HL Deb 02 April 1990 vol 517 cc1104-24

2.58 p.m.

The Lord Advocate (Lord Fraser of Carmyllie)

My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.

Moved, That the House do now again resolve itself into Committee.— (Lord Fraser of Carmyllie.)

On Question, Motion agreed to.

House in Committee accordingly.

[The CHAIRMAN OF COMMITTEES in the Chair.]

Clause 21 [Rights to conduct litigation and rights of audience]:

Lord McCluskey moved Amendment No. 239: Page 25, line 46, at end insert ("but in determining whether or not to approve any such scheme the paramount consideration to which the Lord President shall have regard shall be whether or not the acquisition and exercise by such persons of any such rights would, in his opinion, be likely to further the administration of justice".).

The noble and learned Lord said: The Committee will recall that Clause 21, to which this amendment refers, permits in certain circumstances persons who are not qualified lawyers to practise in the courts in Scotland— the criminal courts as well as the civil courts. Having regard to the terms of the treaty of union and to other matters, I have already submitted to the Committee that it would be right and proper that the Lord President should, in determining whether or not to approve of any such scheme, have regard to the needs of the administration of justice.

I direct attention to the terms of the amendment. It refers, first, to the "paramount consideration" being the administration of justice. The Committee will know that this use of the word "paramount" has a long history in the law, particularly the law in regard to children. If a court is required to look at custody or access to a child the court is required to have regard to the welfare of the child, and that is put as the paramount consideration.

In recent times, under the terms of the Children Act 1975 that priority been slightly altered in order to make it the first consideration to which the court must have regard. The purpose of using the term "paramount consideration" is to ensure that the Lord President, in balancing and assessing the various considerations which are relevant to the determination of his discretion, must hold that the interests of justice prevail over any other relevant consideration with which they are in conflict.

I need not read out the terms of Article XIX of the Treaty of Union in full, but I remind the Committee that they begin with the words: The Court of Session or the College of Justice do after the union and notwithstanding thereof remain in all time coming within Scotland as it is now constituted by the laws of that kingdom and with the same authority and privileges as before the union subject nevertheless to such regulations for the better administration of justice as shall be made by the Parliament of Great Britain".

So the assumption must be that to permit non-qualified pleaders to appear in the High Court of Scotland and in both the civil and criminal courts of Scotland, is for the better administration of justice. Indeed that was what the Lord Advocate sought to assure the Committee of on the last occasion when we met.

Not only that, but the administration of justice is absolutely central in every possible way to the conduct of business in the courts. It is principally for that reason that I invite the Committee to approve this amendment. I also remind it that when the present noble and learned Lord the Lord Chancellor was Dean of the Faculty of Advocates he was asked by the Royal Commission to consider this very question. He gave it as his view, which was subsequently confirmed in the proceedings in relation to the Courts and Legal Services Bill in this House, that the overall administration of justice might be seriously imperilled by having lay representatives appear in court. That was the view he gave in 1976 and it is the view which he gave to noble Lords in 1990 and which he adheres to. Therefore, it is all the more important that one should write into this Bill the need to preserve the administration of justice. I beg to move.

3 p.m.

Lord Macaulay of Bragar

I support this amendment moved by the noble and learned Lord, Lord McCluskey. This section of the Act introduces a new feature into the legal system. As time passes and problems develop, it is almost inevitable that lay representatives will seek access to the courts. That access should be carefully controlled. It may be that the wording of this amendment is an unnecessary refinement because one always hopes that the Lord President will have the paramount interests of justice at heart. It will not do the Bill any harm to include these words. I support this amendment.

Lord Morton of Shuna

Perhaps being slightly more cynical than the noble Lord, Lord Macaulay, on looking at Clause 21 as it appears in the Bill and then looking at the new edition of that clause which the Government are putting forward, I note that there is no mention of the paramount needs of the administration of justice. Therefore, I have every expectation that the Government will simply accept this amendment. However, I do not think that it is in any way unnecessary: it is highly necessary. The Lord President is given a whole list of things which he has to consider and the administration of justice is not one of them. It should be one of them. I hope that the noble and learned Lord will accept this amendment or at least the spirit of it.

Lord Fraser of Carmyllie

Clearly, as the noble Lord, Lord Macaulay, has indicated, one would expect the Lord President of the Court of Session to have regard to the administration of justice in any decision that he had to take with regard to the approval of a scheme under this clause. The objectives of a wider choice of representative in maintaining the efficiency of the courts are not necessarily incompatible objectives. On the other hand, the convenience and efficiency of the courts are not the only goals. There is also the client's right to choose any competent representative who observes the duties to the court and who conforms to appropriate rules of conduct. That is also of fundamental importance.

That said, this amendment raises the question of what is to guide the Lord President and also the Secretary of State in considering applications. I accept that the new clause, to which we shall come shortly, does not address this matter squarely. I believe that the correct formulation would have essentially two elements to it. The first arose earlier in our discussions concerning Amendment No. 223. That is the desirability of having comparable rules of conduct for all pleaders in court. The second is the maintenance of appropriate standards of conduct and practice which is the expression used in Clause 15 (9) in relation to the code of conveyancing practice.

I propose to the noble and learned Lord that he withdraws this amendment. On that basis I shall come forward with amendments at Report stage to meet the objectives of the principles to which the Lord President should have regard in approving a scheme. That seems to fit in with what I said earlier to the noble and learned Lords, Lord McCluskey and Lord Morton of Shuna, when we were discussing Clause 20. On the basis of that undertaking I hope that the amendment will be withdrawn.

The Earl of Selkirk

I am very glad to hear what my noble and learned friend is saying. The words "administration of justice" may seem superfluous, but there is an element which must be borne in mind. There is no doubt that so much has been copied from the English charter. One has to remember that the head of the law in England is a judge. With great respect to the Secretary of State, he is not a judge but a politician. The appointment is always of a politician. There is a very grave danger of politicians being too influential in the sphere of the administration of justice.

