Courts and Legal Services Bill [H.L.]

HL Deb 20 February 1990 vol 516 cc148-217

3.16 p.m.

Report received.

Clause 1 [Allocation of business between High Court and county courts]:

[Amendments Nos. 1 to 3 not moved.]

Lord Simon of Glaisdale had given notice of his intention to move Amendment No. 4: Page 2, line 12, leave out ("Without prejudice to the generality of section 84 (2) ").

The noble and learned Lord said: My Lords, I apologise for the fact that the amendments in my name are all starred. The reason is that there was so little time between my receiving on Monday a letter which the noble and learned Lord the Lord Chancellor wrote to me between the Committee and Report stages. I also wanted to see the noble and learned Lord the Lord Chancellor's amendments, most of which were put down only on Friday.

Most of the amendments relate to an attempt to shorten the Bill by removing unnecessary material. My noble and learned friend the Lord Chancellor kindly said that he would discuss that and other matters with me. Under those circumstances I do not propose to move the amendments.

There is an extremely important amendment to come later relating to what is called the cab rank rule. It is of high constitutional importance, and it is most desirable that your Lordships should be able to pronounce on that amendment at a reasonable hour rather than in the early hours of the morning, as has been our custom during the passage of the Bill.

Under those circumstances I shall not move Amendments Nos. 4 and 5.

[Amendments Nos. 4 and 5 not moved.]

The Lord Chancellor (Lord Mackay of Clashfern) moved Amendment No. 6: Page 2, line 23, leave out ("An order under this section") and insert ("Any such order").

The noble and learned Lord said: My Lords, in speaking to Amendment No. 6 I shall speak also to Amendments Nos. 12, 14 and 15.

The purpose of the amendments is to clarify, in accordance with the undertaking I gave at Committee stage on 16th January, that the only part of Clause 1 which confers powers on the Lord Chancellor to make orders is subsection (1).

Subsection (1) gives the Lord Chancellor power by order to extend the jurisdiction of the High Court and the county courts. In Committee, a number of those who spoke, including my noble and learned friend Lord Simon of Glaisdale and my noble friend Lord Renton, had clearly understood the clause as conferring separate order-making powers in subsections (1) and (4). I undertook to look again at the drafting, to see whether all possibility of misunderstanding could be removed, and these amendments are the result.

One by-product of the amendments will be to remove any residual doubt there may have been about whether subsection (4), which contains the power to amend primary legislation, albeit in the limited and consequential ways that I have described, will be subject to affirmative resolution. I beg to move.

Lord Simon of Glaisdale

My Lords, the amendments of my noble and learned friend now clearly bring the clause into line with what he understood it to mean before it was amended. One need not then go into the difference of opinion in Committee which was very clear. I merely say that I welcome the amendments and am grateful to my noble and learned friend.

Lord Mishcon

My Lords, as we too sought clarification, perhaps I may from these Benches thank the noble and learned Lord for his gracious way of dealing with the matter. He promised at Committee stage that he would look into it, he has done so and we now find the wording quite satisfactory.

The Lord Chancellor

My Lords, I am extremely grateful to my noble and learned friend Lord Simon of Glaisdale, and to the noble Lord, Lord Mishcon. As noble Lords will see as we proceed, I have endeavoured to carry out as fully as possible in the time available the various undertakings that I made.

On Question, amendment agreed to.

The Lord Chancellor moved Amendment No. 7: Page 2, line 24, leave out ("made by or under any enactment") and insert ("falling within subsection (4A) and").

The noble and learned Lord said: My Lords, I have already explained the amendment. I beg to move.

On Question, amendment agreed to.

[Amendments Nos. 8 to 10 not moved.]

The Lord Chancellor moved Amendment No. 11: Page 2, line 35, at end insert— (" (4A) A provision falls within this subsection if it is made by any enactment other than this Act or made under any enactment.").

The noble and learned Lord said: My Lords, this is another amendment to clarify the difficulties that were found in Committee in Clause 1. I beg to move.

Lord Simon of Glaisdale

My Lords, I have only one question to ask. It relates to a number of the other amendments of my noble and learned friend. The amendment incorporates the words, made by any enactment other than this Act or made under any enactment". Am I right in thinking that the word "by" refers to the text of a statute and that the word "under" refers to subordinate legislation under a statute, so that any enactment other than this Act", means that the Henry VIII clause does not operate with regard to this Act, although it may operate with regard to subordinate legislation under this Act or any other Act? I ask my noble and learned friend whether I have understood that point correctly.

The Lord Chancellor

Yes, my Lords. The aim is to make it clear that the provisions of the Act cannot be affected by an order made under that section, but that any other enactment can be and that any subordinate legislation made under the Act can be. My noble and learned friend has therefore understood the effect of the amendment as I intend it.

On Question, amendment agreed to.

The Lord Chancellor moved Amendment No. 12: Page 2, line 36, leave out ("order under this section") and insert ("such order").

The noble and learned Lord said: My Lords, I have already spoken to the amendment. I beg to move.

On Question, amendment agreed to.

[Amendment No. 13 not moved.]

The Lord Chancellor moved Amendments Nos. 14 and 15: Page 2, line 40, after ("No") insert ("such"). Page 2, line 40, leave out ("under this section").

The noble and learned Lord said: My Lords, I have already spoken to these amendments with Amendment No. 6. I beg to move.

On Question, amendments agreed to.

The Lord Chancellor moved Amendment No. 16: Page 2, line 45, at end insert — (" (8) The Lord Chancellor shall, within one year of the coming into force of the first order made under this section, and annually thereafter, prepare and lay before both Houses of Parliament a report as to the business of the High Court and county courts.").

The noble and learned Lord said: My Lords, I want to deal with this amendment rather fully. At Committee stage there was a good deal of discussion about questions of resources for the courts and about the way in which the courts might respond to the effects of the statute. I undertook then to consider whether the concerns might be met by putting an obligation on the Lord Chancellor to place before Parliament a report on the court business.

The Lord Chancellor's Department already prepares such a report which is circulated to those who are thought to be interested, such as the General Council of the Bar and the Law Society. However, in view of the general interest in this matter, the suggestion was made, principally by the noble Lord, Lord Mishcon, but agreed and supported by others, including my noble friend Lord Renton. I have therefore concluded that it would be right and would help noble Lords to continue an informed interest in these matters after the Bill has, I hope, become law and been put into effect, to see how matters arise.

On the question of the court service, although I accept that there are problems in particular courts from time to time, the work of the courts has, generally speaking, been done extremely well in the years at which we are looking. Perhaps the most interesting fact that I should mention in that connection is that, because of its existing powers, the High Court is already able to send down a considerable number of cases to the county courts. In 1987 just over 9, 000 cases were transferred down to the county courts under that power. In 1988 the number had increased to over 12, 500 cases and in the first eight months of 1989 the figure was over 10, 000 cases. The county courts are therefore already coping, under the exercise of powers by the judges of the High Court, with many of the kinds of cases which would be allocated to them under the arrangements possible as a result of the new powers under the Bill.

Generally speaking, those arrangements are being handled successfully with reasonable waiting times in the county courts. One of the important consequences is that waiting times in the High Court have been significantly improved. My noble and learned friend the Lord Chief Justice referred to some figures of that kind in the early summer. The result has been an increase in the availability of justice and a considerable decrease in the delay required in order to obtain it.

Another factor that I have not mentioned on previous occasions is that, in the financial year 1984–85 for example, there were 353 circuit judges. That figure rose to 393 at the beginning of 1987–88 and to 408 at the beginning of this financial year. Gross expenditure on the court service, excluding legal aid and the court building programme, rose from £145 million to £210 million, and to an estimated £261 million in the last of those years. I mention those figures in order to illustrate the kind of material that will be covered in the report which the Lord Chancellor will have a statutory obligation to lay before Parliament if the amendment is accepted. I beg to move.

Lord Mishcon

My Lords, we are moving with commendable speed. I do not in any way intend to slow down the pace. I want to thank the noble and learned Lord for having accepted both in spirit and in fact the amendment that I moved at Committee stage with support from various parts of the Chamber.

I have one difficulty. After Clause 13 of the Bill I have tabled an amendment which seeks to deal with standards to be kept up in the court administration. That amendment contains a provision to require an annual report. I believe that that requirement belongs more suitably to that amendment. My difficulty is that if, by some mischance, that amendment were not carried, the requirement that there should be this desirable annual report will not be in the Bill.

I feel that the sensible course is to express my appreciation to the noble and learned Lord for this amendment, to say that the amendment ought to be accepted at this stage and to see what happens to the later amendment. Then, if I am still caught in the same difficulty, I shall try to do something about it at Third Reading. At the present stage I definitely feel that the amendment should be supported and I again thank the noble and learned Lord.

Lord Renton

My Lords, I too accept the amendment and am most grateful to my noble and learned friend.

On Question, amendment agreed to.

3.30 p.m.

Lord Lloyd of Kilgerran moved Amendment No. 17: After Clause 1, insert the following new clause: ("Trade marks: county court. .—(1) The Lord Chancellor shall by order made by statutory instrument designate at least one county court as a trade marks county court and confer on it jurisdiction (its "special jurisdiction") to hear and determine such descriptions of proceedings —

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

(2) The special jurisdiction of a trade marks county court is exercisable throughout England and Wales, but rules of court may provide for a matter pending in one such court to be heard and determined in another or partly in that and partly in another. (3) A trade marks county court may entertain proceedings within its special jurisdiction notwithstanding that no pecuniary remedy is sought. (4) An order under this section providing for the discontinuance of any of the special jurisdiction of a trade marks county court may make provision as to proceedings pending in the court when the order comes into operation. (5) Nothing in this section shall be construed as affecting the ordinary jurisdiction of a county court.")

The noble Lord said: My Lords, in moving this amendment, with the leave of the House and in order to expedite matters I should like to speak also to Amendments Nos. 18, 199 and 20 and refer to two formal amendments, Amendments Nos. 217 and 218.

As is well known, trade marks are a very important factor in trade both within the United Kingdom and beyond. More recently trade marks, or brand names as they are often called, have been recognised by large companies and their valuation, as has been indicated in the press, will now have to be shown in their balance sheets and may amount to hundreds of millions of pounds. It is anticipated that there will be considerable litigation.

I put forward these amendments on behalf of the Institute of Trade Mark Agents, of which I am an honorary associate member. The noble and learned Lord will be familiar with the general wording of Amendments Nos. 17 to 20. It appears in the Copyright, Designs and Patents Act 1988 in so far as it relates to patents. Here the words "trade marks" have been substituted for "patents".

Perhaps I may briefly indicate the scope of these four new clauses. The first sets up a trade mark county court. It is recognised as in the public interest that there should be a reduction of the workload in the High Court in order to give speedier and less expensive justice. I understand that there have already been general discussions with the office of the noble and learned Lord the Lord Chancellor with regard to setting up a trade mark county court as well as a patents county court, as for some time has been the intention.

The clause covered by Amendment No. 18 indicates the special jurisdiction of a trade mark county court. I need not read it out. For instance, it deals with the question of transfer of proceedings from or to the High Court.

Amendment No. 19 inserts another new clause indicating that the county court is designated as a trade mark county court. It is intended that the noble and learned Lord the Lord Chancellor, shall nominate a person entitled to sit as a judge of that court as the trade mark judge".

It is in the public interest that the person presiding over such a tribunal should have had some experience in dealing with trade marks and therefore should be designated as the trade mark judge having regard to his experience.

Amendment No. 20 inserts an important new clause. It indicates that, A registered trade mark agent may do, in or in connection with proceedings in a trade mark county court which are within the special jurisdiction of that court, anything which a solicitor of the Supreme Court might do".

Those rights have already been included in the Copyright, Designs and Patents Act with regard to a patent agent. This clause is intended to bring similar rights to registered trade mark agents. As that clause mentions registered trade mark agents, perhaps I may draw to your Lordships' attention the two formal amendments, Nos. 217 and 218. Amendment No. 217 merely defines the words "intellectual property" which occur generally in relation to trade mark matters. Intellectual property means: invention, design, technical information or trade mark, and any rights under common law in relation to passing off

Amendment No. 218 merely defines what is known as a registered patent agent and a registered trade mark agent. A registered trade mark agent means: a person whose name appears on the register established under section 282 of the Copyright, Designs and Patents Act 1988".

It was rather curious to note that as the Copyright, Designs and Patents Act 1988 went through this House there were occasional references to trade marks and there was a reference made in the Act to the register of trade mark agents. I attempted to alter the Title of one Bill so as to make it clear that that Bill involved some matters of trade marks, but I failed in that attempt. The whole object of these amendments, as I said, is to set up a trade mark county court.

I fully realise that this is a matter which is still under discussion with the office of the noble and learned Lord the Lord Chancellor. Therefore I do not propose to divide the House in relation to these amendments. I should like to say that perhaps discussions could continue and the matter might be brought up more formally at Third Reading. I beg to move.

Lord Cawley

My Lords, it has always rightly been held that a registered trade mark is quite as important as, or more important than, a patent. It is a part of intellectual property. It gives me great pleasure to support in principle the noble Lord, Lord Lloyd of Kilgerran. I do not know whether these provisions will find favour with the noble and learned Lord the Lord Chancellor but certainly I am very much in favour of them in principle.

The Lord Chancellor

My Lords, these amendments cover a subject matter which I do not think we discussed particularly at Committee stage. At the outset I should like to say that so far as I know the department has not yet been approached with proposals along these lines. We have been considering questions of changing the ministerial tribunal under the Trade Marks Act 1938. There have been discussions on that but on this matter no discussions have so far taken place. That does not preclude our having discussions now. Obviously I accept that this is a matter of importance.

These amendments would oblige the Lord Chancellor to establish a county court jurisdiction in trade mark matters roughly along the lines of that set up for patents by Part VI of the Copyright, Designs and Patents Act 1988, to which the noble Lord, Lord Lloyd, referred. Indeed, as he explained, he has borrowed most of the wording of the relevant sections for the purpose of carrying this particular subject. Part VI of that Act was enacted before an allocation power of the kind contained in Clause 1 of the Bill was available. Moreover, it was enacted only after detailed and wide consultation led by the Oulton Committee on patent litigation, which was chaired by the then Permanent Secretary to the Lord Chancellor's Department and reported in November 1987. This report was in its turn preceded by the White Paper Intellectual Property and Innovation in 1986, Cmnd. 9712.

It will already be possible for orders under Clause 1 to confer jurisdiction on the county courts in trade mark matters. It is therefore unnecessary in any event to provide for such jurisdiction on the face of the Bill. What I consider should be possible—I should like, if I may, to check this and come back if necessary at a later stage of the Bill with an amendment—is to confer particular jurisdiction—for example, in respect of trade marks—on a limited number of county courts or perhaps a particular county court. This would enable these specialist cases to be concentrated on those courts. It might be desirable for a degree of specialisation to be built up. That is the pattern of the patent county court which has been proposed. I welcome further discussion on this matter.

As to Amendment No. 20 and also formal Amendments Nos. 217 and 218, I do not think it would be right to make separate statutory arrangements for trade mark agents in county court proceedings, given the new general arrangements for legal services in Part II of the Bill. When the corresponding section of the Copyright, Designs and Patents Act 1988 was enacted there were no such arrangements. The only way in which the result could be achieved was somewhat on the lines of the provision in Section 292. But the arrangements that we now have in Part II would enable this matter to be considered fully by the advisory committee and under the machinery that is proposed.

In the light of that way forward, the noble Lord, Lord Lloyd of Kilgerran, supported by my noble friend Lord Cawley, may feel able to withdraw the amendment and leave the matter for further discussion, realising that, subject to the one point I made about concentrating jurisdiction on a particular county court, the objects that he has in mind could be achieved, if they are found desirable on consultation, by the arrangements already in the Bill.

Lord Lloyd of Kilgerran

My Lords, I thank the noble Lord, Lord Cawley, who I have known for many years as a distinguished member of the patent Bar, for his support in principle of the amendments. I thank the noble and learned Lord the Lord Chancellor for having indicated that he would be prepared to consider further representations in regard to these matters. In those circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 18 to 20 not moved.]

Clause 2 [Transfer of proceedings between courts]:

3.45 p.m.

The Lord Chancellor moved Amendment No. 21: Page 3, line 4, leave out ("procedure provision") and insert ("provision of a kind mentioned in subsection (8) ").

The noble and learned Lord said: My Lords, in moving Amendment No. 21 I should like to speak also to Amendments Nos. 22, 24, 25, 26 and 27. These are drafting amendments designed to take account of criticism from my noble friend Lord Renton and my noble and learned friend Lord Simon of Glaisdale about the phrase "procedure provision" as it was used in the clause as originally drafted. In considering the matter I thought that it was possible to improve the situation with the help of parliamentary counsel. These amendments are the result. I beg to move.

Lord Renton

My Lords, I am most grateful to my noble and learned friend.

On Question, amendment agreed to.

The Lord Chancellor moved Amendment No. 22: Page 3, line 12, leave out ("procedure") and insert ("such"). On Question, amendment agreed to.

The Lord Chancellor moved Amendment No. 23: Page 3, line 20, leave out from ("considers") to end of line 21 and insert ("appropriate, having taken into account the convenience of the parties and that of any other persons likely to be affected and the state of business in the courts concerned.").

The noble and learned Lord said: My Lords, in Committee the noble Lord, Lord Mishcon, proposed an amendment to amend the original draft of the new Section 40 (4) of the County Courts Act 1984 which would be inserted by Clause 2 of the Bill. As it stood, it provided that proceedings transferred under this section —that is, from the High Court to the county courts—should be transferred to such county court as the High Court considered convenient. My objective, as I explained to the Committee, was not to prevent the courts from taking account of the convenience of the parties, but to ensure that wider factors—especially of course the convenience of parties to other cases —could also be taken into account. There was, I think, little or nothing between my aim here and that of the noble Lord, Lord Mishcon, and I therefore accepted his amendment to require the court to take its decision having taken into account the convenience of the parties.

I said at the time, however, that I would hope to be able to come back if on reflection it appeared that the phraseology was perhaps not the most expedient, and that is why I invite the House to consider this amendment. It is designed both to render the section a little more elegant and to set out explicitly the other factors which will have to be considered when the High Court decides to which county court to transfer a particular case. I beg to move.

