.
I am a firm believer in the findings of the Pearson Royal Commission, which I suppose after all these years will remain for ever undebated, and am somewhat of a heretic in finding it so difficult to understand what there is so special about this country which makes it essential to preserve the split profession which exists hardly anywhere else. I listened to the noble Lord, Lord Renton and the noble and learned Lord, Lord Rawlinson, on that point. I should have liked to have gone rather further but the Bill is an important step forward on the right road.
One point about the Bill seems to me to be rather striking and worthy of comment. That is the proliferation of provisions for the creation of what loyal supporters of the Government used to dismiss as "quangos". They spring up all over. I see not the slightest objection to this. I have always thought that these bodies are a useful way of getting work done on the cheap by knowledgeable people. However, it is interesting that the Government have gone in on quite a scale for creating these bodies which they once criticised so trenchantly, admittedly before the noble and learned Lord joined the Cabinet.
182 In a natural transition from that comment I wish to say a word about the Advisory Committee on Legal Education and Conduct. In making these comments, I am well aware of the functions entrusted to that body. Clause 16 gives barristers, solicitors and law teachers a direct right to representation. But in filling the eight majority vacancies, although regard is to be had to the desirability of appointing persons with experience of a number of listed activities, there is no guarantee that all these interests will always be represented. Seeing that the interests of the consumer come so high, I should have thought that there was something to be said for specifying in the statute that in addition to the two barristers, two solicitors, and the two academic lawyers who are there by right, there should be provision for two persons experienced in consumer affairs.
I turn to quite a different point. I understand why the Bill does not touch on legal aid for the reasons clearly explained by the noble and learned Lord at the outset. But whatever provision might be made elsewhere on that topic, there are always bound to be people who are too well off to be entitled to legal aid but not well enough off to litigate at their own expense. For that reason I wish to say how pleased I personally am that in spite of all the criticisms—and we have heard enough of them tonight, and I think there are perfectly good answers to them—the noble and learned Lord has decided to keep in Clause 44 a provision whereby lawyers will be able to agree with their clients that a case will be conducted on the basis that if it is lost the lawyer will receive nothing or a reduced fee, whereas if it is won, he will be able to charge an extra amount on top of his normal fee.
I agree straight away that the power may not be widely used, at all events at first. The legal profession is not marked for its quick adaptation to novel arrangements. But it could help in a modest way. We shall have to examine the regulations carefully in due course, but the proposal avoids the objections which are usually advanced against the American contingency fee system. My only doubt is whether, in view of the inevitable limitations to legal aid, it goes quite far enough. I may have suggestions to make at a later stage about the possibility of extending the Lord Chancellor's potential responsibility in this context.
I go along with the suggestion that the powers of the Parliamentary Commissioner for Administration, the original ombudsman, should be extended to court administrators. Part I of the Bill seems to some extent to be geared to the interests of the administrators rather than to those who use the courts. Although I am aware of the technical problems, I think it would be consistent with the general tenor of the Bill if they were to be made answerable to the ombudsman for complaints of maladministration.
For my last point, I turn to Clause 47 about barristers' immunity. This has been touched on by previous speakers and I think it was the noble Lord, Lord Meston, who said very properly that it is not quite as straightforward as it might appear. The 183 explanatory note to the Bill says simply that Clause 47,extends barristers' immunity from liability for negligence or breach of contract arising in connection with services in relation to proceedings or contemplated proceedings to others providing such services".However, as I read the clause, it does rather more than that. In particular, it seems to me to extend the present immunity. I thought that that immunity was confined to the conduct of advocacy and matters immediately attendant on that. But it now seems to me that under the clause it will be applied to practically anything that has to do with litigation.
Does it mean that the immunity is now to apply to proceedings before tribunals? That is a matter on which I have always thought there was some doubt. Will the immunity apply to the lay representatives who will now be able to operate in small claims cases under Clause 8? I suppose that it must. Whether that will delight the lawyers I am not quite so sure. I think that rather than extend the immunity it will be better to do away with it altogether. It strikes me as quite extraordinary that if an advocate is genuinely negligent by failing to call a vital witness, by carelessly missing a date or by simply failing to turn up, there is no legal remedy for a client, even though as a result he may get himself sent to prison or suffer some other dire consequence.
Disciplinary proceedings are not enough. I am not aware of any other profession with such an immunity. I used to think that the reason for it was that there was no contract between the barrister and his client. I understand that this is not so and that the justification advanced is mainly one of public policy. I am sorry to say that I have difficulty in understanding that. It is not a privilege which exists widely outside this country. When our advocates practise in Europe after January 1991, they had better bear in mind that they may not find any similar immunity there.
I know that it is argued that an advocate must put his duty to the court first and that a client may be aggrieved if by so doing an advocate disadvantages the interests of that client. But it is ludicrous to suggest that a court would ever find an advocate guilty of negligence in such an event.
Again, it is objected that there might be a risk of all the issues having to be litigated again. But relitigation—if there is such a word—seems to me less of an evil than that someone who has suffered an injustice should have no redress. The suggestion that a liability to be sued for negligence would tend to diminish the advocate's ability to act fearlesssly and independently is something which a surgeon, an accountant, a surveyor or indeed a French Advocate would find it very hard to understand. I have even seen it argued that, under the "cab-rank rule", a barrister may have no choice about accepting a client and therefore it would be unfair if he could then be sued by that client who had in effect been thrust upon him. However, in practice, the "cab-rank rule" is, shall we say, somewhat intermittent in its application. If a cab driver negligently runs into someone, he is not immune from being sued. I cannot help thinking that it is inconsistent with the 184 fine ideals of this Bill to preserve and extend an immunity which exists for the benefit of the legal profession and which may result in the denial of justice to its clients. I can foresee that we may have an interesting time on this matter at a later stage.
I have some other points and some point of detail that I wished to raise; for example, the possibility of lawyers from certain Canadian provinces qualifying as solicitors here. I had thought that point would be covered in the Bill. However, I shall limit myself tonight to the four points that I have briefly discussed. I end as I began by welcoming the Bill and by expressing the hope that it will find its way to the statute book without any watering down of its major provisions.
§ 7.21 p.m.
§ Lord Boyd-Carpenter
My Lords, in the course of a debate which has not been without some elements of bitterness it was agreeable to hear the noble Lord, Lord Allen of Abbeydale, speak as he did. I find myself in full agreement with a great deal of what he said. I was also in agreement with the reasonable tone in which he put forward his arguments.
I am sorry that the noble Lord, Lord Benson, is no longer with us because he made a statement which, even in his absence, I propose to challenge. He said that public opinion was against the Bill and that it was all frightfully unpopular. However, he cited no authority whatever for that proposition and I do not believe it to be true. On the contrary, the Consumers' Association, which is representative of ordinary consumers, has circulated a document which begins:This is a good Bill and should be supported".I hope that just because a large number of members of the profession affected have spoken in your Lordships' House in this debate the illusion will not be created that this is, outside that rather specialist interest, an unpopular Bill. I believe, on the contrary, that certainly when it is fully understood it will be thought to be an excellent measure and a real measure of social reform of the kind which this Government have been responsible for for some years and which is now carried into this difficult area.
I see that the noble and learned Lord the Lord Chancellor has not moved from the Woolsack since the debate began. I pay tribute to him for that effort of both good will and sheer physical stamina. However, there is one area of difficulty. I hope that the noble and learned Lord will deal with the somewhat disturbing statements made by the noble Lord, Lord Mishcon, and by the noble and learned Lord the Lord Chief Justice on the dangerous understaffing particularly of the county courts and related bodies. As one of the major effects of this Bill will be and is intended to be to transfer a considerable amount of business from the High Court to the county courts, quite obviously its whole purpose and effect would be frustrated if those bodies proved to be so understaffed as to be ineffective.
I hope therefore that the noble and learned Lord the Lord Chancellor will either deal with the 185 allegations of fact which have been made—although I think he may find some difficulty in that—or, more hopefully, will indicate that Her Majesty's Government as part and parcel of this whole operation are taking urgent steps to improve the staffing arrangements in the county courts. It is no use setting up an excellent system in theory if in practice it is inadequately manned and people experience the horrifying delays of which we have heard.
The merits of the matter seem to me to be plain. Our legal system is in many ways a fine one of which all of us in this country, including those of us who like myself have had some connection with it in the past, are very proud. However, it has two major defects in present circumstances. First of all, it is very expensive, and, secondly, it is pretty slow. As regards expense, your Lordships know that it is an act of rash courage for anyone to go to law in the civil courts unless he is either a rich man or a member of a rich company, or poor enough to come within the provision of legal aid. The intermediate class of people do so at their peril.
Your Lordships may have seen the rather pathetic case which appeared in The Times of, I believe, two days ago of a distinguished elderly retired soldier, General Leakey, who became involved in litigation with a fishing club on the River Test, which adjoins his house in Hampshire. General Leakey lost the case after a three-day hearing and a result of his liability for costs has to give up the house in which he has lived all his life and sell up all his assets. He may not have been wise to indulge in the litigation but the affair affected his house as it affected the movement of people close to his house. Therefore his attempt to go to litigation was understandable. A system which is so expensive as to have that kind of effect must be subjected to some considerable measure of review.
I suggest to your Lordships that, provided the county court foundation is properly provided, the proposal to transfer a considerable amount of litigation from the fairly high cost High Court to the somewhat cheaper county courts must result in cheaper litigation. I know that some noble Lords will say that we need not bother to do that and that all that is needed is a massive expansion of legal aid. I believe that was the phrase used. Legal aid is indeed an excellent social service, but it has to take its place with all our other social services. It is a rather expensive social service and it is really no answer to the high cost of proceedings in our courts to say, "Put this on the taxpayer and no one will be any the worse". That would be an irresponsible attitude for any government, who must consider public expenditure and weigh up its effect in different directions. Therefore to suggest that one should go on operating an expensive legal system because hardship could be prevented by charging it to the taxpayer is not a practical proposal.
It seems to me that by transferring some of the business to the county courts the process will be made somewhat cheaper. I do not wish to exaggerate that aspect because one does not litigate in the county courts for nothing. Nevertheless, there will be a tendency in that direction.
186 However, I shall now turn to what I consider, from listening to the debate, to be the most controversial issue in it. That is the question of admitting solicitors to the right of audience in the higher courts. When this is discussed I often look across at the noble Lord, Lord Mishcon. I feel there is no Member of your Lordships' House who would dispute for a moment the noble Lord's capacity to undertake advocacy before any tribunal. I hope the noble Lord will not take it amiss if I say that if I were in trouble, and particularly if I did not have a good case, I would have enormous confidence in the advocacy of the noble Lord, Lord Mishcon. After all, he has such wonderful experience in the argument of cases of doubtful validity that he would be effective.
There are many members of the solicitors' branch of the legal profession who are perfectly capable of and suitable for the right of audience in the higher courts. Perhaps I may take a personal example. Because I was called to the Bar many years ago and practised for four or five years I still have the right of audience in any court if anyone were fool enough to employ me. However, the noble Lord, Lord Mishcon, whose legal practice is right up to date and very considerable, has not. That is extremely difficult to justify.
An ingenious attempt to justify it was made by the noble and learned Lord the Lord Chief Justice, who I see is no longer in his place. He said, quite rightly, that integrity in advocates was very important. I do not know why he said that it was more important in the higher courts than in the lower courts; the noble and learned Lord did not explain that. It seemed to me that his whole argument based on integrity—that therefore only one profession should operate in the higher courts—was a complete non sequitur. It is not to be suggested necessarily that a solicitor's standard of integrity is any higher or lower than a barrister's. The Law Society possesses effective machinery for securing the good conduct of its members. There is no need to say that from the point of view of integrity they should not be allowed to practice and only members of the Bar should be allowed to do so. That seemed to me to be really muddled thinking which I was extremely surprised to hear from the noble and learned Lord.
That argument does not apply only to solicitors. Integrity in a profession is vital throughout our system. It is vital with doctors; it is vital with teachers; it is vital with accountants—perhaps particularly with accountants. It is perhaps a little self-righteous for members of the Bar to think that they alone have high standards of integrity. I hope and believe that most of our professions have and operate high standards of integrity. That is not an argument for denying solicitors who are otherwise capable of advocacy the right of audience in higher Courts.
It is late so I shall not go over the other matters. I was delighted to see the adoption of the Scottish proposal on conditional fees. I am also pleased to see the proposal, which I do not think has been mentioned this afternoon, concerning the eligibility of members of the solicitors' profession for appointment to high judicial office. Many of us know 187 solicitors who would be just as capable of fulfilling high judicial office as our other friends who happen to be members of the Bar. I do not believe that it is right to prevent that or to prevent the right of audience.
I should like to add one further point, particularly in reply to my noble friend Lord Renton. He suggested that if one allowed a solicitor to appear by himself in the higher courts instead of appearing with a barrister whom he had briefed, that would be more expensive because of the solicitor's higher overhead costs. I thought that, suprisingly for him, my noble friend missed the point. The point is that under the present system not only is the barrister in court, enjoying his fee, but he is attended by the solicitor with the overhead costs which anyhow fall upon him. Therefore surely it must be the case that employing one man will be somewhat cheaper than employing two. The public would expect that.
I say to my noble friend Lord Renton that if that is wrong and he is right—and until the system has started who can tell? —the client will put the matter right. If it is really cheaper to employ two men than one the public will employ two men. The one man will find himself driven out by competition.
§ Lord Renton
My Lords, my noble friend may have overlooked the fact that the solicitor advocate, like the barrister advocate, will need a member of the solicitor's firm in court with him. He will need the services of such a person. That person sitting behind the solicitor advocate will also have to be paid for by the lay client.
§ Lord Boyd-Carpenter
My Lords, my noble friend is simply making an assumption. There is nothing whatsoever in the Bill to compel the solicitor advocate to have another solicitor sitting with him. My noble friend says that he always does, but we are talking about a situation which has not yet arisen—the right of audience in the higher courts. Because you want to prove that it will be more expensive, it is nonsense to assume that that will happen. There is not a scrap of evidence in support of it and the Bill does not so provide. As I have said to my noble friend, if he is right it will come out in the wash. If it turns out to be more expensive the ordinary client will adopt the cheaper alternative. There is therefore no need for my noble friend or any other noble Lord to worry about it.
This is a good Bill. I think that it is a historic Bill. It will go down in history as one of the major reforms of a government who, despite the rather acid comments of my now absent noble and learned friend Lord Rawlinson of Ewell, have for years conducted major reforms in various parts of our society and improved it out of all recognition. I believe that the Bill is a great contribution to that process. I believe that your Lordships owe a debt of 188 gratitude to the noble and learned Lord the Lord Chancellor for introducing the Bill and for making clear that he will soldier it through.
§ 7.36 p.m.
§ Lord Grantchester
My Lords, perhaps I may start by adding my congratulations to those tendered by others to the noble Lord, Lord Byron, on his maiden speech, in which he made some telling points both in favour of and against various provisions in the Bill before us. We hope that he will pursue those matters in more detail at the Committee stage.
The Bill is a complex and technical piece of proposed legislation. It starts with a sugar coating by suggesting that transfer of causes to the county court will reduce the costs of litigation to the party. It then proceeds to contain the main kernel of the establishment of a larger pool of advocates. Finally, it deals with a number of subsidiary matters.
I have spent some 25 years at the Chancery Bar dealing with company law and City finance, followed by some 15 years administering a tribunal system and sitting in various different courts, including the Crown Court. I hope, therefore, that your Lordships will bear with me for a short time if I make a few comments on the proposals.
First, it is not doubted that our present system of courts and tribunals dispenses justice of the highest quality. However, if one has a Rolls-Royce one must expect its upkeep to be costly. It is run by qualified and tested professionals. So in looking at the proposals I submit that we should consider whether they will reduce the costs and difficulties of litigation without lowering the quality of the judicial services provided by the Bench and the representatives of the litigants.
As the noble Lord, Lord Mishcon, has pointed out, the right of all, both rich and poor, to pursue justice was initially guaranteed by the legal aid system. That has proved too costly for successive governments to maintain at an acceptable level. In addition, many technical matters have now been entrusted to tribunals, which have proliferated but for which no legal aid is available. This latter problem is in no way ameliorated by the provisions of the Bill.
Secondly, the sugar coating on the pill offered to us is the rehabilitation of the county courts to take cases now heard in the High Court. The county courts were an excellent forum in the days of rent control, which were their hey-day. Since then they have been allowed to deteriorate. They are disliked by litigants as being second-class courts. If they are to be enabled to take even a small proportion of the work which we are led to believe will be put down to them, the costs of their rehabilitation will run into many millions. In addition, there is no reason why a case which would take half a day or a number of days in the High Court would take any less or be cheaper for the litigants in the county courts. Any savings will be in the salaries of the judges and the administrative staff. It is important that there should be no lowering of the standards of justice by down-grading the court to which the litigants must now have resort.
189 Thirdly, it is inherent in the proposals—this is the second kernel—to widen the number of lawyers with rights of audience. That will reduce the costs of litigation to the public. I see it implied in the statutory objective that members of the public will then have a wider choice of persons providing the advocacy services. To my mind, that is a fallacy. If one travels on a Clapham omnibus and asks a fellow passenger whom he would choose to represent him in an action against his neighbour, in nine cases out of 10 he would have no idea whatever where to start. In the one remaining case where he was able to give a positive reply, he would most likely be a member of the criminal fraternity with recent experience in the Crown Court or a fan of Horace Rumpole.
So, instead of the present system in which few, if any barristers do not have regard to the highest standards of integrity, we are to have a pool of advocates approved by an advisory committee with a lay majority. We can envisage that pool consisting of barristers and other professional people—solicitors, accountants, surveyors and the like. I am unable to accept that their services would be any cheaper than those of a barrister.
In the course of my work in the tribunals I have had to tax many bills of solicitors and accountants providing services as representatives before tribunals. In determining whether the losing party should pay the whole of the charge costs of the solicitors or accountants, I have had to apply the test of what fee a reasonably competent barrister would have obtained for conducting the hearing. I cannot remember a case in which the solicitor or accountant working on a basis of the rate for his status as a partner or senior executive was not higher than the test which I was required to apply.
Finally—a brief point—I should like to refer to the long-term effect of the proposals. We should bear in mind, first, that the number of barristers in practice varies with the amount of work available. If the amount of work available increases, the Bar increases in numbers; if it contracts, the number of barristers in practice will fall. In considering that aspect we should also bear in mind the fact that the income of the average barrister is lower than that of the average solicitor partner or accountant.
