Lords Sitting of 20 February 1990

Preamble
The House met at half-past two of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Newcastle.

Water Charges: Proposed Increases
Lord Dean of Beswick Lord Dean of Beswick asked Her Majesty's Government:
What criteria were used in calculating the proposed increases in charges limits for statutory water companies, announced by the Minister of State for the Environment on Wednesday 7th February (HC Deb. col. 640).
The Parliamentary Under-Secretary of State, Department of the Environment (Lord Hesketh): My Lords, in calculating the proposed charges limits Ministers were bound by the duties imposed on them by Section 7 of the Water Act 1989, principally the duty to ensure that companies can finance the proper carrying out of their functions as appointed water undertakers.
Lord Dean of Beswick: My Lords, is the Minister aware that, if one takes the figure that the Minister is allowing, plus inflation, which is not contained in that figure, on those criteria the increase for people in the Bournemouth area over the next three years will be in the region of 70 per cent. to 80 per cent.? Where is the protection for the consumer that the Minister in another place promised during the passage of the Water Bill in order to justify that privatisation measure which they forced through this House and another place?
Lord Hesketh: My Lords, I am sure that it is well worth remembering that an amendment from the Benches opposite was carried in your Lordships' House last summer and constant demands were made for ever tighter standards. The costs that will be burdened on the consumer are those that are required in order to raise and achieve the standards that were so manfully defended and sought by those on the Benches opposite during the debate on the Bill in your Lordships' House before it became an Act.
Lord Elliott of Morpeth: My Lords, is my noble friend aware that as chairman of a statutory water company—the Newcastle and Gateshead water company—I am more than fully conscious of the long and arduous discussions that have taken place between the water companies and the Government on price increases? Does he accept that company chairmen like myself appreciate to the full that every criterion had to be justified before a price increase was granted? In my opinon the very last thing that this Government could ever be accused of is not supporting the well being of the water consumers of this country.
Lord Hesketh: My Lords, of course I stand in the shadow of my noble friend who is an acknowledged expert on the industry. I can assure your Lordships' House that his point is very well made. There have been long and very complicated negotiations to achieve that fair balance.
Lord Graham of Edmonton: My Lords, does the Minister understand that when over the next three years the water consumers in, for instance, the Colne Valley, are faced with a 50 per cent. increase, and those in the Lee Valley with a 45 per cent. increase, they have to translate those increased costs for water into their wage applications with its impact on the inflation policy of the Government? Does the Minister understand that the Government ought to tell the whole story to the consumers and come clean, and make sure that every consumer understands that the cost of his water is being inflated as a direct result of government policy?
Lord Hesketh: My Lords, the noble Lord, Lord Graham, asks the Government to come clean. The Government are coming clean by insisting on cleanliness in water. It is worth remembering that an average bill is currently some £57 per annum.
Viscount Mountgarret: My Lords, does my noble friend agree that part of the problem is that historically consumers have had water somewhat on the cheap for quite a long time and that we are just beginning to catch up?
Lord Hesketh: My Lords, the truth of the matter is that there was severe underfunding of the investment in the infrastructure and because of privatisation we have been able to rectify that. That is why the consumer is now having to pay for the increases in standard and quality that we all want.
Lord Grimond: My Lords, although there may have been underfunding, is the Minister aware that my water rates in London increased by over 10 times in the 10 years before nationalisation?
Lord Hesketh: My Lords, I am afraid that I do not have the figures prior to nationalisation but if I can add to the remarks of the noble Lord I shall write to him.
The Earl of Onslow: My Lords, is the Minister aware that London water is considerably cheaper and cleaner than Perrier water?
Lord Hesketh: My Lords, I have always been an enthusiast for the tap.
Lord John-Mackie: My Lords, there have been increases for almost a year now. When will the standards about which the Minister speaks be achieved?
Lord Hesketh: My Lords, they are being achieved and will be achieved. There are various different standards as I am sure the noble Lord is aware. They will be achieved within the timescale that we set out and agreed.
Lord Williams of Elvel: My Lords, is the Minister aware that this morning Thames Water announced an increase of 12.2 per cent. in its prices? Is this the pattern of things to come from the privatised water authority?
Lord Hesketh: My Lords, for the noble Lord, Lord Williams—who is a member of the Front Bench opposite which insisted on improving standards—to come to the Dispatch Box and ask me why, when those standards and costs are reflected in a rise in charges I find slightly curious.
Lord Williams of Elvel: My Lords, will the noble Lord bear in mind that I did not ask him why? I asked whether that is the pattern of things to come.
Lord Hesketh: My Lords, it is the very nature of improvement in an infrastructure that it will cost money.
Lord Dean of Beswick: My Lords, is the Minister aware that figures that were quoted by the noble Lord, Lord Elliott, for the Newcastle authority will mean that users of the water in that area over the next three years will face an average increase of 15 per cent? That is twice the amount of the present inflation figures. As my noble friend Lord Williams on the Front Bench has asked, what will the Government do when the new massive private companies start to levy their charges? Will all water users be faced with an increase of upwards of 15 per cent? If so, what will become of the Government's fight against inflation?
Lord Hesketh: My Lords, I think it is worth remembering that we are actually talking about an increase over the years ahead of some 23p per month. If that is the price of achieving the highest water standards in the world, I do not believe that it is too high a price to pay.

Weather Forecasts and Storm Warnings
2.43 p.m.
Lord Campbell of Croy Lord Campbell of Croy asked Her Majesty's Government:
Whether the international services providing weather forecasts and storm warnings have improved since October 1987.
The Parliamentary Under-Secretary of State, Ministry of Defence (The Earl of Arran): My Lords, there are no international agencies providing weather forecasts and storm warnings. However, the Meteorological Office provides forecasts for shipping and civil aviation in fulfilment of its obligations under certain international conventions and agreements. While warnings to ships and aircraft in October 1987 were timely and adequate, these recipients too will have benefited from the general improvements effected following the Swinnerton-Dyer-Pearce Report on the 1987 storm.
Lord Campbell of Croy: My Lords, I am most grateful to my noble friend for his reply, which is satisfactory because a few hours' warning of gales enables basic precautions to be taken. However, since flooding has been the worst effect of recent bad weather, is it possible to forecast conditions which cause this; for example, very heavy rainfall and snow melting on hills?
The Earl of Arran: My Lords, I can inform my noble friend that the National Rivers. Authority is committed to a policy of providing and operating flood warning systems and that it keeps them under constant review. Moreover, as new technologies, such as rainfall radar, are developed they are incorporated into those systems.
Lord Molloy: My Lords, is the Minister prepared to consider the fact that when British television companies broadcast their weather forecasts the forecaster sometimes brushes his hand over an area representing 500 or 600 square miles and people are not always quite sure about which area he is talking? Therefore, would it not be possible for them to illustrate the different parts of the country and the weather that is affecting them by indicating the number of towns involved; for example, by mentioning Edinburgh, Glasgow, Newcastle, Birmingham and Cardiff as well as London?
The Earl of Arran: My Lords, I can tell the noble Lord that the BBC and ITN, along with the Meteorological Office, are considering ways of reinforcing procedures in order to enhance the impact of broadcast information in severe weather conditions. As regards the particular points he raised, I shall ensure that these are brought to the attention of those concerned.
Lord Graham of Edmonton: My Lords, does the noble Earl recall that two or three years ago the European Parliament urged that a system of co-ordination be looked at within the EC? Can he tell us what steps the Government have taken to encourage an EC-wide weather forecasting organisation? Further, can he tell us what steps this country takes to alert other countries when bad weather which is affecting us is moving in their direction?
The Earl of Arran: My Lords, international co-operation in meteorology is very extensive, ranging from meteorological research to the exchange of observations and forecasts several times every day. The WMO's global telecommunications system connects the national meteorological services of some 160 member states. Moreover, where services are required on an international basis, current procedures and agreements work well.
Lord Mackie of Benshie: My Lords, is the noble Earl aware that the Meteorological Office is totally incompetent when compared to a Jewish forecaster who lived over 2, 000 years ago who was able to advise the Pharaoh that there would be seven good years followed by seven bad ones?
The Earl of Arran: My Lords, with great respect to the noble Lord, I think that we have been successful in updating a more reliable system since that time.
Lord Mishcon: My Lords, is it not a shame that the noble Lord, Lord Joseph, is not present in this Chamber today?
The Earl of Arran: My Lords, it is always a shame when my noble friend is not present in your Lordships' House.

Mr. Salman Rushdie: Death Threats
2.48 p.m.
Lord Jenkins of Putney Lord Jenkins of Putney asked Her Majesty's Government:
In the light of the letter in the Independent of Wednesday 7th February signed by the president, chairman and members of the Council of the Royal Society of Literature, what action they are taking to deter continuing threats to the life of Salman Rushdie.
Viscount Ullswater: My Lords, we deplore Iran's continuing incitements to murder a British citizen and Iran must lift the threat to the life of Salman Rushdie. Mr. Rushdie continues to receive the police protection he has had since the threat to his life was first made in February 1989.
Lord Jenkins of Putney: My Lords, I thank the noble Viscount for that reply. Is he aware that the Government are to be congratulated for preserving Mr. Rushdie's life so far? However, perhaps he can give us further information on the matter. The Question tabled yesterday was concerned with the past, but this one is concerned with the future. Can he tell us how long this situation will continue? Further, have the Government any plans to bring it to an end?
Viscount Ullswater: No, my Lords; it will be continued so long as it is considered necessary by the police, having regard to all the circumstances involved.
Lord Molloy: My Lords, can the noble Viscount tell the House whether there have been any arrests by the police of those people who march on our streets calling for the murder of Mr. Rushdie? Is that not a criminal offence?
Viscount Ullswater: My Lords, if the noble Lord refers to a demonstration that took place on Saturday, I can inform your Lordships that according to the police about 200 people attended an assembly organised by the Young Moslem League to protest against The Satanic Verses. The demonstration was generally orderly. When the youths tried to burn an effigy of Mr. Rushdie, the police took it away from them. About 20 police officers were deployed and only two arrests were made, for public order offences.
Baroness Strange: My Lords, can my noble friend the Minister tell us when it will be possible to conduct Question Time without mention of this author on the Order Paper?
Viscount Ullswater: My Lords, I cannot help my noble friend. It is up to me to answer the Question.
Lord Harris of Greenwich: My Lords, do the Government realise that the kind of question which has just been asked is undesirable? Is the noble Viscount aware that this is a clear case of international terrorism by Iran? As long as some of us are Members of this House, we shall raise the issue of threats made to the life of a British subject.
Viscount Ullswater: My Lords, I entirely agree with the noble Lord that this is quite despicable. In my original Answer I said that we deplored the stance that Iran has taken and we look very firmly to Iran to change its mind.
Lord Cledwyn of Penrhos: My Lords, as the Moslem community itself seems to be divided on the issue of the death threat to Salman Rushdie, is it appropriate at this stage for Her Majesty's Government to arrange a meeting with selected leaders of the Moslem community? They would do so with a view to obtaining a clear and unequivocal statement from that community to its followers that they should observe the laws of this country while they remain in Britain.
Viscount Ullswater: My Lords, it would be quite wrong to castigate the British Moslem community on the basis of the actions of an extremist few. Many Moslems are British citizens; many have been born in Britain. We value the contribution which they have made to this country.
As for the point made by the noble Lord the Leader of the Opposition, the Government consider that remarks made by Dr. Siddiqui at a meeting in East London on 18th February appear to advocate the upholding of British law. I shall of course bear in mind the further remarks made by the noble Lord to see whether anything else can be done.
Lord St. John of Fawsley: My Lords, would a way out of this miserable dilemma be for the Government to consider amending the law of blasphemy so that it covered insults to the Moslem religion? Then the Moslem community would have some other recourse—a non violent recourse—to satisfy their outraged feelings.
Viscount Ullswater: My Lords, I understand that there is to be a judicial review later this month. Obviously we shall wish to consider the outcome. A minority of the Law Commission recommended extending the scope of the blasphemy laws in 1985. Apart from obvious difficulties in deciding where to draw the line between religions deserving protection and extremist cults, to change the law in this way might encourage a flurry of prosecutions which would be damaging to relations between members of different faiths.
Lord Wyatt of Weeford: My Lords, would it not be far better if the ancient and obsolete laws of blasphemy were removed altogether? Every religion should be allowed to take criticism like every other organisation. If it is strong enough to exist as a religion then it has nothing whatever to worry about.
Viscount Ullswater: My Lords, I feel that that matter is outside the scope of the Question on the Order Paper.
Lord Annan: My Lords, does the noble Viscount agree that here it is important to lower the temperature and not to give any opportunity to martyrs in the matter? Surely one way is to treat this fatuous fatwa with the ridicule it deserves. Does the noble Viscount also agree that people sometimes get steamed up and make statements which appear to be violent but which, in practice, are not? For instance, did not the highly distinguished father of the noble Earl, Lord Russell once sit down in Trafalgar Square? Although no doubt he was hoping to be arrested, the police wisely did not arrest him.
Viscount Ullswater: My Lords, I think that we should pay some regard to the remarks made by the noble Lord. For my part, I hope that these demonstrations will soon cease. However, I fear that there is a requirement that Iran should play a part in this matter.
Lord Hailsham of Saint Marylebone: My Lords, is not part of the truth about the matter that there ought to be brought home to Moslems who support this fatwa the immense amount of harm they have done to Islam throughout the civilised world? They have not only made an unreadable book a bestseller, but they have also brought contempt upon one of the three great world religions which derives from the life of Abraham.
Viscount Ullswater: Yes, my Lords, I agree with the remarks of my noble and learned friend. I should be surprised if those who are demonstrating have actually read the book.
Lord Monson: My Lords, if a group of non-Moslems were to make precisely the same threats against an individual of whom they disapproved, couched in identical terms to the threats directed against Salman Rushdie, would they too escape prosecution?
Viscount Ullswater: My Lords, it is entirely up to the police and the prosecuting authorities to take action if the evidence justifies it, as my noble and learned friend the Lord Chancellor said yesterday.
Lord Mishcon: My Lords, indeed, as the noble and learned Lord the Lord Chancellor said yesterday, this is a matter where the Director of Public Prosecutions has considered all the evidence and, to date, has decided that there is insufficient evidence to prosecute for incitement to murder. I wonder whether the noble Viscount could find some way of communicating to the noble and learned Lord the Lord Chancellor—it should not be too difficult at
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this moment—the report in the Guardian of yesterday? It stated that at the meeting held on Sunday night addressed by Dr. Siddiqui, he ridiculed the decision of the Director of Public Prosecutions,
"not to prosecute him for incitement to murder on the grounds that there was insufficient evidence as an example of the 'dishonesty and duplicity' of the establishment".
Has not a limit been reached when either our law must show itself capable of dealing with such matters or it will be brought into ridicule?
Viscount Ullswater: My Lords, the remarks made by the noble Lord, Lord Mishcon, are serious. I shall certainly bring them to the attention of my noble and learned friend in order that they can be examined once more.
Lord Jenkins of Putney: My Lords, I am grateful to the noble Viscount for these answers. Will he take note of what has been said on all sides of the House on this matter, and see whether the Government can devise some means of improving the situation created by this difficult problem?
Viscount Ullswater: Yes, my Lords.

Education: HM Inspectorate Report
2.58 p.m.
Baroness Lockwood Baroness Lockwood asked Her Majesty's Government:
Whether they will take any action following the annual report of Her Majesty"s Inspector of Schools that the accommodation of the youth and adult education service is "old, drab, badly maintained and inappropriate for its purpose.".
Baroness Blatch: My Lords, for 1990–91 £485 million is available in annual capital guidelines for capital expenditure on local authority maintained institutions. This compares with only £352 million under the old system of allocations for 1989–90. It represents an increase of nearly 40 per cent. It is for local education authorities to decide how to divide their capital resources among schools, colleges, adult education institutes and youth services.
Baroness Lockwood: My Lords, I thank the noble Baroness for that response. Does she agree with the report that demands are increasing on both adult education services as a consequence of changes in demography and the changes in Government policy relating to Care in the Community; and on the youth service because of the way in which it is responding to the needs of the disadvantaged among our young people? In view of that does not the Minister agree that resources are needed in that area to provide adequate accommodation for those essential services?
Baroness Blatch: My Lords, I certainly agree that demand for that service is increasing. However, it is reasonable to say that it is for local education authorities themselves to determine priorities. They have annual capital guidelines but they are able to

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supplement that with capital receipts and also with revenue taken from the community charge. They can levy the community charge to increase revenue in this area. It is very much a matter for local education authorities to determine priorities for their own areas.
Baroness David: My Lords, is the Minister aware that every time we ask these questions we are told that it is a matter for the local education authorities? The adult education service and the youth service need some statement from the Government to show that they believe in them and they want to help them. The shift in funding policies as regards the Workers' Educational Association, extra-mural work and local management in schools all make the future of the adult education service and the youth service look uncertain. We should like some statement of commitment from the Government.
Baroness Blatch: My Lords, I understand the point about uncertainty. This is a difficult time for local education authorities and for the youth service. However, it is very much up to LEAs to determine their own priorities. The party of the noble Baroness has said many times that we at central level should not be prescriptive about how local authorities spend their money. Therefore, it is very much for local authorities to respond to the needs in their local areas.
Baroness Blackstone: My Lords, is the noble Baroness who is speaking on behalf of the Government aware that the DES itself has identified a backlog amounting to £3 billion in repairs to school buildings? In those circumstances does she not agree that the additional amount of money for capital that has been identified is far too small? Will she tell the House whether the DES will be asking for new money for capital in the light of the HMI report?
Baroness Blatch: My Lords, certainly a backlog has been identified, but I must refer to my original Answer which displays the Government's concern about the need for extra capital expenditure, which is up from £352 million to £485 million. It is also fair to say that LEAs can supplement that expenditure by using capital receipts. The way in which capital receipts work now for local authorities means that they can spend 50 per cent. on capital projects and they can use the other 50 per cent. to reduce debt which in turn releases revenue to be spent on capital projects.
The Earl of Onslow: My Lords, is my noble friend aware that there is great scope for savings on this issue? In the county in which I live there is a private school and a state school. The private school had its sports hall burnt down and the state school had its refectory burnt down. Both acts were committed by the same arsonist. The private school has now been completely repaired but, because of bureaucratic delay, the bulldozers have not even started to move into the state school to start clearing up the rubble of the refectory. That delay is unnecessarily costing the state money. It is also imposing an unnecessary
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charge on community charge payers and children are being deprived of proper education. This is a case of incompetence rather than lack of money.
Baroness Blatch: My Lords, I cannot comment on the specific problem that my noble friend raises. However, I can say that paragraph 86 of the report states that there is a need:
"To improve the management, monitoring and evaluation of existing provision".
It is also true to say that LEAs can respond to their needs in a variety of ways. There are some exciting and innovative ways of responding to those needs through using village halls, school buildings, higher education buildings, further education buildings and through involving the community itself. There is a variety of responses to meet this excessive need.
Lord Taylor of Blackburn: My Lords, my noble friends Lady Lockwood and Lady David have sought assurances. It is all very well for the Minister to say that the money is there but that is not true because the money is spread over such a wide area that there is insufficient left for the services referred to in the Question. The essential services need that money; therefore there is insufficient money left for adult education and the youth service.
Baroness Blatch: My Lords, I cannot agree with the premise of the comments made by the noble Lord. I have given the figures for the money that is allocated from the Government. Those figures have increased year on year. It is very much a matter for local education authorities to determine how that money will be spent and to determine their priorities. In some areas the money will be used within the local community and in other areas it will be used for local schools. Therefore I cannot agree on a particular mechanism. An alternative would be for the Government to prescribe how the money should be spent. I do not think the noble Lord would agree with that.
Lord Peston: My Lords, did the noble Baroness mean to say that in the end the Government really do not care how local authorities spend money? The Minister seemed to be saying that the Government were perfectly happy to let authorities spend the money in any way they wished. Does the Minister not find it paradoxical that she has a totally laissez-faire attitude to local education authorities as regards the adult education service but that she is perfectly happy to provide central government funds for city technology colleges which no one wants at all?
Baroness Blatch: My Lords, I do not believe that the Government take a laissez-faire attitude or that they are not concerned about the quality of education. The very fact that the report exists is indicative of the Government's concern. It is this kind of report which makes local authorities reconsider the way in which they provide services. The hope is that every education authority will look at the report and make some evaluation of the service it provides in the light of the report.
Lord Beloff: My Lords, does my noble friend the Minister agree that, although the noble Lord, Lord Peston, is entitled to say that he does not like city technology colleges, it is a bit much to say that no one likes them? I have a great deal of evidence to show that they are widely appreciated.
Baroness Blatch: My Lords, city technology colleges are another matter. However, I think the noble Lord will know that I am an enthusiast of this innovative educational experiment.
Lord Peston: My Lords, I hope the noble Baroness accepts that I do not wish to have a debate with her and her noble friend Lord Beloff. However, the point I sought to emphasise is that there is no doubt whatever about the enormous public support for the youth and adult education services in this country. Is she not aware that many people will look askance at the fact that the Government do not appear to think that that service is worthy of the highest priority?
Baroness Blatch: My Lords, I do not accept that. I believe that the Government are concerned about youth and adult education. It may be appropriate for me, in reply to this point, to say that the Department of Education and Science is developing a policy on the youth service in partnership with LEAs and voluntary organisations through a series of national conferences. The first of these on the theme of a youth service curriculum was addressed last December by my honourable friend the Parliamentary Under-Secretary of State from the Department of Education and Science. There will be other conferences.
Baroness Lockwood: My Lords, does the Minister agree that the report of the chief inspector is to the Secretary of State? Therefore, would it not be appropriate for him to make some comment on the areas where he feels there is a shortfall in the service?
Baroness Blatch: My Lords, the use of the report will be widespread throughout the education service. It may be appropriate for me to point out that the quote in the Question asked by the noble Baroness comes from paragraph 13. It does not refer to the youth and community service at all.
Baroness Lockwood: My Lords, has the Minister not looked at page 3, paragraph 13, which refers quite specifically to the youth and adult services? That paragraph describes the accommodation for that service as:
"old, drab, badly maintained and inappropriate for its purpose".
Baroness Blatch: My Lords, it is important to read out the whole sentence which states:
"Accommodation in further education varies markedly within and between colleges—"
Baroness David: My Lords, I must interrupt the noble Baroness.
Noble Lords: Order!
Baroness Blatch: My Lords, The sentence continues:
"Some teaching areas are well designed and modern while others are old, drab and in need of refurbishment".
That refers to accommodation for further education but it refers only to some accommodation.
Baroness Lockwood: My Lords—
Noble Lords: Order!
The Lord Privy Seal (Lord Belstead): My Lords, we have had a pretty good go round the course. If the House wishes, perhaps we should go on to the next business.
Baroness Lockwood: My Lords—
Noble Lords: Order!
Lord Belstead: My Lords, if the noble Baroness will forgive me, I must say that there is always one difficulty for noble Lords and noble Baronesses which is that they need to make themselves heard. To make themselves heard they must have the sympathy of the House. We have spent 12 minutes beyond what the House itself believes is right for the length of Question Time. I suggest that if your Lordships wish, we should pass to the next business.
Noble Lords: Hear, hear!

Business
3.10 p.m.
Lord Denham: My Lords, it may be for the convenience of the House to know that the Report stage of the Courts and Legal Services Bill will be adjourned at about 7.30 p.m. for approximtely an hour and that during that adjournment the Licensing (Northern Ireland) Order 1990, the Horticultural Development Council (Amendment) Order 1990, the Data Protection (Regulation of Financial Services etc.) (Subject Access Exemption) (Amendment) Order 1990 will be taken.

Business: Education (Students Loan) Bill
Lord Ponsonby of Shulbrede: My Lords, I should like to ask the noble Lord a business question. He will be aware that the student loans Bill is down for Second Reading today week. I understand that that Bill has not yet been received from another place. I should therefore like to know how the Government propose to comply with Standing Orders which stipulate a minimum interval of two weekends between the introduction of a Bill or the date on which a Bill is brought from the Commons and the Second Reading. How has that situation arisen? It will cause great inconvenience to many noble Lords if it is necessary to postpone the Second Reading of the Bill.
Lord Denham: My Lords, the time of arrival of a Bill from another place is a matter for another place. However, in arranging for Bills to be taken in your Lordships' House sometimes the usual channels have to make a prediction as to when a Bill will arrive in order to give noble Lords a date for consideration on Second Reading. I believe that that is the more important when, as in the present case, a Bill is expected to be of interest to many of your Lordships.
In the present instance I regret that we guessed wrongly. Nevertheless I believe that it is for the convenience of your Lordships that, having informally advertised the date for Second Reading as next Tuesday, 27th February, we should stick to that date. When the Second Reading is put on the Order Paper this evening the entry will be marked according to the convention as being an item of business which is set down within the minimum intervals recommended in the Companion to the Standing Orders. If the noble Lord opposite wishes to make representations that the Second Reading be postponed beyond that date I shall be only too happy to discuss the matter with him.
Lord Ponsonby of Shulbrede: My Lords, the noble Lord did not answer the second part of my question as to how the situation has arisen when another place finished with the Bill last Thursday evening.
Lord Denham: My Lords, I believe that it would be improper for me to comment on what is very much the prerogative of another place. We can receive the Bill only when it is sent from another place. We have not had it yet.
I should like to say to the noble Lord, Lord Ponsonby, that the mimum intervals in this House are very important. They were arrived at on a recommendation of the Select Committee on practice and procedure. In a previous existence I was able to make representations to that Select Committee and suggest that minimum intervals should be enforced. The reason was the quite intolerable way in which the previous Administration, the one before 1979, treated this House, which I am pleased to see the party opposite now implicitly regards as totally wrong.
Lord Tordoff: My Lords, perhaps the noble Lord the Chief Whip will excuse me if I say that his last remarks are not particularly helpful to achieving a sensible arrangement in the circumstances. We all understand that the pigeons which produce documents from pigeonholes at the other end of the building have somehow gone lame and are taking rather longer than normal to bring the Bill forward for First Reading in this House.
It is true that noble Lords have in their diaries a date for the Second Reading of the Bill. I believe that noble Lords on all sides of the House would wish to be accommodating in the matter. However, it seems that the First Reading is not yet imminent. Although I understand the difficulty of the noble Lord the Chief Whip in predicting what may happen in another part of this building, try as we may, our patience may be tried beyond measure if the matter is delayed much later today.
Lord Denham: My Lords, the noble Lord, Lord Tordoff, spoke in a very patient tone of voice. I hope that that patience will not be abused and that lame pigeons, however lame they may be, will manage the 150 yards down the Palace of Westminister rather sooner than we feared might have been the case.
3.14 p.m.
Lord Cledwyn of Penrhos: My Lords, by way of clarification and for the record, I should like to say that, while I agree entirely with what the noble Lord the Leader of the House said about the time taken on Questions today, my noble friends Lady Lockwood and Lady David rose merely to correct the noble Baroness, Lady Blatch, who referred to paragraph 13 of the report and not to paragraph 15, which was the paragraph referred to by my noble friends.
Lord Belstead: My Lords, if I have done an injustice to either noble Baroness I apologise. However, they will bear in mind that Question Time is for seeking information and not for giving it.
Noble Lords: Hear, hear!
Noble Lords: Oh!

Llanelli Borough Council (Burry Port Harbour) Bill [H.L.]
3.15 p.m.
Read a second time, and committed to a Select Committee.

Avon Light Rail Transit Bill [H.L.]
Read a second time, and referred to the Examiners.

Courts and Legal Services Bill [H.L.]
3.16 p.m.
Report received.
Clause 1 [Allocation of business between High Court and county courts]:
[Amendments Nos. 1 to 3 not moved.]
Lord Simon of Glaisdale Lord Simon of Glaisdale had given notice of his intention to move Amendment No. 4:
Page 2, line 12, leave out ("Without prejudice to the generality of section 84 (2) ").
The noble and learned Lord said: My Lords, I apologise for the fact that the amendments in my name are all starred. The reason is that there was so little time between my receiving on Monday a letter which the noble and learned Lord the Lord Chancellor wrote to me between the Committee and Report stages. I also wanted to see the noble and learned Lord the Lord Chancellor's amendments, most of which were put down only on Friday.
Most of the amendments relate to an attempt to shorten the Bill by removing unnecessary material. My noble and learned friend the Lord Chancellor kindly said that he would discuss that and other matters with me. Under those circumstances I do not propose to move the amendments.
There is an extremely important amendment to come later relating to what is called the cab rank rule. It is of high constitutional importance, and it is most desirable that your Lordships should be able to pronounce on that amendment at a reasonable hour rather than in the early hours of the morning, as has been our custom during the passage of the Bill.
Under those circumstances I shall not move Amendments Nos. 4 and 5.
[Amendments Nos. 4 and 5 not moved.]
The Lord Chancellor (Lord Mackay of Clashfern)The Lord Chancellor (Lord Mackay of Clashfern) moved Amendment No. 6:
Page 2, line 23, leave out ("An order under this section") and insert ("Any such order").
The noble and learned Lord said: My Lords, in speaking to Amendment No. 6 I shall speak also to Amendments Nos. 12, 14 and 15.
The purpose of the amendments is to clarify, in accordance with the undertaking I gave at Committee stage on 16th January, that the only part of Clause 1 which confers powers on the Lord Chancellor to make orders is subsection (1).
Subsection (1) gives the Lord Chancellor power by order to extend the jurisdiction of the High Court and the county courts. In Committee, a number of those who spoke, including my noble and learned friend Lord Simon of Glaisdale and my noble friend Lord Renton, had clearly understood the clause as conferring separate order-making powers in subsections (1) and (4). I undertook to look again at the drafting, to see whether all possibility of misunderstanding could be removed, and these amendments are the result.
One by-product of the amendments will be to remove any residual doubt there may have been about whether subsection (4), which contains the power to amend primary legislation, albeit in the limited and consequential ways that I have described, will be subject to affirmative resolution. I beg to move.
Lord Simon of Glaisdale: My Lords, the amendments of my noble and learned friend now clearly bring the clause into line with what he understood it to mean before it was amended. One need not then go into the difference of opinion in Committee which was very clear. I merely say that I welcome the amendments and am grateful to my noble and learned friend.
Lord Mishcon: My Lords, as we too sought clarification, perhaps I may from these Benches thank the noble and learned Lord for his gracious way of dealing with the matter. He promised at Committee stage that he would look into it, he has done so and we now find the wording quite satisfactory.
The Lord Chancellor: My Lords, I am extremely grateful to my noble and learned friend Lord Simon of Glaisdale, and to the noble Lord, Lord Mishcon. As noble Lords will see as we proceed, I have endeavoured to carry out as fully as possible in the time available the various undertakings that I made.
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No. 7:
Page 2, line 24, leave out ("made by or under any enactment") and insert ("falling within subsection (4A) and").
The noble and learned Lord said: My Lords, I have already explained the amendment. I beg to move.
On Question, amendment agreed to.
[Amendments Nos. 8 to 10 not moved.]
The Lord Chancellor The Lord Chancellor moved Amendment No. 11:
Page 2, line 35, at end insert—
(" (4A) A provision falls within this subsection if it is made by any enactment other than this Act or made under any enactment.").
The noble and learned Lord said: My Lords, this is another amendment to clarify the difficulties that were found in Committee in Clause 1. I beg to move.
Lord Simon of Glaisdale: My Lords, I have only one question to ask. It relates to a number of the other amendments of my noble and learned friend. The amendment incorporates the words,
"made by any enactment other than this Act or made under any enactment".
Am I right in thinking that the word "by" refers to the text of a statute and that the word "under" refers to subordinate legislation under a statute, so that
"any enactment other than this Act",
means that the Henry VIII clause does not operate with regard to this Act, although it may operate with regard to subordinate legislation under this Act or any other Act? I ask my noble and learned friend whether I have understood that point correctly.
The Lord Chancellor: Yes, my Lords. The aim is to make it clear that the provisions of the Act cannot be affected by an order made under that section, but that any other enactment can be and that any subordinate legislation made under the Act can be. My noble and learned friend has therefore understood the effect of the amendment as I intend it.
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No. 12:
Page 2, line 36, leave out ("order under this section") and insert ("such order").
The noble and learned Lord said: My Lords, I have already spoken to the amendment. I beg to move.
On Question, amendment agreed to.
[Amendment No. 13 not moved.]
The Lord Chancellor The Lord Chancellor moved Amendments Nos. 14 and 15:
Page 2, line 40, after ("No") insert ("such").
Page 2, line 40, leave out ("under this section").
The noble and learned Lord said: My Lords, I have already spoken to these amendments with Amendment No. 6. I beg to move.
On Question, amendments agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No. 16:
Page 2, line 45, at end insert —
(" (8) The Lord Chancellor shall, within one year of the coming into force of the first order made under this section, and annually thereafter, prepare and lay before both Houses of Parliament a report as to the business of the High Court and county courts.").
The noble and learned Lord said: My Lords, I want to deal with this amendment rather fully. At Committee stage there was a good deal of discussion about questions of resources for the courts and about the way in which the courts might respond to the effects of the statute. I undertook then to consider whether the concerns might be met by putting an obligation on the Lord Chancellor to place before Parliament a report on the court business.
The Lord Chancellor's Department already prepares such a report which is circulated to those who are thought to be interested, such as the General Council of the Bar and the Law Society. However, in view of the general interest in this matter, the suggestion was made, principally by the noble Lord, Lord Mishcon, but agreed and supported by others, including my noble friend Lord Renton. I have therefore concluded that it would be right and would help noble Lords to continue an informed interest in these matters after the Bill has, I hope, become law and been put into effect, to see how matters arise.
On the question of the court service, although I accept that there are problems in particular courts from time to time, the work of the courts has, generally speaking, been done extremely well in the years at which we are looking. Perhaps the most interesting fact that I should mention in that connection is that, because of its existing powers, the High Court is already able to send down a considerable number of cases to the county courts. In 1987 just over 9, 000 cases were transferred down to the county courts under that power. In 1988 the number had increased to over 12, 500 cases and in the first eight months of 1989 the figure was over 10, 000 cases. The county courts are therefore already coping, under the exercise of powers by the judges of the High Court, with many of the kinds of cases which would be allocated to them under the arrangements possible as a result of the new powers under the Bill.
Generally speaking, those arrangements are being handled successfully with reasonable waiting times in the county courts. One of the important consequences is that waiting times in the High Court have been significantly improved. My noble and learned friend the Lord Chief Justice referred to some figures of that kind in the early summer. The result has been an increase in the availability of justice and a considerable decrease in the delay required in order to obtain it.
Another factor that I have not mentioned on previous occasions is that, in the financial year 1984–85 for example, there were 353 circuit judges. That figure rose to 393 at the beginning of 1987–88 and to 408 at the beginning of this financial year. Gross expenditure on the court service, excluding legal aid and the court building programme, rose from £145 million to £210 million, and to an estimated £261 million in the last of those years. I mention those figures in order to illustrate the kind of material that will be covered in the report which the Lord Chancellor will have a statutory obligation to lay before Parliament if the amendment is accepted. I beg to move.
Lord Mishcon: My Lords, we are moving with commendable speed. I do not in any way intend to slow down the pace. I want to thank the noble and learned Lord for having accepted both in spirit and in fact the amendment that I moved at Committee stage with support from various parts of the Chamber.
I have one difficulty. After Clause 13 of the Bill I have tabled an amendment which seeks to deal with standards to be kept up in the court administration. That amendment contains a provision to require an annual report. I believe that that requirement belongs more suitably to that amendment. My difficulty is that if, by some mischance, that amendment were not carried, the requirement that there should be this desirable annual report will not be in the Bill.
I feel that the sensible course is to express my appreciation to the noble and learned Lord for this amendment, to say that the amendment ought to be accepted at this stage and to see what happens to the later amendment. Then, if I am still caught in the same difficulty, I shall try to do something about it at Third Reading. At the present stage I definitely feel that the amendment should be supported and I again thank the noble and learned Lord.
Lord Renton: My Lords, I too accept the amendment and am most grateful to my noble and learned friend.
On Question, amendment agreed to.
3.30 p.m.
Lord Lloyd of Kilgerran Lord Lloyd of Kilgerran moved Amendment No. 17:
After Clause 1, insert the following new clause:
("Trade marks: county court.
.—(1) The Lord Chancellor shall by order made by statutory instrument designate at least one county court as a trade marks county court and confer on it jurisdiction (its "special jurisdiction") to hear and determine such descriptions of proceedings —

(a) relating to trade marks, or

(b) ancillary to, or arising out of the same subject matter as, proceedings relating to trade marks, as may be specified in the order.

(2) The special jurisdiction of a trade marks county court is exercisable throughout England and Wales, but rules of court may provide for a matter pending in one such court to be heard and determined in another or partly in that and partly in another.

