§ 5.17 p.m.
§ Lord McCluskey rose to call attention to the Scottish Home and Health Department consultation paper The Legal Profession in Scotland, which was published in March 1989; and to move for Papers.
§ The noble and learned Lord said: My Lords, I trust that it will not be considered necessary for those of us who are serving judges to declare an interest before taking part in this debate. Our only interest, I am sure, is to offer advice to the House and to Ministers on the paths to be followed and the pitfalls to be avoided in order to secure the provision in Scotland of legal services that both meet the needs of the people and remain independent of government.1213
§ The Scottish Home and Health Department has published a consultation paper and I shall not endeavour to summarise its contents. It would be quite disingenuous of me to welcome it or to pretend that I regard it as timely or necessary. I share the widely held view that it would never have seen the light of day but for the fact that the Lord Chancellor chose to publish in January three Green Papers relating to legal services in England and Wales. A Scottish equivalent then became necessary, if only to take account of the distinctiveness of the Scottish legal system and of the enormous differences between professional organisations, structures, and practices north and south of the Border.
The Scottish paper has been accorded a rather quieter reception than the three England and Wales papers. There are three reasons for that. First, the paper recognises and even salutes the independence of Scots law and the distinctiveness of the organisation of the legal profession in Scotland. Secondly, it contains a generous statement by the Secretary of State that he has,
full confidence in the ability of members of the legal profession to continue to provide services of high quality".
Thirdly, the paper is seen to be what it claims to be; namely, a discussion document, a consultation paper. Nonetheless, I have to say that it suffers from serious and disturbing weaknesses. In the first place perhaps I may remind your Lordships of the opening sentence which reads:
This paper indicates where there needs to be reform of the ways in which legal services in Scotland may be delivered for the benefit of the general public".
§ So despite its character it suggests that in advance of consultation the Government have concluded that structural reforms are needed. Secondly, it makes the dangerous assumption that the administration of justice and those who provide professional legal services can be meaningfully and adequately discussed in the language and the jargon of consumerism and the DTI. It makes a wholly unwarrantable supposition that the tests that apply to the marketing of car tyres or hairdressing services can be validly employed to assess the quality and value of advocacy in the courts of justice.
§ Thirdly, it largely ignores the previous history of the discussion of these very issues, most notably in the proceedings and report of the Royal Commission on Legal Services in Scotland which was presented to Parliament nine years ago this month by a commission led by the noble Lord, Lord Hughes. I am happy to see that the noble Lord will speak in this debate.
The fourth point I wish to make about the weaknesses of the paper concerns paragraph 1.6, which states, regarding the free supply of services:
The onus is on those who support restrictions to justify them".
§ I do not shrink from that. However, if centuries of tradition and experience have fashioned a professional structure that deserves the description and the plaudits accorded to it in the introduction to this document, and which has earned the unanimous approval of the members of that Royal Commission, surely there is a heavy onus upon those who propose 1214 radical change to tell us, and to demonstrate to us, what they assert has gone wrong. What is wrong with the organisation and the operation of the legal profession? Where is the proof, or indeed the assertion, of the alleged need?
I now turn to the particular matters that are discussed in the paper.Chapter 2 purports to consider what are described as the issues. My dictionary defined an issue as a point in question between contending parties. I am not aware there is any issue on the matters which are discussed in Chapter 2 of the document. Those matters are set out as
the issues of education and training for entry to the profession, the setting of standards or rules of practice and conduct, and the handling of complaints about lawyers".
As regards education and training, I cannot begin to imagine what that has to do with the Secretary of State for Scotland or the officials in the Scottish Home and Health Department. I recognise, of course, that there is a public interest in ensuring that lawyers are properly trained. However, the paper nowhere suggests that today's lawyers are not properly trained. I refer your Lordships to paragraph 2.6, which states that, on the contrary:
In the past, standards of entry to the legal profession have been generally satisfactory".
However, the paper further states:
In an era of greater change, however, and with the prospect of specialisms being recognised, the question arises whether there should be a statutory power to enable the Secretary of State to prescribe standards to be met by the rules made by the professional bodies themselves about entry and training requirements".
§ Why on earth should the increasing complexity of the curriculum warrant interference by the Secretary of State? What competence do the officials in the Scottish Home and Health Department possess to advise a Secretary of State, particularly one who is not a lawyer, regarding the education and training of lawyers? If these anonymous officials are to supervise the Faculty of Advocates in Scotland and the Law Society of Scotland, who will be appointed to supervise the officials themselves?
§ If the paper contained the slightest hint that the Faculty of Advocates, the Law Society of Scotland, or the universities were falling down on the job, no doubt some government interference would be justified. But this document does not even hint at any such thing. Until these professional bodies are shown to be failing in this task, in my opinion the Government have no business to be interfering in professional education and training. I suggest these proposals are quite unnecessary.
§ Precisely the same point applies to matters of practice and conduct. Paragraphs 2.7 to 2.9 of the document discuss the present situation. Paragraph 2.10 leaps straight into proposals. There is no criticism of the present situation, simply a description of it followed by proposals. In my view the onus is upon the Secretary of State to justify the creation of some quango, or interference by anonymous officials, to regulate matters of this character which are perfectly well regulated by existing bodies. If the Secretary of State presented this argument before me in court, I should have to dismiss it as irrelevant.1215
§ On many of these matters the Lord President of the Court of Session is, at the present time, the final arbiter. I wish to ask the noble and learned Lord the Lord Advocate to say, when he replies, whether he is proposing that the Lord President's powers should be replaced and given to the Secretary of State.
§ I wish to say three things on the matter of education and training and this whole chapter. First, in my opinion it would be a wholly retrograde step for the Faculty of Advocates to replace its powerful and successful unwritten tradition of ethical behaviour with a code. To define the ethics of practice at the Bar is, I believe, quite impossible. It is an unnecessary and dangerous invitation to the less scrupulous to sail as close to the wind as the letter of the law allows them and to aim for a minimum compliance with the letter of the code.
§ Secondly, it is absurd to suppose that the Secretary of State could, even if he wanted to, prescribe in the field of conduct and practice meaningful parameters which would lead to improvement in the existing professional rules. Thirdly, no case is made out in the document for giving to the lay observer a power to override the judgment of the Dean of the Faculty of Advocates sitting in council. To give the lay observer power to require the payment of compensation by a lawyer would be a piece of constitutional nonsense, particularly if it were to oust the primary jurisdiction of the courts themselves in a matter in which they are particularly skilled. In the previous debate the noble Lord the Leader of the House said that the existing arrangements had worked well in the past, and we should not lightly consider making changes. I hope that philosophy will apply in relation to this matter too.
§ I turn to Chapter 3, which concerns the right to plead in court. In Chapter 15, the report of the Royal Commission makes reference to a great mass of arguments pertinent to this discussion. Alas, no mention is made in the discussion document of these arguments. They are not canvassed, never mind assessed. The arguments are too complex for me to deal with in a short speech. I shall just look at the broad context.
§ In the document the Secretary of State is wise enough to avoid suggesting that there is a monopoly in relation to the provision of advocacy services in the Supreme Court. He is wise enough not to suggest that the philosophy of the market demands a free-for-all in the High Court. There is no monopoly. Advocates in the Supreme Court are those persons who are admitted by the court itself to the public office of advocate and to membership of the College of Justice. The advocate is admitted to membership of the faculty on the same day that he is sworn in by the court as a member of the College of Justice. Any fit person who has the necessary legal and educational qualifications and who has undergone the necessary practical training will be admitted to the Faculty of Advocates and to the College of Justice as a pleader.
Thus the faculty has always welcomed into membership solicitors who have decided to devote their professional lives to the quite distinctive specialism of advocacy. It is very easy to cross over
in Scotland, and in recent years they have been flooding in in large numbers. What the consultation paper seems to propose is that some body, presumably a quango like the one proposed for England, will be appointed by Government Ministers to select a few solicitors who have,
demonstrated prescribed standards of competence",
to be allowed to plead in the Supreme Court. But to whom will they demonstrate those standards of competence? Who will prescribe the standards of competence? These questions are left, for the moment, unanswered.
§ I see these proposals as patronising and insulting to solicitors themselves and to the Law Society of Scotland. To the irrebuttable presumption that every member of the Faculty of Advocates is competent to plead, there will be added a rebuttable presumption that no solicitor is competent to plead. This invidious proposal is straight out of Alice Through the Looking Glass, because in Scotland the question is not one of competence at all. Many solicitors are extremely competent and I am sure would soon master the nuances of Supreme Court pleading.
§ The question, as the Royal Commission realised, is one of structure. The structure that experience, tradition and history have fashioned is one in which there are, on the one hand, independent advocates subject to the discipline of the Dean of the Faculty in Council. They are advocates specialising in advocacy itself and ultimately seeing themselves not as agents for lay clients but as members of the College of Justice with an overriding duty to the court; advocates who have minimum overheads, no partners, no conflict of loyalties, advocates whose services are available to all.
§ On the other hand, solicitors are agents for their clients. They hope to keep their clients in sickness and in health, through thick and through thin. They make their wills, they investigate their cases, they hold their hands from the start to the finish of litigation. They owe their loyalties to their clients, to their partners and to their staff. They handle their clients' money. Theirs is an equally high calling as that of advocacy in the Supreme Court, but it is a different calling from that of the specialist full-time advocate. The fact that there is some degree of functional overlap does not justify dismantling the structure, a structure which has served justice well.
§ I can understand that starting with the major premise that market forces must rule, one ends up with the conclusion that the two branches should be fused together. However, this document shies away from the logic of that particular proposal. It comes up instead with the constitutionally obnoxious idea that while rights of audience should continue to be restricted as they always have been new bureaucratic machinery should be created, presided over by a Minister of the Government, which would admit to practice in the Supreme Court a small number of solicitors. They would not be subject to the discipline of the Dean of the Faculty and would not be required to accept instructions on the cab-rank principle.
This proposed new dispensation achieves the worst of all worlds. It does not abolish restrictions;
it merely tinkers with the machinery for defining them. It does not promote competition on level playing fields; it distorts competition. Indeed, as the noble and learned Lord the Lord Chancellor recently said:
The Bar is the most competitive profession going".