I have looked at this matter from many angles. We are now at a time when questions about Europe raise difficulties. We should set a high standard if nothing else. It is for those reasons that I ask my noble and learned friend to think very hard about what is to be done in this case. The matter should not be left to drift.

Lord Simon of Glaisdale

It is with great temerity that I intervene on a Scottish Bill. There is a very important word in this amendment; namely, the "paramount" consideration. I am not sure whether the noble and learned Lord the Lord Advocate entirely met that point. As my noble and learned friend Lord McCluskey said, the word has a long history. It used to appear in the various statutes relating to children when they spoke of the first and paramount consideration being the welfare of the child.

I always understood by that that the first consideration was to be considered before any other and that the paramount consideration was one that was more important than all others. If that is right, that is a key word in my noble and learned friend's amendment. I hope that the noble and learned Lord the Lord Advocate— provided that the various measures relating to children also apply to Scotland— will consider whether it is consonant with Scots law that the word "paramount" should be used and also whether he has it in mind to use that word in his amendment.

Lord McCluskey

As regards what my noble and learned friend Lord Simon of Glaisdale has said, the Committee will find that in the proceedings on the Children Bill 1975, as it then was, the noble and learned Lord made a very valuable contribution to the debate by drawing that distinction. It was that distinction which I had in mind when I included the words in question in the amendment. I need not develop the point any further. In answer to what the noble and learned Lord the Lord Advocate has said, I am happy that he has recognised the importance of these words. In the light of the assurances that he has given, I am content. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 241A not moved.]

[Amendment No. 242 had been withdrawn from the Marshalled List.]

[Amendments Nos. 242A and 242B not moved.]

[Amendment No. 243 had been withdrawn from the Marshalled List.]

[Amendments Nos. 243A and 243B not moved.]

Lord McCluskey moved Amendment No. 244: Page 26, line 25, leave out paragraph (b).

The noble and learned Lord said: Matters have moved with such speed in the past 15 seconds that it may take me a moment to find my note.

This amendment seeks to leave out paragraph (b) of subsection (10). The Committee will see that the subsection in which it appears relates to the making by the Lord President of an act of sederunt, which is subordinate legislation in the civil courts, or an act of adjournal, which contains the subordinate legislation governing criminal proceedings. This is not the last occasion on which I propose to ask this question and it is certainly not the first time that I have asked it. Under what circumstances and in what type of case will a person not being a lawyer be allowed to conduct criminal jury trials in the High Court of Justiciary? The only purpose of making an act of adjournal is to regulate proceedings in such a case.

If the Lord Advocate has in mind that what I have been calling the barefoot pleaders— the non-lawyers who are to be given the licence to plead in our courts— are to be allowed to appear in the district court, that is fine; if they are to be allowed to appear in summary causes, that may be tolerable. But I want to know who the Government have in mind who may apply for and obtain a licence to conduct criminal jury trials in the High Court of Justiciary in Scotland. I have asked that question about six times but I have not yet had an answer.

It may be proper too when one looks at what is proposed in the subsection— that acts of adjournal will be made— to ask what on earth could be put into an act of adjournal which would enable the barefoot pleader appearing in the High Court of Justiciary to deal with the situation which lay totally outwith his expertise. Let us suppose that he is allowed to plead on the ground that he is very knowledgeable about insolvency and bankruptcy, and so he appears in a case in which there are likely to be insolvency and bankruptcy charges. He thus begins to represent a client. But all of a sudden there are added to the insolvency and bankruptcy charges other charges such as fraud. One could think of many others. Let us suppose further that a second accused is added to the case who is represented by a barefoot pleader or by somebody else. Is his defence to be affected and possibly prejudiced by the perhaps bumbling incompetence of the barefoot pleader who appears on behalf of the other accused?

I have asked this question several times. I have suggested persons who might possibly be allowed to plead in the criminal courts or who might be interested in so doing. I suggested possibly accountants, patent agents or insolvency practitioners. I was assured by the Lord Advocate that none of these persons has in Scotland expressed the slightest interest in appearing in the Scottish courts. When further pressed on the matter the Lord Advocate said that the only persons who had since the publication of the Green Paper indicated a possible interest were those who were interested in adoption. That is an interesting point. One could well understand that persons who were interested in adoption proceedings might want to have some right to appear in court where the circumstances of the litigation are quite different from those of a normal litigation.

However, I need to know— and I think the Committee ought to know— who it is the Lord Advocate has in mind. If it be the case, as I suspect it is, that we shall never see lay pleaders appearing in criminal jury trials, there is no need to give this power to the Lord President or the Lord Justice General to make acts of adjournal regulating their appearances. I beg to move.

3.15 p.m.

Lord Morton of Shuna

This amendment appears in the names of the noble and learned Lord, Lord Emslie, and my noble and learned friend Lord McCluskey. Unfortunately, the noble and learned Lord, Lord Emslie, is unable to be present today and has asked me to move various amendments standing in his name.

This provision opens a very dangerous line in what lawyers often forget is the most important side of the law. I refer to the criminal law— the law relating to the freedom of the citizen. The Government are apparently intent on watering down the competence of those who are available to appear for people charged with offences. This is a very dangerous proceeding. If the idea is that people from the citizens advice bureaux with no legal qualifications should be able to appear to defend people on criminal charges we should know that. The noble and learned Lord the Lord Advocate should tell us that instead of merely including this potential trap which grossly affects the freedom of the subject.

Lord Macaulay of Bragar

When we were discussing this clause at an earlier stage in relation to the use of the words "or other body" in Clause 21 (1) I suggested that we should tread carefully in relation to the speed with which such innovations in the legal system of Scotland are introduced.

I agree with the observations made on this issue by the noble and learned Lords, Lord McCluskey and Lord Morton of Shuna. There is a world of a difference between an accountant presenting an accountancy case under Clause 21 (1) and a non-qualified criminal lawyer, putting it that way, defending someone in the High Court. As matters presently stand, presumably an unqualified lawyer could see his way to defending someone on a murder charge. I have always recognised from this side of the Chamber that pleading in the supreme courts is a particular practice demanding considerable skill and knowledge. We are not talking here of the solicitor advocate who will have a legal background before he is given the right to plead in the courts. We are talking about non-qualified people and presumably people who are unskilled in the law being given a free rein with the consent of the Lord President under this clause to conduct serious cases involving, as the noble and learned Lord, Lord Morion of Shuna, has already indicated, the liberty of the subject.