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(3) A trade marks county court may entertain proceedings within its special jurisdiction notwithstanding that no pecuniary remedy is sought.
(4) An order under this section providing for the discontinuance of any of the special jurisdiction of a trade marks county court may make provision as to proceedings pending in the court when the order comes into operation.
(5) Nothing in this section shall be construed as affecting the ordinary jurisdiction of a county court.")
The noble Lord said: My Lords, in moving this amendment, with the leave of the House and in order to expedite matters I should like to speak also to Amendments Nos. 18, 199 and 20 and refer to two formal amendments, Amendments Nos. 217 and 218.
As is well known, trade marks are a very important factor in trade both within the United Kingdom and beyond. More recently trade marks, or brand names as they are often called, have been recognised by large companies and their valuation, as has been indicated in the press, will now have to be shown in their balance sheets and may amount to hundreds of millions of pounds. It is anticipated that there will be considerable litigation.
I put forward these amendments on behalf of the Institute of Trade Mark Agents, of which I am an honorary associate member. The noble and learned Lord will be familiar with the general wording of Amendments Nos. 17 to 20. It appears in the Copyright, Designs and Patents Act 1988 in so far as it relates to patents. Here the words "trade marks" have been substituted for "patents".
Perhaps I may briefly indicate the scope of these four new clauses. The first sets up a trade mark county court. It is recognised as in the public interest that there should be a reduction of the workload in the High Court in order to give speedier and less expensive justice. I understand that there have already been general discussions with the office of the noble and learned Lord the Lord Chancellor with regard to setting up a trade mark county court as well as a patents county court, as for some time has been the intention.
The clause covered by Amendment No. 18 indicates the special jurisdiction of a trade mark county court. I need not read it out. For instance, it deals with the question of transfer of proceedings from or to the High Court.
Amendment No. 19 inserts another new clause indicating that the county court is designated as a trade mark county court. It is intended that the noble and learned Lord the Lord Chancellor,
"shall nominate a person entitled to sit as a judge of that court as the trade mark judge".
It is in the public interest that the person presiding over such a tribunal should have had some experience in dealing with trade marks and therefore should be designated as the trade mark judge having regard to his experience.
Amendment No. 20 inserts an important new clause. It indicates that,
"A registered trade mark agent may do, in or in connection with proceedings in a trade mark county court which are within the special jurisdiction of that court, anything which a solicitor of the Supreme Court might do".
Those rights have already been included in the Copyright, Designs and Patents Act with regard to a patent agent. This clause is intended to bring similar rights to registered trade mark agents. As that clause mentions registered trade mark agents, perhaps I may draw to your Lordships' attention the two formal amendments, Nos. 217 and 218. Amendment No. 217 merely defines the words "intellectual property" which occur generally in relation to trade mark matters. Intellectual property means:
"invention, design, technical information or trade mark, and any rights under common law in relation to passing off"
Amendment No. 218 merely defines what is known as a registered patent agent and a registered trade mark agent. A registered trade mark agent means:
"a person whose name appears on the register established under section 282 of the Copyright, Designs and Patents Act 1988".
It was rather curious to note that as the Copyright, Designs and Patents Act 1988 went through this House there were occasional references to trade marks and there was a reference made in the Act to the register of trade mark agents. I attempted to alter the Title of one Bill so as to make it clear that that Bill involved some matters of trade marks, but I failed in that attempt. The whole object of these amendments, as I said, is to set up a trade mark county court.
I fully realise that this is a matter which is still under discussion with the office of the noble and learned Lord the Lord Chancellor. Therefore I do not propose to divide the House in relation to these amendments. I should like to say that perhaps discussions could continue and the matter might be brought up more formally at Third Reading. I beg to move.
Lord Cawley: My Lords, it has always rightly been held that a registered trade mark is quite as important as, or more important than, a patent. It is a part of intellectual property. It gives me great pleasure to support in principle the noble Lord, Lord Lloyd of Kilgerran. I do not know whether these provisions will find favour with the noble and learned Lord the Lord Chancellor but certainly I am very much in favour of them in principle.
The Lord Chancellor: My Lords, these amendments cover a subject matter which I do not think we discussed particularly at Committee stage. At the outset I should like to say that so far as I know the department has not yet been approached with proposals along these lines. We have been considering questions of changing the ministerial tribunal under the Trade Marks Act 1938. There have been discussions on that but on this matter no discussions have so far taken place. That does not preclude our having discussions now. Obviously I accept that this is a matter of importance.
These amendments would oblige the Lord Chancellor to establish a county court jurisdiction in trade mark matters roughly along the lines of that set up for patents by Part VI of the Copyright, Designs and Patents Act 1988, to which the noble Lord, Lord Lloyd, referred. Indeed, as he explained,

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he has borrowed most of the wording of the relevant sections for the purpose of carrying this particular subject. Part VI of that Act was enacted before an allocation power of the kind contained in Clause 1 of the Bill was available. Moreover, it was enacted only after detailed and wide consultation led by the Oulton Committee on patent litigation, which was chaired by the then Permanent Secretary to the Lord Chancellor's Department and reported in November 1987. This report was in its turn preceded by the White Paper Intellectual Property and Innovation in 1986, Cmnd. 9712.
It will already be possible for orders under Clause 1 to confer jurisdiction on the county courts in trade mark matters. It is therefore unnecessary in any event to provide for such jurisdiction on the face of the Bill. What I consider should be possible—I should like, if I may, to check this and come back if necessary at a later stage of the Bill with an amendment—is to confer particular jurisdiction—for example, in respect of trade marks—on a limited number of county courts or perhaps a particular county court. This would enable these specialist cases to be concentrated on those courts. It might be desirable for a degree of specialisation to be built up. That is the pattern of the patent county court which has been proposed. I welcome further discussion on this matter.
As to Amendment No. 20 and also formal Amendments Nos. 217 and 218, I do not think it would be right to make separate statutory arrangements for trade mark agents in county court proceedings, given the new general arrangements for legal services in Part II of the Bill. When the corresponding section of the Copyright, Designs and Patents Act 1988 was enacted there were no such arrangements. The only way in which the result could be achieved was somewhat on the lines of the provision in Section 292. But the arrangements that we now have in Part II would enable this matter to be considered fully by the advisory committee and under the machinery that is proposed.
In the light of that way forward, the noble Lord, Lord Lloyd of Kilgerran, supported by my noble friend Lord Cawley, may feel able to withdraw the amendment and leave the matter for further discussion, realising that, subject to the one point I made about concentrating jurisdiction on a particular county court, the objects that he has in mind could be achieved, if they are found desirable on consultation, by the arrangements already in the Bill.
Lord Lloyd of Kilgerran: My Lords, I thank the noble Lord, Lord Cawley, who I have known for many years as a distinguished member of the patent Bar, for his support in principle of the amendments. I thank the noble and learned Lord the Lord Chancellor for having indicated that he would be prepared to consider further representations in regard to these matters. In those circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 18 to 20 not moved.]
Clause 2 [Transfer of proceedings between courts]:
3.45 p.m.
The Lord Chancellor The Lord Chancellor moved Amendment No. 21:
Page 3, line 4, leave out ("procedure provision") and insert ("provision of a kind mentioned in subsection (8) ").
The noble and learned Lord said: My Lords, in moving Amendment No. 21 I should like to speak also to Amendments Nos. 22, 24, 25, 26 and 27. These are drafting amendments designed to take account of criticism from my noble friend Lord Renton and my noble and learned friend Lord Simon of Glaisdale about the phrase "procedure provision" as it was used in the clause as originally drafted. In considering the matter I thought that it was possible to improve the situation with the help of parliamentary counsel. These amendments are the result. I beg to move.
Lord Renton: My Lords, I am most grateful to my noble and learned friend.
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No. 22: Page 3, line 12, leave out ("procedure") and insert ("such"). On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No. 23:
Page 3, line 20, leave out from ("considers") to end of line 21 and insert ("appropriate, having taken into account the convenience of the parties and that of any other persons likely to be affected and the state of business in the courts concerned.").
The noble and learned Lord said: My Lords, in Committee the noble Lord, Lord Mishcon, proposed an amendment to amend the original draft of the new Section 40 (4) of the County Courts Act 1984 which would be inserted by Clause 2 of the Bill. As it stood, it provided that proceedings transferred under this section —that is, from the High Court to the county courts—should be transferred to such county court as the High Court considered convenient. My objective, as I explained to the Committee, was not to prevent the courts from taking account of the convenience of the parties, but to ensure that wider factors—especially of course the convenience of parties to other cases —could also be taken into account. There was, I think, little or nothing between my aim here and that of the noble Lord, Lord Mishcon, and I therefore accepted his amendment to require the court to take its decision having taken into account the convenience of the parties.
I said at the time, however, that I would hope to be able to come back if on reflection it appeared that the phraseology was perhaps not the most expedient, and that is why I invite the House to consider this amendment. It is designed both to render the section a little more elegant and to set out explicitly the other factors which will have to be considered when the High Court decides to which county court to transfer a particular case. I beg to move.
Lord Mishcon: My Lords, I am most grateful to the noble and learned Lord.
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendments Nos. 24 to 27:
Page 3, line 44, leave out from (" (8) ") to ("made") in line 45 and insert ("The provisions referred to in subsection (1) are any").
Page 4, line 16, leave out ("procedure provision") and insert ("provision of a kind mentioned in subsection (7) ").
Page 4, line 24, leave out ("procedure") insert ("such").
Page 5, line 5, leave out from (" (7) ") to ("made") in line 6 and insert ("The provisions referred to in subsection (1) are any").
The noble and learned Lord said: My Lords, I spoke to Amendments Nos. 24, 25, 26 and 27 with Amendment No. 21. With the leave of the House, I propose to move them en bloc.
On Question, amendments agreed to.
Clause 3 [Remedies available in county courts]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 28:
Page 6, line 10, leave out from (" (7) ") to end of line 11 and insert —
("No such statutory instrument shall be made unless a draft of the instrument has been approved by both Houses of Parliament." ").
The noble and learned Lord said: My Lords, this amendment fulfils the undertaking which I gave in Committee, when we debated what is now Clause 84, that I would ensure that the affirmative resolution procedure is adopted in this Bill wherever the power to amend primary legislation is conferred upon regulations or orders. Clause 3 provides that regulations restricting the remedies available to the county courts may make necessary or expedient consequential amendments to other enactments. It is appropriate therefore that this power should be made subject to affirmative resolution. This is in accordance with the undertaking that I gave to my noble friend Lord Rippon.
Perhaps I should take this opportunity to say that my statement in Committee towards the end of a fairly long Committee stage was intended to apply to this Bill as a general principle in deciding the various matters that might arise in the Bill. It was not my intention—I am sure my noble friend will understand this—to say that in all legislation for the future this would necessarily be the rule. I was making it my principle to apply throughout the whole of this Bill so as to render it unnecessary to discuss these matters in relation to each individual clause. I beg to move.
Lord Rippon of Hexham: My Lords, I appreciate what my noble and learned friend has done and I appreciate his explanation that it was an undertaking in relation to this specific Bill. I may have gone a little too far in the debate the other day in saying that it was a precedent for all occasions. However, I hope that it will be found to be a useful precedent for future Bills.
Lord Mishcon: My Lords, the noble and learned Lord will know that many members of the legal profession are still somewhat unhappy that the remedies available in the county court should be capable at all of being restricted by regulation. This view was expressed in Committee. Nevertheless, if it is to be inserted in the Bill, as appears to be the
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case, then naturally we should prefer the affirmative procedure. For that we are grateful.
Lord Simon of Glaisdale: My Lords, I too should like to thank my noble and learned friend. I share the anxiety of the noble Lord, Lord Mishcon. I could not pick up this amendment in my amendment that was discussed in Committee at a quarter past two in the morning, so I wrote to my noble and learned friend. I am most grateful to him for having picked it up now.
I was a little disturbed to hear my noble and learned friend say that his comments about Henry VIII clauses and affirmative resolution apply only to this Bill. He was speaking on behalf of the Government. I fully understood that during the last Session and this Session the recommendations of the Donoughmore Report were accepted; that only in exceptional circumstances should the Executive arrogate to itself the power to legislate in the way which traditionally has been the function of Parliament.
As the noble Lord, Lord Mishcon, indicated, if there is to be such use of Henry VIII clauses, the least that can be done is to bring forward an affirmative resolution so that Parliament can be given an explanation. That should apply not only to this Bill but to all legislation brought forward by the Government.
The Lord Chancellor: My Lords, I wished to clarify my undertaking and that I have done. As regards the point raised by the noble Lord, Lord Mishcon, one must adopt a somewhat evolutionary approach. We are making considerable changes in relation to the county courts and concern has been expressed about both granting powers which are too wide and also restricting powers. I thought it right to have a machinery under which the matter could be considered. Any concerns on the lines expressed by the noble Lord, Lord Mishcon, can be taken into account in deciding what is to be done.
On Question, amendment agreed to.
Clause 4 [Costs]:
[Amendment No. 29 not moved.]
The Lord Chancellor The Lord Chancellor moved Amendment No. 30:
Page 6, leave out lines 30 to 37.
The noble and learned Lord said: My Lords, the amendment is too good to miss because I find myself lined up with my noble and learned friends Lord Ackner and Lord Simon of Glaisdale —
Noble Lords: Hear, hear!
The Lord Chancellor: My Lords, it has not caused me to reconsider the correctness of the amendment but it has been a complete fortification of the fact that I have it right. The amendment deletes the detail which we suggested in subsection (4) of the new Section 51 of the Supreme Court Act 1981 in attempting to distil the cases. Having heard the comments of the noble Lord, Lord Mishcon, my noble and learned friends Lord Ackner and Lord Simon and others, I decided that it was wise to

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return to the words of generality originally contained in the law. The position is helped by the amendment to the general law proposed in relation to rights of appeal, and that may well be helpful in matters of cost. The amendment carries general agreement and I beg to move.
Lord Wilberforce: My Lords, I do not want my noble and learned friend's cup to overflow completely but I wish to indicate my support for his amendment. In Committee I said that the subsection as drafted would not cover the case in which a defendant is supported. It provides for the "bringing of the proceedings". Our case is that where a defendant is supported by an outside person it may be desirable to order him to pay costs. That is achieved indirectly by my noble and learned friend's amendment and I am happy to add my support.
Lord Simon of Glaisdale: My Lords, the practice as to costs is well understood and worked out by the judicial decision. In Committee a general feeling was expressed that the matter should be left to the discretion of the judge. I considered that subsection (4) (d), to which I have tabled an amendment, was particularly dangerous and it also came under the baleful glance of the noble Lord, Lord Mishcon.
In my opinion, what has been done by my noble and learned friend the Lord Chancellor is preferable. It is to remove the whole subsection and, in the exercise of discretion as to costs, leave the matter to the existing practice, which is firmly based on the interests of justice.
Lord Ackner: My Lords, I wish to voice my appreciation for the fact that my suggestion has been accepted. It is most satisfactory to find myself sitting next to my noble and learned friend the Lord Chancellor once again. For reasons which I have explained many times and shall explain again, my only wish is that he had never left us.
The Lord Chancellor: My Lords, I am not sure how to take the last compliment. I am particularly grateful that my noble and learned friend Lord Wilberforce also supports the amendment. I had in mind the point that he raised and realise that my proposal achieves that. I am grateful for his support.
On Question, amendment agreed to.
The Lord Chancellor: My Lords, Amendment No. 31 has been pre-empted.
[Amendment No. 31 not moved.]
The Lord Chancellor The Lord Chancellor moved Amendment No. 32:
Page 7, line 22, at end insert —
(" (10A) No such statutory instrument shall be made unless a draft of the instrument has been approved by both Houses of Parliament.").
The noble and learned Lord said: My Lords, the amendment is of the same type as that which we discussed in Committee and I need explain it no further. I beg to move.
On Question, amendment agreed to.
Clause 5 [Exchange of witness statements]:
[Amendment No. 33 not moved.]
Clause 6 [Evidence given in arbitrations on small claims]:
[Amendment No. 34 not moved.]
Clause 7 [Restrictions on appeals to Court of Appeal]:
Lord Mishcon Lord Mishcon moved Amendment No. 35:
Page 8, line 13. leave out ("subsection") and insert ("subsections").
The noble Lord said: My Lords, this is a paving amendment to Amendment No. 40. Noble Lords will see that the amendment provides that there should be no requirement to obtain leave to appeal to the Court of Appeal in the case of judicial review proceedings.
Noble Lords may remember that during Committee I made a plea—unfortunately, it was not successful—that there should be no requirement to obtain leave in order to go to the Court of Appeal. The answer I received—and it was a respectable argument —was that often the Court of Appeal finds that it is dealing with frivolous and hopeless cases which stand no chance of success. Therefore, it is out of mercy to the litigant that the leave must be obtained.
That argument cannot possibly apply in the case of judicial review because in order to make one's case for judicial review one must first obtain leave. One comes before the court, which is most circumspect to ensure that no hopeless, silly or vexatious case ever gets further than the application for leave. On many occasions in your Lordships' House admiration has been expressed for the evolution of the remedy of judicial review. Some people have called it the "citizens' charter". Others have called it the "heralding of the liberty of the subject" because the Excecutive can be challenged if it moves in an improper, unreasonable way.
That is the remedy about which we are speaking. Bearing in mind that one must go through the whole gamut of obtaining leave—that is explaining one's case to the court—before one can obtain a hearing of judicial review, should it not be the right of the citizen to say, especially in regard to this precious remedy, "Judges are but human. They are not infallible by any manner of means. I want to have this matter tested. I have been given leave and, therefore, I have a reasonable case". Why should that citizen then be faced with a leave to appeal application? I beg to move.
4 p.m.
Lord Renton: My Lords, I support this amendment. There are two reasons which I do not believe were mentioned by the noble Lord, Lord Mishcon, which I put forward in support of it. First, the Court of Appeal has played an important part in the evolution of the law relating to judicial appeal. Therefore, we should not be deprived of any opportunity of carrying on that good work.

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The other point is a narrow one and relates to this Bill; namely, that the opportunities for judicial review will necessarily be rather frequent under the Bill. Therefore, as we are considering this matter in relation to that I believe that we should particularly welcome the amendment.
Lord Harmar-Nicholls: My Lords, there is a layman's reaction to what could flow from this. By and large the ordinary citizen who must tolerate the results of these decisions feels that there are occasions when a matter should be brought to an end. There is a feeling that it has been examined in detail, impartially and objectively, and that a judgment has been given but that if a way can be found of extending the matter further then it goes on and on. One sees many examples of that within the American system where sometimes cases continue for years. I do not believe that that is in the best interests of people accepting what is sound judgment.
While I do not pretend to argue the details behind this amendment with the noble Lord, Lord Mishcon, or my noble friend Lord Renton, I feel that there is a risk that we are extending this to such a point that we are avoiding bringing something to an end which should be brought to an end and justice would still be done.
Lord Donaldson of Lymington: My Lords, I very much hope that the noble Lord, Lord Mishcon, will withdraw this amendment, which I respectfully believe is wholly misconceived. Under the existing law the public law court, as we sometimes refer to the Crown Office list dealing with judicial review, is already subject, as has been mentioned, to the unique requirement that there must be leave before you can even begin the proceedings. It is also subject to another requirement which is almost unique; namely, that subject to extensions of time, the proceedings must be brought within three months of the complaint arising.
The reason for those two provisions were stated by Lord Diplock in O'Reilly v. Mackman when he said:
"The public interest in good administration requires that public authorities and third parties should not be kept in suspense as to the legal validity of a decision the authority has reached in purported exercise of decision-making powers for any longer period than is absolutely necessary in fairness to the person affected by the decision".
It is the third parties who are affected by the decision, more than the authorities, with which I am concerned. You challenge a local authority or a national authority decision, as can be done. There is a superficial attractiveness to the challenge and leave is given. Then everything is if not at a standstill at any rate in doubt in the public administration. When the matter has been looked into by the judge following the giving of leave, one hopes that he will reach a clear decision one way or the other. If he does not reach a clear conclusion there will be no obstacle to the matter going to the Court of Appeal.
However, he reaches a conclusion knowing far more about the matter than was the position when leave was given, probably on an ex parte basis. That is the time at which the interests of third parties
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once again have to be taken into consideration. The Court of Appeal and the judge should have an opportunity of saying, "There really is nothing further to look into and nothing further to be considered. It is no longer right that that decision should continue to be under a cloud".
The noble Lord, Lord Renton, said that it was terribly important that the Court of Appeal should be able to develop the law of judicial review. He will not expect me to disagree with him about that. Indeed, that is one of the more enjoyable activities in the Court of Appeal. However, he seems to overlook the fact that if the rules committee so desires, the most that it can do is to say to the Court of Appeal, "Nobody shall come to you unless you want them to come to you". Therefore, I do not believe that development will be in the least stultified and I hope that this amendment will be withdrawn.
The Lord Chancellor: My Lords, as I made clear in Committee, the purpose of this clause is not to shut out people who have a case from the Court of Appeal, but in the interests of the court, in the interests of the administration of justice and also in the interests of litigants who have a hopeless case, the Court of Appeal should have the power to tell them that at an early stage. Accordingly, in my submission this amendment is not directed to securing justice but rather to doing harm to a general power which the rules committee should have on the lines of this clause.
I believe that your Lordships will accept the view that my noble and learned friend the Master of the Rolls, as president of the Civil Division of the Court of Appeal, would be most unlikely to wish to do anything which would restrict the power of that court to develop that every important remedy of judicial review which, as the noble Lord, Lord Mishcon, very correctly said, has been carefully developed by the courts over the years.
One of those who took a great part in that development was Lord Diplock. One of the factors about the jurisdiction of the court is that it has been developed with due regard to all the interests affected by the exercise of it. The interests of third parties are extremely important in that connection, as the quotation made by my noble and learned friend shows.
I should have thought that on this amendment the sentiments of my noble friend Lord Harmar-Nicholls were correct and that your Lordships should feel, while understanding perfectly that the noble Lord, Lord Mishcon, wished to distinguish between judicial review and other cases, that the power to the rules committee should be a general power. It will no doubt have regard to special considerations in its decision under this power.
Lord Hooson: My Lords, I agree with the noble and learned Lord, Lord Donaldson, on this point. My initial reaction was to be in favour of the amendment. However, when I look back at my experience of judical review, one often has leave from the original judge and finds that by the time one reaches the actual hearing circumstances have changed enormously because affidavits have been

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filed and what seemed prima facie to be a very good case is often found to be a non-reviewable case. The clients in such cases are often local committees which are raising money to try to prevent the closure of a hospital or a school or something along those lines. They feel very strongly about the point and feel, often correctly, that the merits are entirely with them.
However, a point has to be established at which it is possible to say that there has been bad administration and so on. There must be a reviewable point. It is often terribly difficult to explain that although the original judge had given leave, you cannot advise that the case should continue. Therefore, the filtering effect referred to by the noble Lord, Lord Mishcon, is not really a safeguard. I believe that it is in the interests of justice generally that if litigants wish to proceed further on a difficult and non-reviewable case, they should seek leave and there should be a further filter in the Court of Appeal.
Lord Mishcon: My Lords, perhaps I may give an example of when it is appropriate for leave to speak and leave to appeal should be heard. The noble Lord, Lord Hooson, ought to take note since at Report stage the debate closes except for the mover of the amendment. Nevertheless, the House was pleased to hear the application for leave to appeal by the noble Lord, Lord Hooson, even though it extended the length of the proceedings, if I may say so to the noble Lord, Lord Harmar-Nicholls.
I will not spend a lot of time on this amendment. The cause is a worthy one because this is such a special remedy. If I may say so, freedoms—and judicial review is a very precious one—are not embedded in the decisions of committees, even the sacrosanct committee which deals with rules of procedure. Freedoms are sacrosanct and, indeed, inscribed in our statutes and in our common law. I should have loved this freedom to appeal, without the need to ask for leave in the case of judicial review, to be embedded in statute even though the noble and learned Lord says that the things which I and other noble Lords have spoken about will be considered by the rules committee in due course.
I do not believe I have sufficient support in your Lordships' House to proceed further than to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Lord Chancellor The Lord Chancellor moved Amendment No. 36:
Page 8, line 14, after ("such") insert ("class of).
The noble and learned Lord said: My Lords, with Amendment No. 36 I should like also to speak to Amendments Nos. 38 and 39.
These amendments do two things. First, they fulfil the undertaking which I gave in Committee to make it clear on the face of the Bill that the Court of Appeal may always be petitioned for leave to appeal even where that leave can also be granted by the court of first instance. I regard this as being of great importance. However well intentioned, the court of first instance may not on occasion be able to be
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entirely disinterested in assessing its own decision, and it is right therefore that it should always be possible to seek leave from the Court of Appeal itself. This amendment assists in ensuring that Clause 7 is a measure not to restrict the right to have a case considered by the Court of Appeal, but simply a method of rendering the hearing more efficient by weeding out the obviously hopeless cases, both in the interests of the efficiency of justice for others and also in the interests of litigants who may be, however ill-advised, pursuing a hopeless case.
Secondly, the amendments effect a minor drafting change by referring to classes of cases rather than merely to cases. I beg to move.
On Question, amendment agreed to.
4.15 p.m.
Lord Ackner Lord Ackner moved Amendment No. 37:
Page 8, line 15, after first ("Court") insert ("not being a case where the liberty of the subject is concerned").
The noble and learned Lord said: My Lords, this is a very small amendment. It is holding on to a situation which has existed for many years; namely, that where the liberty of the subject is at issue leave to appeal is not required and the right to appeal is absent.
I do not wish to reiterate what was so movingly said by the noble Lord, Lord Mishcon, in his reply on judicial review. This is an a fortiori situation. Of course, the filter system —which is what is now being imposed —of requiring the leave of the tribunal or the Court of Appeal is a desirable one, but it is often open to consideration as to whether it is a fallible one. Where it makes an error in relation to the liberty of the subject then it is a disastrous error.
Judicial time must of course be spared whenever possible, but the courts are there to serve the public. An attempt in this clause is successfully being made to make justice less available, which is apparently contrary to the whole purpose of the Bill. It is justified in a manner which was spoken to by my noble and learned friend the Master of the Rolls on the last occasion and it has now been justified again. I do not think the justification is adequate where the liberty of the subject is concerned. I beg to move.
Lord Campbell of Alloway: My Lords, I support this amendment. I came into your Lordships' House specifically to do so. It is wholly right that the liberty of the subject should be safeguarded in this way. My hope is that my noble and learned friend the Lord Chancellor will take this one on board. I know that there is the argument that there is the rules committee, the Court of Appeal, the filter system and "We have no need to worry; everything will be all right". However, everything is not all right. Where the liberty of the subject is concerned it is not worth taking a risk.
Lord Hooson: My Lords, perhaps I may say that we certainly support this amendment and I need not add to the arguments advanced in its favour.
Lord Donaldson of Lymington: My Lords, I appear to be the odd man out. I do not oppose this

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amendment with any fervour, but I think it wants looking at. In the Court of Appeal we, the judges, attach the greatest possible importance to any appeal where the liberty of the subject is involved. For that reason there are standing instructions that they are to have almost absolute priority. By that I mean that if an appeal is entered this afternoon, the likelihood is that it will be heard at 10.30 tomorrow morning, even if other appeals have to be shifted to make that possible.
Against that background it might well be that the rules committee think that there is a special case and that leave to appeal should not be required. Certainly there is no administrative problem from our point of view because there are very few of these cases. Almost all of them relate to cases of contempt of court where sentences of imprisonment have been imposed by judges in the court below.
I bring to your Lordships' attention one point which would have to be taken into account by the rules committee if it were to contemplate refraining from making a rule requiring leave in these cases, and it is a point your Lordships should take into account. We are speaking here about the civil division of the Court of Appeal. Sitting next door, further up the corridor, is the criminal division of the Court of Appeal. If—perish the thought—any of your Lordships were sentenced to 14 years' imprisonment instead of three months or one month, which is what we are mostly concerned with, it would be found that there was no unfettered right of appeal to the Court of Appeal. Leave of the judge would have to be obtained. It may be that the criminal fraternity would find it a little surprising that there was such consternation in your Lordships' House at the suggestion that there should be any imposition of a screen in the way of appealing against short sentences when they have to go through the hoop if they want to appeal against a long sentence.
Lord Campbell of Alloway: My Lords—
Noble Lords: Order!
Lord Mishcon: My Lords, perhaps I may say with deep respect to the Master of the Rolls that I find it somewhat surprising to hear the comparison, or rather the similarity, argued between our civil courts with civil litigants and those who appear in our criminal courts. We are dealing with civil litigation where, for some reason, the liberty of the subject becomes involved. There ought to be, as we say in this amendment, automatic right of appeal where that liberty becomes involved in civil proceedings. I find myself in complete agreement with the noble and learned Lord, Lord Ackner. I only ask for the deletion of the words "a fortiori" when he compared his argument with mine.
The Lord Chancellor: My Lords, the provisions that we are discussing will enable the rules committee to make the detailed rules. I should have thought that that was the right course to take.
The point made by my noble and learned friend the Master of the Rolls of comparison between the civil division and the criminal division of the Court
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of Appeal strikes me as absolutely compelling. I cannot see how one can compare a necessity for leave from the criminal division of the Court of Appeal where one may be subjected to anything up to life imprisonment, and necessity for leave in the civil division where, in the nature of things, the infringement of individual liberty is often very small by comparison.
Where leave is required in the criminal division the person applying has the right to apply to the full court for leave. That would be an aspect of the rules that could be made here, distinguishing the case of liberty of the subject from other cases. So it is perfectly possible within the framework of the powers that are being provided under the Bill to deal with the matter; but one must keep a proper relativity in these matters. What possible justification can there be for requiring as an absolute rule that the Court of Appeal should as of right be available to someone in a civil case where the liberty of the subject was at issue, when the other part of the Court of Appeal —not necessarily equal in terms of numbers—that is the criminal division, operates under a system where leave is required whatever the sentence and however long the sentence that is involved may be? Of course the same applies to every aspect of the matter.
My noble and learned friend Lord Ackner said that the Court of Appeal is not infallible. All of us must accept that no human court is infallible but, as my noble friend Lord Harmar-Nicholls said, there has to come a time for determination of such matters. I should have thought it right to leave this as a matter for the rules committee to deal with. Where the liberty of the subject is concerned they might perfectly appropriately think that the rule should be especial in some way; for example, on the lines that I have just indicated. But I do not believe it would be right to exclude altogether the power of the rules committee to make a rule requiring leave to be obtained where the liberty of the subject is concerned in a civil appeal.
Lord Renton: My Lords, before my noble and learned friend sits down, I wonder whether, arising out of what he wisely said about the difference in general between civil and criminal cases, he would not consider that where habeas corpus is concerned some special rule might be feasible?
The Lord Chancellor: My Lords., yes, that is precisely what I said. The rules committee may well think it right to make a special rule in that connection. All we are doing is giving the rules committee power to deal with this. I do not wish to elaborate the argument because I know we want to get on —and I am very much in favour of that —but the situation is that as we have seen already, and as my noble and learned friend the Master of the Rolls pointed out when this clause was discussed in Committee, if too much rigidity is imposed on the rules committee anomalies are apt to develop which cannot be put right unless there is further primary legislation. This is a matter essentially to be dealt with by rule. Accordingly, I would ask your Lordships not to accept the amendment. I hope that

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my noble and learned friend Lord Ackner will feel able to withdraw it.
Lord Ackner: My Lords, I shall not press this to Division. However, I think that the analogy with the criminal situation is a false one. If it were not a false one, it is remarkable that this particular provision in an Act of Parliament has existed for so many years in one form or another. It is a false analogy for the following reason. When it is a question of sentences there are tariffs. It is not difficult to see whether a sentence is way outside the tariff or reasonably within it. When there is a point of law, however dud the point of law may seem, there is an absolute right of appeal in all criminal cases.
What I face inevitably, as one always does with this sort of situation, is the open and shut argument. I reject it in the same way as Mr. Justice Megarry did. I quoted him recently, but he is worth quoting again. He said, in the case of John v Rees in 1965:
"As anyone who has anything to do with the law well knows, the path of the Law is strewn with examples of open and shut cases which somehow were not, of unanswerable charges which in the event were completely answered, of inexplicable conduct which was fully explained, of fixed and unalterable determinations that by discussions suffered change".
The Lord Chancellor: My Lords, is my noble and learned friend withdrawing the amendment?
Lord Ackner: My Lords, I am withdrawing it.
The Lord Chancellor: My Lords, is it your Lordships' pleasure that the amendment be withdrawn?
Lord Mishcon: My Lords, no.
4.27 p.m.
On Question, Whether the said amendment (No. 37) shall be agreed to?
Their Lordships divided: Contents, 96; Not-Contents, 133.

DIVISION NO. 1

CONTENTS

Ackner, L. [Teller.]

Cledwyn of Penrhos, L.

Addington, L.

Cocks of Hartcliffe, L.

Airedale, L.

Cross, V.

Alexander of Weedon, L.

David, B.

Amherst, E.

Dean of Beswick, L.

Ardwick, L.

Dormand of Easington, L.

Attlee, E.

Ennals, L.

Aylestone, L.

Evans of Claughton, L.

Beloff, L.

Ezra, L.

Birk, B.

Fisher of Rednal, B.

Blackstone, B.

Gallacher, L.

Broadbridge, L.

Gladwyn, L.

Brooks of Tremorfa, L.

Graham of Edmonton, L.

Bruce of Donington, L.

Greenway, L.

Buckmaster, V.

Grey, E.

Byron, L.

Hacking, L.

Callaghan of Cardiff, L.

Halsbury, E.

Campbell of Alloway, L. [Teller.]

Hampton, L.

Hatch of Lusby, L.

Carmichael of Kelvingrove, L.

Hirshfield, L.

Hooson, L.

Chorley, L.

Houghton of Sowerby, L.

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Howie of Troon, L.

Ponsonby of Shulbrede, L.

Hughes, L.

Prys-Davies, L.

Hunt, L.

Rathcreedan, L.

Hutchinson of Lullington, L.

Renton, L.

Irvine of Lairg, L.

Rippon of Hexham, L.

Jeger, B.

Ritchie of Dundee, L.

Jenkins of Putney, L.

Robson of Kiddington, B.

John-Mackie, L.

Sainsbury, L.

Kinloss, Ly.

Saltoun of Abernethy, Ly.

Lawrence, L.

Seear, B.

Leatherland, L.

Selkirk, E.

Lloyd of Kilgerran, L.

Shackleton, L.

Lockwood, B.

Stedman, B.

Longford, E.

Stoddart of Swindon, L.

Lovell-Davis, L.

Strabolgi, L.

Macaulay of Bragar, L.

Taylor of Blackburn, L.

Mackie of Benshie, L.

Templeman, L.

Mishcon, L.

Thomson of Monifieth, L.

Molloy, L.

Turner of Camden, B.

Monson, L.

Wallace of Coslany, L.

Nicol, B.

White, B.

Norrie, L.

Wilberforce, L.

Oliver of Aylmerton, L

Williams of Elvel, L.

Parry, L.

Willis, L.

Peston, L.

Winstanley, L.

Phillips, B.

Winterbottom, L.

Pitt of Hampstead, L.

Wrenbury, L.

NOT-CONTENTS

Airey of Abingdon, B.

Hailsham of Saint

Alexander of Tunis, E.

Marylebone, L.

Allen of Abbeydale, L.

Hanworth, V.

Allenby of Megiddo, V.

Harmar-Nicholls, L.

Allerton, L.

Havers, L.

Alport, L.

Hayter, L.

Ampthill, L.

Henley, L.

Annaly, L.

Hesketh, L.

Arran, E.

Hives, L.

Auckland, L.

Holderness, L.

Balfour, E.

Home of the Hirsel, L

Bauer, L.

Hood, V.

Belhaven and Stenton, L.

Hooper, B.

Belstead, L.

Hylton-Foster, B.

Bessborough, E.

Ironside, L.

Birdwood, L.

Jenkin of Roding, L.

Blatch, B.

Johnston of Rockport, L.

Bledisloe, V.

Joseph, L.

Blyth, L.

Kaberry of Adel, L.

Boardman, L.

Killearn, L.

Borthwick, L.

Kitchener, E.

Boyd-Carpenter, L.

Knollys, V.

Brookeborough, V.

Knutsford, V.

Brougham and Vaux, L.

Lauderdale, E.

Caithness, E.

Lloyd of Hampstead, L.

Campbell of Croy, L.

Long, V.

Carnegy of Lour, B.

Lucas of Chilworth, L.

Carnock, L.

Lyell, L.

Colnbrook, L.

McColl of Dulwich, L.

Cottesloe, L.

Mackay of Clashfern, L.

Cox, B.

Macleod of Borve, B.

Cullen of Asbbourne, L.

Manton, L.