Finally, the final sentence in Chapter 3.16 reads:
A particular point of principle is the need to ensure, in High Court or Court of Session cases, that those who plead in court should not have been involved in the investigation of the evidence".
§ That would effectively bar solicitors in Glasgow and other big cities who practise in the criminal court from practising in the High Court. Their principal service to their clients is to see them in the cells and to start investigating the case as soon as possible. Accordingly, the proposed extension of rights of audience for them is at best a mirage.
§ There are other matters that I should like to address but my time is at an end. I look forward to hearing your Lordships deal with matters which I have not myself dealt with. I look forward in particular to hearing the maiden speech of my noble and learned friend Lord Jauncey of Tullichettle and I thank your Lordships for attending to my words.
§ 5.34 p.m.
§ Lord Hughes
My Lords, we must all be grateful to the noble Lord, Lord McCluskey, for the powerful speech he made in introducing this short debate. His qualifications for taking part in such a debate are obvious, as he has just proved.
I should also like to say how much I look forward to the maiden speech of the noble and learned Lord, Lord Jauncey of Tullichettle. I have no doubt that when he speaks he will show that he is as interested in and as qualified to speak on the subject as the initiator of the debate. Perhaps I may add that this is probably the first time in the history of this Chamber that two residents of the village of Comrie have taken part in the same debate.
My own qualifications for speaking are perhaps not so obvious. I am not a lawyer. I am a doctor of laws of the University of St. Andrews, but that doctorate was awarded to me not because of my knowledge but as an honour—an honour which I value very highly. However, I have taken part in three inquiries into legal matters. I was a member of the working party which inquired into the future of civil juries in Scotland. I was a member of the working party which investigated the question of registration of title to land in Scotland.
That second working party reported in 1961. It was not until 1978 that legislation was brought into effect making it possible for land registration to start in Scotland. At that time it was indicated that it would be a gradual process and that it would be between 10 and 19 years before the process was completed. When I accepted the task of chairing the Royal Commission, which was the third time I had ventured into this difficult field and knowing that it might take a long time to reach our conclusions—we began 10 years ago in October, and it was nearly four years later, in May, when we presented our 1218 report—I was therefore under no illusion that the Government would rush into immediate action on our report.
I expected that, after the chairman had received his silver inkstand and the letter of appreciation for services rendered, a suitable pigeonhole would be found for the report and the best that could be hoped for was that when some civil servant in the Scottish Office had nothing better to do he would take it out, dust it off, and see whether it contained anything which would not cause Ministers undue trouble. All Ministers, in any government, recognise that there are no votes to be won or lost, except perhaps among lawyers, in legislating on law reform.
What is necessary in order for major law reform to take place, certainly in England and Wales, is a reforming Lord Chancellor, and a Lord Chancellor with sufficient clout in Cabinet to get his proposals a place in legislative timetables. We have had them from time to time. The present Lord Chancellor is the current example. We know his reforming zeal. It remains to be proved how strong is his clout in Cabinet.
Until the consultation paper was produced I thought that the Secretary of State had never heard of the Royal Commission on Legal Services in Scotland. However, there are a number of references in the paper which indicate that I was wrong in so thinking. In paragraph 3.13 of the Green Paper there is a reference to what the Royal Commission had to say on the cab rank principle. In paragraph 6.6 it mentions that we considered the question of conveyancing. Of course, action has been taken in a limited way. Our recommendations on the ability to consider divorce actions in the sheriff court have been implemented by legislation. Action has been taken on our proposals in connection with small debt courts.
I must say, however, that many of the recommendations of the Royal Commission related to action which should be taken by the Law Society and not to action which required either government administrative action or legislation. The record of the Law Society in dealing with the matters which we put to it is very much better than the record of the Scottish Office.
Turning to the introduction to the paper I feel that it is desirable to refer to what the noble and learned Lord, Lord McCluskey, said about consumerism. The introduction refers to consumers of legal services; later, the paper refers to customers or clients. I doubt whether a diet of lawyers or advocates would prove other than exceedingly indigestible. I therefore suggest that, if there is to be any legislation, the more acceptable legal reference to clients should at least be the one that distinguishes.
Perhaps I may now turn to more fundamental matters. With regard to the first section of paragraph 2.12, regarding proposals relating to organisation and standards, I would invite a reference to what the Royal Commission has to say on those matters. Nothing that the noble and learned Lord, Lord McCluskey, said in that respect conflicts in any way at all with what the Royal Commission found.
1219 I now turn to two other items—I must confine my comments to what time permits—the first of which is the question of rights of audience. There was no subject that came before the Royal Commission which occupied more of our time. The arguments that we heard for extending rights of audience to solicitors in the supreme courts were widely canvassed, but fairly finely divided. We had the exceptional experience that, although on all other matters, the Law Society had presented a single view to us, the council of the Law Society was itself so divided that it adopted the unusual measure of sending two groups of people to give oral evidence to us—those who advocated an extension of the rights of audience and those who opposed it. It was after hearing all those arguments at considerable length that the Royal Commission reached its conclusion.
In that connection, perhaps I may read what our report had to say. On page 229, paragraph 15.44 states:A considerable weight of legal opinion was, however, in favour of extending the rights of audience of solicitors to enable them to appear in the supreme courts. We had the unusual experience"—as I said—of the Law Society, on the latter issue, submitting a divided view in their evidence to us; indeed, when they gave oral evidence to us on this topic, they included representatives who argued strongly in favour of extended rights of audience for solicitors, and others who as strongly and sincerely argued that this would be a retrograde step and not in the interests of justice".On page 233, the report states:Those representatives of the Law Society who argued in favour of extended righs of audience conceded, as we understood it, that solicitors would not operate the cab rank principle. We are not surprised at this. The nature of solicitors' business might make it impractical for them to do so. We think, however, that competition in the supreme courts between the two branches of the profession, one of which could pick and choose its clients and the other of which could not, might lead to undesirable results".Further down the page, the report states:Finally, on this matter, we have considered the end result of extending rights of audience. It is impossible to predict what would happen with any confidence. It may be that very little use would be made of the right, in which case an alternative to the existing system would not be justified by any substantial results. It may be, on the other hand, that the right would be very widely used. If it were, the result would inevitably be some erosion and perhaps the eventual extinction of the Faculty of Advocates".In the end, we recommended that the rights of audience should not be extended. Since then, I have received a letter from the Law Society in which it touches on the cab rank principle and suggests that it may be possible for solicitors to adhere in some way to it. I shall be interested to hear in due course how that is possible. Certainly, 10 years ago, it was not envisaged by the Law Society that there was any way in which the cab rank principle could be applied by a solicitor.
§ Lord Hughes
My Lords, I beg the noble Lord's pardon; I still have two minutes.
The final subject on which I want to speak is conveyancing. In that matter, there are three options, to which the Secretary of State refers in his Green Paper. The Royal Commission had no hesitation in 1220 recommending the first option; namely, that the rights should be extended, but extended to other professional organisations whose standards would be of a kind that would enable confidence to be placed in them just as much as in lawyers.
We recommended extending the powers of the lay observer, but not in the way that is suggested in the document. I understand that the lay observer herself has stated that she does not consider that an extension of her powers in relation to compensation would be desirable.
I have spoken about the need for reforming Lord Chancellors to get legislation through in England and Wales. There have been a number in that category. I am not sure whether there has ever been a reforming Lord Advocate. Perhaps this will give the noble Lord who now occupies that position the opportunity of entering The Guinness Book of Records.
I conclude with two comments that have been made to me. One of my colleagues on the Royal Commission once quoted a Scottish judge as having said that a change for the better is a contradiction in terms. I mentioned that comment yesterday to the noble and learned Lord, Lord Hailsham of Saint Marylebone. He gave me an equally good example of a comment that had been made by a legal luminary: "Reform? Reform? Why all this talk of reform? Are things not bad enough already?".
§ 5.48 p.m.
§ Lord Grimond
My Lords, I thought that I should have to spend most of my 14 minutes making apologies, and that has turned out all too true. I must first make a humble apology to the noble Lord, Lord Hughes, for interrupting his speech, that being far from my intention. My main apology is that I believe that I am the only person who is attempting to speak in the debates on both the Green and the Yellow Papers. I am certainly the only person who has no qualifications whatsoever for doing so. I should like to congratulate the noble Lord, Lord McCluskey, who opened the debate and thank him for a most excellent exposition of his criticisms of the Yellow Paper. My last apology is for standing between the noble Lord, Lord Hughes, and the noble Lord, Lord Jauncey of Tullichettle, whom everyone is extremely anxious to hear.
My reason for speaking in the debate is, first, that I regard the administration of law in a country as of prime importance. It is just as important as the running of its parliament and more important than the running of its economic affairs. I only wish that underdeveloped countries would realise that, until they have a stable system of law, they have little chance of advance. Furthermore, the administration of justice is of particular importance to Scotland because we have no parliament and it is one of our three main institutions. It is an institution through which the character of Scotland is expressed and it is even more important in Scotland because of its outstanding position in that country.
The noble Lord, Lord McCluskey, pointed out certain differences between Scotland and England. I should like to point to a more general difference; namely, that our view of democracy in general and 1221 the law in particular is rather more homely than the English view. We treat our judges with respect. We admire most of them. But on the whole we have a more homely attitude toward them.
Perhaps I may illustrate that by a story that was told to me by Eric Linklater. On the opening day of the last war, as he was a reserve officer from the First World War, he put on his uniform and went down to the town of Kirkwall. He was delighted to hear one old wife say to another, "Look, yon's an officer", to which the other old wife replied, "Get away, yon's no an officer, yon's Eric Linklater". That story illustrates the truth that whatever office is held one remains the person one is. That is a very sound principle.
I believe that the discussion on these White Papers has been rather too rarefied for ordinary people who are desperately keen that reforms of the law should take place easily and be something that they can understand. For instance, there is a phrase that is commonly used whereby we are told of a "cab rank". There is very little resemblance between using a cab rank and the method of hiring an advocate or a barrister. Cabs look the same, charge the same price and you take the one in the front. That is in total contrast to the method of hiring advocates or barristers. If that idea were true, it would be a severe curtailment of competition and to my mind would not be a desirable way of engaging lawyers.