The problem about the High Court in criminal cases is that the accused has only one kick at the ball. If his defender mis-kicks the ball, it is not the defender but the accused who suffers. I suggest with respect to the Lord Advocate that he might consider introducing these pleaders to the civil courts first. If it is demonstrated that the system can work in the civil courts, the whole matter might be looked at again in relation to the criminal courts. But it is a fairly startling proposition that this system should be extended to serious cases in the supreme criminal courts.

Lord Fraser of Carmyllie

In this brief debate on the amendment such language as "watering down the competence of those who are available to appear" has been used. I say at the outset that should a group of persons put forward a scheme under Clause 21 to allow them to have rights of audience in the High Court of Justiciary I do not envisage in any circumstances that there would be a dimunition of the standards that are expected in that court at the present time. I cannot conceive of any circumstances where the Lord President, in having regard to an application under Clause 21, or the Lord Justice General, as I should say, in relation to the High Court of Justiciary, would not have regard to the concerns of noble and learned Lords that very serious criminal charges might be confronted.

In previous debates on this clause I have sought to explain— and I run the risk now of repeating myself— that under subsection (2) we are dealing not only with the High Court of Justiciary and the Court of Session; we are also dealing with a range of courts and possibly a range of business. I appreciate that in moving the amendment the noble and learned Lord is concerned to take the matter to the extreme example— namely, the criminal courts— to ensure that in such circumstances if a group of persons were to be allowed to practice they would have the necessary expertise, experience and training.

As I have already indicated, and as the noble and learned Lord already appreciates, there is no identified group as yet who have come forward seeking this right of audience in the High Court of Justice. However, as I said, were such a group to emerge there would be no possibility that the persons involved would be inadequately qualified or lacking in the necessary competence to deal with such matters. To pursue the noble and learned Lord's example, if someone comes forward who is an accountant and who has some bankruptcy experience, and that alone, I cannot for a moment envisage that the Lord President and the Secretary of State, in line with his interest in such matters, would agree to such a person appearing in the highest criminal courts.

Under Clause 21 we have a scheme which allows such a group of people to acquire the necessary rights of audience if they satisfy what is required of them in the terms set out thereunder. It is not to look to any diminution of standards; on the contrary, it may be that in a certain specialised area a particular expertise will be provided to meet the needs of certain clients. I do not wish to see in general the criminal side of the law in Scotland excluded from the scheme contained in Clause 21. However, as the noble and learned Lord, Lord McCluskey, seems to realise, I do not as yet have an identified group in mind. He may well be right in that, given the high standards that will be required of those appearing in the criminal courts— and indeed in the civil courts— no such group of people will emerge. That may be so. However, as I sought to emphasise, this is an enabling clause which sets out a scheme and it does not follow from that that there is any group outwith those who are formerly qualified as lawyers who would meet the very demanding testing requirements that would doubtless be imposed by the Lord President or the Lord Justice General under the clause.

Lord Morton of Shuna

At the risk of incurring the wrath of the noble Baroness, Lady Carnegy, I must try to press the noble and learned Lord on the matter. One hears that the Government are short of legislative time. If that is so, why do they propose that non-lawyers should be empowered to conduct criminal trials which may put citizens of this state in prison if they have no one in mind for this provision; that is, no professional or other body? What is the point of this provision? Is there a purpose somewhere? Is there to be a general rule applied to all professions so that we can expect medical legislation to be introduced which would empower professional or other bodies to conduct operations or to carry out brain surgery? It seems to me to be a totally unnecessary amendment, especially if the Government have no intention of bringing it into force. Perhaps the noble and learned Lord can clarify the situation.

Lord Fraser of Carmyllie

I do not think that I can. I have explained the position. The noble and learned Lord may find that amusing, but I thought that explained most clearly what the scheme entails. I should have thought that he understood readily enough how legislation which provides for a scheme (with arrangements to be filled in at a later stage) goes forward, especially when it is left to the Lord President or to the Lord Justice General. As the noble and learned Lord mentioned earlier, it may be that there will be no such group of people who have sufficient expertise to achieve what is proposed. The scheme is as I have explained it and I do not think I can elaborate.

Lord McCluskey

The noble and learned Lord will understand that I have fully comprehended all he said. However, his problem is not clarity; it is nudity. He has nothing to offer us except himself and, as I understand it, the view of the Secretary of State. The noble and learned Lord the Lord Advocate was guilty of a slip of the tongue— at least I trust that it was a slip of the tongue— when he talked about the High Court of Justice. There is no such animal in Scotland; it is of course the High Court of Justiciary. It may be that that slip of the tongue is a Freudian one and betrays the origins of this provision.

During the course of these proceedings in Committee the noble and learned Lord has been very frank, both today and on previous occasions, in saying that no one asked for the provision before it was inserted into the Green Paper and that no one since its publication has said "That is a good idea; we would like to take it on". He has also now made it plain that the Government have no one in mind in this connection. Further, he has made clear the fact that it is to be hoped that the long stop is that the Lord Justice General and the Secretary of State will stop anyone who is foolish enough to try it. Therefore, in those circumstances, the inevitable remorseless logic of the situation is that he should abandon this absurd clause. If he does so, I have no doubt that he will receive the support of his noble and learned friend the Lord Chancellor who, when speaking not of the High Court, but of tribunals and the lower courts, said that "the overall administration of Justice might be seriously imperilled by lay representation".

If that is so, I am afraid that the Government are in an intolerable position. Although I now propose to withdraw the amendment, I trust that between now and Report stage, which I believe will be some time in May, they will have decided that the proper course would be to follow the advice given by the noble Lord, Lord Macaulay of Bragar. If they propose to proceed on this line they should initially permit lay representatives to appear in the lowest courts to see how they cope with the work; or, better still, we should wait and see how this great experiment works south of the Border and then perhaps we could go to school upon that experience.