Then, against those considerations, we should consider the proposal to allow multi-disciplinary partnerships. If they are allowed, the big City firms will soon establish in-house litigation departments to which they will direct their clients. The smaller country firms will establish litigation associations to which they will direct their clients. Promising young lawyers will be selected with offers of salaries, bonuses, shares of profits and the like to man those departments and associations. As they see their solicitor clients retiring, older established barristers will also be attracted by those departments and associations. As a result, the work for an independent Bar will wither, as will the whole profession. It will be simply a matter of time and supply and demand for those outside departments and associations to take over. But the standards of justice will tend to be under attack as the members of those concerns will be concerned as much for their bonuses and profits as for other considerations.
190 The present system is far from perfect and in my time I have made numerous suggestions for its improvement. But professional expertise is expensive. The present proposals, presented as a method of keeping down the costs of providing justice, are in my view based on fallacies and will not in the end achieve that objective but tend only to lower the standards of justice in the courts and tribunals.
§ 7.47 p.m.
§ Lord Campbell of Alloway
My Lords, at the outset perhaps I may thank the noble and learned Lord the Lord Chancellor for introducing the Bill, which is broadly welcomed in the White Papers, by both Houses, by the electorate and indeed in the press. In view of certain things that have been said from my Front Bench this evening, perhaps I may also acknowledge the good intentions of the Government which I support.
I only speak personally and I declare an interest and concern as a practitioner of some long standing. I have now been 50 years on the cab rank and am still on it. I do not wish to argue against the principle of the Bill—against the principle of the abolition of the Bar's monopoly or the appointment of solicitors to judicial office. In my opinion—it has not been shared by my colleagues; my views are very often not shared—that is long overdue. I welcome the Bill as affording a rescue operation for both branches of the legal profession stranded on the rocks of internecine dispute over rights of audience—a dispute as yet unresolved—and as an acceptable framework for constructive reform.
The heads of main concern—and I have serious concerns—have been covered by many other noble Lords and I have left the Chamber only totally to recast my speaking notes in the light of the contributions of other noble Lords.
Let us deal first with Part I. I support the very serious concern, so well expressed by the noble Lord, Lord Mishcon, if I may say so, as regards the absence of the appellate procedure concerning transfer and the court of transfer which may cause great inconvenience to the general public. I take on board the administrative problems with regard to duly qualified staff and the provision of adequate finances and respectfully ask my noble and learned friend the Lord Chancellor to give us the comfort of some assurances in the public interest that before these provisions are put into effect those problems will have been resolved by appropriate and urgent action, at all events to the satisfaction of the Government and both branches of the profession. That measure of concern was enlarged upon by the noble and learned Lord the Lord Chief Justice and my noble and learned friend Lord Hailsham as well as my noble friend Lord Boyd-Carpenter. To those contributions nothing further need be said.
With regard to the second matter of concern I again refer to the concern expressed by the noble Lord, Lord Mishcon, about millions of people taken out of legal aid. Again I most respectfully point out that resort to conditional fees (Clause 44, I think) cannot begin to come to grips with the essence of 191 the problems of accessibility of justice to all. I ask my noble and learned friend to give consideration to the setting up of the contingency legal aid fund along the lines proposed, which I know my noble and learned friend the Lord Chancellor knows all about.
One cannot sail under a false flag, certainly not in your Lordships' House, and I take the same ethical stand—the same ethical objection—as to conditional fees as expressed by my noble and learned friend Lord Hailsham. It would not be right to say otherwise. But whether that be right or wrong, the point is that conditional fees cannot come to grips with the essence of the problem, which is the accessibility of justice to all.
As to the third head of objection, which concerns rights of audience—when I say "objection" it is in my book not an objection in principle at all, as I have made clear; it is a matter of concern and a matter for clarification of the drafting—I agree with the noble Lord, Lord Mishcon (I took it down) that ability, experience and quality are all factors which must be taken into account in the grant of rights of audience and the conduct of litigation.
But with the greatest respect I question whether Clause 14 as drafted provides an adequate or flexible evolutionary framework—and here I use the concept of my noble and learned friend the Lord Chancellor—and whether that evolutionary framework as drafted is sufficiently flexible and sufficiently adequate to afford due and efficient administration of justice in the public interest as envisaged by my noble and learned friend. Surely, as my noble and learned friend Lord Hailsham suggested, something has gone wrong with the drafting of Clause 14. There is no reference to the interests of justice.
As the noble and learned Lord, Lord Donaldson, said, the White Paper approach was admirable at paragraph 8.5, and so indeed I thought. Then the noble and learned Lord, Lord Donaldson, referred to what appears to me to have been a flight from the White Paper and Clause 14, stating truly that the interests of justice was the key objective. Then in a most interesting intervention my noble and learned friend the Lord Chancellor—and certain things have been said so that I wish to make it plain that on all sides of the House his integrity surely is wholly accepted and there is no hint that it is in question—suggested that the noble and learned Lord, Lord Donaldson, in effect had got his interpretation wrong. Well, I had got it wrong too and so had my noble and learned friend Lord Hailsham. So had many of those at the Bar. There has been a general misunderstanding. Therefore, with respect, it remains a serious question of construction.
That is easily dealt with, because if there is nothing between the Government and those who are taking that point, it is a matter of clarification of the drafting to take on board the point and to get it right beyond peradventure. That is the whole object of a Committee stage in your Lordships' House. If that is clarified, it would meet the force of objection—I am using shorthand to save time—to what the noble 192 and learned Lord the Master of the Rolls referred to as a Schedule 4 "quadrille" and the impact in particular of paragraph 5(5) of Schedule 4, which was the very point that led the noble Lord, Lord Hutchinson, who also shared my misunderstanding and the misunderstanding of others, to suggest that the role of the judges was now peripheral and neutered. That is going it a bit. But the point is clear. It was being suggested, and it is part of the understanding of those of us who take a different view of the construction, that the role of the judges would become all but a cypher.
As I understand it, that is not the intention of the Government. It is now evident that the speech of the Master of the Rolls, which was reported under the heading "Judges veto" and so forth, has been wholly misunderstood in many quarters, including of course in good faith (I mean that) by the noble Lord, Lord Mishcon. This should now substantially clear the air.
It is also perhaps now plain that there is a strong case for centralised control, a single set of rules and consistent enforcement as advocated by the noble and learned Lords the Lord Chief Justice and the Master of the Rolls and the noble Lord, Lord Boardman. With respect to my noble friend Lord Boyd-Carpenter, he slightly slipped the point here. This has nothing to do with integrity; it has to do with enforcement and centralised enforcement.
There is no objection to judicial review. Reasons are given as a matter of course and breach of that type of statutory duty would not sound in damages any way. But if I am wrong about that and if it is not the intention to make the judiciary liable in damages, an amendment to clarify the situation would be wholly reasonable and indeed welcome.
It is respectfully suggested that, although the statutory objective in Clause 14(1) is subservient to the general principle in Clause 14(3) as drafted, in conjunction with Clause 15(2) it may well not afford adequate or appropriate safeguards according to the intentions of government, having particular regard to Schedule 4, paragraph 5(5) to which I have referred under which the judges' power to refuse is limited in a curious and very effective way; that is, only if the application is incompatible with statutory objective or general principle. Because that ground of refusal is the only ground and such a narrow ground, it is important that Clause 14 should be widened to become sufficiently flexible to allow the appropriate discretion at all levels with those concerned with granting rights of audience.
Part of the problem of construction arises because of the emphasis on width of choice which distorts the true picture of public interest and due account of relevant experience, as expressly acknowledged by the noble Lord, Lord Mishcon, as well as qualifications and expertise which practitioners must have in the interest of the consumer in the rendering of legal advice.
I should like to suggest one rider: that in criminal cases there is a special case. The noble Lord, Lord Hutchinson, with respect, surely has a point. He was a most distinguished criminal practitioner with a wealth of experience in our courts. He has stated that 193 the lawyer who has the conduct of the preparation should not have the conduct of the case in court. I undertake a certain amount of criminal work even now. I wholeheartedly support the suggestion that he made. I do not think that it would be in the interests of justice for the person —be he barrister or solicitor—who takes the instructions in a criminal case, certainly in a jury trial, also to prepare and present the case.
Another point arises only on criminal law. I suggest that consideration is given to whether it is right that the CPS representatives should conduct prosecutions in court. We are coming very near to the American system of the state prosecution service. As a lifetime practitioner I should find that unethical and abhorrent. Other noble Lords may conceivably feel the same. It applies only to criminal cases.
§ Lord Boardman
My Lords, if the noble Lord will forgive me —is he applying the same argument to the magistrates' courts? Surely one must expect the same standard of justice in those courts. Does he believe that the person who takes instructions should not conduct the defence in magistrates' courts?
§ Lord Campbell of Alloway
My Lords, it was only in the interest of trying to save time that I did not deal with the anomaly. I take my noble friend's point. That is the practice in the magistrates' courts, and it seems to work reasonably well. However, I do not know whether he has experience as a solicitor of undertaking heavy criminal cases. He indicates no. Those who have experience of heavy criminal cases —conspiracy, drugs, corruption and such other cases —will know of the blackmailing of juries and pressures on juries. In his grand practice my noble friend has never come across such things. People like myself have to deal with them now and then. Those of us who know about it are worried about the very close relationship between the lawyer —a member of the Bar or the solicitor —who takes instructions from the client and then represents the case in court before the jury in a very important criminal trial. It may not sound logical to my noble friend, but I hope that I have made myself plain to your Lordships.
There is no time to deal with any other issue or questions that have been raised. It will take time for the new regime to settle down and many years before any objective assessment can be made of its impact either upon the public interest or upon the legal profession. I do not see this as a radical change by stealth; nor do I see the impact as it is envisaged by my noble and learned friend Lord Rawlinson; and nor can I share his criticism of my noble and learned friend on the Woolsack or of his appointment to office; and nor can I share any expression of personal despair of this Administration or of its leadership. Quite the reverse, my Lords. No Bill fails to be improved when it goes through your Lordships' House in its revisory role. My noble and learned friend the Lord Chancellor has already indicated that this Bill will be no exception.
§ 8.7 p.m.
§ Lord Hacking
My Lords, the noble Lord, Lord Byron, has already received the well deserved 194 congratulations of this House. I hope that I shall not therefore be breaking with the tradition of the House by giving him a very warm welcome as a participating Member of your Lordships' House in particular during the passage of the Bill. Thus far during the debates on these proposals —we had a debate in April —I have been the only practising solicitor in the Square Mile (although the noble Lord, Lord Mishcon, is not very far away) to speak to the House and to represent the views of those who have the same professional experience. I therefore welcome the noble Lord, Lord Byron, for helping the House to have a greater understanding of those large City law firms upon which certain adverse comments have been made in the debate.
In the Report of the Committee on Legal Education, presented to Parliament in March 1971, chaired by Mr. Justice Ormrod (as he then was), there is an interesting historical account of the education, training and structure of the legal profession. We learn from this report that at the end of the 16th century there were six Inns of Court, including the two Serjeants' Inns, and eight Inns of Chancery which took on responsibilities for training and education of those who sought instruction in common law and in law of equity. All the inns worked to some extent in co-operation with one another, the Inns of Court taking responsibility for students, graduates and "practisers" of law while the Inns of Chancery were chiefly furnished with officers, attorneys —those practising in the King's or Queen's Bench —solicitors —practising in the Courts of Equity —and clerks. It was not unusual according to Snow's Survey of London: 1598 for students to progress through from the Inns of Chancery to the Inns of Court, a process which took seven years before the student was judged to be properly educated and trained in law.
Unfortunately in the 18th century the Inns of Chancery fell into decay. In about 1800 in a rather unfriendly act the Inns of Court decided to bar attorneys and solicitors from their membership. Thereafter members of my profession have had to rely upon Acts of Parliament for our professional existence. Therefore for the past 200 years the public has not been served by a single legal profession but by two professions, each of whom has been anxious to protect, sometimes from the other, its areas of practice: for example on the Bar side, litigation; and, to take an example, on the solicitors' side, conveyancing.
That contrasts with the medical profession which for many years has practised as one profession with common education and training whatever specialisation may later be acquired. The failure to hold together or achieve a single legal profession has not been in the ultimate best interests of the legal profession as a whole, nor in those of the public which we serve. That is not to state that there should not be a separate and independent discipline of advocates with, also perhaps, on Her Majesty's gracious grant, a Royal College of Advocates similar to the Royal College of Surgeons or the Royal College of Physicians which are the domus of two of the many separate disciplines within the medical profession.
195 The Bill does not attempt to fuse together both sides of the legal profession, nor has the time come for such an event. But at long last, with the co-operation of the Law Society and the Bar Council, the Bill should bring about common education, common training, common rights of practice and —in view of the speech of the noble and learned Lord the Lord Chief Justice —a common and cohesive set of rules for all advocates in courts. In the light of the words of the noble and learned Lord the Master of the Rolls, I also add a common professional body for setting up and monitoring the rules of advocacy.
Not only should the Bill bring about those virtues but, in time, a deferment of the decision of a young aspirant to the profession upon the side which should benefit from his or her talents. That must be all to the common good. Neither the interests of the public nor those of the young aspirant to the law are served by forcing those men and women to make their decision about whether to be a barrister or solicitor when they are only 20 years of age, in the second year at university, with little knowledge of law, no practical experience of it and, above all, no way of truly knowing where their real talents lie.
It is therefore with great regret that, upon the issue of rights of audience, the Bill —and before it the Lord Chancellor's Green and White Paper proposals —should be, and has been, considered by the Bar, and I fear some quarters of the judiciary, with such hositility.
It is necessary to describe in a little detail my side of the profession because that has not yet been done in this debate. Currently there are just over 53,000 solicitors with practising certificates, of which 80 per cent. are in private practice. Judging by last year's figures the new entrants were 3,244 of whom 46 per cent. were women. Altogether the practising solicitors provide about 90 per cent. of the practising lawyers in England and Wales, perhaps in reverse proportion to those who are speaking in this debate. Recent entrants —to state nothing of older members who grace these Benches such as the noble Lords, Lord Mishcon and Lord Coleraine, and perhaps myself—are of the highest quality no lesser equipped to serve the public in the practice of law than entrants of the same age to the Bar. Furthermore, they are subject to rigorous training, a continuing education and the full discipline of the Law Society and the lawyers to whom they are articled and under whom they train.
While not all those 53,000 practising solicitors are knocking at the doors of the High Court demanding rights of audience —although noble Lords may be forgiven for thinking that that is the case after having heard some of the fears expressed by the Bar —there are some among them who have sufficient ability and experience to appear in the High Court and who aspire to do so. I have to state, therefore, it is not acceptable to them, and nor is it in the public interest, that, when fitted to do so, they should be barred by statute or court practice from carrying their skills to the highest ranks of the legal profession and the judiciary.
196 Therefore, those who oppose the modest and cautious proposals contained in the Bill for rights of audience to be extended to solicitors must make out their case in the public interest explaining why those who have the necessary skills should be barred from using them in the highest court in the land. I hope that the noble Lord, Lord Hutchinson, will accept the comment that I was thoroughly unconvinced by his hyperboles and apocryphal accounts of solicitors in the High Street in the future—
§ Lord Hutchinson of Lullington
My Lords, I am sure that the noble Lord will have noticed that during my speech I never opposed solicitors' rights of audience in certain courts.
§ Lord Hacking
My Lords, I shall not delay the House by debating further at this time with the noble Lord. If noble Lords did not hear his comments, they can read them in the pages of Hansard.
Alas, the answer is not provided in asserting that the young men and women entering the profession should start at the Bar or later seek transfer. The reasons are that, despite active steps now being taken by the leaders of the Bar, there have for some time been insufficient pupilage facilities, insufficient accomodation for pupils and tenants and insufficient financial support. Although a few solicitors later transfer to the Bar that is not an easy step to take and, as family men and women, it is often impractical if not totally impossible. I speak of present times when, as regards examination and training, the transfer from one side of the profession to the other is comparatively easy.
I do not wish to answer in detail the reasons put forward by the Bar for the retention of its rights of audience. I wish to take up only two points because I believe them to be of importance. The first has already been touched upon by the noble Lord, Lord Boyd-Carpenter, but because I believe it to be of particular importance I mention it again. I refer to the argument about independence of advice and action. The suggestion is that the integrity of advice on matters of litigation can be obtained only from members of an independent Bar. Since I left the Bar 13 years ago I may constantly have been giving my clients bad and wrong advice, possibly carrying on from my days at the Bar when, doubtless, I also constantly gave bad and wrong advice. However, in giving this advice I have been no less independent or honest because I am a partner in a large law firm with 75 partners or because I have big and powerful clients. Other noble Lords, such as the noble Lords, Lord Mishcon, Lord Nathan and Lord Coleraine, will endorse that statement. Professional integrity is as important for me now on my present side of the legal profession as it was when I was a member of the Bar.
I should like to mention one further point raised in the argument put forward by the Bar for the retention of its rights of audience. It is the issue of cost. One can argue figures in all directions. However, at page 10, paragraph 4.7 of its latest yellow commentary, issued after the publication of the White Paper, the Bar puts forward the following assertion: 197This process has already begun, in anticipation of the Government's changes, with some large city firms deliberately doing work in-house whenever possible despite the better and cheaper services available to their clients from the junior Bar".That statement is competely wrong and totally unsubstantiated. It also fails to understand the needs of our clients and ourselves. Cost is a factor which is of concern to our clients as is the provision of effective legal services. For that reason my law firm, and I am sure those of other noble Lords in practice, regularly uses members of the Junior Bar and delight in the value of the use of these younger members of the profession.
In summary, I, like the noble and learned Lord, Lord Griffiths, who took some responsibility for my legal education long ago, do not see that there will be the destruction of the Bar, if the proposals in the Bill are accepted, provided that it does not lose confidence in itself. That point was raised by the noble and learned Lord in April. Nor do I believe that there will be a drop in the quality or standards of advocacy. I am sorry that the noble and learned Lord, Lord Rawlinson of Ewell, is not here to receive my words of comfort; but I can say that in my large City law firm there are no plans to build up a full-scale litigation department. There are no mass plans for applications for advocacy licences or for recruitment of members of the Bar. Senior members of the Bar are far too expensive for us and for our clients to contemplate taking such a course.
The real point is that the noble and learned Lord the Lord Chancellor, after the professions recently failed to agree in the Marre committee, had to find some solution to the problem, or else the dispute would have continued. It was, in the words of the noble Lord, Lord Campbell of Alloway, just now, a rescue operation.