There is then the point about independence, which is very important. It is constantly stressed that the law is independent. I glanced at the Scotsman on Saturday and read about the noble and learned Lord the Lord Advocate cheering his head off about some no doubt offensive remarks that had been made by the Secretary of State about the Opposition. We all know that the senior lawyers of this country are intimately concerned with government, that the noble Lord the Lord Advocate can hardly fail to be made a judge and that the politics of law are closely intertwined. I think that there is a lot to be said for that system but those offices are certainly not independent of each other.
Then of what are they independent? They are not independent of prejudice. Like everyone else, judges have their prejudices and in some cases rather strong ones. They are independent in the sense that they are incorrupt and despite their natural prejudices and party allegiances I believe that they manage to imbue the law as a whole with a certain impartiality. But for the ordinary people it is rather odd to hear the importance of independence being stressed in connection with our present system of law while the danger of altering it is also stressed.
Another word that occurs frequently is "competition". I do not believe that it is possible or desirable to have competition in the law in the ordinary sense. Choosing a lawyer is quite different from deciding whether one will shop at Sainsbury's or Marks & Spencer's. As I said in a previous debate, when it comes to consumers nobody in this country has "consumed" a lawyer for a very long time. So, in this context, let us get rid of that word too.
There is considerable dissatisfaction with the law and that is much more readily recognised in Scotland 1222 than it is in England. In general the reaction in Scotland to the papers produced by the noble and learned Lord the Lord Chancellor and the Secretary of State has been much more temperate. The Dean of the Faculty of Advocates says:I see this [review] as a means of preserving the Scottish identity. I had hoped that the review would remove some of the public disquiet which exists about the legal profession by explaining why rules which may seem outdated are still necessary".That seems to me to be a very reasonable approach.
If one looks at certain cases that have received some publicity—and all of them, I may say, have occurred in England—such as the Wright case, the case of Mr. Saunders and the cases concerning the expense and the costs to which those who defended themselves against accusations of shoplifting have been put, it is indeed no wonder that there has been a certain amount of bewilderment about the law. It is difficult to argue that nothing needs to be done. Certainly it is not argued in Scotland.
As I said before, to my mind the root of the matter is whether we continue with the adversarial system. It seems to me that, throughout many of the papers and the comments that we have been discussing, the law is treated as a battle in which one hires a gladiator and a contest takes place. Naturally the stronger will win—that is to say, the cleverer or abler gladiator. Surely that is not the beginning and end of the law. Surely the first purpose of the law is to find out the truth or the facts of the matter and then for the law to be applied correctly. That may be called an inquisitorial system. I think it is high time that we looked at it. So long as we go on with the gladiatorial system, many of the obvious faults of the law, and its expense in particular, seem to me to be incurable.
I am told again by the Dean of the Faculty of Advocates that Scotland is moving slightly in that direction. In a letter of 9th May he writes:The new procedures which the Court of Session has developed recently for handling commercial actions and judicial review are making the judges much more involved in the timing and progress or the preparation of a case for trial".That seems to me to be wholly desirable. I hope that when the debate is wound up something may be said about that point and also about judicial review, which is an extremely important development. I am not at all clear how far it can be carried or whether it was intended by the Government that it should be carried further. It seems to me to meet many of the objections that are at present levelled against our laws in both Scotland and England.
I should say that the Dean of Faculty also mentions something that I find very interesting; namely, that one of the objections to the inquisitorial system is that it would involve a very large extra expense on the judicial side of the law. I should like to know whether that is true and if so whether it is really an argument against such a system, because surely we shall have additional expense anyway. We must improve and extend legal aid. I should have thought that we should also have to extend law centres and so forth. It seems to me that additional expense somewhere in the dual system is essential and it might be better to do it by establishing an inquisitorial system than by giving indefinitely higher fees to advocates and solicitors.
1223 Having said that, so long as the present system. exists the main criticisms of it are that it is too expensive and too uncertain and that there is much too much law in which people become entangled. The other day I went to see my solicitor about the poll tax and the poor man said, "But I haven't got around to the poll tax. It's no good asking me about that. It only came into force this year. I am trying to grapple with the mass of legislation that has been pouring out for years." That is a matter for Parliament and Parliament must attend to it. I beg the judges to make some protest—and I believe that the judges at the Court of Session have already done so—about the amount of legislation and its drafting, including its unintelligibility. It is meant to be intelligible to ordinary people; but it is not even intelligible to lawyers at present.
It is said that law in Scotland is or was cheaper. It has been much cheaper and that is a very good point in its favour. I understand that that situation arises from three procedures. First of all there is the library system—the use of the advocates' library in place of chambers. I believe that the English are now following that course and I certainly think that it should be encouraged. Secondly, there is the much wider distribution of the lower courts. I do not know how that compares now but time was when the Sheriff Court had a far wider jurisdiction than did the county court in England. Thirdly, it is apparently said that Scottish lawyers take less. I do not know whether that is true but it is so alleged. Not long ago I had occasion to ask for an opinion from a Scottish lawyer and from an English lawyer for an institution with which I work. The Scottish lawyer charged exactly one-third of the fee of the English lawyer and got it right. Whether that is good business or not, I do not know.
The test of these papers and the Yellow Paper is whether their proposals will make the law cheaper. They speak of access to the law, but will it be cheaper and easier to understand? That is what access means. I am in favour of widening the right to appear in courts. I am strongly in favour of encouraging people to appear in their own cases. The courts in England are heavily prejudiced against anyone who appears in person. They are prejudiced from the usher up to the judge who catches them out and says, "This chap does not understand anything about the matter". If one wants decent, cheap law one has to make it possible for ordinary people to appear and argue their case. Secondly it may well be that we should exclude lawyers from certain types of inquiries because they waste time; ordinary people should be able to appear. I am in favour of widening the right of appearance in court.
I am in two minds about partnerships. We must recognise what the law means to most people. To many people in small towns in Scotland and in the North the law means the local firm of solicitors. It does not necessarily mean going to court, but receiving advice. It is an old Scottish tradition that the local man of law is an all-round adviser. Today that is difficult because he has to advise about stocks and shares, conveyancing and goodness knows what else. There is something to be said for having 1224 multi-disciplinary practices, and the ability to take on an advocate, an accountant and so forth.
I am not sure about partnerships among advocates. There seem to be arguments both ways. As there are rather few advocates, if they are involved in partnerships, half of them will be in baulk when one wishes to ask them about a case. We should have more information from the Government on what they believe would be the result of advocate partnerships.
I am all for having judges appointed from among solicitors and so forth, as indeed they can be now. The pool of judges is probably too narrow. The judges may not have enough experience to sit on the wide range of cases that comes before them. It may well be right to have some commission to examine fees. However, when it comes to entrusting the general running of the professions to the Secretary of State, then I share all of the natural suspicions of the noble and learned Lord, Lord McCluskey. I refer again to the paragraph in the Yellow Paper to which the noble and learned Lord referred. Paragraph 2.10 states that the Secretary of State should have a power. I would much rather that such power were left to the Lord President and that it continue at least until the Lord President breaks down and is proved to be incompetent to run the professon.
I believe that Scotland comes out of the whole situation much better than England. That is clear from the Yellow Paper. I believe that there are certain things that could be done in Scotland. The main objective is to make law cheaper.
§ 6.3 p.m.
§ Lord Jauncey of Tullichettle
My Lords, I rise with humility and diffidence to speak for the first time in a debate in your Lordships' House. I do it more so in the presence of my noble and learned friend Lord McCluskey because the last time I had to address a committee of your Lordships' House as counsel, my noble and learned friend was on the other side. Such was my argument that he was never called upon to answer. I hope that I shall do better today.
I shall try to be non-controversial, which I understand is the custom of your Lordships' House for a maiden speech. Perhaps I may start by congratulating the Secretary of State on his clear recognition of the importance of Scots law and the Scottish legal system in the identity of Scotland. His confidence in the ability of the legal profession in Scotland to continue to provide services of a high standard is very welcome, in particular in these days when lawyer bashing is a popular and possibly even vote-catching sport.
There are three matters on which I should like to speak. First, on competition, as I understand the Green Paper it is proposed that there will be introduced legislation comparable to that of Article 85 of the Treaty of Rome to deal with professional practices that are thought to be restrictive. Such practices under the article can be exempted,if they contribute to improving the production or distribution of goods or to promoting technical or economic progress.1225 It is not difficult to see that Article 85 is directed to matters of trade. I do not doubt that the Secretary of State—who is himself a distinguished Member of the Faculty of Advocates—fully realises that there is all the difference in the world between supplying bags or containers of cement and the provision of legal or other professional services. What is of vital importance is that the new competition authority, when it is ultimately spawned, should be similarly aware of this important distinction.
An individual who supplies professional services is normally permitted to do so only after he has undergone a long period of academic training followed or accompanied by a period of practical training, and after he has been admitted to a professional body with strict standards and rules. The supplier of commodities is subject to no such restrictions. I would suggest that the prime interest of the suppliers of goods is to sell the maximum amount for the highest price which his chosen market will stand. In achieving this objective of course he must have regard to the quality required of that market.
However, the prime duty of the supplier of professional advice is to give the best advice to his client. That advice may very well be the worst advice from his point of view. Clients of lawyers are not always reasonable and amenable persons. They are sometimes what we call in Scotland thrawn, and there will be clients who are determined to take a particular course of action. Their legal adviser will do his best to dissuade them and will perhaps succeed at the end of the day. By doing so the adviser deprives himself of the fees and the work that he would otherwise have received if he had followed the client's advice. However, lawyers do not only owe a duty to their clients. They owe a duty to the court. As my noble and learned friend has already said, an advocate is an officer of the court. A solicitor who instructs him in a litigation owes a duty to the court with regard to his work. A solicitor who appears as an advocate in the sheriff court owes a similar duty to the court.