Lord Macaulay of Bragar

Before the noble and learned Lord withdraws his amendment, perhaps I may suggest that the very presence of this clause in the legislation which mentions the High Court of Justiciary may put ideas into the wrong people's heads. Many people fancy themselves as budding Perry Masons and they may well form a group of those who wish to defend people in the High Court. Such action would set the ball rolling. As regards the beginning of the operation of this part of the Bill, this is a clause which we could well do without.

Baroness Seear

Before the noble and learned Lord withdraws the amendment I should like to say a few words. I must say that I admire my courage as a non-lawyer and as an Englishwoman in daring to interevene in this debate. However, I must protest yet again at a statement made by the noble and learned Lord the Lord Advocate. He said that he would decide the matter, presumably by regulation. It is quite clearly a matter of very considerable importance. He said that it would be settled afterwards. I should also like clarification of the curious accusation made by the noble and learned Lord, Lord McCluskey, about the "nudity" of what is proposed. Is that a Scottish or a legal term? I am afraid that I failed to comprehend it.

Lord Fraser of Carmyllie

If it is a term of art, I am afraid I do not know it—

Lord Boyd-Carpenter

Art not law!

Lord Fraser of Carmyllie

If the noble Baroness cares to look at Clause 21 she will find that under any scheme put forward thereunder the approval of the Lord President or the Lord Justice General of the High Court of Justiciary will be required before any group of people can apply. That is what I referred to in my explanation. It is the senior judge either in a criminal or civil capacity in Scotland who would be required to approve such people.

I was seeking to indicate that this is not a matter in which the Government or the Secretary of State would be involved; it would be the senior judge in Scotland who would have the right to approve or disapprove of a scheme. I can only anticipate that in our highest courts he or any future judge would require the maintenance of standards of conduct, competence and qualification that exist at present.

Lord Mackie of Benshie

Is the noble and learned Lord the Lord Advocate advocating that a better body than the Scottish Bar or the Law Society may emerge and that these budding Perry Masons may receive better training than the conventional lawyers of Scotland?

Lord Fraser of Carmyllie

That would be to invite me to reveal a known and personal prejudice.

Baroness Seear

The noble and learned Lord cannot avoid the fact that this will not come back to Parliament. That is what worries me.

Lord McCluskey

I apologise if I upset the noble Baroness by my use of that word. Perhaps I should have said "nakedness" rather than "nudity". I mean that the noble and learned Lord the Lord Advocate has been totally frank. He has hidden absolutely nothing from us. I hope that he will contemplate the situation that he has revealed to the Committee and will feel thoroughly ashamed of it. Then perhaps in due course he will withdraw the provision. In the meantime, I beg leave to withdraw my amendment.

Amendment, by leave, withdrawn.

3.30 p.m.

Lord Macaulay of Bragar moved Amendment No. 244A: Pag'3 26, line 29, at beginning insert ("Subject to subsection (11A) below, ").

The noble Lord said: I think that this amendment could, for the convenience of the Committee, be taken together with Amendment No. 244B. The purpose is to make sure that there is proper surveillance of the schemes which are approved. Once the purpose of any scheme approved for a particular court or a particular purpose is over, that scheme will then cease to have effect in relation to the particular body.

The proposed subsection (11B) enables the Secretary of State, if he finds that, members of the body who have exercised rights of audience in any court in pursuance of the scheme have been the subject of complaints of such a nature that he considers that the scheme should be brought to an end", to bring it to an end. This is a protective measure to make sure there is continual vigilance over the actions in the court of the new pleaders. I beg to move.

Lord Fraser of Carmyllie

I am willing to consider this matter further. I see no need for approvals under Clause 21 to be subject to conditions, given the mechanism for consideration of a draft scheme and the offering of comments upon it. On the other hand there may be circumstances where there ought to be provision for a review of rules or schemes once approved. I shall give further thought to the noble Lord's argument in that context and, if appropriate, bring forward suitable amendments at Report. With that undertaking, I hope that the noble Lord will be willing to withdraw the amendment.

Lord McCluskey

There is just one matter that I wish to add, in view of the generous attitude of the noble and learned Lord the Lord Advocate in relation to this amendment. The Lord President and the Lord Justice General— the same person holding two offices— ought to have an input on this matter as well. If a body has won the right, or a scheme has been approved, it is not just the Secretary of State who ought to be able to say, "This is not working very well". At least the Lord President ought to have the same right; indeed he should have a prior right.

I see the noble and learned Lord the Lord Advocate nodding in my direction. No doubt he will bear this in mind as well.

Lord Fraser of Carmyllie

That is certainly a point I shall take into account in examining the matter before the Report stage.

Lord Macaulay of Bragar

I am grateful to the noble and learned Lord the Lord Advocate for his attitude towards this amendment. I beg leave to withdraw it.

Amendment, by leave, withdrawn.

[Amendment No. 244B not moved.]

Lord McCluskey moved Amendment No. 245: Page 26, line 42, leave out subsection (13).

The noble and learned Lord said: This amendment seeks to delete from the clause the provision that where a function is conferred, on any person by this section he shall exercise that function as soon as is reasonably practicable".

We spoke about this in a different context previously. Members of the Committee will see that the only persons on whom functions are conferred by Clause 21 are the Secretary of State for Scotland and the Lord President of the Court of Session. Perhaps the Director of Fair Trading is also concerned, as my noble and learned friend reminds me. I wish to know which of these persons needs a reminder of his duty to get on with considering a scheme when a scheme is presented to him.

I have asked previously whether there is any precedent. I received no answer. There may well be, but I do not know of it. I suspect, if I dare say so in the presence of the noble and learned Lord, Lord Hailsham, that the provision requiring persons to carry out their statutory duties with the utmost expedition derives from a feeling that Part XI of the Building Societies Act 1986 which created the concept of a conveyancing practitioner and allowed building societies and the like to carry out conveyancing was never brought into force. There may have been mutterings in dark places about that omission on the part of the noble and learned Lord the then Lord Chancellor whose duty it was. My dark suspicions may be totally unfounded. Whatever the history may be I wish to know two things. What is the precedent for this? And why is it necessary in this clause? I beg to move.