Lord Mishcon

My Lords, I am most grateful to the noble and learned Lord.

On Question, amendment agreed to.

The Lord Chancellor moved Amendments Nos. 24 to 27: Page 3, line 44, leave out from (" (8) ") to ("made") in line 45 and insert ("The provisions referred to in subsection (1) are any"). Page 4, line 16, leave out ("procedure provision") and insert ("provision of a kind mentioned in subsection (7) "). Page 4, line 24, leave out ("procedure") insert ("such"). Page 5, line 5, leave out from (" (7) ") to ("made") in line 6 and insert ("The provisions referred to in subsection (1) are any").

The noble and learned Lord said: My Lords, I spoke to Amendments Nos. 24, 25, 26 and 27 with Amendment No. 21. With the leave of the House, I propose to move them en bloc.

On Question, amendments agreed to.

Clause 3 [Remedies available in county courts]:

The Lord Chancellor moved Amendment No. 28: Page 6, line 10, leave out from (" (7) ") to end of line 11 and insert — ("No such statutory instrument shall be made unless a draft of the instrument has been approved by both Houses of Parliament." ").

The noble and learned Lord said: My Lords, this amendment fulfils the undertaking which I gave in Committee, when we debated what is now Clause 84, that I would ensure that the affirmative resolution procedure is adopted in this Bill wherever the power to amend primary legislation is conferred upon regulations or orders. Clause 3 provides that regulations restricting the remedies available to the county courts may make necessary or expedient consequential amendments to other enactments. It is appropriate therefore that this power should be made subject to affirmative resolution. This is in accordance with the undertaking that I gave to my noble friend Lord Rippon.

Perhaps I should take this opportunity to say that my statement in Committee towards the end of a fairly long Committee stage was intended to apply to this Bill as a general principle in deciding the various matters that might arise in the Bill. It was not my intention—I am sure my noble friend will understand this—to say that in all legislation for the future this would necessarily be the rule. I was making it my principle to apply throughout the whole of this Bill so as to render it unnecessary to discuss these matters in relation to each individual clause. I beg to move.

Lord Rippon of Hexham

My Lords, I appreciate what my noble and learned friend has done and I appreciate his explanation that it was an undertaking in relation to this specific Bill. I may have gone a little too far in the debate the other day in saying that it was a precedent for all occasions. However, I hope that it will be found to be a useful precedent for future Bills.

Lord Mishcon

My Lords, the noble and learned Lord will know that many members of the legal profession are still somewhat unhappy that the remedies available in the county court should be capable at all of being restricted by regulation. This view was expressed in Committee. Nevertheless, if it is to be inserted in the Bill, as appears to be the case, then naturally we should prefer the affirmative procedure. For that we are grateful.

Lord Simon of Glaisdale

My Lords, I too should like to thank my noble and learned friend. I share the anxiety of the noble Lord, Lord Mishcon. I could not pick up this amendment in my amendment that was discussed in Committee at a quarter past two in the morning, so I wrote to my noble and learned friend. I am most grateful to him for having picked it up now.

I was a little disturbed to hear my noble and learned friend say that his comments about Henry VIII clauses and affirmative resolution apply only to this Bill. He was speaking on behalf of the Government. I fully understood that during the last Session and this Session the recommendations of the Donoughmore Report were accepted; that only in exceptional circumstances should the Executive arrogate to itself the power to legislate in the way which traditionally has been the function of Parliament.

As the noble Lord, Lord Mishcon, indicated, if there is to be such use of Henry VIII clauses, the least that can be done is to bring forward an affirmative resolution so that Parliament can be given an explanation. That should apply not only to this Bill but to all legislation brought forward by the Government.

The Lord Chancellor

My Lords, I wished to clarify my undertaking and that I have done. As regards the point raised by the noble Lord, Lord Mishcon, one must adopt a somewhat evolutionary approach. We are making considerable changes in relation to the county courts and concern has been expressed about both granting powers which are too wide and also restricting powers. I thought it right to have a machinery under which the matter could be considered. Any concerns on the lines expressed by the noble Lord, Lord Mishcon, can be taken into account in deciding what is to be done.

On Question, amendment agreed to.

Clause 4 [Costs]:

[Amendment No. 29 not moved.]

The Lord Chancellor moved Amendment No. 30: Page 6, leave out lines 30 to 37.

The noble and learned Lord said: My Lords, the amendment is too good to miss because I find myself lined up with my noble and learned friends Lord Ackner and Lord Simon of Glaisdale —

Noble Lords

Hear, hear!

The Lord Chancellor

My Lords, it has not caused me to reconsider the correctness of the amendment but it has been a complete fortification of the fact that I have it right. The amendment deletes the detail which we suggested in subsection (4) of the new Section 51 of the Supreme Court Act 1981 in attempting to distil the cases. Having heard the comments of the noble Lord, Lord Mishcon, my noble and learned friends Lord Ackner and Lord Simon and others, I decided that it was wise to return to the words of generality originally contained in the law. The position is helped by the amendment to the general law proposed in relation to rights of appeal, and that may well be helpful in matters of cost. The amendment carries general agreement and I beg to move.

Lord Wilberforce

My Lords, I do not want my noble and learned friend's cup to overflow completely but I wish to indicate my support for his amendment. In Committee I said that the subsection as drafted would not cover the case in which a defendant is supported. It provides for the "bringing of the proceedings". Our case is that where a defendant is supported by an outside person it may be desirable to order him to pay costs. That is achieved indirectly by my noble and learned friend's amendment and I am happy to add my support.

Lord Simon of Glaisdale

My Lords, the practice as to costs is well understood and worked out by the judicial decision. In Committee a general feeling was expressed that the matter should be left to the discretion of the judge. I considered that subsection (4) (d), to which I have tabled an amendment, was particularly dangerous and it also came under the baleful glance of the noble Lord, Lord Mishcon.

In my opinion, what has been done by my noble and learned friend the Lord Chancellor is preferable. It is to remove the whole subsection and, in the exercise of discretion as to costs, leave the matter to the existing practice, which is firmly based on the interests of justice.

Lord Ackner

My Lords, I wish to voice my appreciation for the fact that my suggestion has been accepted. It is most satisfactory to find myself sitting next to my noble and learned friend the Lord Chancellor once again. For reasons which I have explained many times and shall explain again, my only wish is that he had never left us.

The Lord Chancellor

My Lords, I am not sure how to take the last compliment. I am particularly grateful that my noble and learned friend Lord Wilberforce also supports the amendment. I had in mind the point that he raised and realise that my proposal achieves that. I am grateful for his support.

On Question, amendment agreed to.

The Lord Chancellor

My Lords, Amendment No. 31 has been pre-empted.

[Amendment No. 31 not moved.]

The Lord Chancellor moved Amendment No. 32: Page 7, line 22, at end insert — (" (10A) No such statutory instrument shall be made unless a draft of the instrument has been approved by both Houses of Parliament.").

The noble and learned Lord said: My Lords, the amendment is of the same type as that which we discussed in Committee and I need explain it no further. I beg to move.

On Question, amendment agreed to.

Clause 5 [Exchange of witness statements]:

[Amendment No. 33 not moved.]

Clause 6 [Evidence given in arbitrations on small claims]:

[Amendment No. 34 not moved.]

Clause 7 [Restrictions on appeals to Court of Appeal]:

Lord Mishcon moved Amendment No. 35: Page 8, line 13. leave out ("subsection") and insert ("subsections").

The noble Lord said: My Lords, this is a paving amendment to Amendment No. 40. Noble Lords will see that the amendment provides that there should be no requirement to obtain leave to appeal to the Court of Appeal in the case of judicial review proceedings.

Noble Lords may remember that during Committee I made a plea—unfortunately, it was not successful—that there should be no requirement to obtain leave in order to go to the Court of Appeal. The answer I received—and it was a respectable argument —was that often the Court of Appeal finds that it is dealing with frivolous and hopeless cases which stand no chance of success. Therefore, it is out of mercy to the litigant that the leave must be obtained.

That argument cannot possibly apply in the case of judicial review because in order to make one's case for judicial review one must first obtain leave. One comes before the court, which is most circumspect to ensure that no hopeless, silly or vexatious case ever gets further than the application for leave. On many occasions in your Lordships' House admiration has been expressed for the evolution of the remedy of judicial review. Some people have called it the "citizens' charter". Others have called it the "heralding of the liberty of the subject" because the Excecutive can be challenged if it moves in an improper, unreasonable way.

That is the remedy about which we are speaking. Bearing in mind that one must go through the whole gamut of obtaining leave—that is explaining one's case to the court—before one can obtain a hearing of judicial review, should it not be the right of the citizen to say, especially in regard to this precious remedy, "Judges are but human. They are not infallible by any manner of means. I want to have this matter tested. I have been given leave and, therefore, I have a reasonable case". Why should that citizen then be faced with a leave to appeal application? I beg to move.

4 p.m.

Lord Renton

My Lords, I support this amendment. There are two reasons which I do not believe were mentioned by the noble Lord, Lord Mishcon, which I put forward in support of it. First, the Court of Appeal has played an important part in the evolution of the law relating to judicial appeal. Therefore, we should not be deprived of any opportunity of carrying on that good work.

The other point is a narrow one and relates to this Bill; namely, that the opportunities for judicial review will necessarily be rather frequent under the Bill. Therefore, as we are considering this matter in relation to that I believe that we should particularly welcome the amendment.

Lord Harmar-Nicholls

My Lords, there is a layman's reaction to what could flow from this. By and large the ordinary citizen who must tolerate the results of these decisions feels that there are occasions when a matter should be brought to an end. There is a feeling that it has been examined in detail, impartially and objectively, and that a judgment has been given but that if a way can be found of extending the matter further then it goes on and on. One sees many examples of that within the American system where sometimes cases continue for years. I do not believe that that is in the best interests of people accepting what is sound judgment.

While I do not pretend to argue the details behind this amendment with the noble Lord, Lord Mishcon, or my noble friend Lord Renton, I feel that there is a risk that we are extending this to such a point that we are avoiding bringing something to an end which should be brought to an end and justice would still be done.

Lord Donaldson of Lymington

My Lords, I very much hope that the noble Lord, Lord Mishcon, will withdraw this amendment, which I respectfully believe is wholly misconceived. Under the existing law the public law court, as we sometimes refer to the Crown Office list dealing with judicial review, is already subject, as has been mentioned, to the unique requirement that there must be leave before you can even begin the proceedings. It is also subject to another requirement which is almost unique; namely, that subject to extensions of time, the proceedings must be brought within three months of the complaint arising.

The reason for those two provisions were stated by Lord Diplock in O'Reilly v. Mackman when he said: The public interest in good administration requires that public authorities and third parties should not be kept in suspense as to the legal validity of a decision the authority has reached in purported exercise of decision-making powers for any longer period than is absolutely necessary in fairness to the person affected by the decision". It is the third parties who are affected by the decision, more than the authorities, with which I am concerned. You challenge a local authority or a national authority decision, as can be done. There is a superficial attractiveness to the challenge and leave is given. Then everything is if not at a standstill at any rate in doubt in the public administration. When the matter has been looked into by the judge following the giving of leave, one hopes that he will reach a clear decision one way or the other. If he does not reach a clear conclusion there will be no obstacle to the matter going to the Court of Appeal.

However, he reaches a conclusion knowing far more about the matter than was the position when leave was given, probably on an ex parte basis. That is the time at which the interests of third parties once again have to be taken into consideration. The Court of Appeal and the judge should have an opportunity of saying, "There really is nothing further to look into and nothing further to be considered. It is no longer right that that decision should continue to be under a cloud".

The noble Lord, Lord Renton, said that it was terribly important that the Court of Appeal should be able to develop the law of judicial review. He will not expect me to disagree with him about that. Indeed, that is one of the more enjoyable activities in the Court of Appeal. However, he seems to overlook the fact that if the rules committee so desires, the most that it can do is to say to the Court of Appeal, "Nobody shall come to you unless you want them to come to you". Therefore, I do not believe that development will be in the least stultified and I hope that this amendment will be withdrawn.

The Lord Chancellor

My Lords, as I made clear in Committee, the purpose of this clause is not to shut out people who have a case from the Court of Appeal, but in the interests of the court, in the interests of the administration of justice and also in the interests of litigants who have a hopeless case, the Court of Appeal should have the power to tell them that at an early stage. Accordingly, in my submission this amendment is not directed to securing justice but rather to doing harm to a general power which the rules committee should have on the lines of this clause.

I believe that your Lordships will accept the view that my noble and learned friend the Master of the Rolls, as president of the Civil Division of the Court of Appeal, would be most unlikely to wish to do anything which would restrict the power of that court to develop that every important remedy of judicial review which, as the noble Lord, Lord Mishcon, very correctly said, has been carefully developed by the courts over the years.

One of those who took a great part in that development was Lord Diplock. One of the factors about the jurisdiction of the court is that it has been developed with due regard to all the interests affected by the exercise of it. The interests of third parties are extremely important in that connection, as the quotation made by my noble and learned friend shows.

I should have thought that on this amendment the sentiments of my noble friend Lord Harmar-Nicholls were correct and that your Lordships should feel, while understanding perfectly that the noble Lord, Lord Mishcon, wished to distinguish between judicial review and other cases, that the power to the rules committee should be a general power. It will no doubt have regard to special considerations in its decision under this power.

Lord Hooson

My Lords, I agree with the noble and learned Lord, Lord Donaldson, on this point. My initial reaction was to be in favour of the amendment. However, when I look back at my experience of judical review, one often has leave from the original judge and finds that by the time one reaches the actual hearing circumstances have changed enormously because affidavits have been filed and what seemed prima facie to be a very good case is often found to be a non-reviewable case. The clients in such cases are often local committees which are raising money to try to prevent the closure of a hospital or a school or something along those lines. They feel very strongly about the point and feel, often correctly, that the merits are entirely with them.

However, a point has to be established at which it is possible to say that there has been bad administration and so on. There must be a reviewable point. It is often terribly difficult to explain that although the original judge had given leave, you cannot advise that the case should continue. Therefore, the filtering effect referred to by the noble Lord, Lord Mishcon, is not really a safeguard. I believe that it is in the interests of justice generally that if litigants wish to proceed further on a difficult and non-reviewable case, they should seek leave and there should be a further filter in the Court of Appeal.

Lord Mishcon

My Lords, perhaps I may give an example of when it is appropriate for leave to speak and leave to appeal should be heard. The noble Lord, Lord Hooson, ought to take note since at Report stage the debate closes except for the mover of the amendment. Nevertheless, the House was pleased to hear the application for leave to appeal by the noble Lord, Lord Hooson, even though it extended the length of the proceedings, if I may say so to the noble Lord, Lord Harmar-Nicholls.

I will not spend a lot of time on this amendment. The cause is a worthy one because this is such a special remedy. If I may say so, freedoms—and judicial review is a very precious one—are not embedded in the decisions of committees, even the sacrosanct committee which deals with rules of procedure. Freedoms are sacrosanct and, indeed, inscribed in our statutes and in our common law. I should have loved this freedom to appeal, without the need to ask for leave in the case of judicial review, to be embedded in statute even though the noble and learned Lord says that the things which I and other noble Lords have spoken about will be considered by the rules committee in due course.

I do not believe I have sufficient support in your Lordships' House to proceed further than to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Lord Chancellor moved Amendment No. 36: Page 8, line 14, after ("such") insert ("class of).

The noble and learned Lord said: My Lords, with Amendment No. 36 I should like also to speak to Amendments Nos. 38 and 39.

These amendments do two things. First, they fulfil the undertaking which I gave in Committee to make it clear on the face of the Bill that the Court of Appeal may always be petitioned for leave to appeal even where that leave can also be granted by the court of first instance. I regard this as being of great importance. However well intentioned, the court of first instance may not on occasion be able to be entirely disinterested in assessing its own decision, and it is right therefore that it should always be possible to seek leave from the Court of Appeal itself. This amendment assists in ensuring that Clause 7 is a measure not to restrict the right to have a case considered by the Court of Appeal, but simply a method of rendering the hearing more efficient by weeding out the obviously hopeless cases, both in the interests of the efficiency of justice for others and also in the interests of litigants who may be, however ill-advised, pursuing a hopeless case.

Secondly, the amendments effect a minor drafting change by referring to classes of cases rather than merely to cases. I beg to move.

On Question, amendment agreed to.

4.15 p.m.

Lord Ackner moved Amendment No. 37: Page 8, line 15, after first ("Court") insert ("not being a case where the liberty of the subject is concerned").

The noble and learned Lord said: My Lords, this is a very small amendment. It is holding on to a situation which has existed for many years; namely, that where the liberty of the subject is at issue leave to appeal is not required and the right to appeal is absent.

I do not wish to reiterate what was so movingly said by the noble Lord, Lord Mishcon, in his reply on judicial review. This is an a fortiori situation. Of course, the filter system —which is what is now being imposed —of requiring the leave of the tribunal or the Court of Appeal is a desirable one, but it is often open to consideration as to whether it is a fallible one. Where it makes an error in relation to the liberty of the subject then it is a disastrous error.

Judicial time must of course be spared whenever possible, but the courts are there to serve the public. An attempt in this clause is successfully being made to make justice less available, which is apparently contrary to the whole purpose of the Bill. It is justified in a manner which was spoken to by my noble and learned friend the Master of the Rolls on the last occasion and it has now been justified again. I do not think the justification is adequate where the liberty of the subject is concerned. I beg to move.

Lord Campbell of Alloway

My Lords, I support this amendment. I came into your Lordships' House specifically to do so. It is wholly right that the liberty of the subject should be safeguarded in this way. My hope is that my noble and learned friend the Lord Chancellor will take this one on board. I know that there is the argument that there is the rules committee, the Court of Appeal, the filter system and "We have no need to worry; everything will be all right". However, everything is not all right. Where the liberty of the subject is concerned it is not worth taking a risk.

Lord Hooson

My Lords, perhaps I may say that we certainly support this amendment and I need not add to the arguments advanced in its favour.

Lord Donaldson of Lymington

My Lords, I appear to be the odd man out. I do not oppose this amendment with any fervour, but I think it wants looking at. In the Court of Appeal we, the judges, attach the greatest possible importance to any appeal where the liberty of the subject is involved. For that reason there are standing instructions that they are to have almost absolute priority. By that I mean that if an appeal is entered this afternoon, the likelihood is that it will be heard at 10.30 tomorrow morning, even if other appeals have to be shifted to make that possible.