Perhaps I may quote a dictum of the celebrated 19th century Lord President, Lord Ingells. He said:An advocate in undertaking the conduct of a cause in this court enters into no contract with his client, but takes on himself an office in the performance of which he owes a duty, not to his client alone, but also the court, to the members of his own profession, and to the public".It is of great importance to the administration of justice that there should exist mutual trust between legal advisers acting on both sides, between advocates, inter se (and I use the word "advocates" in a generic sense); and, equally, that there should be mutual trust between the advocates (again in the generic sense) and the Bench. If there is no such trust, proceedings are slowed down and nobody gains.
These matters are miles removed from the buying and selling of cement. But they are matters of which I suggest any competition authority should be fully aware before it seeks to innovate upon or abolish any professional rules that have been evolved by either branch of the legal profession.
On the question of competition, perhaps I may conclude by stating what may be thought to be the 1226 obvious. It is that competition per se is of no help. Competition must be competition inter pares. That is to say, competition is effective only if it takes place between persons similarly qualified and with comparable skills. The criminal lawyer does not compete with the commercial lawyer. The new solicitor does not compete with the senior partner. To be effective, competition must be between persons of comparable standing. I would not necessarily say that, but there is a suggestion in paragraph 5.23 of the Yellow Paper which suggests that this elementary point has been overlooked.
I shall say a very brief word on partnership of advocates. Scotland is a small country. The Bar is small. If advocates were to go into partnership, especially advocates with specialised knowledge in the more complex fields of law, inevitably the public would be deprived of choice. Four advocates with detailed knowledge of commercial law may form a partnership. If somebody seeks to sue a client of one of them, his choice of potential counsel is diminished by four at once because nobody in the partnership could act for him.
Finally, on conveyancing, the Secretary of State recognises the special place that the Scottish solicitor occupies in the life of Scotland. It would be very unfortunate if, by opening the conveyancing door very wide indeed, the number of country solicitors practising independently on their own were to be reduced because it was no longer possible for them to continue. They perform an extremely valuable service and if their services were no longer available to the public in country districts that could not but be a public disadvantage.
I have been informed by the Law Society of Scotland that there have been two rather disturbing recent developments in Scotland in relation to conveyancing, which may give an example of what might happen if conveyancing were to be available to all kinds of institutions. There is a phenomenon known, I am told, as "churning" of endowment policies. To put the matter briefly, this involves a lending institution informing a potential borrower who wishes to purchase a house that his existing endowment policy is unacceptable to the lender of the money and it is therefore necessary for him to surrender the policy and to take out another policy with a life company nominated by the lender.
In many cases the policy which the borrower presently holds is a policy issued by a first-class Scottish or British life company and the purpose of the exercise is clear. It is to enable the lending institution to obtain the very large opening commission which is available on life policies. That would seem to me to be a most unfortunate state of affairs. I believe it is fair to say that the Law Society takes the view that the persons operating this scheme, if I may so call it, are not the building societies, which take a responsible attitude, but are primarily estate agents and mortgage brokers who are not subject to the same strict rules as solicitors.
The other recent phenomenon is that of blackmail selling, where a potential purchaser goes to an estate agent and is told that unless he or she is prepared to effect his endowment policy and his house insurance 1227 through that estate agent—who is acting for the seller, incidentally—his offer is unlikely to be accepted. That kind of situation could not happen in an offer made to a solicitor because it would be contrary to solicitors' rules to be acting or demanding fees: in effect, to be advising both parties to the transaction.
I cut this short, but these are the kinds of matters which could arise and increase if conveyancing is handed over to persons who are not subject to the strict rules of professonal conduct which are imposed by the Law Society on solicitors. I suggest that these matters require to be considered very seriously by the Secretary of State and the competition authority before the door is opened very wide. Whoever does conveyancing, for the protection of the client it must be subject to very strict rules..
The noble Lord, Lord Grimond, raised the matter of judicial review. In my personal experience when I was a judge at the Court of Session, it produced a satisfying result. It was one of the most satisfying things to preside over because one was able to put right very small wrongs for people who had been wronged by administrative decisions involving not a great deal of money; but matters were able to be put right effectively. It is a very effective and desirable procedure.
Before I conclude, I thank the noble Lord, Lord Hughes, for his kind words in advance of my speech. I should have said that at the beginning. I hope his words will be no less kind at the end of my speech. I conclude by expressing the hope that the Secretary of State and those charged with implementing competition policy will take account of what has been said in the debate and will find it helpful and constructive.
§ 6.16 p.m.
§ Lord Wilson of Langside
My Lords, I believe that it was a character created by Oscar Wilde—if it was not, it certainly sounds like one—who opened an address to a gathering of lawyers by observing that this was the kind of occasion upon which that to speak his mind was more than a duty; it was a pleasure. It is in that spirit that I take great pleasure in expressing to the noble and learned Lord, Lord Jauncey of Tullichettle, (I know how to pronounce it) the congratulations of the House on his maiden speech. It is a particularly difficult matter for any judge—as your Lordships will have gathered during the discussions that we have had on the Lord Chancellor's Green Papers and this current paper from the Secretary of State for Scotland—to express himself in this context uncontroversially, yet there is no doubt that he succeeded beyond measure. He has had a distinguished career in the law, and before that, and we look forward with great pleasure to hearing him on many future occasions.
For the avoidance of misunderstanding, I should say that I do not disagree with everything that the noble and learned Lord, Lord McCluskey, said in his rather polemical introduction to his Motion. I welcome the presentation of this consultation paper, 1228 as I welcomed the introduction of the Lord Chancellor's three Green Papers which we discussed in the House on Friday, 7th April, not, I hasten to add, because I approve of all or indeed any great number of the proposals in this consultation paper. I welcome the paper because of the opportunity that it presents for a review of what I might call, if your Lordships will forgive the vulgarism, the legal set-up in our country. I am glad that the Government recognise, as do many in the profession and a great many more in the real world outside, that the time is quite ripe for such a review.
Some of the English critics have complained that it is no time at all since we had Royal Commissions and a variety of other committees looking at different aspects of the business. Also that we need a breathing space for consolidation and not another upheaval which may be produced by the sweeping suggestions in the various papers.
I believe that the kind of issues which the public find most worrying when they become involved with legal problems—whether in or out of the courts; whether in civil or criminal courts—lend themselves rather better to the "action this day" approach than to the more ponderous approach of the Royal Commission.
I propose to touch on scarcely any of the detail in the paper. I was astonished to realise that it is more than 30 years since I practised at the Scottish Bar and more than 12 years since I worked in the legal field. I should rather not say anything than risk being told by the noble and learned Lord, Lord McCluskey, or anyone else, that I do not know what I am talking about.
I should like to make one or two general points. First, I had thought to say that it was altogether to the credit of the Scottish legal profession that it had reacted in a less frenzied way to the Secretary of State's paper than had its English counterpart to the Lord Chancellor's Green Papers. I have been assured on good authority that the fact that the President of the Law Society of Scotland is a high official in the Scottish Conservative Party is purely coincidental and did not contribute to that less frenzied approach.
I was sorry that I was unable to attend the debate on the Green Papers. But I saw the experts who appeard on the "box" and read Hansard and the press reports. My instant reaction was to think myself accursed that I was not there. On reflection I believe that it was just as well, because I should have been tempted into rudeness towards some English judges. While both in public and private I have occasionally been rude to judges, it is not a course likely to commend itself to your Lordships' House.
However, I should like to add a word for the Grantham grocers who received a mention during the debate. I have never known any Grantham grocers but I have known Glasgow grocers, butchers and a baker or two. For many years, until recently, in the village where I live there was a blacksmith who had some fame as a candlestick maker. Frankly, I should be ready to back their judgment against that of a not insignificant number of lawyers whom I have known.
1229 I had thought to pay tribute to the Scottish lawyers for being more temperate in their reactions to the Government's papers than were their English brethren. But during the weekend I read the centre page article in the Mail on Sunday, no less. The author was the noble and learned Lord, Lord McCluskey. The headlines were:Shake-up that puts justice in deep peril. Power will go to the Civil Service".It so happens that I agree emphatically with his conclusion and the penultimate paragraph in so far as it postulates than any move towards the fusion of the two branches of the legal profession will be a serious mistake. The whole tenor of his presentation of the issues made me feel that really the judges and the profession must come to terms with the fact that not everyone loves them and thinks that they are wonderful.
That has been so before and since. Noble Lords will remember that centuries ago Dick the butcher said to Jack Cade on Blackheath, "The first thing we do, let's kill all the lawyers". Jack Cade's response was, "Nay, that I mean to do". Hamlet mentioned "the law's delay" in his enumeration of a variety of other "whips and scorns of time". A much bitter satire has been directed at the profession and the judges over the centuries. Bardell v. Pickwick and Jarndyce v. Jarndyce will be remembered for years after many other cases have been forgotten.
I believe that the outcome of the consultation on these matters would have been much more fruitful if some important lawyers had been more mindful of all that instead of behaving, as I saw it, as a kind of Panglossian collective, with everyone cavorting happily around in the best of all possible worlds. For though we are not in the "near crisis situation" in the courts which Chief Justice Warren told the noble and learned Lord, Lord McCluskey, they faced in the USA, there are some darkish corners of the field worth looking into, and that is for the Government to do.
The only point of detail on which I should touch is Chapter 5, under the heading, "Instructing an Advocate". Paragraphs 5.7 to 5.11 recommend that members of the advocates branch of the profession should be entitled, in appropriate circumstances, to accept instructions direct from the lay client without the intervention of an instructing solicitor. I would commend that in principle without reservation. In the circumstances envisaged that would save time and money—and what is wrong with that?
Obviously in the more complex litigation or criminal prosecution necessitating detailed investigation of evidence and so forth, there would be no room for dispensing with a solicitor. I should have thought that there would be quite a range of circumstances in which it would be of great advantage to the client and in the public interest. For example, why should a person wishing to plead guilty to a criminal offence not go direct to an advocate to instruct him to present a plea in mitigation, whether in Scotland in the High Court, the sheriff court or the district court?
1230 In the paper, as in the Green Papers, something is said about the necessity for some provision to govern such a practice. I hope that it will not be unduly bureaucratic.