I am sure that the judiciary will commit itself to these changes, once enacted; but I have some concern about the timetable. An examination of Schedule 4 Part 1 informs us of the extensive process of submissions and consultation. The proposed rules of conduct with effective mechanisms will have to go from the professions to the advisory committee. The advisory committee then reports to the Lord Chancellor. The Lord Chancellor, armed with the advice of the advisory committee, goes to the Director-General of Fair Trading. The Lord Chancellor then, armed not only with the advice of the advisory committee, but also that of the Director-General of Fair Trading, takes the matter for the opinion of the designated judges. The whole process could take years. There is need for some speed, or at least a timetable. I should be grateful if the noble and learned Lord could help me on that.
I ask for that because it is in the interests of the professions that the rights of audience issue should finally be resolved as soon as possible. Until it is, recruitment on both sides will be difficult, and if we do not move quickly we shall be in the incongruous position of having lawyers from other member states within the EC having the right of audience in the High Court where solicitors have not yet achieved that because the process is not complete.
There are a number of other points which can be taken up in Committee concerning judicial 198 appointments, transfer of business to the county court, and so on. I believe that we should give this Bill general support. In my closing words, I should particularly like to thank all those who have sent to me, as they have to other noble Lords, most helpful briefs, including the Bar Council, the Law Society and consumer societies.
I look forward to working together in Committee in a constructive manner. This morning I was reading Professor Michael Zander's book Lawyers and the public interest which was published in 1968. On reading that book, I was reminded of how much change has taken place on both sides of the profession, and change to the good. It is also heartening to hear that further changes are proposed by the Bar on the structure of pupilage and even, with a committee chaired by Mr. Justice Phillips, the provision of really adequate financial support for the younger entrants to the Bar.
Again, looking at Professor Zander's book, in my view nothing during the past 21 years has been more damaging to each side of the profession than defending the indefensible. My Lords, let us cease doing that.
§ 8.24 p.m.
§ Lord Rippon of Hexham
My Lords, some satisfaction has been expressed in various quarters this afternoon that this Bill is an improvement on what was foreshadowed in the Green Paper. To my mind that is rather like saying that a man who was threatened with two black eyes should be pleased if he gets only one. As at present drafted I think that this Bill —and I say this with respect —:is bad in some respects and is dangerous in others. In so far as there is a popular hope that its introducton will lead to better, quicker and cheaper justice, I think that that popular hope may well be disappointed.
At best this Bill will require considerable amendment, both in its drafting and in its content in the many ways which your Lordships have explained this afternoon. In this debate, in which there are many speakers, I should like to comment on just one aspect of the legislation; that is, that in essence it is an enabling Bill with ill-defined criteria giving the Lord Chancellor of the day, whoever he may be, excessive powers to control and regulate the legal profession and the judicial process by orders, rules and regulations.
From time to time during the Committee stage of much recent legislation, the increasing tendency to take powers to flesh out skeleton legislation by rules and regulations has been a matter of considerable criticism. Again and again we find that power is taken to amend or even repeal primary legislation. Indeed that practice has now become so habitual that I believe it needs to be debated as a matter of general principle. I believe that it is particularly reprehensible when it is found so extensively in a measure presented by the noble and learned Lord the Lord Chancellor himself.
I have no doubt that the objectives of Part I of the Bill, which might well have been the subject of separate legislation, are wholly admirable. All I say on Part I is that it is, as the noble and learned Lord, 199 Lord Hailsham, pointed out, entirely enabling. Your Lordships will note that Clause 1(1) provides that the Lord Chancellor may by order make provision for the allocation of business between the High Court and county court. All that is essential in that regard is for the future. Furthermore, Clause 1(4) states that such an order may:amend or repeal any provision made by or under any enactment relating to the jurisdiction, practice or procedure.in the courtsso far as the Lord Chancellor considers it to be necessary, or expedient".I shall not take up your Lordships' time by detailing all the other rule-making powers except to draw attention to Clause 82. That clause contains the usual so-called safeguard of parliamentary rights in that regulations or orders made under Clause 1(1), Clause 23(1) and Clause 34(9) must be approved by both Houses. Of course, others are only subject to annulment in pursuance of a resolution of either House. In neither case, as we all well know, are those regulations or orders capable of amendment. I have already referred to Clause 1. Clause 23(1) enables the Lord Chancellor by regulation to extend the jurisdiction of the legal services ombudsman.
We then come to a rather important provision in Clause 34(9) which provides that the Lord Chancellor may by order amend the provisions of the authorisation of practitioners by imposing any additional requirement or by varying or removing any requirement. In other words, he can amend the guts of the provision as to the regulation and authorisation of practitioners to such an extent that it would amount, in effect, to repeal. A similar power to amend its provisions is to be found in Clause 44 relating to conditional fees.
As it is not the custom of your Lordships' House to refuse a Second Reading to any Bill or indeed to vote against any of the subsequent rules, regulations or orders, it is evident that in practice your Lordships' control over Ministers and the Executive is becoming weaker with every passing year. The other place, as we know, or certainly I know, is almost equally acquiescent in the acceptance of the constant erosion of its powers. We need to focus attention on the way in which primary legislation increasingly provides for clauses, as in this Bill, enabling the Minister to amend or at times even repeal it.
The defence of all these provisions —and it is made time after time by one Minister after another —is that they are now common form and are simply designed to give flexibility. The noble and learned Lord the Lord Chancellor in his speech spoke of framework. These days that is increasingly the concept of legislation; that there must be a framework in which there is flexibility. I find such a defence particularly inadequate in the case of a Bill such as this, which is of considerable constitutional importance affecting, as it does, the rule of law, the independence of the legal profession and the judiciary, and the administration of justice. It needs to be widely understood that this way of drafting legislation has become common form only in comparatively recent times.
200 In the 1920s and early 1930s severe criticisms were made of this so-called Henry VIII clause; named, it has been said, in disrespectful commemoration of that monarch's tendency to absolutism. In those days its use was both rare and severely limited. The first instance was in the Local Government Act 1888 when the power to amend was given simply to change, if necessary, the date of the first election of councillors to the newly created authorities. It was then extended in later Acts to general powers of amendment in order to remove difficulties in bringing an Act into operation; for example the National Insurance Act, 1911.
Up to 1932 —the date of the famous report of the Donoghmore Committee —it appeared in just nine Acts, but in each case the scope was severely limited and its validity was also limited usually to 12 months from the coming into force of the Act. Your Lordships will recall that the Donoghmore Committee was set up in 1929 to examine and report on the whole question of ministerial powers following upon the publication that year of a book called The New Depotism, written by the then serving Lord Chief Justice. It may be that the present Lord Chief Justice might consider a more up to date version of that admirable work.
Without proposing the total abolition of the Henry VIII clause, the Donoghmore Committee recommended that it:should be abandoned in all but the most exceptional cases and should not be permitted by Parliament except upon special grounds stated in the ministerial memorandum to the Bill.In the event it was never used again up to the Second World War. It was demonstrated in Acts of considerable importance and complexity, such as the Local Government Act 1933 and the Public Health Act 1936, that its use could be avoided —in spite of all the arguments put forward by departments —if sufficient forethought was given to the drafting and preparation of the legislation. It may be noted that those Acts stood the test of time rather better than most recent legislation.
It is, therefore, very misleading to believe that there are good precedents for what has been brought before us today. There are certainly some recent bad precedents. In effect what we are doing is continually giving a fair wind to legislation which virtually permits governments to make new law as they go along. The time has come to consider the case for a Select Committee of the kind which they have, for example, in Australia; a Select Committee to scrutinise all Bills coming before Parliament and to report whether such Bills contain insufficiently defined administrative powers or propose any inappropriate delegation of legislation powers. If such a Select Committee existed today this Bill would not survive without very severe restrictions being put upon the powers which are now sought by the Government.
§ 8.34 p.m.
§ Lord Griffiths
My Lords, I was much saddened to hear the confession of the noble Lord, Lord Hacking, that in his career as a solicitor he has constantly given wrong advice. I wish emphatically to repudiate his attribution of this lamentable development in 201 his career to the fact that he started life as a barrister as my pupil. I accept no responsibility whatever.
I was the judicial member of the Lord Chancellor's Advisory Committee which, I am very happy to see, has given birth to Part I of this Bill. It is very refreshing for those of us who have laboured on so many committees to know that the recommendations of at least one have not been destined to moulder, gathering dust in some ministerial pigeon-hole. Naturally, I welcome the proposal to implement our primary recommendation, which was that much of the litigation in the High Court was suitable to the talents of the circuit court judges and should be tried in those courts.
My principal purpose in putting my name down to speak in this debate has been pre-empted by other speakers —principally the noble Lord, Lord Mishcon, and the noble and learned Lord the Lord Chief Justice —because I wish to draw attention to the fact that this central proposal cannot possibly effectively be carried out in the present unhappy state of lack of staff, lack of resources and low morale in the county courts throughout the country.
I welcome the fact that the noble and learned Lord the Lord Chancellor tells us that there are proposals to make substantial increases in staff; but I doubt the wisdom of pouring more water into the bucket until you have plugged the hole at the bottom. I have in my hand a sad document. It is the Resignations Study 1988 published in August by the Lord Chancellor's Department reviewing the rate of resignations from the county court service. Putting it broadly, they are almost double the rate in the rest of the Civil Service. I am convinced that the cure for the disease is a liberal application of golden ointment. I do not believe, unless they are paid salaries which are commensurate with those they can obtain in the legal service that they are in fact servicing, that there is any hope of retaining them. I do not propose to labour this point any further as it has been fully covered with so many examples in earlier speeches.
There are only two further points I wish to make in this debate at this late hour. I had the good fortune on the advisory committee to sit under the outstanding chairmanship of Sir Maurice Hodgson, a layman. I am the first to acknowledge the debt that the legal profession owes to those laymen who sat on that advisory committee. However, we were carrying out a very different function from the advisory committee set up under this Bill, which is concerned with technical matters.
I should like to make a suggestion. It is essential that the advisory committee should include a circuit judge, because judges are going to be at the sharp end of the new proposals to extend rights of audience. I also doubt the wisdom of having a majority of laymen on the committee. However, that will be a matter for further debate.
I also want to refer to the drafting of Clauses 14 and 15. I am afraid that until I heard the opening speech of the noble and learned Lord the Lord Chancellor in this debate I had fallen into error. Having read Clause 14, I thought the statutory 202 objective was paramount to the general principle. That is the construction placed upon it by the noble and learned Lord, Lord Hailsham. It is also the construction placed upon it by one of the most powerful firms of commercial solicitors in the City of London, which has widely circulated its views to many, including me. Now I accept the assurance of the noble and learned Lord the Lord Chancellor that that is not so. Having read Clause 1 and Schedule 4 more carefully it sounds like lèse-majesté to say that I think he may well be right. Be that as it may, it is ill-drafted at the moment and it must be clarified.
In order to clear my own mind about the scope of the discretion that will be vested in the designated judges, I ask the noble and learned Lord the Lord Chancellor to consider the answer to the following question because I like to focus on practical examples when I am testing construction: would a designated judge be acting in breach of his statutory duty if he refused to approve the rules of conduct of a professional body unless those rules provided that an advocate who wished to practise as a Queen's Counsel should do so as a sole and independent practitioner? I wish to know whether, under the present drafting, that discretion is vested in a designated judge. Of course, underlying that is the assumption that the judge was convinced that it was in the interests of justice that such a rule should exist.
§ 8.41 p.m.
The Earl of Selkirk
My Lords, I intend to be very brief tonight. Indeed, I should not speak about English law at all. I am here more to get a view of what may eventually be done to Scotland. That is why I am interested in hearing what noble Lords have had to say.
I was interested in what the noble Lord, Lord Rippon, said. In Eastern Europe everyone is screaming out for democracy though they have not much idea what it is. But what have we got? We have government regulations by the pile. That is a strong example of how bureaucratic dictatorship is likely to be extended. I believe that to be a very real danger that we are approaching. In any future period of history, I cannot think anyone will look on the laws of the latter part of the 20th century in the same way as they regard Justinian. It is a terrible period when a quantity of law is being poured out.
I was very interested to note that the noble and learned Lord, Lord Griffiths, was interested in Clause 14. I find it extremely difficult to understand what it means. There are the words "objective", "general objective" and "statutory objective". What does it all mean, and what is being got at by the use of these words? I do not know what is being got at. Perhaps I may put it this way: anybody who is a solicitor and who has ever belonged to a company that had any discipline at all is very nearly entitled at least to have authority in court.
That is a very odd situation. I suppose any member of the Grenadier Guards who had a university degree would be a perfectly suitable candidate for admission to the Bar at the present time. I do not know what 203 is intended by these measures; but no doubt there is probably a better meaning than there is shown to be. This clause is quite an impossible one and I doubt whether it represents what anyone says.
The common law of England is generally regarded with great respect, but nobody regards practically any of the statutes we have made in the past four or five years or longer with any respect. They will disappear in due course and will be forgotten. We in this House should try to bring a little more sense into the statutes and let them be what they are and not just let them be the background from which regulations are built up.
I am not going to say any more because this has been a long debate and I am not really qualified to pass judgment on the quality of the statutes.
§ 8.45 p.m.
§ Lord Ackner
My Lords, it is always a great privilege to address your Lordships' House. My first occasion as a young barrister was over 41 years ago. My last occasion was last month on the debate on the report of the Select Committee of which I was member on murder and life imprisonment. Looking back over those many occasions, including even those appearances before my learned and very distinguished predecessors who on occasions I thought were distinctly carnivorous, it has been not only a privilege but a pleasure. It will continue to be a great privilege to address your Lordships' House on this Bill in all its succeeding stages. But I am bound to say that it will be no pleasure.
That is because I shall be strongly criticising the proposals of my noble and learned friend the Lord Chancellor, and I find that a distinctly disagreeable function to perform. He and I were colleagues together as Law Lords for a period of two years during which I developed a very great respect for his judicial judgment and, personally, much affection for him. We fell out on only one occasion and that was hardly an earth-shattering subject matter; namely, the liability of Hamley's toy shop to pay rates during a period when sadly it was closed.
The late Lord Chancellor, Lord Simmonds, said:It remains the supreme truth that the safeguard of liberty lies in the independence of a judiciary which fears not nor favours the Executive".If I speak with more feeling than some of your Lordships may think appropriate, I do so because I feel that this truth has been so dangerously disregarded. First, I refer to the proposals for the major transfer of work from the High Court to the county court which is, when analysed, the only key in the whole of this Bill to reducing delay and costs. This proposal was first publicly mooted when the Lord Chancellor's review body —of which my noble and learned friend Lord Griffiths was a distinguished member —some two years ago made this suggestion.
In its final report 18 months ago it came out firmly in favour, but the report contained this vital paragraph 77:The proposed transfer of business from the High Court to the County Court will depend for its success on the quality of County Court facilities".204 Your Lordships have heard from my noble and learned friend the Lord Chief Justice how abysmally inadequate is the present quality of the administrative services of the county courts and indeed of the circuit courts in general. That is despite having had two years in which to make them ready to receive this major transfer of work.
It is of course axiomatic that an efficient administrative framework is a condition precedent to what my noble and learned friend the Lord Chancellor is seeking; namely, an efficient legal service. But unfortunately he is powerless in relation to the Treasury. That department does not allow him to achieve his object in just the same way as the Lord Chancellor is prevented from paying fair and reasonable remuneration for legal aid work actually and reasonably done. That was why he removed from the statute that very statutory provision which had been there for years and years. That is why he is not allowed to raise the monetary qualification for legal aid in line with current values and why some 10 million to 15 million persons no longer qualify for legal aid as they did 10 years ago.
In the light of that situation, surely one is entitled to ask whether Parliament is being treated with proper respect by being asked to give power to transfer a large proportion of High Court work which currently is being dealt with with ever-increasing expedition to the county court where the system is in such disarray. Tragically, this is but one aspect of the air of unreality, make-believe and self-deception which permeates this Bill.
Perhaps I may remind your Lordships of the philosophy —some would call it dogma —upon which the Government rely to justify the revolution (because it is no evolution) which they now propose. The latest incantation was pronounced on 23rd November this year on the occasion of the third day of the debate in your Lordships' House on the Address. The formula reads:Free competition through market discipline will ensure the most efficient and effective network of legal services at the most economical price.".The Government's refusal themselves to submit to market discipline and properly to fund the court services is, I venture to suggest, an excellent yardstick against which to measure the sincerity of their protestations that they are deeply concerned that a more efficient and cost-effective legal service be provided.
Part I of the Bill should have been a separate Act, but it sets the scene for the evaluation of the merits of Part II, which deals with legal services. I am convinced that the probable long-term —and not all that long—collective effect of this Bill as it now stands will be to inflict serious damage on the quality of justice in this country. Over that term it will Americanise, if I may use that word, the English administration of justice. The small firms, the high street solicitors who form the greater bulk of the solicitors' profession —80 per cent. of the profession having partners of four or fewer —will be crippled by the twin effects of the loss of conveyancing work to the money-lending institutions and the lack of access to the specialists —that is, the 6,000 205 independent members of the Bar —that they now enjoy.
'The ever-increasing megafirms, with their growing litigation departments, growing both in size and cost, with full rights of audience in all courts, will cause the Bar to wither away. The district attorney system will take over the criminal prosecutions, and the corrupt philosophy of the contingency fee will pervade the whole system. The strong and independent judiciary, acknowledged by the Government in the Green Paper to be one of the central supports upon which our liberties are based and upon which the rule of law depends, will be weakened by the diminishing quality of available recruits and the growing political influence in their appointments. We will in fact out-America America by permitting laymen to act as lawyers, and indeed their appointment at all levels to the judiciary.
Since we are to espouse the American system it is surely appropriate to quote the wise warning of that internationally respected judicial giant from the United States, the late Chief Justice Cardozo, who identified four specific dangers which may well be particularly relevant to the present position. Let me quote what he said:We must always take care to safeguard the law against the assaults of opportunism, the expediency of the passing hour, the erosion of small encroachments, and the scorn and derision of those who have no patience with general principles.Let me take the first factor, the assaults of opportunism. Consider the history of this proposed legislation. Its genesis, the Green Paper upon which this legislation is largely based, was the subject matter of a historic debate in your Lordships' House on 7th April. As we all know, the Green Paper was produced in a rush in a matter of two or three months. It required responses in a similar limited period, and when in that debate so many of your Lordships asked my noble and learned friend the Lord Chancellor to pause awhile for mature reflection on the many criticisms, his answer was that law students must within the next three months —that is, by July —know the Government's intentions so that they could make their appropriate decisions. I found that answer totally inadequate, and I was not alone. It illustrates my noble and learned friend Lord Hailsham's comment that this was no way to carry out law reform.