Davidson, V. [Teller.]

Marshall of Leeds, L.

Denham, L. [Teller.]

Massereene and Ferrard, V.

Donaldson of Lymington, L.

Melville, V.

Dundee, E.

Merrivale, L.

Eden of Winton, L.

Mersey, V.

Elibank, L.

Middleton, L.

Elliot of Harwood, B.

Milverton, L.

Elliott of Morpeth, L.

Montagu of Beaulieu, L.

Erne, E.

Morris, L.

Erroll of Hale, L.

Mountevans, L.

Fanshawe of Richmond, L.

Mowbray and Stourton, L.

Foot, L.

Moyne, L.

Fortescue, E.

Munster, E.

Fraser of Carmyllie, L.

Murton of Lindisfarne, L.

Fraser of Kilmorack, L.

Newall, L.

Gainford, L.

Nugent of Guildford, L.

Gisborough, L.

Orkney, E.

Goodman, L.

Pender, L.

Goold, L.

Pennock, L.

Grimston of Westbury, L.

Peyton of Yeovil, L.

169

Platt of Writtle, B.

Strathmore and Kinghorne, E.

Polwarth, L.

Pym, L.

Strathspey, L.

Rankeillour, L.

Sudeley, L.

Reay, L.

Suffield, L.

Renwick, L.

Swansea, L.

Rochdale, V.

Swinton, E.

Rodney, L.

Teviot, L.

Roskill, L.

Thomas of Gwydir, L.

St. Davids, V.

Trumpington, B.

Sanderson of Bowden, L.

Tryon, L.

Seebohm, L.

Ullswater, V.

Shannon, E.

Vaux of Harrowden, L.

Skelmersdale, L.

Wise, L.

Stodart of Leaston, L.

Wynford, L.

Strange, B.

Resolved in the negative, and amendment disagreed to accordingly.
4.35p.m.
The Lord Chancellor The Lord Chancellor moved Amendments Nos. 38 and 39:
Page 8, line 16, after ("of) insert ("the Court of Appeal or"). Page 8, line 17, leave out ("case") and insert ("class").
The noble and learned Lord said: My Lords, I spoke to Amendments Nos. 38 and 39 with Amendment No. 36. With your Lordships' leave I shall move them en bloc. I beg to move.
On Question, amendments agreed to.
[Amendment No. 40 not moved.]
The Lord Chancellor The Lord Chancellor moved Amendment No. 41:
Page 8, line 17, at end insert —
(" (4) In section 54 (4) of the Act of 1981 (cases in which court is duly constituted when consisting of two judges), the following paragraph shall be inserted after paragraph (a) —
" (aa) hearing and determining any application for leave to appeal; ".").
The noble and learned Lord said: My Lords, in response to a suggestion made by my noble and learned friend the Master of the Rolls in Committee, I agreed to consider whether it would be appropriate in certain circumstances to allow two judges to hear applications for leave to appeal. I agree that it will be helpful for judges faced with a particularly difficult decision to be able to sit with one other colleague; at present they have to choose between sitting as a full court of three or hearing the application alone. I therefore commend the amendment, which would permit two judges to hear applications for leave.
That does not mean that two judges only can hear applications for leave; it means that the choice is left open to the rules committee of allowing one or two judges or the full court. I beg to move.
Lord Donaldson of Lymington: My Lords, I welcome the amendment. I question whether there was a slip of the tongue when there was a mention of the rules committee. Is this not a primary power?
The Lord Chancellor: My Lords, indeed it is, but the whole clause is governed by the powers of the rules committee.
On Question, amendment agreed to.
[Amendment No. 42 not moved.)
The Lord Chancellor The Lord Chancellor moved Amendment No. 43:
After Clause 7, insert the following new clause:
("Powers of Court of Appeal to award damages
7A.—(1) In this section "case" means any case where the Court of Appeal has power to order a new trial on the ground that damages awarded by a jury are excessive or inadequate.
(2) Rules of court may provide for the Court of Appeal in such classes of case as may be specified in the rules, to have power, in place of ordering a new trial, to substitute for the sum awarded by the jury such sum as appears to the court to be proper.
(3) This section is not to be read as prejudicing in any way any other power to make rules of court.").
The noble and learned Lord said: My Lords, the amendment adds a new clause which enables the Supreme Court Rules Committee to extend the powers exercisable by the Court of Appeal when the court allows appeals against awards of damages made by juries. In cases where the court has power to order a new trial, on the ground that the jury award was excessive or inadequate, the court may be empowered to substitute its own award, which it cannot now do unless all the parties agree.
The problem caused to litigants by the Court of Appeal not having power to revise the amount of damages which should be paid has been recognised for many years. It was recognised by the Porter Committee on the law of defamation, whose report was presented to Parliament as long ago as 1948, and by the Faulks Committee on defamation whose report was presented in 1975. Both those committees recommended an extension of the powers of the Court of Appeal.
The amendment would allow the Supreme Court Rules Committee, to make new rules providing for the Court of Appeal to have that further power when it is setting aside an award made by a jury. It will be for that committee to decide in which class or classes of case the court should have that power.
The clause has been drafted so that the power could be made exercisable, not only in defamation actions, but also in other classes of case. The great majority of civil cases which are heard with a jury are those in which libel or slander has been alleged. In most defamation cases a party has a statutory right to have the action tried with a jury. The statutory right applies also to some other kinds of actions; in particular, those involving claims of malicious prosecution or false imprisonment. The court also has a discretion, not often exercised, to order trial by jury in any other kind of action. The amendment will enable the rules committee to decide in which of those cases the power should be exercisable.
The power is a useful addition to the powers available to the Court of Appeal. I do not believe that I can be accused of coming forward with the amendment too soon, seeing that it was first suggested in 1948. That suggestion was reinforced in 1975. Both those committees suggested a rather wider formulation than this rule. It is within the recommendation but it does not go quite so far. On the other hand, it may be wise to allow the juries to fix damages in the first place. The difficulty of the previous formulations was to see on what grounds it would be right to allow the Court of Appeal to

171
interfere in a jury's verdict. That is not being touched by the amendment. It deals only with the consequences of the Court of Appeal coming to that conclusion. I believe that it is a useful although not a major change in the law. I beg to move.
Lord Simon of Glaisdale Lord Simon of Glaisdale had given notice of his intention to move, as an amendment to Amendment No. 43, Amendment No. 44:
Line 9, leave out subsection (3).
The noble and learned Lord said: My Lords, I welcome Amendment No. 43. Amendment No. 44 is part of the series to remove unnecessary words from the statute book—indeed in this case, as in a clause which we have just passed, in my respectful submission, absurd words. Presumably my noble and learned friend does not agree. I know that he does not agree in respect of the earlier case.
Noble Lords will probably think that it is not an issue which can be profitably pursued on the Floor of the House and decided by a majority. My noble and learned friend has been good enough to say that he will discuss all these matters with me between Report and Third Reading, when we hope that there will be an opportunity. In those circumstances, I do not propose to move the amendment.
[Amendment No. 44 to the amendment not moved.]
Lord Mishcon: My Lords, the whole of the legal profession has read with considerable interest a recent press statement that came from the noble and learned Lord's department in regard to a recommendation that the Court of Appeal, in regard to defamation damages, should have the right and power to review, as against ordering a new trial, unless the parties consented to the jurisdiction. I can only tell the noble and learned Lord that among those practitioners with whom I have mixed his statement has been welcomed.
Lord Renton: My Lords, it is a wise and timely initiative on the part of my noble and learned friend. I gladly support it.
The Lord Chancellor: My Lords, I am very grateful for the way in which Amendment No. 43 has been received. The press statement was based on an answer given in this House.
On Question, amendment agreed to.
Clause 8 [Representation in small claims and certain other cases]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 45:
Page 8, line 19, leave out ("at any time direct") and insert ("by order provide").
The noble and learned Lord said: My Lords, with Amendment No. 45 I should like to speak to Amendments Nos. 47, 48, 51 to 53, and 55. In response to a speech by the noble Lord, Lord Mishcon, in Committee, I agreed to consider the use of a statutory instrument in Clause 8 rather than directions. Directions were the method available under previous legislation. Having done so, I can
172
say that I have no objection to such a course if your Lordships consider it appropriate. I am therefore bringing forward these amendments to convert Clause 8 from a power to make directions into a power to make orders. I believe that it may also give if some additional flexibility. I beg to move.
Lord Mishcon: My Lords, once more I am deeply grateful to the noble and learned Lord.
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No. 46:
Page 8, line 21, after ("proceedings") insert ("in a county court").
The noble and learned Lord said: My Lords, with Amendment No. 46 I shall speak to Amendment No. 49. There was some confusion in Committee whether Clause 8 could apply to proceedings other than those in county courts of the kind specified in subsection (2). If there is any ambiguity here I wish to remove it. My intention is that the power given in Clause 8 should be restricted to specified proceedings in the county courts. These amendments are designed to make that clear. I beg to move.
Lord Mishcon: My Lords, indeed, this need for clarification was made clear at Committee. The noble and learned Lord has been gracious in seeing that that is the situation. We are grateful to him for the clarification now in the Bill.
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendments Nos. 47 to 49:
Page 8, line 22, leave out ("direction") and insert ("order").
Page 8, line 23, leave out ("give a direction") and insert ("make an order").
Page 8, line 24, leave out ("in county courts").
The noble and learned Lord said: My Lords, I have spoken to Amendments Nos. 47 and 48 with Amendment No. 45, and Amendment No. 49 with Amendment No. 46. With your Lordships' leave, I propose to move them en bloc.
On Question, amendments agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No. 50:
Page 8, line 26, at end insert—
(" (aa) for the enforcement of any judgment or order of any court or the recovery of any sum due under any such judgment or order;
(ab) on any application under the Consumer Credit Act 1974; ").
The noble and learned Lord said: My Lords, I undertook in Committee to consider further the amendment moved by the noble Lord, Lord Allen of Abbeydale, to add to the categories of cases listed in Clause 8 (2) —that is, those where there may be no restriction on rights of audience in the county courts. Having done so, I am in agreement with him that it would be appropriate for the powers to remove the restriction on rights of audience to extend to enforcement proceedings and matters arising under the Consumer Credit Act. These categories will include proceedings of the minor and domestic nature in which Recommendation 48 of the Civil Justice Review intended members of the public to

173
have complete freedom in their choice of representative. I also agree that they would not be covered by the existing list in subsection (2). I beg to move.
Lord Mishcon: My Lords, we believe that this is a completely correct amendment.
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendments Nos. 51 to 53:
Page 8, line 31, leave out ("a direction is given") and insert ("an order is made").
Page 8, line 39, leave out ("direction") and insert ("order").
Page 8, line 41, leave out ("a direction") and insert ("an order").
The noble and learned Lord said: My Lords, I have spoken to Amendments Nos. 51 to 53 with Amendment No. 45. With your Lordships' leave I propose to put them en bloc. I beg to move.
On Question, amendments agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No. 54:
Page 8, line 45, at end insert —
("5A) Before making any order under this section the Lord Chancellor shall consult the Senior Presiding Judge.").
The noble and learned Lord said: My Lords, when we discussed this clause in Committee, my noble and learned friend Lord Ackner suggested that it might be appropriate for the Senior Presiding Judge to be consulted before any direction under the clause was made. This clause is concerned with removing all restrictions on rights of audience for certain specified proceedings in the county courts. My noble and learned friend pointed out—and I cannot do better than quote his words—that the Senior Presiding Judge is the conduit pipe for consultation here, as he is the person who has at his finger tips the respective knowledge from the circuits. I entirely agree that it is wise to recognise the importance of consulting the Senior Presiding Judge in the statute and that is what the amendment does.
I should make it clear that I always had the intention that he should be consulted, but I think that it is right in the circumstances of this clause that that should be put in. I beg to move.
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No. 55:
Page 9, line 3, leave out subsection (7).
The noble and learned Lord said: My Lords, I have spoken to this amendment with Amendment No. 45. I beg to move.
On Question, amendment agreed to.
Clause 9 [Penalty for failure to warn that hearing will not be attended]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 56:
Page 9, line 21, at end insert —
(" (4A) Before deciding whether or not to impose any such penalty, the court shall consider the extent to which (if any) the person concerned will, or is likely to —

(a) suffer any financial loss (by way of a reduction of costs or otherwise); or

(b) be subject to any disciplinary action, as a result of his failure.").

The noble and learned Lord said: My Lords, when we discussed Clause 9 in Committee, I made it clear that I regarded the power in Clause 9 to impose a penalty where a party to proceedings fails to give any warning that a hearing will not be attended as being an important measure in implementing court control. The Civil Justice Review suggested that this was necessary if civil cases were to proceed at a reasonable rate. But I also emphasised that while I regarded this as a proper power for the courts to have, I intended that it should be used very sparingly.
Many of your Lordships raised points on this clause in the debate. I have in mind in particular the arguments put forward by the noble Lord, Lord Meston, in support of his amendment. My noble and learned friend Lord Wilberforce, my noble friend Lord Coleraine, and others, also contributed to the debate. In the light of the arguments put forward I am persuaded that it is appropriate to clarify the inter-relation between this clause and orders for costs and professional disciplinary action.
Neither an order for costs to compensate a party which turned up in anticipation of a hearing, nor disciplinary action by the professional body of which the legal representative is a member, will always be satisfactory alternatives to a penalty under Clause 9. However, there may be occasions when the question of compensating public funds does not arise. Therefore, I think that it is right to put at the forefront of Clause 9 the considerations mentioned in this amendment. I beg to move.
Lord Wilberforce: My Lords, as my noble and learned friend said, this matter was discussed in Committee. I opposed the inclusion of this clause, with some support from the Benches opposite, on the grounds that it is really for the court to organise its business and to ascertain whether people will attend. It is really quite inappropriate to erect a heavy-handed structure of administration of fines, hearings, enforcements and so on in a civil case.
However, had I realised that I would be able to attend here today I think that I would still have proposed the elimination of this clause. It will save some 30 lines in the statute book. Nevertheless, the noble and learned Lord has offered a crumb of comfort by way of Amendment No. 56 and a still smaller crumb by way of Amendment No. 57. Therefore, as I have not tabled an amendment, I think that it would right for me to accept his crumb without feeling at all comforted by it. However, I do so reluctantly.
Lord Mishcon: My Lords, I am instructed that the Law Society regards this as a crust of comfort rather than a crumb.
Lord Coleraine: My Lords, I should like to reinforce what the noble and learned Lord, Lord Wilberforce, said. I should certainly have liked to see this clause removed from the Bill. However, I am sorry to say that I feel I have to disagree with the noble Lord, Lord Mishcon, and the views expressed by the Law Society, as I regard this concession as a crumb. But, nevertheless, a crumb is better than no bread.
The Lord Chancellor: My Lords, I must gratefully accept the views which have been expressed. I therefore hope that your Lordships will agree to the insertion of this amendment.
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No. 57:
Page 9, line 22, leave out subsection (5).
The noble and learned Lord said: My Lords, this is an amendment which gives effect to a powerful speech made by my noble and learned friend Lord Simon of Glaisdale. He referred to this as a particularly heinous clause. Having reconsidered the matter, I propose that the clause be deleted. I hope therefore that your Lordships will accept the amendment. I beg to move.
Lord Simon of Glaisdale: My Lords, I am grateful to my noble and learned friend.
On Question, amendment agreed to.
Clause 10 [Administration orders]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 58:
Page 10, line 20, leave out subsection (2) and insert —
(" (2) Where an order restricting enforcement is made, no creditor specified in the order shall have any remedy against the person or property of the debtor in respect of any debt so specified, without the leave of the court.").
The noble and learned Lord said: My Lords, this amendment is purely a drafting change aimed at improving subsection (2) of the new Section 112A of the County Courts Act 1984 and making its intention clearer. I beg to move.
On Question, amendment agreed to.
Lord Simon of Glaisdale Lord Simon of Glaisdale had given notice of his intention to move Amendment No. 59:
Page 10, line 38, after ("satisfied") insert ("that").
The noble and learned Lord said: My Lords, this amendment is grouped with Amendments Nos. 60 and 62. They are very obvious amendments, but unless my noble and learned friend indicates that he is prepared to accept them without question, it would be better, and consistent with what I have done thus far, if I were not to move them.
The Lord Chancellor: My Lords, before my noble and learned friend sits down, I should say that I would be most happy to discuss the matter with him as part of the general discussion and to put the points he raised to parliamentary counsel for advice. Therefore it would be consistent if my noble and learned friend did not move the amendments.
[Amendment No. 59 not moved.]
[Amendment No. 60 not moved.]
The Lord Chancellor The Lord Chancellor moved Amendment No. 61:
Page 10, line 40, leave out ("but") and insert ("and").
The noble and learned Lord said: My Lords, in moving this amendment, I should like to speak also to Amendments Nos. 63 to 68. The amendments effect a change of form rather than of substance. They provide for the incorporation of composition provisions—whereby the total debt made the subject
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of court administration is reduced—into administration orders, rather than being, as presently drafted, an alternative form of order. It is intended to make clear that this provision will operate in entirely the same way as administration orders do at present. The statutory reference is important in order to emphasise the existing power to reduce the total debt contained in Section 112 (6) of the County Courts Act 1984. That follows the recommendation of the Civil Justice Review at paragraph 645. I beg to move.
On Question, amendment agreed to.
[Amendment No. 62 not moved.]
The Lord Chancellor The Lord Chancellor moved Amendments Nos. 63 to 68:
Page 10, line 41, leave out ("a composition order") and insert ("the addition of a composition provision").
Page 10, line 43, leave out from ("make") to end of line 44 and insert ("an administration order subject to such a provision.").
Page 11, line 2, leave out from ("force") to end of line 3.
Page 11, line 8, leave out ("make a composition") and insert ("add a composition provision to that").
Page 11, line 9, leave out ("order") and insert ("provision").
Page 11, line 16, leave out ("order") and insert ("provision.
(5) Where a composition provision is added to an administration order after the order is made, section 113 (a) shall apply as if the addition of the composition provision amounted to the making of a new administration order.").
The noble and learned Lord said: My Lords, I spoke to these amendments when moving Amendment No. 61. Therefore, with your Lordships' leave, I propose to move these amendments together. I beg to move.
On Question, amendments agreed to. Clause 11 [Assessors]:
Lord Simon of Glaisdale Lord Simon of Glaisdale had given notice of his intention to move Amendment No. 69: Page 11, line 40, leave out ("with the consent of the Treasury").
The noble and learned Lord said: My Lords, the subject of this amendment is an old favourite. However, there will be later opportunities to discuss the matter. Therefore, under those circumstances, I do not propose to move the amendment.
[Amendment No. 69 not moved.]
Clause 12 [Goods which may be seized in execution]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 70:
Page 12, line 1, after ("12.") insert —
("—(1) In section 138 of the Supreme Court Act 1981 (effect of writs of execution against goods), the following subsection shall be inserted after subsection (3) —
" (3A) Every sheriff or officer executing any writ of execution issued from the High Court against the goods of any person may by virtue of it seize any of that person's goods except —

(a) such tools, books, vehicles and other items of equipment as are necessary to that person for use personally by him in his employment, business or vocation;

(b) such clothing, bedding, furniture, household equipment and provisions as are necessary for satisfying the basic domestic needs of that person and his family."

(2) ").
The noble and learned Lord said: My Lords, in the course of public discussion on this Bill it has been suggested to me that while updating the lists of goods exempt from execution in the county courts we should do the same for the High Court. That seems to me to be desirable and it is the purpose of the amendment. I beg to move.
On Question, amendment agreed to.
5 p.m.
Lord Mishcon Lord Mishcon moved Amendment No. 71:
After Clause 13, insert the following new clause:
("Promoting efficiency of courts
.—(1) In discharging his functions under the Courts Act 1971, the Lord Chancellor shall ensure that reasonable standards are set for the unified administrative courts service with a view to promoting efficiency and avoiding delays in the work of the Supreme Court and county courts.
(2) The standards referred to in subsection (1) are standards of performance and service including targets for the time within which any functions or duties will be discharged.
(3) The Lord Chancellor shall set the standards after consultation with the Law Society, the General Council of the Bar and such organisations representing the interests of consumers as he thinks fit.
(4) The Lord Chancellor shall lay an Annual Report before Parliament on the work of the court service which shall describe the standards which have been set, and the performance which has been achieved towards meeting them.").
The noble Lord said: My Lords, amid the rush which has occurred so extraordinarily at Report stage—that is, as distinct from that which occurred in Committee—perhaps your Lordships will pause for a moment and consider what I believe to be a rather important amendment. However, that does not mean that I intend to make a long speech. But, nevertheless, I want your Lordships to appreciate what is intended by the amendment. It is raised against the background of the whole of the object of Part I of the Bill.
Those of us who approved the intention and general principle of the Bill, which is to speed up justice and make it more economical and accessible to all our citizens, regardless of their means, have been very concerned about this—and, that obviously includes the noble and learned Lord the Lord Chancellor—and have realised that to legislate is one matter but to carry out practical provisions is another. Our concern is derived from our own knowledge—that is, those of us who practise the law in the courts of this realm —of the very sorry state which exists in many parts of the country in regard to the county courts.
Your Lordships will remember that Part I of the Bill achieves that very desirable principle by transferring to the county court jurisdiction which formerly belonged to the High Court. The hope is expressed —and, I underline the word "hope" —that the county courts, among other courts in our realm, will be able to deal efficiently and economically with a large burden of litigation which they previously did not have. Many of us were conscious of the Bill, now the Children Act, that was piloted through this House with such ability by the noble and learned Lord. That too cast upon the county courts very serious and important powers and jurisdictions.
So we come to the position where this Bill may shortly leave your Lordships' House. The concern has been expressed, "Will the county courts be able to do all this? Will the standards be maintained? Will there be a duty upon the noble and learned Lord the Lord Chancellor, whoever he may be? Will there be a duty cast upon others who have to supply the money for all this to see to it that standards are maintained?" If this is not done, I say with every sense of responsibility to your Lordships, that we shall not have done our duty. We shall have passed a measure which does not stand a chance of achieving its high aims.
What does the amendment say? I ask for your Lordships' patience while I deal with the four separate paragraphs in the amendment. The first subsection says:
"the Lord Chancellor shall ensure that reasonable standards are set for the unified administrative courts service with a view to promoting efficiency and avoiding delays in the work of the Supreme Court and county courts".
I have mentioned the Supreme Court. I wish to take this opportunity of apologising to your Lordships for a remark that I made at the Committee stage in regard to the delays in the hearing of cases which were occurring in the High Court. I quoted a serious case in which I said that even though the action had just been set down, it was not possible to have a hearing date before the middle of 1992. That information had been given to me and I thought that it was completely reliable. The person who gave it to me had made a mistake. It was mid-1991, not mid-1992.
I have taken the opportunity to write to those who participated in the debate in which I made that remark, to put my error right. I thought it only proper, even though I have said, and I believe that your Lordships agree, that mid-1991 is not an acceptable date in the circumstances. Nevertheless, we are all interested in seeing that the statements which we make in the House are accurate and that nobody is misled by them. I take this opportunity to put the record right.
I turn to subsection (2):
"The standards referred to in subsection (1) are standards of performance and service including targets for the time within which any functions or duties will be discouraged".
That subsection is there to meet the criticism that might arise if one merely read general words in an amendment which dealt with standards. The question would arise, "What standards are you talking about? Define your standards. Then we shall know where you are and we shall know what to do when we either agree or disagree with the amendment". I have tried to meet that criticism in subsection (2):
The third subsection says:
"The Lord Chancellor shall set the standards after consultation —"
I should have thought that this could not be objectionable—
"with the Law Society, the General Council of the Bar and such organisations representing the interests of consumers as he thinks fit".
We have been emphasising throughout our debates that the legal profession has a duty to look after the

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members of the public; the judges and the courts exist for the benefit of the public. It is the consumer, the client who has to be taken very much into account. That interest is protected under subsection (3).
We now come to subsection (4). I am sure that I echo the views of the representatives of the Bar, the Law Society, the Consumers' Association and the National Consumer Council. They attended on the noble and learned Lord the Lord Chancellor, by invitation, only last week in order to discuss this and other clauses which have been mentioned. The noble and learned Lord could not have been more courteous and helpful. However, I believe that I am right in saying that he took the view that he was helping towards the objective of such an amendment by agreeing that there should be an annual report. He felt that that was a good idea. It would be made and then considered by Parliament. It was his view that that went far enough to meet the matters that are part and parcel of the amendment.
We are grateful for his agreement to the annual report provision. It was a separate amendment moved at Committee stage, and the noble and learned Lord was good enough to say that he would put it into the Bill. Indeed, he did so, as we noticed earlier in the proceedings today. The place where this provision ought to be inserted is where we put it in subsection (4), in my respectful submission. The amendment says:
"The Lord Chancellor shall lay an Annual Report before Parliament on the work of the court service which shall describe the standards which have been set, and the performance which has been achieved towards meeting them".
So we have the annual report in this context; we have a duty to maintain standards. If that is in the Bill, then we know that Part I is not just an ephemeral dream which has such worthy targets and objects, but which is not likely to be achieved unless the standards that we have mentioned in the amendment are maintained.
My last observation is that it may be asked, "Is this really necessary? Can you imagine that the noble and learned Lord the Lord Chancellor, now sitting on the Woolsack, or any successor of his sitting on the Woolsack, would not have these standards well in mind?" We are all cognisant that even with the high position of the Lord Chancellor, when the queue assembles before the Treasury door it is not always the courts of justice and the administration of justice that are asked to take the first place in the queue. If there is a statutory duty, the Lord Chancellor, present and future, will have the right to say to the Treasury: "I hold this high position; I have this statutory duty in regard to the standards of the courts. I, or my predecessor, took a Bill through Parliament in many ways revolutionising the jurisdiction of various courts, in an effort to make justice more efficient and economical. I did it because I said to Parliament that standards would be achieved. But now I come to you with a statutory duty in regard to those standards. I claim if not to be the first in the queue —" this can be the remark to the Treasury—"at least to have a higher position
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in the queue than I would otherwise have". I beg to move.
Lord Hacking: My Lords, I too was part of the delegation that the noble and learned Lord so courteously saw last week. I hope that he will judge that my intervention in support of this amendment shows no lack of gratitude for, first of all, his courtesy in having such a full discussion with us and, secondly, his willingness to table his Amendment No. 16.
What we are seeking to achieve is a mechanism under which the resource—that is, the number and quality of staff and other such matters —meets the needs of the court user. We are seeking more precisely a mechanism under which payments by the court user—that is to say the income of the court —are used not as money going off the Consolidated Fund but in order to fund the court's resources. Therefore, when the court needs more resources it can increase as necessary its fee income.
In considering resources we are not only concerned with clerical work and the processing of proceedings, important though that is, but we are also attempting to deal with the question of whether there are sufficient conference facilities for private consultations in the court complex and whether there are adequate services and facilities for the judges as regards the typing of judgments. We are also concerned with the availability of law reports and textbooks. We are even seeking to tackle the matter of whether the waiting rooms are clean and pleasant and whether there are sufficient telephone facilities.
In order to achieve all of that with the unhappy background that your Lordships are wholly familiar with we argue that more needs to be provided than the annual report proposed by the noble and learned Lord. That is why I support the noble Lord, Lord Mishcon, in saying that the annual report does not deal with the statutory obligation which we wish to put in place to help the noble and learned Lord in his consultations with his colleagues. Our provision would enable him to tell his ministerial colleagues that he is under a statutory duty and that is the reason why he needs additional funds.
We believe that the other lacuna in the amendment of the noble and learned Lord is that there is no mechanism for a consultation process between the providers of the court services and the users of them. The users' committees in the High Court, the Commercial Court Committee and the Official Referees Court have been particularly successful in providing a contact point between the providers and the users of services to the public benefit. That is why I still hope that the noble and learned Lord can be persuaded that these amendments have been tabled to assist him. It would be helpful if he would consider these matters a little further.
5.15 p.m.
Lord Boyd-Carpenter: My Lords, this amendment deals with an important matter but it raises two separate or, it seems to me, separable issues. The first issue is the present state and condition of much of our legal system and particularly the state of the

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county courts. Your Lordships will recall that at earlier stages of the Bill we heard dramatic, perhaps slightly overdramatic, accounts of the disorder, disrepair and general mess and muddle in which the county court system finds itself. Certainly if what was then said by some noble and learned Lords is borne out in fact it is a highly disturbing picture. I hope that my noble and learned friend the Lord Chancellor will take advantage of the opportunity which the discussion on this amendment gives him to say how he views the present condition particularly of the county courts and particularly with reference to the major proposal in the Bill for the transfer to them of further business and of their ability to cope with that further business if it is so transferred. I hope my noble and learned friend will be able to say something about that.
The second, different issue is the attempt to enshrine the standards that are sought in fairly strict statutory provisions. The noble Lord who has just resumed his seat openly admitted that one of the reasons for the amendment was the desire to ensure that some priority in public expenditure was given to the legal system by statute over other necessary provisions made by the state. I think that is a rather dangerous line to follow. It must be the case that when the finances of the year are looked at by those responsible in the Government they must have a considerable measure of freedom to decide which in the circumstances of that time are the most crying and important demands. There have, for example, been times in our history when it has been perfectly obvious that the calls of defence were far more important from the national point of view than any other. There have also been times when social security and the relief of poverty has seemed, at any rate to many of us, to have a priority claim.
The attempt therefore to entrench one form of government activity, however important, behind statutory defences and to give it in that way priority for all time over other claims on the national purse seems to me to be dangerous. Moreover, that goes beyond the normal way in which our system operates. It is obvious, particularly in the light of this important Bill being carried into law as I hope and believe it soon will be, that the noble and learned Lord the Lord Chancellor will be answerable to this House and to public opinion for the effectiveness of the operation of the Bill and therefore for the capability of the legal system to implement it. He will have to answer questions from any of your Lordships on any day. He has a responsibility as a very senior Minister of the Crown to answer to Parliament for the working of the activities for which he holds responsibility. That seems to me the right way for your Lordships to secure that high standards are maintained. The erection of an elaborate statutory mechanism either designed to give an artificial priority to one area of public expenditure or to put the noble and learned Lord the Lord Chancellor in a different position to that of his colleagues in their responsibility to Parliament seems to me a mistake.
I therefore suggest to your Lordships that this amendment, with the exception of subsection (4), is one that should not be accepted. Subsection (4) taken
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by itself seems a sensible provision and I see no reason why an annual report should not be made. If an annual report is made and the noble and learned Lord the Lord Chancellor is responsible for that report and for answering questions about it, that very much diminishes the need for the previous three subsections of the amendment. I hope therefore that your Lordships will not accept the amendment as a whole although I hope that perhaps a kindly eye may be turned on subsection (4), perhaps at a later stage.
Lord Rippon of Hexham: My Lords, Her Majesty's Government must be assumed to give some priority to this matter by bringing forward Part I of the Bill at all as Part I is manifestly useless unless the Government are prepared to provide the resources necessary to bring it into effect. I am bound to say that I am not wholly enamoured of annual reports as a means of dealing with such matters. I have known it to happen often in the past that Ministers will confess and avoid by promising an annual report. However, if there is to be an annual report as my noble and learned friend has promised, I do not see why it should not be buttressed in some way by the kind of amendment which the noble Lord, Lord Mishcon, has proposed.
Lord Simon of Glaisdale: My Lords, the noble Lord, Lord Mishcon, always puts his case with great cogency and it was cogently supported by the noble Lord, Lord Hacking. However, I venture to deprecate the insertion of a statutory provision with the object of arming a Minister in the queue at the door of the Treasury, as the noble Lord, Lord Mishcon, so picturesquely put it, to elbow other departments out of the way. The noble Lord, Lord Boyd-Carpenter, made that point very well. There is always great competition for public funds. The Treasury tries to attain the right priorities. If there is a disagreement the matter goes to a Cabinet committee and, nowadays, if necessary to the committee that is known as the Star Chamber.
In my respectful submission it is quite wrong to insert a provision in a statute in order to arm a particular Minister to gain priority over other departments. Moreover, it would be self-defeating because other Bills will include the same provision for other departments' interests and we shall be back at the beginning, except for those unfortunate departments which do not have a Bill before Parliament.
Although I fully agree with the earlier part of the speech of the noble Lord, Lord Mishcon, I hope that my noble and learned friend will look with some disfavour on the attempt to arm him with statutory elbows to push other departments out of the way.
Lord Irvine of Lairg: My Lords, following the contributions of the three noble Lords who have just addressed your Lordships' House, perhaps I may remind the noble and learned Lord on the Woolsack that when replying to various amendments in Committee which addressed the resource issue he was good enough to say:
"It is the Lord Chancellor's responsibility, dischargeable to Parliament, to obtain the necessary resources. I am engaged on

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doing just that. I have made arrangements under which no change will be made without the necessary resources". — [Official Report, 16/1/90; col. 572.]
That was an encouraging assurance.
The noble and learned Lord was also good enough to say that he was entirely at one with the principle of certain of the amendments; namely, the necessity of arranging proper resources. However, he said that that aim should be achieved by accountability to Parliament. I understand that in bringing forward the concept of an annual report the noble and learned Lord intends that annual report to be the vehicle of accountability. Amendment No. 16, which has already been passed by your Lordships' House, read:
"The Lord Chancellor shall, within one year of the coming into force of the first order made under this section, and annually thereafter, prepare and lay before both Houses of Parliament a report as to the business of the High Court and county courts".
I believe that it would assist the House if the noble and learned Lord the Lord Chancellor, in replying to the discussion, could indicate how he contemplates that his annual report will address the resource issue, which was the subject of so much concern expressed from so many parts of the House. For example, to what extent does he envisage that his annual report will deal with the issue of his making orders to hive down business to the county courts under Clause 1? Will it deal with the point that in making those orders he was satisfied that sufficient resources to offer a reasonable level of service to litigants were available at the time when the order came into effect? Will his report state what his grounds for that satisfaction were?
On the basis that he is resistant, on the grounds expressed by certain noble Lords, to a statutory duty being placed on him to set standards, will his report state what standards of performance he has set for the unified administrative court service so as to give consumers of legal services reasonable satisfaction from the services that they receive from the court? Will his report state to what extent he believes that those standards that he is bound to set in practice—although that may not be pursuant to a statutory duty —are being achieved in the context of the resources available?
I feel that if the noble and learned Lord is resistant to the amendment it would assist the House to know what meat he intends for his annual report.
5.30 p.m.
The Lord Chancellor: My Lords, the kind of annual report I have in mind is similar to the present report for the court service, which the noble Lord, Lord Irvine of Lairg, may have seen through the Bar Council's facility. I should be happy to make it available to any noble Lord who wants it.
I should like to say a few words in response to what has been said about the courts. I mentioned some of these points earlier today but perhaps it is as well to repeat them.
Last year certainly produced some difficulties for the courts, in the county court primarily because of the increase in the volume of work. In 1989 the Crown Court disposed of 101, 232 cases committed
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to it for trial. In doing so it succeeded by the end of the last year in reducing the average waiting time for custody cases in London to a figure lower than that at any time during the last eight years. That is hardly the record of a court in serious difficulty. I should like to see the waiting times reduced even further. Those waiting times take account of the circumstances of particular cases. Many of the weeks of waiting are due to the state of a particular case or to the fact that a particular witness is unavailable. The court statistics that I am using are based on average waiting time.
In the county court in 1989 over 2 million summonses were issued and dispatched; 1–25 million warrants were dealt with and 180, 000 divorce petitions were issued. Perhaps even more important in the context of the discussions on this Bill, almost 50 trial centres have been established during the year with another 25 or so in the pipeline. Those are centres at which facilities for continuous trial are available. One of the difficulties in the past in the county courts was that if a case lasted for more than a day or did not finish at the end of a day it was difficult to continue it without a considerable interval elapsing. As my noble and learned friend Lord Hailsham saw when the matter was considered, one of the important points was to produce facilities for continuous trial. We are now reaping the fruit of his work in that there are about 50 trial centres operating and there are another 25 or so in the pipeline.
It is important that trials take place in centres where more than one judge sits so that when cases are settled, as they often are, at the last minute there is another case available to put in their place. The more judges there are sitting and the more trials going on together the more likely it is that the statistical average will be attained on any one day. If there is only one, even if half the cases are settled, one day two cases will be dealt with if two have been put down for the day and the next day there will be none. Therefore the more courts there are together the better it is. That is why we have concentrated on trial centres.
As I said earlier —all noble Lords were not present at the time—it is an important fact that an increasing number of High Court cases have already been transferred to the county courts under Section 40 of the County Courts Act 1984. In 1987 just over 9, 000 cases were transferred. In 1988 the number had increased to over 12, 500 cases and in the first eight months of 1989 the figure was more than 10, 000 cases. Those are cases sent down by judges of the High Court considering the High Court list for trial in the county court. About 10 per cent. of those cases result in trials—around 1, 500 a year. The county courts are therefore already coping with many of the kinds of cases which would be allocated to them under the arrangements possible with the new powers in the Bill.
Moreover, a number of circuit judges are already sitting as deputy High Court judges under Section 9 of the Supreme Court Act 1981 and, under the new arrangement, it is likely that that work will simply be transferred to them in the county courts. Those arrangements are being handled successfully, with

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reasonable waiting times in the county courts. The number of cases which will transfer once the order under Clause 1 is made will depend on the levels of cases to be heard in the High Court and the county courts, but, using Civil Justice Review figures, I would not expect the number of trials to increase by more than about 1, 500.
In consequence of those actions taken by the judges in the High Court, the waiting times in the High Court have been significantly improved. The delay in obtaining a hearing time in the High Court has fallen from about 421 calendar days in November 1987 to about 375 calendar days at the beginning of 1989. The result is that the present position in respect of, for example, the Queen's Bench Division in London, is that cases which do not require a fixed date are being given hearing dates within about 10 weeks of being set down, while cases requiring fixed dates are being given hearing dates of between nine to 12 months. The position in many county court trial centres for county court cases, including transferred cases, is even better; for example, eight weeks in Newcastle and Nottingham; only three to four weeks in Sheffield; and between five and seven weeks at Westminster County Court, to which many High Court cases are sent.
Turning to the office work in the county courts, at the end of 1987 only about 55 per cent. of the main office work —for example, originating process and the production of orders of the court—was dealt with within five working days of receipt. That figure rose to about 80 per cent. in the first quarter of the present financial year.
Considerable additional resources have been devoted to the courts. For example, there were 353 circuit judges in post at the beginning of 1984–85. That figure rose to 393 at the beginning of 1987–88 and to 408 at the beginning of this financial year. I need hardly remind noble Lords that the Top Salaries Review Body suggested an improvement in the remuneration of county court circuit judges which the Government have indicated will be put into effect in stages. The number of days sat by circuit judges, recorders and assistant recorders in 1984 was nearly 95, 000. It rose to about 99, 500 in 1987 and to over 104, 000 in 1988.
Gross expenditure on the court service, excluding legal aid and the court building programme, rose from £145 million in 1984–85 to £210 million in 1987–88 and to an estimated £261 million in the current financial year. Those significant increases are ahead of the increase in public expenditure generally.
I mentioned earlier the computerised summons production centre which has already begun operations. In nine weeks the county courts will substantially reduce their involvement in the handling of suitors' cash. Those are significant changes of the kind which have not previously occurred and over the next 18 months will together produce the equivalent of over 350 additional staff. They will be additional to the further 350 staff whom I hope to be able to recruit in respect of existing commitments, and up to a further 100 or so in respect of the new initiatives.
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The process of streamlining procedures and developing the use of centralised computer systems will continue. After years of unaltered procedures and work methods, major changes and improvements are taking place. Those changes form part of the wider tranche of reforms, many of which are contained in the Bill. As I have already said, it is my intention to phase the introduction of fresh work into the courts at a pace that the system will stand; they will not just happen in a haphazard way. For example, the jurisdictional changes in the Bill are not planned to be implemented until early 1991, by which time the county courts will have benefited from the considerable increase in resources to which I referred.
The performance of the courts depends on all those who serve the courts. The Law Society has adopted a helpful and positive approach to elimination of unnecessary duplication of effort at counters in the county courts, which sometimes happens if the document produced is not quite right the first time.
There are of course others involved in the court service. It is most important that I should say how much we owe to the judges at every level in the courts—in the Supreme Court and the circuit courts—for the way in which they conduct their business. The court service for which I am responsible is there in order to support the judges. The judges are responsible for giving the judgments which it is the courts' function to give. The administrative staff in the courts seek to support the judges at every level. It is my responsibility to do that to the best of my ability. I believe that, considering the difficulties, what I have said indicates that that duty is being performed reasonably.
I am certainly not complacent. There is always room for improvement. In our interesting discussion to which the noble Lords, Lord Mishcon and Lord Hacking, referred, many proposals of a practical kind were made which I shall follow up. I should mention one of those proposals; namely, that the representatives of the General Council of the Bar pointed out that, if one places too much emphasis on routine work, one might find difficulty in giving the necessary priority to a hearing which is taking place. Too rigid emphasis on administrative standards, as the amendment perhaps contemplates, might therefore not be the best way forward in every case. Co-operation at local level between court users and the courts is important. It is being developed where it does not exist and is extremely useful where it does exist, and that will continue.
Noble Lords have accepted my amendment requiring the Lord Chancellor to report annually on the court service. As I said, that will contain the kind of information—a fairly full report on the court service —which we presently prepare. It will be more widely distributed as a result of the amendment. I shall consider with alacrity any details on the presentation of the report which any noble Lords or any of the organisations with an interest in the courts suggest to me.