Lord Morton of Shuna

I wish to add one question to which I also did not receive an answer when a similar clause was debated. If a duty is put on somebody, it is normal parliamentary legislative practice to attach a sanction to it. What sanction is on these three, or two, gentlemen if they fail to comply with their duty? No offence is being created. The Secretary of State and the Lord President are not to be punished if they fail. Surely that illustrates the futility of this subsection.

Lord Fraser of Carmyllie

We dealt with this matter at some length in relation to Clause 20 in which there is a provision in exactly the same terms. I apologise. I thought we had already fully dealt with the matter. I cannot give the noble and learned Lord a precedent. I believe that I explained the reasoning behind the provision in some detail when we last met in Committee.

Lord McCluskey

I was happy to accept the assurance of the noble and learned Lord the Lord Advocate earlier that he would consider inserting in this clause the words "paramount consideration and administration of justice". If one can justify— as he sought to justify— a clause such as the present one on the basis that Ministers and judges need prompting from time to time— a gentle reminder, as he put it— I am sure that the noble and learned Lord will bear that in mind when he reconsiders the earlier point. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Fraser of Carmyllie moved Amendment No. 245A: Leave out Clause 21 and insert the following new clause:

Rights to conduct litigation and rights of audience.

21.— (1) Any professional or other body may, for the purpose of enabling any of their members who is a natural person to acquire—

  1. (a) rights to conduct litigation on behalf of members of the public; and
  2. (b) rights of audience,
make an application in that regard to the Lord President and the Secretary of State.

(2) An application under subsection (1) above shall include a draft scheme—

  1. (a) specifying—
    1. (i) the courts;
    2. (ii) the categories of proceedings;
    3. (iii) the nature of the business; and
    4. (iv) the rights to conduct litigation and the rights of audience,
    in relation to which the application is made;
  2. (b) describing—
    1. (i) the training requirements which the body would impose upon any of their members who sought to acquire any right such as is mentioned in subsection (1) above; and
    2. (ii) the code of practice which they would impose upon their members in relation to the exercise by those members of any rights acquired by them by virtue of this section,
    in the event of the application being granted; and
  3. (c) proposing arrangements for—
    1. (i) the indemnification of members of the public against loss suffered by them through the actings of the body's members in the exercise by those members of any rights acquired by them by virtue of this section; and
    2. (ii) the treatment by the body of complaints made to them by members of the public in relation to the actings of members of the body exercising rights by virtue of this section.

(3) A code of practice such as is mentioned in subsection (2) (bXii) above shall include provision with regard to revoking, suspending or attaching conditions to the exercise of any right acquired by a member of the body by virtue of this section in consequence of a breach by that member of that code of practice.

(4) A draft scheme submitted under this section shall also include the proposals of the body in relation to such other matters as may be prescribed by the Secretary of State in regulations made under this section.

(5) Regulations under this section shall be made by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.

(6) The Lord President shall consider the provision made in any draft scheme submitted to him under subsection (1) above in relation to the matters mentioned in subsection (2) (a) and (b) above; and the Secretary of State shall, in consultation with the Director, and subject to subsection (8) below, consider the provision so made in subsection (2) (b) and (c) above.

(7) The Lord President and the Secretary of State shall consult each other in considering a draft scheme submitted to them under subsection (1) above, and may, either jointly or severally, make preliminary observations to the body concerned in relation to that draft; and the body may make such adjustments to the draft as appear to them to be appropriate, and the Lord President and the Secretary of State (who shall consult the Director in respect of any adjustments made in relation to the matters mentioned in subsection (2) (b) or (c)) shall thereafter consider the draft scheme as so adjusted.

(8) In relation to paragraph (b) (ii) of subsection (2) above, the duty of the Secretary of State under subsection (6) above is limited to a consideration of any provision of such a code of practice as is mentioned in that paragraph as would, in his view, directly or indirectly inhibit the freedom of a member of the body concerned to undertake all the work necessary for the preparation of a case or for the presentation of a case before the court, other than such a provision which has that effect only by reason of the provision made in the draft scheme with respect to the matters mentioned in subsection (2)(a) above.

(9) After they have considered a draft scheme under subsections (6) and (7) above, if the Lord President and the Secretary of State—

  1. (a) are satisfied with the draft scheme, the Lord President shall grant the application, and shall so inform the body;
  2. (b) are not satisfied with the scheme, the Lord President shall refuse the application, and shall so inform the body, giving written reasons for the refusal.

(10) Where the Lord President has granted an application under subsection (9) (a) above, in relation to—

  1. (a) civil proceedings, the Court of Session may by act of sederunt; and
  2. (b) criminal proceedings, the High Court of Justiciary may by act of adjournal,
make such provision for giving effect to the scheme as appears to it to be appropriate.

(11) Where a body have made a successful application under this section, any of their members who has complied with the terms of the scheme in relation to the matters mentioned in subsection (2) (b) (i) above shall have the right to conduct litigation or rights of audience to which that compliance entitles him.

(12) Where a function is, whether expressly or by implication, conferred on any person by this section he shall exercise that function as soon as is reasonably practicable.

(13) Nothing in this section affects the power of any court in relation to any proceedings—

  1. (a) to hear a person who would not otherwise have a right of audience before that court in relation to those proceedings; or
  2. (b) to refuse to hear a person (for reasons which apply to him as an individual) who would otherwise have a right of audience before that court in relation to those proceedings, and where a court so refuses it shall give its reasons for that decision.

(14) A person exercising any right of audience held by virtue of this section shall have the same immunity from liability for negligence in respect of his acts or omissions as if he were an advocate, and no act or omission on the part of any such person shall give rise to an action for breach of contract in relation to the exercise by him of such a right of audience.