Beyond that I would say only that I am sceptical as to the extent for the good which will accrue to the public from the proposals. I regret that they do not do more to strike at the law's delay and expense, because those are the matters which trouble the public most. However, the Secretary of State will no doubt exercise his judgment on the representations he has, as will no doubt the Lord Chancellor. I wish them both well in the outcome.
§ 6.30 p.m.
The Earl of Balfour
My Lords, I have much enjoyed the debate so far. I rise to take part in it on two basic points. The first is a case where a person in Scotland must appoint a lawyer—that is, and forgive me for quoting a personal case, where I had to appoint a solicitor to act as curator bonis for my wife and to look after her affairs.
I am glad to have an opportunity to raise this. My wife and I have always believed in being separately legally represented. When I asked her lawyer to take on the position as curator bonis, I had no idea what a difficult task I was setting him, because every single penny of the accounts has to be vetted by no less a person than the accountant to the Court of Session. The accountant to the Court of Session directs that the end of the financial year shall be July, although my wife was taken into care on 31st January. I can understand that because the accountant has many duties to perform.
My wife had some land property which was subsequently sold after I had a meeting with the accountant to the court, and her solicitor was also present. Obviously, when one starts to dispose of land and matters of that sort, a solicitor can be involved in quite a number of expenses. The solicitor argued with the accountant to the Court of Session on the expenses that were involved, which meant that he was not paid anything for about 18 months after the event took place.
Perhaps I am old fashioned, but having asked the solicitor to take on this job on behalf of my wife, I felt that I was dealing in the same way as I would with any other tradesman. Forgive me for using that expression. I thought it would be a net cash monthly account, but it is anything but.
The other point is that the accountant of the Court of Session decided that my wife's affairs should be dealt with by that very old and dreadful means of bookkeeping: gross charge and discharge. I believe that it is the worst type of bookkeeping that there could be. It is almost impossible to separate income from capital; it is very long-winded and very hard to follow. I do not know whether my noble and learned friend Lord Fraser can do anything about that, but I believe that it is being unfair to the profession for it to be tied up in quite the way it is.
Another complaint which I hear from a number of friends, some of them quite young, who are in the legal profession in Scotland is that they are having to wait months and months before they are paid if 1231 legal aid fees are involved. They are usually young chaps working very hard, but very few of us have that much capital behind us, and I think that is very unfair.
Otherwise, I should like to say that I think that the Government should take great care before altering the existing court system and legal profession in Scotland. I am quite sure that the Law Society, on the one hand, and the Faculty of Advocates, on the other, should be perfectly capable of getting together and deciding what alterations, if any, need to be made. If anything else needs to be borne in mind, I believe that the Government should bear in mind the recommendations—preferably the firm recommendations—put forward in the Royal Commission report. If any other body of people should be consulted, I should like some consultation to take place with the sheriff principals.
One matter has come out very clearly to me today in the Government's idea of seeking competition; that is, that I beg my noble friends who are in government to make certain that, in introducing any form of competition, we are making a competition of comparable standards, as has already been said.
Lastly, perhaps I may say—and I know that the word "devils" is used here, but I use it in the ordinary sense—that I would much rather deal with the devil I know than one I do not know. As I look at the legal systems of other countries, I am awfully glad that I live in Scotland. I believe that it has by far the best legal system that I have come across anywhere, and I hope that that will be borne in mind.
§ 6.37 p.m.
§ Lord Morton of Shuna
My Lords, I agree with the noble Earl, Lord Balfour, that the rules about looking after people under a disability perhaps need to be looked at. However, as he will appreciate, it is essential, and it is the court's main job in making these rules, that the assets of the person disabled will be properly looked after.
In this debate the paper which the Government have produced surely sets the right standard by saying that—whichever word we prefer—the consumer or the public should have the widest possible choice consistent with the efficient administration of justice from among legal advisers of integrity and the right competence for the job in hand. That is admirable. However, from the time of Dickens on, as the noble Lord, Lord Grimond, said, the difficulty has been that people cannot afford the law. That difficulty has been growing worse and worse over the years. Now, unless one comes within the very strict legal aid rules, only the very rich or those insured can afford to litigate. Most people cannot afford to use the law to resolve their disputes. They are denied legal services and justice. In that sense, the administration of justice is not functioning properly.
However, there is no hint anywhere in this discussion paper about how that problem, which is quite clearly the major problem facing the provision of legal services in Scotland and possibly also in England and Wales, is being faced at all.
1232 Surely the question should be, if we are to change, are we affecting the administration of justice to make it worse? If the answer is, "No, we are not", is what is proposed making it cheaper, more convenient and quicker to give the general public—which I suggest is a better description than "consumer"—proper access to the legal profession?
The existence of the guarantee fund and compulsory insurance for both advocates and solicitors means that anyone who has the service of a lawyer in Scotland is protected against negligence and fraud. That is a very important safeguard, and if anyone else is to be asked to provide legal services, it is essential that they provide the same safeguards.
This discussion paper suggests that the lay observer should be awarding compensation. All I need say about that is that it is a ridiculously impractical way of dealing with complaints against lawyers. There is at the moment, as the discussion paper does not appear to recognise, a right for anybody who has had a legal service of any sort and who complains about the cost to go to the Auditor of Court. It does not matter whether it is court business or non-contentious business; the court official—it is odd that the Secretary of State does not seem to know of his existence, because he appoints him—fixes the reasonable fee. Is that sort of provision to be built in if anyone else is to provide legal services? Will the provision of some sort of quango of lawyers, looking at other lawyers' fees, as proposed in Chapter 7, be cheaper, easier and more fair? Surely those are questions that we should be addressing.
The noble Lord, Lord Grimond, also dealt with the question of multi-disciplinary partnerships. On that issue, it is odd that the discussion paper does not consider the effect on them of the Common Market. What clearly we will have in the future is partnerships between solicitors in Scotland and lawyers in other countries in the Common Market, and the one thing that lawyers in other countries will not have is partnerships involving others who are not lawyers. Apparently that has not even been considered. No doubt the noble and learned Lord the Lord Advocate will say that I am wrong, and I may well be, but the effect of the Common Market on legal services does not appear to be mentioned in the discussion paper.
The question of advocates going into partnership is easy. Clearly it would reduce the choice available to the public and would be financially advantageous to advocates. It would be highly deleterious to the administration of justice. The way that the Faculty of Advocates works, with its library, its consultation rooms and its combined fee collection service, means that it is probably operating more cheaply than any other group which is providing joint services. It does not make any sense to suggest that there is a need for partnerships in order to provide other services. That can be met in all sorts of other ways.
The paper proposes that solicitors should have a right of audience in the Court of Session and in the High Court. I practised for 11 years as a solicitor. I then came to the Bar and practised for rather longer there. All I need say at this stage is that I believe the 1233 proposal is totally and utterly impractical for the reasons given by the Royal Commission. The consultation paper gets it right in saying at paragraph 3.16:A…point of principle is the need to ensure, in High Court or Court or Session cases, that those who plead in court should not have been involved in the investigation".A solicitor cannot do that. There is no point, as it is totally impractical to appear in court and have nothing to do with the investigation. With the way that we work in Scotland, one might as well do the six months, which is all that is involved in becoming an advocate, and specialise in pleading in court, which is really all that an advocate does.
There is one problem on the rights of audience that I wish to raise specifically with the noble and learned Lord the Lord Advocate. I refer to the position of advocate deputes in the Crown Prosecution Service, if I may so put it. They are unique to the Scottish legal system, and the Crown Prosecution Service in England and Wales has nothing similar. They are advocates of experience, chosen by the Lord Advocate of the day, not only to conduct prosecutions in court but to read every case which a procurator fiscal considers should go to a jury in order to decide whether the evidence justifies such action and what is to happen.
I had the privilege of serving four Lord Advocates. One is the present noble and learned Lord the Lord Chancellor and another the noble and learned Lord, Lord Wilson of Langside. It is very important that the job of advocate depute remains on a part-time basis and on the basis that the holders do it only for so long and then return to private practice. If one has a system whereby there are full-time advocate deputes, or, as the noble and learned Lord the Lord Advocate is reported to have suggested, one promotes procurators fiscal to be advocate deputes, it would be disastrous because we would not be getting a detached view from people with wider experience than only prosecution, which in my view is the real advantage of the advocate depute system.
The noble and learned Lord, Lord Jauncey, has shown the House that those of us who had the pleasure of appearing before him understood that to be a pleasure, and I hope that your Lordships will often have the pleasure of hearing him. He dealt with the question of house selling. These are difficulties which appear to have arisen because of the rules brought in by the Financial Services Act. Now the banks have their own private insurance companies so that they do not have to give advice. Building societies have special links and own their own estate agents. This is perhaps not a matter purely for the legal profession but it certainly needs to be looked at because the present situation is a total disgrace.
The obvious necessity is that there should be rules abolishing any idea of someone acting both for the vendor and the purchaser of a house, albeit insisting on the purchaser being tied to particular insurance policies. The other aspect also touched upon is the necessity to provide legal services in a country with as thin a population as there is in some parts of Scotland. If conveyancing is removed from solicitors there will be many small towns which will not thereafter have solicitors, not because conveyancing 1234 is financing the business but because there is just not enough business if conveyancing is taken away. It is part of the administration of justice, I suggest, that legal services should be available physically as well as from the point of view of cost. If one has to travel, say, from Wick or Thurso to Inverness to obtain legal advice, it will cut the number of times that anyone would consider making the journey.
The other aspect as regards legal services is the fixing of fees in legal aid cases by the Secretary of State. It is necessary that we do not develop two standards. I have never understood this situation: when I was a counsel and I was in a legal aid case appearing against the Secretary of State, he fixed a fee for my appearance which was roughly 60 per cent. of the fee that he was prepared to pay me if he instructed me, in precisely the same case. That does not seem to be the theory of the free market as I have understood it. Perhaps I have not understood it very well. There does not seem to be a level playing field. It is dangerous if we are to have differing standards because the Secretary of State fixed fees too low.