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In giving statistics about the court service, one must remember that the needs of litigants and the circumstances of litigants and witnesses must be taken into account. Statistics do not always discriminate between, for example, delays due to the parties and their convenience on the one hand and those due to the court's inability to provide facilities at a particular time.
I believe that my amendment, which noble Lords have accepted, is the proper way forward in this matter. For the reasons that have already been advanced, it would not be appropriate for me to agree to accept the first three subsections of Amendment No. 71. Subsection (4) is rendered unnecessary by the amendment which I have already proposed. I hope that, in the light of those explanations, noble Lords will feel that we should not give effect to the amendment. I hope that the noble Lord, Lord Mishcon, who moved the amendment so eloquently, may feel that the purpose for which he brought it forward has been achieved and that he may be able to take credit in the future for even better service from the courts than that to which he has been accustomed in the past.
Lord Mishcon: My Lords, it is hard to resist those gracious words. I believe that the noble and learned Lord knew how hard it would be to resist them when he uttered them.
The amendment was designed to help. It was designed to carry out the principle of Part I of the Bill to which we all adhere. If noble Lords take it for granted, as does the noble and learned Lord, Lord Simon of Glaisdale, that our courts' administration has the proper priority with the Treasury and that all is well with the Treasury when one goes for the funds that are necessary to make our courts and our court procedures respectable —I put it no higher than that—I must point out that that has not been the experience of many who have contributed to our debates.
Your Lordships may remember the account given by the noble and learned Lord, Lord Ackner, of a state of affairs where, because there was not sufficient money to pay for a hotel bill, a case had to be dealt with in a way that none of us would have wanted. I know that it is the responsibility of the Home Office and not of the noble and learned Lord, but do noble Lords know —and the noble and learned Lord is talking about a complete change of affairs presumably by 1991 —the state of affairs that exists in 1990? Do they know the state of our magistrates' courts throughout the kingdom, with no proper toilets and arrangements which are literally a disgrace?
Did noble Lords read the Written Answer to a Question which was addressed to the noble and learned Lord about how correspondence was dealt with in some of our county courts? I know that the noble and learned Lord will forgive me for saying so, but I thought that it was a somewhat proud reply to say that correspondence was dealt with in the county courts in respect of which the Question was asked on an average within seven weeks of receipt
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of letters. We are in 1990, and the average time it takes to reply to correspondence is seven weeks! If we conducted our own practices and businesses in that way I do not believe that any of us would have left any clients or customers. That is the situation.
It is not very easy for me to give way on an amendment which would have ensured that proper standards in regard to our administration of justice, especially with these reforms, have to be observed and the Government of the country must know that that is a duty. I regard respect for justice as possibly the basic foundation for the life that we are privileged to have in this country. If it cannot be given even respectability, let alone efficiency and economy, it is not a very happy situation in which to pass reforms, as we are doing in Part I of this Bill.
However, the noble and learned Lord has spoken. He thinks that it will be sufficient to rely upon the matters about which he has been good enough to tell us, by way of the resources that he has managed to secure. The noble and learned Lord hopes —I believe in one year—to obtain a type of official, in the county courts for example, who will be able to carry out such work. I tell him very solemnly that at the present moment such people are not there. He knows that they are not there. He knows about the competition from the outside world. The legal profession competes for those officials and does it on an unfair basis, which I admit completely.
If the report is to be the substitute for an amendment which gives a statutory duty, so be it. I hope that in those last gracious words the noble and learned Lord will have been a prophet and that in 1991 he will be able to issue a report that will make this amendment seem unnecessary. In those circumstances, and with that hope, I ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
5.45 p.m.
Lord Hacking Lord Hacking moved Amendment No. 72:
After Clause 13, insert the following new clause:
("Investigations by Parliamentary Commissioner for Administration.
Notwithstanding the provisions of section 5 of and paragraph 6 of Schedule 3 to the Parliamentary Commissioner Act 1967, the discharge of all or any functions or duties of any kind whatsoever by officers and other staff appointed under section 27 of the Courts Act 1971 shall be subject to investigation by the Parliamentary Commissioner for Administration.").
The noble Lord said: My Lords, when this amendment was called in Committee it was past 11 p.m. and the noble and learned Lord, in responding to my short statement, said that he would kindly use his persuasion through the usual channels to try to ensure that on the next occasion that this amendment was brought forward it would be taken at a time when there was greater attendance in the Chamber. I therefore wish to start my current submissions by thanking the noble and learned Lord for his persuasion through the usual channels. I say that in front of the noble Lord the Leader of the House. Perhaps I may call upon his kind services again to obtain an excellent attendance in your Lordships' House for such important matters.
When the noble and learned Lord addressed the Committee he said that he would use his best endeavours to bring forward at Report stage an amendment to deal with the problem that my amendment addresses. Thus far it appears that the noble and learned Lord has not brought forward his own amendment. Therefore in moving this amendment my primary purpose is to ask him whether he will kindly give a progress report on his proposed amendment.
It may be of assistance to noble Lords to know something of the background to this amendment. There have been a large number of complaints —some 30 or more —received by the Law Society from solicitors giving instances of where their clients have suffered financially and otherwise because of errors made by the county court staff. Those errors most frequently related to listing but also included such matters as a mislaid file, the court closed, no judge or registrar available, the defendant not served and a third party notice issued in error.
In most cases an application for compensation has been made to either the Lord Chancellor's Department or the local circuit administrator. The standard response explains that the matter complained about is the responsibility of the judiciary rather than the Lord Chancellor's Department or its officials and that the Lord Chancellor is only prepared to consider claims for compensation where loss is sustained through any negligence of court officials in matters for which he is reponsible.
I submit that this is untenable. The aggrieved client is invariably left without any remedy at any time and usually the money is wasted. In my submission, complaints of maladministration by court officials should be subject to investigation by the Parliamentary Commissioner. I appreciate the difficulty exercising the mind of the noble and learned Lord; namely, the dividing line between the judicial and the administrative exercise of function. I appreciate that difficulty. That is why the prime purpose of my amendment is to ask the noble and learned Lord for a progress report upon his amendment. I beg to move.
The Lord Chancellor: My Lords, the noble Lord was kind enough to suggest that I had achieved for him what he wanted in the way of timing. I think that there may well have been factors other than my persuasion involved. Circumstances beyond my control may have contributed to the apt timing of this amendment.
I said in Committee that I hoped to bring forward an amendment at Report stage to deal with this matter. As has been mentioned, there has been a wide area for discussion affecting this matter for some considerable time. It has not been found easy over the years to solve the problem. However, I have endeavoured to do so and have been working at the preparation of an amendment on the lines that I indicated in Committee.
It appears to me that such an amendment would come more fittingly into the closing parts of the Bill rather than at this stage because it is not just related
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to this particular type of provision. Therefore there may well be an opportunity for an amendment to be brought forward timeously so that it may be considered on the last day of the Report stage, which I understand is likely to be a week on Thursday. I believe that the progress that we have made is sufficient to enable me to hope that I shall still be able to bring forward the amendment before the Report stage is completed and at a time which will enable noble Lords to consider it properly as part of the concluding stages on Report.
Lord Hacking: My Lords, I am very grateful to the noble and learned Lord for his progress report. In particular, I was pleased to hear that he still has hope of bringing this matter before us at Report. We have had to consider a great number of matters at fairly short notice. We understand the difficulties in which he found himself but it is a matter that I believe your Lordships will want to consider as soon as possible. I am grateful to the noble and learned Lord and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 14 [The statutory objective and the general principle]:
Lord Lloyd of Kilgerran Lord Lloyd of Kilgerran had given notice of his intention to move Amendment No. 73:
Page 12, line 35, at end insert ("and without prejudice to the generality of the foregoing by providing that persons other than barristers shall have a right of audience and that persons other than solicitors shall have the right to conduct litigation, in relation to matters in respect of which such persons are specifically qualified.").
The noble Lord said: My Lords, Amendment No. 73 relates to legal services associated with trademark matters. With the leave of the House, I should like to refer to three other amendments relating to trademark matters, Amendments Nos. 90, 91 and 95. In view of the helpful observations made by the noble and learned Lord the Lord Chancellor when I moved Amendment No. 17 earlier today in regard to the proposal for a trademarks county court, and having regard to a letter which I received from the noble and learned Lord relating to the advisory committee, I do not propose to move Amendment No. 73 at this stage, nor will I be speaking to Amendments Nos. 90, 91 and 95 at a later stage. I shall reserve the right to raise these matters at Third Reading.
[Amendment No. 73 not moved.)
Lord Alexander of Weedon Lord Alexander of Weedon moved Amendment No. 74:
Page 13, line 1, leave out ("and").
The noble Lord said: My Lords, with the leave of the House, I shall speak at the same time to Amendments Nos. 75 and 76. The substantive amendment is, as your Lordships will instantly appreciate, Amendment No. 75. Equally, as your Lordships will also appreciate, the purpose of the amendment is to establish within the Bill one simple ethical principle which we suggest is fundamental if we are to secure that everybody has proper access to advocacy services. The principle is that those who

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gain extended rights of audience should accept the obligation to argue cases without regard to the popularity or unpopularity of a cause and that they should not decline to accept a case because payment is to be made by the legal aid fund rather than out of a more ample private purse. Those proposing the amendment, as noble Lords will see, come from all parties in the House and from the Cross-Benches.
Many noble Lords will recollect that we debated this issue in general terms in Committee and that the proposal we then put forward received widespread support from almost all those who spoke at that stage. My noble and learned friend the Lord Chancellor acknowledged that the basic rule we suggested was important but he expressed concern that the amendment we then presented would not leave sufficient scope for the machinery of the advisory committee to shape the details of the rule and to make appropriate exceptions. We have sought to meet this concern by the form of amendment we now put forward which is in different form and seeks to give clear scope for any appropriate flexibility. I hope your Lordships will consider it proper that we should debate this issue again in order to decide whether we have successfully met the Government's reservations.
Why is the principle important? More than two centuries ago the great advocate, Sir Thomas Erskine, established the duty of an advocate not to discriminate between the causes he accepted according to his personal or public sympathies. Since then the rule has been accepted by those who have practised as advocates in the higher courts both in England and in Scotland. Indeed my noble and learned friend the Lord Chancellor, when commenting on the position in Scotland when he gave evidence to the Scottish Royal Commission some years ago, said:
"This obligation is an important constitutional guarantee from the point of view of a citizen's freedom of access to the courts. As an advocate he has to represent people even though he does not like their views and whether they have legal aid or not".
These cogent words are of general application and they have as much force in this country in the experience of many of us as they do in Scotland. It is precisely because the principle with which we are concerned is, as my noble and learned friend described it, a constitutional guarantee that it ought to be recognised in legislation.
It is also a principle that has been recognised by this House sitting in its judicial capacity. In the Appellate Committee in 1969 the Law Lords considered the nature of the duty of advocates and recognised that a barrister has for centuries been bound to accept a brief. The noble and learned Lord, Lord Pearce, said in his judgment:
"It is easier, pleasanter and more advantageous professionally for barristers to advise, represent or defend those who are decent and reasonable and likely to succeed in their action or their defence than those who are unpleasant, unreasonable, disreputable and have an apparently hopeless case. Yet it would be tragic if our legal system came to provide no reputable defenders, representatives or advisers for the latter, and that would be the inevitable result of allowing barristers to pick and choose their clients".
He agreed with Erskine that it would cause irreparable injury to justice if advocates could pick and choose.
I do not need to labour examples of the kind of cause which may from time to time be unpopular. I think of treason trials and trials for a particularly repellant murder or brutal rape. In all such cases it has rightly been considered that the advocate's personal view of the merits of a case or of the defendant should not deter him or her from acting. This is not a matter of mere gallantry or generosity by barristers. As the noble and learned Lord, Lord Oliver of Aylmerton, said in our earlier debate:
"The rule is not one which is accepted by the Bar in its own interests. Indeed, no barrister derives, or has ever derived, any advantage from it. It is imposed in the interests of justice and is part of the price—and this is most important—that the Bar has paid for its monopoly of rights of audience in the superior courts."—[Official Report, 25/1/90; col. 1197.]
It is in other words a corollary of that monopoly to which solicitors are, rightly in certain circumstances, as we have accepted, being granted admission. There is, as the noble Lord, Lord Murray of Epping Forest, said in our earlier debate, a public expectation that a man who is going to court must have access to the best advocate available. The public expectation should be placed on the face of the Bill. That is all we seek to achieve.
Perhaps I may try to allay any anxiety, which I hear has been expressed on behalf of some within the Law Society, that this clause is directed against solicitors. There are some of us who during the course of the proceedings on the Bill have consistently recognised that there should be extended rights of audience. We have also sought to ensure that the strength of the solicitors' profession is not diminished by changes in the law with regard to conveyancing. It is in the same spirit that our proposal now transcends professional sectional interests and is meant as a bulwark for the citizen. It was for this reason that I was very glad, although it was not more than I expected, that our proposal last time was supported in the Division Lobby by the noble Lord, Lord Mishcon. He as an experienced advocate as well as a solicitor who has briefed other experienced advocates recognised that those who seek the privilege of extended rights of audience should accept the wider obligation to serve the public.
Nor can we take it for granted that in the absence of legislation the principle will necessarily be accepted by all. I have read only recently that two leading London legal aid firms have refused to take the case of a man accused of raping his girlfriend. These are firms of standing which unlike many other firms are prepared to accept the burden of legal aid work. But nevertheless they reserve the right to express a general unwillingness to act for defendants in rape cases. That is their right in regard to the preparation of cases. But if this approach were extended to advocacy, is it not easy to see the danger for those accused of a crime and yet not found guilty in securing proper representation? This episode highlights why we should enshrine the rule as part of our law.
It was perhaps not surprising, given the importance of the obligation, that it was so widely supported on the last occasion when it was before your Lordships. Perhaps I may briefly remind the House why the Government were unable to accept it and indicate the way we seek to meet their objection. Our earlier proposal would have made the rule in effect an absolute rule. This led my noble and learned friend the Lord Chancellor to say in response:
"I take the view that it would be very desirable to impose some form of cab rank rule on anyone who has rights of audience in superior courts … However, the rule will need to be specified in considerable detail".—[Official Report, 25/1/90; col. 1207]
My noble and learned friend went on to say that the circumstances of solicitors might require a different rule from those applying to barristers. He indicated that we might safely leave the matter to detailed consideration by the machinery which the Bill establishes. I hope that I have fairly summarised the objections put forward on the last occasion.
Noble Lords will see from the present form of amendment that we seek to take full account of the Government's reasons for declining to accept the earlier amendment. The present provision achieves that in two ways. First, it provides that there may be any appropriate exceptions which ought to be made to the general rule. Secondly, it indicates that the rule should not apply in circumstances in which it would be unreasonable to require the advocate to have regard to it. We suggest that that strikes the appropriate balance and removes the concerns expressed by the Government. It includes on the face of the Bill a principle which for centuries everyone has considered to be of high importance. It enables those involved in extending rights of audience to operate that in a way which accords good sense and proper public expectation.
In the Bill we in this House are committed to extending rights of audience where that should properly take place. Many details of standards and qualifications must be worked out. It is no exaggeration to say that the way ahead is fraught with difficulty and certainly uncertainty. Is it not important that at such a time we should make unequivocally clear the fact that there are some basic ethical rules, rights and obligations which are not fragile and not open to doubt and which we as a House positively reassert? I beg to move.
6 p.m.
Lord Irvine of Lairg: My Lords, from these Benches I support the amendment, not for any partisan reason as a member of the Bar but because I believe it to be of great value to the consumer and of major constitutional importance.
When the amendment was moved in Committee on 25th January noble Lords on these Benches supported it. I should like to express briefly my reasons for supporting the amendment. First, there is the consumer. The consumer values highly the quality of his representation in court. Nothing will persuade him that the quality of his representation does not affect whether he wins or loses.
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A duty on practising advocates to accept instructions from anyone within their field of practice enhances access to justice. It means that advocates cannot pick and choose between the difficult and easy cases; the likely winner and the likely loser; the popular case and the unpopular case. Therefore, when the cab rank rule applies the consumer can have greater confidence that his access to justice is real and not second class. The point is that the consumer has access to the advocates whom he regards as best and whom informed advice tells him are best. He does not have to rest content with the assignment of the lawyer by a professional body as he might if the advocates of his choice were not bound by a cab rank rule. Secondly, consumer confidence is enhanced by knowing that the cab rank rule applies equally to legal aid cases.
Thirdly, there is the constitutional point. It is of constitutional importance that no advocate should be entitled to say, "I will not represent you because I am hostile to your case"; or, "I am hostile to the kind of person I believe you to be". It is the duty of the advocate to appear for the Yorkshire Ripper or any other defendant against whom there may be a hostile climate of public opinion. In civil cases it is also his duty to appear not only for a particular interest group with which he might prefer to identify but for every interest group; for plaintiffs or insurers in personal injury cases; for employers or trade unions in labour law cases; for the citizen or the state in judicial review cases. The advocate is not entitled to don the mantle of the judge or jury and refuse instructions because of his belief as to the likely outcome. Nor is he entitled to say no to a client becuase he may abhor his political or other beliefs.
I believe those principles to be important for the effective protection of the rights of the subject under the law. Therefore, I support the amendment.
Lord Boardman: My Lords, there is a great deal of common ground between those on both sides of the debate. Those who may not support the amendment are, nevertheless, fully sympathetic to the principle which lies behind it. All noble Lords will agree that it is right that there should be a competent advocate able to represent any citizen regardless of the issue. I am sure that all Members of your Lordships' House will agree that, as far as possible, advocates, whether solicitors practising in the higher courts or members of the Bar, should work according to the same rules and that there should be a level playing field.
Perhaps it is worth noting as a side issue that the amendment and the whole of the debate relates to rights of audience in a superior court. Rights of audience in the lower courts are not affected. It is also worth recalling that the Bar's cab rank rule has applied to all courts during all the years to which my noble friend Lord Alexander referred. However, it has not applied at any stage to solicitors, who are the main practitioners in the lower courts. I know of no complaint that clients requiring representation in the lower courts have been unable to obtain it.
It is worth inquiring into the cab rank rule. There is a tendency for some people to believe that it

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is entirely comprehensive and that automatically a member of the Bar of the client's choice will be available. The rules which have recently been published by the Bar Council, and which come into effect at the end of March, rightly contain proper restrictions on the operation of the cab rank rule. I make no criticims of that. They state that a practising barrister must not accept any brief or instructions if he lacks, for example, experience or competence or if, having regard to other professional commitments, he does not have adequate time and is unable to prepare that which is required of him.
As regards availability and fees, provisions are laid down in paragraph 502. It states that a barrister in independent practice is not obliged to accept a brief or instructions requiring him to do anything other than during the course of his ordinary working year; that is, during the legal terms. Solicitors are not in the happy position of having such an abbreviated working period.
Rule 502 also provides that a barrister is not requried to accept a brief other than at a fee which is proper having regard to the complexity, length and difficulty of the case and to his ability, experience and seniority. Those are all absolutely right and proper and I make no criticism of them. However, the matter should be put to the House so that there is an understanding that the cab rank rule is not as comprehensive as some noble Lords may have assumed. I have gleaned that not from speeches made by my noble friend or by the noble Lord opposite but from what I have read about the cab rank rule in the press.
The rules are not particularly onerous; they are perfectly reasonable. Therefore, it is reasonable to ask the question: why should they not apply to solicitors who are given the right to practice advocacy in the higher courts? The first objection is the form in which solicitors practise; that it, in a partnership. That was accepted by the Bar Council in its response to the Green Paper which originally raised the issue. In its response the Bar Council stated that practice in partnership is incompatible with the cab rank rule. I shall not go into the reasons why that should be so but there are many of them. I am sure, for reasons which I shall come to in a moment, that that should be something for consideration at a later stage in a different forum.
The National Consumer Council opposes this amendment. I am somewhat surprised that in talking about the consumer cause noble Lords opposite have not recognised the objections put forward by the National Consumer Council to it. There is one essential difference between the position of a member of the Bar and a practising solicitor. The lay client goes directly from the street to the solicitor. The lay client does not have access to a member of the Bar. He can only be referred to a member of the Bar through the solicitor. Therefore, the lay client is screened before he gets to the Bar. The instructions come from the solicitor to the barrister, those instructions having been accepted by the solicitor.
There is no requirement in this amendment or elsewhere that a solicitor must be bound to accept
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instructions. However, a solicitor who is not authorised to practise in the higher courts can—and no doubt most will —continue to receive instructions from clients and will pass on those clients with a brief to a member of the Bar for the advocacy required. Therefore, I believe that that is a major difference between the position of a solicitor in practice whose clients come off the street and the position of a member of the Bar to whom cases or clients will only be referred through a brief delivered by a solicitor.
My noble friend Lord Alexander of Weedon referred quite rightly to a case which received some publicity recently where a firm of solicitors announced that it would not take instructions from defendants in rape cases. I should have thought that even under the cab rank rule to which I have just referred it would be open to a member of the Bar and indeed a solicitor in authorised practice to say that there are certain cases in which they do not claim to have expertise or do not wish, because they do not have the competence to deal with the case efficiently, to take on a certain class of case. I believe that that would be a reasonable exception which would probably come within my noble friend's amendment.
However, as far as I am aware and as far as the Law Society has told me it is aware, there has never been a case for which it has not been possible to find a competent solicitor to take instructions, who would no doubt be able to provide the advocacy if necessary and if that were authorised. I understand that the Law Society accepts the responsibility of ensuring that there is always a suitable solicitor provided if required by the client or indeed by the court because there have been such cases.
I suggest that it is best to leave the matter there. If it is necessary to place a statutory duty upon the Law Society to accept that obligation, that is something which my noble and learned friend may wish to consider. However, in all the years in which the Law Society has been in operation I am assured that there has never been a case for which a suitable solicitor cannot be provided if required.
This is essentially a matter which should be kept under review by the advisory committee in the years ahead. Circumstances may change. As time goes by I believe that it would be right for the advisory committee to see how the matter develops and what are the problems of solicitors and partnerships and so on. For that reason I hope that my noble friend will not press this amendment.
Baroness Seear: My Lords, as someone from outside the legal profession, I am much concerned that the ordinary person seeking representation should have the best possible opportunity of doing so. I say to the noble Lord, Lord Boardman, that if the existence of partnerships is an obstacle to the operation of the cab rank rule, perhaps it is the partnership and not the cab rank rule which is at fault.
6.15 p.m.
Lord Campbell of Alloway: My Lords, while supporting this amendment unreservedly, I seek to

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deal with some of the anxieties expressed by my noble friend Lord Boardman. This amendment is limited in scope to the superior courts. Those courts do not include, for example, the magistrates' court, as I understand it. I am relieved to hear that the amendment does include the Crown Court. If that is so, then the examples of criminal cases given by my noble friend Lord Alexander are of course entirely correct.
One of the reasons that I support this amendment is that it affords fair terms of competition in the new regime as between all those who have rights of audience. Surely that must be the proper approach to a competitive regime; namely, that everybody should compete on more or less fair terms.
It is in the interests of the consumer, in the interests of justice and, as has been said, a public expectation that the standards should be maintained. My noble friend Lord Boardman seemed to be concerned about the position of accepting instructions. I have always understood the cab rank rule to be not exclusively—and it has never been codified —but primarily concerned with the request: "Will you take my case and fight it?" In other words, it is concerned with advocacy and not so much an advisory role or whether one is instructed for this or that. Although that has never been codified, that is my personal understanding of the cab rank rule from my experience at the Bar.
If that is right, then the anxieties of my noble friend are with respect, to some degree misplaced. I suppose a solicitor can say, "I do not want to accept instructions to prepare a will", I suppose he can say that if he has no expertise to prepare a will. Surely that is covered by the very careful drafting of my noble friend Lord Alexander:
"in the circumstances in which it would be unreasonable to require him to do so."
If somebody presented me with a tax case, I should refuse to conduct that. I am wholly incompetent to do that because I have never conducted a tax case, and I hope that I never shall. However, within that broad remit of it being unreasonable to do so, surely we can satisfy the anxieties of my noble friend Lord Boardman and accept the broad principle as an important principle primarily in the interests of the consumer.
Baroness Phillips: my Lords, I am interested in what my noble friend on the Front Bench and other noble Lords have said in suggesting that this is in the interests of the consumer. Your Lordships will know that that is my particular interest. I have been approached by consumers organisations and they do not seem to think that this provision will help the consumer.
The Bar's cab rank rule may be appropriate for barristers because that is a referral profession. That is the point which we must take on board. No one can have access to a barrister without first briefing a solicitor. I understand from my friends at the citizens' advice bureaux that when a client seeks legal representation and telephone calls are made, for some strange reason the first inquiry is whether the client is legally aided. If a cab rank rule is
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operated why should that question be asked? It should be assumed automatically that the case will be taken.
Solicitors are not in a referral profession. Clients go to them directly off the street. I ask why the Bar wants this provision in legislation. Perhaps I am unduly suspicious. It is only in their rules at present. Do they wish to force this provision on to solicitors, for whom it would be very inappropriate, in order to make unworkable solicitors' rights of audience?
The only point of substance for the public is that those who have a monopoly of rights of audience or the right to undertake litigation should ensure that no one is denied access to justice as a result. One must exercise great care when saying that this is in the interests of the consumer. So far the consumer does not seem convinced that it is.
Lord Beloff: My Lords, as another possible consumer I would not venture to be as categorical as the noble Baroness, but I should like to ask for some explanation. Let us take the current situation of someone who is possibly involved in litigation and who goes to a solicitor. The solicitor tells him that he requires a barrister to be his advocate in court. The barrister is then bound by the cab rank rule, however interpreted or modified. The proposed amendment does not, as far as I can read it though I am not a lawyer, impose a duty on a solicitor to look into my case as a potential litigant. All it says is that if I insist that the solicitor himself acts as my advocate, he is entitled to refuse to do so.
The proposed amendment would remove that option. I would be able to go to a solicitor—the noble Lord, Lord Mishcon—and say that I admire his golden voice and insist that he takes my case before a higher court. If the amendment is not passed, would I not still be in the current position—that is to say, that the solicitor I go to would be able to go to a barrister of his or my choice who would still be bound to act as advocate? It seems to me that one could argue that the profession of barrister might possibly gain by the absence of a cab rank rule for the solicitors' profession or for any other profession which is given the right of advocacy because barristers would be able to say 'You are not getting a reasonable deal from non-barristers, but here we are with our historic duty to support your interests by advocacy in a court".
I should very much like to have this process explained. Does the proposal mean that every solicitor has to accept a case which might seem to him rebarbative in some way or does it refer only to solicitors exercising a right of audience—in which case, what is lacking in the continued presence of an independent Bar bound by the cab rank rule?
Lord Ackner: My Lords, I think I can answer the noble Lord, Lord Beloff, by direct reference to what the noble Lord, Lord Mishcon, said in the last debate. He said at the outset:
"As an individual Member of this Committee what the noble Lord, Lord Alexander, said is completely acceptable as a principle; namely, that if a solicitor advocate, presumably wearing his wig and gown, stands by the side of his barrister colleague similarly attired, as a principle they should be bound by precisely the same rules of conduct". — [Official Report, 25/1/90; col. 1194.]