(15) For the purposes of this section—

(16) Any person who wilfully and falsely—

  1. (a) pretends to have any right to conduct litigation or right of audience by virtue of this section; or
  2. (b) where he has any such right, pretends to have any further such right which he does not have; or
    3. 1117
  3. (c) takes or uses any name, title, addition or description implying that he has any such right or, as the case may be, any further such right,
shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 4 on the standard scale.").

The noble and learned Lord said: I think the casual observer could be forgiven for believing that the new clause inserted by this amendment in place of Clause 21 is almost identical to its precursor. The clause has been recast to delineate more clearly, I hope, the functions of the Secretary of State and the Lord President in relation to applications from bodies for rights to conduct litigation and rights of audience. Most particularly I hope that it deals with the points that the noble and learned Lord, Lord Jauncey, raised at Second Reading. I trust that the new clause is easier to follow.

Subsection (1) now provides for an application to be made to both the Lord President and the Secretary of State at the same time. This will make it simpler for the Lord President and the Secretary of State to give the necessary consideration to any application at the same time and will save unnecessary comings and goings between the two. Subsections (2) and (3) outline the matters which are required to be included in a draft scheme submitted under the clause. Noble Lords will note that provisions with regard to the revocation, suspension or attachment of conditions to any rights granted under this clause will now appear in the code of practice which any applicant body will be required to impose upon its members.

Subsection (7) is a simplified provision and explains the process whereby the applicant body is enabled to react to the initial observations of the Lord President and the Secretary of State. Subsection (8) places an important limitation on the role of the Secretary of State in relation to his consideration of the applicant body's proposed code of practice. The subsection makes it clear that he will be concerned only with ensuring that the code of practice is no more restrictive than is necessary in the interests of justice. This would clearly be unreasonable if the restrictions were intrinsic to the application itself. The final part of the subsection deals with that point.

Subsection (14) is new and provides persons who have acquired a right of audience under this clause with the same immunity from suit in relation to their exercise of such rights as an advocate. The purpose of the provision is to ensure that those holding rights of audience under this clause are not put at a professional disadvantage in comparison with advocates.

This amendment provides a logical and balanced structure for the according of rights of audience or rights to conduct litigation to non-lawyers. The role of the Lord President will ensure that standards are fully maintained and the Secretary of State will be concerned with preventing unnecessarily restrictive professional practices. Members of the Committee will appreciate that it may be some time before the first body makes an application for rights of audience or rights to conduct litigation under this clause. I am confident, however, that the provisions contained in this amendment will ensure that only those who are qualified and competent to hold such rights will secure them. As I have indicated to the Committee on previous occasions, concern has been expressed that new schemes under Clause 20 may lay a considerable burden upon the Lord President of the Court of Session. I have already indicated to him that it is not envisaged to have an immediate commencement of this measure in order to enable any applications that he has to deal with under Clause 20 to be dealt with first. I beg to move.

Lord Morton of Shuna

We have in a sense discussed a lot of the principle that lies behind this amendment which seeks to rewrite Clause 21. I do not wish to depart from anything I said about that, but it puzzles me why the Lord President is debarred from consideration of the code of practice which is contained in subsection (3) and is not to consider the question of the treatment of complaints or the indemnification of members. The effect of that is to tell the Lord President that he must not consider codes of conduct. As the Lord President is the final arbiter on codes of conduct for solicitors and advocates, it seems totally strange that it should be the Secretary of State who is to lay down codes of conduct for non-lawyers practising in the courts. It would seem sensible for the Lord Advocate and the other persons in this mystical group, which the Government apparently do not know exists, to lay down codes of conduct with the assistance of the Secretary of State or anybody else. Surely the Lord President has an input as regards what the regulations and schemes should contain. If he is the person who in the end has to approve them, it seems odd to me to draft a new clause which in effect states that he is not to consider the provisions within subsection (2) (c) or (3).

Subsection (4) states: A draft scheme … shall also include the proposals of the body in relation to such other matters as may be prescribed by the Secretary of State in regulations made under this section". That is what my noble and learned friend Lord McCluskey refers to as a Henry VIII clause. It appears that anything at all can be put in by the Secretary of State. What does that measure mean? Surely if this kind of wide power is to be given to the Government— that is what the subsection entails— we should be told that there are some limits at least to the power. Further, the matter of criminal proceedings is in my view wrong in principle. The omission of the paramount interests of justice is also wrong in principle. Beyond noting those two points I should say that I generally disapprove of this amendment just as I disapprove of the clause which it seeks to amend.

Lord Macaulay of Bragar

As I understand the position of the noble and learned Lord the Lord Advocate in relation to Clause 21, it is the following. I hope the noble and learned Lord will correct me if I am wrong. Although he has moved Amendment No. 245A, which sets out the proposed new Clause 21, I believe he has agreed to reconsider various matters. As I understood the position, he will take into account the position of the Lord President when he reconsiders all these matters. It would be rather nonsensical at this stage of the proceedings to treat this amendment as the proposed final form of Clause 21. Any further discussion of it would be a waste of the Committee's time until the final revised form of Clause 21 is seen on Report.

Lord Renton

I am afraid that my mind does not always register as quickly as my noble and learned friend speaks. For that I apologise. However, having listened to his explanation and having read the clause twice, and, I believe, carefully, I am trying to find out who has the last word in this matter. I am trying to find out whether it is the Lord President or the Secretary of State. They are obliged to consult each other and in some respects they have quite separate functions. The Lord President has to do some things and the Secretary of State has to do others. Subsection (4), for example, states: A draft scheme submitted under this section shall also include the proposals of the body in relation to such other matters as may be prescribed by the Secretary of State in regulations". I am sure it would help us all to understand much better what the Government are doing if we could be told who has the last word.

The only thing I wish to add is that over the past 11 years I have been a keen supporter of this Government, mainly because I understood that we were going to reduce the influence and power of the state. But here we find that in a matter where the Secretary of State has not previously had power, he now seems to be given a considerable amount of it.

3.45 p.m.