There is also a very important constitutional issue raised in this paper; that is, whether the Secretary of State should have anything at all to do with the regulation of legal services which are part of the administraton of justice. At the moment the regulation of legal services depends on the courts; solicitors are admitted by the courts and the Lord President passes or approves any rule from the Law Society before it comes into force. He also has an extraordinarily powerful influence on the Faculty of Advocates. Has he failed in his job? Why is the Secretary of State coming into it? If one goes back to 1688–89, one of the complaints that led to the revolution was the allegation that James VII—for the benefit of those who are English, that is understood to be James II—interfered too much in the administration of justice. It is wrong for the Secretary of State to be making these rules. They should be made by the judiciary and the President of the Court of Session. The primary rules are matters for the Houses of Parliament, but the Secretary of State should keep clean out of it.
§ 6.52 p.m.
My Lords, I know that I am not alone in being very grateful to the noble and learned Lord, Lord McCluskey, for bringing our attention to this important Yellow Paper. In his speech the noble Lord, Lord Hughes, suggested an absence of qualification for speaking in this debate. Those of us who heard what he said rapidly came to the conclusion that he was manifestly well qualified to speak. The noble Lord, Lord Grimond, suggested that his lack of qualification did not stop him speaking in the debate on the Green Papers. I am ashamed to say that he is not alone because I too spoke in that debate. It is an interesting irony that there happened to be only two non-lawyers who had the effrontery to contribute to both debates.
I agree very much with the noble Lord, Lord Wilson of Langside, in welcoming the rather more temperate response to this Scottish Office paper than 1235 the one accorded its brother south of the Border. During the long day's debate that took place on Friday, 7th May, I formed the view that a great number of the legal profession in England and Wales were under the impression that my noble and learned friend was going to impose on their profession the same standards of behaviour and the same way of life as that of the patron saint of lawyers, advocates, canon lawyers, judges and notaries, and indeed of abandoned children and orphans; namely, Saint Ivo of Kermartin.
According to a reference book on this subject:He wore a hair shirt, abstained from meat and wine, fasted during Advent and Lent (as well as at other times) on bread and water, and took his rest—which was always short—lying on a straw mat with a book or a stone by way of a pillow".There is far worse to come.He always strove if possible to reconcile people who were at enmity, and to induce them to settle their quarrels out of court. In this manner he prevented many of those who came to him from embarking on costly and unnecessary lawsuits".I do not believe that that is the intention of my noble and learned friend the Lord Chancellor, and still less that of the Scottish Office.
My qualifications for speaking in this debate are hardly adequate. I have a nodding acquaintanceship with a few Scots lawyers all of whom are quite brilliant and utterly delightful. The fact that my mother is Scottish on both sides of her family is hardly qualification enough. But that has never stopped me speaking before on a subject on which I am not qualified to speak, and I do not see why I should stop now.
I wish to raise one point as regards the Yellow Paper in so far as it should impinge on the legal system in England and Wales. I refer to the part concerning legal education and training. Paragraph 2.5 states very clearly in three short sentences what the position is as regards training in Scotland. If the officials of the Scottish Office ever consult with the Lord Chancellor's department I believe very strongly that they should do everything possible in their power to persuade that department to look closely at this point as it applies in England and Wales. Paragraph 2.5 states:The common core of training for all lawyers in Scotland is beneficial for a number of reasons. It requires entrants to study a broad range of subjects before becoming committed to one or other branch of the profession and brings all would-be practitioners into contact with the day to day work of a solicitor's office, whether or not they will later choose to further their careers there, or in the courts. The diploma course requires all trainees to reach a certain standard in civil and criminal court practice. It is only after obtaining the diploma and spending some time in the solicitor's office [that is normally at least two years] that the paths of the solicitor and advocate diverge significantly".I cannot think of one single change in the practice of the profession in England and Wales that could do more good than for advocates to spend at least some years in the solicitors profession where they can see the working of the law at ground level, so to speak. It is tremendously puzzling to the layman who is under the impression that there is one body of law but that there is a totally different way of training lawyers and solicitors from the professional standpoint. I believe that this point is worth looking at. I congratulate the authors of the report. I have 1236 read the whole of it very carefully. The fact that I understood it so well is a tribute to the clarity of its writing.
§ 6.59 p.m.
§ Lord Macaulay of Bragar
My Lords, I wish to put on record our thanks from this side of the House to the noble and learned Lord, Lord McCluskey, for making possible what has been an interesting and informative debate. Likewise, it was a particular pleasure to have a powerful contribution from the noble and learned Lord, Lord Jauncey of Tullichettle, who spoke very persuasively in a distinguished maiden speech. He reminded your Lordships' House that professionalism is at the core of an efficient legal service and, by inference, anything that weakens that professionalism should be resisted.
The time available to speak in this debate is very limited, and I hope that noble Lords who have preceeded me will forgive me if I do not try to refer to them all the time by name when referring to the points that they have made. The points were really being made for answer by the noble and learned Lord the Lord Advocate, and no doubt he will have taken them on board and will be considering them.
There is a strange aspect about this debate. It is said to be a debate on a Green Paper, and I noted that the noble Lord, Lord Morris, referred to it as a Yellow Paper. That perhaps characterises the quality of this document. It is in fact a Green Paper in a yellow cover. It is a paper that raises non-existent problems. Indeed, reading the language of the paper it was toiling—as the noble and learned Lord, Lord McCluskey, indicated—to get something to say which might be equivalent to the Green Papers for England and Wales. A close scrutiny of the paper demonstrates that it does not really identify with any precision the problems that the Government want to sort out.
Throughout the paper there is the use of the words "would", "might" and "could" on page after page in a most wishy-washy document, but we have to face up to it and see what it is all about. I appreciate that it is only a discussion paper and that perhaps the defects in it can be excused at this stage, but they will not be excused at a later stage.
I join with the noble Lord, Lord Morris, the noble and learned Lord, Lord Wilson of Langside, and I think the noble Lord, Lord Grimond, in taking pleasure in noting that this debate has been conducted in a calm and reasoned fashion, free from the apparent mass hysteria that struck the English Bar and the solicitors' profession on the issuing of the Green Papers on the English and Welsh system. It has also thankfully been free from the petty attacks on the author of the document such as were directed at the noble and learned Lord the Lord Chancellor in the debate on the Green Papers. The observations and some of the attacks made on the Lord Chancellor did the law no good whatsoever. At the end of the debate someone in this House was heard to say, "Well, having heard that lot, that just demonstrates why the law is in need of reform".
This paper has the heavy imprint of the DTI on it. Its theme song seems to be that market forces 1237 shall prevail, that such forces always bring splendid results to the user of the system, and that all inevitably will be well. It sets out at paragraphs 1.6 and 1.10 to provide a Rolls-Royce system for the consumer, the customer—call him what you may. The consumer is to,exercise choice according to the imperception of value for money, whether in terms of particular quality or of price. Suppliers ought to compete … on price alone".The consumer is to have maximum choice as to legal representatives. When one examines what the Rolls-Royce service really does for the consumer one finds that it does nothing to extend the right of access or entry into that Rolls-Royce service by the consumer. This is a point made by the noble Lord, Lord Morton.
The provision of legal services to the users is being treated—as I think the noble and learned Lord, Lord Jauncey, indicated—like someone selling cement, or perhaps buying potatoes or sweets at the cheapest price. If market forces prevail then the danger is that the downward thrust in prices anticipated may provide a cheaper service, but it will not follow that it is a better one. Before any of this tinkering with the system proceeds any further it would be useful to have an indication from the noble and learned Lord, Lord Fraser, as to how he conceives the end result of all the matters raised in the paper, and how the legal service is going to be a better one from the point of view of the consumer. It all sounds fine in principle, as I have indicated, but the paper is strangely silent on how the user gains entry into the market in the first place.
The Legal Aid Board already exists in Scotland—that is the one that is going to be introduced in England—but it is plain from experience that many potential users of the profession never get a chance to exercise choice as they get caught in what the noble Lord, Lord Morton, referred to as the legal aid poverty trap: that is, you do not qualify on means for legal aid, and if you do not you do not get in. The alternative is to put your own savings and even property at risk to indulge in litigation, coming out at the other end either having lost the case and being broke, or being victorious and happy. It is a terrible choice for the citizen to have to make.
As I understand the current attitude of the Government, there is to be no more money invested in extending the legal aid system to let the consumer use this great service set out in the paper. If that is so, the consequence may be that consideration will have to be given to the establishment of a national legal service so that a citizen with a genuine and accepted legal stance, either as the pursuer or defender in civil matters—or perhaps a good defence in criminal matters—is immediately accorded access to the market forces set out in the paper, and is thereby enabled to exercise his choice. The test for entry into such a system would be a purely legal one; namely, that he has a probable cause of action, which is the same test as for the legal aid system at the moment. The system should allow people into the legal system easily unless it is said that their actions are frivolous or vexatious.
The British Association of Estate Agents speaks of the solicitors' branch of the profession as being 1238 people who indulge in a medieval mystique, which is perpetrated and encouraged by lawyers to keep people out of the system. I think the noble Lord, Lord Grimond, referred to the language of the law, and the association also refers to that. Perhaps the institution of such a legal service to the nation as a whole will make that mystique disappear.
This paper, as we understand it, has had a rather chequered career. It is widely believed to have been commanded by Her Majesty's Government to echo so far as possible the Green Papers for England and Wales. It would be interesting if the noble and learned Lord, Lord Fraser, could tell your Lordships' House how many times this paper was revised and sent back over the Border since its original drafting. There is reason to believe—I do not say that it is necessarily true—that this paper travelled at least twice over the Border to get it more in line with the English paper in so far as that was possible.
It would also be interesting to know what input there has been from the DTI and from the Lord Chancellor's Department. Suspicion, to say the least of it, is abroad—that is, in Scotland—that the paper was compiled by someone who had the English and Welsh Green Papers in front of him and who was asked to see what could be done for Scotland in comparable terms. There is a giveaway in this. If your Lordships will look at the report you will see that the word "pupillage" is used twice. One begins to wonder where a man who knew nothing about the English and Welsh Green Papers got this word from while he was compiling the Scottish Green-Yellow Paper. Is not the presence of these words the giveaway that this was someone just doing his best to produce a paper at the Government's command?