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What the noble Lord, Lord Boardman, seems to have omitted to appreciate is that no solicitor is obliged to apply for rights of audience beyond those he has at present, but if he seeks to have those rights of audience then he should follow the philosophy so admirably expressed by the noble Lord, Lord Mishcon.
The noble Lord, Lord Murray of Epping Forest, who has been quoted, said this, which was not quoted:
"We should not have merely the Bar's internal arrangements. Secondly, the amendment would cut the ground from under the feet of any barristers who felt that they were in some way going to be at a disadvantage in the handling of cases in the courts compared with advocates drawn from other professions".—[Col. 1198.]
One also had the contribution of the noble Earl, Lord Onslow, who said:
"The cab rank rule seems to me so fundamentally sound and good that it would be wrong if there were not exactly the same rules for solicitors who advocated as advocates" —
that is what I stress—
"as those that apply for any other kind of advocate, especially the Bar advocates".
He added, and I stress:
"If we depart from that principle, we shall produce two classes of advocates, one of which can pick and choose, and one of which cannot. That cannot be right for either justice or equity".—[Col. 1204.]
He was of course referring to the higher courts. That led irresistibly to my noble and learned friend the Lord Chancellor saying:
"I take the view that it would be very desirable to impose some form of the cab rank rule on anyone who has rights of audience in superior courts, for the reasons indicated by my noble and learned friend Lord Oliver of Aylmerton. However, the rule will need to be specified in considerable detail".—[Col. 1207.]
There was the unanimity and, as far as I can see, the absence of any real problem. The solicitor can stay as he is now, enjoying the rights of audience he has now with none of the restrictions of the cab rank rule round his neck. However, if he aspires to do the same work as the Bar at present has the monopoly to do, then, as the noble Lord, Lord Mishcon, says, they should stand shoulder to shoulder.
The other matter mentioned by the noble Lord, Lord Boardman, which seemed to me to be wholly fallacious, was the proposition that the examples cited, which were in the newspaper, relating to two well-known firms of solicitors specialising in criminal work were somehow a permissible omission from the cab rank rule if it bound them. It was exactly the opposite.
Here are two firms of solicitors specialising in crime, specialising in cases as serious as rape, and both firms saying, "We act only for the prosecution because if we did not we would offend our clients"—organisations mainly of ladies who are, as we all are for that matter, fiercely opposed to the crime of rape. Because of the harm it would do to their practice, and for no other reason —not for any lack of expertise on the subject of rape; you do not get specialists in the knowledge of how to defend or how to prosecute that particular crime —they opted not to act for defendants. They are entirely permitted
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to do so, but no barrister would be entirely permitted to do so; on the contrary.
I hope that that has answered the points raised. The matter was put very shortly by Lord Reid in the same case in the House of Lords, just to show that there is total harmony on both sides of the Border. He said:
"It has long been recognised that no counsel is entitled to refuse to act in a sphere in which he practises, and on being tendered a proper fee, for any person however unpopular or even offensive he or his opinions may be, and it is essential that that duty must continue: justice cannot be done and certainly cannot be seen to be done otherwise".
Throughout that case—one or two other noble and learned Lords apologising for repeating—was the reference, which has been referred to though not in terms, to what Lord Erskine said in his justification for the unpopular defence of Tom Paine. It is right that the words should be before the Committee. He said:
"From the moment that any advocate can be permitted to say that he will or will not stand between the Crown and the subject arraigned in the court where he daily sits to practise, from that moment the liberties of England are at an end".
That is why this is a point of great constitutional importance, and when we come to my noble and learned friend's amendments to Clause 17 (which will need, certainly in subsection (b), a little explanation), if it is right to lay down principles of that character for the guidance of the advisory committee then —if the noble Lord, Lord Mishcon, will forgive the phrase again—a fortiori this is such a case.
6.30 p.m.
Lord Peyton of Yeovil: My Lords, I intervene briefly in this debate. I was not present in the Chamber at the time when a similar amendment by my noble friend Lord Alexander was debated. Hence, when the Division was called I proceeded—albeit uneasily, but nevertheless obediently—into the Government lobby. I have since had the advantage of reading the discussion which took place at that time, and I have also had the advantage of listening to your Lordships today. I conclude that beyond any doubt the balance of the argument is with the amendment so eloquently moved by my noble friend.
There are two quotations which weigh with me, the first from the noble and learned Lord, Lord Oliver:
"The cab rank rule is the reverse side of the coin of monopoly".—[Official Report, 25/1/90, col. 1197.]
That is the first argument which seems to me to be summed up with admirable brevity in one sentence.
Secondly, the noble Lord, Lord Benson, used the following words:
"As I understand it, within the limits of human endeavour, the object of justice is twofold: first, to be fair, secondly, to be consistent. It follows from that that everybody engaged in carrying out the various tasks of justice must operate under the same ethical rules, the same rules of conduct and the same disciplines". —[Col. 1203.]
I put this briefly and carefully: I yield to no one in my respect for the way in which my noble and learned friend the Lord Chancellor has piloted this

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Bill through your Lordships' House, but at the end of the debate at Committee stage he said:
"I take the view that it would be very desirable to impose some form of the cab rank rule on anyone who has rights of audience in superior courts".—[Col. 1207.]
I was encouraged to read that, but then my noble and learned friend went on to say that the fact that the rule was elaborate, the fact that it was lengthy and the fact that there were many provisos, were fatal flaws in the argument for the amendment. If those were fatal flaws in the argument, then much of the legislation which goes pouring through your Lordships' House would have been carried through in some receptacle or other, but it would not have reached the statute book.
Finally, by what he said at the end of his speech on that occasion, my noble and learned friend gave me the impression that we should be content to leave this important matter to the advisory machinery which was going to be set up. I am bound to say that in my view we do not suffer from any shortage of advice. Nor do we suffer from any shortage of organisations dreaming up further supplies of that commodity, and so far as I am concerned I do not look for them.
For the reasons that I have briefly stated and which have been so much better stated by others, on this occasion I shall repent and vote in a different way from that which I did previously, and I shall support my noble friend's amendment.
Lord Hacking: My Lords, I am a solicitor of the Supreme Court, and like the noble Lord, Lord Boardman, I am sympathetic to the amendment moved by the noble Lord, Lord Alexander. I can say that in the 13 years I have practised at the Bar and in the 13 years that I have subsequently practised as a solicitor, so far as I know I have never refused a client (I rarely did that anyway, I was always in need of them) in any circumstances which have breached the cab rank rule. I can tell your Lordships that I have appeared in relation to some pretty unpopular causes on both sides of the legal profession.
It is important to put the amendment in its proper context. It is not an amendment which goes to the conduct of advocacy in the court; nor is it an amendment that goes to the conduct of litigation in or out of the court. It goes no less and no more to the circumstances in which an advocate should accept or reject instructions to appear in court. As such, so far as my side of the profession is concerned, it goes to the structure of that profession. This is a point that the noble Baroness, Lady Seear, seized upon.
Therefore, with great respect to the noble and learned Lord, Lord Ackner, this is not an amendment which has anything to do with advocates appearing in court under different rules or less shoulder-to-shoulder. To take up a point made by the noble Lord, Lord Campbell of Alloway, far from promoting competition it could result in putting solicitors into a position where because their professional rules may not be able to comply with the cab rank rule—I put it no higher than "may" —they are not offering services or are unable to offer services which otherwise they would be willing and able to do. In
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that sense this amendment is restrictive of their competition.
It is also not an amendment concerning whether the Bar should operate the cab rank rule for all the meritorious reasons that have been put forward. The question before your Lordships is whether that cab rank rule should be imposed upon others, including, I assume, lawyers from the European Community who seek to exercise rights of audience under the higher diploma and legal services directives.
I have no difficulty in stating that the circumstances in which solicitors receive instructions are different fom those in which members of the Bar receive instructions. I concede that it is difficult for us to apply the cab rank rule, not simply because we are in partnership but because we offer wider services to our clients, such as providing financial references. The new and ever-searching audit requirements that are placed upon us in turn put us in a position of fiduciary relationship with third parties which could work only on a basis of trust between us and our clients.
Lord Renton: My Lords, I believe that it is right to remind the noble Lord—it could shorten the matter—that the amendment refers to rights of audience.
Lord Hacking: My Lords, indeed. If the noble Lord had allowed me to finish the sentence he would have heard me say that if that trust does not exist it would be proper for members of my side of the profession to refuse to act, even as an advocate, in litigation. I therefore find the position of the Bar somewhat puzzling.
Being less bold than the noble Baroness, Lady Phillips, I do not suggest that in tabling the amendment, the Bar has been motivated to protect its rights of audience in the High Court. Such words do not fall from my lips. However, why is it necessary to impose that rule on others? Why cannot members of the Bar turn that rule to their advantage? Why cannot they say to members of the public, "We have this rule; it benefits you; it places us in a position of particular integrity; it enables us truly to say that we have experience in advocacy on all sides of the process of litigation, whether it is for plaintiffs or defendants, landlords or tenants, criminals or police, or husbands or wives"?
I have every confidence that the Bar will survive and prosper. I see the wish of the Bar to spread the cab rank rule outside its own ranks as something that does not run to its advantage. For the reasons that I have advanced, it runs to its disadvantage.
Lord Campbell of Alloway: My Lords, the noble Lord mentioned my name. Perhaps I may ask him, does he seriously suggest that advocates conducting advocacy—having rights of audience—should compete on unequal terms?
Lord Hacking: My Lords, I am not suggesting that. I thought that I put that point most plainly in my submission to the House.
Lord Hooson: My Lords, it has always seemed to me that the justification for the cab rank rule is that it is a guarantee of the advocate's integrity. It governs the court's reception of his role. Judges and juries are used to the role of the advocate in the highest spheres and they know that he operates against the background of the cab rank rule. It affects his performance in many ways. He knows that the judge and jury do not identify him with his client's case or the views that he is expressing on behalf of his client.
I was always brought up to believe that the advocate's duty was to represent his client's interests as the client would had he the advocate's skill, experience and knowledge. The cab rank rule applies to the advocate in his role as advocate only. I believe, and I share the views expressed by Erskine two centuries ago, that it is one of the great guarantees of liberty in this country. I know that it is the guarantee of the advocate's integrity.
Perhaps I may be allowed to be anecdotal for a moment. The cab rank rule is more embarrassing to the political barrister than to anyone else. When I had been a silk for about four or five years, I was retained to defend in the Moors murder case. The announcement was made just before the general election. I did not know the case existed until a reporter asked me about it. Some of my political opponents—not the candidates—could not resist using that fact against me in the election campaign. I had to explain in detail on the platform the nature of the cab rank rule and the duty involved. It was not the first time that the rule had effected me. I was always a circuiteer. I had to prosecute the Welsh language conspiracy case. I was hanged in effigy outside the court every day as I went out. I see someone suggesting the perhaps it should have been done properly.
The existence of the rule guaranteed the integrity that I hoped I brought to my performances. I have always believed that in a system of justice that depends upon the adversarial role of the advocates, where the adversaries clash and the judge and the jury have to discriminate between them to decide who is right, it is a tremendous support for them to know that the advocates' profession is based upon the cab rank rule.
In my 40 years' experience on my circuit, I have never known a member of the Bar not to accept the cab rank rule. I have known that people have not done so once or twice in London. In recent years especially I have heard young advocates say that they do not want to prosecute and will not prosecute, and yet they are criminal practitioners. I have heard people who, although they conduct criminal defences, have said that they will never defend an alleged rapist. I have even heard silks say that they will not do a legal aid case. All that is wrong, and I was glad today to hear that the Bar Council reiterates the cab rank rule.
We are concerned about the quality of British justice. We are not having the reform because people have pinpointed a great evil or fault in the system. We have heard praise for the legal system from all sides of the House. It is meet that we ask ourselves:
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how does that reputation come about? What has brought it about? Among other things, the cab rank rule has contributed to it.
6.45 p.m.
Baroness Carnegy of Lour: My Lords, I speak with trepidation, but your Lordships must recollect the point of extending rights of audience. It is that people should have a greater choice of advocate. I understand the high ideals of the Bar. I understand my noble friend Lord Alexander referring to the cab rank rule as a simple ethical principle. I see how barristers identify with the rule with regard to their integrity and how that integrity helps the court. I understand all that; but there is a practical point.
In opinion polls the public have expressed the view that they would like to have solicitor advocates. They would like to have a wider choice. The Bill tries to provide the framework for that system to operate. Given the nature of the cab rank rule, and all that we have heard about it, it seems to me that it would conflict with what the people who want recourse to the law want from their solicitors. Not every solicitor will be a solicitor advocate. They will do other work. They will be solicitor advocates for part of the time, and at other times they will have days full of appointments with clients about many matters.
It will not be much fun for the clients if they receive a postcard saying that their solicitor will have to appear unexpectedly in court because of the cab rank rule. If the rule operates as it does for barristers, solicitors will not have to do that except during the law term. They will not have to do it if it seems to them that the fee is inadequate. That point will apply to barristers, and I am sure that it will also apply to solicitors. Nevertheless, if there is a cab rank rule, in reasonable circumstances within the law term they will have to go regardless of what their clients require of them in other respects. It seems to me that such a measure simply conflicts.
I can understand the feeling that in order to have the privilege of being a barrister and undertaking what a barrister does one submits to the cab rank rule, as it has been expressed, and therefore why should not solicitors also submit to it? But if it will not work for the public there is very little point. The present arrangement by which the Law Society ensures that there will be a suitable, appropriate solicitor to do a job is very much better than that which is proposed.
It is very easy to be carried away with the idealism of the profession of the barrister which I admire greatly and which benefits people enormously. The Labour Front Bench is taking the opposite view from that taken by its colleagues in Scotland. I am not sure why that is. However, our Scottish system is different; perhaps that explains it. But barristers on both sides of the Border have such idealism. I admire it. It should continue. I find no fault with the cab rank rule. But do not let us spoil the Bill for the public by imposing such a rule on solicitors.
Lord Hailsham of Saint Marylebone: My Lords, I had not intended to say a word in this debate. I shall say only about two, and those are in consequence of what has fallen from my noble friend who has just spoken.
Let me make two or three points. The noble Baroness seemed to think that the cab rank rule would be adverse to the interest of the lay client. I wonder what she thinks the lay client would say if the person she wanted to act as an advocate, being a solicitor, said to her, "I am not going to appear for you because the man on the other side is a most valuable client of mine". That is not an imaginary circumstance.
Let me refer noble Lords to one historical incident. Lord Brougham, defending Queen Caroline, had to act adverse to his sovereign the King. That is what he was doing. He was punished for it for years by the King, who deprived him of his silk gown for doing so. The cab rank rule is a protection to the advocate because it is a protection to the public.
Lord Mishcon: My Lords, I cannot help feeling that the advocate of whom the noble and learned Lord, Lord Hailsham, spoke seemed to receive a great deal of advertisement out of acting for the Queen at that time! I do not suggest that that is the reason he accepted the brief.
1 rise only because of a remark that was made by the noble Baroness about the attitude of this front Bench. Perhaps I may make it perfectly clear that there is nothing political in the amendment. I know of no Conservative Party, Labour Party or Liberal Democrat Party view. In this debate, which is very important, one speaks as a matter of individual conscience and as one sees the matter in perspective. I do not know, frankly, whether or not it would be better for this to be dealt with by the advisory board, or whether it should be put into a statute.
I wish to say only this, and briefly. Being a proud member of a profession which has on occasions been most unfortunately divided in the course of discussions on the White Papers and Green Papers, and Part II of the Bill, in a way which has not enhanced that profession in the eyes of the public, I believe that a principle is involved, whether it be considered by an advisory body or by this House. It is that if one asks for a privilege which is equal to the privilege granted to others in the past, one accepts the burdens that have been borne by those who had that privilege in the past, and one accepts those burdens proudly.
Viscount Bledisloe: My Lords, the speeches of those opposing this matter seem to have failed to take into account the revised words of the amendment as now proposed. The amendment expressly states the principle that the advocate practising in a superior court is under a duty to act except in circumstances in which it would be unreasonable to require him to do so. The noble Lord, Lord Boardman, said that solicitors are in a different position because they are in partnership. The rules will be able to cover that. If one of the partners is acting for the other side, it will almost certainly be thought that it would not be reasonable to require him to act against his partner.
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If, as the noble Lord, Lord Hacking, suggests, there are rules of the Law Society which prevent the cab rank rule as applies to the Bar being applied absolutely, the rules for the cab rank rule as applied to a solicitor advocate will be appropriately adapted to cover that. If, as suggested by the noble Baroness. Lady Carnegy of Lour, there is a solicitor in a small practice who practises partly as a solicitor and as a solicitor advocate who is asked to undertake a three-week case as an advocate which will mean abandoning all his present obligations to his other clients, obviously that will be a valid excuse for not undertaking that case.
The measure does not require one to drop all one's other obligations to clients and to rush off to do something at five seconds' notice. It has always been a reason for not accepting a brief that one has existing commitments which are incompatible because one cannot be in two places at once. The two places do not have to be, with regard to a solicitor, two courts. One may be sitting behind a desk dealing with matters that have to be dealt with by the end of the week.
Those are the only objections that are being put forward and they can all be dealt with in the rules. The only other suggestion that is put forward is that in some way consumers do not think that it is in their interests. But we have never had explained why the consumers do not think that it is in their interests. Cogent reasons have been advanced as to why it is. I give way.
Lord Boardman: My Lords, I am grateful to the noble Lord. I raise one other matter of important objection. It is that lay clients of solicitors come to them off the street. Clients of members of the Bar are referred to them by firms of solicitors. There is a complete contrast in the circumstances in which the customers come.
Viscount Bledisloe: My Lords, insofar as the solicitor will undertake conventional solicitor work, his freedom to pick and choose is not being affected. It is only the question of whether he or some other partner in his firm, or some other partner in some other firm of solicitors, will undertake the advocacy. Therefore the question of coming off the street has nothing to do with advocacy. Those circumstances relate to the preparatory work, not to the brief.
7 p.m.
Lord Hutchinson of Lullington: My Lords, as my name is to the amendment, I wish to speak for only two minutes, and to bring the matter back to its basic, total simplicity. What is the cab rank rule? The cab rank rule is that a person should have the advocate of his choice, whatever his case may be. It is the simplest possible rule. There is no question of barristers against solicitors, or against anybody else. The amendment is stating that anybody who wishes from now on to be an advocate must surely obey that rule. It is the basic rule of advocacy.
Perhaps I may point out to the noble and learned Lord that during the debate on the Scottish Bill the noble Lord, Lord Hughes, and the noble and learned

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Lord, Lord Emslie, who is the most distinguished lawyer in Scotland, both expressed their concern about this under the new legislation. They both asked what would happen to the cab rank rule in Scotland.
I have one last point to make. It concerns an aspect mentioned by the noble and learned Lord in Committee, and the noble Baroness also referred to it today. If solicitors can practise in the magistrates' courts without the cab rank rule, why can they not do so in the superior courts? The noble and learned Lord, Lord Emslie, made special reference to the matter in the Scottish debate on 30th January at col. 184 of Hansard. He said:
"It would be a mistake to assume that there is no material difference between the standard of pleading in the sheriff courts and that in the Court of Session and the High Court. Experience of a lifetime in the law of Scotland at all levels, including the sheriff court, has convinced me that the difference is real and striking".
He continued thereafter to elaborate the differences. However, the difference is total. It is in advocacy in the higher courts, dealing with all the pressures in criminal courts, where it is really of crucial importance because liberty of the subject is the essence of the matter. It is in serious crime where the cab rank rule is absolutely essential. The fact that solicitors do not obey it in the magistrates' court adds nothing to the point.
I should point out to your Lordships that the cab rank rule is, as has already been said, the very basis of advocacy in this country. Where the liberty of the subject is at issue, the cab rank rule underlines the fair and proper administration of justice and is the very basis of this Bill, which is access to justice for all.
This is the one amendment put forward during the passage of the Bill which puts legal aid to the front. Moreover, it is the one amendment which has been put forward with the intention of helping the most disadvantaged in our society.
Lord Marshall of Leeds: My Lords, perhaps I may be permitted to say that I am in a somewhat privileged situation because I happen to receive briefing material from the Bar and from the Law Society. The first briefing I do not read and the second one I read not as thoroughly as I should. However, it is the view of solicitors that amendments such as these seem at first sight to be attractive. It is argued that the cab rank rule ensures that all advocates in the higher courts are subject to the same rules and thus it provides a level playing field. But it is also argued that it ensures that legally-aided litigants are properly represented.
However, on more careful analysis it is clear that the rule is not necessary to ensure proper representation. Further, to apply it to the solicitor's profession would put undesirable restrictions on the form in which solicitors could practise if they wished to exercise rights of audience.
We have heard a good deal about standards being maintained, especially from those Members of this House who are members of the Bar. We have also heard about the pressures which attend upon those who undertake highly responsible court appearances.
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I practised as a solicitor in private practice for 36 years. Moreover, I expect that I am the only lawyer in this Chamber who was asked to prosecute a case of mutiny in the armed forces during the war. I knew how to behave. I did not ask that the maximum penalty should be exacted. I undertook a fair amount of mitigation because I saw this as being in the line of duty. The net result was that several of those members of the armed forces received 10 years' imprisonment. Of course, it might have been far worse for them. I think I can say that I handled myself fairly well.
I am also possibly the only lawyer in this House who advised on a charge of treason. However, that matter is by the way and is past history. I do not believe that anyone ought to talk seriously about the maintenance of standards in an argument where matters such as these are being debated.
In short, I should like to support my noble friend Lord Boardman on the basis that someone may be forgiven—indeed, an impartial observer may be forgiven—for suspecting and fearing that the cumulative effect of such an amendment may be to frustrate the general aim of the Bill. That is something which I think solicitors may reasonably fear.
The Bar need never fear for its future interests. Its future interests are safe in the competent and capable hands of those members of the Bar who have spoken during the proceedings on the Bill. However, it is not the interests of the Bar or those of solicitors which should occupy us; it is the interests of the consumer. Consumers made it plain in a Gallup poll conducted during March and April 1989 that they think solicitors should have the right to have more opportunities to represent clients. For those reasons I ask that this amendment should not pass.
Lord Donaldson of Lymington: My Lords, I do not wish to keep the House for more than literally a minute or two. However, there is something I must say. In Committee, the noble and learned Lord said:
"I take the view that it would be very desirable to impose some form of cab rank rule on anyone who has rights of audience in the superior courts, for the reasons indicated by my noble and learned friend Lord Oliver of Aylmerton".
I agree with him on that point.
He then went on to say:
"However, the rule will need to be specified in considerable detail". — [Official Report 25/1/90; col. 1207.]
Again, I agree with him. For that reason I and, I assume, the noble and learned Lord also, did not wish to accept the amendment moved by the noble Lord, Lord Alexander, on the last occasion. It seemed to me that it would be impossible to accept what was proposed and for the procedure in Schedule 4 to operate in such a way as to fine tune the rule when applied to the rules of a particular professional body.
However, the amendment put forward on this occasion by the noble Lord, Lord Alexander, is of a different character. It upholds the great cab rank rule with which my noble and learned friend agreed wholeheartedly. Moreover, it gives sufficient flexibility for it to be applied in real-life

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circumstances. after full discussion and consideration, because of the inclusion within its body of the words:
"in appropriate terms, and with any appropriate exceptions … except in circumstances in which it would be unreasonable".
Given that change in the form of the amendment, I hope that every one of your Lordships will support it.
The Lord Chancellor: My Lords, I should like to begin by referring to the reference by my noble friend Lord Peyton of Yeovil to the concluding part of my speech in Committee. When I talked about the machinery I was not referring only to the advisory committee. He said that there is plenty of advice available and I suppose, therefore, that it is a question of distinguishing between what is good and what is bad. I was thinking of the full machinery, which includes consent to the rules by the four designated judges, the Heads of Division and the Lord Chancellor. I took the view that it was appropriate for the rules to be settled in that machinery. For that reason, I advised your Lordships—and I am glad that my noble friend took my advice on that occasion—not to support the amendment then proposed.
Some reference has been made to what I said in giving evidence to the Royal Commission on Legal Services in Scotland as long ago as 1977 or 1978. I stand by what I said then. This is an important rule, it is a rule which requires to be spelt out in considerable detail, as my noble and learned friend the Master of the Rolls has just said. It is a rule which I believe requires to be tailored to the particular circumstances. The rule which the Bar is proposing to adopt in this connection spells out these circumstances.
It is useful to say a little about that. The fundamental principles as applicable to all barristers arc set out in Rule 201, which I do not need to read. Rule 202 says:
"A barrister in independent practice must make his practice in England and Wales or in the Courts of the European Community his primary occupation and must hold himself out as being and must be willing at all times in return for the payment of fees to render legal services to the public generally in England and Wales.
"203. A barrister in independent practice must comply with the 'Cab-rank rule' and accordingly except only as otherwise provided in paragraphs 501 502 and 503 he must in any field in which he professes to practise and irrespective of whether his client is paying privately or is legally aided or otherwise publicly funded:

(a) accept any brief to appear before a court in which he professes to practise;

(b) accept any instructions;

(c) act for any person on whose behalf he is briefed or instructed;

and do so irrespective of … the party on whose behalf he is briefed or instructed … the nature of the case and … any belief or opinion which he may have formed as to the character reputation cause conduct guilt or innocence of that person".
There follow a considerable number of qualifications in Rule 501:
"A practising barrister must not accept any brief or instructions if to do so would cause him to be professionally
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embarrassed and for this purpose a barrister will be professionally embarrassed:

(a) if he lacks sufficient experience or competence to handle the matter;

(b) if having regard to his other professional commitments he will be unable to do or will not have adequate time and opportunity to prepare that which he is required to do;

(c) if the brief or instructions seek to limit the ordinary authority or discretion of a barrister …

(d) if the matter is one in which he has reason to believe that he is likely to be a witness or in which whether by reason of any connection of his with the client or with the Court or a member of it or otherwise it will be difficult for him to maintain professional independence or the administration of justice might be or appear to be prejudiced;

(e) if there is or appears to be some conflict or a significant risk of some conflict either between the interests of the barrister and some other person or between the interests of any one or more of his clients;

(f) if the matter is one in which there is a risk of a breach of confidences entrusted to him by another client or where the knowledge which he possesses of the affairs of another client would given an undue advantage to the new client;

(g) if he is a barrister in independent practice in a privately funded matter if the brief or instructions are delivered by a solicitor or firm of solicitors in respect of whom—"

there has been a withdrawal of credit —
"unless the brief or instructions are accompanied by payment of an agreed fee …

(h) if he is a barrister in independent practice in a Direct Professional Access matter or an Overseas matter unless he has previously—"

given certain information. These are examples of the details which are spelt out in the code of conduct of which the Bar has just revised and which, quite shortly, I understand it expects to be its new code.
That indicates the nature of the rule. The rule has quite a large number of exceptions. The amendment of my noble friend Lord Alexander makes it quite plain that exceptions may be required. This is in accordance with what I said on the last occasion. The noble Viscount, Lord Bledisloe, did not start quite soon enough when reading out the amendment, because it provides:
"that body's rules of conduct include provisions embodying in appropriate terms, and with any appropriate exceptions, the principle that",
and so on. The exceptions are made from what is suggested as the principle. That demonstrates beyond all doubt that this is properly a matter for the rules. This is a rule. I think I am right in saying that it was so described in the quotation from my noble and learned friend Lord Oliver of Aylmerton to which I particularly referred when I spoke at the Committee stage. I believe that it is a rule, one which requires to be laid down in considerable detail according to the particular circumstances.
We have a principle in the Bill which is universal, a universal principle to which there are no exceptions. I refer now to Clause 14 (1), and then particularly to subsection (3):
"As a general principle the question whether a person should be granted a right of audience, or be granted a right to conduct litigation in relation to any court or proceedings, should be determined only by reference to—

(a) whether he is qualified in accordance with the educational and training requirements appropriate to the court or proceedings;

211

(b) whether he is a member of a professional or other body which —

(i) has rules of conduct (however described) governing the conduct of its members;

(ii) has an effective mechanism for enforcing those rules of conduct; and

(iii) is likely to enforce them; and—" this is the important provision—

" (c) whether that body's rules of conduct are, in relation to the court or proceedings, appropriate in the interests of the proper and efficient administration of justice".
That is the principle. That is the test. If that test requires a particular rule for the Bar then that rule will be laid down. If that test requires a particular rule for solicitors in relation to rights of audience, that rule should be laid down. But, in my submission to your Lordships, it is very unwise to derogate from the universality of a principle by trying to suggest that there is another one which is subject to appropriate exceptions. That is necessary, I agree, but it demonstrates that this is not a principle but a rule. It is a rule which depends on the particular circumstances. The principle applied to the circumstances may well give rise to the rule. The general principle that I referred to applied to the circumstances may well give rise to the rule. But in other circumstances it may give rise to a rule differently expressed, as the amendment of my noble friend makes perfectly clear.
For reasons which have been explained and into which I shall not go, I think I am right in saying that the Law Society have expressed this. They have expressed the view that this amendment might be inimical to the interests of solicitors obtaining rights of audience. I do not wish to take a position upon that because as at least one of those designated who have the responsibility for approving the rules, together with my colleagues, I wish to reserve my final position until all the matters are fully discussed. However, I have fully expressed my personal view in the debate in Committee. I believe that a rule which comes under a general description, such as the cab rank rule, may well be appropriate. It may well be possible to express it in circumstances which would fit solicitors' practices. That is something I should like to take forward. However, I do not believe it would advance the interests of justice for your Lordships to include the provision that is proposed here, which is really a rule, alongside the clear, agreed, cogent statement of principle that we have in the Bill.
My noble friend Lord Alexander of Weedon referred to two solicitors' firms which had indicated that they were not prepared to accept legal aid to defend people who were alleged to have raped their girlfriends. That is how I understand the case. That is a matter which I should certainly like to consider. However, this amendment would not deal with that case at all because it deals only with the rights of audience in the superior courts. My noble and learned friend Lord Ackner appears to have some doubt about that but I believe it is plain that this amendment deals only with rights of audience in the superior courts. Therefore it would not affect the right of solicitors to conduct litigation. I believe that
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was the matter at issue in the solicitors' statement when they said they would not act in the sense of conducting litigation on behalf of people accused of rape in the circumstances referred to. That is how I understood the matter. If I am wrong about that, no doubt I shall be corrected.
Lord Ackner: My Lords, if that is an invitation to speak I rise to it. The solicitors involved are not yet able to apply for rights of audience in the higher courts. That was merely an example of how, as the situation stands at the moment, solicitors pick and choose and how undesirable it would be if they were entitled to advocacy in the higher courts while they still maintained that philosophy.
The Lord Chancellor: My Lords, that is precisely what I had understood to be the position. I do not regard that situation as satisfactory at present. I do not believe that this amendment would deal with that situation because it deals only with rights of audience in the higher courts. It suggests that the rule is appropriate only in relation to rights of audience in the higher courts.
The noble Lord, Lord Hutchinson of Lullington, referred to the speech of my noble and learned friend Lord Emslie on the Scottish matter. The context in which he made reference to that suggested that there were differences between the sheriff court and the higher courts. I think everyone would agree with that. However, if one takes the statements of principle which my noble and learned friend Lord Ackner took from the Appellate Committee of this House in the case referred to, one can see that they are very general statements. To the Bar's credit it must be said that as I understand it, the Bar's rule at the present moment applies to the Bar in every court and not just in the superior courts. That is an important point. Justice is just as important in the magistrates' court as it is in the superior courts. If the provision is a fundamental rule for justice, it ought not to be restricted only to the superior courts. Surely we are in the business of providing justice at every level and not just in the superior courts.
The amendment makes it plain that it concerns the rights of audience in the superior courts. Therefore the rule it proposes is appropriate for those circumstances. However, I am saying that the general principle that we have here is a general principle of universal application to which there are no exceptions. I hope that we shall have the chance as the Bill develops, and as it is put into practice when it becomes law through the advisory committee and the designated judges, to see the rules of justice and the principle of the proper and efficient administration of justice apply in all courts at all levels. There should be a reference in the rules to the rules for conducting litigation as well as to the rules of rights of audience in the superior courts.
I entirely agree that this is an appropriate rule to consider as regards advocates in the superior courts. However, I say to your Lordships that the rules are the rules. The general principle dictates what the rules should be. Your Lordships would be well advised to leave that matter to the delicate but effective machinery which the Bill has provided and

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on the general principles of which I believe your Lordships are now substantially agreed.
Lord Alexander of Weedon: My Lords, I thank most warmly all noble Lords who have taken part in or listened to the debate. I shall begin by referring to two points which my noble and learned friend made towards the end of his response. The first concerned those firms of solicitors which refuse to represent rapists. As I understand it, he regards that as something that may have to be looked at. The point I was making was that if and in so far as that attitude was extended to advocacy in the superior courts it would be undesirable. My noble and learned friend appears to accept that. He accepts that we need justice in all courts. Therefore I ask your Lordships quite simply this evening why we should not then begin with regard to the superior courts tonight.
I shall now move on to deal with the other point which my noble and learned friend made. I believe it was the only other point he made. He stressed that we were discussing a rule and not a principle. In his response he made that point many times. However, he also said that he stood by every word of what he had said when he was Dean of the Faculty of Advocates in 1977. That is not in the context of a principle of centuries so long ago. My noble and learned friend described then what he now describes as a rule—I hope he will forgive me for saying so—as a constitutional guarantee. To my mind a constitutional guarantee is a matter of principle.
The Lord Chancellor: My Lords, I believe I am right in saying that on that occasion I said that this rule was a constitutional guarantee. However, I may be wrong about that.
Lord Alexander of Weedon: My Lords, what I am sure about is that my noble and learned friend, whether he then described it as a rule or not, undoubtedly mentioned the words "constitutional guarantee". Why should we not elevate a constitutional guarantee into a principle? That is what I always thought constitutional guarantees were, even if they could also be described as rules.
I wish to refer to another point which has crept into this debate. I believe that my noble friend Lord Hacking raised it. It was suggested that the Bar would prosper in certain circumstances. If I may use the vernacular, who gives a damn whether the Bar will prosper? Who gives a damn whether the measure is inconvenient to solicitors? What matters is the point that my noble friend Lord Irvine made, which is that this matter concerns the interests of the public. We should all forget which side of the profession would benefit from this and decide the issue as one of principle.
I shall deal briefly with the arguments raised against the measure. I say with respect to my noble friend Lord Boardman that I found some difficulty with his argument. He accepted that the rules could be flexible under the terms of our amendment. We are agreed there. I believe he also accepted that it was desirable that the same principle should apply
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to all advocates. We agree there, too. However, he then went on to suggest that the same rules should not apply to solicitors. I find difficulty with that suggestion with great respect to my noble friend. What concerns me is that reputable solicitors have, in contributing to this debate, suggested that the rule cannot apply to them. It appears that solicitors are reluctant to accept the extension of the monopoly with the corollary of the obligation to the public.
When I referred to solicitors I did not mean all solicitors as there is no more experienced solicitor advocate in this Chamber than the noble Lord, Lord Mishcon. He spoke for the principle as eloquently as anyone in this House has done. In regard to the reservations that were expressed on a previous occasion, the noble and learned Lord the Master of the Rolls, with his responsibility for the development of the solicitors' profession, accepts that this principle could be enshrined in legislation. I take comfort from that.
I now turn to one final issue. I make the following remarks with a little trepidation but I do so with regard to the sense of this debate. My remarks are prompted by what was said by my noble friend Lord Peyton. I believe he said that on the previous occasion that this matter was debated he had not heard the debate, yet with some unease but obediently—we all seek to behave obediently in appropriate circumstances—he voted for the Government; now that he has heard the arguments, he repented.
My noble and learned friend speaks with all the authority of the Woolsack. The noble Lord the Leader of the House, who has been present during most of the debate—and we thank him for that—is known to be sensitive to the wishes of Members of the House. Bearing in mind the sense of the debate on the two occasions, I ask whether the Government want, if by any chance there are some of their troops within this House who have been unavoidably prevented from hearing the debate, to take them into the Lobbies against us on what has been described on all sides not as a political issue but as an issue of conscience. If, even at this hour and having heard what has been said, my noble and learned friend will not accept the principle of the amendment and bring the matter back at Third Reading I shall seek to take the opinion of the House.
Before I do so, perhaps I may say that I was grateful to the noble and learned Lord for indicating, in regard to what he said on the last: occasion, that what we had said as to the ability of the advisory committee to frame rules met anxieties. In the course of his speech he referred to the details of the Bar Council's rules. With great respect to him, that has nothing to do with our present debate. The details of the rules can be worked out in due course. We believe that those involved will do so. However, if we had a principle that would show that in this period of alteration—which can be made to work—when we are committed to extending rights of audience we are committed to doing so according to principle, according to standards that have stood for centuries, and according to standards which I now invite this House once again to reassert.
7.31 p.m.
On Question, Whether the said amendment (No. 74) shall be agreed to?
Their Lordships divided: Contents, 99; Not-Contents, 92.

DIVISION NO. 2

CONTENTS

Ackner, L.

Lowry, L.

Airedale, L.

Macaulay of Bragar, L.

Alexander of Weedon, L.

Mackie of Benshie, L.

Barnett, L.

Macleod of Borve, B.

Beloff, L.

Masham of Ilton, B.

Blackstone, B.

Meston, L.

Bledisloe, V.

Mishcon, L.

Brandon of Oakbrook, L.

Monson, L.

Bridge of Harwich, L.

Morris, L.

Brooks of Tremorfa, L.

Nicol, B.

Campbell of Alloway, L.

Oliver of Aylmerton, L.

Carlisle of Bucklow, L.

O'Neill of the Maine, L.

Carmichael of Kelvingrove, L.

Parry, L.

Pender, L.

Carnock, L.

Perry of Walton, L.

Cledwyn of Penrhos, L.

Peyton of Yeovil, L.

Crickhowell, L.

Pitt of Hampstead, L.

Cross, V.

Prys-Davies, L.

David, B.

Pym, L.

Denman, L.

Rawlinson of Ewell, L.

Dilhorne, V.

Rees, L.

Donaldson of Lymington, L.

Renton, L. [Teller.]

Dormer, L.

Rippon of Hexham, L.

Erroll, E.

Robson of Kiddington, B.

Falkland, V.

Rochester, L.

Fisher of Rednal, B.

Roskill, L.

Foot, L.

Russell, E.

Gallacher, L.

Russell of Liverpool, L.

Galpern, L.

Saltoun of Abernethy, Ly.

Goff of Chieveley, L.

Seear, B.

Graham of Edmonton, L. [Teller.]

Selkirk, E.

Sherfield, L.

Grey, E.

Simon of Glaisdale, L.

Grimston of Westbury, L.

Stoddart of Swindon, L.

Hailsham of Saint

Strabolgi, L.

Marylebone, L.

Swinfen, L.

Halsbury, E.

Taylor of Blackburn, L.

Hampton, L.

Templeman, L.

Hanworth, V.

Terrington, L.

Harmar-Nicholls, L.

Thomas of Gwydir, L.

Harris of Greenwich, L.

Tordoff, L.

Hooson, L.

Turner of Camden, B.

Hutchinson of Lullington, L.

Vinson, L.

Hylton-Foster, B.

White, B.

Irvine of Lairg, L.

Wigoder, L.

Jauncey of Tullichettle, L.

Wilberforce, L.

Jay, L.

Williams of Elvel, L.

Jenkin of Roding, L.

Winchilsea and Nottingham, E.

Jenkins of Putney, L.

Kinnoull, E.

Winstanley, L.

Knutsford, V.

Wynford, L.

Lloyd of Kilgerran, L.

NOT-CONTENTS

Allenby of Megiddo, V.

Bridgeman, V.

Ampthill, L.

Brookeborough, V.

Annaly, L.

Brookes, L.

Arran, E.

Brougham and Vaux, L.

Ashbourne, L.

Byron, L.

Balfour, E.

Caithness, E.

Bauer, L.

Carnegy of Lour, B.

Beaverbrook, L.

Clanwilliam, E.

Belstead, L.

Coleraine, L.

Bessborough, E.

Colnbrook, L.

Blatch, B.

Craigavon, V.

Blyth, L.

Craigmyle, L.

Boardman, L.

Davidson, V. [Teller.]

Borthwick, L.

Denham, L. [Teller.]

Boyd-Carpenter, L.

Elibank, L.

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Elliot of Harwood, B.

Mills, V.

Elliott of Morpeth, L.

Milverton, L.

Ferrers, E.

Montgomery of Alamein, V.

Fisher, L.

Mountevans, L.

Fortescue, E.

Mountgarret, V.

Fraser of Carmyllie, L.

Munster, E.

Gibson-Watt, L.

Murton of Lindisfarne, L.

Gisborough, L.

Nugent of Guildford, L.

Goodman, L.

Orkney, E.

Goold, L.

Phillips, B.

Greenway, L.

Platt of Writtle, B.

Hacking, L.

Polwarth, L.

Hayter, L.

Raglan, L.

Henderson of Brompton, L.

Rankeillour, L.

Henley, L.

Reay, L.

Hesketh, L.

Redesdale, L.

Hives, L.

Renwick, L.

Home of the Hirsel, L.

Rochdale, V.

Hooper, B.

Sanderson of Bowden, L.

Johnston of Rockport, L.

Skelmersdale, L.

Joseph, L.

Stedman, B.

Kinloss, Ly.

Stodart of Leaston, L.

Lindsey and Abingdon, E.

Strange, B.

Long, V.

Strathclyde, L.

Lyell, L.

Strathmore and Kinghorne, E.

McColl of Dulwich, L.