I believe that it is very significant that the following still remain unanswered questions. I list them under three main headings: first, the unseemly haste. Why no prior consultations before embarking on what is proudly asserted to be the most radical changes in our legal system in centuries? Why have the Government failed to identify any specific defects in the legal system which their proposals are intended to cure? Expense and delay are endemic in every legal system, and it is accepted that Part II will touch none of those defects.
Why were there no studies or research to bear out the wisdom of their proposals? It was exactly a fortnight ago that I happened to hear on the Radio 4 "Today" programme the right honourable gentleman the Foreign Secretary say:The Government does try and look at the consequences of what it proposes.206 True, that was a reference to the government's policy in relation to Europe.
Finally under this heading: if a large proportion of High Court work is to be transferred to the county court, thereby considerably extending solicitors' rights of audience, why not wait and see how this reform works before experimenting further? Instead of such an evolutionary process, we have the statutory pressure in Clause 15 to hurry, hurry, hurry.
The second heading is the Royal Commission. Why were the recommendations of the Royal Commission, arrived at after three years of prolonged study and which contradicted the Government's proposals, suppressed from the Green Paper? More serious still, why was there no mention in the Green Paper of the Government's own White Paper in 1983, adopting after four years of mature thought the very recommendations of the Royal Commission, which they decided to reverse? Why were no reasons given for these U-turns?
My final heading is: why the elaborate provisions for laymen to do lawyers' work, even to the extent of appointing them to the highest judicial appointments? I invite your Lordships' attention to Clauses 8 and 50 and the grotesque Schedule 7 running to some 20 pages in order to consider who will be our future judges. Perhaps we are to have People's Courts! The hostages which this Bill gives to an ill-disposed minister of justice are incalculable.
All these questions lead to the ultimate question: are these proposals, in the words of Chief Justice Cardozo, "the assaults of opportunism"? The word "sinister" has been used by more than one critic of the Government's proposals. Such a word would aptly describe legislation which essentially plays politics with the administration of justice. See how the combined effect of the straitjacket provisions of Clauses 14 and 15 and Schedule 4 prevent the judges from having regard to what is, after all, their speciality, the public interest in the maintenance and improvement of the quality of justice.
My noble and learned friend Lord Griffiths has just repented, he said, in the face of the advice of one of the most powerful firms. Let me read out what that advice was:The intentions of this Bill would be seriously jeopardised if as the Bar wish those concerned with granting rights of audience were to be required to have regard to the interest of justice".Understandably the Law Society has referred to those clauses as providing the judges with only a nominal veto.
But what of the second danger factor,the expediency of the passing hour"?I am not concerned, nor should I be, with the merits of other legislation proposed or in contemplation at the time of the issue of the Green Paper. Such other legislation is, however, an essential part of the context in which the Green Papers and subsequently the White Paper and this Bill were brought into existence.
A large proportion of that other legislation was expected to be and has proved to be highly unpopular. Was this Bill perhaps a heaven-sent 207 opportuntity for the Government to stem the loss of popularity by projecting themselves as the party of streamlined efficiency, deprofessionalising the profession, and thus winning back the electorate? Was the illusion of cheap conveyancing to be achieved through the one-stop shopping process, the false analogy of the market-place and the populist appeal of attacking the so-called restrictive practices of lawyers? Were these together to provide a much-needed boost for the Government's morale?
Certainly the fourth factor of Chief Justice Cardozo—the scorn and derision of those who have no patience with general principles" —must include a significant proportion of the media and could be relied upon to achieve that end. There is little or no time to deal with Chief Justice Cardozo's remaining factor; namely,the erosion of small encroachments".Small they may seem initially, but their cumulative effect is frightening. I have already referred to one—namely, the contingency fee. This was proposed in total disregard of an extensive memorandum produced after the Green Papers by the Law Commission strongly criticising the shallowness and superficiality of the Government's approach to this deeply worrying suggestion. The proposal is clearly designed to provide a basis for resisting the much-needed extension of legal aid.
I have, I hope, in the very limited time available drawn attention to the grave anxiety which all who are concerned to safeguard the rule of law are bound to experience in relation to this Bill. I fully appreciate that the nature of my rhetorical questions and the clear inferences which can well be drawn from the Government's failure hitherto to answer them will not make many new friends and may influence few people. But of all things I would not wish it to be said of me that, having once attained the upmost rung,he then unto the latter turns his back, looks in the clouds, scorning the base degrees by which he did ascend".
§ 9.4 p.m.
§ Baroness Elles
My Lords, most noble Lords, and especially noble and learned Lords, have based their remarks on their very wide experience in the legal profession in this country. As a member of the Bar, and also now serving as counsel for a Belgian law firm in Brussels, I should like to look at the Bill from a different angle.
One of the major planks of the Government's policies is the completion of the single European market which will mean free movement of people throughout the Community and the right of professionals to exercise their profession in another member state. In European Community law, the rights of lawyers are covered by the Services Directive of 1977. Moreover, by January 1991 they will be covered by the Mutual Recognition Directive which was adopted in Secember 1988. That document was studied for several months by the committee which I had the honour to chair in the European Parliament.
208 As closer economic and commercial integration takes place, there is a continuing increase in cross-border cases and in the need for consultation and representation by United Kingdom lawyers, whether in the United Kingdom or in other member states. British lawyers are held in high regard by the Continental Bars and have justifiably a well-earned reputation for ability and integrity.
Perhaps I may recall a personal experience which took place recently. Professor Tunc, who will be well known to international lawyers, said to me quite without any encouragement, "When I came to give expert evidence to the English courts, I went back to French lawyers and told them that this was the standard of advocacy we should seek to achieve". Such a remark coming from that particular professor is high praise indeed.
Therefore it must be asked, in the light of developments in the legal professions throughout the Community, whether there are any provisions in this Bill which would allow foreign lawyers and clients to cast doubts in future on continued confidence in this high reputation with consequent loss of work coming to British lawyers. I think that that is one of the criteria by which we must look at this Bill.
It does not appear, at first glance, that Her Majesty's Government have considered the consequences of the Bill in the light of European and Community law and practice. Indeed, there is only a brief mention of the submission by the CCBE —that is, the Council of the Bars and of the Law Societies of the European Communities and the body on which the lawyers of all the 12 member states are represented —in the White Paper. Many views appear to have been either overlooked or rejected by the drafters of the Bill, although they are of importance within the European Community context.
I should like to raise a few preliminary questions, though no doubt other matters will arise during the passage of the Bill in Committee. I have given notification of those questions to my noble and learned friend the Lord Chancellor but I do not expect him to reply to them this evening in view of the many questions which have been raised with him during the course of the debate. At this point I should like to express my supreme gratitude for the fact that he is still sitting in the Chamber at this stage of the evening listening to every speech in the debate.
In relation to advice on conduct to be received by the Lord Chancellor from the advisory committee in Clause 16, will the noble and learned Lord take into consideration the code of conduct adopted unanimously by the CCBE at its conference in 1988 in Strasbourg? It is stated in the code as the first general principle,that the many duties to which a lawyer is subject require his absolute independence, free from all other influence".If that principle is not recognised and sustained, it could affect the willingness of foreign lawyers to come to United Kingdom lawyers for advice and representation in the courts not just of this country but those of other member states and the European Court of Justice. It is that principle which encourages, as I can confirm from my present 209 position in Brussels, foreign lawyers to come to English chambers.
Under Clause 16 the proposed list of members of the advisory committee should surely include at least one member who has specialist knowledge of European Community law, procedure and practice. The increasing importance of European Community law cannot be ignored in the training and education of British lawyers. It must also be said, with the greatest respect to my noble and learned friend, that the Government, with their many declared principles of decentralisation and deregulation, would be the first and, I believe, the only European Community member state to place the control of the legal profession into the hands of the Executive. That was a point mentioned by my noble friend Lord Selkirk, who is not in his place.
Further concern is raised by the provisions of Clause 24(2)(a) which refers to an appropriate authorised body. Opening up the rights of advocacy to non-lawyers leads to the questions: first, would those non-lawyers have the right to practise and have audience in the courts of other member states; and, secondly and perhaps more seriously, would United Kingdom courts, on grounds of non-discrimination, have to be open to non-lawyers from similar appropriate bodies from other member states? That is a matter to which serious attention should be paid, particularly in view of the judgments coming from the European Court on non-discrimination in regard to members of the professions.
Competition rules under Article 85, which surprisingly have been quoted in various documents connected with the Bill, are applicable to trade and trading practices. Is there any other example in the European Community where those rules have been applied to the regulation of any of the liberal professions, such as the legal profession? At any rate on the Continent a profession is termed "liberal" because it is independent and identifiable. Competition rules do not apply. That leads me to a further subject: the provision in Clause 48 to abolish the ban on MDPs. I believe that to be a dangerous proposition and one which, again, could harm the standing of the United Kingdom legal profession and lead to a decline in work coming to United Kingdom lawyers.
Mr. John Toulmin, QC, in a speech to the Westminster and City programmes, questioned,whether safeguards can properly be achieved to preserve the independence of the lawyer to avoid conflicts of interest, to preserve the personal and fiduciary relationship between lawyer and client".It would appear incontrovertible that lawyers practising in MDPs would be prohibited from practising in most of the other member states, if not all. Only Germany and the Netherlands permit MDPs, but in a limited form. Would it not be wiser to defer this question of permitting MDPs, in whatever circumstances, until further consideration of the implications of the mutual recognition directive when that directive is being implemented into national law?
With regard to multinational practices, is my noble and learned friend willing to be consulted by representatives of the CCBE to ensure that the rules 210 governing those practices will be if not identical at least not incompatible with rules which are being, or may be, introduced in other member states? No one seeks harmonisation, but if we are to have MNPs, which will include citizens of other European countries, it would be sensible to try to achieve some form of co-ordination in the rules governing such practices.
Whatever conclusions may be reached on MDPs and MNPs, surely they go to the root of the profession of advocacy. Are they not matters which should be dealt with by the Lord Chancellor rather than the Director General of Fair Trading?
No one doubts the need for better, cheaper, more efficient and prompt service to the lay client, as has been said on all sides of your Lordships' House. It must be provided by an efficient, cost-effective and competent legal profession and an efficient, and appropriate administration. Considerations contained in the Bill cannot totally ignore developments and standards in other member states of the Community. The United Kingdom is not alone in looking at its legal profession. So are other member states in relation to wider opportunities as a single market is achieved. It is hoped that the Bill's provisions will ensure the maintenance of the high reputation of British lawyers and United Kingdom courts as well as being in accordance and in co-operation with the obligations of lawyers throughout the other member states.
§ 9.13 p.m.
§ Viscount Hanworth
My Lords, in considering whether to speak in this debate today, I decided to talk about our legal aid system. It has interested me and I feel very strongly about it. As it turns out, a large number of speakers have already dealt with it but I can do two things: first, I can reinforce what they said; secondly, I may be able 10 produce the odd new idea myself.
We are now faced with a situation where, as far as concerns the High Court, there is one law for the rich and another for the poor, with no possibility of legal redress for the large number of citizens who cannot possibly afford the immense potential costs of a High Court action. We sometimes talk about the rule of law. This effective denial of recourse to the law in the High Court is intolerable and raises a major matter of principle. Fairly recently, the BBC was sued for a serious matter of defamation. It managed to spin out the proceedings until the plaintiff could no longer afford the costs of continuing the action. Fortunately somebody agreed to underwrite the costs and the BBC immediately settled out of court. A sorry tale, I think.
When legal aid was set up 40 years ago, civil legal aid —I emphasise "civil" —was available to more than 80 per cent. of the population. The cut-off for a family of four was 37 per cent. above the average male earnings. Now the figures are 50 per cent. of the population and 6 per cent above the average male earnings. The Government's new proposals for the franchising of the green form scheme are useful, but the effect will be small as only £5 million more will be made available. This represents less than 1 per cent. of the legal aid bill.
211 I believe that, apart from simply increasing the level of income where legal aid is paid, other possibilities should be looked at. We now have a legal aid board which screens applications to ascertain the litigant's means and the merit of the case. It would surely be possible to give the board greater powers and for those above the legal aid limit to pay graded fees to the legal aid board for a preliminary hearing on the merits of the case before granting legal aid.
One result which must be avoided is the encouragement of unnecessary litigation. It should be a last resort. The graded fee could be pitched at a level which would discourage this. Such fees might possibly be returnable if the action was successful. I understand that in Germany it is possible to take out insurance to cover those wishing to initiate actions in their higher courts. But I believe that this is open to several objections and does not cover the principle which I mentioned at the beginning of the speech.
The conditional fee agreement in Clause 44 of the Bill is helpful but has several limitations. First, it may not be at all easy to find a solicitor who is willing to help in this way and on reasonable terms. Secondly, I think that the litigant would still be saddled with the opposition's costs if he lost the case. I know the objections to the proposal. Nevertheless I support it as a brave attempt by the Government to help in a small degree with the problem which I have outlined.
Although I intended to confine my speech entirely to legal aid, I shall end briefly by emphasising some of the problems of our legal system which ought to be solved. They are: inordinate time delays; the inefficiency of the too poorly paid prosecution service; the difficulty of obtaining legal aid solicitors, again because of inadequate fees; the barristers' time-wasting approach and sometimes extreme adversarial tactics; finally, as has been said many times in the debate, the quite inadequate funding of our civil courts.
I must end by making this point. I have listened to many speeches and there is no doubt in my mind that our legal system needs some change. I fear that whatever the change —and I am not entirely in favour of all that is proposed in the Bill —there will be those barristers, solicitors and others who would oppose whatever is suggested. It is time that various actions were taken.
§ 9.20 p.m.
§ Lord Oliver of Aylmerton
My Lords, it is sometimes claimed that our legal system is, to use a hackneyed phrase, the envy of the world. I do not believe that that is true. The relative parsimony of the expenditure which the administration of justice at present imposes upon the Exchequer may well be the envy of Finance Ministers of other nations, but I doubt very much whether, for instance, the citizens of those countries whose system of trial is inquisitorial are much troubled by a desire for the adoption of a system of adversarial pleading. Nevertheless, there is a great deal of value and a great deal that is indeed admired in a system which 212 only 10 years ago was subjected to a most searching scrutiny by a Royal Commission —a commission which was conceived in hostility and whose considered report therefore carries all the greater strength.
Before we throw the baby bodily out with the bath water, we should just consider for a moment what are the fundamental criticisms of the existing administration of justice which the provisions of this Bill, and in particular Parts I and II, are designed to meet. They are broadly that it is too slow and that it is too expensive. As regards the former, the provision of enabling machinery for the transfer of run-of-the-mill cases from the High Court to the county courts is, in principle, something which I think we should welcome, although it will need to be recognised that the process will necessitate the most careful preparation of the necessary infrastructure if it is not to result in an even greater chaos in the county courts than exists already.
The somewhat artless reference in the Notes on Clauses to "some" additional resources being needed is perhaps something of an understatement. If the reports that we have received today of the present state of county court administration are even remotely correct, I confess that I view the prospect of an efficient and orderly transition within the budget figures which have been indicated with, if I may borrow a phrase from a respectable judicial source, all the cheerful optimism of a clairvoyant who has taken a return ticket on the Titanic. But here, in principle, I for my part would have no quarrel with what is proposed; indeed I welcome it.
It is in those provisions which are directed to the second major criticism —that of expense and the restriction of choice which expense imposes —that I feel the gravest cause for disquiet. It may be thought that the simplest and most effective way of rendering justice accessible to the needy is by an appropriate extension of the currently very restricted financial limits imposed as a qualification for the receipt of legal aid. But that has not been done and, as the noble and learned Lord the Lord Chancellor has not merely admitted but asserted, there is no hint of this in the Bill. Instead, the solution is being found in the theory that by commercialising the learned professions so that their exercise becomes merely a facet of business, one can somehow discover a crock of gold from which will flow cheap law. However, I say with respect that that is the optimism of the alchemist.
I confess that like the noble and learned Lord, Lord Hailsham, I am dismayed that these fundamental changes are being forced upon us at breakneck speed and I am concerned that the widely expressed fears of the probable results of throwing open conveyancing and probate to the lending institutions and of multi-disciplinary partnerships have simply been ignored or swept aside.
As for rights of audience, for my part I have never entertained the view that the admission of solicitors as advocates in the superior courts, by itself and in the right conditions, will be the end of the world for the public or for the Bar. I am encouraged that the Bill recognises the necessity for the approval of the senior judiciary. However, I should like to see more 213 provision in the fourth schedule for their being consulted at a rather earlier stage. It would be nice if they could at least appear on the stage a few minutes before the final curtain came down.
If solicitors feel an urgent desire to assume the mantle of the advocate, that in itself and by itself is not something which, subject to proper professional restraints, I should oppose, although I do not believe for one moment that that will make litigation any cheaper. Such researches as have been undertaken show that there are very strong grounds for believing precisely the opposite.
It would therefore be an overstatement to say that the changes proposed are likely to be welcome to many members of the judiciary. It may be questioned whether the changes envisaged in Part I of the Bill, which will clearly involve the appointment of a number of new judges and the assumption by existing judges of further and heavier responsibilities, provide a suitable climate for the introduction not just of one but of several apparently new breeds of untried and, by definition, inexperienced advocates.
It is clear that the Government are determined to introduce those changes. I say with all sincerity that it must be the responsibility of us all to do our best to ensure that they are made to work, that they are made to work smoothly and that they are made to work in a way that will not damage the administration of justice.
It is clear that in this the new advisory committee will, as it is intended to do, play a vital part. It is in the composition and terms of reference of that body that I find the principal cause for disquiet. Taking the composition first, I accept of course the need for substantial lay representation. However, many of us will be concerned at the dominance of the lay membership. It may be perfectly true that war is far too important an undertaking to be left to generals, but if we are to have a war most of us would sleep easier in our beds if we could be assured that the general staff contained at least a preponderance of people who knew something about military problems, just as an instruction manual for engine drivers might command greater confidence if it were written by somebody who knew something about driving engines.
This, after all, is the body which is to determine and to keep under review education and training and, most importantly, the codes of conduct of those who assume the important responsibility for assisting and guiding the courts in administering the law fairly, impartially and correctly. Indeed, it is that aspect of the advocate's function which is underplayed in the White Paper and which finds no place in the Bill.