Against that background it might well be that the rules committee think that there is a special case and that leave to appeal should not be required. Certainly there is no administrative problem from our point of view because there are very few of these cases. Almost all of them relate to cases of contempt of court where sentences of imprisonment have been imposed by judges in the court below.

I bring to your Lordships' attention one point which would have to be taken into account by the rules committee if it were to contemplate refraining from making a rule requiring leave in these cases, and it is a point your Lordships should take into account. We are speaking here about the civil division of the Court of Appeal. Sitting next door, further up the corridor, is the criminal division of the Court of Appeal. If—perish the thought—any of your Lordships were sentenced to 14 years' imprisonment instead of three months or one month, which is what we are mostly concerned with, it would be found that there was no unfettered right of appeal to the Court of Appeal. Leave of the judge would have to be obtained. It may be that the criminal fraternity would find it a little surprising that there was such consternation in your Lordships' House at the suggestion that there should be any imposition of a screen in the way of appealing against short sentences when they have to go through the hoop if they want to appeal against a long sentence.

Lord Campbell of Alloway

My Lords—

Noble Lords

Order!

Lord Mishcon

My Lords, perhaps I may say with deep respect to the Master of the Rolls that I find it somewhat surprising to hear the comparison, or rather the similarity, argued between our civil courts with civil litigants and those who appear in our criminal courts. We are dealing with civil litigation where, for some reason, the liberty of the subject becomes involved. There ought to be, as we say in this amendment, automatic right of appeal where that liberty becomes involved in civil proceedings. I find myself in complete agreement with the noble and learned Lord, Lord Ackner. I only ask for the deletion of the words "a fortiori" when he compared his argument with mine.

The Lord Chancellor

My Lords, the provisions that we are discussing will enable the rules committee to make the detailed rules. I should have thought that that was the right course to take.

The point made by my noble and learned friend the Master of the Rolls of comparison between the civil division and the criminal division of the Court of Appeal strikes me as absolutely compelling. I cannot see how one can compare a necessity for leave from the criminal division of the Court of Appeal where one may be subjected to anything up to life imprisonment, and necessity for leave in the civil division where, in the nature of things, the infringement of individual liberty is often very small by comparison.

Where leave is required in the criminal division the person applying has the right to apply to the full court for leave. That would be an aspect of the rules that could be made here, distinguishing the case of liberty of the subject from other cases. So it is perfectly possible within the framework of the powers that are being provided under the Bill to deal with the matter; but one must keep a proper relativity in these matters. What possible justification can there be for requiring as an absolute rule that the Court of Appeal should as of right be available to someone in a civil case where the liberty of the subject was at issue, when the other part of the Court of Appeal —not necessarily equal in terms of numbers—that is the criminal division, operates under a system where leave is required whatever the sentence and however long the sentence that is involved may be? Of course the same applies to every aspect of the matter.

My noble and learned friend Lord Ackner said that the Court of Appeal is not infallible. All of us must accept that no human court is infallible but, as my noble friend Lord Harmar-Nicholls said, there has to come a time for determination of such matters. I should have thought it right to leave this as a matter for the rules committee to deal with. Where the liberty of the subject is concerned they might perfectly appropriately think that the rule should be especial in some way; for example, on the lines that I have just indicated. But I do not believe it would be right to exclude altogether the power of the rules committee to make a rule requiring leave to be obtained where the liberty of the subject is concerned in a civil appeal.

Lord Renton

My Lords, before my noble and learned friend sits down, I wonder whether, arising out of what he wisely said about the difference in general between civil and criminal cases, he would not consider that where habeas corpus is concerned some special rule might be feasible?

The Lord Chancellor

My Lords., yes, that is precisely what I said. The rules committee may well think it right to make a special rule in that connection. All we are doing is giving the rules committee power to deal with this. I do not wish to elaborate the argument because I know we want to get on —and I am very much in favour of that —but the situation is that as we have seen already, and as my noble and learned friend the Master of the Rolls pointed out when this clause was discussed in Committee, if too much rigidity is imposed on the rules committee anomalies are apt to develop which cannot be put right unless there is further primary legislation. This is a matter essentially to be dealt with by rule. Accordingly, I would ask your Lordships not to accept the amendment. I hope that my noble and learned friend Lord Ackner will feel able to withdraw it.

Lord Ackner

My Lords, I shall not press this to Division. However, I think that the analogy with the criminal situation is a false one. If it were not a false one, it is remarkable that this particular provision in an Act of Parliament has existed for so many years in one form or another. It is a false analogy for the following reason. When it is a question of sentences there are tariffs. It is not difficult to see whether a sentence is way outside the tariff or reasonably within it. When there is a point of law, however dud the point of law may seem, there is an absolute right of appeal in all criminal cases.

What I face inevitably, as one always does with this sort of situation, is the open and shut argument. I reject it in the same way as Mr. Justice Megarry did. I quoted him recently, but he is worth quoting again. He said, in the case of John v Rees in 1965: As anyone who has anything to do with the law well knows, the path of the Law is strewn with examples of open and shut cases which somehow were not, of unanswerable charges which in the event were completely answered, of inexplicable conduct which was fully explained, of fixed and unalterable determinations that by discussions suffered change".

The Lord Chancellor

My Lords, is my noble and learned friend withdrawing the amendment?

Lord Ackner

My Lords, I am withdrawing it.

The Lord Chancellor

My Lords, is it your Lordships' pleasure that the amendment be withdrawn?

Lord Mishcon

My Lords, no.

4.27 p.m.

On Question, Whether the said amendment (No. 37) shall be agreed to?

Their Lordships divided: Contents, 96; Not-Contents, 133.

DIVISION NO. 1
CONTENTS
Ackner, L. [Teller.]	Cledwyn of Penrhos, L.
Addington, L.	Cocks of Hartcliffe, L.
Airedale, L.	Cross, V.
Alexander of Weedon, L.	David, B.
Amherst, E.	Dean of Beswick, L.
Ardwick, L.	Dormand of Easington, L.
Attlee, E.	Ennals, L.
Aylestone, L.	Evans of Claughton, L.
Beloff, L.	Ezra, L.
Birk, B.	Fisher of Rednal, B.
Blackstone, B.	Gallacher, L.
Broadbridge, L.	Gladwyn, L.
Brooks of Tremorfa, L.	Graham of Edmonton, L.
Bruce of Donington, L.	Greenway, L.
Buckmaster, V.	Grey, E.
Byron, L.	Hacking, L.
Callaghan of Cardiff, L.	Halsbury, E.
Campbell of Alloway, L. [Teller.]	Hampton, L.
	Hatch of Lusby, L.
Carmichael of Kelvingrove, L.	Hirshfield, L.
	Hooson, L.
Chorley, L.	Houghton of Sowerby, L.

Howie of Troon, L.	Ponsonby of Shulbrede, L.
Hughes, L.	Prys-Davies, L.
Hunt, L.	Rathcreedan, L.
Hutchinson of Lullington, L.	Renton, L.
Irvine of Lairg, L.	Rippon of Hexham, L.
Jeger, B.	Ritchie of Dundee, L.
Jenkins of Putney, L.	Robson of Kiddington, B.
John-Mackie, L.	Sainsbury, L.
Kinloss, Ly.	Saltoun of Abernethy, Ly.
Lawrence, L.	Seear, B.
Leatherland, L.	Selkirk, E.
Lloyd of Kilgerran, L.	Shackleton, L.
Lockwood, B.	Stedman, B.
Longford, E.	Stoddart of Swindon, L.
Lovell-Davis, L.	Strabolgi, L.
Macaulay of Bragar, L.	Taylor of Blackburn, L.
Mackie of Benshie, L.	Templeman, L.
Mishcon, L.	Thomson of Monifieth, L.
Molloy, L.	Turner of Camden, B.
Monson, L.	Wallace of Coslany, L.
Nicol, B.	White, B.
Norrie, L.	Wilberforce, L.
Oliver of Aylmerton, L	Williams of Elvel, L.
Parry, L.	Willis, L.
Peston, L.	Winstanley, L.
Phillips, B.	Winterbottom, L.
Pitt of Hampstead, L.	Wrenbury, L.

NOT-CONTENTS
Airey of Abingdon, B.	Hailsham of Saint
Alexander of Tunis, E.	Marylebone, L.
Allen of Abbeydale, L.	Hanworth, V.
Allenby of Megiddo, V.	Harmar-Nicholls, L.
Allerton, L.	Havers, L.
Alport, L.	Hayter, L.
Ampthill, L.	Henley, L.
Annaly, L.	Hesketh, L.
Arran, E.	Hives, L.
Auckland, L.	Holderness, L.
Balfour, E.	Home of the Hirsel, L
Bauer, L.	Hood, V.
Belhaven and Stenton, L.	Hooper, B.
Belstead, L.	Hylton-Foster, B.
Bessborough, E.	Ironside, L.
Birdwood, L.	Jenkin of Roding, L.
Blatch, B.	Johnston of Rockport, L.
Bledisloe, V.	Joseph, L.
Blyth, L.	Kaberry of Adel, L.
Boardman, L.	Killearn, L.
Borthwick, L.	Kitchener, E.
Boyd-Carpenter, L.	Knollys, V.
Brookeborough, V.	Knutsford, V.
Brougham and Vaux, L.	Lauderdale, E.
Caithness, E.	Lloyd of Hampstead, L.
Campbell of Croy, L.	Long, V.
Carnegy of Lour, B.	Lucas of Chilworth, L.
Carnock, L.	Lyell, L.
Colnbrook, L.	McColl of Dulwich, L.
Cottesloe, L.	Mackay of Clashfern, L.
Cox, B.	Macleod of Borve, B.
Cullen of Asbbourne, L.	Manton, L.
Davidson, V. [Teller.]	Marshall of Leeds, L.
Denham, L. [Teller.]	Massereene and Ferrard, V.
Donaldson of Lymington, L.	Melville, V.
Dundee, E.	Merrivale, L.
Eden of Winton, L.	Mersey, V.
Elibank, L.	Middleton, L.
Elliot of Harwood, B.	Milverton, L.
Elliott of Morpeth, L.	Montagu of Beaulieu, L.
Erne, E.	Morris, L.
Erroll of Hale, L.	Mountevans, L.
Fanshawe of Richmond, L.	Mowbray and Stourton, L.
Foot, L.	Moyne, L.
Fortescue, E.	Munster, E.
Fraser of Carmyllie, L.	Murton of Lindisfarne, L.
Fraser of Kilmorack, L.	Newall, L.
Gainford, L.	Nugent of Guildford, L.
Gisborough, L.	Orkney, E.
Goodman, L.	Pender, L.
Goold, L.	Pennock, L.
Grimston of Westbury, L.	Peyton of Yeovil, L.

Platt of Writtle, B.	Strathmore and Kinghorne, E.
Polwarth, L.
Pym, L.	Strathspey, L.
Rankeillour, L.	Sudeley, L.
Reay, L.	Suffield, L.
Renwick, L.	Swansea, L.
Rochdale, V.	Swinton, E.
Rodney, L.	Teviot, L.
Roskill, L.	Thomas of Gwydir, L.
St. Davids, V.	Trumpington, B.
Sanderson of Bowden, L.	Tryon, L.
Seebohm, L.	Ullswater, V.
Shannon, E.	Vaux of Harrowden, L.
Skelmersdale, L.	Wise, L.
Stodart of Leaston, L.	Wynford, L.
Strange, B.

Resolved in the negative, and amendment disagreed to accordingly.

4.35p.m.

The Lord Chancellor moved Amendments Nos. 38 and 39: Page 8, line 16, after ("of) insert ("the Court of Appeal or"). Page 8, line 17, leave out ("case") and insert ("class").

The noble and learned Lord said: My Lords, I spoke to Amendments Nos. 38 and 39 with Amendment No. 36. With your Lordships' leave I shall move them en bloc. I beg to move.

On Question, amendments agreed to.

[Amendment No. 40 not moved.]

The Lord Chancellor moved Amendment No. 41: Page 8, line 17, at end insert — (" (4) In section 54 (4) of the Act of 1981 (cases in which court is duly constituted when consisting of two judges), the following paragraph shall be inserted after paragraph (a) — (aa) hearing and determining any application for leave to appeal; ".").

The noble and learned Lord said: My Lords, in response to a suggestion made by my noble and learned friend the Master of the Rolls in Committee, I agreed to consider whether it would be appropriate in certain circumstances to allow two judges to hear applications for leave to appeal. I agree that it will be helpful for judges faced with a particularly difficult decision to be able to sit with one other colleague; at present they have to choose between sitting as a full court of three or hearing the application alone. I therefore commend the amendment, which would permit two judges to hear applications for leave.

That does not mean that two judges only can hear applications for leave; it means that the choice is left open to the rules committee of allowing one or two judges or the full court. I beg to move.

Lord Donaldson of Lymington

My Lords, I welcome the amendment. I question whether there was a slip of the tongue when there was a mention of the rules committee. Is this not a primary power?

The Lord Chancellor

My Lords, indeed it is, but the whole clause is governed by the powers of the rules committee.

On Question, amendment agreed to.

[Amendment No. 42 not moved.)

The Lord Chancellor moved Amendment No. 43: After Clause 7, insert the following new clause: ("Powers of Court of Appeal to award damages 7A.—(1) In this section "case" means any case where the Court of Appeal has power to order a new trial on the ground that damages awarded by a jury are excessive or inadequate. (2) Rules of court may provide for the Court of Appeal in such classes of case as may be specified in the rules, to have power, in place of ordering a new trial, to substitute for the sum awarded by the jury such sum as appears to the court to be proper. (3) This section is not to be read as prejudicing in any way any other power to make rules of court.").

The noble and learned Lord said: My Lords, the amendment adds a new clause which enables the Supreme Court Rules Committee to extend the powers exercisable by the Court of Appeal when the court allows appeals against awards of damages made by juries. In cases where the court has power to order a new trial, on the ground that the jury award was excessive or inadequate, the court may be empowered to substitute its own award, which it cannot now do unless all the parties agree.

The problem caused to litigants by the Court of Appeal not having power to revise the amount of damages which should be paid has been recognised for many years. It was recognised by the Porter Committee on the law of defamation, whose report was presented to Parliament as long ago as 1948, and by the Faulks Committee on defamation whose report was presented in 1975. Both those committees recommended an extension of the powers of the Court of Appeal.

The amendment would allow the Supreme Court Rules Committee, to make new rules providing for the Court of Appeal to have that further power when it is setting aside an award made by a jury. It will be for that committee to decide in which class or classes of case the court should have that power.

The clause has been drafted so that the power could be made exercisable, not only in defamation actions, but also in other classes of case. The great majority of civil cases which are heard with a jury are those in which libel or slander has been alleged. In most defamation cases a party has a statutory right to have the action tried with a jury. The statutory right applies also to some other kinds of actions; in particular, those involving claims of malicious prosecution or false imprisonment. The court also has a discretion, not often exercised, to order trial by jury in any other kind of action. The amendment will enable the rules committee to decide in which of those cases the power should be exercisable.

The power is a useful addition to the powers available to the Court of Appeal. I do not believe that I can be accused of coming forward with the amendment too soon, seeing that it was first suggested in 1948. That suggestion was reinforced in 1975. Both those committees suggested a rather wider formulation than this rule. It is within the recommendation but it does not go quite so far. On the other hand, it may be wise to allow the juries to fix damages in the first place. The difficulty of the previous formulations was to see on what grounds it would be right to allow the Court of Appeal to interfere in a jury's verdict. That is not being touched by the amendment. It deals only with the consequences of the Court of Appeal coming to that conclusion. I believe that it is a useful although not a major change in the law. I beg to move.

Lord Simon of Glaisdale had given notice of his intention to move, as an amendment to Amendment No. 43, Amendment No. 44: Line 9, leave out subsection (3).

The noble and learned Lord said: My Lords, I welcome Amendment No. 43. Amendment No. 44 is part of the series to remove unnecessary words from the statute book—indeed in this case, as in a clause which we have just passed, in my respectful submission, absurd words. Presumably my noble and learned friend does not agree. I know that he does not agree in respect of the earlier case.

Noble Lords will probably think that it is not an issue which can be profitably pursued on the Floor of the House and decided by a majority. My noble and learned friend has been good enough to say that he will discuss all these matters with me between Report and Third Reading, when we hope that there will be an opportunity. In those circumstances, I do not propose to move the amendment.

[Amendment No. 44 to the amendment not moved.]

Lord Mishcon

My Lords, the whole of the legal profession has read with considerable interest a recent press statement that came from the noble and learned Lord's department in regard to a recommendation that the Court of Appeal, in regard to defamation damages, should have the right and power to review, as against ordering a new trial, unless the parties consented to the jurisdiction. I can only tell the noble and learned Lord that among those practitioners with whom I have mixed his statement has been welcomed.

Lord Renton

My Lords, it is a wise and timely initiative on the part of my noble and learned friend. I gladly support it.

The Lord Chancellor

My Lords, I am very grateful for the way in which Amendment No. 43 has been received. The press statement was based on an answer given in this House.

On Question, amendment agreed to.

Clause 8 [Representation in small claims and certain other cases]:

The Lord Chancellor moved Amendment No. 45: Page 8, line 19, leave out ("at any time direct") and insert ("by order provide").

The noble and learned Lord said: My Lords, with Amendment No. 45 I should like to speak to Amendments Nos. 47, 48, 51 to 53, and 55. In response to a speech by the noble Lord, Lord Mishcon, in Committee, I agreed to consider the use of a statutory instrument in Clause 8 rather than directions. Directions were the method available under previous legislation. Having done so, I can say that I have no objection to such a course if your Lordships consider it appropriate. I am therefore bringing forward these amendments to convert Clause 8 from a power to make directions into a power to make orders. I believe that it may also give if some additional flexibility. I beg to move.

Lord Mishcon

My Lords, once more I am deeply grateful to the noble and learned Lord.

On Question, amendment agreed to.

The Lord Chancellor moved Amendment No. 46: Page 8, line 21, after ("proceedings") insert ("in a county court").