Mackay of Clashfern, L.

Swinton, E.

Mackintosh of Halifax, V.

Tonypandy, V.

Margadale, L.

Trefgarne, L.

Marshall of Leeds, L.

Trumpington, B.

Merrivale, L.

Ullswater, V.

Mersey, V.

Resolved in the affirmative, and amendment agreed to accordingly.
Lord Alexander of Weedon Lord Alexander of Weedon moved Amendment No. 75:
Page 13, line 4, at end insert ("; and
(d) whether, as regards rights of audience in any of the superior courts other than those exercisable by solicitors (in their capacity as solicitors) immediately before the 7th December 1989, that body's rules of conduct include provisions embodying in appropriate terms, and with any appropriate exceptions, the principle that, except in circumstances in which it would be unreasonable to require him to do so, an advocate practising in any of those courts is under a duty to act for any client (whether legally aided or not) in cases within his field of practice, ").
The noble Lord said: My Lords, we heard the argument for Amendment No. 75 with the argument for Amendment No. 74. I beg to move.
On Question, amendment agreed to.
Lord Alexander of Weedon Lord Alexander of Weedon moved Amendment No. 76:
Page 13, line 5, at end insert—
(" () In this section "the superior courts" means the Supreme Court, the House of Lords and the Judical Committee of the Privy Council.").
On Question, amendment agreed to.
The Earl of Strathmore and Kinghorne: My Lords, I beg to move that further consideration on Report be adjourned. In moving the Motion, perhaps I may suggest that the Report stage begin again at 8.40 p.m.
Moved accordingly, and, on Question, Motion agreed to.
7.40 p.m.

Education (Student Loans) Bill
Brought from the Commons.
Lord Denham: My Lords, I beg to move that the Bill be now read a first time.
Moved, That the Bill be now read a first time. — (Lord Denham.)
Lord Tordoff: My Lords, perhaps I may say how pleased we are to see the Bill finally arrive here with that one-footed pigeon that has been on its way since the day before yesterday. I am sure that noble Lords will now give the Bill a First Reading.
On Question, Bill read a first time, and to be printed.

Licensing (Northern Ireland) Order 1990
7.41 p.m.
The Parliamentary Under-Secretary of State, Northern Ireland Office (Lord Skelmersdale)The Parliamentary Under-Secretary of State, Northern Ireland Office (Lord Skelmersdale) rose to move, That the draft order laid before the House on 18th January be approved.
The noble Lord said: My Lords, the order consolidates the Licensing Act (Northern Ireland) 1971 and subsequent amending enactments relating to liquor licensing in Northern Ireland. When it was referred to the Joint Committee on Consolidation Bills, the noble and learned Lord, Lord Lowry, described it as consolidation which is useful rather than exciting. It is, in a word, a piece of pure consolidation legislation and makes no change to the existing law. On that basis, I commend it to the House.
Moved, That the draft order laid before the House on 18th January be approved.—(Lord Skelmersdale.)
Lord Prys-Davies: My Lords, the noble Lord, Lord Skelmersdale, has explained that the order is purely a consolidation measure. I assume from that that the licensing law in Northern Ireland works pretty well and that there is no mischief that needs to be addressed in legislation.
I shall detain the House for no more than a moment or two. I note from a cursory examination of its articles that it replaces the Licensing Act (Northern Ireland) 1971, the Licensing (Northern Ireland) Order 1978, the Licensing (International Airports) (Northern Ireland) Order 1983 and the Licensing (Northern Ireland) Order 1987 in their entirety. In addition, it repeals prohibitions to be found in 13 other pieces of legislation enacted since 1968.
Licensing law is a narrow, technical branch of the law, but, as we have seen, it has grown in bits and pieces almost year by year since 1968. In the result, consolidation was desirable. I am sure that the order will be welcomed by the courts, the legal profession and business. For all that, we must thank the draftsman and his team who have worked hard to produce the order.
On Question, Motion agreed to.

Horticultural Development Council (Amendment) Order 1990
Baroness Trumpington Baroness Trumpington rose to move, That the draft order laid before the House on 18th January be approved [8th Report from the Joint Committee].
The noble Baroness said: My Lords, the order is presented in accordance with the requirements of the Industrial Organisation and Development Act 1947.
First, a brief history of the HDC and of the review process which has led to the draft amendment order may be helpful to your Lordships. The council was set up in July 1986 under the Horticultural Development Council Order with the primary function of commissioning research and development in horticulture on the industry's behalf. It is empowered, subject to approval of Ministers, to collect for that purpose a levy of up to ¼ per cent. of the value of growers' sales of horticultural produce, excluding potatoes, apples, pears, hops and, until now, mushrooms. Growers with annual sales of produce in excess of £25, 000 are liable for the levy and must register with the council. All 20 members of the council are appointed by Ministers.
Under Section 8 (3) of the 1947 Act, Ministers are required, not later than three years after the coming into effect of the development council order, to consult the council and organisations representative of substantial numbers of people trading and working in the industry as to whether the council should continue in being and whether any amendments to the order are necessary.
The Government have been most anxious at every stage to give the horticultural industry what it requires in terms of a development council. Prior to formal consultations, Ministers set up a joint working party of industry representatives and officials to consider whether changes in the organisation and functions of the HDC were needed to enable it to continue operating successfully. The resulting recommendations were put to representative organisations for them to consider in making their response to the formal review. The organisations consulted in May last year were the National Farmers Unions, the Farmers Union of Wales, the Horticultural Trades Association, the Transport and General Workers Union and the HDC itself. All of them were in favour of the continuation of the council. As a result, Ministers announced in July last year that the HDC would continue, provided that it had the support of individual growers themselves. Their support was to be tested through a poll.
As I said, mushrooms were not originally covered by the HDC. However, the Mushroom Growers Association passed a resolution at its 1987 AGM in favour of joining the HDC, subject to a poll of individual mushroom growers.
Both polls were held last October and the results were announced on 7th November. The result of the HDC poll was positive. Ministers confirmed their original decision that the council should continue, subject to the approval of Parliament. Mushroom growers also voted in favour of joining the council

219
and their inclusion will make the body even more comprehensive.
Turning to the order which is before us, the main amendments now proposed were included in the prospectuses issued in conjunction with both polls and so have been approved by those growers who voted positively. I shall now deal with the principal amendments.
As I have already mentioned, Article 3 extends the definition of "grower" to include mushroom growers. It also extends the definition of "relevant accounting year" to make provision for an assessment period for the annual levy to be imposed on mushroom growers.
The table in Article 2 (2) of the 1986 order is replaced by Article 4. That sets out the period during which the charge is to be levied and the assessment period on which that charge is to be based. It now refers to mushroom growers.
The number of HDC members representing the interests of growers is increased from 14 to 16 in Article 5. Ministers will appoint two members to represent the interests of mushroom growers with effect from the commencement of the order. Article 6 amends the registration provisions, merely to include mushroom growers.
Article 7 of the order raises the maximum rate of levy on growers, other than mushroom growers, from ¼ per cent. to ½ per cent. of the value of his sales. However, the existing rate of ¼ per cent. will be retained in the 1989–90 levy period and the new rates will be phased in by charging ⅜ per cent. in 1990–91 and ½ per cent. in 1991–92. It also imposes a charge at a maximum rate of 7 pence per litre of mushroom spawn from mushroom growers whose annual puchases exceed 700 litres. The levy will initially be charged at 5 pence per litre. Since other growers are levied on the basis of annual sales, I should perhaps explain why a separate framework for the collection of levy from mushroom growers is being introduced. That is because it takes advantage of the centralised arrangements for the distribution of mushroom spawn to facilitate levy collection. It also has the advantage of being readily identifiable and should minimise levy avoidance.
An amendment is made in Article 7 (2) to clarify that costs of haulage and packing materials should be deducted from sales figures for purposes of assessing a grower's levy. Provision is also made for the deduction of costs associated with produce prepared for market in rateable packhouses. Both the measures avoid growers having to pay too high a levy in relation to their turnover.
Provision is made in Article 8 for the levy of fines in subparagraphs (1), (2) and (3) of Article 12 of the 1986 order to be amended to bring them into line with the Criminal Justice Act 1982. At present level 3 on the standard scale is £400.
Finally, provision has been made in Article 9 for a revised Schedule 1 which lists those products coming within the scope of the order to include mushrooms and trees for sale for amenity purposes. Both products will now benefit from HDC research.
It also defines that grapes should be excluded on the grounds that grapes grown in the UK are generally sold only in processed form as wine and it would be impossible to assess the levy. Conifers and Christmas trees have been removed from the list of products defined as being horticultural produce. This means that forest trees will no longer fall within the scope of the HDC. Research on such trees is carried out by the Forestry Commission.
It is proposed that the order should come into force on the day after it is made to allow arrangements for the collection of the levy on mushroom growers to be set in hand as soon as possible. In accordance with the terms of the Industrial Organisation and Development Act 1947, a further review of the council's activities will be undertaken in five years' time. It only remains—the noble Lord, Lord Williams, will be glad to hear—for me to commend this order to the House.
Moved, That the draft order laid before the House on 18th January be approved [8th Report from the Joint Committee] .— (Baroness Trumpington.)
Lord Gallacher: My Lords, I thank the noble Baroness for detailing the order in the way that she has done and for putting us so firmly in the picture regarding the inclusion of mushroom growers in this order. We on this side of the House are in support of the order if only because it partly closes a gap in research funding for horticulture arising from reductions in government support attributable to near market research. We understand, for example, that the Ministry of Agriculture's spending will be down from £18 million in 1988–89 to some £10 million in 1991–92, which of course is a considerable reduction in its own right and even more so in real terms.
The horticultural industry is to be congratulated. It does not have the benefit of Community regimes which support prices for its products. Competition in horticulture is very intense and has become particularly so after the accession to the market of Spain and Portugal. Undoubtedly it will become even more intense post-1992. That emphasises the vital importance of research for horticulture. The £2–5 million which the levy is scheduled to produce is a very valuable token of the industry's commitment to research at the present time.
I noted that the British Society for Horticultural Research, for which MAFF is the lead department but which is to be tripartite, comprising three representatives from MAFF, three representatives from the Department of Education and Science and three representatives from industry, is to be based at the East Mailing Research Station. I know East Mailing principally as a centre for apples and pears, which are of course excluded from the order as defined in Schedule 1. In the light of that I wonder about the choice and whether it presages a merger with the Apple and Pear Development Council, recently established.
In another place when the order was discussed, in response to a query the Minister mentioned the fact that apropos the Brogdale fruit collection, constructive discussions were taking place with the

221
Swale District Council. The Swale District Council was bitterly disappointed first of all at the decision to close Brogdale, which is in its area. It was even more disappointed at the decision to transfer Brogdale to Wye College. We are all grateful to learn that discussions with the district council are constructive. However, I wonder whether the Minister is in a position to say tonight how constructive the discussions currently are and whether there is likely to be a conclusion which is acceptable to the Ministry on the one hand and Swale District Council on the other.
We welcome the order and the adherence of mushroom growers to it. I sincerely hope that the research that it funds will prove useful to the industry in tackling the problems that it undoubtedly will face in the years ahead.
Lord Airedale: My Lords, I wish that I too could welcome this order. It first appeared in the Minutes on 7th February that this Motion was to be moved this evening. Reference was specifically made in the Minutes on 7th February to the 8th Report of the Joint Committee on Statutory Instruments, as is required. That reference to the 8th report has been repeated every day in the Minutes since 7th February. The report of the joint committee was ordered to be printed on 6th February.
Last week I applied to the Printed Paper Office for a copy of the 8th report. It was not available. At 9.30 this morning I applied again. It was not available. I was told that if I came back at 10.30 a.m. some document might be available. It was. It is a document bearing on its front a rubber stamp stating: "Extract from uncorrected proof. I do not call that very courteous to this House.
The 8th report was critical of this order. It found it to be in some respects retrospective, although it is fair to say that the department has given an assurance that no use is to be made of the retrospective powers, which should not have been sought. Members and others interested in horticulture tend to live in the country. I do not suppose that there is the slightest hope that anybody living in the country could have had sight of a document which became available in uncorrected proof in the Printed Paper Office at 10.30 this morning.
I wonder why this Motion is moved this evening. It is only a draft order. There is no urgency about it so far as I know. I detected no note of urgency in the voice of the noble Baroness when she moved it. I ask her to withdraw the Motion this evening and to ensure that the 8th report of the committee is expedited. I do not suppose it matters whether it appears in typescript or print but I think we want a proof corrected copy. We want it to become available and for a decent interval to elapse so that noble Lords—in particular those living in the country —can read it, consider it and have it debated in this Chamber at some future date when those who are interested can come and discuss it.
In the circumstances of this case it is simply not good enough that this order should proceed this evening. I ask the noble Baroness to withdraw it and reintroduce it after there has been a fair chance to read the 8th report to which we have been referred.
Baroness Trumpington: My Lords, perhaps the noble Lord, Lord Gallacher, will forgive me if I deal first with the point raised by the noble Lord, Lord Airedale. The noble Lord, Lord Airedale, will be aware that it is for the usual channels to arrange when an order in my name is to be debated. Standing Order 69 governs the debating of Motions for affirmative resolution. The relevant provision of the Standing Order provides that:
"No Motion for a resolution of the House to approve an Affirmative Instrument shall be moved until.… there has been laid before the House the Report thereon of the Joint Committee on Statutory Instruments".
My understanding is that for those purposes a report from the joint committee is laid before the House on the day on which it is made and entered in the Minutes of Proceedings—not on the day on which it is published. In the present instance the Horticultural Development Council (Amendment) Order was reported on 6th February. To that extent therefore I cannot accept that it was in any way improper or inappropriate to debate this Motion this evening.
The noble Lord has made the common sense point that there is little advantage in a committee of your Lordships' House considering and reporting on an instrument unless your Lordships have the benefit of that report in any debate. I am, however, given to understand that it has been a long-standing practice that where a report has not been published in time for a debate, the appropriate extract from the report is made available in the Printed Paper Office on the day of the debate. This was done, I am informed, by 10.30 this morning. In short, the report is, for all relevant purposes, available to Members of the House for the debate. I would, however, add that, following informal representations by the noble Lord, Lord Airedale, on this point earlier today, the procedure for making an extract of the report available has been changed slightly to the extent that this will in future be done on the day before a debate.
In the present instance the usual channels considered whether the Motion on the order should be postponed from this evening because of the concerns expressed by the noble Lord. In the event it was decided that this should not be done, simply because it is, by and large, for the convenience of your Lordships that business should not be changed at short notice. I hope that this answers the noble Lord's concerns.
I shall now turn to the points raised by the noble Lord, Lord Gallacher. He asked me about talks with Swale Council. I am fully aware that Swale was extremely disappointed when the National Fruit Collection did not remain at Brogdale. It was an extremely difficult decision for me to make. No final decisions on the site have yet been made. The conversations are extremely promising in regard to its continuing role. We are finding out exactly what Swale wants to do. Good progress is being made and I very much hope that a fruitful —if that it not the wrong word to use —end will result because it would be complementary in many ways to Wye.
The noble Lord asked about the merger of the APRC and the HDC. The apple and pear growers felt that they needed a separate council. They are a

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rugged bunch and great friends of mine. I have been working on this matter for two years and I am extremely pleased that the order is now coming through. They prefer to go it alone at the moment. Perhaps at some future date when there is another review they will change their minds. But it is their own affair.
With regard to the centre for the BSHR, the principal site for horticultural research and development will be at Wellesbourne, not at East Mailing. East Mailing's offer to house the BSHR has been most gratefully accepted. That will be valuable.
I hope that I have answered most of the noble Lord's questions. The noble Lord, Lord Airedale, asked about the retrospective nature of the order. As the House will know, we have great respect for the joint committee's views, and we have considered its comments carefully. But we cannot agree with it that the order contains a retrospective element in the true sense of the meaning, or that its meaning is unclear. The 1947 Act gives Ministers power to alter the maximum rate of levy that can be charged by an amending order. By simply increasing a levy which already exists, we are not imposing any new obligation to pay on the grower. Nor by increasing the maximum are we authorising an increase in the actual amount charged this year.
If no demand had already been made by the HDC it is true that Ministers would in theory approve a levy based on the new maximum. But the demand has already been made. Because of this the terms of the 1986 order would prevent the council from levying a supplementary increase. In our view therefore there is no question of the increase being retrospective. Indeed, the joint committee has already pointed out that this issue is an academic one. As my honourable friend in another place has already made clear, we have no intention of applying an increased rate until the levy period beginning 1st October 1990. I am delighted to be able to repeat those assurances here today.
Lord Airedale: My Lords, before the noble Baroness sits down, I am much obliged to her but does she really believe that, on a matter concerning the country and country people, one day's notice is sufficient for noble Lords to grasp the matter and take part in the debate one day later?
Baroness Trumpington: My Lords, I feel sure that the usual channels which arrange these matters will take note of the noble Lord's views. If they do not, he must press them there himself.
On Question, Motion agreed to.

Data Protection (Regulation of Financial Services etc.) (Subject Access Exemption) (Amendment) Order 1990
8.7 p.m.
Viscount Ullswater Viscount Ullswater rose to move, That the draft order laid before the House on 30th January be approved [8th Report from the Joint Committees].
The noble Viscount said: My Lords, the purpose of this order is to qualify slightly the subject access provisions of the Data Protection Act 1984. Although subject access—that is, the right of people to see personal information held about themselves in computerised form—is a central pillar of the Data Protection Act, that Act allows certain exemptions. For example, data held for the purposes of the assessment and collection of taxation are exempt if disclosure to the subject would be likely to prejudice those purposes. Parliament also foresaw that it might be necessary to make further exemptions in the fields of heath, social work and financial services, and data protected from disclosure by other enactments; and it accordingly provided the Secretary of State with order-making powers.
Under this power the Data Protection (Regulation of Financial Services etc.) (Subject Access Exemption) Order 1987 was made on 9th November 1987. As your Lordships may remember, it was one of those debated on 5th November 1987 at cols. 1124 to 1132 of the Official Report. The Order designated certain functions conferred by or under statute relating to, among other things, the regulation of financial services. The order prevented data subjects from using subject access to discover what information regulators held about them as it could have prejudiced investigation and prosecution of malpractice.
The order now before the House amends the 1987 order in ways which we consider are necessary following the enactment of the Companies Act 1989. First, this Act extends investigatory powers from departmental officials by allowing the Secretary of State to bring in the expertise of other competent persons and this will help him to cope more flexibly with changes in the departmental workload. Secondly, it enables him to assist overseas regulators in the company law, financial services and insurance spheres by investigating in the United Kingdom on their behalf. Regulators need to be able to trace transactions, which may be in breach of a law, to all the countries involved. Markets are increasingly international and complex and the new power will protect United Kingdom investors who may be damaged by those who, undetected, would otherwise be able to continue investment into or in the United Kingdom. At the same time, the new power should help our own investigators secure reciprocal assistance from overseas regulators, especially those who already have compulsory investigation powers which can be used on behalf of foreign regulators; for example, the United States Securities and Exchange Commission.
The third set of changes which I wish to mention are the amendments made by the Companies Act 1989 to the Financial Services Act 1986. Most of these relate to the powers of the Securities and Investments Board, and various self-regulating organisations recognised under the Financial Services Act, to regulate the conduct of investment business. All that will provide the primary regulator with more flexibility in regulating the carrying on of investment business. In particular the amendments confer new powers to issue statements of principle and codes of practice, to designate rules as applying

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directly to members of a self-regulating organisation recognised by the Securities and Investments Board and to use the enforcement powers in the Financial Services Act to assist an overseas regulator.
In the case of all these powers brought in by the Companies Act 1989, we consider that the right of subject access to personal data might prejudice the discharge of the functions of the regulatory authority. I therefore recommend to your Lordships that subject access should be denied. This is but a small qualification to the general principle of subject access which derives from the European Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data, and is given statutory form in the Data Protection Act. It is, I believe, necessary in the wider public interest.
As the Act requires, the Data Protection Registrar has been consulted about the exemptions for which the order provides, and he is content. The order has been approved by affirmative resolution in another place and I commend it to your Lordships. I beg to move.
Moved, That the draft order laid before the House on 30th January be approved. [8th Report from the Joint Committee.] —(Viscount Ullswater.)
Lord Williams of Elvel: My Lords, the House will be grateful to the noble Viscount for introducing the order which is a matter of substance and importance. I am pleased to be able to address many noble Lords on the opposite Benches and make my points with my customary trenchancy!
The Data Protection Act guarantees certain fundamental freedoms; that is, subject to the exemptions mentioned by the noble Viscount, the ability for individuals to know what information is stored in computer records about their characteristics, qualities and so forth. As the Data Protection Registrar has said on a number of occasions—and most recently in his report—we must try to strike a balance. We accept the fact that there will be exemptions. Nevertheless, we shall grant those exemptions grudgingly. I believe that that is the right balance to strike.
In the order introduced by the noble Viscount there appeared to be two major problems. The first concerns overseas regulatory authorities. We recall that Section 30 of the Data Protection Act limits exemptions to cases in which the proper discharge of certain functions is likely to be prejudiced if no exemption is granted. The question we must ask about overseas regulatory authorities is: in their case is the exemption necessary? After all, the Companies Act 1989 granted extensive facilities to overseas authorities and made available to them privileges which we hoped would be helpful in pursuing international fraud, particularly in securities dealing. However, it goes a little against the grain to say that, in addition, we should prevent private individuals within the United Kingdom jurisdiction from having access to information about them which may be stored in a computer and which may be passed to overseas authorities. I should like the noble Viscount to comment on that problem.
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The second problem relates to Part II of the schedule in the order. It concerns the amendments to the Financial Services Act 1986, which were passed in the Companies Act 1989, relating to statements of principle and codes of practice. I fail to see, and to be persuaded about, the argument which states that the discharge of the function of determining a statement of principle—and it was defined quite clearly in the Companies Act 1989—and of the function of determining a code of practice would be prejudiced if there were no exemption under Section 30 of the Data Protection Act.
I find that odd not only because I argued at length against the idea of statements of principle and codes of practice in the form in which they now appear in the Act, but also because I was given many assurances during our debates on the Bill that statements of principle and codes of practice would be for guidance and general information, and would not have the same force as rules and regulations made under the Financial Services Act 1986. I find it odd that such an exemption should be given for the purposes of discharging functions under the 1986 Act, as amended by the Companies; Act 1989 in respect of statements of principle and codes of practice.
If I have spoken for longer than I should have it is because I wish to insist that the Data Protection Act 1984 is a fundamental assertion of individual rights. It is for your Lordships' House to consider most carefully any exemption which may be granted to government to derogate from that fundamental right. I hope that the noble Viscount will be able to help with those two problems.
8.15 p.m.
Viscount Ullswater: My Lords, I am grateful to the noble Lord, Lord Williams of Elvel, for taking part in the debate at this hour. I shall take up the points that he raised. As regards the foreign regulators, it should be emphasised that discretion to use the power under Section 1 remains unequivocally with the Secretary of State. Before doing so he may take into account whether or not the inquiries involve an unacceptable assertion of jurisdiction. Even when the investigation is complete the Act imposes no obligation to pass any or all of the information to the overseas regulator if it is likely to be used for improper purposes—
Lord Williams of Elvel: My Lords, I hope that I shall not continue to interrupt the noble Viscount but I wish to point out that that is not relevant to the present order. The order denies access by an individual to the computer records with which we are dealing. It is not a question of whether the Secretary of State may or may not pass information to an overseas regulatory authority. That is a different question.
Viscount Ullswater: My Lords, I should say that the information obtained under the new power to

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investigate on behalf of overseas regulators will be stored in the first place on behalf of the Secretary of State. I understand what the noble Lord is driving at. However, I believe that it is important to stress that it is the mutual reciprocation which we require with those who are co-signatories of the original convention that this function will assist.
To go on to the noble Lord's second point, he asked me about paragraph 1 of Part II. The power to issue statements of principle will enable the Securities and Investments Board, which will in practice exercise it, to press at a high level of generality the most fundamental terms of good investment practice. They should be more easily understood and detailed rules and therefore be accessible to practitioners and not just their lawyers. The power to issue codes of practice means that the Securities and Investments Board could amplify what is contained in its principles or rules without the amplification having itself to take the form of rules.
I should like to add that the Government and the registrar will continue to keep the Data Protection Act under review. Indeed, an interdepartmental committee on the working of the Act is due to report to my right honourable friend the Home Secretary in a few months. If it is necessary we shall take steps to change procedures to improve the working of the Act although always in a way which is consistent with the European convention.
Lord Williams of Elvel: My Lords, I apologise for intervening again. I understand about statements of principle and codes of practice under the amendments to the Financial Services Act 1986 which were passed in the Companies Act 1989. I spent a lot of time studying and debating them. I simply do not see—and the noble Viscount has not answered my question—why there should be exemption under Section 30 of the Data Protection Act in order to allow the SIB to discharge the function of making statements of principle in codes of practice. I very much hope that the noble Viscount will be able to answer my question.
Viscount Ullswater: My Lords, I am not certain that I can answer that question. Therefore, I shall need to write to the noble Lord with a detailed answer. He asked me a fairly detailed question and I shall need to write to him.
Lord Williams of Elvel: My Lords, again I am sorry to interrupt. I do not regard my question as detailed. It is a question about the principle of Part II of the schedule. Why are the Government coming forward with this order at this point in time when they cannot answer the simplest questions from the Opposition Front Bench? If the noble Viscount says that he would like further time to consider this matter then I suggest that he withdraws the order and we start all over again.
Viscount Ullswater: My Lords, the justification for denying access is that disclosure of that data to the individual may prejudice the discharge of the Secretary of State's functions under those two sections because the need for the statement of principle and the code of practice might arise out of a particular case which may be very sensitive.
The Government believe that the order before your Lordships is necessary in order to bring the subject access exemptions into line with the changes made by the Companies Act 1989 and generally to maintain the correct balance between the rights of data subjects and of the public in general. I commend the order to your Lordships and invite the House to approve it.
On Question, Motion agreed to.
Viscount Long: My Lords, I beg to move that the House do now adjourn during pleasure until 8.30 p.m.
Moved accordingly, and, on Question, Motion agreed to.
[The Sitting was suspended from 8.25 to 8.30 p. m.]
8.30 p.m.
[House adjourned during pleasure until 8.40 p.m.]

Courts and Legal Services Bill [H.L.]
Consideration of amendments on Report resumed.
Clause 15 [The statutory duty]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 77:
Page 13, line 15, leave out ("must") and insert ("shall").
The noble and learned Lord said: My Lords, in moving the amendment I speak also to Amendment No. 78. I have brought forward these amendments in response to comments made by my noble and learned friend Lord Donaldson in Committee. The Master of the Rolls suggested that the word "shall" has been more usual for communicating statutory duties to those who must carry them out than the word "must". I agreed to consult parliamentary counsel on this issue, and having done so, bring forward these amendments to the wording. I should like to make quite clear that, to my view, this is merely a question of usage and that these amendments make no substantive alteration to the purpose or effect of Clause 15. However, since my noble and learned friend has indicated some concern, I am happy to oblige him on the basis that I have stated, while keeping an open mind. I beg to move.
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No. 78:
Page 13, line 16, leave out ("must") and insert ("shall").
The noble and learned Lord said: My Lords, I have already spoken to this amendment. I beg to move.
On Question, amendment agreed to.
Lord Ackner Lord Ackner moved Amendment No. 79:
Page 13, line 20, at end insert —
(" (3) None of the designated judges shall be liable in damages for anything done or omitted in the discharge or purported discharge of any such functions.").
The noble and learned Lord said: My Lords, I do not know whether it is on the basis of alphabetical merit, but I always seem to be high up the list of post-prandial amendments. It has probably been learned from your Lordships' restaurant that I enjoy that part of the evening and must therefore be disturbed! Happily, like most of the amendments I hope to put before your Lordships, this is basically uncontroversial. I say that because when the matter came before the Committee on 23rd January my noble and learned friend the Lord Chancellor said, with his customary friendliness:
"There is nothing between us in principle; the question is how best to achieve the continued immunity of judges from damages for suit".—[Official Report, 25/1/90; col. 1219.]
My noble and learned friend Lord Bridge of Harwich, who most of us in the Law Lords' corridor look upon as the expert in statutory interpretation, said:
"I see no … bureaucratic attempt in Clause 15 to invade the independence of the judges. Since provision is made in Clause 16 (8) to protect the advisory committee from liability in damages"—
I interpose to say that the chairman is to be a Law Lord or a judge of the supreme court—
"in my submission it would be worth having this amendment in if only to negative the argument. Parliament expressly provided that the advisory committee should not be liable to damages. It made no such provision in relation to the designated judges; ergo it intended that the designated judges should be so liable". —[Cols. 1217–8.]
I have awaited with characteristic patience to discover what was the end result of my noble and learned friend's anxiety to see how the question, to quote his language, "could be best achieved" in order to continue the immunity of the judges. However, having had no communication one way or the other I have again tabled this amendment. It is clearly desirable that there should be something provided for their immunity.
I should perhaps say that an action for breach of statutory duty was specifically referred to as being on the cards in the Government's White Paper, Legal Services: A Framework for the Future, because at page 29 it states:
"Any allegation that the statutory duties had not been carried out, or had been carried out in a way in which no reasonable authority would have done, could of course be tested by judicial review in the High Court or by an action for breach of statutory duty".
If an action for breach of statutory duty lies, then for the moment I do not see why an action for damages should not be appended to such an action. This is clearly in contemplation, otherwise Clause
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16 (8) would not apply for the benefit of the advisory committee and its chairman. I beg to move.
Lord Renton: My Lords, lest it be thought that this is entirely a matter of interest to the judiciary, may I say that I find this amendment very valuable and acceptable. Indeed, it would add to the completeness of Clause 15. I hope my noble and learned friend the Lord Chancellor will consider it sympathetically.
The Lord Chancellor: My Lords, I undertook at Committee stage to consider this matter, and I am seeking to do so. The precise way in which this should be dealt with is quite a difficult question. Consideration started with parliamentary counsel and the consideration of it has not yet been completed.
There are other matters to look to, apart from this Bill itself. My noble and learned friend will be very familiar with the argument that one compares two statutes and if what is in one is not in the other Parliament therefore must have intended a different consequence. There are quite a number of statutes therefore to be looked at in this connection.
I hope my noble and learned friend will allow me to continue this consideration, and I certainly hope that I shall be in a position to respond more fully at Third Reading. We have managed to respond to a good number of matters that have been raised, but this is one of particular difficulty because of its possible implications in relation to other statutes. Therefore I hope that my noble and learned friend will agree with my suggestion.
Lord Ackner: My Lords, certainly in view of the fact that my noble and learned friend the Lord Chancellor is continuing to consider this matter I shall leave it in his hands. Perhaps this piece of wisdom might be communicated to the parliamentary draftsmen. I read from page 585 of Sir William Wade's up-to-date edition of Administrative Law where he says:
"But recently the courts have been opening up new areas of liability, and there are signs that what might be called administrative torts are a subject which is on the threshold of important developments".
It is that which I particularly have in mind in desiring to ensure that Her Majesty's judges, who are—if I may use the phrase without disrespect—being dragged into the arena in pursuit of the provisions of this Bill, are not damaged in the process by claims for damages. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 16 [The Lord Chancellor's Advisory Committee on Legal Education and Conduct]:
Lord Morris Lord Morris moved Amendment No. 80:
Page 13, line 25, leave out ("14") and insert ("16").
The noble Lord said: My Lords, this is a paving amendment to substantive Amendment No. 86 and the consequential Amendment No. 87. I am very conscious of the fact that considerable care and consideration had been given to the composition

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of the advisory committee, but I most sincerely believe—bearing in mind its experience and practice, above all, in the teaching of law—that the inclusion of the Institute of Legal Executives in the body of the advisory committee would be to the national interest.
I am unhappy in one sense —that in my experience committees of more than three generally do not work as well as very large committees—and this paving amendment and the consequential amendment increase the size of the committee overall in order to maintain the balance of a majority of lay over—for want of a better term —professional people on the committee.
I know that the practice and experience of what used to be the managing clerks' association in this field are very well known to my noble and learned friend the Lord Chancellor, and I believe that for them to be left out is a sad lacuna. I am also concerned that they could not be considered under the umbrella of the lay members of the committee because the definition in subsection (10) of the word "practising" seems to bar a practising member of the Institute of Legal Executives from entering the advisory committee in that field. I beg to move.
Lord Hacking: My Lords, I support this amendment which is tabled in my name, as are Amendments Nos. 86 and 87.
In so far as the noble and learned Lord was not already familiar with the Institute of Legal Executives, he is certainly fully familiar with them from the information that we have provided to him, not only in your Lordships' House but also in written communications. Therefore, I need enlarge no more on that. What the institute says to your Lordships and to the noble and learned Lord is that we play a substantive part in the provision of legal services to the public. We have no fewer than 50, 000 assistant solicitors who work in various solicitors' offices. Therefore, we are a major component in the legal workforce.
The difficulty is that if the institute is not to have the opportunity to be consulted —and it is asking for no more than that —on the appointment of lawyer members of the advisory committee, the only means under which its members can enter the advisory committee, which is their objective, is under the hat of a lay member. That creates a difficulty because the result of that is, if my arithmetic is correct, that the number of lawyer members of the advisory committee would rise to seven and the number of lay members of the committee would drop to seven. Therefore, one would have a committee of exactly seven lawyers and seven laymen with a presiding judge. It is that which they particularly fear if they are not to have the opportunity to be consulted on appointments within the category of lawyers. They are particularly concerned that they might be excluded altogether, because the noble and learned Lord is very anxious that there should be a lay majority. I wonder whether the noble and learned Lord can assist them on that.
Lord Renton: My Lords, first of all I should like to make it clear that whatever views we may have expressed in Committee I think all of us on both sides of the House, and in both branches of the profession, now accept that the advisory committee shall have a lay majority. Let us have that understood between us. I have noticed that, in moving the amendment regarding legal executives, my noble friend Lord Morris has altered the numbers of the advisory committee in such a way as to ensure that. So do the noble and learned Lords, Lord Oliver of Aylmerton and Lord Ackner, when it comes to the next group of amendments. For their purpose they also preserve the lay majority; so there is no dispute whatever on that.
We now come to the question of whether, among various people who could be nominated, legal executives should be singled out as special appointees to the advisory committee. First, I must confess how much, as a barrister, I owed to my clerk. We all did. I do not know how we could have carried on our practices without the expertise of the kind that clerks displayed and on which we relied. I had the remarkable experience of being briefed for several High Court actions by the High Court clerk, as he called himself, of one of the big London firms of solicitors. He instructed me with very great precision and detail. I did not often see a partner in connection with those actions, so that managing clerk was a very important person in relation to the actions in which I was working.
We have to bear in mind in the context of the Bill, if it is thought that legal executives should be singled out, that first of all they have no judicial position. Secondly, they are not to have rights of audience under the Bill. Thirdly, they are not to have rights to conduct litigation because that is the responsibility of qualified solicitors.
Lord Hacking: My Lords, I am sorry to interrupt. Did the noble Lord say that they have no rights of audience? Indeed they do.
Lord Renton: My Lords, I did not know that.
Lord Mishcon: My Lords, they do have rights.
Lord Renton: My Lords, yes. I am glad to be reminded, and I stand open to correction. They do have some limited rights of audience, not those sorts of rights of audience which would be accorded to qualified solicitors; but I quite agree that they have more limited rights of audience. I am grateful for the correction, but they are not legally qualified people.
The question is whether they should be singled out and be specially nominated in the Bill for appointment to the advisory committee. I have a grave doubt about that. They are valuable and splendid people, but I do not think they should be appointed to that position. I am merely expressing a doubt. I am trying to keep an open mind until I have heard the rest of the debate, but as of now I