The second cause for concern lies in the stated general objective of Part II and the general principle by which the functions of inter alia the members of the advisory committee are to be regulated. New ways of providing legal services and a wider choice are not desirable objectives in themselves. Novelty in itself is not a virtue. Nor is width of choice, unless it produces an improvement in the condition of the chooser. The legalisation of the supply of dangerous 214 drugs would provide the public with a greater freedom of choice but few would say that it was a desirable or benevolent object. I am bound to say that the statement of the objectives of the Bill in these terms without reference to quality or values merely fortifies the suspicion that many have expressed that the Bill is unconcerned with anything beyond inspired innovation and pandering to the populist appeal of the marketplace.
That is not just a semantic point because the statutory objective, however it is defined, is brought into the regulatory principles by which those concerned with advocacy rights are to be governed. This debate is no time for proposing amendments, but I would regard a statutory objective defined simply by reference to novelty and choice and without regard to any of the wider considerations of the importance of independent advice, of probity and of the fair administration of justice as a debasement of the values which are embraced by both branches of the profession and which I should like to think that the legislation was promoted to preserve and enhance.
The same applies, though perhaps to a lesser extent, to the statutorily defined "general principle" where the restrictions of the criteria for audience simply to training, education, qualification and membership of an approved body appear designed to preclude any consideration of the wider effect of the grant of rights in any individual case upon the quality of justice.
As to the appointment of judges, I have no comment save that, from what we have heard today, I wonder whether the Bill should not be amended to include perhaps a training course in acting as court usher, clerking, window-cleaning and clock-winding as an essential qualification.
Those are specific points, but what I and I think many others find most alarming in general about the legislation is the precipitancy with which a whole package of simultaneous measures is being forced on without any apparent consideration of the overall effects of the package taken as a whole. The extension of rights of advocacy may be all very well on its own, but what consideration has been given to its effect not just on the professions, but on the administration of justice when it is combined with a massive transfer of litigation to the county courts, with conveyancing being thrown open to the lending institutions and above all, perhaps, with multi-disciplinary partnerships?
Noble Lords may recollect that, on the occasion of the debate on the Green Papers, the noble Lord, Lord Mishcon —a leading proponent of the extension of advocacy rights —sounded, among many others, a note of caution with the words,festina lente. The Bill seems to have been introduced with all the emphasis on the festinare and none on the rallentare. In the course of that same debate I ventured to raise a number of questions which I subsequently repeated in a written submission to the noble and learned Lord the Lord Chancellor about the nature and extent of the inquiries and research conducted before formulating the proposals there outlined. I expressed —I hope moderately —a widely 215 felt concern that our legal system —which, whatever, form it takes, is an essential foundation for any civilised state —was about to be subjected to a hasty, ill-considered and therefore a most perilous experiment from which, once accomplished, there could be no retreat should it prove to be a disaster, as many predicted it would.
I was not alone in raising those questions. I understand that they were also raised by, among others, the Bar Council. I have never received an answer and I understand that the answer to the Bar Council's similar inquiries has been equally negative. Sometimes silence is the most eloquent response and the failure of the Government not only to furnish a direct answer to the questions asked but even to suggest the undertaking of even the most rudimentary research into the likely results of their 216 proposals must prompt the conclusion that none has taken place. The White Paper certainly does nothing to dispel the fear that that is the case.
So what the Government are embarking upon in the Bill is not just a perilous and hasty experiment. It is an uninformed experiment and, because the efficiency and availability of justice form part of the essential sub-structure of our society, it is an experiment which potentially touches to some degree the lives of all citizens of this country. So it is not just the courts, the judges or even just the lawyers, but all of us who are cast in the role of the hamsters.
So many of the military and administrative fiascos of history, from the fall of Troy to the collapse of the groundnut scheme, have been due to an insufficiency of prior intelligence. I most earnestly hope that we are not in for another.
§ 9.34 p.m.
§ Lord Beloff
My Lords, much of what I would have wished to say has been said a great deal better by the noble and learned Lord, Lord Oliver of Aylmerton. However, I should like to approach the Bill from a point of view different, I think, from that of anyone who has spoken so far; namely, that of someone whose career has not been part of the legal profession but the teaching of British government and the British constitution.
Whatever one may think of the details —and I am not against the noble Lord, Lord Mishcon, appearing in any court in which he chooses to appear—it seems to me that this Bill represents a major change in the relations between the executive branch of government and the law, the judiciary, the Bar and the solicitors' profession. I think that the noble Baroness, Lady Elles, gave us a perspective on that from the point of view of the Continent of Europe. Looking back over the history of this country, we have developed over the centuries a series of institutions of which the learned professions form one and the universities, which are also under attack from this Government, form another. It is in the interplay of those historic institutions and professions and in the interstices of their activities that our constitutional and legal rights have emerged.
I believe that reference was made by an earlier speaker to the dramatic events in Eastern Europe. One thing that has come clearly out of those events is the strong desire of the nations and the peoples concerned to obliterate to some extent 40 years of tyranny and foreign rule and to try to get back, to seize again, their national roots and symbols. It will be a very hard task at which some may prove more adept than others.
But for us, a country which, through the gallantry of its fighting men, has been spared any such experiences of foreign occupation and the domination of an alien ideology, voluntarily to set aside those centuries of experience and the institutions which have grown out of them seems to be most extraordinary. I agree with my noble and learned friend Lord Rawlinson that it is the more extraordinary from a Conservative Government. I am only comforted by the fact that I believe that they are a Conservative Government intermittently —sometimes they are and sometimes they behave as though they were a wholly owned subsidiary of the Institute of Economic Affairs. It is possible to take alternate roles and many repertory companies actually survive in that way.
However, if it were, as the noble Lord, Lord Hutchinson, suggested, merely obeisance to market forces, that would not be as sinister as the other aspect, which is the enforcement of executive control, because the way in which those so-called market forces are to be encouraged is by executive fiat. It is not the result of the legal profession, through its acknowledged institutions, altering its practices to give greater weight to the consumer.
I am surprised that no legally qualified Member of your Lordships' House has commented on that. For instance, what has the Director General of Fair 218 Trading to do with legal practice or appearances before the courts? I am sure that he is a very dedicated public servant —as is certainly the present incumbent of that important office. When it comes to ensuring that there is no hanky-panky with the market for crispies, pop-up toasters or video nasties, I am sure that he does his best to guard us against such marketing malpractice. However, should he not keep to what is properly consumer interest? Consumers have a continuous interest. They buy their crispies once a week or their toasters once every five years or whatever it may be. But what has he to do with something that may affect a person's life or liberty in criminal law or a person's reputation and property in civil law? The introduction in this Bill of this official in a role which is quite unnecessary —because there are plenty of other ways in which control can be exercised —is an insult to a profession, and I should feel that were I a member of that profession.
I refer again to what I regard as a much more dangerous aspect —imposition by hastily thought out legislation. I wholly agree with the noble and learned Lord, Lord Oliver. I cannot think of another major Bill in the course of British history that has been rushed through unnecessarily in this way as though it were an emergency powers Bill with an enemy on our doorstep. If it is right that there should be changes in the provision for the education of advocates or their training, it is no more urgent today than it was yesterday and it is no more urgent today than it will be tomorrow. Following the detailed examination of the Green Paper in your Lordships' House and the very interesting and important documents that have been produced by the various branches of the legal profession, it would have been perfectly possible to have found the agreement between both branches of the profession which several noble Lords have said is their principal objective.
I referred to this issue when I spoke in the debate on the Green Paper; it has also been referred to by the noble and learned Lord, Lord Oliver. It is the so-called advisory council. I speak as a layman. It seems wholly improper that important issues such as the education and code of conduct of an advocate should be dealt with by a body with a lay majority. One may well wish to have a lay representation because the professions exist for those who need them. But a majority is unnecessary. Indeed again it is insulting to the members of the two professions.
I believe that I said something similar in the debate on the Green Paper. However, my doubts and reservations have been much increased by the experience of another quango which was set up under the Education Reform Act last year. The universities have been handed over to the mercy of a quango. Although it does not have a lay majority in the strict sense, for a variety of reasons which would take too long to go into, it is dominated by the lay element. Anyone who is acquainted with the university scene today, as some noble Lords are, is quite well aware that the result has been an appalling degree of intervention in a university's internal affairs despite the assurances of the noble and learned Lord the 219 Lord Chancellor when the Bill was debated. It has led to chaos, resentment and low morale. With that example staring us in the face we ought to ask the noble and learned Lord to consider the composition of the council.
I was not altogether surprised that the noble Lord, Lord Allen of Abbeydale, came out as a supporter of the Bill. But from his other position he must be well aware of the truth of what I am saying with regard to advisory committees. I was not altogether surprised. All of us declare an interest and some of us declare our real interest, and the interest that he declared was that of the ordinary consumer, although I find it difficult to think of the noble Lord as the man on the Clapham omnibus.
§ Lord Beloff
What in fact we had was the traditional Home Office view —the lawyers are a nuisance and a bore and should be sued if they get things wrong, but our civil servants, immigration officers and all those who answer to the Permanent Secretary at the Home Office are men of such incalculable genius, confidence and integrity that no word of criticism, let alone action for damages, should come against them. If the Home Office has a corporate view in favour of the Bill that should make us enormously suspicious.
After all, the Bill is not necessary, and that is the point to which one continually returns. One could say that Part I of the Bill is necessary, although since apparently they are not to be financed, the provisions are unlikely to deal with the mischief which they claim to remedy. I certainly agree that, if presented separately with a proper estimate of the amount of public money involved, Part I of the Bill could have been useful. We all wish to see litigation become more rapid and cheaper. However, Part II of the Bill appears to be difficult to explain because there is no evidence of any particular grievance or public clamour that needs to be satisfied. Clearly what some tabloid newspapers may write about the legal system is not worth the paper on which it is written.
As has been repeated by many noble Lords, generally speaking the system in this country has a high reputation. It has a much higher reputation than the system in the United States of America upon which apparently our new-fangled legal system is to be based. It is not unusual or unique that we have a separation in the legal profession. Many countries divide up their legal profession. The French, as one might expect in Gaul, have three divisions. Therefore, to say that we are somehow coming into line with the civilised world is unacceptable to anyone fully aware of the facts.
I should have thought that it would be perfectly possible, as the noble and learned Lord, Lord Oliver, has said, to start with a modest step in advance; let us say an agreement as regards solicitors. I do not know whether they would fully wish to take advantage of it or whether, coupled with the effect 220 of other sections of the Bill on conveyancing on the solicitors' profession, they would wish to press forward with other persons to be given the right of advocacy as paralegals. But in a legal system which has been in existence for several hundred years, I cannot see why your Lordships' House or the other place should be asked to swallow in the course of a few weeks or months changes which we may come bitterly to regret which could only be justified by the noble and learned Lord the Lord Chancellor if he could give us his personal assurance not only that the Government will remain in office well into the next century but that he will continue to occupy the Woolsack. As neither of those propositions appears to be at all likely, I must confess that I shall be moved to vote in favour of the many amendments already suggested.
§ 9.50 p.m.
§ Lord Lloyd of Hampstead
My Lords, the present Government have sometimes been accused of not being a listening government. However, I really do not believe that that accusation can be fairly levelled at the noble and learned Lord the Lord Chancellor. It may be that he is not to be totally exculpated from showing some degree of undue haste which is not uncommon in governments, but as regards listening to comments and criticisms, I believe that he has, if I may say so, behaved in an exemplary fashion. He has listened to all possible criticisms, he has engaged in public debate all over the place and, as has been remarked, even in the course of our two debates on this subject, he has most diligently sat through all the speeches put before him.
Your Lordships may recall that during our first debate he showed himself as rather minded to think that a White Paper was unnecessary. However, in the end, as he was pressed to produce one, he did so. He produced a very detailed White Paper in which he endeavoured to meet fully and candidly the serious criticisms raised. Moreover, he showed himself ready to accept modification on important points such as abandoning the licensing scheme, which so many of us thought was open to a considerable amount of objection. The scheme which he has now substituted appears to have aroused a great deal less hostility than earlier proposals.
It is late and I do not propose to detain your Lordships longer than necessary. I was proposing to comment on Part I of the Bill but I shall omit that entirely and pass to making a few brief remarks on Parts II and III.
Here I venture to think that the noble and learned Lord the Lord Chancellor has gone a long way to finding solutions to what have long been vexed and controversial questions; more particularly, those relating to judicial appointments in relation to solicitors and their rights of audience in the higher courts.
At present I believe that there are really few opponents to the concept that solicitors, if suitably qualified, should be accepted as judges in the superior courts. After all, they have now proved their 221 capacity over a number of years as circuit judges and there seems little doubt that, if the occasional solicitor is appointed to the High Court, he will almost certainly occupy that office with distinction and without any threat to the independence or status of the Bar. One can almost regard that now, judging by the present debate, as a dead issue.
The question of solicitors as advocates in the higher courts remains much more controversial. I venture to express the view that the noble and learned Lord the Lord Chancellor was well advised to drop his original, rather cumbersome, scheme of licensing advocates. That had a slightly distasteful atmosphere about it apart from, as I say, being rather cumbersome. That has now been replaced by the functions of the advisory committee and the crucial role of the senior judges in approving or disapproving of the basis on which advocacy may be admitted in accordance with certain statutory principles.
For my own part, I cannot see any constitutional objection to such a system, although it may be very difficult to predict how it will work. I feel bound to repeat a comment which I made in the earlier debate; I am by no means persuaded that it will have more than a marginal effect on the cost position. Nevertheless there are advantages in extending advocacy to the solicitors' side of the profession. One thing that puzzles me greatly —and I have not heard this adequately explained —is why the White Paper and the Bill seem intent upon extending not only audience rights but even the right to judicial appointments to non-legal professions. I cannot detect any public demand whatever, either from professional groups or from the public at large, that accountants, chartered surveyors, architects or doctors should, if suitably qualified in advocacy, be admitted as members of their own profession to become advocates or even judges.
I should have thought that, save in those exceptional cases where lay advocacy is appropriate —and the Bill to some extent deals with this —it is far better to leave these functions to professional lawyers. They have the experience; they have the ethos and the training. It is rather puzzling that the Bill should go out of its way to admit the possibility of professional advocacy being extended to other professions.
So far as I am aware, this role for non-legal professionals does not exist in any other country, save perhaps in very rare and specialised cases such as patent agents, who are sometimes in some countries given rights of advocacy before patent tribunals; but that is a special matter.
To extend advocacy to solicitors is a different matter. There can be no argument that this increases choice on the part of the client and is a reasonable choice to give him. If, for instance, a client comes to a solicitor and is given to understand that the solicitor is qualified to conduct his case in the High Court and the client is happy to leave the case entirely in the hands of his solicitor right the way through, I cannot see why he should not be allowed that degree of freedom of choice. I cannot see what is wrong in that. It is, after all, what occurs in almost 222 every country. If, on the other hand, he prefers to employ counsel then he should be entitled to do so.
Nor can I see that this will inflict any irreparable harm on the Bar. The public will always need highly skilled specialists to conduct their advocacy. There will always be a section of able and energetic young men who will be drawn to that type of practice as a speciality and who will prefer the lifestyle which is characteristic of the Bar.
On the other hand, there may be some who will find the solicitors' side increasingly attractive if they can also engage as senior advocates. That is, after all, no more than reasonable competition. It is up to the Bar to do all it can to make entry into the profession as attractive, competitively, as it can. Speaking for myself, I am very happy to learn that the Bar has been taking considerable measures recently to improve salaries, access to chambers and alternative ways of setting up in practice. All these are legitimate ways in which the Bar may encourage able young people to enter into that side of the profession. However, it is a question of facing competition. The Bar, as the Bar never tires of telling us, is of all professions perhaps the most competitive. This is just another form of competition. I do not think it will produce any fatal consequences to the Bar for the reasons I have just mentioned.
Nor am I persuaded that the big firms of solicitors will syphon off all the leading practitioners from the Bar. I think that that is somewhat fanciful. In the first place I am quite persuaded that the leading practitioners would show no desire to be syphoned off in that way. For the most part I believe that they are perfectly happy with their own professional life and have no desire to become a cog in a huge legal machine. Although I am sure that the fears are genuinely felt, I feel that they are somewhat exaggerated.
I do not propose to add any more at this time. In conclusion I suggest that, despite some quite conspicuous flaws in the present Bill which are doubtless capable of improvement in Committee, it is a good Bill and it deserves support. The noble and learned Lord the Lord Chancellor is entitled to considerable praise for the efforts that he has made to produce a workable and acceptable scheme. I believe that in due course he will be recognised as one of, and take his place among, our leading reforming Lord Chancellors.
§ 10.1 p.m.
§ Lord Coleraine
My Lords, notwithstanding the fact that I have advanced from being the 41st speaker in the debate on the Green Papers to being the 29th speaker tonight, I find myself still, as a late speaker, able to claim the privilege of saying that I do not intend to say what I otherwise might have said on the rights of litigants to have their solicitors represent them in the High Court instead of barristers.
This Bill is about the provision and the providers of legal services. It may be fanciful, but the appearance of the subject of courts as a separate component of the Short Title seems to indicate that, in spite of the radical insistence in other parts of the Bill on making the law more accessible, more 223 understandable, more effective and cheaper for those who come to it, there is a lingering insistence that the interests of the courts and those who serve in them must, in the last instance, be paramount and that the parties to a civil dispute and their representatives are but petitioners on the treadmill of justice.
What seems to me to be insufficiently recognised in the Bill is that civil proceedings as opposed to criminal proceedings are primarily for the benefit of people, not of the court, society or the Government. They are designed to settle disputes arising between individuals and the court is there to find out what happened, to establish the law and apply it. The court is of course concerned that its time should not be wasted and that proceedings should be properly conducted.
The civil courts are there to meet the requirements of litigants and the speed and nature of the proceedings should, as far as possible, be determined by the litigants themselves. So it is with some concern that I approach Clause 9, which deals with penalties for non-attendance and proposes that a court may summon a litigant or his solicitor, barrister or lay representative, where there is no solicitor, and impose a fine not exceeding level 3 on the standard scale for failing, without giving due notice to the court, to keep the court appointment.
The noble Lord, Lord Meston, referred to that as a quasi-offence, but I should think that it is an offence which is to be compared with other offences found in the County Court Act for which the court may fine; for example, for assaulting an officer of the court in the exercise of his duties or refusing, as a witness, to appear to a subpoena. They are strange bedfellows to be found with failure to keep appointments.
That is an authoritarian proposal. The Law Society opposes it principally on the ground that the courts and other parties to litigation, faced with time-wasting tactics —and there are many such cases apart from the failure to turn up for a hearing—have plenty of existing remedies to compensate one party for the default of the other, which are just as effective as a fine and in addition actually benefit the other party and do not just go into the Consolidated Fund. It will be interesting to know something of the background to this clause and why it is that failure to keep appointments has been singled out for this draconian treatment. I can find no trace of it in the unified list of recommendations of the Civil Justice Review.