The noble and learned Lord said: My Lords, with Amendment No. 46 I shall speak to Amendment No. 49. There was some confusion in Committee whether Clause 8 could apply to proceedings other than those in county courts of the kind specified in subsection (2). If there is any ambiguity here I wish to remove it. My intention is that the power given in Clause 8 should be restricted to specified proceedings in the county courts. These amendments are designed to make that clear. I beg to move.

Lord Mishcon

My Lords, indeed, this need for clarification was made clear at Committee. The noble and learned Lord has been gracious in seeing that that is the situation. We are grateful to him for the clarification now in the Bill.

On Question, amendment agreed to.

The Lord Chancellor moved Amendments Nos. 47 to 49: Page 8, line 22, leave out ("direction") and insert ("order"). Page 8, line 23, leave out ("give a direction") and insert ("make an order"). Page 8, line 24, leave out ("in county courts").

The noble and learned Lord said: My Lords, I have spoken to Amendments Nos. 47 and 48 with Amendment No. 45, and Amendment No. 49 with Amendment No. 46. With your Lordships' leave, I propose to move them en bloc.

On Question, amendments agreed to.

The Lord Chancellor moved Amendment No. 50: Page 8, line 26, at end insert— (" (aa) for the enforcement of any judgment or order of any court or the recovery of any sum due under any such judgment or order; (ab) on any application under the Consumer Credit Act 1974; ").

The noble and learned Lord said: My Lords, I undertook in Committee to consider further the amendment moved by the noble Lord, Lord Allen of Abbeydale, to add to the categories of cases listed in Clause 8 (2) —that is, those where there may be no restriction on rights of audience in the county courts. Having done so, I am in agreement with him that it would be appropriate for the powers to remove the restriction on rights of audience to extend to enforcement proceedings and matters arising under the Consumer Credit Act. These categories will include proceedings of the minor and domestic nature in which Recommendation 48 of the Civil Justice Review intended members of the public to have complete freedom in their choice of representative. I also agree that they would not be covered by the existing list in subsection (2). I beg to move.

Lord Mishcon

My Lords, we believe that this is a completely correct amendment.

On Question, amendment agreed to.

The Lord Chancellor moved Amendments Nos. 51 to 53: Page 8, line 31, leave out ("a direction is given") and insert ("an order is made"). Page 8, line 39, leave out ("direction") and insert ("order"). Page 8, line 41, leave out ("a direction") and insert ("an order").

The noble and learned Lord said: My Lords, I have spoken to Amendments Nos. 51 to 53 with Amendment No. 45. With your Lordships' leave I propose to put them en bloc. I beg to move.

On Question, amendments agreed to.

The Lord Chancellor moved Amendment No. 54: Page 8, line 45, at end insert — ("5A) Before making any order under this section the Lord Chancellor shall consult the Senior Presiding Judge.").

The noble and learned Lord said: My Lords, when we discussed this clause in Committee, my noble and learned friend Lord Ackner suggested that it might be appropriate for the Senior Presiding Judge to be consulted before any direction under the clause was made. This clause is concerned with removing all restrictions on rights of audience for certain specified proceedings in the county courts. My noble and learned friend pointed out—and I cannot do better than quote his words—that the Senior Presiding Judge is the conduit pipe for consultation here, as he is the person who has at his finger tips the respective knowledge from the circuits. I entirely agree that it is wise to recognise the importance of consulting the Senior Presiding Judge in the statute and that is what the amendment does.

I should make it clear that I always had the intention that he should be consulted, but I think that it is right in the circumstances of this clause that that should be put in. I beg to move.

On Question, amendment agreed to.

The Lord Chancellor moved Amendment No. 55: Page 9, line 3, leave out subsection (7).

The noble and learned Lord said: My Lords, I have spoken to this amendment with Amendment No. 45. I beg to move.

On Question, amendment agreed to.

Clause 9 [Penalty for failure to warn that hearing will not be attended]:

The Lord Chancellor moved Amendment No. 56: Page 9, line 21, at end insert — (" (4A) Before deciding whether or not to impose any such penalty, the court shall consider the extent to which (if any) the person concerned will, or is likely to —

1. (a) suffer any financial loss (by way of a reduction of costs or otherwise); or
2. (b) be subject to any disciplinary action, as a result of his failure.").

The noble and learned Lord said: My Lords, when we discussed Clause 9 in Committee, I made it clear that I regarded the power in Clause 9 to impose a penalty where a party to proceedings fails to give any warning that a hearing will not be attended as being an important measure in implementing court control. The Civil Justice Review suggested that this was necessary if civil cases were to proceed at a reasonable rate. But I also emphasised that while I regarded this as a proper power for the courts to have, I intended that it should be used very sparingly.

Many of your Lordships raised points on this clause in the debate. I have in mind in particular the arguments put forward by the noble Lord, Lord Meston, in support of his amendment. My noble and learned friend Lord Wilberforce, my noble friend Lord Coleraine, and others, also contributed to the debate. In the light of the arguments put forward I am persuaded that it is appropriate to clarify the inter-relation between this clause and orders for costs and professional disciplinary action.

Neither an order for costs to compensate a party which turned up in anticipation of a hearing, nor disciplinary action by the professional body of which the legal representative is a member, will always be satisfactory alternatives to a penalty under Clause 9. However, there may be occasions when the question of compensating public funds does not arise. Therefore, I think that it is right to put at the forefront of Clause 9 the considerations mentioned in this amendment. I beg to move.

Lord Wilberforce

My Lords, as my noble and learned friend said, this matter was discussed in Committee. I opposed the inclusion of this clause, with some support from the Benches opposite, on the grounds that it is really for the court to organise its business and to ascertain whether people will attend. It is really quite inappropriate to erect a heavy-handed structure of administration of fines, hearings, enforcements and so on in a civil case.

However, had I realised that I would be able to attend here today I think that I would still have proposed the elimination of this clause. It will save some 30 lines in the statute book. Nevertheless, the noble and learned Lord has offered a crumb of comfort by way of Amendment No. 56 and a still smaller crumb by way of Amendment No. 57. Therefore, as I have not tabled an amendment, I think that it would right for me to accept his crumb without feeling at all comforted by it. However, I do so reluctantly.

Lord Mishcon

My Lords, I am instructed that the Law Society regards this as a crust of comfort rather than a crumb.

Lord Coleraine

My Lords, I should like to reinforce what the noble and learned Lord, Lord Wilberforce, said. I should certainly have liked to see this clause removed from the Bill. However, I am sorry to say that I feel I have to disagree with the noble Lord, Lord Mishcon, and the views expressed by the Law Society, as I regard this concession as a crumb. But, nevertheless, a crumb is better than no bread.

The Lord Chancellor

My Lords, I must gratefully accept the views which have been expressed. I therefore hope that your Lordships will agree to the insertion of this amendment.

On Question, amendment agreed to.

The Lord Chancellor moved Amendment No. 57: Page 9, line 22, leave out subsection (5).

The noble and learned Lord said: My Lords, this is an amendment which gives effect to a powerful speech made by my noble and learned friend Lord Simon of Glaisdale. He referred to this as a particularly heinous clause. Having reconsidered the matter, I propose that the clause be deleted. I hope therefore that your Lordships will accept the amendment. I beg to move.

Lord Simon of Glaisdale

My Lords, I am grateful to my noble and learned friend.

On Question, amendment agreed to.

Clause 10 [Administration orders]:

The Lord Chancellor moved Amendment No. 58: Page 10, line 20, leave out subsection (2) and insert — (" (2) Where an order restricting enforcement is made, no creditor specified in the order shall have any remedy against the person or property of the debtor in respect of any debt so specified, without the leave of the court.").

The noble and learned Lord said: My Lords, this amendment is purely a drafting change aimed at improving subsection (2) of the new Section 112A of the County Courts Act 1984 and making its intention clearer. I beg to move.

On Question, amendment agreed to.

Lord Simon of Glaisdale had given notice of his intention to move Amendment No. 59: Page 10, line 38, after ("satisfied") insert ("that").

The noble and learned Lord said: My Lords, this amendment is grouped with Amendments Nos. 60 and 62. They are very obvious amendments, but unless my noble and learned friend indicates that he is prepared to accept them without question, it would be better, and consistent with what I have done thus far, if I were not to move them.

The Lord Chancellor

My Lords, before my noble and learned friend sits down, I should say that I would be most happy to discuss the matter with him as part of the general discussion and to put the points he raised to parliamentary counsel for advice. Therefore it would be consistent if my noble and learned friend did not move the amendments.

[Amendment No. 59 not moved.]

[Amendment No. 60 not moved.]

The Lord Chancellor moved Amendment No. 61: Page 10, line 40, leave out ("but") and insert ("and").

The noble and learned Lord said: My Lords, in moving this amendment, I should like to speak also to Amendments Nos. 63 to 68. The amendments effect a change of form rather than of substance. They provide for the incorporation of composition provisions—whereby the total debt made the subject of court administration is reduced—into administration orders, rather than being, as presently drafted, an alternative form of order. It is intended to make clear that this provision will operate in entirely the same way as administration orders do at present. The statutory reference is important in order to emphasise the existing power to reduce the total debt contained in Section 112 (6) of the County Courts Act 1984. That follows the recommendation of the Civil Justice Review at paragraph 645. I beg to move.

On Question, amendment agreed to.

[Amendment No. 62 not moved.]

The Lord Chancellor moved Amendments Nos. 63 to 68: Page 10, line 41, leave out ("a composition order") and insert ("the addition of a composition provision"). Page 10, line 43, leave out from ("make") to end of line 44 and insert ("an administration order subject to such a provision."). Page 11, line 2, leave out from ("force") to end of line 3. Page 11, line 8, leave out ("make a composition") and insert ("add a composition provision to that"). Page 11, line 9, leave out ("order") and insert ("provision"). Page 11, line 16, leave out ("order") and insert ("provision. (5) Where a composition provision is added to an administration order after the order is made, section 113 (a) shall apply as if the addition of the composition provision amounted to the making of a new administration order.").

The noble and learned Lord said: My Lords, I spoke to these amendments when moving Amendment No. 61. Therefore, with your Lordships' leave, I propose to move these amendments together. I beg to move.

On Question, amendments agreed to. Clause 11 [Assessors]:

Lord Simon of Glaisdale had given notice of his intention to move Amendment No. 69: Page 11, line 40, leave out ("with the consent of the Treasury").

The noble and learned Lord said: My Lords, the subject of this amendment is an old favourite. However, there will be later opportunities to discuss the matter. Therefore, under those circumstances, I do not propose to move the amendment.

[Amendment No. 69 not moved.]

Clause 12 [Goods which may be seized in execution]:

The Lord Chancellor moved Amendment No. 70: Page 12, line 1, after ("12.") insert — ("—(1) In section 138 of the Supreme Court Act 1981 (effect of writs of execution against goods), the following subsection shall be inserted after subsection (3) — (3A) Every sheriff or officer executing any writ of execution issued from the High Court against the goods of any person may by virtue of it seize any of that person's goods except —

1. (a) such tools, books, vehicles and other items of equipment as are necessary to that person for use personally by him in his employment, business or vocation;
2. (b) such clothing, bedding, furniture, household equipment and provisions as are necessary for satisfying the basic domestic needs of that person and his family."

(2) ").

The noble and learned Lord said: My Lords, in the course of public discussion on this Bill it has been suggested to me that while updating the lists of goods exempt from execution in the county courts we should do the same for the High Court. That seems to me to be desirable and it is the purpose of the amendment. I beg to move.

On Question, amendment agreed to.

5 p.m.

Lord Mishcon moved Amendment No. 71: After Clause 13, insert the following new clause: ("Promoting efficiency of courts .—(1) In discharging his functions under the Courts Act 1971, the Lord Chancellor shall ensure that reasonable standards are set for the unified administrative courts service with a view to promoting efficiency and avoiding delays in the work of the Supreme Court and county courts. (2) The standards referred to in subsection (1) are standards of performance and service including targets for the time within which any functions or duties will be discharged. (3) The Lord Chancellor shall set the standards after consultation with the Law Society, the General Council of the Bar and such organisations representing the interests of consumers as he thinks fit. (4) The Lord Chancellor shall lay an Annual Report before Parliament on the work of the court service which shall describe the standards which have been set, and the performance which has been achieved towards meeting them.").

The noble Lord said: My Lords, amid the rush which has occurred so extraordinarily at Report stage—that is, as distinct from that which occurred in Committee—perhaps your Lordships will pause for a moment and consider what I believe to be a rather important amendment. However, that does not mean that I intend to make a long speech. But, nevertheless, I want your Lordships to appreciate what is intended by the amendment. It is raised against the background of the whole of the object of Part I of the Bill.

Those of us who approved the intention and general principle of the Bill, which is to speed up justice and make it more economical and accessible to all our citizens, regardless of their means, have been very concerned about this—and, that obviously includes the noble and learned Lord the Lord Chancellor—and have realised that to legislate is one matter but to carry out practical provisions is another. Our concern is derived from our own knowledge—that is, those of us who practise the law in the courts of this realm —of the very sorry state which exists in many parts of the country in regard to the county courts.

Your Lordships will remember that Part I of the Bill achieves that very desirable principle by transferring to the county court jurisdiction which formerly belonged to the High Court. The hope is expressed —and, I underline the word "hope" —that the county courts, among other courts in our realm, will be able to deal efficiently and economically with a large burden of litigation which they previously did not have. Many of us were conscious of the Bill, now the Children Act, that was piloted through this House with such ability by the noble and learned Lord. That too cast upon the county courts very serious and important powers and jurisdictions.

So we come to the position where this Bill may shortly leave your Lordships' House. The concern has been expressed, "Will the county courts be able to do all this? Will the standards be maintained? Will there be a duty upon the noble and learned Lord the Lord Chancellor, whoever he may be? Will there be a duty cast upon others who have to supply the money for all this to see to it that standards are maintained?" If this is not done, I say with every sense of responsibility to your Lordships, that we shall not have done our duty. We shall have passed a measure which does not stand a chance of achieving its high aims.

What does the amendment say? I ask for your Lordships' patience while I deal with the four separate paragraphs in the amendment. The first subsection says: the Lord Chancellor shall ensure that reasonable standards are set for the unified administrative courts service with a view to promoting efficiency and avoiding delays in the work of the Supreme Court and county courts".

I have mentioned the Supreme Court. I wish to take this opportunity of apologising to your Lordships for a remark that I made at the Committee stage in regard to the delays in the hearing of cases which were occurring in the High Court. I quoted a serious case in which I said that even though the action had just been set down, it was not possible to have a hearing date before the middle of 1992. That information had been given to me and I thought that it was completely reliable. The person who gave it to me had made a mistake. It was mid-1991, not mid-1992.

I have taken the opportunity to write to those who participated in the debate in which I made that remark, to put my error right. I thought it only proper, even though I have said, and I believe that your Lordships agree, that mid-1991 is not an acceptable date in the circumstances. Nevertheless, we are all interested in seeing that the statements which we make in the House are accurate and that nobody is misled by them. I take this opportunity to put the record right.

I turn to subsection (2): The standards referred to in subsection (1) are standards of performance and service including targets for the time within which any functions or duties will be discouraged".

That subsection is there to meet the criticism that might arise if one merely read general words in an amendment which dealt with standards. The question would arise, "What standards are you talking about? Define your standards. Then we shall know where you are and we shall know what to do when we either agree or disagree with the amendment". I have tried to meet that criticism in subsection (2):

The third subsection says: The Lord Chancellor shall set the standards after consultation —

I should have thought that this could not be objectionable— with the Law Society, the General Council of the Bar and such organisations representing the interests of consumers as he thinks fit".

We have been emphasising throughout our debates that the legal profession has a duty to look after the members of the public; the judges and the courts exist for the benefit of the public. It is the consumer, the client who has to be taken very much into account. That interest is protected under subsection (3).

We now come to subsection (4). I am sure that I echo the views of the representatives of the Bar, the Law Society, the Consumers' Association and the National Consumer Council. They attended on the noble and learned Lord the Lord Chancellor, by invitation, only last week in order to discuss this and other clauses which have been mentioned. The noble and learned Lord could not have been more courteous and helpful. However, I believe that I am right in saying that he took the view that he was helping towards the objective of such an amendment by agreeing that there should be an annual report. He felt that that was a good idea. It would be made and then considered by Parliament. It was his view that that went far enough to meet the matters that are part and parcel of the amendment.

We are grateful for his agreement to the annual report provision. It was a separate amendment moved at Committee stage, and the noble and learned Lord was good enough to say that he would put it into the Bill. Indeed, he did so, as we noticed earlier in the proceedings today. The place where this provision ought to be inserted is where we put it in subsection (4), in my respectful submission. The amendment says: The Lord Chancellor shall lay an Annual Report before Parliament on the work of the court service which shall describe the standards which have been set, and the performance which has been achieved towards meeting them".

So we have the annual report in this context; we have a duty to maintain standards. If that is in the Bill, then we know that Part I is not just an ephemeral dream which has such worthy targets and objects, but which is not likely to be achieved unless the standards that we have mentioned in the amendment are maintained.

My last observation is that it may be asked, "Is this really necessary? Can you imagine that the noble and learned Lord the Lord Chancellor, now sitting on the Woolsack, or any successor of his sitting on the Woolsack, would not have these standards well in mind?" We are all cognisant that even with the high position of the Lord Chancellor, when the queue assembles before the Treasury door it is not always the courts of justice and the administration of justice that are asked to take the first place in the queue. If there is a statutory duty, the Lord Chancellor, present and future, will have the right to say to the Treasury: "I hold this high position; I have this statutory duty in regard to the standards of the courts. I, or my predecessor, took a Bill through Parliament in many ways revolutionising the jurisdiction of various courts, in an effort to make justice more efficient and economical. I did it because I said to Parliament that standards would be achieved. But now I come to you with a statutory duty in regard to those standards. I claim if not to be the first in the queue —" this can be the remark to the Treasury—"at least to have a higher position in the queue than I would otherwise have". I beg to move.

Lord Hacking

My Lords, I too was part of the delegation that the noble and learned Lord so courteously saw last week. I hope that he will judge that my intervention in support of this amendment shows no lack of gratitude for, first of all, his courtesy in having such a full discussion with us and, secondly, his willingness to table his Amendment No. 16.