Can the Lord Advocate tell your Lordships' House what team sat down and wrote this paper? How many Scots lawyers were on it? I accept that it was not the Secretary of State who wrote it. He is quite a busy man. He issued it. It would be interesting for us all to see who was actually involved in all this. However, the paper is with us for good or for ill. It is inevitable, in the nature of things with the present Government, that legislation will follow, whether it is good or bad legislation.
The paper is welcomed on this side of the House in so far as it purports to improve the quality and reduce the cost of the availability of justice to the citizen. The real question is: does it do that, and will it do that? Vested interests in any sector should not and must not be allowed to impede progress towards the achievement of a speedy and reasonably costed system for all. As a former solicitor and now a practising advocate, I hold no brief in your Lordships' House either for the Faculty of Advocates or for the solicitors' branch of the profession; and far less for estate agents.
I shall examine with care the legislation which will follow, as night follows day, when it comes before the House in the form of a Bill. It has to be said, and was said by many noble Lords who preceded me, that the system in Scotland is suited to the Scottish character, to the Scottish population and to the needs of the Scottish people. It works well, and as the noble Lord, Lord Grimond, indicated, it works 1239 cheaply—more cheaply than south of the Border. Therefore, as the noble and learned Lord, Lord McCluskey, indicated, the people who want to change this system must tell the House either today or at a later stage why this is necessary in the circumstances.
Solicitors have the main contact of the legal profession with clients. What we have in Scotland is a system in which solicitors and advocates work together as a team to produce a good and satisfactory result for the client, who should normally be happy at the end of the day even if he loses the case.
I shall deal briefly with some of the other matters in the consultation paper. I agree with the noble and learned Lord, Lord McCluskey, that government interference in the regulation of the legal profession is a dangerous step to take. It can lead to over-regulation by the state and strike at the independence and integrity of the whole system. The regulation of the profession should remain with the courts and, as the noble Lord, Lord Grimond, suggested, under the Lord President.
Various points have been made about the right to plead. In the 20th century it would be unrealistic not at least to consider extension of rights to appear and plead in all courts. However, there is a proviso to that. It is that the person should be properly qualified to do so, both academically and practically. There must be no dilution of standards in the public interest. What seems to be lost in this paper is that advocacy in the Supreme Court, whether in Scotland or Australia, is a specialisation in itself. The only way one learns to be an advocate is by standing up and trying it. No amount of teaching and theoretical and practical exercises can let someone know whether or not he will be a success. It is a specialisation in itself.
Initial appearances in court can be intimidating if not on occasions frightening. Going from solicitor to advocate, as I think the noble Lord, Lord Morton, probably found (though I may be doing him an injustice) is a big step in every way. I was astonished at my own ignorance during the period of devilling. To answer the question of the noble Lord, Lord Morris, about a period in a solicitor's office, we in Scotland spend 21 months as a preliminary to being called to the Bar. I was astonished by my own ignorance and how much I had to learn through devilling and observing court practices. Some of my critics may say that I should still be astonished at my own ignorance; but there it is. It is a specialised exercise and requires a great deal of training. The right should not be extended unless the reasons are convincing.
There are also legal aid implications. If the new solicitor-advocate is granted his certificate and wishes to employ experienced senior counsel in a serious case it is likely that when he goes to the Legal Board it will say, "You have your certificate of competence; get on with it". The client will be deprived of the services of the best in the land. Like the noble and learned Lord, Lord McCluskey, I still have many other matters to cover but time has run out. I close on that point.
§ 7.14 p.m.
§ The Lord Advocate (Lord Fraser of Carmyllie)
My Lords, I am grateful to the noble and learned Lord, Lord McCluskey, for creating this opportunity to debate the consultation paper of the Secretary of State for Scotland on the legal profession in Scotland. As an ardent reader of radical journals, I read with interest on Sunday an article in that radical newspaper the Mail on Sunday by the noble and learned Lord. I was hoping for a preview of what he might be saying this afternoon. In fact, on that occasion he addressed himself to the position of England. However, the polemical style that he adopted in the article certainly carried through to his contribution today, although I am sure that our debate will add an important dimension to the discussion that flows from the publication of the consultation paper.
I hope that noble Lords will not consider it discourteous if I extend a special congratulation and welcome to the noble and learned Lord, Lord Jauncey of Tullichettle, on his maiden speech. Those who knew him as an advocate warmly welcomed his elevation, first to the Bench and now to this House. Those who have heard him will understand why his great reputation as an advocate precedes him. I should like to thank him for raising the important issue of judicial review. I hope that on future occasions he will elaborate his views. I welcome his contribution not least because it was one of his most distinguished predecessors in this House, the late Lord Fraser of Tullybelton, who first encouraged Scots law to go down the route of judicial review. This is the first occasion that I have had to pay tribute to him.
We are in the middle of the consultation period in Scotland. Although some responses have been received from quite a wide range of interests, it is accurate to say that we are still awaiting the greater number of them. It is therefore a period when the Government must listen to what is being said. That will be followed by analysis of what has been said and the decisions as to future policy. The time for debate is very much with us now. I thank the noble Lord, Lord Grimind, for his contribution. I distinctly heard the noble Lord say that he thought there should be extended rights of audience in Scotland. Although I mistakenly misunderstood the position of Opposition parties, I thought that broadly speaking they welcomed an increased extension of rights of audience. However, I think the noble Lord is the first person to have said so expressly.
I should like to set the consultation paper in context. The stated objective appears in paragraph 1.2 which says that,The consumer should have the widest possible choice consistent with the efficient administration of justice, from among legal advisers of integrity and of the right competence for the job in hand".I know that a number of noble Lords have objected to the use of the word "consumer". Certainly such bodies as the Scottish Consumer Council which have made their views known do not consider that a consumer is one who is restricted to purchasing things from a grocer's shop in Grantham or even in Shelleston.
1241 The policy objective we are pursuing is to see that the public interest in the standards of service and justice is not jeopardised for the sake of competition at all costs. A balance has to be struck between, on the one hand, freedom from restrictions which distort the supply services, and on the other hand, a system of regulation which offers adequate protection to the public and safeguards for them from irresponsible or incompetent providers of services. I am in no doubt that the legal profession in Scotland has a great deal of which to be proud.
Surveys carried out in recent years have shown a very high level of satisfaction on the part of clients with services provided by solicitors generally, and specifically in the case of conveyancing. Members of the Faculty of Advocates may not have been the subject of quite the same systematic examination as to how they are regarded by the public but the recent very rapid growth in the number of practising advocates—up from about 140 in 1980 to about 250 today—surely speaks for itself. It may seem from those words that I am accepting what the noble and learned Lord, Lord McCluskey, said when he asked whether anything is wrong. The Government seek to approach it in this way and ask what can be improved.
We are living in rapidly changing times and we need constantly to be alert to the changing needs of clients and to be ready to ensure that those needs can be met by the appropriate services. The legal profession has a long-standing and admirable tradition of placing the public interest at a high level and trying to reconcile its interests with those of the public. The result as been a number of constraints on practice. We wish to decide anew which of those are a necessary protection for the client, or the wide public interest, and which are unnecessary or place excessive restrictions on the freedom of those providing the services to respond to the demands of the client. Our aim is to ensure that the public is offered the widest choice of services of sufficient quality and a system of justice which is readily accessible, fair, efficient and effective.
At this point in the consultation period, I am not trying to fix where the balance should lie. But it would appear to us that the time has undeniably come to take a hard look at the respective roles of those who need legal services, the professions, the courts, and the Government and Parliament, in determining the provision of services.
I want to make clear that it is not the Government's intention to susbtitute our own system of regulation for the regulation of the professions themselves. If I recollect accurately, the noble and learned Lord, Lord McCLuskey, said that he interpreted from the paper a proposal which he described as constitutionally obnoxious—namely, that a quango was to be established by the Secretary of State which would determine which individual solicitors would secure rights of audience in Scotland.
I should like to make it as clear as I can to the noble and learned Lord, Lord McCluskey, and to the noble Lord, Lord Morton of Shuna, who was 1242 similarly concerned, that it is not the Secretary of State's intention to establish some quango to determine whether individual solicitors should be allowed to practise in the higher courts if rights of audience are to be extended. The position is set out clearly in paragraph 3.17 which states:The Secretary of State might provide the framework within which the detailed rules setting out the competence requirements would be drawn up".It says expressly that the Law Society might draft rules, with an appropriate input for example from the Lord President and the Faculty of Advocates. The purpose behind that proposal is not to take those self-regulatory powers away from the two branches of the profession in Scotland or the Lord President.
§ Lord McCluskey
My Lords, perhaps the noble and learned Lord will give way for a moment. I am looking at the final sentences of the same paragraph. Will he explain who then would withdraw recognition if a solicitor no longer maintained an acceptable standard of competence? The sentence that he read refers to the making of rules by the Secretary of State and some input by others, but who withdraws recognition?
§ Lord Fraser of Carmyllie
My Lords, if the noble and learned Lord understood from that that the Secretary of State personally, through a quango, or through his civil servants, was going to withdraw recognition of an individual solicitor. I apologise for the drafting; that it is not what is intended. The intention is to indicate that apart from the rules setting out the competence requirements there might similarly be provision for how those who have not maintained an acceptable standard of competence might be withdrawn.
If the Secretary of State were to make regulations they would essentially have these purposes. First, they could require there to be rules of conduct and practice for areas not adequately covered by the professional rules of the relevant professional body; secondly, they could put on a statutory basis those professional practices which may be seen as anti-competitive but the retention of which is demonstrably in the public interest, as the interest of justice is also part of the public interest.
The noble Lord, Lord Morton, was similarly concerned about that point. I should have thought that it was not inconceivable that in some cases the professions would themselves want to come to the Secretary of State to ask him to make regulations in certain circumstances. As the noble and learned Lord, Lord Jauncey of Tullichettle, said, the proposal is—not in this paper but in another—that there should be a competition authority with a test, modelled possibly on Article 85. The point that he makes about the need to make provision for services is well taken.
§ Lord Morton of Shuna
My Lords, the point that I was endeavouring to make related to the separation of the Executive from the judiciary. Someone has to make the regulations. What is wrong with giving the power to the judiciary? That is where the power is. The regulation power can easily be the judiciary.
