HL Deb 20 February 1990 vol 516 cc228-67

Consideration of amendments on Report resumed.

Clause 15 [The statutory duty]:

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 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 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 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 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 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 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 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 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 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.

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.

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 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.

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.

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 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 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 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 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; (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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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.

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 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 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 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.