What we are seeking to achieve is a mechanism under which the resource—that is, the number and quality of staff and other such matters —meets the needs of the court user. We are seeking more precisely a mechanism under which payments by the court user—that is to say the income of the court —are used not as money going off the Consolidated Fund but in order to fund the court's resources. Therefore, when the court needs more resources it can increase as necessary its fee income.

In considering resources we are not only concerned with clerical work and the processing of proceedings, important though that is, but we are also attempting to deal with the question of whether there are sufficient conference facilities for private consultations in the court complex and whether there are adequate services and facilities for the judges as regards the typing of judgments. We are also concerned with the availability of law reports and textbooks. We are even seeking to tackle the matter of whether the waiting rooms are clean and pleasant and whether there are sufficient telephone facilities.

In order to achieve all of that with the unhappy background that your Lordships are wholly familiar with we argue that more needs to be provided than the annual report proposed by the noble and learned Lord. That is why I support the noble Lord, Lord Mishcon, in saying that the annual report does not deal with the statutory obligation which we wish to put in place to help the noble and learned Lord in his consultations with his colleagues. Our provision would enable him to tell his ministerial colleagues that he is under a statutory duty and that is the reason why he needs additional funds.

We believe that the other lacuna in the amendment of the noble and learned Lord is that there is no mechanism for a consultation process between the providers of the court services and the users of them. The users' committees in the High Court, the Commercial Court Committee and the Official Referees Court have been particularly successful in providing a contact point between the providers and the users of services to the public benefit. That is why I still hope that the noble and learned Lord can be persuaded that these amendments have been tabled to assist him. It would be helpful if he would consider these matters a little further.

5.15 p.m.

Lord Boyd-Carpenter

My Lords, this amendment deals with an important matter but it raises two separate or, it seems to me, separable issues. The first issue is the present state and condition of much of our legal system and particularly the state of the county courts. Your Lordships will recall that at earlier stages of the Bill we heard dramatic, perhaps slightly overdramatic, accounts of the disorder, disrepair and general mess and muddle in which the county court system finds itself. Certainly if what was then said by some noble and learned Lords is borne out in fact it is a highly disturbing picture. I hope that my noble and learned friend the Lord Chancellor will take advantage of the opportunity which the discussion on this amendment gives him to say how he views the present condition particularly of the county courts and particularly with reference to the major proposal in the Bill for the transfer to them of further business and of their ability to cope with that further business if it is so transferred. I hope my noble and learned friend will be able to say something about that.

The second, different issue is the attempt to enshrine the standards that are sought in fairly strict statutory provisions. The noble Lord who has just resumed his seat openly admitted that one of the reasons for the amendment was the desire to ensure that some priority in public expenditure was given to the legal system by statute over other necessary provisions made by the state. I think that is a rather dangerous line to follow. It must be the case that when the finances of the year are looked at by those responsible in the Government they must have a considerable measure of freedom to decide which in the circumstances of that time are the most crying and important demands. There have, for example, been times in our history when it has been perfectly obvious that the calls of defence were far more important from the national point of view than any other. There have also been times when social security and the relief of poverty has seemed, at any rate to many of us, to have a priority claim.

The attempt therefore to entrench one form of government activity, however important, behind statutory defences and to give it in that way priority for all time over other claims on the national purse seems to me to be dangerous. Moreover, that goes beyond the normal way in which our system operates. It is obvious, particularly in the light of this important Bill being carried into law as I hope and believe it soon will be, that the noble and learned Lord the Lord Chancellor will be answerable to this House and to public opinion for the effectiveness of the operation of the Bill and therefore for the capability of the legal system to implement it. He will have to answer questions from any of your Lordships on any day. He has a responsibility as a very senior Minister of the Crown to answer to Parliament for the working of the activities for which he holds responsibility. That seems to me the right way for your Lordships to secure that high standards are maintained. The erection of an elaborate statutory mechanism either designed to give an artificial priority to one area of public expenditure or to put the noble and learned Lord the Lord Chancellor in a different position to that of his colleagues in their responsibility to Parliament seems to me a mistake.

I therefore suggest to your Lordships that this amendment, with the exception of subsection (4), is one that should not be accepted. Subsection (4) taken by itself seems a sensible provision and I see no reason why an annual report should not be made. If an annual report is made and the noble and learned Lord the Lord Chancellor is responsible for that report and for answering questions about it, that very much diminishes the need for the previous three subsections of the amendment. I hope therefore that your Lordships will not accept the amendment as a whole although I hope that perhaps a kindly eye may be turned on subsection (4), perhaps at a later stage.

Lord Rippon of Hexham

My Lords, Her Majesty's Government must be assumed to give some priority to this matter by bringing forward Part I of the Bill at all as Part I is manifestly useless unless the Government are prepared to provide the resources necessary to bring it into effect. I am bound to say that I am not wholly enamoured of annual reports as a means of dealing with such matters. I have known it to happen often in the past that Ministers will confess and avoid by promising an annual report. However, if there is to be an annual report as my noble and learned friend has promised, I do not see why it should not be buttressed in some way by the kind of amendment which the noble Lord, Lord Mishcon, has proposed.

Lord Simon of Glaisdale

My Lords, the noble Lord, Lord Mishcon, always puts his case with great cogency and it was cogently supported by the noble Lord, Lord Hacking. However, I venture to deprecate the insertion of a statutory provision with the object of arming a Minister in the queue at the door of the Treasury, as the noble Lord, Lord Mishcon, so picturesquely put it, to elbow other departments out of the way. The noble Lord, Lord Boyd-Carpenter, made that point very well. There is always great competition for public funds. The Treasury tries to attain the right priorities. If there is a disagreement the matter goes to a Cabinet committee and, nowadays, if necessary to the committee that is known as the Star Chamber.

In my respectful submission it is quite wrong to insert a provision in a statute in order to arm a particular Minister to gain priority over other departments. Moreover, it would be self-defeating because other Bills will include the same provision for other departments' interests and we shall be back at the beginning, except for those unfortunate departments which do not have a Bill before Parliament.

Although I fully agree with the earlier part of the speech of the noble Lord, Lord Mishcon, I hope that my noble and learned friend will look with some disfavour on the attempt to arm him with statutory elbows to push other departments out of the way.

Lord Irvine of Lairg

My Lords, following the contributions of the three noble Lords who have just addressed your Lordships' House, perhaps I may remind the noble and learned Lord on the Woolsack that when replying to various amendments in Committee which addressed the resource issue he was good enough to say: It is the Lord Chancellor's responsibility, dischargeable to Parliament, to obtain the necessary resources. I am engaged on doing just that. I have made arrangements under which no change will be made without the necessary resources". — [Official Report, 16/1/90; col. 572.] That was an encouraging assurance.

The noble and learned Lord was also good enough to say that he was entirely at one with the principle of certain of the amendments; namely, the necessity of arranging proper resources. However, he said that that aim should be achieved by accountability to Parliament. I understand that in bringing forward the concept of an annual report the noble and learned Lord intends that annual report to be the vehicle of accountability. Amendment No. 16, which has already been passed by your Lordships' House, read: The Lord Chancellor shall, within one year of the coming into force of the first order made under this section, and annually thereafter, prepare and lay before both Houses of Parliament a report as to the business of the High Court and county courts". I believe that it would assist the House if the noble and learned Lord the Lord Chancellor, in replying to the discussion, could indicate how he contemplates that his annual report will address the resource issue, which was the subject of so much concern expressed from so many parts of the House. For example, to what extent does he envisage that his annual report will deal with the issue of his making orders to hive down business to the county courts under Clause 1? Will it deal with the point that in making those orders he was satisfied that sufficient resources to offer a reasonable level of service to litigants were available at the time when the order came into effect? Will his report state what his grounds for that satisfaction were?

On the basis that he is resistant, on the grounds expressed by certain noble Lords, to a statutory duty being placed on him to set standards, will his report state what standards of performance he has set for the unified administrative court service so as to give consumers of legal services reasonable satisfaction from the services that they receive from the court? Will his report state to what extent he believes that those standards that he is bound to set in practice—although that may not be pursuant to a statutory duty —are being achieved in the context of the resources available?

I feel that if the noble and learned Lord is resistant to the amendment it would assist the House to know what meat he intends for his annual report.

5.30 p.m.

The Lord Chancellor

My Lords, the kind of annual report I have in mind is similar to the present report for the court service, which the noble Lord, Lord Irvine of Lairg, may have seen through the Bar Council's facility. I should be happy to make it available to any noble Lord who wants it.

I should like to say a few words in response to what has been said about the courts. I mentioned some of these points earlier today but perhaps it is as well to repeat them.

Last year certainly produced some difficulties for the courts, in the county court primarily because of the increase in the volume of work. In 1989 the Crown Court disposed of 101, 232 cases committed to it for trial. In doing so it succeeded by the end of the last year in reducing the average waiting time for custody cases in London to a figure lower than that at any time during the last eight years. That is hardly the record of a court in serious difficulty. I should like to see the waiting times reduced even further. Those waiting times take account of the circumstances of particular cases. Many of the weeks of waiting are due to the state of a particular case or to the fact that a particular witness is unavailable. The court statistics that I am using are based on average waiting time.

In the county court in 1989 over 2 million summonses were issued and dispatched; 1–25 million warrants were dealt with and 180, 000 divorce petitions were issued. Perhaps even more important in the context of the discussions on this Bill, almost 50 trial centres have been established during the year with another 25 or so in the pipeline. Those are centres at which facilities for continuous trial are available. One of the difficulties in the past in the county courts was that if a case lasted for more than a day or did not finish at the end of a day it was difficult to continue it without a considerable interval elapsing. As my noble and learned friend Lord Hailsham saw when the matter was considered, one of the important points was to produce facilities for continuous trial. We are now reaping the fruit of his work in that there are about 50 trial centres operating and there are another 25 or so in the pipeline.

It is important that trials take place in centres where more than one judge sits so that when cases are settled, as they often are, at the last minute there is another case available to put in their place. The more judges there are sitting and the more trials going on together the more likely it is that the statistical average will be attained on any one day. If there is only one, even if half the cases are settled, one day two cases will be dealt with if two have been put down for the day and the next day there will be none. Therefore the more courts there are together the better it is. That is why we have concentrated on trial centres.

As I said earlier —all noble Lords were not present at the time—it is an important fact that an increasing number of High Court cases have already been transferred to the county courts under Section 40 of the County Courts Act 1984. In 1987 just over 9, 000 cases were transferred. In 1988 the number had increased to over 12, 500 cases and in the first eight months of 1989 the figure was more than 10, 000 cases. Those are cases sent down by judges of the High Court considering the High Court list for trial in the county court. About 10 per cent. of those cases result in trials—around 1, 500 a year. The county courts are therefore already coping with many of the kinds of cases which would be allocated to them under the arrangements possible with the new powers in the Bill.

Moreover, a number of circuit judges are already sitting as deputy High Court judges under Section 9 of the Supreme Court Act 1981 and, under the new arrangement, it is likely that that work will simply be transferred to them in the county courts. Those arrangements are being handled successfully, with reasonable waiting times in the county courts. The number of cases which will transfer once the order under Clause 1 is made will depend on the levels of cases to be heard in the High Court and the county courts, but, using Civil Justice Review figures, I would not expect the number of trials to increase by more than about 1, 500.

In consequence of those actions taken by the judges in the High Court, the waiting times in the High Court have been significantly improved. The delay in obtaining a hearing time in the High Court has fallen from about 421 calendar days in November 1987 to about 375 calendar days at the beginning of 1989. The result is that the present position in respect of, for example, the Queen's Bench Division in London, is that cases which do not require a fixed date are being given hearing dates within about 10 weeks of being set down, while cases requiring fixed dates are being given hearing dates of between nine to 12 months. The position in many county court trial centres for county court cases, including transferred cases, is even better; for example, eight weeks in Newcastle and Nottingham; only three to four weeks in Sheffield; and between five and seven weeks at Westminster County Court, to which many High Court cases are sent.

Turning to the office work in the county courts, at the end of 1987 only about 55 per cent. of the main office work —for example, originating process and the production of orders of the court—was dealt with within five working days of receipt. That figure rose to about 80 per cent. in the first quarter of the present financial year.

Considerable additional resources have been devoted to the courts. For example, there were 353 circuit judges in post at the beginning of 1984–85. That figure rose to 393 at the beginning of 1987–88 and to 408 at the beginning of this financial year. I need hardly remind noble Lords that the Top Salaries Review Body suggested an improvement in the remuneration of county court circuit judges which the Government have indicated will be put into effect in stages. The number of days sat by circuit judges, recorders and assistant recorders in 1984 was nearly 95, 000. It rose to about 99, 500 in 1987 and to over 104, 000 in 1988.

Gross expenditure on the court service, excluding legal aid and the court building programme, rose from £145 million in 1984–85 to £210 million in 1987–88 and to an estimated £261 million in the current financial year. Those significant increases are ahead of the increase in public expenditure generally.

I mentioned earlier the computerised summons production centre which has already begun operations. In nine weeks the county courts will substantially reduce their involvement in the handling of suitors' cash. Those are significant changes of the kind which have not previously occurred and over the next 18 months will together produce the equivalent of over 350 additional staff. They will be additional to the further 350 staff whom I hope to be able to recruit in respect of existing commitments, and up to a further 100 or so in respect of the new initiatives.

The process of streamlining procedures and developing the use of centralised computer systems will continue. After years of unaltered procedures and work methods, major changes and improvements are taking place. Those changes form part of the wider tranche of reforms, many of which are contained in the Bill. As I have already said, it is my intention to phase the introduction of fresh work into the courts at a pace that the system will stand; they will not just happen in a haphazard way. For example, the jurisdictional changes in the Bill are not planned to be implemented until early 1991, by which time the county courts will have benefited from the considerable increase in resources to which I referred.

The performance of the courts depends on all those who serve the courts. The Law Society has adopted a helpful and positive approach to elimination of unnecessary duplication of effort at counters in the county courts, which sometimes happens if the document produced is not quite right the first time.

There are of course others involved in the court service. It is most important that I should say how much we owe to the judges at every level in the courts—in the Supreme Court and the circuit courts—for the way in which they conduct their business. The court service for which I am responsible is there in order to support the judges. The judges are responsible for giving the judgments which it is the courts' function to give. The administrative staff in the courts seek to support the judges at every level. It is my responsibility to do that to the best of my ability. I believe that, considering the difficulties, what I have said indicates that that duty is being performed reasonably.

I am certainly not complacent. There is always room for improvement. In our interesting discussion to which the noble Lords, Lord Mishcon and Lord Hacking, referred, many proposals of a practical kind were made which I shall follow up. I should mention one of those proposals; namely, that the representatives of the General Council of the Bar pointed out that, if one places too much emphasis on routine work, one might find difficulty in giving the necessary priority to a hearing which is taking place. Too rigid emphasis on administrative standards, as the amendment perhaps contemplates, might therefore not be the best way forward in every case. Co-operation at local level between court users and the courts is important. It is being developed where it does not exist and is extremely useful where it does exist, and that will continue.

Noble Lords have accepted my amendment requiring the Lord Chancellor to report annually on the court service. As I said, that will contain the kind of information—a fairly full report on the court service —which we presently prepare. It will be more widely distributed as a result of the amendment. I shall consider with alacrity any details on the presentation of the report which any noble Lords or any of the organisations with an interest in the courts suggest to me.

In giving statistics about the court service, one must remember that the needs of litigants and the circumstances of litigants and witnesses must be taken into account. Statistics do not always discriminate between, for example, delays due to the parties and their convenience on the one hand and those due to the court's inability to provide facilities at a particular time.

I believe that my amendment, which noble Lords have accepted, is the proper way forward in this matter. For the reasons that have already been advanced, it would not be appropriate for me to agree to accept the first three subsections of Amendment No. 71. Subsection (4) is rendered unnecessary by the amendment which I have already proposed. I hope that, in the light of those explanations, noble Lords will feel that we should not give effect to the amendment. I hope that the noble Lord, Lord Mishcon, who moved the amendment so eloquently, may feel that the purpose for which he brought it forward has been achieved and that he may be able to take credit in the future for even better service from the courts than that to which he has been accustomed in the past.

Lord Mishcon

My Lords, it is hard to resist those gracious words. I believe that the noble and learned Lord knew how hard it would be to resist them when he uttered them.

The amendment was designed to help. It was designed to carry out the principle of Part I of the Bill to which we all adhere. If noble Lords take it for granted, as does the noble and learned Lord, Lord Simon of Glaisdale, that our courts' administration has the proper priority with the Treasury and that all is well with the Treasury when one goes for the funds that are necessary to make our courts and our court procedures respectable —I put it no higher than that—I must point out that that has not been the experience of many who have contributed to our debates.

Your Lordships may remember the account given by the noble and learned Lord, Lord Ackner, of a state of affairs where, because there was not sufficient money to pay for a hotel bill, a case had to be dealt with in a way that none of us would have wanted. I know that it is the responsibility of the Home Office and not of the noble and learned Lord, but do noble Lords know —and the noble and learned Lord is talking about a complete change of affairs presumably by 1991 —the state of affairs that exists in 1990? Do they know the state of our magistrates' courts throughout the kingdom, with no proper toilets and arrangements which are literally a disgrace?

Did noble Lords read the Written Answer to a Question which was addressed to the noble and learned Lord about how correspondence was dealt with in some of our county courts? I know that the noble and learned Lord will forgive me for saying so, but I thought that it was a somewhat proud reply to say that correspondence was dealt with in the county courts in respect of which the Question was asked on an average within seven weeks of receipt of letters. We are in 1990, and the average time it takes to reply to correspondence is seven weeks! If we conducted our own practices and businesses in that way I do not believe that any of us would have left any clients or customers. That is the situation.

It is not very easy for me to give way on an amendment which would have ensured that proper standards in regard to our administration of justice, especially with these reforms, have to be observed and the Government of the country must know that that is a duty. I regard respect for justice as possibly the basic foundation for the life that we are privileged to have in this country. If it cannot be given even respectability, let alone efficiency and economy, it is not a very happy situation in which to pass reforms, as we are doing in Part I of this Bill.