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am not convinced that these amendments should be accepted.
Lord Ackner: My Lords, if the legal executives are to be let in I do not see on what basis barristers' clerks are left out. If there is one person who is experienced in what goes on in court, in the qualities of an advocate and what is essential in the pursuit of advocacy, it is the barrister's clerk. He is very much like the actor's manager who perhaps knows a great deal better than the actor what are the qualities that make the good actor or actress. If you are going to let in one you must let in the other.
I do not wish to expound on the position of barristers' clerks because I know that north of the Border the Bar does not have the particular facility. It manages without them in the sense of their function south of the Border; that is, as managing clerks. A clerk who really looks after and controls a whole set of chambers is immensely powerful and has an income comparable to that of the major members of those chambers. I am only saying that; I do not support the proposal of the noble Lord, Lord Hacking, but if there is a question of sauce for the goose, there must be sauce for the gander.
9 p.m.
Lord Mishcon: My Lords, perhaps I may tell your Lordships that years ago —those who are in the legal profession will know that what I am saying is true —it was said that solicitors' managing clerks were the main foundation of the office. That was literally true. I can well understand why the loyal, experienced managing clerk was chosen to brief the noble Lord, Lord Renton, and to attend conferences with him. The noble Lord did not see a partner. The managing clerk most probably did much better than the partner would have done. The managing clerk was disappearing from the profession until the Institute of Legal Executives gave him great dignity, and required a great deal of qualification from those who were admitted to the institute as members.
If we are looking forward to the profession's future, whether at the Bar or on the solicitors' side, I beg the House to give as much prominence, prestige and encouragement to the Institute of Legal Executives as it possibly can. I know that the noble and learned Lord, Lord Ackner, will forgive me. He is absolutely right, or course, about the prosperity of barristers' clerks. Those of us who have the privilege of dealing with clerks at chambers know how true that is and how well they administer the affairs of members of chambers. There is no comparison. Barristers' clerks never address Masters of the High Court; legal executives do it every day. A barrister's clerk does not have experience of practising the law; legal executives do it every day.
The reason for the falling numbers of legal executives, although the institute is doing a great deal to encourage them —we have heard of the number of members that the institute has—is that our fairer system makes it so much easier for promising young people to qualify as solicitors or to be called to the Bar. The old type of people who would normally
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have become a managing clerk, or legal executive, have that great opportunity. They do not have to find the premiums that existed in my day before one could become an articled clerk. An articled clerk never earned anything. He had to pay for the privilege of being articled. All that has gone.
If we do not accord legal executives the prestige that they deserve, take advantage of the experience that they undoubtedly have, and do not regard them as being a fundamental part of the legal profession, we shall not be doing the legal profession any good.
The Lord Chancellor: My Lords, I understand and appreciate legal executives and the Institute of Legal Executives. I took an interest in their activities before they were brought to my attention by the noble Lords, Lord Hacking and Lord Morris, during the course of these proceedings. My first meeting with a legal executive was in relation to an affidavit in which he described himself as a member of the Institute of Legal Executives. One of our noble and learned predecessors in the Appellate Committee of the House, on reading the affidavit, asked what was a legal executive. I am glad that the standard of acquaintance with the detail of the legal profession has moved on in the Appellate Committee since then.
I appreciate what legal executives do. The structure of the advisory committee is a difficult one. We must have a committee of a reasonable size if we are to expect progress. On the other hand, the interest and expertise of legal executives, as of barristers' clerks, may be of interest and importance to the committee, but it has plenty of ways of obtaining that assistance.
I should like to mention the important possibility of co-opting non-voting members to the advisory committee's committees and sub-committees, which is referred to in Schedule 1 at paragraph 3 (2). It will be open to the advisory committee, if it thought right, to have the benefit of the attendance of a member of the Institute of Legal Executives in that connection.
If I heard him aright, I believe that the noble Lord, Lord Hacking, said that his proposal required consultation only with the Institute of Legal Executives; but if I have understood his amendment correctly, he wants one place on the committee for a member of the institute. That is more difficult. I am willing to consult the institute in relation to appointments. Technically, members of the Institute of Legal Executives will be lay people The provision does not just relate to practising people; it relates to practising solicitors or barristers. Members of the Institute of Legal Executives will technically be "lay" for that purpose. I should be less than frank if I did not say that I believe it unlikely that I should wish to appoint a member of the institute as a lay person on the committee. I have in mind people with rather less direct membership of the legal profession than a member of the Institute of Legal Executives.
In all the circumstances, we want a committee with a good structure of people with knowledge of the legal profession. The two solicitors, two barristers and the two academic lawyers—if I may call them

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that for the moment—will provide that structure. To widen the committee in the way suggested in the amendment and later amendments would make it difficult to run an appropriate committee. That having been said, there is the possiblity of co-option and the full consultation that will take place with anyone who has an interest, before any decisions are taken. I hope that in the light of that explanation, my noble friend Lord Morris may feel able to withdraw his amendment.
Lord Hacking: My Lords, the reply of the noble and learned Lord will be received with some disappointment. As I had feared, the noble and learned Lord would be reluctant to appoint a legal executive to the advisory committee. When I was emphasising the word "consultation" I intended to refer to the amendment. I refer to the appointment to the committee of a legal executive but appointed not on the basis of nomination by the Institute of Legal Executives but after consultation.
There will be some disappointment because if a legal executive is not to be appointed by the same means as a member of the Bar or a practising solicitor, it would appear that there will be no legal executive on the advisory committee. The noble and learned Lord says that there may well be consultation about members of the advisory committee and members may be co-opted under the provisions in the schedules to the Bill.
I have expressed my disappointment. The noble Lord, Lord Morris, moved the amendment, and it is not therefore for me to take the matter further. It remains for us to hear what the noble Lord, Lord Morris, has to say. On behalf of the noble Lord, perhaps I may beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Ackner Lord Ackner moved Amendment No. 81:
Page 13, line 25, leave out ("14") and insert ("18").
The noble and learned Lord said: My Lords, it is with great regret that I find that the noble and learned Lord, Lord Oliver, has asked me to express his apologies to the House. He is unable to be here to move his series of amendments. They cover the constitution of the advisory committee. It is a matter of particular regret because he made a characteristic, immensely powerful speech when he addressed your Lordships on this subject on 25th January.
Perhaps I may go back to the historic debate in April almost a year ago when we debated the Green Paper. During the course of that debate much criticism was made of the constitution of the advisory committee. It was referred to as a cover for Civil Service control, a method of the Civil Service establishing its control over what had been an independent and separate part of our national life —the observation of my noble friend Lord Beloff at col. 1376; and the crisp observation of my noble friend Lord Benson that by statute the majority of those members will be lay members. The blind by statute will be leading the blind.
It prompted the noble Lord, Lord Elton, to say this in the same debate at col. 1463 of the Official Report:
"I have a clear feeling that it is the advisory committee itself that is feared. Therefore I was surprised that there was not a series of constructive suggestions on how it should be composed, whether the balance of it should be changed, whether its terms of reference should be different, and whether its scope should be reduced. That would have been constructive criticism and I hope that that will be forthcoming later".
It has been forthcoming later and it has met with a remarkable absence of response.
On the debate at Second Reading on 19th December, noble Lords suggested that the advisory committee should include a county court judge. The reaction of my noble and learned friend the Lord Chancellor was this:
"I was interested in the suggestion that a circuit judge should be a member of the committee. Obviously I shall consider that suggestion very carefully. I certainly envisage that the judiciary on the circuit bench may well have a role in relation to this matter".
That was by no means a surprising observation in view of the fact that the noble and learned Lord the Lord Chancellor had received a memorandum from the Council of Her Majesty's Circuit Judges which stated this at page 13:
"The Circuit Bench, which bears the burden of the vast majority of the work in Court and collectively has the widest experience of advocacy, has a direct interest in professional standards but has no effective representation on the Committee".
The council added this in its memorandum:
"A lay dominated Committee appointed by the Lord Chancellor could become an instrument of political dogma, that it was not an appropriate body to set educational standards for professional bodies, particularly where specialisations are concerned, that matters of conduct are quite different from educational standards and are even more inappropriate for such a body to determine and should not be within the remit of the same Committee".
That was the observation made by the council.
In his speech on the third day of the Committee stage at cols. 1244–1248 my noble and learned friend Lord Oliver made the following points, which I have summarised. First he said that,
"when we … consider the breadth of the detail of what the committee is expected to deliberate and advise on, it is obvious to anybody with half an eye that this will be and is intended to be in practice a decision-making body and that what it says will go".
Secondly, he said:
"Effectively this is the body that is going to dictate not just the framework and the detail of the education, training standards and discipline of all those who provide legal services in our courts but the very way in which the services are to operate".
Thirdly, he continued to say:
"It is therefore a very important body and a body which is to operate in a highly specialised area of professional activity where technical and practical knowledge is absolutely essential to a proper and intelligent exercise of its functions … it is the apex of the structure of the legal profession, supervising every important aspect of professional practice and training".
Forthly and penultimately, he said that it cannot be sensible that a body which regulates all professional activities in a highly technical sphere should be dominated by people whose very qualification for being there is that they do not have the expertise in the very profession which it is their function to oversee.
Fifthly and finally, he concluded that the committee is an instrument by which the Executive can in a very large measure control a legal profession which up until now has been self-regulatory and which it can by the creation of new classes of practitioners in the courts secure an ever greater control than it enjoys at the moment over the composition and of course ultimately the conduct of the judiciary at all levels.
It is in those circumstances that, while bowing inevitably to the force of the majority at the disposal of my noble and learned friend the Lord Chancellor, we have not returned to the battle of the majority of the members of the advisory committee being lay, although we foresee the folly of such a situation, which was characterised by the noble and learned Lord, Lord Hailsham, in these terms:
"The idea that an independent profession should effectively be governed by such a ludicrous body, of which we have seen only too many examples in the past 25 years of my experience of Parliament, is one too terrifying to imagine".
But, having given way to the inevitability of the loss of vote on the majority, we have returned to its composition because the present situation is one about which the noble Lord, Lord Murray of Epping Forest, at col. 1242 in Committee said:
"The people who will make the advisory committee work are those who have experience of the legal system. They know what needs to be done and how to go about doing it. No one knows better the needs of lay people than the judges before whom such people appear. Judges have direct contact with them, listen to them and are conscious of the difficulties and problems faced by lay people in threading their way through the sometimes tortuous legal system. I was astonished to note that there was no proposal to include judges in the composition of the committee".
Of course there is the proposal to include what I think my noble and learned friend Lord Oliver characterised as a "toothless watchdog with no casting vote"; namely, the chairman. All that we seek to do by way of this amendment—and heaven alone knows it is modest enough! —is to ask for there to be included in the composition of the committee a presiding judge; that is, a judge who owes his existence in relation to that title to the Beeching Commission, which realised that the administration of the circuits could not be left to the Civil Service and that judges would ultimately have to be in charge of what went on on their circuits. Accordingly, there are appointed to each of the six circuits two presiding judges who are usually there for a period of four years. They are responsible to the Chief Justice, via the senior presiding judge who is currently the Deputy Chief Justice, for the efficiency of that circuit. The first addition therefore is a presiding judge. Of course he will be a High Court judge.
The second proposition is the circuit judge, the very person whom my noble and learned friend the Lord Chancellor envisaged as being least worthy of consideration. At the Committee stage we suggested a stipendiary magistrate, but we realise that that is over-ambitious in the context of the debates that we have experienced on the Bill. It is obviously wholly sound because since the magistrates' courts deal with over 90 per cent. of litigation in this country, to deprive an advisory committee dominated by laymen of one such magistrate seems to us to be folly; but folly apparently we must accept.
Those are the two modest additions to the composition of the committee. It still leaves the majority as my noble and learned friend the Lord Chancellor wishes. In addition, by reason of definition, "barrister" is not confined to a practising barrister and could therefore be a banister employed in government service or by a company. Under the terms of the legislation, he is to be appointed by the Lord Chancellor after consultation, which he can totally ignore, having gone through the procedure of consultation with the Bar Council. The proposal is that the barristers on this committee should be those nominated by the Bar Council.
I appreciate that this is the Lord Chancellor's advisory committee. However I emphasise to your Lordships that if there is to be any real confidence among the judiciary in the workings of whatever emanates from the Bill, it will not occur if there is no confidence in the advisory committee. As the noble and learned Lord, Lord Oliver, said, that committee is at the apex.
The judges' memorandum, which is published for all the world to see, was critical of the Green Paper proposals. My noble and learned friend the Lord Chancellor and his department are substantially dependent upon the good will of the judiciary if they are to operate the administration of justice effectively in relation to their functions. The judiciary may learn that this lay-dominated committee is to have but one judge on it. It may be a judge of the House of Lords, a Law Lord who has probably been incarcerated in this ivory tower for some years, out of contact with what goes on. If he is to be the only judge and if, as it stands at present, his appointment will be entirely at the whim of the Lord Chancellor—we all know that in every walk of life, be it in the Church, the armed forces, the Bar, be it in any profession, there are those who hang on princes' favours—if that is to be the kind of committee in which the judges are to have confidence, then my noble and learned friend will be deeply disappointed. I shall therefore move these amendments on the basis that without them the advisory committee will be looked upon as the creature of the Government and will command no respect. I beg to move.
Lord Renton: My Lords, I support most earnestly the case which has been proposed by the noble and learned Lord, Lord Ackner, for his amendments. The advisory committee will have great responsibility under the Bill. It will have difficult duties to perform. It will have influence and power. I think there is little doubt but that it will be, although called an advisory committee, a de facto decision-making body, because it will be with reluctance that the designated judges and even the noble and learned Lord the Lord Chancellor and his successors reject the advice of the advisory committee. Therefore we must make sure that the composition of that committee is such that it commands respect, and that it does not, so to speak, go off the rails at any time. We must also ensure that the committee does not get into conflict with the designated judges and the noble and learned Lord the Lord Chancellor. That is important.

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At the moment, as the committee is composed, there will be only one representative of the judiciary on it. That will be the chairman. Chairmen vary. There are those chairmen who try to get everybody over which they preside to bend to their will. Then there are those other chairmen who consider that they should be more or less impartial in overseeing those who make contributions, and who try in a judicial kind of way to reach a decision which conforms with the consensus that is expressed. However, even the judicial chairman, if he took that view, would feel somewhat inhibited about putting forward the views of the judiciary during the discussions. Therefore, surely it is right, indeed necessary, that there should be a presiding judge and a circuit judge on the committee. After all, it is the circuit judges and the presiding judges of the circuits—the word "circuits" is used in a different sense there—who will carry out the greater amount of the judicial work of this country. Their work in total amounts to far more than the work of the High Court. The work of the High Court is a relatively small proportion of the total.
We would surely feel more confident that the kind of experience that will be brought to bear in the discussions of the advisory committee will be of real value if the committee contained a presiding judge and a circuit judge. This is an important matter although it comes at a fairly late hour. I hope that we receive an interesting, interested and sympathetic response from my noble and learned friend.
9.30 p.m.
Lord Donaldson of Lymington: My Lords, one of the classically difficult situations for a member of the Bar concerns what he should do when he wishes to repudiate all his learned leader's arguments while still trying to sustain the same case. I find myself in that position tonight. I profoundly disagree with my noble and learned friend Lord Ackner that the composition of the advisory committee of the noble and learned Lord the Lord Chancellor should be designed in such a way as to inspire the confidence of the judiciary. That is largely an irrelevance. The composition of the advisory committee should be designed to give effect to the objects of the Bill. I repudiate totally the suggestion made by my noble and learned friend that the noble and learned Lord the Lord Chancellor in carrying out his duties in relation to the administration of justice is dependent upon the good will of the judiciary. There is no question of good will or ill will. We each have our respective parts to play and, God willing, we shall play them in partnership. There is no question of good will or ill will.
My noble and learned friend then suggested that the chairman and perhaps the members would be appointed at the whim of the Lord Chancellor. That is wholly wrong. We may or may not agree with the Lord Chancellor's nominations, but it is his responsibility and I have no doubt at all that it will be carried out conscientiously. That is a thoroughly bad point.
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Perhaps I may approach the matter from a slightly different point of view. I have said before that I am quite happy with a lay majority. If the arguments of the professional minority are not sufficiently soundly based to carry with them part of the lay majority, thus securing a majority for their views, their views are not worth having and do not deserve to prevail. Therefore I am quite happy about the lay majority balance.
I also repudiate any attempts to include special interest groups either in the lay section or in the professional section. We want an advisory committee which in the round can give proper advice.
I am troubled about the omission of the two judges from the committee. If one takes a detached look at the present organisation of justice one sees that there are those who conduct the litigation. At present they go by the label of "solicitors". Then there are the advocates, who go by the label of "barristers". Then —I do not say at the apex of the triangle but one has to start at one end or the other—there are the members of the judiciary who try the cases.
I have learnt that things look different from the Bench—very different. The members of the Bar, looking at each other, are concerned with considerations with which I need not bore your Lordships. Those who sit on the Bench and survey the scene are more intimately and crucially concerned with attaining justice and the way in which the system works. It is a real weakness in the framework of the committee that there is no representative—other than the chairman—who can inject that experience. In a sense it could be injected by the designated judges. However, it would be a pity if the designated judges had to go into the advisory committee and join the hurly-burly and the dust of combat, injecting their own expertise. They ought to be able and encouraged to take a fairly detached view. There is a missing link in the chain of experience available to the committee.
It may be said that that expertise could be supplied by the chairman. I shall not join my noble and learned friend in saying that those peers who are concerned with the administration of justice are entirely out of touch with reality. I only say that when they reverse my judgments. It is a fact that even at my level—the level of the Court of Appeal—once one stops trying cases, after two or three years one tries to remember what it is like and one kids oneself that one does, but I have a nasty suspicion that one does not.
I believe that it would be very desirable that trial judges should be represented on the advisory committee, not to peddle any sectional interest but to inject expertise which is not possessed by the Bar or by solicitors and certainly not by the laymen unless they have had the misfortune to be involved in a vast amount of litigation in a personal capacity. I hope that my noble and learned friend will be able to accept the amendment, bearing in mind that we are also increasing the lay membership to preserve the balance.
Lord Hutchinson of Lullington: My Lords, I should like to make a brief plea to the noble and learned Lord with regard to the phrases "appointed after consultation with" and "nominated by". I am sure that the noble and learned Lord appreciates the anxiety—I would almost say the hurt—which the Bill has brought to the Bar and to advocates. I am sure that he wants the mechanism, as he describes it, to have the full confidence of the profession —its members have shown themselves willing to try to operate under the Bill —when it becomes law.
Surely as a result of the Bill members of the profession will be subjected for the first time in their lives as independent practitioners to, in their eyes, that extraordinary bureaucracy of a committee with a majority of laymen who will advise them—a proud profession—on how they should be trained in advocacy, how they should be educated in the law and what their rules of conduct should be.
I am sure that the noble and learned Lord is convinced that that will be a wonderful step forward for the Bar in England and Wales; otherwise, the provision would not be in the Bill. However, he will appreciate that it is not thought by the Bar in England and Wales to be a wonderful step forward when its members must now have codes, committees and a majority of laymen who will advise them how to behave on strictly professional matters.
If we are to have such a situation—and it must be accepted —we want at least to start with confidence. That proud and independent profession will have two representatives on the committee. Surely the least one could start with is for members of the profession to be allowed to nominate their representatives. That is the minimum of confidence with which to go forward. I should have thought that the solicitors' branch must feel the same. The idea that two persons from the profession who have perhaps never practised in court may be picked out and put on to the committee to help advise the laymen as to how barristers should be trained in advocacy seems to me at least quite remarkable.
I make a plea to the noble and learned Lord—I am prepared to say it again—that that proud and independent profession should at least be allowed to nominate its own two representatives on the advisory committee.
Lord Simon of Glaisdale: My Lords, I too wish to refer to Amendment No. 84. My noble and learned friend Lord Ackner gave us some quotations which show the background of constitutional suspicion as regards the advisory committee. The noble Lord, Lord Hutchinson of Lullington, voiced the same viewpoint from a slightly different angle.
My noble and learned friend the Lord Chancellor would be well advised to accept Amendment No. 84. It will avoid any question of the accusation that he is appointing a stooge. It will avoid any difficult situation where after consultation it appears that the Lord Chancellor and the Bar Council are not in agreement.
As for Amendment No. 85, I think that that depends on what the Law Society wants. Again, if it wants to nominate a member, it seems to me that it
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should be allowed to do so. If it does not want to do that, I suppose it can stay as it is.
I have in mind the solicitor members of the rules committee. I think that they are appointed by the Law Society. The noble Lords, Lord Mishcon or Lord Coleraine, will correct me if I am wrong. Certainly in view of what we have heard, it seems that my noble and learned friend will be very well advised to accept Amendment No. 84—he loses absolutely nothing by that—and accept Amendment No. 85 if that is what the Law Society wants.
Lord Mishcon: My Lords, I say with deep respect that I am not quite sure whether it is the right note to sound if we use the words "What the Bar Council would like or want" and "What the Law Society would like or want". I have the deepest respect for my own professional body. I hope that I shall always be a loyal member of it. But this is a committee which will advise. Obviously, if the Law Society's advice or the Bar Council's advice were wanted, it is always available to the noble and learned Lord without the need to set up a statutory body.
I very much agreed with the noble and learned Lord the Master of the Rolls when he said that if the professional people on that committee cannot at least persuade a couple of members on it who represent the laity (if I may call them that), then something must be wrong with what is being advanced by the professional members. Courtesy has been paid to the professional bodies—as I see it, and I am expressing only an individual view—because indeed the noble and learned Lord will consult with them. But to give them the nomination is to the public eye merely appointing to the advisory committee members of the establishment who will look after the interests of their profession instead of expressing from their experience an independent point of view.
As I said, if that were not being done with consultation with the professional bodies, so that at least the professional bodies could say, "For heaven's sake, you must be crazy to appoint so-and-so; he has had very little experience indeed" or "He is not a very honoured member of our profession and we think that you would be very reckless if you appointed him", all that could be said. But let this advisory body be an independent body with sufficient experience, and let it be seen to be so.
9.45 p.m.
The Lord Chancellor: My Lords, since it is fresh in our minds, perhaps I may first take the second point, which the noble Lord, Lord Hutchinson, in particular wished me to have in mind. I am the first to acknowledge the claim of the Bar of England and Wales to be very highly regarded. I yield to no one in that and I have sought to make that clear on many occasions. But this advisory committee is an advisory committee to give advice which will be before the Lord Chancellor and the designated judges, the heads of division, when the profession proposes its rules or when these rules are being considered.

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The idea that the advisory committee itself will form the rules is not right. The intention is that the rules are proposed by the professional body—the Law Society or the General Council of the Bar, to take the paradigm cases. The profession proposes the rules. The advisory committee will be an independent body constituted as suggested to advise us on the rules. I shall not go over the argument about the lay majority. My noble and learned friend Lord Ackner, while accepting it, appeared to wish to raise the matter again. I do not wish to take up your Lordships' time with that. We discussed it on the last occasion. However, I think it is important that this body is seen to act as a unit.
My experience, for what it is worth, is that the body is much more likely to act as a unit if it is appointed by the Lord Chancellor and not nominated by particular interests. As the noble Lord, Lord Mishcon, pointed out, there is a risk that people nominated by a particular body regard themselves as delegates or representatives of that body. The difficulty of this area has been illustrated by past history. I do not wish to go into that again but it is important that this body should act together. What I am hoping for is broadly based, unified advice coming forward from the advisory committee which will enable the two branches of the profession and the designated judges to go forward and evolve a system which will command respect not only in the profession but in the country which the profession is proud to serve. I believe therefore that it is right that the appointment should be the appointment of the Lord Chancellor.
The experience of the Bar and of the Law Society since I was appointed, and I know for sure that this was the practice in the past, has been that the Lord Chancellor consults closely with the professional bodies before making appointments. One of the difficulties is to get people of real calibre who are willing to serve. I had this problem in relation to the Legal Aid Board, as the noble Lord, Lord Renton, will remember. He was concerned to secure a proper representation of barristers on that board. I would regard it as extremely valuable to know who the Bar Council would wish to suggest. I certainly hope that it would be possible to reach an agreement with the council and with the Law Society. I believe that the unity of the committee itself is important. The way we have proposed is the best way to achieve that.
Lord Donaldson of Lymington: My Lords, I rise to speak with the purpose of giving my noble and learned friend the opportunity to look at the book which is in his hand. I am sure that he has been referred to Section 85 (4) of the Act under which the rules committee is itself appointed on the same basis.
The Lord Chancellor: My Lords, that is precisely why I asked for the book. I was pretty certain that that was the position, but I wanted to have the text in front of me. My noble and learned friend has confirmed it. The rules committee works extremely well. I have no reason to doubt that the profession has confidence in the rules committee; indeed, so much confidence that it can work without too many meetings. It can work on paper.
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As to the question of a judge on the committee, I cannot accept the idea that a judge of the supreme court or a Member of the House of Lords would properly be described as a toothless watchdog. That is not an appropriate description for a member of the supreme court of this proud profession. I certainly believe that it would not be appropriate either for one of my noble and learned friends from the House of Lords. They would be people of great experience. My noble and learned friend the Master of the Rolls has said that their experience may be a little past.
Lord Ackner: My Lords, I quoted from what my noble and learned friend Lord Oliver of Aylmerton said. The exact words from col. 1247 of the Official Report are:
"As matters stand at the moment, the chairman is a toothless watchdog with no casting vote and he is the only judicial representative. — [Official Report, 25/1/90; col. 1247.]
The Lord Chancellor: My Lords, however high the authority from which it comes, in no circumstances do I wish to associate myself with a description of a judge of the supreme court or a member of the Appellate Committee of your Lordships' House as a "toothless watchdog". It has not been my experience that the description would properly be applied to them—
Lord Ackner: My Lords, it was not a description given in relation to his judicial capacity but to his ordinary capacity on the advisory committee—
Noble Lords: Order, order!
The Lord Chancellor: My Lords, I have made my view clear on that matter. My difficulty about adding to the advisory committee is the tremendous size that it will become. If my noble and learned friend Lord Ackner was put to his election on which of the judges he has suggested will he take—that is supposing that I was in a position to take one judge in order to meet the point made by my noble and learned friend the Master of Rolls—which would he choose? I shall give my noble and learned friend a chance to answer the question in one moment, but I wish to make my thoughts clear.
In a number of ways I have made clear—and my noble and learned friend has kindly quoted me as having done so—that I regard the circuit bench as being extremely important. I must be careful about the balance of the committee because I want it to retain the confidence of both branches of the profession as well as the public. I do not wish to see it become so large that it cannot work properly. I am anxious to obtain a committee which will be excellent and, therefore, I am willing to consider further the possibility of adding one judge to it. However, I do feel able to take two judges because, in view of the way that it has been approached, that would automatically increase the size of the committee by four. Assuming that one position is available, I ask my noble and learned friend to indicate what he would like in that connection and I undertake to consider the matter further.
Lord Donaldson of Lymington: My Lords, may I inquire whether his learned junior also gets a vote?
Lord Ackner: My Lords, I hope not. It is usually the prerogative of the leader—and I am grateful that my noble and learned friend the Master of the Rolls has acknowledged that I am in that capacity—to say to his junior when called upon, "For Heaven's sake, keep your mouth shut because otherwise you will wreck the appeal".
Proceeding from that, if I were put to an election I should put it in these terms: the presiding judge, with the approval of the Lord Chief Justice. The presiding judges are 12 in number. They vary in seniority and in the divisions from which they come: some come from the Family Division and some from the Queen's Bench Division; some are younger; some are older; some have been on the circuit bench and so forth, it would be peculiarly within the knowledge of the Lord Chief Justice, who knows his presiding judges well and has hitherto been solely responsible for their appointment, to choose the presiding judge. Therefore, if I am put to my election, I elect for the presiding judge, provided that he is nominated by the Lord Chief Justice.
Lord Donaldson of Lymington: My Lords, before the noble and learned Lord sits down, if that is the right expression —am I out of order?
Noble Lords: Order, order!
Lord Mishcon: My Lords, cannot the noble and learned Lord the Lord Chancellor address the same question to the Master of the Rolls that he addressed to the noble and learned Lord, Lord Ackner? If it was in order for the question to be addressed to the noble and learned Lord, Lord Ackner, who replied, is it not similarly open to the Master of the Rolls?
The Lord Chancellor: My Lords, with the leave of the House, I put the question to my noble and learned friend Lord Ackner as the mover of the Motion, because I knew that he must reply. However, the view of my noble and learned friend the Master of the Rolls would be extremely valuable to me. I am sure that the House would be glad to hear his view and therefore I am very willing to give him leave, if he seeks it, to answer that question for
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himself because I would not regard the rules which regulate relationships between senior and junior as necessarily applying in the context of this discussion.
Lord Donaldson of Lymington: My Lords, I am very much obliged to the House. I totally agree that it should be the presiding judge who will be intimately in day-to-day contact with all sorts of circuit judges in different situations. Therefore, we shall have two for the price of one. One will also get the experience of a circuit judge. I do not agree about the strings which my noble and learned friend has attached. I am sure that the ordinary channels of communication will suffice to ensure that the best possible presiding judge is appointed.
The Lord Chancellor: My Lords, I shall need to consider this matter further because, as your Lordships appreciate, it is important. I have considered it on the basis of the amendment and I now wish to consider the matter further. I certainly would not wish to make a decision now and I shall consult further before coming to a conclusion. However, I am very grateful for the indications given by my noble and learned friends. I hope that in the light of the dicussion my noble and learned friend Lord Ackner will feel able to withdraw his amendment.
Lord Ackner: My Lords, at this time of night I shall not divide the House. I add only this. I have quoted what my noble and learned friend the Lord Chancellor said on an earlier occasion about how he would willingly consider a circuit judge. The last time he referred to this matter was on the third day of the Committee stage. He said:
"I am entirely open to suggestions as to the people who should be on the body. A number of suggestions have been made already, and I think there is at least one other amendment suggesting yet another possible person".—[Official Report, 25/1/90; col. 1260.]
That was a stipendiary magistrate. He went on to say:
"I should love to see, within the constraints I have mentioned, all of these people on the body".
I hope we are moving. If we are, it is rather slow, but hope springs eternal. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 82 to 88 not moved.]
10 p.m.
The Lord Chancellor The Lord Chancellor moved Amendment No. 89:
Page 13, line 42, at end insert —
("appointed after consultation with such organisations as the Lord Chancellor considers appropriate").
The noble and learned Lord said: My Lords, this amendment is intended to meet some of the anxieties expressed at Committee stage in particular by the noble Lord, Lord Allen of Abbeydale, and my noble friend Lord Boardman. It places the Lord Chancellor under an obligation to consult appropriate organisations, when making appointments to the lay membership of the Advisory Committee on Legal Education and Conduct. It was always my intention to consult such bodies, but I am happy to make this plain by making it a statutory obligation. The form of the amendment mirrors the requirement for the Lord Chancellor to consult such organisations representing teachers of law as the Lord Chancellor considers appropriate when appointing the two legal academics to the Committee under Clause 16 (4) (c). I beg to move.
Lord Renton: My Lords, if I have understood the reasons given by my noble and learned friend for this amendment, it seems to overlap with what is already in subsection (4) (c). However, he intends it, and it is indeed in place, as part of subsection (4) (d) if I have understood the matter rightly. That is as it reads on the Marshalled List. Perhaps he could clarify that.
The Lord Chancellor: My Lords, the way it will run is that eight persons shall be present, other than salaried judges and so on,
"appointed after consultation with such organisations as the Lord Chancellor considers appropriate".
That appears to make perfectly good sense in the circumstances.
Lord Boardman: My Lords, I am most grateful to my noble and learned friend for proposing this amendment which will go a long way to meet the point raised in Committee. I understand that he is proposing that when consulting he will be seeking a background in commercial affairs, that that will remain among the desirable objectives and that he will certainly wish to consult bodies such as the CBI when considering candidates. I am grateful to my noble and learned friend for this consideration.
The Lord Chancellor: My Lords, that is exactly the sort of body that I have in mind, including bodies across the spectrum of interest represented in the immediately succeeding subsection.
On Question, amendment agreed to.
[Amendments Nos. 90 and 91 not moved.]
Lord Ackner Lord Ackner moved Amendment No. 92:
Page 14, line 32, at end insert—
(" (12) The Chairman of the Advisory Committee and any other judicial member either of the Advisory Committee or of any of its committees or sub-committees shall be appointed with the agreement of the Lord Chief Justice.").
The noble and learned Lord said: My Lords, I can take this quite shortly because I have already outlined the philosophy behind the amendment. Under Clause 53 we have "Presiding Judges" and it is provided that for each of the circuits there shall be two presiding judges and there shall also be a senior presiding judge. Those appointments are made by the Lord Chief Justice with the agreement of the Lord Chancellor. I suggest that the same courtesies, mutatis mutandis, be applied to the appointment of the chairman of the advisory committee and any other judicial member—that envisages optimistically that there will be another judicial member—and also any other judicial member on a sub-committee.
My noble and learned friend the Lord Chancellor has already referred to co-options which can be carried out under the schedule. I respectfully suggest that it is the Lord Chief Justice who knows better than anyone else the qualities certainly of his presiding judges and, indeed, the quality of his judges too. He of course would consult among his fellow judges, in particular the heads of the divisions, but in this way the epithet "Lord Chancellor's committee" which one has heard frequently referred to would be somewhat diluted. I beg to move.
The Lord Chancellor: My Lords, it humbly appears to me that the appointment of this committee should be the responsibility of the Lord Chancellor, for which he is answerable to Parliament. My noble and learned friend can take it that, as with other matters, I should certainly wish to have the views on these matters of the Lord Chief Justice and the other heads of division. However, I do not believe it is appropriate that the Lord Chief Justice should be involved by giving agreement to these appointments. I believe it right that the Lord Chancellor should carry that responsibility, for which, as I said, he is answerable to Parliament. I believe that the object that my noble and learned friend has in mind will certainly be secured by the arrangements that I have in mind.
Lord Ackner: My Lords, I was not in any way departing from confidence in my noble and learned friend the Lord Chancellor, but, as has been frequently pointed out, there are future appointments years hence to be made. The sharing of the responsibility I should have thought was an appropriate one, but if it is not to be accepted I shall achieve nothing by seeking to carry the matter any further, at least tonight. I therefore ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 17 [Duties of the Advisory Committee]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 93:
Page 14, line 37, at end insert —
(" (3) In discharging its functions the Advisory Committee shall —
(a) where it considers it appropriate, have regard to the practices and procedures of other member States in relation to the provision of legal services;

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(b) have regard to the desirability of equality of opportunity between persons seeking to practise any profession, pursue any career or take up any employment, in connection with the provision of legal services.").
The noble and learned Lord said: My Lords, this amendment is intended to meet some of the concerns expressed at Committee stage by my noble friend Lady Elles, and the noble Lords, Lord Mishcon and Lord Prys-Davies. The amendment requires the advisory committee, when carrying out its functions, to bear in mind the desirability of ensuring equal opportunities in the legal profession and, where appropriate, how legal services are provided in other European countries. I would expect the advisory committee to bear such matters in mind anyway. I am, however, happy to recognise the concern expressed by your Lordships that these two categories were likely to be of central importance in the development of legal services and to put the matter beyond doubt by including these requirements in the statute. I beg to move.
Lord Ackner Lord Ackner had given notice of his intention to move, as an amendment to Amendment No. 93, Amendment No. 94:
Leave out paragraph (b).
The noble and learned Lord said: My Lords, I have raised this amendment because, quite frankly, I do not understand what paragraph (b) means, and at this stage in the evening the prospect of my understanding it will not improve. That is a difficulty which I am relieved to be able to tell your Lordships has been equally encountered by all my noble friends with whom I have discussed it.
If my noble and learned friend the Lord Chancellor could elucidate what it means, then my amendment, which is supported by the noble Lord, Lord Renton, will not be moved but at the moment we are totally at a loss as to what it covers.
The Lord Chancellor: My Lords, if my noble and learned friend wants an explanation he will have to move the amendment. I will put the question, and then it is open to me to give such an explanation.
Lord Ackner: My Lords, the purpose of this amendment is to express my lack of comprehension as to what paragraph (b) means. Since I do not know what it means I think I would be acting irresponsibly if I were party to it being passed. That is the purpose of the amendment, and accordingly I move it.
Lord Renton: My Lords, one is in some difficulty with our procedure. I should like to explore this amendment as well, that is, to leave out paragraph (b), but I do not think I am making a speech at the moment; I am merely expressing a doubt about our procedure. If I do make a speech now and then my noble and learned friend the Lord Chancellor gives his explanation, there will be no opportunity of comment. I hope therefore that in the circumstances your Lordships will agree that my noble and learned friend the Lord Chancellor, who I think is eager to give an explanation of paragraph (b), should give his
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explanation now, and then those of us who wish to follow it up should be allowed to do so.
The Lord Chancellor: My Lords, I am proposing to make a short reponse to that matter now, and if my noble friend wishes to ask the leave of the House, if he thinks that is necessary, no doubt he will do so.
Paragraph (b) is intended to give effect to the concerns expressed on the last occasion by the noble Lords, Lord Mishcon and Lord Prys-Davies, that one of the important matters to be borne in mind —I believe this is a matter of general agreement —is that in the profession equality of opportunity as between males and females, and as between members of ethnic communities and others, for example, should be kept in mind. Training regulations and regulations about practice might have to have regard to that.
One of the difficulties that has been experienced in recent times in connection with the profession is that it has not been easy for married women always to attain the same degree of experience in the profession at the corresponding age as their male counterparts, with the result that it is not always easy, in a competition for the best available person to fill a position, to find a lady who is as qualified as some of the men. There are concerns in relation to that type of equal opportunity. The ethnic communities form another area where such a difficulty arises.
I have understood noble Lords who raised the matter to be concerned about that point and anxious that that aspect of the matter should be taken into account by the advisory committee in the discharge of its functions. Paragraph (b), as drafted, achieves that aim. That is the idea of it. It is upon that basis that parliamentary counsel was instructed, and he has come up with this provision as a result of those instructions which were based upon discussions held in Committee.
Lord Simon of Glaisdale: My Lords, I was in doubt as to whether paragraph (b) was necessary in view of the race relations and equal opportunities legislation. If it is not, it should be omitted in the interests of economy. With regard to paragraph (a), I read "other member States" as meaning members of the European Community. I could not find the phrase defined. It is not in the interpretation clause. I should be grateful if I could be advised on that matter.
Lord Renton: My Lords, in the hope that I do not need the leave of the House —and I do not believe that I do because I was merely raising a point of procedure—I should like now to have the opportunity to reply to what my noble and learned friend the Lord Chancellor said. The amendment did not appear in the Printed Paper Office until yesterday morning so one has not had very much time to discover what it could mean; although I received a copy at my home in the country on Saturday afternoon, for which I am grateful to the Lord Chancellor's Department.
If paragraph (a) is intended to refer to other states of the European Community it is a commendable