Lord McCluskey

This proposed new clause is in some respects better than the one it seeks to replace but in other respects it is worse. As the noble Lord, Lord Macaulay, said, it will certainly need to be rewritten in the light of the undertakings given in earlier parts of the discussion. While it is being redrafted, the gerundive should be removed from line 24 and replaced by a gerund. However, I shall not dwell upon that matter at this time of day.

The first matter that disturbs me is that the Bill received a Second Reading on 30th January and was put out for Committee last month. The first thing that happened was that a whole clause and parts of other clauses were totally rewritten. As the noble Lord, Lord Renton, said, one has to sit down and try to understand again what the measure contains. What this new clause contains is something that the former clause did not. Under the former clause a scheme was proposed to the Lord President, who is the chief judge in Scotland. If it got past him, it went to the Secretary of State, who could stop it, but that was all. The Secretary of State had a kind of veto. In other words, if the scheme failed to get past the Lord President, that was the end of it. Even if it got past him, it might still fail. However, under the new draft the Secretary of State has a particular input which is his own. Thus the power of the Lord President under the former clause has now been diminished. To that extent the clause is worse.

However, when the noble and learned Lord the Lord Advocate looks at the whole matter again, I invite his attention to his redraft of subsection (8). This provides a model, if not for this clause at least for other clauses. It provides that the duty of the Secretary of State is limited to a consideration of particular matters in so far as they would affect particular prescribed matters. In other words, the Secretary of State is not to consider the interests of justice. That is to be left to the Lord President. That is the proper division for which I have been arguing from the start of this Bill. That subsection is a kind of model which should be applied to other clauses.

Subsection (10) (b) is a repetition of the measure that I have already objected to in relation to criminal proceedings and acts of adjournal. I need not rehearse what I have said on that. Subsection (12) is a repetition of the subsection that I urge the Government to delete; namely, the subsection which requires the Lord Advocate and the Secretary of State, and now I believe the Director General of Fair Trading, to do things, as soon as is reasonably practicable". My final point is an important one. As I understood it, the noble and learned Lord the Lord Advocate accepted a notion in relation to the admission to the supreme courts of solicitor advocates. He accepted the notion that they, like ordinary advocates, should be subject to the fit and proper person test. When the noble and learned Lord considers Clause 21 as redrafted, he will find that it does not, like the former draft, contain the fit and proper test. The level playing field and the interests of justice both require the same thing: namely, that if a person is to be admitted to plead in the High Court whether as an advocate, a licensed solicitor or a barefoot pleader, he should be a fit and proper person. I hope that when the noble and learned Lord the Lord Advocate provides his next draft of this clause— which may not be the last— he will take that point on board also.

Baroness Phillips

Before the noble and learned Lord replies, I wish to make a small point. Perhaps it is peculiar to Scottish law but I have never before seen a reference to a "natural person". One is surely not dealing with unnatural persons. I noted that the word "persons" is also used. Is there any reason why the words "natural persons" are used in relation to Scottish law?

The Earl of Balfour

My noble and learned friend will see that subsections (6) and (7) of the new clause refer only to "the Director". After reading the old Clause 21 I know that that relates to the Director General of Fair Trading, which was there written out in full. However, the new clause does not indicate who the director is and that must be considered at a later stage.

Lord Fraser of Carmyllie

I shall look at the point raised by my noble friend Lord Balfour. As regards the "natural person", it is envisaged that a professional body will be making applications on behalf of its members who are natural persons and individuals. They will not be other associations or companies but one professional body making applications for its individual members—

Baroness Phillips

As a teacher of English, which I assume is spoken over the Border, I believe that reference should be made to "the person". "Natural person" is an unnecessary and confusing description.

Lord Fraser of Carmyllie

We dealt with the matter earlier and I pointed out that, as a matter of drafting, it is correct to use the word "natural" when one is speaking of a person.

Following the undertakings and concessions that I made during our earlier debates on amendments to the existing Clause 21, it is clear that a number of amendments must be made to the clause.

As regards the point raised by my noble friend Lord Renton, I hope that the relationship between the Lord President and the Secretary of State is more clearly set out. The noble and learned Lord, Lord McCluskey, seized on the issue because he pointed out that subsection (8) shows a clear and important limitation in the involvement of the Secretary of State. I am grateful for his recognition of that. Both the Lord President and the Secretary of State must agree for their respective interests. If they do not agree there will be no approval. Therefore, the Lord President, who is the senior judge in Scotland, has a veto on the introduction of such a group as pleaders into the courts.

I hope that I have persuaded Members of the Committee that the new clause is now set out more clearly and that a proper and important position is given to the Lord President.

Lord Morton of Shuna

My noble and learned friend has confused me even more. Subsection (6) confines the Lord President in his consideration to subsections (1) and (2) (a) and (b). Subsection (8) confines the Secretary of State to various issues. Who considers subsections (2) (c) and (3)? Surely it would be better to provide that the Lord President "shall consider the scheme". However, if the matter is to be redrafted, no doubt the noble and learned Lord will take that into account.

Lord Fraser of Carmyllie

Following his consultation with the Director General of Fair Trading the Secretary of State shall have regard to matters mentioned in subsection (2) (b) or (c). Subsection (2) (a) is a matter exclusively for the Lord President. Subsection (2) (b) is a matter in which they are both involved, subject to the limitations highlighted by the noble and learned Lord, Lord McCluskey. Subsection (2) (c) is a matter for the Secretary of State. However, I emphasise that the scheme falls if in any part the Lord President does not come to an agreement.

Lord Macaulay of Bragar

In the light of observations made by my noble friend Lady Phillips, and before the claymores start swinging north of the Border, I wish to indicate that the contribution of the noble and learned Lord, Lord McCluskey, on the grammatical construction of the clause indicates that not only do we speak English north of the Border but we understand it.

Lord Simon of Glaisdale

The noble and learned Lord the Lord Advocate has been good enough to say that he will reconsider the drafting of the clause but I wish to draw attention to an additional matter. Subsection (5) provides that the regulations under the clause shall be subject to the negative scrutiny procedure. In a number of recent statutes passed in this and the previous Session Members of the Committee had difficulty in determining whether the affirmative resolution procedure or the negative resolution procedure should be applicable.