However, the noble and learned Lord has spoken. He thinks that it will be sufficient to rely upon the matters about which he has been good enough to tell us, by way of the resources that he has managed to secure. The noble and learned Lord hopes —I believe in one year—to obtain a type of official, in the county courts for example, who will be able to carry out such work. I tell him very solemnly that at the present moment such people are not there. He knows that they are not there. He knows about the competition from the outside world. The legal profession competes for those officials and does it on an unfair basis, which I admit completely.

If the report is to be the substitute for an amendment which gives a statutory duty, so be it. I hope that in those last gracious words the noble and learned Lord will have been a prophet and that in 1991 he will be able to issue a report that will make this amendment seem unnecessary. In those circumstances, and with that hope, I ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

5.45 p.m.

Lord Hacking moved Amendment No. 72: After Clause 13, insert the following new clause: ("Investigations by Parliamentary Commissioner for Administration.

Notwithstanding the provisions of section 5 of and paragraph 6 of Schedule 3 to the Parliamentary Commissioner Act 1967, the discharge of all or any functions or duties of any kind whatsoever by officers and other staff appointed under section 27 of the Courts Act 1971 shall be subject to investigation by the Parliamentary Commissioner for Administration.").

The noble Lord said: My Lords, when this amendment was called in Committee it was past 11 p.m. and the noble and learned Lord, in responding to my short statement, said that he would kindly use his persuasion through the usual channels to try to ensure that on the next occasion that this amendment was brought forward it would be taken at a time when there was greater attendance in the Chamber. I therefore wish to start my current submissions by thanking the noble and learned Lord for his persuasion through the usual channels. I say that in front of the noble Lord the Leader of the House. Perhaps I may call upon his kind services again to obtain an excellent attendance in your Lordships' House for such important matters.

When the noble and learned Lord addressed the Committee he said that he would use his best endeavours to bring forward at Report stage an amendment to deal with the problem that my amendment addresses. Thus far it appears that the noble and learned Lord has not brought forward his own amendment. Therefore in moving this amendment my primary purpose is to ask him whether he will kindly give a progress report on his proposed amendment.

It may be of assistance to noble Lords to know something of the background to this amendment. There have been a large number of complaints —some 30 or more —received by the Law Society from solicitors giving instances of where their clients have suffered financially and otherwise because of errors made by the county court staff. Those errors most frequently related to listing but also included such matters as a mislaid file, the court closed, no judge or registrar available, the defendant not served and a third party notice issued in error.

In most cases an application for compensation has been made to either the Lord Chancellor's Department or the local circuit administrator. The standard response explains that the matter complained about is the responsibility of the judiciary rather than the Lord Chancellor's Department or its officials and that the Lord Chancellor is only prepared to consider claims for compensation where loss is sustained through any negligence of court officials in matters for which he is reponsible.

I submit that this is untenable. The aggrieved client is invariably left without any remedy at any time and usually the money is wasted. In my submission, complaints of maladministration by court officials should be subject to investigation by the Parliamentary Commissioner. I appreciate the difficulty exercising the mind of the noble and learned Lord; namely, the dividing line between the judicial and the administrative exercise of function. I appreciate that difficulty. That is why the prime purpose of my amendment is to ask the noble and learned Lord for a progress report upon his amendment. I beg to move.

The Lord Chancellor

My Lords, the noble Lord was kind enough to suggest that I had achieved for him what he wanted in the way of timing. I think that there may well have been factors other than my persuasion involved. Circumstances beyond my control may have contributed to the apt timing of this amendment.

I said in Committee that I hoped to bring forward an amendment at Report stage to deal with this matter. As has been mentioned, there has been a wide area for discussion affecting this matter for some considerable time. It has not been found easy over the years to solve the problem. However, I have endeavoured to do so and have been working at the preparation of an amendment on the lines that I indicated in Committee.

It appears to me that such an amendment would come more fittingly into the closing parts of the Bill rather than at this stage because it is not just related to this particular type of provision. Therefore there may well be an opportunity for an amendment to be brought forward timeously so that it may be considered on the last day of the Report stage, which I understand is likely to be a week on Thursday. I believe that the progress that we have made is sufficient to enable me to hope that I shall still be able to bring forward the amendment before the Report stage is completed and at a time which will enable noble Lords to consider it properly as part of the concluding stages on Report.

Lord Hacking

My Lords, I am very grateful to the noble and learned Lord for his progress report. In particular, I was pleased to hear that he still has hope of bringing this matter before us at Report. We have had to consider a great number of matters at fairly short notice. We understand the difficulties in which he found himself but it is a matter that I believe your Lordships will want to consider as soon as possible. I am grateful to the noble and learned Lord and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 14 [The statutory objective and the general principle]:

Lord Lloyd of Kilgerran had given notice of his intention to move Amendment No. 73: Page 12, line 35, at end insert ("and without prejudice to the generality of the foregoing by providing that persons other than barristers shall have a right of audience and that persons other than solicitors shall have the right to conduct litigation, in relation to matters in respect of which such persons are specifically qualified.").

The noble Lord said: My Lords, Amendment No. 73 relates to legal services associated with trademark matters. With the leave of the House, I should like to refer to three other amendments relating to trademark matters, Amendments Nos. 90, 91 and 95. In view of the helpful observations made by the noble and learned Lord the Lord Chancellor when I moved Amendment No. 17 earlier today in regard to the proposal for a trademarks county court, and having regard to a letter which I received from the noble and learned Lord relating to the advisory committee, I do not propose to move Amendment No. 73 at this stage, nor will I be speaking to Amendments Nos. 90, 91 and 95 at a later stage. I shall reserve the right to raise these matters at Third Reading.

[Amendment No. 73 not moved.)

Lord Alexander of Weedon moved Amendment No. 74: Page 13, line 1, leave out ("and").

The noble Lord said: My Lords, with the leave of the House, I shall speak at the same time to Amendments Nos. 75 and 76. The substantive amendment is, as your Lordships will instantly appreciate, Amendment No. 75. Equally, as your Lordships will also appreciate, the purpose of the amendment is to establish within the Bill one simple ethical principle which we suggest is fundamental if we are to secure that everybody has proper access to advocacy services. The principle is that those who gain extended rights of audience should accept the obligation to argue cases without regard to the popularity or unpopularity of a cause and that they should not decline to accept a case because payment is to be made by the legal aid fund rather than out of a more ample private purse. Those proposing the amendment, as noble Lords will see, come from all parties in the House and from the Cross-Benches.

Many noble Lords will recollect that we debated this issue in general terms in Committee and that the proposal we then put forward received widespread support from almost all those who spoke at that stage. My noble and learned friend the Lord Chancellor acknowledged that the basic rule we suggested was important but he expressed concern that the amendment we then presented would not leave sufficient scope for the machinery of the advisory committee to shape the details of the rule and to make appropriate exceptions. We have sought to meet this concern by the form of amendment we now put forward which is in different form and seeks to give clear scope for any appropriate flexibility. I hope your Lordships will consider it proper that we should debate this issue again in order to decide whether we have successfully met the Government's reservations.

Why is the principle important? More than two centuries ago the great advocate, Sir Thomas Erskine, established the duty of an advocate not to discriminate between the causes he accepted according to his personal or public sympathies. Since then the rule has been accepted by those who have practised as advocates in the higher courts both in England and in Scotland. Indeed my noble and learned friend the Lord Chancellor, when commenting on the position in Scotland when he gave evidence to the Scottish Royal Commission some years ago, said: This obligation is an important constitutional guarantee from the point of view of a citizen's freedom of access to the courts. As an advocate he has to represent people even though he does not like their views and whether they have legal aid or not".

These cogent words are of general application and they have as much force in this country in the experience of many of us as they do in Scotland. It is precisely because the principle with which we are concerned is, as my noble and learned friend described it, a constitutional guarantee that it ought to be recognised in legislation.

It is also a principle that has been recognised by this House sitting in its judicial capacity. In the Appellate Committee in 1969 the Law Lords considered the nature of the duty of advocates and recognised that a barrister has for centuries been bound to accept a brief. The noble and learned Lord, Lord Pearce, said in his judgment: It is easier, pleasanter and more advantageous professionally for barristers to advise, represent or defend those who are decent and reasonable and likely to succeed in their action or their defence than those who are unpleasant, unreasonable, disreputable and have an apparently hopeless case. Yet it would be tragic if our legal system came to provide no reputable defenders, representatives or advisers for the latter, and that would be the inevitable result of allowing barristers to pick and choose their clients".

He agreed with Erskine that it would cause irreparable injury to justice if advocates could pick and choose.

I do not need to labour examples of the kind of cause which may from time to time be unpopular. I think of treason trials and trials for a particularly repellant murder or brutal rape. In all such cases it has rightly been considered that the advocate's personal view of the merits of a case or of the defendant should not deter him or her from acting. This is not a matter of mere gallantry or generosity by barristers. As the noble and learned Lord, Lord Oliver of Aylmerton, said in our earlier debate: The rule is not one which is accepted by the Bar in its own interests. Indeed, no barrister derives, or has ever derived, any advantage from it. It is imposed in the interests of justice and is part of the price—and this is most important—that the Bar has paid for its monopoly of rights of audience in the superior courts."—[Official Report, 25/1/90; col. 1197.]

It is in other words a corollary of that monopoly to which solicitors are, rightly in certain circumstances, as we have accepted, being granted admission. There is, as the noble Lord, Lord Murray of Epping Forest, said in our earlier debate, a public expectation that a man who is going to court must have access to the best advocate available. The public expectation should be placed on the face of the Bill. That is all we seek to achieve.

Perhaps I may try to allay any anxiety, which I hear has been expressed on behalf of some within the Law Society, that this clause is directed against solicitors. There are some of us who during the course of the proceedings on the Bill have consistently recognised that there should be extended rights of audience. We have also sought to ensure that the strength of the solicitors' profession is not diminished by changes in the law with regard to conveyancing. It is in the same spirit that our proposal now transcends professional sectional interests and is meant as a bulwark for the citizen. It was for this reason that I was very glad, although it was not more than I expected, that our proposal last time was supported in the Division Lobby by the noble Lord, Lord Mishcon. He as an experienced advocate as well as a solicitor who has briefed other experienced advocates recognised that those who seek the privilege of extended rights of audience should accept the wider obligation to serve the public.

Nor can we take it for granted that in the absence of legislation the principle will necessarily be accepted by all. I have read only recently that two leading London legal aid firms have refused to take the case of a man accused of raping his girlfriend. These are firms of standing which unlike many other firms are prepared to accept the burden of legal aid work. But nevertheless they reserve the right to express a general unwillingness to act for defendants in rape cases. That is their right in regard to the preparation of cases. But if this approach were extended to advocacy, is it not easy to see the danger for those accused of a crime and yet not found guilty in securing proper representation? This episode highlights why we should enshrine the rule as part of our law.

It was perhaps not surprising, given the importance of the obligation, that it was so widely supported on the last occasion when it was before your Lordships. Perhaps I may briefly remind the House why the Government were unable to accept it and indicate the way we seek to meet their objection. Our earlier proposal would have made the rule in effect an absolute rule. This led my noble and learned friend the Lord Chancellor to say in response: I take the view that it would be very desirable to impose some form of cab rank rule on anyone who has rights of audience in superior courts … However, the rule will need to be specified in considerable detail".—[Official Report, 25/1/90; col. 1207]

My noble and learned friend went on to say that the circumstances of solicitors might require a different rule from those applying to barristers. He indicated that we might safely leave the matter to detailed consideration by the machinery which the Bill establishes. I hope that I have fairly summarised the objections put forward on the last occasion.

Noble Lords will see from the present form of amendment that we seek to take full account of the Government's reasons for declining to accept the earlier amendment. The present provision achieves that in two ways. First, it provides that there may be any appropriate exceptions which ought to be made to the general rule. Secondly, it indicates that the rule should not apply in circumstances in which it would be unreasonable to require the advocate to have regard to it. We suggest that that strikes the appropriate balance and removes the concerns expressed by the Government. It includes on the face of the Bill a principle which for centuries everyone has considered to be of high importance. It enables those involved in extending rights of audience to operate that in a way which accords good sense and proper public expectation.

In the Bill we in this House are committed to extending rights of audience where that should properly take place. Many details of standards and qualifications must be worked out. It is no exaggeration to say that the way ahead is fraught with difficulty and certainly uncertainty. Is it not important that at such a time we should make unequivocally clear the fact that there are some basic ethical rules, rights and obligations which are not fragile and not open to doubt and which we as a House positively reassert? I beg to move.

6 p.m.

Lord Irvine of Lairg

My Lords, from these Benches I support the amendment, not for any partisan reason as a member of the Bar but because I believe it to be of great value to the consumer and of major constitutional importance.

When the amendment was moved in Committee on 25th January noble Lords on these Benches supported it. I should like to express briefly my reasons for supporting the amendment. First, there is the consumer. The consumer values highly the quality of his representation in court. Nothing will persuade him that the quality of his representation does not affect whether he wins or loses.

A duty on practising advocates to accept instructions from anyone within their field of practice enhances access to justice. It means that advocates cannot pick and choose between the difficult and easy cases; the likely winner and the likely loser; the popular case and the unpopular case. Therefore, when the cab rank rule applies the consumer can have greater confidence that his access to justice is real and not second class. The point is that the consumer has access to the advocates whom he regards as best and whom informed advice tells him are best. He does not have to rest content with the assignment of the lawyer by a professional body as he might if the advocates of his choice were not bound by a cab rank rule. Secondly, consumer confidence is enhanced by knowing that the cab rank rule applies equally to legal aid cases.

Thirdly, there is the constitutional point. It is of constitutional importance that no advocate should be entitled to say, "I will not represent you because I am hostile to your case"; or, "I am hostile to the kind of person I believe you to be". It is the duty of the advocate to appear for the Yorkshire Ripper or any other defendant against whom there may be a hostile climate of public opinion. In civil cases it is also his duty to appear not only for a particular interest group with which he might prefer to identify but for every interest group; for plaintiffs or insurers in personal injury cases; for employers or trade unions in labour law cases; for the citizen or the state in judicial review cases. The advocate is not entitled to don the mantle of the judge or jury and refuse instructions because of his belief as to the likely outcome. Nor is he entitled to say no to a client becuase he may abhor his political or other beliefs.

I believe those principles to be important for the effective protection of the rights of the subject under the law. Therefore, I support the amendment.

Lord Boardman

My Lords, there is a great deal of common ground between those on both sides of the debate. Those who may not support the amendment are, nevertheless, fully sympathetic to the principle which lies behind it. All noble Lords will agree that it is right that there should be a competent advocate able to represent any citizen regardless of the issue. I am sure that all Members of your Lordships' House will agree that, as far as possible, advocates, whether solicitors practising in the higher courts or members of the Bar, should work according to the same rules and that there should be a level playing field.

Perhaps it is worth noting as a side issue that the amendment and the whole of the debate relates to rights of audience in a superior court. Rights of audience in the lower courts are not affected. It is also worth recalling that the Bar's cab rank rule has applied to all courts during all the years to which my noble friend Lord Alexander referred. However, it has not applied at any stage to solicitors, who are the main practitioners in the lower courts. I know of no complaint that clients requiring representation in the lower courts have been unable to obtain it.

It is worth inquiring into the cab rank rule. There is a tendency for some people to believe that it is entirely comprehensive and that automatically a member of the Bar of the client's choice will be available. The rules which have recently been published by the Bar Council, and which come into effect at the end of March, rightly contain proper restrictions on the operation of the cab rank rule. I make no criticims of that. They state that a practising barrister must not accept any brief or instructions if he lacks, for example, experience or competence or if, having regard to other professional commitments, he does not have adequate time and is unable to prepare that which is required of him.

As regards availability and fees, provisions are laid down in paragraph 502. It states that a barrister in independent practice is not obliged to accept a brief or instructions requiring him to do anything other than during the course of his ordinary working year; that is, during the legal terms. Solicitors are not in the happy position of having such an abbreviated working period.

Rule 502 also provides that a barrister is not requried to accept a brief other than at a fee which is proper having regard to the complexity, length and difficulty of the case and to his ability, experience and seniority. Those are all absolutely right and proper and I make no criticism of them. However, the matter should be put to the House so that there is an understanding that the cab rank rule is not as comprehensive as some noble Lords may have assumed. I have gleaned that not from speeches made by my noble friend or by the noble Lord opposite but from what I have read about the cab rank rule in the press.

The rules are not particularly onerous; they are perfectly reasonable. Therefore, it is reasonable to ask the question: why should they not apply to solicitors who are given the right to practice advocacy in the higher courts? The first objection is the form in which solicitors practise; that it, in a partnership. That was accepted by the Bar Council in its response to the Green Paper which originally raised the issue. In its response the Bar Council stated that practice in partnership is incompatible with the cab rank rule. I shall not go into the reasons why that should be so but there are many of them. I am sure, for reasons which I shall come to in a moment, that that should be something for consideration at a later stage in a different forum.

The National Consumer Council opposes this amendment. I am somewhat surprised that in talking about the consumer cause noble Lords opposite have not recognised the objections put forward by the National Consumer Council to it. There is one essential difference between the position of a member of the Bar and a practising solicitor. The lay client goes directly from the street to the solicitor. The lay client does not have access to a member of the Bar. He can only be referred to a member of the Bar through the solicitor. Therefore, the lay client is screened before he gets to the Bar. The instructions come from the solicitor to the barrister, those instructions having been accepted by the solicitor.

There is no requirement in this amendment or elsewhere that a solicitor must be bound to accept instructions. However, a solicitor who is not authorised to practise in the higher courts can—and no doubt most will —continue to receive instructions from clients and will pass on those clients with a brief to a member of the Bar for the advocacy required. Therefore, I believe that that is a major difference between the position of a solicitor in practice whose clients come off the street and the position of a member of the Bar to whom cases or clients will only be referred through a brief delivered by a solicitor.

My noble friend Lord Alexander of Weedon referred quite rightly to a case which received some publicity recently where a firm of solicitors announced that it would not take instructions from defendants in rape cases. I should have thought that even under the cab rank rule to which I have just referred it would be open to a member of the Bar and indeed a solicitor in authorised practice to say that there are certain cases in which they do not claim to have expertise or do not wish, because they do not have the competence to deal with the case efficiently, to take on a certain class of case. I believe that that would be a reasonable exception which would probably come within my noble friend's amendment.