§ Lord Fraser of Carmyllie
My Lords, that is an area in which it is right and proper for Parliament to consider that it has a right to intervene and to set those regulations. It is made clear in the Yellow Paper that the Secretary of State does not become involved in the matter in terms of having his own quango but takes the opportunity in the public interest to provide regulations for what has not been covered. The third purpose is that there may be rules relating to the role of courts in constraining the profession.
I trust that we shall not get things out of proportion. I cannot emphasise strongly enough that the consultation paper is not about the Executive taking over the day-to-day control of the legal profession. The paper is about possible new freedoms; first, to give clients the possibility of a wider choice of legal adviser, according to their needs, their means and their perception of value for money; and, secondly, freedom for the members of the professions to decide how they will conduct their business and offer their services.
I stress that while there is a principle lying behind the proposal—the possibility of new freedom should be explored—the paper is not a blueprint for a deregulated free-for-all. That is made clear in the section dealing with rights of audience. There is no suggestion that every soliicitor should be allowed full rights of audience; rather it is made clear that the high standards must be maintained. That seems to be a point, which, if nothing else does, secures universal approval. Those who represent others in court need to be attentive to the different duties and responsibilities expected of them. Only those solicitors who demonstrate competence in pleading and understanding of supreme court practice would be eligible to appear in the supreme court.
A number of noble Lords have referred to the provision in paragraph 3.16. They said that it was a point of principle to ensure that those who plead in the High Court and the Court of Session should not have been involved in the investigation of evidence. As a member of the Faculty of Advocates, I consider that to be an important principle, but there are solicitors who abide by equally high ethical standards who do not see it as being a similar point of principle. Someone will have to resolve that difference of view in the event of wider rights of audience being granted. It has been suggested that the Secretary of State, within a framework power, might deal with such matters.
Conveyancing is an important matter to the legal profession in Scotland, and, in particular, to the solicitors' side of it. It may not have been explored as fully as the legal profession would like, but I make it absolutely clear that when we look at conveyancing, the sort of points that have been raised during the debate will be considered by the Secretary of State. Clearly, important arguments have to be addressed about having a spread of legal firms throughout Scotland. That is a matter which needs to be considered.
Furthermore, as the noble Lord, Lord Jauncey, mentioned, there appears to be a disturbing practice which I think now attracts the jargon phrase, 1244 "churning of policies". While that might appear to fall outwith the immediate scope of the Yellow Paper, I can assure the noble Lord that my right honourable friend the Secretary of State will be taking acount of all the relevant issues, including that one, before reaching a decision on whether to promote changes in the statutory regulation of conveyancing.
A large number of other points were raised and it is difficult to try to draw them all together in any coherent pattern. They ranged widely from the role and powers of curators bonis, all the way through to multinational legal firms. Perhaps I may say to my noble friend Lord Balfour that I appreciate his concern about curators bonis. The law in this area is being reviewed at present by the Scottish Law Commission and, to be fair to the accountant of court, he has come forward with a number of proposals which will make the administrative cost of the system rather cheaper, although that would probably require primary legislation.
The noble Lord, Lord Morton, was concerned about multinational firms and MDPs in Scotland. As I am sure the noble Lord appreciates, in chapter 9 the matter of multinational firms is addressed and the question of multidisciplinary partnerships is similarly addressed elsewhere. It does not necessarily follow that if one wishes to enter into a multidisciplinary partnership, one will be able to enter a multinational firm. But what is not prohibited must not necessarily be compulsory. I am suggesting to the noble Lord that if we are to allow these two developments, one may not be able to do both but one might be allowed or wish to do one of them.
The noble Lord also mentioned the matter of Crown counsel. That is clearly an important subject for me as Lord Advocate, although as he pointed out, whatever I say, no decision which I can take would bind any of my successors. I accept that there is a special relationship; it is also an evolving one. All noble Lords in the Chamber who have been Scots lawyers in their time will recall that to be part of the Crown counsel team not that long ago involved at least some political affiliation with the Lord Advocate of the day. I am pleased to say that that has long since gone. Throughout successive administrations and now, no question ever arises of the political allegiance of those brought into the team.
My noble friend Lord Morris referred to the common core in paragraph 2.6. Yes, I agree that the common core of legal education which we have in Scotland is a very good and desirable idea. It allows those entering the law at later stage to make up their minds whether they wish to practise as solicitors or to practise as advocates. However, I think it would be presumptuous of me to suggest that what we have discovered to be successful and worthwhile in Scotland would necessarily simply translate itself to this side of the Border.
The noble Lord, Lord Morton, raised the matter of partnerships. I am aware of the misgivings felt by advocates over the prospects of forming partnerships. However, let me make it clear that no 1245 decisions have been taken on the matter. We shall examine all the responses to the consultation paper and if there is a convincing case for retaining any restriction on the way in which advocates conduct their business, we shall give due weight to it.
A number of other detailed matters were raised but time makes it difficult for me to cover them; perhaps I may simply mention two. One is a relatively small point, the proposal to be found in Chapter 4 of the paper suggesting that direct powers to require compensation might be given to the legal ombudsman. I note that there has been some sharp criticism of that proposal in the debate. I notice even more acutely that the lady who is at present the lay observer in Scotland has made her views similarly clear on the matter.
Underlying much of what was said in the debate by the noble Lord, Lord Macaulay of Bragar, and other noble Lords, was the suggestion that we should have been addressing ourselves to the issue of legal aid. Clearly, legal aid is important. We spend some £54 million on it a year, which is a far from trivial sum. However, it seems to me that what is encompassed in our Yellow Paper—whatever exception the noble Lord takes to its colour—is already sufficient without dealing with legal aid. I only say to the noble Lord that my right honourable friend must take account of all the pressures, not only on public expenditure but in the areas of legal aid. He has not closed his mind to the possibility of further reforms or adjustments to the legal aid system, but for the present the ideas in the consultation paper, with respect, deserve to be studied and commented on in their own right.
Perhaps I might conclude by saying that as the noble Lord, Lord Macaulay, said, in Scotland the paper has been commented on and treated in a far more measured and careful fashion than I appeared to observe when I was down here on that lengthy Friday. The consultation period ends on 13th June. We still expect that a large number of bodies in Scotland will be offering their views to the Secretary of State. It would be very helpful if that same measured, rational approach were to be maintained. There are important decisions to be taken by the Secretary of State, not only on rights of audience but also in the field of conveyancing and other matters. It will clearly be very helpful if suggestions given to the Secretary of State could comment not just in broad outline but in detail on what is being proposed.
I am very grateful to all those who have contributed. In my view the debate has been worthwhile and helpful both to the Secretary of State and myself in determining how we should treat these proposals for reform when, after the consultation period, the time for decision comes.
§ 7.39 p.m.
§ Lord McCluskey
My Lords, noble Lords have been so economical with the verbiage that there remain some eight or nine minutes for our debate. However, it would be wrong for me to use that time for reply when I have very little to say.
1246 First, I wish to thank all noble Lords for taking part in the debate, but particularly my noble and learned friend Lord Jauncey of Tullichettle. As he knows, when he left Edinburgh he left me his wig. I wear it each day and derive a kind of mystic inspiration from donning it in the morning. I hope that in the future I can look forward to acquiring from it the clarity, fluency and authority that he demonstrated in addressing your Lordships' House in a notable maiden speech.
The noble Lord, Lord Grimond, said that he would like to see more laymen appearing in court. He is no doubt familiar with the adage of which the noble Lord, Lord Hughes, reminded me a moment ago, that the lawyer who conducts his own case has a fool for a client. The reason for that is that he loses his objectivity. That is precisely what happens with the parties litigant. They do not save time, they cause a great deal of expense and very seldom do we find a party litigant who does himself anything like justice.
Both the noble Lord, Lord Morton of Shuna, and the noble and learned Lord, Lord Fraser, referred to the proposal—and it is a proposal—which the Lord Advocate made when he addressed the Law Society of Scotland on 2nd April. The noble and learned Lord said that he was very ready to contemplate a widening of the pool from which Crown counsel are drawn. He also said that pre-eminently members of the fiscal service who have demonstrated the prescribed standard of competence to appear in the High Court could be included.
No one at the Scottish Bar or the Scottish Bench has more experience of the Crown Office than I have acquired over many years. I have appeared in court with or against every senior procurator fiscal for the past quarter of a century. I greatly admired many of them. However, I shall oppose this proposal to the uttermost. The Crown Office in Scotland enjoys an excellent reputation, but it depends not upon the competence of the advocates depute, because that varies from one to another, but upon a powerful and dominant philosophy that Crown counsel must see themselves not as prosecutors but as ministers of justice. That is the essence, the substance and the very heart of the matter. Crown counsel can readily absorb that philosophy because they move in for two or three years, they are part-timers and they move out again.
But if a lawyer spends a quarter of a century, the bulk of his professional life, as a prosecutor and he then becomes a full-time Crown counsel—he would have to do that under this arrangement because these people would have no certificate to plead in the civil courts and could not of course plead at the same time for the defence—he would have great difficulty in acquiring and practising that philosophy which illuminates the Crown Office at the present time. I hope the noble and learned Lord will not be the one to sell the pass to the officials in the Crown Office who have been peddling this notion for all my professional life.
I have been accused once or twice of being polemical. I mentioned earlier that I have a dictionary, and I promise that I shall look up the word to discover what it means. If I do not discover 1247 it there, I shall ask the noble and learned Lord, Lord Ackner, who I think will be in a position to tell me.
In conclusion, I wish to say that if one wants to see the case against most of these proposals put with clarity, one should study the evidence given in 1978 and 1979 by the Faculty of Advocates and its then dean, who is now the noble and learned Lord the Lord Chancellor. I have the records of that. Certainly the noble Lord, Lord Hughes, will have them, as may other noble Lords. The case is put with great clarity and conviction. The Government would do well to read that in the Scottish context. That was the context in which the case was delivered. Finally, I wish to thank the noble Baroness, Lady Hylton-Foster, and the other Cross-Bench Peers for assisting in enabling this debate to take place at this time this afternoon. I beg leave to withdraw the Motion.
Motion for Papers, by leave, withdrawn.