The report of the Review Body on Civil Justice was published in June 1988 and was generally well welcomed by the profession and the consumer bodies. Particularly welcomed were the proposals to extend the jurisdiction of the county courts, to provide for a more flexible allocation of cases between the two courts, and to provide for there to be a common core of court procedures applying both to the county courts and to the High Court.
It is in this light that I draw attention to the absence of any recommendation that the work of the High Court and the county courts be joined together 224 in one court. It is to be regretted, now that the county court is to cease to be just a small claims court, that the opportunity is being missed to end what will become basically an archaic delineation matter.
It seems to me that the greater flexibility that will be necessary when the review proposals are implemented —already reflected, for example, in the terribly convoluted provisions of Clauses 1 and 2 of the Bill dealing with the allocation of cases between the two courts and the transfers of cases up and down between the two courts—points clearly to the desirability of there being but one court. The same can be said of the sorry state of the county court service, to which so many have referred tonight.
Your Lordships may read some of the arguments for and against the unified court in the Civil Justice Review. I shall not summarise them now. I shall only comment that the argument put forward against the court seems to depend on the proposition that the specialist work of the High Court—that is to say, judicial review, public and administrative law, intellectual property and Admiralty cases, revenue appeals and the like—differentiates the High Court from the county court and justifies their separate existence. There is nothing about the convenience of litigants in all this, and I should have thought that it would be perfectly possible in a unified court for the right judges to deal with the difficult and important cases.
I pause here after this list of specialist cases to refer to the speech of the noble and learned Lord, Lord Donaldson. He is, as your Lordships will know, especially concerned with the affairs of solicitors. He expressed surprise and sadness that the Law Society had taken what he said in the autumn to be an implacable defence of the Bar's monopoly of advocacy. I shall have to read the speech and see exactly what he said, but this is what I understood him to say. He said that the monopoly of advocacy would only be needed in certain cases. I suspect that he would have included in these cases the specialist cases to which the Civil Justice Review has referred.
These cases do not normally involve conflicts on fact, or the cross-examination of witnesses. They are often cases that deal with the interpretation of the law in relation to documents. I should have thought that these were just the cases where it would be possible for solicitors to appear in the High Court. I have the impression that the Bill and the document that preceded it indulge in more than a little identifying of motes in the eyes of the professional while remaining blind to the beams in the eye of the court administrator. I am thinking now about the difficulty in obtaining recompense as of right for administrative incompetence within the court system.
The Parliamentary Commissioner may look into the court activities for which the Lord Chancellor's Department is responsible, but when there is error and it comes to the point the department appears to claim that what appears to be simple maladministration by court officials was not that at all. It is a matter which falls within the responsibility of the judiciary, and no one may investigate it.
225 I understand that the Law Society receives correspondence from practitioners about court errors; for example, the parties and their representatives may be at the doors of the court, but there is no judge present because the court officials have not told him about the case. There is no redress through the Parliamentary Commissioner because of the curious demarcation convention that such an error is an error of the judiciary and no concern of the department. I would join with the noble Lord, Lord Allen of Abbeydale, in his suggestion that it ought to be possible to amend the Bill to make it clear that errors of court staff are subject to investigation by the Parliamentary Commissioner.
I should like to say a few words about the provisions of the Bill relating to conveyancing. The Government are determined to promote conveyancing by financial institutions and conglomerates. I think it is fair to say that popular demand for one-stop shopping has loomed very large in the thinking which has brought about this decision. For my part, I am concerned that the long-term effect of a move to a one-stop service will be against the interests of consumers, unless it is clearly laid down that consumers are to be treated by those with whom they deal as clients and not as customers. I would put it this way. A client is one to whom a professional solely owes his duty; but one sells used cars to customers.
The house buyer or seller employing a solicitor or licensed conveyancer may find that he needs advice on finance, on insurance, on surveying, on estate agency matters and on all the other components of the whole deal which constitute the house purchase or sale. The solicitor is in a position to give the disinterested advice which the purchaser or seller needs regarding recommending brokers, surveyors, estate agents and so on.
On the other hand, the house buyer who opts for a one-stop service may find that he is advised as to all these matters, but there will only be one recommendation at each stage. Whether he asks the lender to recommend a surveyor, the estate agent to recommend a source of finance, the building society to recommend a conveyancer or the conveyancer to recommend an endowment policy, the result will be predictable. However, I shall not dwell on that fact.
The Government recognise the conflict of interest which affects the person employed or engaged by the financial organisation to do its conveyancing for its customers. They accept that the conveyancer should not act in a conflict situation. Clause 37 of the Bill provides that there may be regulations designed to avoid conflicts of interest. What are the Government going to do? They will cut this Gordian knot and allow the conveyancer to exempt himself from his duty to his lay client so that he can look after the interests of his employer. Is that not curious?
In a Bill which purports to arise out of concern for the users of legal services, would we not have expected that the conflict of interest issue would be resolved in favour of the client? Moreover, might we not have expected —and, indeed, may we not now expect —that in a Bill concerned with the protection of the public any arrangement or 226 agreement limiting the professional duties of the employed conveyancer to his quasi client would be statutorily rendered void, it not illegal? However, that is not a provision which we shall have.
I shall end with one more point on independent financial advice. The problem does not simply relate to conveyancers employed by building societies. The Consumers' Association made the point that only a small percentage of house purchasers now receive advice from their solicitors about house purchase finance. From that fact the association draws the conclusion that advice, independent of the financial organisation, is not required. However, the short answer to that argument is that if this Bill is implemented, as intended, many more house purchasers will need independent advice and far fewer house purchasers will receive it.
Estate agents, as your Lordships are aware, may be able to offer conveyancing services, at least to those who are selling houses through their offices. I had direct experience this summer of a lady who engaged agents to sell her house. They were not entitled to offer to convey her house for her, so she went to a solicitor. He advised her I hat the estate agents' terms were unusual and unduly greedy. Before the estate agents got much further, he had renegotiated the terms. It might well have been otherwise had the Bill been enacted and had the estate agents been doing the conveyancing for the lady. That is what the conflict of interest is all about.
§ 10.15 p.m.
§ The Earl of Shannon
My Lords, in my short contribution to the debate I, like the noble Lord, Lord Coleraine, wish to draw the attention of the House to a section of the Bill headed Extension of conveyancing services. That section encompasses Clause 31 to 43, which taken together outline a new and significant group of changes in the organisation and structure of house transfer. Although that section has received only a fraction of the publicity about the Bill, I make no apology for concentrating my remarks upon it. I do so for two main reasons: first, it is likely to have a more practical and direct effect on the man in the street than some of the other more legally esoteric areas of the Bill.
It has now become a well-worn clichė that moving home is the most important, expensive and traumatic event in most people's lives. Secondly, conveyancing and house transfer are still badly in need of further change, reform and competition.
Britain is a modern society and a property-owning democracy. Two-thirds of us are owner occupiers. We need a conveyancing system which is expeditious and tailored to consumers' needs and which enhances the mobility of the nation's labour force.
The existing conveyancing system was designed in a different age when the quill pen and not the laser printer was the basic tool in the conveyancer's office. The adversarial approach to the transfer of title on land was developed when the number of transactions was less than 1 per cent. of the present level and long before the creation of land registration which now covers about 70 per cent. of the properties sold.
227 In short, the system has been crying out for reform, and the process started earlier this year by the noble and learned Lord the Lord Chancellor with his Green Paper was a most important first step. It is worth noting that in other member states of the European Community the property transfer system does not have that adversarial approach. Generally there is just one notary between the parties whose function it is to confirm that the transfer has been properly carried out. I feel sure therefore that most noble Lords will join me in welcoming this important measure which is designed to widen choice and reform the delivery of conveyancing services.
Although the Bill does little directly to sweep away the restrictive practices in conveyancing, the competition which is being introduced by the Bill is most heartily to be welcomed.
I feel confident that authorising financial institutions and others with an expertise in the property business to offer conveyancing services will fulfil the Government's hopes that these new practitioners will simplify the conveyancing process itself.
For many, if not most, home owners, conveyancing should not be a legal service but a consumer product constructed and delivered in much the same way as other elements of the home-moving process. In truth, the actual legal input required in the conveyancing of a registered freehold is minimal. The rest of the process is largely ritual paper-pushing which can be replaced today by computers. This has been increasingly recognised and the fact that those employed by authorised practitioners under this Bill simply have to be "fit and proper persons" rather than legally qualified persons allows for this change in the nature of the transactions.
The introduction in Clauses 33 and 34 of the Bill of this competition between the old legal system and the new operators deserves support. My fears, however, start with this very division in the treatment between the existing operators and the new authorised practitioners. We are creating two systems of conveyancing and two frameworks of organisation. The first is the current system governed by the Solicitors Act and the Administration of Justice Act, and which is the province of solicitors and licensed conveyancers. The second is the new system of authorised practitioners created by the Bill. This means that we shall virtually have two sets of rules, two pyramids of regulations and two broad categories of practitioners. My fear is that with these two systems of conveyancing some poor consumers will fall down the crack in the middle.
Surely it makes sense that all conveyancing work undertaken by any person, be he a solicitor, a licensed conveyancer or an authorised practitioner, should be covered by the same set of rules and the same ombudsman scheme. Is it not essential, if we are to create a level playing field, for all people who want to undertake conveyancing work to be authorised in the same way?
It might be coincidental that last week the winding up was announced of the committee established 228 to recommend improvements in the conveyancing system. Over the past four years the conveyancing standing committee of the Law Commission has brought forward a large number of recommendations to speed up and simplify the system. Most of these appear to have been ignored by those providing legal services. I therefore welcome the powers given to the Lord Chancellor in Clause 37 to make regulations,designed … to provide for the efficient transaction of business; [and] avoid unnecessary delays".In the White Paper which preceded this Bill reference was made to the reforms being introduced by the Secretary of State for Trade and Industry to create a self-regulatory system backed by statute for estate agents. It is truly heartening to see that the estate agents are as concerned as the consumers' organisations to see improvements in the home transfer system. The National Association of Estate Agents published in June this year a vision of the future entitled Moving Without Tears. I have a copy of that booklet with me and it is available in the Library should any of your Lordships wish to peruse it and read the valuable conclusions it reached. One of the most important conclusions was that it should be possible within the existing legal framework of conveyancing to construct a much simpler and easier home-moving process around a conditional contract.
Finally, I give one word of warning. Much of the force of this Bill will depend upon the regulations which will come in its wake. There are those waiting in the wings and, as we have seen this afternoon, on centre stage, who will try to nullify the impact of this reforming measure. I do not underestimate the strength of the legal lobby which will try, and has tried, to persuade your Lordships that the new authorised practitioners should be burdened with the same legal system's antiquated and expensive ways. We have outlined a new world. Please let there be no return to the old.
§ 10.26 p.m.
My Lords, as one of the few non-lawyers contributing this evening to the debate, I wish to assure noble Lords that my contribution has nothing whatever to do with courage but more to do with gall. I find it very sad that so few noble Lords who are not lawyers have contributed to the Second Reading of this critically important Bill. That is not a criticism but merely an observation. I say that because perhaps the most exciting thing that I find about the Bill —this is one of the reasons why I welcome it so warmly —is that its whole style and form recognise strongly something which might come as a great surprise to those who practise the law at whatever level; that is, that the law is there for the people of this country. That means the entire 55 million people in this country. It is not designed for the benefit of those who practise it at any level. I say that as strongly as I possibly can because I have been astonished on former occasions, and frankly somewhat horrified, at the reaction of some of the most senior members of the Bench and the Bar to these proposals.
Other noble Lords, like myself, have been entertained for some eight years by my noble and learned friend Lord Hailsham of Saint Marylebone 229 when he has constantly referred to the absurd conservatism of his profession. Yet in the course of discussions on this matter I find that the gamekeeper, so to speak, has turned poacher. I am sad about that because I am convinced that this Bill will be for the benefit of the country at large. I particularly welcome, as many noble Lords have said, the reorganisation of the allocation of work between the courts. I shall not dwell on that matter but I wholly support the point made so eloquently and so well by the noble Lord, Lord Mishcon, and indeed by the noble and learned Lord the Lord Chief Justice, that it is of critical importance that correct and adequate resources are brought to bear in order that Parts I and II come to proper and efficacious fruition.
At this point I wish to raise the point that has been mentioned so often before about the independence of the Bench and the Bar. This is dressed up as a constitutional point. Why is it, I ask myself, that for the past 30 years the Bench and the Bar have been so silent on this issue? Why have the Bench and Bar not constantly encouraged their members to upbraid the administration publicly for the appalling levels of pay and the appalling inadequacy of the court system? That would have been warmly welcomed by any Home Secretary or Lord Chancellor as giving strength to his arm in arguments with the Treasury over resources. I should welcome it if in the future the Bench and the Bar used their constitutionally independent position constantly to bring pressure to bear on government to draw more resources into the court system.
I have no worries whatsoever regarding the issue of rights of audience of practitioners who have not been trained at the Bar. I am convinced that the Bar is strong enough not to suffer one jot from these changes. Its members have nothing to fear. Their abilities, their history and their education will protect them in the future. The virtues and usefulness of the Bar mean that the Bar needs no protection, statutory or otherwise.
I believe that there will be no problem with regard to judges declining to grant rights of audience in the High Court to other than barristers. Even judges have to obey the law. The paramount principle declared in the Bill determining whether a person should be granted rights of audience is whether he is qualified under the education and training requirements and whether he belongs to a professional body which maintains rules of conduct conducive to the proper and efficient administration of justice. There is no need for concern in that area.
I come to my last point, which is education and training. I am delighted with the provisions in the Bill which move towards common education and training in the profession. I believe that that is long overdue. As I had the impertinence to suggest in the debate on Scottish reforms in this area, the Scottish practice whereby young entrants into the profession serve as solicitors for at least a couple of years before applying to become members of the Faculty of Advocates is an example from which I believe the English Bar would benefit greatly.
While on that subject, there is no reference in the Bill, and no reference has been made today by the 230 professionals or by anybody for that matter, to the fact that there are legal practitioners other than the generals and the staff officers. The former Managing Clerks' Association —the association of legal executives —has for years provided an extremely fine education service to lawyers. There are the court officials and those in the court structure. They all provide a service to the public. It is important to recognise that it is not only fully qualified solicitors and barristers who, either directly or indirectly, provide a legal service to the public. I welcome the fact that the Bill recognises that.
§ Lord Campbell of Alloway
My Lords, before my noble friend sits down, perhaps I may ask him a very short question. When he states categorically that the Bar has nothing to fear, does he accept that that view is wholly dependent upon clarification of the role of the judiciary?
My Lords, the judiciary in itself has nothing whatsoever to fear. I have never in my life met a judge who was in the least frightened of voicing an opinion and getting his opinion across. I see absolutely no reason why the judiciary or the Bar should be in fear of the Bill. Are the Bench and the Bar such tender flowers that they need statutory protection? I do not believe a word of it.
§ 10.35 p.m.
§ Lord Nathan
My Lords, as the last speaker but three I should state my starting point, particularly having heard many of today's interesting speeches; namely, that we in the legal profession have not been and are not now living in the best of all possible worlds.
There has been worry about the law and the way in which it works over many years, and that worry has increased in recent years. There was the Bill, to which reference has already been made, promoted by Austin Mitchell in another place and relating to conveyancing. There has been the radical change in the conveyancing field and the Farrand Committee which related to that. Those measures have been implemented despite severe opposition from my professional organisation, the Law Society. So there has been a great deal of concern and there have been the beginnings of change.
The noble Lord, Lord Beloff, indicated that he did not believe that there was any need for speed. I entirely agree that, in a matter of this importance and of such fundamental consequence, we should certainly not proceed with haste, but the motto, "Deliberate speed, majestic instancy" would fit the bill.
I am filled with admiration, as I believe are others in the House, for the courage and determination of the noble and learned Lord the Lord Chancellor in bringing about the Green Papers, the White Paper and the Bill. I also admire the calm which he has evinced in the face of attacks of a fairly violent kind 231 both from colleagues and others, and his constant desire to discuss and explain and, in many cases, to accept proposals and ideas which have been put to him. The changes in attitudes and practices, both of the Bar and of the solicitors' profession and their governing bodies, have been brought about by the initiative which he started. I therefore start with the proposition that the noble and learned Lord the Lord Chancellor has brought about the possibility of change which some years ago was almost impossible to foresee.
I have no doubt that extensive amendment to the provisions now before us will be required. I do not at this stage of the evening wish to refer to them at length. I simply want to refer to two points, neither of which noble Lords may think is fundamental, but to my mind both are important and are derived from my experience of 40 years in practice as a solicitor.
The first of those points relates to the provisions of Clause 50, to which reference has already been made, relating to judicial appointments and the provisions of Schedule 7 which also relate to other appointments. The substantial effect of those is that the qualification for judicial appointment and those other appointments is to depend in future on the right of audience that a person has acquired from the Bar, the Law Society or some other authorised body.
Increasingly, aspects of legal practice demand specialisation. So the advocate needs to be a specialist in advocacy and will have to receive appropriate training. In some cases no doubt the capacity to occupy high judicial office stems from experience in advocacy. But the people who are able to discharge the judicial function are not necessarily and in all circumstances those who most effectively pursued careers in advocacy. On the contrary, there are many judges of the greatest distinction, both in this country and elsewhere, who have not been among the leading advocates and in some countries there are those who have not practised advocacy at all.
A glance at Schedule 7 indicates that in general the qualification for appointment, instead of being a barrister or solicitor —that is to say, a person qualified in the law with more or less many years of experience —is now to be derived from qualification as an advocate. That applies to, for instance, qualification as a charity commissioner, a law commissioner or a commons commissioner and, if my recollection is right, qualification to preside over an assessment tribunal of a midwives' organisation. I suggest that somewhere this view has gone wrong and that we ought to get it right.
Specialisation, already widespread, is likely to increase. Greater specialisation than presently exists will, I believe, be required in the courts and among judges. I suggest therefore that this is not the time to preclude specialist practitioners of the highest quality from attaining judicial or any other office.
It is perhaps worth noting that to settle civil disputes resort is increasingly had to arbitration, and the arbitrators appointed both in this country and, for instance, by the International Chamber of 232 Commerce, which is one of the leading organisations conducting international arbitrations, are not specialist advocates. In many cases the appointments are made by the parties themselves. That indicates that the clients see virtue in such cases in the judicial function being exercised by a person who is not a specialist advocate. I believe therefore that when we come to consider the Bill in Committee this point should perhaps be considered further.