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insertion into the Bill, but when it says "other member States" in the context in which it appears, it does not seem necessarily to be limited to that point. If the intention is to limit the provision to other member states of the European Community, all well and good, but that point should be made clear.
As to paragraph (b) —my name is appended to those of the noble and learned Lords —I was puzzled by its drafting. I can understand equality of opportunity but, as noble and learned Lords have pointed out, we have our race relations and our sex equality legislation and therefore there would seem to be no need to follow that up because the provision would automatically apply. I find the words,
"between persons seeking to practise any profession, pursue any career or take up any employment, in connection with the provision of legal services",
strange and strangely irrelevant even in the context of the Bill's wide purposes. At first in my innocence I wondered whether it meant that, for example, the general secretary of the Wig Makers' Union, who may be a most splendid person but not legally qualified, shall have equal opportunity in connection with legal services with anyone else who will be practising them.
For the sake of clarity, and not to mislead people who build hopes on this strange provision, the noble and learned Lord the Lord Chancellor should be asked to take it away and ask parliamentary counsel to look at it again. It simply does not seem to fit.
Let me come back to the express purpose which is not to be gleaned from the wording of the amendment but from what my noble and learned friend the Lord Chancellor has said; that is, to give equality of opportunity to women as well as men—and I agree with that—and to members of ethnic minorities; and I agree with that. However, what are the facts? Already 17 per cent. of the members of the Bar practising in England and Wales are women. A member of my own family, I am glad to say, is one of them. That compares with only 10 per cent. 20 years ago and about 1 per cent. when I was called to the Bar.
However, a more important fact than the one that I have just given is this. No fewer than 38 per cent. of the people recently called to the Bar are women. With regard to ethnic minorities, I am not surprised that the noble Lords, Lord Mishcon and Lord Prys-Davies, have referred to them. Here for the first time in all the discussions on this Bill I shall claim virtue for the Bar which the solicitors' branch of the profession does not possess. I am advised that a much higher proportion of members of ethnic minorities —I am not sure what the proportion is —is called to the Bar and is attempting to practise at the Bar than is the case with the solicitors' branch of the profession.
Although other factors may occur to other noble Lords, with those factors in mind I hope that my noble and learned friend will think again about the amendment. I presume that it will be accepted and will get on to the statute book. However, I hope that at Third Reading he will limit the provision to what is really intended and will clarify the meaning.
10.15 p.m.
Lord Boardman: My Lords, I do not find the meaning of the clause particularly difficult to understand. It might be slightly improved if the last six or seven words of the amendment began paragraph (b). It would then read that the functions of the advisory committee shall in relation to the provision of legal services have regard to the desirability, and so on. I should have thought that that would make it clearer and would achieve the objective that my noble and learned friend states that he seeks with this paragraph.
Lord Hutchinson of Lullington: My Lords, for the first time I am not on the same side as the noble Lord, Lord Renton. I believe that we are making a great mouthful out of this. Subsection (3) (b) simply provides for the advisory committee to practise an equal opportunity policy while doing its work. That seems to me to be admirable and it should be in the Bill. Knowing the noble and learned Lord's commitment to it, I can only express my gratitude to him that he has put it in the Bill. I cannot see what all the fuss is about.
Lord Donaldson of Lymington: My Lords, I do not have any difficulty in obtaining the general message from these words and I doubt whether in context anyone will have to do a nice, as we would say —the layman might take a different adjective—piece of construction.
What troubles me is something different. It arises out of construction. Section 17 (1) states:
"The Advisory Committee shall have the general duty of assisting in the maintenance and development of standards".
Subsection (2) states that it has to carry out the general duty which is set out in considerable detail in Schedule 2. One has to keep one's finger in the previous page, which states that in all its doings it has to have regard to the general principle and the statutory objective.
Then, largely because the point was raised in debate, we come suddenly to this EC point, which is perfectly valid, and the non-discrimination point, which again is a perfectly valid point, tacked on as a new subsection. One would either have to be comprehensive and put in all the considerations to which the members of the committee should have regard—and, I am sure, there are many others if one were to think about this —or perhaps parliamentary counsel could conjure up some words which suggest that, while it is very important that they should have regard to non-discrimination and very important if—perish the thought! —it became relevant that they should look at European law, although I must not allow my prejudices to show, it must not be elevated to a main principle which dominates everything and which has equal importance, for instance, to the general principle and the statutory objective. To some extent that is a drafting point, but to some extent it has some substance. In two or three years' time people will have forgotten what the intention was and they will have to get if from the wording of the Bill.
Lord Mishcon: My Lords, I shall be very short in what I have to say. I should like first to express gratitude to the noble and learned Lord the Lord Chancellor for having incorporated into the Bill in very clear terms a principle which we from these Benches supported. I believe it was also supported by Members on other Benches. We asked that the advisory committee should have very much in mind the cause of equal opportunity between men and women, ethnic minorities and so on.
I congratulate the side of the profession of the noble Lord, Lord Renton, as regards the percentages he produced. I must be very frank with him and say that I do not have any percentages to put forward in regard to my side of the profession. However, I say to him that it is quite extraordinary that the percentage he gave to the House in regard to the membership of the ethnic minorities of the Bar—and I believe I am right in saying this—represents only two circuit judges, no High Court judges, no judges of the Court of Appeal and no judges of Lords of Appeal in Ordinary. I am not saying that that results from the point of view of prejudice; however, I am saying that there is much in regard to such matters which is to be considered by an advisory committee.
Lord Renton: My Lords, I am sure that the noble Lord appreciates that the judges are appointed by the Lord Chancellor of the day.
Lord Mishcon: Yes, my Lords; but the Lord Chancellor will be advised by the advisory committee.
Having said that, I regard the language employed here as being perfectly clear. I can well understand the point made by the noble and learned Lord the Master of the Rolls that perhaps some magic words like "inter alia", or whatever it may be, ought to be included in the Bill. In my view that is a perfectly valid point. However, the wording of this new clause should be clear to everyone. I am so grateful to the noble and learned Lord for having inserted paragraph (b).
The Lord Chancellor: My Lords, the position of this wording in the clause seems to me to be quite reasonable having regard, first, to the kind of prominence which my noble friend Lady Elles wished to give to the European dimension so that we would not be considering all these matters in a vacuum, and so that we should have regard to the development of the Community of which we form part. Certainly my understanding is that the phrase "member states" is sufficiently precise to connote membership of the European Community. However, I shall look further at that point.
So far as concerns the second point, the emphasis is one which I thought the committee would wish to put upon the matter. I have tried to reflect that fact faithfully in the amendment. It comes after the specification of general duties, which can be ascertained by reference to the schedule. I am especially grateful to find myself on the same side of the matter as the noble Lord, Lord Hutchinson
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of Lullington. In this connection it just shows the ebb and flow of agreement that one can have in this Chamber, especially as the night wears on.
The noble Lord, Lord Renton, referred to the Race Relations Act and the equal opportunities legislation. That is of interest because, so far as I understand it, the granting of tenancies within chambers and the relationship between solicitors and counsel are not within the scope of that legislation. Above and beyond this, the amendment is drafted to cover equality of opportunity in its widest sense. I mentioned some aspects of that; opportunities for the disabled are another subject in which my noble friend has a particular interest. I know of the work that he has done to promote the interests of those who are disabled, particularly those with mental handicap.
This is intended to cover equality of opportunity in its widest sense. That is a thoroughly sound principle and I am grateful to noble Lords who have brought it to my attention. It is right that we should include it here.
Lord Ackner: My Lords, I am grateful for the assistance from my noble and learned friend. Mine was not a critical amendment but one which admitted to an inability to understand what was behind the provision. I do not know whether my noble and learned friend saw page 3 of The Times yesterday. It carried a most extraordinary article which seemed to indicate that there was a lack of merit in the appointment of the judiciary. Since that has nothing to do with the advisory committee but everything to do with the Lord Chancellor's Department, I and my brother judges found great difficulty in connecting this amendment —which we assumed must have something to do with the announcement in The Times —with that announcement which purported to quote a certain amount of information from my noble and learned friend's department. Now that we know what the provision is aimed at, I am grateful for the explanation. I beg leave to withdraw the amendment.
Amendment No. 94, as an amendment to Amendment No. 93, by leave, withdrawn.
The Lord Chancellor: My Lords, I shall now put the Question on Amendment No. 93, since we have ranged over it.
On Question, Amendment No. 93 agreed to.
Schedule 2 [Specific Functions of the Advisory Committee]:
[Amendment No. 95 not moved.]
The Lord Chancellor The Lord Chancellor moved Amendment No. 96:
Page 69, line 42, leave out paragraph 7.
The noble and learned Lord said: My Lords, I have put down a number of amendments in relation to Clause 44 (preparation of papers for probate) which, among other things, includes a new schedule which sets out the requirements for and system of approving applications from bodies who wish to authorise their members to undertake probate work.
The advisory committee's duty which is currently contained in paragraph 7 of Schedule 2 is now contained in that new schedule. This amendment therefore deletes it from Schedule 2. I beg to move.
On Question, amendment agreed to.
Clause 18 [The Legal Services Ombudsman]:
Lord Coleraine Lord Coleraine moved Amendment No. 97:
Page 14, line 41, leave out ("Legal Services Ombudsman") and insert ("Commissioner for the Legal Services Profession").
The noble Lord said: My Lords, my principal or first purpose in moving the amendment is to draw attention to the incongruity and general inappropriateness of introducing into our legislation for the first time the Scandinavian word "ombudsman" on the face of the Bill. I am no Canute; I am quite prepared to join any other person in referring to anyone as an "ombudsman", who has been appointed anywhere to act as a complaints arbitrator, adjudicator or troubleshooter, especially so if that is what consumers and those who arrogate the right to speak for consumers conceive to be in their interests.
When the provisions of the building societies ombudsman were being introduced at Report stage during the passage of the Building Societies Bill, Mr. Austin Mitchell, in another place, said that building societies were pioneering a development which should be universal. This Bill may be seen as another step in what he might call the right direction, even if it does not answer Mr. Mitchell's second point. That was a call for enforceability. Mr. Ken Weetch said that he thought that the ombudsman principle was a success and a sound way of adjudicating disputes. If this principle is carried further in this kind of direction, with an ombudsman at every bend, we shall ultimately have no need for courts and lawyers. However, what we should not forget is that the first ombudsman was created on the Scandinavian model by the Parliamentary Commissioner Act 1967 as a means of affording redress to the citizen in respect of central government maladministration. By Section 5 of the 1967 Act the Parliamentary Commissioner may investigate any:
"action taken by or on behalf of a government department … being action taken in the exercise of administrative functions … in any case where … a written complaint is duly made to a member of the House of Commons by a member of the public who claims to have sustained injustice in consequence of maladministration in connection with the action so taken".
The Parliamentary Commissioner was only created after a long struggle with the administration which began, I suppose, after the Crichel Down affair in the early 1950s. There was then the report of the Franks Committee and then a series of initiatives by Justice, the English branch of the International Commission of Jurists. That is an all-party body of lawyers formed to uphold the rule of law. When the late Lord Gardiner introduced the Parliamentary Commissioner Bill to this House on 8th February 1967 he was able to refer to his own interest in the ombudsman question as dating back
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for six years. He described the objects of the Bill as to increase the powers of Members of the other place over the executive; to provide a remedy for the citizen who believes himself unjustly treated by a government department and to improve the administration of central government.
Since then we have had the local commissioner for administration appointed by the Local Government Act 1974 and the health service commissioners established by the National Health Service Act 1977. Those three commissioners are what I would call true ombudsmen. If the term were to be introduced into legislation, it would be appropriate to rename those commissioners and call them ombudsmen. It appears to me that since then the proliferation of ombudsmen, so termed, has gone a long way to turn on its head the original concept of the individual seeking redress against the state. We now have the banking ombudsman and ombudsmen dealing with insurance and unit trusts. These are complaints adjudicators, called ombudsmen, set up by the industries concerned as a response to perceived demand for new treatment of customer complaints in a changing climate of opinion about these matters. They provide conciliation services to which the various corporations providing the services in question—that is, the services of the corporations—may or may not belong. I understand that the great majority of corporations subscribe to their ombudsmen schemes. If they subscribe they assume a commitment to comply with the recommendations of their ombudsman, whatever those may be. I have no doubt that they do this because the cost of being prepared to comply with what may be, or seem to be, a perverse recommendation is clearly going to be a small overhead expense of the organisation concerned in relation to the shared benefit to all in the industry of having an independent complaints settlement procedure which leaves customers satisfied.
It is when we come to the building societies ombudsman scheme that difficulties seem to me to set in, because this is the first statutory scheme to be compulsorily applied within the private sector. The building society ombudsman provisions were introduced during the passage of the Building Societies Act. The Building Societies Act provides in Section 83 that an individual shall have the right to have a complaint against any building society investigated under a scheme set up under the section. A scheme has to be recognised by the Building Societies Commission, and there is now one recognised scheme to which all building societies are compelled by the Act to belong. The adjudicator under the scheme is, not surprisingly, called an ombudsman.
When this ombudsman considers a complaint he is, under Clause 29 of the scheme, not to be bound by any previous decision. He is to have regard to such matters as the rules of the building society concerned and any contract with the person complaining, but he makes his decision solely by reference to what in his opinion is fair in all the circumstances.
Those are very broad criteria for one man to apply because they take the consideration of complaints

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outside the law. It is for that reason that a building society is not bound by the ombudsman's determination. It is true that a building society which chooses not to follow the determination must widely publicise its decision and that a similar provision is included in this Bill. However, I shall not go further down that path because it forms the subject of an amendment which I moved in Committee and which I have tabled again.
From the building societies ombudsman I turn to the proposed new Legal Services Ombudsman and to the point that he would have power to investigate specific complaints against individual legal practitioners. That has nothing to do with the investigation of maladministration and with David and Goliath. Whereas the building societies ombudsman may only investigate complaints brought by individuals—not corporations—against building societies, under the new provisions to be introduced by these clauses there is no reason why substantial complaints by large organisations, for example building societies, may not be investigated when made against legal practitioners. If that comes to pass Goliath may be claiming against David and the wheel will have turned full circle.
It is so that your Lordships may consider the points that I have raised that I beg to move the amendment.
The Lord Chancellor: My Lords, I considered carefully what title I should give this officer. The word is new to the statute book. The word "commissioner" has until now been applied to such posts.
The word is of Swedish origin and was originally applied to persons appointed to check against administrative abuse by governments—David and Goliath. I assume Goliath to be the government. The word is still used internationally in that sense. In Britain we have extended the concept, if not the title, to the health and local government spheres. More relevantly, as has already been mentioned by my noble friend Lord Coleraine, further developments have seen the creation of an ombudsman for banking, insurance and building societies. In creating the title Legal Services Ombudsman we have extended the concept to a profession. In one sense, however, we are only building on a principle which was already established, at least so far as concerns solicitors, under the 1974 Solicitors Act. The question is, therefore, what the Lay Observer's successor should be called.
I believe that there are good reasons for using the word "ombudsman". It is the word in common use for a public representative who has general powers to investigate complaints about particular areas of activity, whether against government or against institutions. Whatever this House decides I am sure that the holder of the post will generally be called an ombudsman.
Moreover, I believe that the term, although originally foreign, is now in common use in English. There is no common suitable English alternative to describe those functions precisely. The word appears
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in English dictionaries and is in regular use. It seems rather odd to legislate that the new office shall be known as,
"the Commissioner for the Legal Services Profession",
if all our expectations are that it will in fact be known, as I hope it will be, by the rather simpler title of Legal Services Ombudsman.
If we do not introduce the word into the statute book the discrepancy between public use and legal terminology —always a matter of complaint among laymen —will become wider. I believe that it is right to give the word the blessing of the statute book and to use in the statute book the word which we believe lay people will use in ordinary language.
I hope that my noble friend will feel that on that aspect, although the point is worthy of consideration, mature consideration of the matter suggests that it was right to go down that road. I hope that my noble friend will feel able to withdraw his amendment.
Lord Coleraine: My Lords, I am grateful to my noble and learned friend for his explanation and, although I would not agree with it entirely, I have said that I do not see myself in the role of Canute. In the circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 19 [Ombudsman's functions]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 98:
Page 15, line 17, leave out ("notary") and insert ("duly certificated notary public").
The noble and learned Lord said: My Lords, in moving Amendment No. 98 I shall speak also to Amendments Nos. 148 and 216.
The amendments are required to deal with a problem that has arisen in the original terms of the Bill. Originally, the bare term "notary" was used in Clauses 18, 19 and 33, but the term "duly certificated notary public" was used in Clause 44, which relates to the preparation of papers for probate. The problem is that ecclesiastical notaries, who require no legal qualification and no practising certificate from the Court of Faculties, which regulates notaries, fall within the term "notary". Thus, in the Bill as presently drafted, persons with no legal qualifications might be subject to the legal services ombudsman under Clause 19 and entitled to carry out conveyancing under Clause 33.
The first two amendments substitute for the word "notary" in those two clauses the words "duly certificated notary public". Thus, only notaries with practising certificates and therefore legal qualifications will fall within them. That parallels Clause 44.
In Clause 18, which deals with ineligibility for the post of ombudsman, the broad term "notary" is to remain so that ecclesiastical notaries are ineligible for the post. Although they are not necessarily legal practitioners, they belong to the same faculty as other notaries and could therefore be open to some difficulty of conflict of interest.
The third of the amendments gives "duly certificated notary public" the same meaning for the purposes of the Bill as it has in the Solicitors Act 1974. I beg to move.
On Question, amendment agreed to.
Lord Irvine of Lairg Lord Irvine of Lairg moved Amendment No. 99:
Page 16, line 11, leave out from ("subsection") to end of line 14.
The noble Lord said: My Lords, the object of the amendments is to remove the exclusion of the ombudsman from investigating matters in respect of which the person who is the subject matter of the complaint would have an immunity from action. It would not be appropriate for the ombudsman to have power to make a recommendation for compensation in respect of anything covered by advocates' immunity, but that is no reason why the ombudsman should not investigate the complaint. His investigation might disclose a need for disciplinary proceedings to be taken by the professional body concerned.
The noble and learned Lord the Lord Chancellor will note that Amendment No. 100 would ensure that the ombudsman could not recommend the payment of compensation in respect of matters to which the immunity attaches. However, he could exercise his specific power under Section 20 (2) (b) to recommend that the relevant professional or disciplinary body should consider exercising its disciplinary powers against the person who is the subject of the complaint. The ombudsman's investigation and recommendation could therefore operate as a spur to the professional body to deal with the matter.
The current position is that both the solicitors' disciplinary tribunal and that of the Bar can investigate matters which are the subject of the immunity. So why should the ombudsman not also be able to do so, particularly as the immunity rule is designed essentially to put an end to litigation and to prevent the relitigation of decided issues through the medium of a negligence action against advocates? I emphasise that the purpose of the immunity rule is not to protect lawyers from the consequence of errors or misconduct which could be the subject of professional disciplinary proceedings.
I urge the amendment because public confidence in the effectiveness of the overall system of investigating complaints against advocates would be enhanced if the ombudsman could entertain a complaint protected by the immunity, not as a substitute for but as a supplement to the jurisdiction of the disciplinary bodies over conduct protected by the immunity and to enable the ombudsman to give these disciplinary bodies a prod if necessary to consider taking action themselves.
The amendments would also help because, although I firmly believe that the immunity is necessary in the public interest, it is well known that the public find the immunity difficult to understand. I think therefore that access to the ombudsman in immunity cases would add to public confidence in the investigation of their complaints. I beg to move.
10.45 p.m.
Lord Renton: My Lords, I am sorry to say that I find myself in the unhappy position of having to oppose this amendment. I do so because the operative word in the paragraph to be left out is "conduct". If we leave that paragraph out and allow the ombudsman to investigate conduct in court as to which there is immunity —I am speaking so far as the Bar is concerned, as the noble Lord did —we shall get into the position of having the ombudsman overlapping the power and indeed the duty of the court to ensure proper conduct in court. We shall also find that the ombudsman's power of investigation would overlap the responsibility of the Inns of Court and the Bar Council to uphold the standards and discipline of the Bar.
We really cannot have too many different kinds of authorities acting as active investigators and with power to punish people indirectly. I should have thought that the power of the court, the Inns of Court and the Bar Council were quite enough.
Lord Hacking: My Lords, perhaps at this late hour of the evening I might get away with a little heresy. I have always found it very difficult to justify the immunity of advocates appearing in court. I am fully aware of the arguments about the duty toward the court and the integrity of the judicial process, but I have never conceived that when an advocate is grossly negligent in court that will either disturb the concept of duty to the court or invade the integrity of the judicial process.
We now have the opportunity with our legal services ombudsman to oversee the provision of legal services and deal with complaints arising out of the conduct of those legal services. It seems to me that this is a most important opportunity for us to take in drawing back the veil on the professions' immunity for matters conducted in the courtroom. Therefore, while I may not be in agreement with the earlier part of the submissions of the noble Lord who moved this amendment, I certainly wholly agree with the purport of the amendment. I agree with him that it should act as a spur to the professions.
I can tell the House that certainly the Law Society is wholly supportive of this amendment. I see it therefore as a spur to the professions to take action. Adopting another point made by the noble Lord, Lord Irvine of Lairg, I also see it as a way of helping the public to have greater confidence in lawyers and the legal system.
The Lord Chancellor: My Lords, Amendments Nos. 99 and 100 would enable the ombudsman to investigate an allegation of negligence against an advocate but not to make the recommendation which the complainant is perhaps most likely to seek. That is the effect of Amendment No. 100. I find it difficult to think it appropriate that the ombudsman should have jurisdiction in areas which are expressly closed to the courts. I feel that that would not be right. Nor do I see much point in conferring a jurisdiction which could only fail in the most part to deliver what the claimant seeks. I see

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that the professional disciplines might be spurred, which is what perhaps the noble Lord principally has in mind.
On the other hand, the ombudsman is brought into position, as it were, by the claimant. The principal purpose of its existence is to try to give the complainant satisfaction. As the noble Lord, Lord Irvine of Lairg, has said, the purpose of the immunity rule is to prevent what would effectively be retrials of the substantive issues of the original case, which would often be very difficult to decide, and would have the effect of bringing into doubt the decision of the original court case. In being unconvinced about the immunity, the noble Lord, Lord Hacking, has perhaps reached that conclusion because he has not looked at the best argument in its favour which is the one that I have just indicated. That is the essential reason for the immunity. It has not to do with integrity so much as that in an action for negligence which is going to succeed at the instance of a complainant or plaintiff, the fundamental issue will be whether the negligence caused damage. That will entail examining whether the decision would have been the same but for what had occurred. That is a way of unsettling the existing court decision in a most unattrative way. We have of course debated that issue separately.
Since courts are not to be able to try actions for negligence where immunity is claimed, I believe that it would be inappropriate for the ombudsman to do so. The professional bodies can investigate these matters and do—both the Law Society and the complaints procedures of the Bar —but I believe that that is how the matter should stand and that it is inadvisable to put the ombudsman into a position where, on the noble Lord's own approach to the matter, he cannot do all that he is able to do in other contexts. That is the problem I have with it.
1 entirely support the idea that we want to make confidence in the profession as high as possible—that is the whole purpose of having the ombudsman —but I differ from the noble Lord in the judgment of whether it would increase confidence to have a complainant go to an ombudsman who would be able to investigate up to a point but would not be able to give the only real matter as a reward if the complainant succeeded which the complainant is likely to be interested in—some form of recommendation under the paragraph to which Amendment No. 100 applies.
While I very much support the general thrust of what he would like to see arising from the ombudsman's appointment, I hope the noble Lord may feel that this position might cause more difficulty if the ombudsman went into it than it would resolve.
Lord Irvine of Lairg: My Lords, I recognise that it is a matter of judgment, but, with respect, I differ from the noble and learned Lord. In one part of his response, he suggested that the ombudsman not looking at these matters was a corollary of the immunity rule: it would be inappropriate for the ombudsman to look at these matters if the court could not do so in the context of a negligence action. He also said that what the complainant would
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essentially be looking for was compensation, which Amendment No. 100 precludes. On the other hand, the complainant might be looking for and might well be satisfied with, the courts being closed off to him, a proper investigation by the disciplinary bodies. The flaw which I perceived, if I may say so with respect, in the contribution of the noble Lord, Lord Renton, was his view that these amendments trespassed, first, upon the right of the courts to discipline persons appearing before them and secondly, upon the rights of the professional bodies. As to the first, the courts' ability to control the conduct of advocates is essentially in relation to the conduct of advocates as it appears to the court in the face of the court. Conduct which the court may not see can also be the legitimate subject matter of complaint by the litigant.
As regards the second point, I see no reason why a prod at professional bodies is inappropriate, especially since they may see alleged misconduct covered by the immunity differently from the ombudsman. Therefore, I had hoped that the amendment would meet with a more favourable response. It is designed to enhance public confidence that all complaints against lawyers are independently considered.
I am mindful that I have moved the amendment at a late hour. Obviously, it would not be appropriate to take the opinion of the House and I beg leave to withdraw the amendment. However, despite his original response, I invite the noble and learned Lord to study in Hansard what has been said and reconsider his view.
Amendment, by leave, withdrawn.
Clause 20 [Recommendations]:
[Amendment No. 100 not moved.]
Lord Coleraine Lord Coleraine moved Amendment No. 101:
Page 18, line 1, leave out subsection (8).
The noble Lord said: My Lords, in Committee I moved the amendment some time after midnight. When I arrived here today I found that it was last but one on the list of groupings and therefore I cannot expect noble Lords to express a clear opinion about its substance. However, in Committee my noble and learned friend offered me what, after consideration as to whether they were crusts or crumbs, I decided were the odd crumbs of comfort. Tonight my amendment relates to the proposal that the ombudsman should have the power to investigate and make recommendations in respect of substantive complaints against legal practitioners. The subsection to which I object—and I do so with the support of the Bar Council, the Law Society and Justice—would provide that a legal practitioner who does not accept the ombudsman's recommendation shall advertise that fact as required by the ombudsman and at the practitioner's expense.
In Committee my noble and learned friend indicated that the proposal in the subsection had precedent in a number of schemes in which an ombudsman had such a power. He kindly said that he would consider the matter further should it prove that the other schemes could properly be distinguished.
I consider that the other schemes can be distinguished and I have had correspondence with my noble and learned friend which I now wish to share with the House. I believe that there are three ways in which the proposals in the Bill can be distinguished from what has gone before. First, what has gone before is to be found only in the Local Government and Housing Act 1989 which has been in force for three months and in the Building Societies Act 1986 to which I have already referred.
I am aware of only one case in which a building society was required to publicise dissent and at its own expense. I understand that the ombudsman found that in the case of premature repayment of a loan it was unfair for a building society to charge the additional three months' interest to which the society was contractually entitled. He found that to be unfair because he considered that at an early stage in the negotiations the building society should have specifically informed the potential borrower that such a clause existed and that it could be enforced against the borrower. The ombudsman considered it necessary to make that point in that particular case because nowadays it is rare for building societies to ask for additional interest on early repayment of loans. It seems to me that there is very little precedent to be found in those two Acts for what we have before us in this Bill.
The second point is that what precedent there is relates to complaints against building societies and local authorities. The cost of compliance with a recommendation made against a building society or local authority will not fall on the official of the society who perpetrated the act of maladministration which is in question. By contrast, in this Bill the cost of compliance with the ombudsman's requirement will fall on the legal practitioner himself.
The final way in which I distinguish the new provisions from what has gone before is that it must be borne in mind that the legal practitioner who is concerned to answer a complaint when it is being investigated by the ombudsman will already have had the complaint investigated by his professional body. Therefore, he will have undergone the considerable personal expense of the cost of the investigations carried out by two different bodies. I should be very grateful if my noble and learned friend would look again at this to see whether he can offer some hope that it may be possible to delete this subsection. I beg to move.
11 p.m.
Lord Renton: My Lords, I support this amendment. I believe that it is rather strange that a person who has been accused by the ombudsman and, in effect, refuses to comply with what the ombudsman has recommended should then be told by the ombudsman how to publish the fact of failure and then to provide his reasons for it.
The rather strange point is that under Clause 20 (5) the ombudsman is absolutely privileged in that the law of defamation cannot apply to his report. However, if the person being required to publish his reasons for refusing or failing to comply then does
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so, he would not be protected from the exemption from the law of defamation except to the extent which the common law provides—and it does provide to some extent —although on the expressio unius principle one would hope that he too would be protected, as is the ombudsman in subsection (5).
This rather unusual provision causes people possibly to publish information against themselves and it requires them to publish the reasons for their refusal in a way that the ombudsman or anyone else shall specify. I find this rather strange and I hope that my noble friend will reconsider the matter.
Lord Boardman: My Lords, I am somewhat worried about this subsection. I would have agreed that the Bill should provide that the findings of the ombudsman should be mandatory, but the Government have not seen fit to provide for that. Therefore, there is pressure put upon the person to comply by his being told "Either you comply with what I have said or you will publish in such form as I specify that you have not complied and the reasons for it".
The words,
"in such manner as the Ombudsman may specify",
could mean the ombudsman requiring publication in a way which could be highly damaging to the person who had not conformed with the requirement. As my noble friend said, under subsection (5) the question of defamation also arises. I hope that further thought can be given to that subsection.
The Lord Chancellor: My Lords, this subsection requires that if the ombudsman finds against a practitioner there should be some form of sanction if the practitioner does not agree with the ombudsman and does not implement what the ombudsman said. We thought it unwise to go the length of forcing the practitioner to do what the ombudsman said. He always has that option, but if he declines to do so it seems right that the ombudsman's authority should not be completely undermined.
If the person does not agree with the ombudsman, what is supposed to happen? The ombudsman's recommendation is left as a dead letter. It seems to me that to make the ombudsman's recommendation binding is going quite a long distance on the practitioner, because the ombudsman may decide this matter in a way to which the practitioner feels there is a reasonable answer. If so, I should have thought, in the light of what has been decided so far, that this is the best way to proceed.
The manner in which the ombudsman directs, or sees fit to do so, is intended to deal with the specification which the ombudsman may give,
"in such manner as the Ombudsman may specify",
in order sufficiently to publicise the failure in a relevant way as to make this a reasonable sanction. Such a power would be subject to the ordinary type of judicial review, I should have thought, if the ombudsman's specification was utterly unreasonable. However, the main point is the need for some form of sanction.

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The Building Societies Act has such a sanction and the only case of which I know is the one to which reference has been made. The council of the building societies' ombudsman said:
"The decision to give building societies the option not to comply with an Ombudsman judgement was taken during the passage of the 1986 Act. It was considered that it would be unfair to deprive building societies of any right to question the merits of the Ombudsman's decision, particularly as he can of course decide against a society on the grounds that it has treated a complainant unfairly, even if the society in question is not in breach of the law.
"In general the Council accepts this argument. We are nevertheless determined that building societies should not confuse a publicity option with a soft option. The price tag attached to the required negative publicity should always be an appropriately high one, so that societies think long and hard before deciding to pay it".
In other words, the council was concerned that the publicity option might be a soft option to a society deciding not to go along with the ombudsman, and therefore it was right that fairly considerable publicity should be required. That suggests, to my mind, that previous experience supports what we are doing here, and suggests that it is by no means a tall order to impose on a practitioner who has been required by the ombudsman to do something which the practitioner declines to do.
I have reconsidered this matter in the light of discussions I have had with my noble friend Lord Coleraine, and I should be glad to know what sort of sanction my noble friends who do not care for this proposal have in mind should be attached to the ombudsman's jurisdiction if this sanction were not to apply. So far I remain unconvinced that it is right to take out this provision and I hope that in the light of my remarks my noble friend will feel able to withdraw his amendment.
Lord Coleraine: My Lords, I am grateful to my noble friends who supported this amendment. I must say that I am, in a modest way, horrified that my noble and learned friend is not able to see the difference between measures taken against a building society and measures taken against an individual practitioner, especially when, as I pointed out, the individual practitioner has already undergone an investigation by his own professional body which has found him essentially not guilty as charged. In the case where the ombudsman has given directions which the practitioner feels that he should not or does not feel obliged to comply with, the professional body itself may be considerably embarrassed by the decision of the ombudsman.
I was particularly distressed to learn that the remedy that a practitioner might find for a bad decision by the ombudsman was by way of judicial review. I should have thought that the practitioner had had enough in the way of investigations without having to go to court to avoid the need to advertise at his own expense the failure to do what the ombudsman had asked him to do.
My noble and learned friend asked me what sanctions should be applied. There is a very wide gulf between us. I do not consider that it is appropriate for any sanction to be applied to a
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practitioner in these circumstances who has taken the decision he has done.
The ombudsman's recommendation must carry force, and it is not to be disregarded, but as I look at it there is no need to think in terms of sanctions. If the ombudsman makes a recommendation which is not being complied with, surely it should be the case that the ombudsman then advertises as widely as he thinks prudent or desirable the fact that the solicitor, the barrister or whoever it is is not taking the advice of the ombudsman. That in itself will operate as a quasi-sanction against the practitioner—the fact that his dereliction is being exposed to the world in this way.
It is obviously a late hour to ask the opinion of the House, and in the circumstances I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 23 [Extension of Ombudsman's remit]:
Lord Simon of Glaisdale Lord Simon of Glaisdale had given notice of his intention to move Amendment No. 102:
Page 19, line 4, leave out beginning to first ("the") in line 5.
The noble and learned Lord said: My Lords, earlier today noble Lords who had down important amendments showed meritable self-abnegation in not moving them. They did that so that the still more important amendment of the noble Lord, Lord Alexander of Weedon, about the cab rank principle should come on not at this time but at an hour when there was a reasonable assembly of noble Lords in your Lordships' House who could hear the debate and make up their minds on the arguments put forward. That proved to be thoroughly beneficial, but in spite of that self-abnegation the fact is that many amendments were not moved. Nevertheless, I find myself now called on to move an amendment at 10 minutes past eleven.
Originally, three days were put down for the Report Stage. That always seemed to be inadequate in view of the very heavy Committee stages that we had: six days, on only one of which the Committee rose before half-past ten; two were taken beyond midnight; and the last sat until nearly three o'clock in the morning. So three days always seemed inadequate. Then one day was taken away, and after a delay it was restored on a different date. Today's experience and that in Committee indicate very strongly that three days are not sufficient for proper discussion of this Bill on Report. The view has increasingly grown that the Bill is being hustled through your Lordships' House with maximum pressure on your Lordships and the minimum possible opportunity to discuss important issues at an hour when your Lordships are present to hear the arguments.
The matter does not rest there. On Friday the Government tabled 120 amendments. That is more than half the number of amendments that are at present on the Marshalled List. Obviously some of them were drafting amendments and some were in response to matters that were raised in Committee, but two new clauses and two new schedules, one of

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them substantial, were tabled and one clause was completely rewritten. That in itself amounts to a substantial Bill. So I say, and I am glad that the noble Lord the Leader of the House is here, that three days is insufficient for the Bill's provisions to be discussed at reasonable times. However, as it is now past 11.15 p.m. it would be absurd to pursue the matter further.
[Amendment No. 102 not moved.]
Viscount Ullswater: My Lords, I beg to move that further consideration on Report be adjourned.
Moved, That further consideration on Report be adjourned.—(Viscount Ullswater.)
On Question, Motion agreed to.

Hasmonean High School Bill [H.L.]
Presented and read a first time.
City of London (Various Powers) Bill
Brought from the Commons, read a first time and referred to the Examiners.

City of London (Spitalfields Market) Bill
Returned from the Commons with the amendments agreed to.
House adjourned at seventeen minutes past eleven o'clock.