However, as far as I am aware and as far as the Law Society has told me it is aware, there has never been a case for which it has not been possible to find a competent solicitor to take instructions, who would no doubt be able to provide the advocacy if necessary and if that were authorised. I understand that the Law Society accepts the responsibility of ensuring that there is always a suitable solicitor provided if required by the client or indeed by the court because there have been such cases.

I suggest that it is best to leave the matter there. If it is necessary to place a statutory duty upon the Law Society to accept that obligation, that is something which my noble and learned friend may wish to consider. However, in all the years in which the Law Society has been in operation I am assured that there has never been a case for which a suitable solicitor cannot be provided if required.

This is essentially a matter which should be kept under review by the advisory committee in the years ahead. Circumstances may change. As time goes by I believe that it would be right for the advisory committee to see how the matter develops and what are the problems of solicitors and partnerships and so on. For that reason I hope that my noble friend will not press this amendment.

Baroness Seear

My Lords, as someone from outside the legal profession, I am much concerned that the ordinary person seeking representation should have the best possible opportunity of doing so. I say to the noble Lord, Lord Boardman, that if the existence of partnerships is an obstacle to the operation of the cab rank rule, perhaps it is the partnership and not the cab rank rule which is at fault.

6.15 p.m.

Lord Campbell of Alloway

My Lords, while supporting this amendment unreservedly, I seek to deal with some of the anxieties expressed by my noble friend Lord Boardman. This amendment is limited in scope to the superior courts. Those courts do not include, for example, the magistrates' court, as I understand it. I am relieved to hear that the amendment does include the Crown Court. If that is so, then the examples of criminal cases given by my noble friend Lord Alexander are of course entirely correct.

One of the reasons that I support this amendment is that it affords fair terms of competition in the new regime as between all those who have rights of audience. Surely that must be the proper approach to a competitive regime; namely, that everybody should compete on more or less fair terms.

It is in the interests of the consumer, in the interests of justice and, as has been said, a public expectation that the standards should be maintained. My noble friend Lord Boardman seemed to be concerned about the position of accepting instructions. I have always understood the cab rank rule to be not exclusively—and it has never been codified —but primarily concerned with the request: "Will you take my case and fight it?" In other words, it is concerned with advocacy and not so much an advisory role or whether one is instructed for this or that. Although that has never been codified, that is my personal understanding of the cab rank rule from my experience at the Bar.

If that is right, then the anxieties of my noble friend are with respect, to some degree misplaced. I suppose a solicitor can say, "I do not want to accept instructions to prepare a will", I suppose he can say that if he has no expertise to prepare a will. Surely that is covered by the very careful drafting of my noble friend Lord Alexander: in the circumstances in which it would be unreasonable to require him to do so. If somebody presented me with a tax case, I should refuse to conduct that. I am wholly incompetent to do that because I have never conducted a tax case, and I hope that I never shall. However, within that broad remit of it being unreasonable to do so, surely we can satisfy the anxieties of my noble friend Lord Boardman and accept the broad principle as an important principle primarily in the interests of the consumer.

Baroness Phillips

my Lords, I am interested in what my noble friend on the Front Bench and other noble Lords have said in suggesting that this is in the interests of the consumer. Your Lordships will know that that is my particular interest. I have been approached by consumers organisations and they do not seem to think that this provision will help the consumer.

The Bar's cab rank rule may be appropriate for barristers because that is a referral profession. That is the point which we must take on board. No one can have access to a barrister without first briefing a solicitor. I understand from my friends at the citizens' advice bureaux that when a client seeks legal representation and telephone calls are made, for some strange reason the first inquiry is whether the client is legally aided. If a cab rank rule is operated why should that question be asked? It should be assumed automatically that the case will be taken.

Solicitors are not in a referral profession. Clients go to them directly off the street. I ask why the Bar wants this provision in legislation. Perhaps I am unduly suspicious. It is only in their rules at present. Do they wish to force this provision on to solicitors, for whom it would be very inappropriate, in order to make unworkable solicitors' rights of audience?

The only point of substance for the public is that those who have a monopoly of rights of audience or the right to undertake litigation should ensure that no one is denied access to justice as a result. One must exercise great care when saying that this is in the interests of the consumer. So far the consumer does not seem convinced that it is.

Lord Beloff

My Lords, as another possible consumer I would not venture to be as categorical as the noble Baroness, but I should like to ask for some explanation. Let us take the current situation of someone who is possibly involved in litigation and who goes to a solicitor. The solicitor tells him that he requires a barrister to be his advocate in court. The barrister is then bound by the cab rank rule, however interpreted or modified. The proposed amendment does not, as far as I can read it though I am not a lawyer, impose a duty on a solicitor to look into my case as a potential litigant. All it says is that if I insist that the solicitor himself acts as my advocate, he is entitled to refuse to do so.

The proposed amendment would remove that option. I would be able to go to a solicitor—the noble Lord, Lord Mishcon—and say that I admire his golden voice and insist that he takes my case before a higher court. If the amendment is not passed, would I not still be in the current position—that is to say, that the solicitor I go to would be able to go to a barrister of his or my choice who would still be bound to act as advocate? It seems to me that one could argue that the profession of barrister might possibly gain by the absence of a cab rank rule for the solicitors' profession or for any other profession which is given the right of advocacy because barristers would be able to say 'You are not getting a reasonable deal from non-barristers, but here we are with our historic duty to support your interests by advocacy in a court".

I should very much like to have this process explained. Does the proposal mean that every solicitor has to accept a case which might seem to him rebarbative in some way or does it refer only to solicitors exercising a right of audience—in which case, what is lacking in the continued presence of an independent Bar bound by the cab rank rule?

Lord Ackner

My Lords, I think I can answer the noble Lord, Lord Beloff, by direct reference to what the noble Lord, Lord Mishcon, said in the last debate. He said at the outset: As an individual Member of this Committee what the noble Lord, Lord Alexander, said is completely acceptable as a principle; namely, that if a solicitor advocate, presumably wearing his wig and gown, stands by the side of his barrister colleague similarly attired, as a principle they should be bound by precisely the same rules of conduct". — [Official Report, 25/1/90; col. 1194.] What the noble Lord, Lord Boardman, seems to have omitted to appreciate is that no solicitor is obliged to apply for rights of audience beyond those he has at present, but if he seeks to have those rights of audience then he should follow the philosophy so admirably expressed by the noble Lord, Lord Mishcon.

The noble Lord, Lord Murray of Epping Forest, who has been quoted, said this, which was not quoted: We should not have merely the Bar's internal arrangements. Secondly, the amendment would cut the ground from under the feet of any barristers who felt that they were in some way going to be at a disadvantage in the handling of cases in the courts compared with advocates drawn from other professions".—[Col. 1198.] One also had the contribution of the noble Earl, Lord Onslow, who said: The cab rank rule seems to me so fundamentally sound and good that it would be wrong if there were not exactly the same rules for solicitors who advocated as advocates" — that is what I stress— as those that apply for any other kind of advocate, especially the Bar advocates". He added, and I stress: If we depart from that principle, we shall produce two classes of advocates, one of which can pick and choose, and one of which cannot. That cannot be right for either justice or equity".—[Col. 1204.] He was of course referring to the higher courts. That led irresistibly to my noble and learned friend the Lord Chancellor saying: I take the view that it would be very desirable to impose some form of the cab rank rule on anyone who has rights of audience in superior courts, for the reasons indicated by my noble and learned friend Lord Oliver of Aylmerton. However, the rule will need to be specified in considerable detail".—[Col. 1207.] There was the unanimity and, as far as I can see, the absence of any real problem. The solicitor can stay as he is now, enjoying the rights of audience he has now with none of the restrictions of the cab rank rule round his neck. However, if he aspires to do the same work as the Bar at present has the monopoly to do, then, as the noble Lord, Lord Mishcon, says, they should stand shoulder to shoulder.

The other matter mentioned by the noble Lord, Lord Boardman, which seemed to me to be wholly fallacious, was the proposition that the examples cited, which were in the newspaper, relating to two well-known firms of solicitors specialising in criminal work were somehow a permissible omission from the cab rank rule if it bound them. It was exactly the opposite.

Here are two firms of solicitors specialising in crime, specialising in cases as serious as rape, and both firms saying, "We act only for the prosecution because if we did not we would offend our clients"—organisations mainly of ladies who are, as we all are for that matter, fiercely opposed to the crime of rape. Because of the harm it would do to their practice, and for no other reason —not for any lack of expertise on the subject of rape; you do not get specialists in the knowledge of how to defend or how to prosecute that particular crime —they opted not to act for defendants. They are entirely permitted to do so, but no barrister would be entirely permitted to do so; on the contrary.

I hope that that has answered the points raised. The matter was put very shortly by Lord Reid in the same case in the House of Lords, just to show that there is total harmony on both sides of the Border. He said: It has long been recognised that no counsel is entitled to refuse to act in a sphere in which he practises, and on being tendered a proper fee, for any person however unpopular or even offensive he or his opinions may be, and it is essential that that duty must continue: justice cannot be done and certainly cannot be seen to be done otherwise". Throughout that case—one or two other noble and learned Lords apologising for repeating—was the reference, which has been referred to though not in terms, to what Lord Erskine said in his justification for the unpopular defence of Tom Paine. It is right that the words should be before the Committee. He said: From the moment that any advocate can be permitted to say that he will or will not stand between the Crown and the subject arraigned in the court where he daily sits to practise, from that moment the liberties of England are at an end". That is why this is a point of great constitutional importance, and when we come to my noble and learned friend's amendments to Clause 17 (which will need, certainly in subsection (b), a little explanation), if it is right to lay down principles of that character for the guidance of the advisory committee then —if the noble Lord, Lord Mishcon, will forgive the phrase again—a fortiori this is such a case.

6.30 p.m.

Lord Peyton of Yeovil

My Lords, I intervene briefly in this debate. I was not present in the Chamber at the time when a similar amendment by my noble friend Lord Alexander was debated. Hence, when the Division was called I proceeded—albeit uneasily, but nevertheless obediently—into the Government lobby. I have since had the advantage of reading the discussion which took place at that time, and I have also had the advantage of listening to your Lordships today. I conclude that beyond any doubt the balance of the argument is with the amendment so eloquently moved by my noble friend.

There are two quotations which weigh with me, the first from the noble and learned Lord, Lord Oliver: The cab rank rule is the reverse side of the coin of monopoly".—[Official Report, 25/1/90, col. 1197.] That is the first argument which seems to me to be summed up with admirable brevity in one sentence.

Secondly, the noble Lord, Lord Benson, used the following words: As I understand it, within the limits of human endeavour, the object of justice is twofold: first, to be fair, secondly, to be consistent. It follows from that that everybody engaged in carrying out the various tasks of justice must operate under the same ethical rules, the same rules of conduct and the same disciplines". —[Col. 1203.] I put this briefly and carefully: I yield to no one in my respect for the way in which my noble and learned friend the Lord Chancellor has piloted this Bill through your Lordships' House, but at the end of the debate at Committee stage he said: I take the view that it would be very desirable to impose some form of the cab rank rule on anyone who has rights of audience in superior courts".—[Col. 1207.] I was encouraged to read that, but then my noble and learned friend went on to say that the fact that the rule was elaborate, the fact that it was lengthy and the fact that there were many provisos, were fatal flaws in the argument for the amendment. If those were fatal flaws in the argument, then much of the legislation which goes pouring through your Lordships' House would have been carried through in some receptacle or other, but it would not have reached the statute book.

Finally, by what he said at the end of his speech on that occasion, my noble and learned friend gave me the impression that we should be content to leave this important matter to the advisory machinery which was going to be set up. I am bound to say that in my view we do not suffer from any shortage of advice. Nor do we suffer from any shortage of organisations dreaming up further supplies of that commodity, and so far as I am concerned I do not look for them.

For the reasons that I have briefly stated and which have been so much better stated by others, on this occasion I shall repent and vote in a different way from that which I did previously, and I shall support my noble friend's amendment.

Lord Hacking

My Lords, I am a solicitor of the Supreme Court, and like the noble Lord, Lord Boardman, I am sympathetic to the amendment moved by the noble Lord, Lord Alexander. I can say that in the 13 years I have practised at the Bar and in the 13 years that I have subsequently practised as a solicitor, so far as I know I have never refused a client (I rarely did that anyway, I was always in need of them) in any circumstances which have breached the cab rank rule. I can tell your Lordships that I have appeared in relation to some pretty unpopular causes on both sides of the legal profession.

It is important to put the amendment in its proper context. It is not an amendment which goes to the conduct of advocacy in the court; nor is it an amendment that goes to the conduct of litigation in or out of the court. It goes no less and no more to the circumstances in which an advocate should accept or reject instructions to appear in court. As such, so far as my side of the profession is concerned, it goes to the structure of that profession. This is a point that the noble Baroness, Lady Seear, seized upon.

Therefore, with great respect to the noble and learned Lord, Lord Ackner, this is not an amendment which has anything to do with advocates appearing in court under different rules or less shoulder-to-shoulder. To take up a point made by the noble Lord, Lord Campbell of Alloway, far from promoting competition it could result in putting solicitors into a position where because their professional rules may not be able to comply with the cab rank rule—I put it no higher than "may" —they are not offering services or are unable to offer services which otherwise they would be willing and able to do. In that sense this amendment is restrictive of their competition.

It is also not an amendment concerning whether the Bar should operate the cab rank rule for all the meritorious reasons that have been put forward. The question before your Lordships is whether that cab rank rule should be imposed upon others, including, I assume, lawyers from the European Community who seek to exercise rights of audience under the higher diploma and legal services directives.

I have no difficulty in stating that the circumstances in which solicitors receive instructions are different fom those in which members of the Bar receive instructions. I concede that it is difficult for us to apply the cab rank rule, not simply because we are in partnership but because we offer wider services to our clients, such as providing financial references. The new and ever-searching audit requirements that are placed upon us in turn put us in a position of fiduciary relationship with third parties which could work only on a basis of trust between us and our clients.

Lord Renton

My Lords, I believe that it is right to remind the noble Lord—it could shorten the matter—that the amendment refers to rights of audience.

Lord Hacking

My Lords, indeed. If the noble Lord had allowed me to finish the sentence he would have heard me say that if that trust does not exist it would be proper for members of my side of the profession to refuse to act, even as an advocate, in litigation. I therefore find the position of the Bar somewhat puzzling.

Being less bold than the noble Baroness, Lady Phillips, I do not suggest that in tabling the amendment, the Bar has been motivated to protect its rights of audience in the High Court. Such words do not fall from my lips. However, why is it necessary to impose that rule on others? Why cannot members of the Bar turn that rule to their advantage? Why cannot they say to members of the public, "We have this rule; it benefits you; it places us in a position of particular integrity; it enables us truly to say that we have experience in advocacy on all sides of the process of litigation, whether it is for plaintiffs or defendants, landlords or tenants, criminals or police, or husbands or wives"?

I have every confidence that the Bar will survive and prosper. I see the wish of the Bar to spread the cab rank rule outside its own ranks as something that does not run to its advantage. For the reasons that I have advanced, it runs to its disadvantage.

Lord Campbell of Alloway

My Lords, the noble Lord mentioned my name. Perhaps I may ask him, does he seriously suggest that advocates conducting advocacy—having rights of audience—should compete on unequal terms?

Lord Hacking

My Lords, I am not suggesting that. I thought that I put that point most plainly in my submission to the House.

Lord Hooson

My Lords, it has always seemed to me that the justification for the cab rank rule is that it is a guarantee of the advocate's integrity. It governs the court's reception of his role. Judges and juries are used to the role of the advocate in the highest spheres and they know that he operates against the background of the cab rank rule. It affects his performance in many ways. He knows that the judge and jury do not identify him with his client's case or the views that he is expressing on behalf of his client.

I was always brought up to believe that the advocate's duty was to represent his client's interests as the client would had he the advocate's skill, experience and knowledge. The cab rank rule applies to the advocate in his role as advocate only. I believe, and I share the views expressed by Erskine two centuries ago, that it is one of the great guarantees of liberty in this country. I know that it is the guarantee of the advocate's integrity.

Perhaps I may be allowed to be anecdotal for a moment. The cab rank rule is more embarrassing to the political barrister than to anyone else. When I had been a silk for about four or five years, I was retained to defend in the Moors murder case. The announcement was made just before the general election. I did not know the case existed until a reporter asked me about it. Some of my political opponents—not the candidates—could not resist using that fact against me in the election campaign. I had to explain in detail on the platform the nature of the cab rank rule and the duty involved. It was not the first time that the rule had effected me. I was always a circuiteer. I had to prosecute the Welsh language conspiracy case. I was hanged in effigy outside the court every day as I went out. I see someone suggesting the perhaps it should have been done properly.

The existence of the rule guaranteed the integrity that I hoped I brought to my performances. I have always believed that in a system of justice that depends upon the adversarial role of the advocates, where the adversaries clash and the judge and the jury have to discriminate between them to decide who is right, it is a tremendous support for them to know that the advocates' profession is based upon the cab rank rule.

In my 40 years' experience on my circuit, I have never known a member of the Bar not to accept the cab rank rule. I have known that people have not done so once or twice in London. In recent years especially I have heard young advocates say that they do not want to prosecute and will not prosecute, and yet they are criminal practitioners. I have heard people who, although they conduct criminal defences, have said that they will never defend an alleged rapist. I have even heard silks say that they will not do a legal aid case. All that is wrong, and I was glad today to hear that the Bar Council reiterates the cab rank rule.

We are concerned about the quality of British justice. We are not having the reform because people have pinpointed a great evil or fault in the system. We have heard praise for the legal system from all sides of the House. It is meet that we ask ourselves: how does that reputation come about? What has brought it about? Among other things, the cab rank rule has contributed to it.

6.45 p.m.

Baroness Carnegy of Lour

My Lords, I speak with trepidation, but your Lordships must recollect the point of extending rights of audience. It is that people should have a greater choice of advocate. I understand the high ideals of the Bar. I understand my noble friend Lord Alexander referring to the cab rank rule as a simple ethical principle. I see how barristers identify with the rule with regard to their integrity and how that integrity helps the court. I understand all that; but there is a practical point.

In opinion polls the public have expressed the view that they would like to have solicitor advocates. They would like to have a wider choice. The Bill tries to provide the framework for that system to operate. Given the nature of the cab rank rule, and all that we have heard about it, it seems to me that it would conflict with what the people who want recourse to the law want from their solicitors. Not every solicitor will be a solicitor advocate. They will do other work. They will be solicitor advocates for part of the time, and at other times they will have days full of appointments with clients about many matters.