Another point to which I should like to refer relates to multinational and multidisciplinary practices, to which the noble Baroness, Lady Elles, referred. There is in existence the recently created European legal entity, the European Economic Interest Grouping, as it is called —the EEIG —which may be helpful in establishing relationships between, for instance, English firms of solicitors and their equivalents elsewhere in the EC. We shall have to consider to what extent use can be made of that body within the rules prescribed in this Bill as to the relationships between solicitors in this country and other organisations such as Fiduciaire in France and Belgium.
There is also the question of solicitors entering into partnership or other arrangements with lawyers in the Community. In certain EC countries lawyers may enter into partnership or themselves conduct business other than legal business, such as accountancy. The practice of commercial law is presently largely conducted in this country within the profession.
The commercial and legal developments of recent years and the requirements of clients are rapidly changing, as the noble and learned Lord the Lord Chancellor said in his opening remarks. We have to bear in mind that, if the constraints on practitioners are too great, it is easy to envisage that commercial legal practice may be conducted outside the profession and the safeguards which have been so much emphasised in this debate —and rightly so —will then be absent. It is a point that one has to bear in mind in considering the extent of the regulation which may be desirable.
At present solicitors may not enter into partnership with persons who are not solicitors. That provision is to be repealed. The Bill then provides in the next subsection that the freedom given to solicitors by that repeal can be cancelled by the Law Society making rules in effect reinstating the previous position either generally or with exceptions.
Much has been written about one stop shopping —to which reference was made by the noble Earl, Lord Shannon —in the financial services field as well as in the context of professional services. I suggest that the question of whether or not solicitors or barristers should be able to enter into partnership with people in other professions or occupations ought to be determined by Parliament. It is not a suitable matter for decision by self-regulating organisations, which in this context the General Council of the Bar and the Law Society are to be. I do not believe that government or indeed Parliament should shirk their responsibility in this regard.
§ 10.47 p.m.
§ Lord Hooson
My Lords, since I am recovering from a rather heavy attack of flu, and for other reasons, I shall be very brief in winding up the debate from this Bench.
§ Lord Hooson
My Lords, when the noble and learned Lord said "Hear, hear" perhaps he bore in mind that this debate has been very much a repeat of the debate on the Green Paper. It is a sad reflection that so many people who took up entrenched positions then have had to repeat them today.
It is very interesting that noble Lords—judges, members of the Bar and others —have expressed exactly the same doubts about the Bill as they expressed about the Green Paper. It is a very serious matter that the noble and learned Lord the Lord Chancellor has not been able to allay the fears of the senior judges about the long-term effect of his proposed measures. They are a very important profession in this country. No one is suggesting that in the shorter term this Bill, if enacted, would have immediate effect. But it is the long-term effect about which people are worried. After all, we have a system of justice that is greatly admired. That is attributed to a great extent to the fact that we have an independent judiciary served by an independent Bar. We have had separate professions. That has resulted in a system which is greatly admired outside our country and within it.
The noble and learned Lord, Lord Rawlinson, suggested that the course upon which we are now embarking is a watershed in our system. It means that we shall have a complete change. Therefore the onus of allaying the fears surely rests upon the shoulders of the noble and learned Lord the Lord Chancellor.
The great fear that has been expressed in the debate is that gradually the judiciary, the Bar, the Law Society and everything else, will come under the control of the administrative arm of the Lord Chancellor's Department. Eventually that will undermine the standards of the Bar and of the judiciary. As was put trenchantly by one of the noble and learned Law Lords, we shall go down the American path. A surprising number of my American friends have warned me about the path on which we are embarking.
If one applies market forces to the legal profession and the structure of the legal system, everybody undercuts everyone else and one ends up with lower standards. No one whom I have met from the United States pretends that the American system is cheaper, speedier or held in more regard than ours —quite the contrary, my Lords.
Therefore I suggest to the noble and learned Lord that he has to deal with the following problem. I take the two cornerstones of the profession, as they were referred to by the noble Lord, Lord Alexander: the High Street solicitor, of whom there are 80 per cent.; and their immediate access to an independent Bar. The package of reforms proposed by the noble and learned Lord will undoubtedly have the effect of 234 reducing the number of High Street solicitors. There is no doubt whatever that, for example, those who practise in the criminal court will tend to get together in practices near the crown courts. Others will form associations creating larger firms in order to try to benefit from some of the changes. They will use the greater freedoms, and they will have the rights of audience in the crown courts and elsewhere. That will reduce the work for the Bar.
The Bar is so well controlled by the judiciary because it is a small profession. The numbers are important in this respect. There will be a gradual change and reduction in the control exercised by the judiciary over the Bar. There will be a gradual change in the standards to be expected from the advocates in general because one cannot control a small profession as one can control a larger and wider profession. Eventually we shall see the market forces undermine the standards which we have so enjoyed in this country.
That is the fear which is expressed and it is a true fear. With the greatest respect to the noble and learned Lord the Lord Chancellor, I do not believe that he has gone even half way towards allaying those fears.
I can think of no reason why the legislation has been pushed forward with such haste. After all, we discussed the Green Paper in only April. I cannot believe that it was not possible to bring together round a table the leaders of the profession and the judiciary to discuss the various matters in order to see whether there was another way out.
The noble and learned Lord appears to have embarked upon a confrontational course with the Bar and the judiciary. It is unjustified in the circumstances. No one can pretend that the reforms included in the Bill will have immediate effect. No one can think that it is good for the country to have such a clash of view on these matters so publicly expressed as between our senior judges and the noble and learned Lord.
I have dealt with the greatest fear about the Bill. However, I do not think that it will be possible to amend it in any meaningful way in order to allay those fears. There may be attempts to change the Bill in certain vital respects, but I cannot see that there will be a change in the basic approach that has been embarked upon by the noble and learned Lord.
I turn to Part I of the Bill. I entirely approve of the decision to move some of our litigation from the High Court to the county court in the way suggested. However, my overall impressions gained on my circuit is that business in the civil High Court is now being dealt with more expeditiously. High Court arrears have been cleared up quickly, but the county court arrears are mounting. There are more and more complaints about the county court. Therefore, this provision comes at a very inauspicious time, to say the least. Certainly the Lord Chancellor would need the support of the Treasury to make available much more in the way of resources in order to make this a meaningful change, if it is to be meaningful, in terms of a few years rather than over a long period of time.
235 Lastly, I just make this point about the ombudsman. I certainly believe that the ombudsman should have the right to investigate administrative delay and fault, as the noble Lord, Lord Allen of Abbeydale, suggested. That would be absolutely essential. However, my overall view is that I still have the scepticism which I had during the debate on the Green Papers. Nothing I have heard today has in any way allayed those fears.
§ 10.55 p.m.
§ Lord Irvine of Lairg
My Lords, I rise to wind up from these Benches some seven hours 55 minutes after the debate began at 3 p.m. There seems to be no lack of appetite for this subject in your Lordships' House. Our debate on the Green Papers on 7th April occupied 12 hours 45 minutes so that perhaps the appetite is becoming a little more under control. In winding up, I shall certainly not regard it as boundless.
If there is a single theme which has emerged in this debate it is the recognition from all quarters of this House, however courteously expressed, that fine words must be matched against deeds. The Government's skill in adopting the language of consumerism, consumer rights and consumer choice is not in doubt. The noble Lord, Lord Alexander of Weedon, recognised that. What is in doubt is their commitment to provide the resources necessary to ensure the delivery of adequate legal services to consumers.
The trick of the Green Papers and the White Paper was to promote the vocabulary of consumer choice while prescribing nothing to promote that genuine access to systems of provision and benefits which alone can enable people to exercise any real choice.
We must not be so bowled over by the Government's adoption of that vocabulary that we neglect to look at the reality behind the fine words. I believe that that is the principal achievement of this debate. Many of your Lordships referred to the scandal of inadequate provision of legal aid. On the one hand, the Government declare that improved access to good quality legal services is what their policy is all about. On the other hand, they say that this Bill has no need to address legal aid because that subject was satisfactorily addressed in the Legal Aid Act 1988.
The Government assert that 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 noble and learned Lord, Lord Ackner, quoted that. That is the heresy used to disguise the need for a major commitment of resources. If the Government believe their own free market hype, they deceive themselves.
As I ventured to say in your Lordships' House on the debate on the Green Papers: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". —[Official Report, 7/4/89; col. 1324.]Still the Government have nothing to say about giving legal aid back to the millions who are outside the absurdly low qualifying limits.
236 In his speech at the outset of this debate, the noble and learned Lord expressed his puzzlement at criticism that this Bill does nothing to commit further resources to legal aid. I shall endeavour to relieve him of his puzzlement. Legal aid is available to a small and diminishing proportion of the population. The noble Lord, Lord Mishcon, quoted the latest statistics. Since 1979 14.8 million people and 5.5 million households have become ineligible for civil legal aid. The qualifying limits have become absurdly low. Since 1979 earnings have increased by 135 per cent. and prices by 93 per cent., but the upper eligibility limit for disposable income has risen a mere 50 per cent.
It was to the great credit of my noble and learned friend the late Lord Elwyn-Jones —who is remembered on all sides of this House with great affection and respect —that by 1979, when my party lost power, he had been responsible as Lord Chancellor 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, as I said, 14.8 million people have gone out of eligibility. I do not understand how a comparison of the number of legal aid certificates granted in 1979 and 1989 can begin to engage with the point that 14.8 million people have entirely dropped out from eligibility.
The Legal Aid Act 1988 improved the administration of legal aid and in some ways quite significantly, but did not tackle the resource problem. The Government's response to these concerns was provided on 19th November in a Written Answer in the other place by the Attorney-General. It was that £5 million of additional funds were to be made available for cases involving children, pensioners and personal injury. The noble and learned Lord called attention to that. We should be thankful for that small mercy, but that is all it is. The real solution —a major increase in resources —is put on the back burner.
Over the next two years legal aid expenditure will not keep up with inflation and the time honoured expedient of setting up an inquiry, which will take years, has been adopted. A review of the financial conditions for legal aid is to be set up to look at all aspects of eligibility, contributions, the statutory charge, means-assessment and the payment of contributions. We are told that the review will take two to three years. Can this lethargic time-scale not be improved upon? This lethargic time-scale is to be compared with the few months required by the Cabinet's Efficiency Unit study into legal aid in 1986. It is also to be compared with the brief period of time taken in the production of the Green and the White Papers and then the Bill itself; an abbreviated time-scale which caused many to be convinced that it was the roller-coaster of free market hype that was in the driving seat in place of the mature thought, research and extensive consultation that would have been appropriate to the gravity of the subject matter. I invite the noble and learned Lord, when he replies to this debate, to say whether he can agree that a comprehensive review of legal aid is a manageable subject matter that can conveniently, and will, be concluded within a maximum of six months.
237 I would be the first to agree that litigation is too long, too cumbersome and too expensive. A more worthwhile reform than much of this Bill would be to require the courts to adopt a "hands on" approach so that every civil case must be brought to trial within a maximum of one year from its commencement. I believe that in the United States this is called "fast track" litigation and it is working in some places. Far too often in this country months and years are occupied in interlocutory skirmishes; rows about pleadings, particulars, discovery of documents, or whatever, and the skirmishes become a professional way of life —and a very remunerative way of life — in themselves. The battle that matters, the trial, is endlessly postponed as if the lawyers can never quite commit themselves to bringing matters to a conclusion.
We should require that all those wrangles be resolved on a single occasion within a few months after the commencement of the action, and that the action must be brought to trial within a year. That might need more judges, but that would be a small price to pay for the huge savings in delay and costs that would be achieved because no one should be in any doubt that when cases are spun out over years the delay is costing the litigants money because the lawyers are continuing to earn during the period of delay.
As I say, the real truth about litigation in this country is that it is too long, too cumbersome and too expensive; and it is currently the privilege of the very rich and the very poor. Middle-income Britain is left out in the cold. Since that is undeniably the fact, where stands the free-market hype which declares that free competition will ensure that the public is provided with the most effective and efficient network of legal services at the most economical prices?
During the passage of the Legal Aid Bill through this House government spokesmen, including the noble and learned Lord on the Woolsack, did not attempt to challenge that for the vast majority it is the Citizens' Advice Bureaux, the advice centres and the law centres which provide their only access to justice, yet they are starved of funds and have a hand-to-mouth, week-to-week existence. How the market is supposed to work in relation to these agencies is beyond my comprehension. They have virtually no central government funding; the great bulk of their funding comes from the local authorities, and the local authorities do not even have a specific power, far less a duty, to fund them. They have to fall back on the old tuppeny rate to fund them as best they can.
So it is utterly unsurprising that the law centres and the advice centres currently have no assurance that they can pay wages or stay open. It is small wonder that provision is haphazard across the country with gross geographical inequalities. Unlike my party, the Government have no commitment to a comprehensive national network of general and specialist advice and law centres adequately funded.
If there is one thing that is deeply offensive it is humbug. I say that, despite their words, the Government, by their deeds, do not accept the duty 238 of the state to secure access to justice for its citizens. It is not only the advice centres that are in crisis. As this debate has emphasised, the county courts, to which so much is to be hived down under the Bill, are in crisis. My noble friend Lord Mishcon spelt out the situation in his graphic examples at the outset of this debate and it is unnecessary to multiply these. That is the reality on the ground. It continues as an affront to justice that legal aid is still not available for tribunals, arbitrations or small-claims arbitrations in the county court.
Many of the greatest injustices that I have personally witnessed have been in the industrial tribunals. They have a substantial jurisdiction in unfair dismissal, redundancy and antidiscrimination cases. They can make awards of many thousands of pounds. The unrepresented applicant is at a huge disadvantage against the legally represented employer. That is a major obstacle to justice being done. It is nothing short of a confidence trick to go on saying that the procedures of these tribunals are informal so that unrepresented parties are at no disadvantage. It is not true. The procedures of those tribunals are identical to the ordinary courts.
Mercifully, the department of the noble and learned Lord will no longer be able to make that claim. The major conclusions of a recent study carried out for his department are, first, the success rate of those who are represented in tribunals is significantly greater than that of the unrepresented. That conclusion was over the whole range of social security appeals, immigration, mental health review and industrial tribunal hearings.
Secondly, representation contributed to the speed and quality of the decision of the tribunals. Thirdly, the study concluded that legal aid should be available for serious or complex tribunal hearings. The reason that the current levels of representation were low was recognised to be the absence of legal aid and the lack of resources on the part of the lay agencies to which I have already referred.
Where do the Government stand on this? Are we going to have legal aid for the tribunals, and when? By what rational standard can it be right to make legal aid available (although subject to the appalling limitations that I have described) to uphold legal rights in the ordinary courts but not legal rights that can only be upheld in the tribunals? What standard of justice is that?
We have a two-tier system of justice in this country —one for those who can afford representation and another for those who cannot, and it is getting worse, not better. The levels of legal aid remuneration are already low and they continue to decline, so the number of solicitors who are willing to conduct legal aid work continues to fall. As this debate has shown, it is not just legal aid that is starved of resources; it is also the courts themselves.
A major proposal of the Bill which many have discussed is to hive down business from the High Court to the county courts. The fact is that the county courts are ill equipped, underfunded and overstretched with their current workload and are simply not geared up to cope with the enormous volume of business that it is proposed to hive down 239 to them. They urgently require a huge increase in resources to allow for the smooth redistribution of business but they are not going to get it. A maximum of £3 million in the first year, £4.5 in the second and £5 million in the third are the figures that I understand are to be dedicated to coping with the hiving down.
The High Court today is handling its workload remarkably efficiently, but for well-known reasons the county courts deliver an inferior standard of justice which will become the more serious as more is thrust upon them. I make two major points apart from the staffing problem. The first was made by the noble and learned Lord, Lord Hailsham. In the High Court trials are continuous. The court sits if necessary over days or in long cases weeks until the case is concluded. The case is a full-time, continuous job for the judge and the lawyers from start to finish.
The report of the Civil Justice Review showed that only 30 county courts out of 274 offered continuous trial facilities. The inability of the county courts as currently resourced to provide continuous trial facilities is a major source of dissatisfaction to litigants. As the noble and learned Lord, Lord Ackner, said, the only key in the Bill to reducing delay and costs is this hiving down of business to the county courts. But this must be set alongside the county courts as they are currently administered.
Reassembling the judge, the lawyers and the witnesses on a number of separate occasions is in practice very difficult. Sometimes adjournments are for many weeks or months. We all agree that the major causes of consumer dissatisfaction with the law are delay and cost, but here, because of the under-resourcing of the county courts themselves, we have a major cause both of delay and excessive cost. These frequent adjournments add to the costs, and the delay adversely affects the quality of justice because the time to evaluate evidence is when it is given and not weeks or months after it has been given. Therefore, I ask the noble and learned Lord on the Woolsack if he would be good enough to tell us in responding to this debate whether the county court system to which so much work is going to be hived down will generally be enabled to provide continuous trial facilities.
Are there going to be recording facilities generally available in the county courts so that, as in the High Court trials, a tape recording or shorthand note is made both of evidence and judgment? At present there is no recording by tape machine or shorthand of the evidence given in county court cases nor is there any regular recording of the judge's judgment. The absence of a record of the evidence and the judgment puts the county court litigant at a great handicap when it comes to appeal. I regard it as extraordinary that a country as advanced and sophisticated as ours should not at least provide a complete record of the judgments of the judges in the county court which, after all, contain the reasons for their decisions.
Therefore, the question is whether this Bill in hiving down to the county courts will in practice be ensuring that consumers of legal services receive a 240 standard of justice which is inferior to that which they would formerly have received in the High Court. There is no good reason of principle why they should.
We welcomed the statement made by the noble and learned Lord that he has secured an additional £70 million for his department and that he contemplates an increase of 350 in court staff. Moreover, his acceptance that further staff will obviously be needed in consequence of the Civil Justice Review is also to be welcomed. However, I ask the noble and learned Lord to tell the House in his reply to the debate whether he can offer any assurance of this general principle: that the county courts will be sufficiently resourced to ensure that the standards of justice they offer in handling their increased workload are not inferior to the High Court. As the noble and learned Lord, Lord Lane, said, it is one thing to initiate reforms of this nature, but another to make them work. The essential infrastructure is all-important; the staff are all-important.
The gripping contribution made by the noble and learned Lord, Lord Lane, requires an answer. He has no political axe to grind; nor indeed has the noble and learned Lord, Lord Donaldson, in supporting him and declaring that the Government do not yet even contemplate the scale of resources necessary to allow the county courts to carry out their new job. The noble Lord, Lord Boyd-Carpenter, also spoke with strength on the subject.