I suggest that, although there will be many borderline cases, a rough test might be as follows: if it is more likely than not that Parliament will wish to examine the regulations, it should be by affirmative resolution procedure; if it is possible but not at all probable that Parliament will wish to examine the regulations, the negative procedure is appropriate. I should be grateful if the noble and learned Lord the Lord Advocate would reconsider the matter in that light, giving it such weight as he thinks right.

Lord McCluskey

The previous clause made clear that any decision made by the Lord President disapproving a scheme was subject to judicial review. I am now unclear about whether the decisions of the Lord President and the Secretary of State are intended to be the subject of judicial review. I do not ask the Lord Advocate to tell me this afternoon but to make the matter clear when redrafting the clause.

Subsection (16) provides that a person who wilfully and falsely pretends to have rights of audience that he does not have, although he may have some, is to be subject to a fine. I believe that a person who has rights of audience in a civil court, for example, and represents that his rights of audience are in a criminal court— or a person who has rights of audience in relation to insolvency and pretends that he has rights of audience in relation to matrimonial proceedings— should be automatically disbarred. Accordingly, in replacement of the summary conviction and a fine on standard level 4, I suggest that the redrafted clause should include a provision that such a person shall automatically lose his rights of audience in whichever court he possesses them.

The Earl of Selkirk

In redrafting the clause I hope that my noble and learned friend will bear in mind that in Scotland three people are concerned in the administration of justice; the director general, the Secretary of State and the Lord President. I have read the clause four or five times and it is extremely difficult to know who is responsible for what. For example, subsection (8) provides: a code of practice as is mentioned in that paragraph as would, in his view, directly or indirectly inhibit the freedom of a member of the body concerned to undertake all the work". That provision refers to the Secretary of State but I had thought it was the director general. I know that I am stupid and I do not understand such matters, but who is responsible for what is a matter of public interest? Will my noble and learned friend bear that closely in mind when redrafting the clause?

On Question, amendment agreed to.

4 p.m.

On Question, Whether new Clause 21 shall stand part of the Bill?

Lord McCluskey

Having given notice of my intention I wish to make a general point which applies as much to the new clause as to the old. There have been many indications during the proceedings of the Committee to suggest that the Government have given virtually no thought to the details of how the provisions will work in Scotland.

I do not know the position in England, but in Scotland the administration of justice in the supreme courts is in the hands of a body called the College of Justice. There are no Inns of Court and no partnerships. All the advocates— anyone who fulfils the requirements and is admitted to the Faculty of Advocates— use a common services agency called Faculty Services Ltd. It provides them with telephones, secretarial services, telex, computer access to law reports, and so on and so forth.

Secondly, members of the faculty share access to the Advocates' Library which is the finest library in Scotland and was created by the advocates and the bulk of it given to the nation in 1921 for nothing. The advocates have therefore created the library and those common services which are open to members of the Faculty of Advocates. Sitting as a judge in the court, one is dependent not just upon the honesty and integrity of advocates, but on their having the necessary books. If a case comes up, they can within half a minute send out someone to obtain a photocopy of the relevant report and lay it before the court or bring the book itself. Sometimes we need a photocopy because we frequently refer to old books which pre-date the Act of Union.

I put this point to the Government to think about. I do not know how those lay persons— the barefoot pleaders— who will come into the Court of Session will have access to the books. I do not know how they will have access to the unreported judgments of the court. Counsel constantly refer us to unreported judgments which are contained in and maintained by the Faculty of Advocates in special files. They never get into the books. I do not know how they will obtain access to typists, photocopiers, telex and all the other facilities.

I do not expect my noble and learned friend the Lord Advocate to reply, and it would waste time if I sought to make him do so today. However, I ask him to bear those points in mind, in the generous spirit with which he has approached the Committee proceedings, at least today, and to think carefully about them. I suggest that, when he does so, he will go to his right honourable friend the Secretary of State and say, "Let's just put this on ice".

Lord Mackie of Benshie

I have listened with absolute horror to the debate and have seen distinguished lawyers tearing the Bill apart. I have seen the noble and learned Lord the Lord Advocate introduce a new clause before the original clause has been debated. As a layman, I think it is horrifying. I hope that the noble and learned Lord the Lord Advocate will now insist that his department has plenty of time to put the new clause right with the amendments before it comes back on Report.

Lord Fraser of Carmyllie

I have already indicated that there are further necessary amendments, but those comments are somewhat ungracious of the noble Lord. I am offering to make those amendments in response to a number of questions and amendments which were tabled to the existing Clause 21 by noble and learned Lords opposite and on the Cross-Benches. I shall therefore certainly address myself to those matters and to a number of other points that were made during the debate on new Clause 21.

On the point raised by my noble and learned friend Lord McCluskey, there would undoubtedly be difficulties of access to libraries and the like in the Parliament House building in Edinburgh. As I understand it, that same problem might emerge with regard to solicitor-advocates under Clause 21. On the question of access to the books of the Faculty of Advocates, as I understand it the Faculty of Advocates has already indicated a certain generosity of spirit in looking towards some arrangements which might be achieved, but I understand the point made by the noble and learned Lord.

Lord McCluskey

Perhaps I may add one further word. Solicitor-advocates have access to two excellent libraries. The writers to the signet have an enormous library, and the solicitors at the supreme court have an excellent library. The three libraries— the advocates' library and the two solicitors' libraries— have as it were common borrowing rights and share their books, so there is no problem for solicitors to obtain access to books, facts and consultation rooms. However, the barefoot pleaders who come in from outside have no access to any of those facilities. I do not see that, having spent several centuries acquiring their library and their rights, the advocates will welcome the plumbers, boy scouts and others who will be given the rights to litigate and advocate under the clause, or that the latter will be given access to their books and facilities.

New Clause 21 agreed to.

The Earl of Strathmore and Kinghorne

I think that this might be a convenient moment for a Statement to be taken. I beg to move that the House do now resume.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.