We on these Benches reject the proposition that free competition will ensure that the public is provided with the most effective and efficient network of legal services at the most economical prices. I believe, judging from contribution after contribution to the debate which focused on the inadequacy of state resources committed to securing access to justice, that the House as a whole rejects this simplistic proposition.
The truth of the matter is that the internal differences within the legal profession, involving the judiciary, on the issue as to rights of audience —which is a highly important issue in itself—has been exploited by the Government to distract attention from a major issue; namely, state support for access to justice. Therefore the more the lawyers differed the more the simplistic, populist line worked: alter the practices of the lawyers; make them compete more; inflict some popular pain on the lawyers and this will guarantee better access to legal services, lower costs and increase consumer choice. It is a false prospectus. The reality on the ground is as I and other noble Lords who have contributed to the debate described it.
A major component in deciding whether a state provides a decent quality of life for its citizens is the extent to which it secures for them access to justice. People value their legal rights very highly. They feel deeply frustrated when they cannot secure them. Moreover, they feel cheated in an alien court or tribunal environment where the other side is represented while they are not and where they lose. As the noble Lord, Lord Alexander, emphasised in his contribution to the debate, all the legal rights 241 which Parliament confers are a hollow sham to the extent that citizens cannot secure them in practice.
All the free-market hype pouring out of this Government's propaganda machine should not be allowed to conceal the basic truth, which is that they are unwilling to commit the resources that only the state can provide to secure equal access to justice for all its citizens.
I can assure the noble Lord, Lord Boyd-Carpenter, that we on these Benches do not regard legal aid as a bottomless cornucopia which is a substitute for reducing delay and costs. I hope that I have emphasised the importance that we attach to the latter. We want to reduce delay. We want to reduce costs. But we want also to provide a fair system of legal aid and to resource the court system adequately. It is on the last two that the Government are failing the nation. Everything that they say about access to justice is so much aspiration until they get those two things right
§ 11.20 p.m.
§ The Lord Chancellor
My Lords, we have had a full and interesting debate. Your Lordships will not expect me to deal in detail with every point that has been made. The whole purpose of the Bill is to seek to make improvements and to open up opportunity for improvements in access to justice. I have no desire to achieve any sort of populous effect or anything of that nature. I put the Bill before your Lordships in the belief that the general thrust of its provisions, no doubt subject to improvement by amendment as it goes through the House, is properly directed towards achieving a better system of justice and a more varied and therefore better provision of legal services for all our people.
I believe that it has been generally understood that Part I, which implements the main proposals of the civil justice review, is a change that should properly be made but subject to the need adequately to provide resources for the county court. I accept that point entirely, which is why we propose to deal with the matter by making adjustments to the allocation as between the High Court and the county court according to how the county court can take it. As my noble and learned friend the Lord Chief Justice said some time ago when talking about how cases were sent down from the High Court to the county court, a thermostat has to be inserted into the system to ensure that the load which is being put down is being dealt with appropriately.
With regard to preparations, I agree with my noble and learned friend Lord Hailsham and others, including the noble Lord, Lord Irvine of Lairg, about the fundamental need for continuous listing. That above all is required in the county court and it is that that we have endeavoured to provide.
Nearly 50 continuous trial centres are already in operation. They take the majority of trial work from about half the courts. The system has been not to provide facilities for continuous trial at every county court but to try to provide centres to which that work may be sent. A further 25 or so trial centres are in the pipeline. That will mean that most trials of any significant length will be dealt with in those trial centres.
242 It is true that we have recently experienced difficulty in the county courts because of the rise in the amount of work and the difficulty in retaining qualified staff. I should like to join my noble and learned friend the Lord Chief Justice in what he said about the dedication of our staff and of the judiciary. I wish to do nothing to reduce the morale of the staff that we have. I and my noble and learned friends have done everything in our power to try to support morale. As your Lordships know from the times when I have had to ask the leave of your Lordships, I have endeavoured to see as many of the staff in the courts as I can, to try to deal with matters which arise from time to time in the courts.
I believe that on the whole the rate at which work is being handled by the county courts, taking the position over the country, is perhaps not quite as bad as the picture might suggest. According to my information, at the end of 1987 about 55 per cent. of the main office work in the county courts was being dealt with within five days of receipt. That figure has now risen to about 80 per cent. It is also true that the average delay between a request for a hearing and the hearing itself in the county court is about four months. A survey of waiting times at trial centres carried out last month showed that waiting times for hearings at these centres range between one and 24 weeks, with the majority falling into the band between eight and ten weeks. For transferred cases these times compare favourably with waiting times in the High Court, where in the main similar cases have to wait several weeks longer for a trial date.
I appreciate that as cases are sent down from the High Court the waiting times there are likely to be reduced and the waiting times in the county courts are likely to be somewhat increased. There have been particular difficulties this year. It seems to be the case that the training that we give to staff in the courts makes them extremely valuable once they are trained to, for example, solicitors in private practice and to local authorities. It is a difficult task therefore to maintain in the county courts and in the courts service an adequate supply of fully qualified staff. But I believe that some part of that difficulty is also due to the nature of the work.
One of the major changes that we hope to put into operation soon is the summons production centre. That will deal with these large issues that are required by creditors who have a large number of debtors, so that one can put on disk a large number of cases per day which have to be processed. We are setting up a summons production centre which will do that by computer and take a lot of the heavy manual work away from the court staff. It is in these areas of heavy manual work of a rather repetitive kind that the system is showing strain.
I also propose to give effect to a move away from the handling of suitors' cash, which again is a very time-consuming and rather difficult exercise for the staff. I believe that the result will be helpful in relation to retaining staff and providing the service in the areas of which your Lordships have spoken where there have been difficulties.
I think it right to make plain that what I have in mind in the operation of Part I of the Bill is that it 243 should be done by stages. I wish to assure your Lordships that it is in my view necessary and I shall ensure that the transfers will be made only under the condition that the proper resources are available in the county courts to deal with them. As I have indicated, we have already made quite considerable steps in the important area of continuous trial centres.
A number of your Lordships have suggested that Part I of the Bill concentrates more on the convenience of the court administration than the court user. The intention is to provide an administration which will be suitable for the court user and, as regards the suggestion made that the remit to the Parliamentary Commissioner for Administration should extend to the courts —I think the noble Lord, Lord Meston, made the same suggestion in relation to the legal services ombudsman —I think it is plain that the Parliamentary Commissioner Act 1967 was not intended to apply to the court services. What should be done in that connection is a matter that no doubt we shall consider in Committee.
As regards Part II, a good deal of discussion has centred on the arrangement of Clauses 14 and 15. I wish to make it as clear as I can that the intention is that the general principle should prevail and that the statutory objective is subject to the general principle. The general principle requires that:the question whether a person should be granted a right of audience…should be determined only be reference to —I pause there because my noble and learned friend Lord Donaldson of Lymington, wished to direct particular attention to the phrase:
- (a) whether he is qualified in accordance with the educational and training requirements appropriate to the court or proceedings in question; and
- (b) whether he is a member of a professional or other body which —
- (i) has rules of conduct (however described) providing for standards of conduct on the part of its members which are appropriate in the interests of the proper and efficient administration of justice".in relation to the court or proceedings concerned".The intention of that phrase is to make it clear that the requirements may vary according to the court or proceedings concerned.
This enables me to deal with the point made by the noble Lord, Lord Hutchinson of Lullington. Different rules may apply in this connection to the Crown Court, for example, to the rules which would apply to some parts of the High Court and some proceedings there.
I made it clear in my opening statement, and I repeat it now, that when we are talking about standards of conduct on the part of the members we are talking about the way the members conduct their practice as well as their behaviour in court. However, the importance of the latter phrase is that it relates the requirements to the court or proceedings in question. Different requirements may be appropriate according to different proceedings.
The second branch of that part of the rule is that the professional body has:an effective mechanism for enforcing those rules of conduct".244 I entirely accept that merely to make rules is not good enough. One has to see that they are enforced, and one has to make sure that the body is likely to enforce them. This is referred to as the general principle. Clause 15(2) makes it plain that a person exercising any functions under the legislation is to do so,in accordance with the general principleand, subject to that, give effect to the statutory objective. So the general principle is to rule. The general principle has the phrase—and this is not necessary in the administration of justice, but it is:appropriate in the interests of the proper and efficient administration of justice".I regard that as an eminently reasonable test on which to base a judgment in this matter. Obviously I shall listen carefully to suggestions for the improvement of this matter, but that is the scheme, and that is precisely the scheme of the White Paper. However, it emphasises in this case the relative importance of the statutory objective and the general principle so as to make the general principle paramount.
My noble and learned friend Lord Donaldson of Lymington was also concerned about the procedural layout, as it were, of the arrangements. I have laid out these procedural arrangements as the ultimate order of proceeding. I took the view —this view was enlightened by discussion —that it was right that the senior judges should come into this in the final form only after the Lord Chancellor had given his view on it, in order that he might be first to deal with the matter. He would then put it to the senior judges for their decision. I entirely agree with the view that in practice we should be able to have discussions to determine the various steps to be carried out in the same way as the noble and learned Lord, Lord Donaldson of Lymington, deals with solicitors' regulations, some of which require his approval only and some of which require the approval of my noble and learned friend the Lord Chief Justice and of the Lord Chancellor.
In practical terms the Master of the Rolls takes the lead in the negotiations and then the formal application for approval is made. In my short experience of these matters the arrangements have never caused any difficulty whatsoever. I hope and believe that my relationship with my noble and learned friends the Lord Chief Justice and the Master of the Rolls and with the President of the Family Division and the Vice-Chancellor would be such that we could approach the matter in that way and reach a conclusion on which we should all be able to agree.
I am very insistent that it is not correct to describe our proposals as doing nothing but bringing in a free market. We have heard about "free market hype" more than once, and I shall not refer to it very often. I believe that in the professional field the free market must be subject to the maintenance of standards of competence and conduct. That is what this machinery is designed to ensure. It is designed to ensure that no one has a right of audience in any of the courts who is not competent and does not obey the rules of a properly organised professional body which is willing to enforce those rules.
245 I want to make it clear that I do not understand the suggestion that the Executive is interfering in any improper manner. It is proposed in the Bill that the advisory committee—and I shall come to the constitution of the committee in a moment—will be appointed by the Lord Chancellor having regard to the various criteria required and the special places allotted to barristers, solicitors and teachers of law who will provide the expertise. A judge of the Supreme Court or a Lord of Appeal in Ordinary will be the chairman. When my noble and learned friend Lord Hailsham of Saint Marylebone set up the Civil Justice Review he included a majority of lay people and a very distinguished layman was chairman. I took the view that having regard to the work of this advisory committee it was right that a judicial chairman should have that position. I have no doubt that a judicial chairman is a very important aspect of the matter.
I was interested in the suggestion that a circuit judge should be a member of the committee. Obviously I shall consider that suggestion very carefully. I certainly envisage that the judiciary on the circuit bench may well have a role in relation to this matter.
My noble and learned friend Lord Griffiths asked me whether the provisions would enable me and the senior judges to decide whether a person who took silk would have to be a sole practitioner. In my opinion, if we took the view that it was appropriate in the interests of the proper and efficient administration of justice so to require, then it would be open to us to do so.
The same is true of the eloquent quotations that the noble Lord, Lord Hutchinson of Lullington, made from myself as the Dean of Faculty —I believe that all but one were made in that capacity, the last being from an interview that I was rash enough to give counsel shortly after I was appointed. But those considerations could all play an appropriate part in deciding what kind of conduct rules were to be required of a particular advocate in a particular court. As I have said, I envisage that the rules appropriate for the county court or the Crown Court would be different from the rules applying, for example, in some parts of the High Court as they do at present.
The noble Lord suggested that the Government's purpose was to drive the Bar out of the Crown Court. I utterly repudiate that suggestion. I have no such intention. The Bar will have a place in the Crown Court as long as it lasts, which will be for as far into the future as any of us can see.
The question of timetable was mentioned. On the one hand it was suggested that those considerations should be subject to some rather rigorous timetable. We have sought to provide that there should be no undue delay in considering proposals. The initiative for proposals will come from the professional bodies and the proposals in the Bill make it plain that the initiative will be with them.
That brings me to a point made by my noble and learned friend the Lord Chief Justice relating to there being one body and one set of rules. I should certainly like to see that. That was one reason that 246 I proposed the statutory framework in the Green Paper so as to make a uniform provision overarching all those who might be involved in advocacy rights. However, that was objected to and I well understand why. I have not proceeded with that, but the result is that I cannot therefore make one body out of two. It must be a matter for the initiative of the bodies. It is possible to insist by the mechanism that I have sought to provide that the rules should be the same, if that is appropriate in particular cases.
I entirely agree with what has been said; namely, that even in present circumstances, without any change at all, there is much to be said for all those involved in litigation as advocates, whether they be solicitors or barristers in the county court for example, being subject to the same disciplinary body and a similar set of rules. I can see, for example, that the Bar might wish to conduct itself differently in the county court from the solicitors, as is the present situation, but in the sense that the Bar requires, for example, that individuals should not be in partnership to conduct business in the county courts, whereas the Law Society does.
Subject to the differentiation between the way in which different parts of the profession might conduct their business, I agree with my noble and learned friend. I indicated in the White Paper a willingness to discuss that matter with the professional bodies if they felt so inclined. I do not see that I can stand out of regulating the professions as I have sought to do and at the same time bring about a unity of their professional bodies for discipline as is suggested. It is a matter for them, but the mechanisms in the Bill will go a long way to producing the correct answer.
My noble friend Lord Beloff wondered what the Director General of Fair Trading was doing in this business. As noble Lords know, the director general made cogent observations in the course of consultation on the Green Papers. Some of his observations were warmly welcomed by the Bar. His role would be to advise upon whether there were any anti-competitive aspects to the rules. It would be for the judges and the Lord Chancellor to decide. It would not be for him to decide, but his advice would be available. I cannot see that obtaining advice from whatever quarter is bad.
The other aspect which I should mention is that the White Paper on competition policy produced by the Government proposed that where rules have been approved by a Minister they will not be subject to being struck down under competition law. Therefore it is important that when a Minister gives his approval he is aware of the competition aspects, if any, of the proposals, because once he approves the rules they are not subject to the competition law and the competition authority. I believe that that is a very important aspect of these proposals which perhaps I had not sufficiently emphasised to date.
There were many other matters of which one might have spoken. My noble friend Lord Rippon of Hexham is anxious because the Bill gives too many powers. So far as concerns Part I, I think it is necessary to do that in order to match the transfers to the resources; in other words, to make sure that we transfer down what is resourced in the county 247 courts. I am sorry if I do not make myself plain —it must be the lateness of the hour —but perhaps I should proceed.
So far as conveyancing matters are concerned, the situation is that on the statute book already in the 1986 Act there are provisions for banks, building societies and the like to practise conveyancing. In this connection I have sought to consider that matter afresh and to indicate the general nature of the safeguards that might be involved. I am glad of the welcome given to these proposals by the noble Earl, Lord Shannon, and other noble Lords.
No doubt the precise nature of the safeguards will be a matter of continuing discussion. I believe that what I have proposed on the whole is a reasonable set of proposals, but I am certainly willing to consider any points upon them that may be made as we go forward with further consideration of this Bill.
§ Lord Mishcon
My Lords, perhaps the noble and learned Lord will forgive me for interrupting him, but he is dealing with the very important consideration of protection of the public. As I understand it, this Bill will not contain a detailed account of the safeguards. Those will come afterwards in regulations. Therefore, since this matter cannot be dealt with very easily at Committee or Report stage by way of amendments to the Bill, I ask the noble and learned Lord whether he will undertake that the safeguards pointed out in the White Paper as being necessary will not be watered down.
§ The Lord Chancellor
My Lords, it is certainly correct that as the Bill stands what we have proposed is that these safeguards should be the subject of regulation. Therefore I think that it would be right for us to bear in mind when considering the Bill what these provisions might be. I certainly think that what was proposed in the White Paper is a reasonable set of protections.
But there are many interests to be considered and I should like to take them fully into account before the regulations are made. The noble Lord can take it that there will be full consultation on the detail of these regulations, and for all I know it may well be that some of your Lordships may feel that some matters should be put into the Bill itself. Those are matters for consideration. I think that my noble friend Lord Rippon of Hexham might think it a wise thing to do. I do not know. However, for the time being I do not want to foreclose on these issues, as it were.
Some noble Lords have been highly critical of the Lord Chancellor and some have been appreciative of him. I have to do my best to accept both those views with equanimity. I can certainly assure your Lordships that I shall do my best to produce a system which will be effective and beneficial for those who succeed us for however long that system may last.
248 The noble Lord, Lord Irvine of Lairg, asked about the future. The noble Lord, Lord Hooson, asked me to reassure people about the future. My noble and learned friend Lord Oliver of Aylmerton asked for studies on what would happen in the future if these proposals were put into effect. I have sought to consider what reason would suggest is the right way forward. What are the conditions under which people should be allowed to appear in the courts? If we get those right, the future will be right. That is the way it appears to me.
We are building on existing institutions. I do not think that I can undertake to forecast the future. Those whom I have come across who have forecast any distance into the future with any degree of precision have not been entirely right. I do not put myself forward as a prophet. I believe that if the proposals are rational and well based, and if we have set up a decent machinery for handling them, the results are likely to be beneficial. The machinery is capable of evolutionary change. I believe that we shall be able to proceed in an evolutionary way and to judge the results to some extent as we go along.
My noble and learned friend Lord Rawlinson of Ewell was inclined to question whether what I had done would bring into question the very high office which I have the honour to hold. I take that remark extremely seriously because I am extremely conscious of the honour and responsibility that was put on me on being appointed to this office. I am not conscious through my proposals in the Bill or in any other way of doing anything which would bring that office into question.
§ The Lord Chancellor
My Lords, I agree of course that there are continuing debates about the office; and the more public funding that is done through the office the more there may be questions about it. I have certainly sought to discharge this office—bearing in mind that very important consideration —to the best of my ability. I certainly make it my business to keep fully in contact with Members of the other place, and to answer their queries and letters as fully as I can in order that they may feel that I am accountable to them although I do not have the privilege of being a Member of that place.
These matters can only be left to one's personal judgment and one's conscience. However, since my noble and learned friend made that remark I thought it right that I should reply to it. I commend the Bill to your Lordships.
§ On Question, Bill read a second time, and committed to a Committee of the Whole House.
§ House adjourned at six minutes before midnight.