It will not be much fun for the clients if they receive a postcard saying that their solicitor will have to appear unexpectedly in court because of the cab rank rule. If the rule operates as it does for barristers, solicitors will not have to do that except during the law term. They will not have to do it if it seems to them that the fee is inadequate. That point will apply to barristers, and I am sure that it will also apply to solicitors. Nevertheless, if there is a cab rank rule, in reasonable circumstances within the law term they will have to go regardless of what their clients require of them in other respects. It seems to me that such a measure simply conflicts.

I can understand the feeling that in order to have the privilege of being a barrister and undertaking what a barrister does one submits to the cab rank rule, as it has been expressed, and therefore why should not solicitors also submit to it? But if it will not work for the public there is very little point. The present arrangement by which the Law Society ensures that there will be a suitable, appropriate solicitor to do a job is very much better than that which is proposed.

It is very easy to be carried away with the idealism of the profession of the barrister which I admire greatly and which benefits people enormously. The Labour Front Bench is taking the opposite view from that taken by its colleagues in Scotland. I am not sure why that is. However, our Scottish system is different; perhaps that explains it. But barristers on both sides of the Border have such idealism. I admire it. It should continue. I find no fault with the cab rank rule. But do not let us spoil the Bill for the public by imposing such a rule on solicitors.

Lord Hailsham of Saint Marylebone

My Lords, I had not intended to say a word in this debate. I shall say only about two, and those are in consequence of what has fallen from my noble friend who has just spoken.

Let me make two or three points. The noble Baroness seemed to think that the cab rank rule would be adverse to the interest of the lay client. I wonder what she thinks the lay client would say if the person she wanted to act as an advocate, being a solicitor, said to her, "I am not going to appear for you because the man on the other side is a most valuable client of mine". That is not an imaginary circumstance.

Let me refer noble Lords to one historical incident. Lord Brougham, defending Queen Caroline, had to act adverse to his sovereign the King. That is what he was doing. He was punished for it for years by the King, who deprived him of his silk gown for doing so. The cab rank rule is a protection to the advocate because it is a protection to the public.

Lord Mishcon

My Lords, I cannot help feeling that the advocate of whom the noble and learned Lord, Lord Hailsham, spoke seemed to receive a great deal of advertisement out of acting for the Queen at that time! I do not suggest that that is the reason he accepted the brief.

1 rise only because of a remark that was made by the noble Baroness about the attitude of this front Bench. Perhaps I may make it perfectly clear that there is nothing political in the amendment. I know of no Conservative Party, Labour Party or Liberal Democrat Party view. In this debate, which is very important, one speaks as a matter of individual conscience and as one sees the matter in perspective. I do not know, frankly, whether or not it would be better for this to be dealt with by the advisory board, or whether it should be put into a statute.

I wish to say only this, and briefly. Being a proud member of a profession which has on occasions been most unfortunately divided in the course of discussions on the White Papers and Green Papers, and Part II of the Bill, in a way which has not enhanced that profession in the eyes of the public, I believe that a principle is involved, whether it be considered by an advisory body or by this House. It is that if one asks for a privilege which is equal to the privilege granted to others in the past, one accepts the burdens that have been borne by those who had that privilege in the past, and one accepts those burdens proudly.

Viscount Bledisloe

My Lords, the speeches of those opposing this matter seem to have failed to take into account the revised words of the amendment as now proposed. The amendment expressly states the principle that the advocate practising in a superior court is under a duty to act except in circumstances in which it would be unreasonable to require him to do so. The noble Lord, Lord Boardman, said that solicitors are in a different position because they are in partnership. The rules will be able to cover that. If one of the partners is acting for the other side, it will almost certainly be thought that it would not be reasonable to require him to act against his partner.

If, as the noble Lord, Lord Hacking, suggests, there are rules of the Law Society which prevent the cab rank rule as applies to the Bar being applied absolutely, the rules for the cab rank rule as applied to a solicitor advocate will be appropriately adapted to cover that. If, as suggested by the noble Baroness. Lady Carnegy of Lour, there is a solicitor in a small practice who practises partly as a solicitor and as a solicitor advocate who is asked to undertake a three-week case as an advocate which will mean abandoning all his present obligations to his other clients, obviously that will be a valid excuse for not undertaking that case.

The measure does not require one to drop all one's other obligations to clients and to rush off to do something at five seconds' notice. It has always been a reason for not accepting a brief that one has existing commitments which are incompatible because one cannot be in two places at once. The two places do not have to be, with regard to a solicitor, two courts. One may be sitting behind a desk dealing with matters that have to be dealt with by the end of the week.

Those are the only objections that are being put forward and they can all be dealt with in the rules. The only other suggestion that is put forward is that in some way consumers do not think that it is in their interests. But we have never had explained why the consumers do not think that it is in their interests. Cogent reasons have been advanced as to why it is. I give way.

Lord Boardman

My Lords, I am grateful to the noble Lord. I raise one other matter of important objection. It is that lay clients of solicitors come to them off the street. Clients of members of the Bar are referred to them by firms of solicitors. There is a complete contrast in the circumstances in which the customers come.

Viscount Bledisloe

My Lords, insofar as the solicitor will undertake conventional solicitor work, his freedom to pick and choose is not being affected. It is only the question of whether he or some other partner in his firm, or some other partner in some other firm of solicitors, will undertake the advocacy. Therefore the question of coming off the street has nothing to do with advocacy. Those circumstances relate to the preparatory work, not to the brief.

7 p.m.

Lord Hutchinson of Lullington

My Lords, as my name is to the amendment, I wish to speak for only two minutes, and to bring the matter back to its basic, total simplicity. What is the cab rank rule? The cab rank rule is that a person should have the advocate of his choice, whatever his case may be. It is the simplest possible rule. There is no question of barristers against solicitors, or against anybody else. The amendment is stating that anybody who wishes from now on to be an advocate must surely obey that rule. It is the basic rule of advocacy.

Perhaps I may point out to the noble and learned Lord that during the debate on the Scottish Bill the noble Lord, Lord Hughes, and the noble and learned Lord, Lord Emslie, who is the most distinguished lawyer in Scotland, both expressed their concern about this under the new legislation. They both asked what would happen to the cab rank rule in Scotland.

I have one last point to make. It concerns an aspect mentioned by the noble and learned Lord in Committee, and the noble Baroness also referred to it today. If solicitors can practise in the magistrates' courts without the cab rank rule, why can they not do so in the superior courts? The noble and learned Lord, Lord Emslie, made special reference to the matter in the Scottish debate on 30th January at col. 184 of Hansard. He said: It would be a mistake to assume that there is no material difference between the standard of pleading in the sheriff courts and that in the Court of Session and the High Court. Experience of a lifetime in the law of Scotland at all levels, including the sheriff court, has convinced me that the difference is real and striking". He continued thereafter to elaborate the differences. However, the difference is total. It is in advocacy in the higher courts, dealing with all the pressures in criminal courts, where it is really of crucial importance because liberty of the subject is the essence of the matter. It is in serious crime where the cab rank rule is absolutely essential. The fact that solicitors do not obey it in the magistrates' court adds nothing to the point.

I should point out to your Lordships that the cab rank rule is, as has already been said, the very basis of advocacy in this country. Where the liberty of the subject is at issue, the cab rank rule underlines the fair and proper administration of justice and is the very basis of this Bill, which is access to justice for all.

This is the one amendment put forward during the passage of the Bill which puts legal aid to the front. Moreover, it is the one amendment which has been put forward with the intention of helping the most disadvantaged in our society.

Lord Marshall of Leeds

My Lords, perhaps I may be permitted to say that I am in a somewhat privileged situation because I happen to receive briefing material from the Bar and from the Law Society. The first briefing I do not read and the second one I read not as thoroughly as I should. However, it is the view of solicitors that amendments such as these seem at first sight to be attractive. It is argued that the cab rank rule ensures that all advocates in the higher courts are subject to the same rules and thus it provides a level playing field. But it is also argued that it ensures that legally-aided litigants are properly represented.

However, on more careful analysis it is clear that the rule is not necessary to ensure proper representation. Further, to apply it to the solicitor's profession would put undesirable restrictions on the form in which solicitors could practise if they wished to exercise rights of audience.

We have heard a good deal about standards being maintained, especially from those Members of this House who are members of the Bar. We have also heard about the pressures which attend upon those who undertake highly responsible court appearances.

I practised as a solicitor in private practice for 36 years. Moreover, I expect that I am the only lawyer in this Chamber who was asked to prosecute a case of mutiny in the armed forces during the war. I knew how to behave. I did not ask that the maximum penalty should be exacted. I undertook a fair amount of mitigation because I saw this as being in the line of duty. The net result was that several of those members of the armed forces received 10 years' imprisonment. Of course, it might have been far worse for them. I think I can say that I handled myself fairly well.

I am also possibly the only lawyer in this House who advised on a charge of treason. However, that matter is by the way and is past history. I do not believe that anyone ought to talk seriously about the maintenance of standards in an argument where matters such as these are being debated.

In short, I should like to support my noble friend Lord Boardman on the basis that someone may be forgiven—indeed, an impartial observer may be forgiven—for suspecting and fearing that the cumulative effect of such an amendment may be to frustrate the general aim of the Bill. That is something which I think solicitors may reasonably fear.

The Bar need never fear for its future interests. Its future interests are safe in the competent and capable hands of those members of the Bar who have spoken during the proceedings on the Bill. However, it is not the interests of the Bar or those of solicitors which should occupy us; it is the interests of the consumer. Consumers made it plain in a Gallup poll conducted during March and April 1989 that they think solicitors should have the right to have more opportunities to represent clients. For those reasons I ask that this amendment should not pass.

Lord Donaldson of Lymington

My Lords, I do not wish to keep the House for more than literally a minute or two. However, there is something I must say. In Committee, the noble and learned Lord said: I take the view that it would be very desirable to impose some form of cab rank rule on anyone who has rights of audience in the superior courts, for the reasons indicated by my noble and learned friend Lord Oliver of Aylmerton". I agree with him on that point.

He then went on to say: However, the rule will need to be specified in considerable detail". — [Official Report 25/1/90; col. 1207.] Again, I agree with him. For that reason I and, I assume, the noble and learned Lord also, did not wish to accept the amendment moved by the noble Lord, Lord Alexander, on the last occasion. It seemed to me that it would be impossible to accept what was proposed and for the procedure in Schedule 4 to operate in such a way as to fine tune the rule when applied to the rules of a particular professional body.

However, the amendment put forward on this occasion by the noble Lord, Lord Alexander, is of a different character. It upholds the great cab rank rule with which my noble and learned friend agreed wholeheartedly. Moreover, it gives sufficient flexibility for it to be applied in real-life circumstances. after full discussion and consideration, because of the inclusion within its body of the words: in appropriate terms, and with any appropriate exceptions … except in circumstances in which it would be unreasonable". Given that change in the form of the amendment, I hope that every one of your Lordships will support it.

The Lord Chancellor

My Lords, I should like to begin by referring to the reference by my noble friend Lord Peyton of Yeovil to the concluding part of my speech in Committee. When I talked about the machinery I was not referring only to the advisory committee. He said that there is plenty of advice available and I suppose, therefore, that it is a question of distinguishing between what is good and what is bad. I was thinking of the full machinery, which includes consent to the rules by the four designated judges, the Heads of Division and the Lord Chancellor. I took the view that it was appropriate for the rules to be settled in that machinery. For that reason, I advised your Lordships—and I am glad that my noble friend took my advice on that occasion—not to support the amendment then proposed.

Some reference has been made to what I said in giving evidence to the Royal Commission on Legal Services in Scotland as long ago as 1977 or 1978. I stand by what I said then. This is an important rule, it is a rule which requires to be spelt out in considerable detail, as my noble and learned friend the Master of the Rolls has just said. It is a rule which I believe requires to be tailored to the particular circumstances. The rule which the Bar is proposing to adopt in this connection spells out these circumstances.

It is useful to say a little about that. The fundamental principles as applicable to all barristers arc set out in Rule 201, which I do not need to read. Rule 202 says: A barrister in independent practice must make his practice in England and Wales or in the Courts of the European Community his primary occupation and must hold himself out as being and must be willing at all times in return for the payment of fees to render legal services to the public generally in England and Wales. 203. A barrister in independent practice must comply with the 'Cab-rank rule' and accordingly except only as otherwise provided in paragraphs 501 502 and 503 he must in any field in which he professes to practise and irrespective of whether his client is paying privately or is legally aided or otherwise publicly funded:

1. (a) accept any brief to appear before a court in which he professes to practise;
2. (b) accept any instructions;
3. (c) act for any person on whose behalf he is briefed or instructed;

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

1. (a) if he lacks sufficient experience or competence to handle the matter;
2. (b) if having regard to his other professional commitments he will be unable to do or will not have adequate time and opportunity to prepare that which he is required to do;
3. (c) if the brief or instructions seek to limit the ordinary authority or discretion of a barrister …
4. (d) if the matter is one in which he has reason to believe that he is likely to be a witness or in which whether by reason of any connection of his with the client or with the Court or a member of it or otherwise it will be difficult for him to maintain professional independence or the administration of justice might be or appear to be prejudiced;
5. (e) if there is or appears to be some conflict or a significant risk of some conflict either between the interests of the barrister and some other person or between the interests of any one or more of his clients;
6. (f) if the matter is one in which there is a risk of a breach of confidences entrusted to him by another client or where the knowledge which he possesses of the affairs of another client would given an undue advantage to the new client;
7. (g) if he is a barrister in independent practice in a privately funded matter if the brief or instructions are delivered by a solicitor or firm of solicitors in respect of whom—"

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

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

given certain information. These are examples of the details which are spelt out in the code of conduct of which the Bar has just revised and which, quite shortly, I understand it expects to be its new code.

That indicates the nature of the rule. The rule has quite a large number of exceptions. The amendment of my noble friend Lord Alexander makes it quite plain that exceptions may be required. This is in accordance with what I said on the last occasion. The noble Viscount, Lord Bledisloe, did not start quite soon enough when reading out the amendment, because it provides: that body's rules of conduct include provisions embodying in appropriate terms, and with any appropriate exceptions, the principle that", and so on. The exceptions are made from what is suggested as the principle. That demonstrates beyond all doubt that this is properly a matter for the rules. This is a rule. I think I am right in saying that it was so described in the quotation from my noble and learned friend Lord Oliver of Aylmerton to which I particularly referred when I spoke at the Committee stage. I believe that it is a rule, one which requires to be laid down in considerable detail according to the particular circumstances.

We have a principle in the Bill which is universal, a universal principle to which there are no exceptions. I refer now to Clause 14 (1), and then particularly to subsection (3): As a general principle the question whether a person should be granted a right of audience, or be granted a right to conduct litigation in relation to any court or proceedings, should be determined only by reference to—

1. (a) whether he is qualified in accordance with the educational and training requirements appropriate to the court or proceedings;
211
2. (b) whether he is a member of a professional or other body which —
1. (i) has rules of conduct (however described) governing the conduct of its members;
2. (ii) has an effective mechanism for enforcing those rules of conduct; and
3. (iii) is likely to enforce them; and—" this is the important provision—

(c) whether that body's rules of conduct are, in relation to the court or proceedings, appropriate in the interests of the proper and efficient administration of justice". That is the principle. That is the test. If that test requires a particular rule for the Bar then that rule will be laid down. If that test requires a particular rule for solicitors in relation to rights of audience, that rule should be laid down. But, in my submission to your Lordships, it is very unwise to derogate from the universality of a principle by trying to suggest that there is another one which is subject to appropriate exceptions. That is necessary, I agree, but it demonstrates that this is not a principle but a rule. It is a rule which depends on the particular circumstances. The principle applied to the circumstances may well give rise to the rule. The general principle that I referred to applied to the circumstances may well give rise to the rule. But in other circumstances it may give rise to a rule differently expressed, as the amendment of my noble friend makes perfectly clear.

For reasons which have been explained and into which I shall not go, I think I am right in saying that the Law Society have expressed this. They have expressed the view that this amendment might be inimical to the interests of solicitors obtaining rights of audience. I do not wish to take a position upon that because as at least one of those designated who have the responsibility for approving the rules, together with my colleagues, I wish to reserve my final position until all the matters are fully discussed. However, I have fully expressed my personal view in the debate in Committee. I believe that a rule which comes under a general description, such as the cab rank rule, may well be appropriate. It may well be possible to express it in circumstances which would fit solicitors' practices. That is something I should like to take forward. However, I do not believe it would advance the interests of justice for your Lordships to include the provision that is proposed here, which is really a rule, alongside the clear, agreed, cogent statement of principle that we have in the Bill.

My noble friend Lord Alexander of Weedon referred to two solicitors' firms which had indicated that they were not prepared to accept legal aid to defend people who were alleged to have raped their girlfriends. That is how I understand the case. That is a matter which I should certainly like to consider. However, this amendment would not deal with that case at all because it deals only with the rights of audience in the superior courts. My noble and learned friend Lord Ackner appears to have some doubt about that but I believe it is plain that this amendment deals only with rights of audience in the superior courts. Therefore it would not affect the right of solicitors to conduct litigation. I believe that was the matter at issue in the solicitors' statement when they said they would not act in the sense of conducting litigation on behalf of people accused of rape in the circumstances referred to. That is how I understood the matter. If I am wrong about that, no doubt I shall be corrected.

Lord Ackner

My Lords, if that is an invitation to speak I rise to it. The solicitors involved are not yet able to apply for rights of audience in the higher courts. That was merely an example of how, as the situation stands at the moment, solicitors pick and choose and how undesirable it would be if they were entitled to advocacy in the higher courts while they still maintained that philosophy.

The Lord Chancellor

My Lords, that is precisely what I had understood to be the position. I do not regard that situation as satisfactory at present. I do not believe that this amendment would deal with that situation because it deals only with rights of audience in the higher courts. It suggests that the rule is appropriate only in relation to rights of audience in the higher courts.

The noble Lord, Lord Hutchinson of Lullington, referred to the speech of my noble and learned friend Lord Emslie on the Scottish matter. The context in which he made reference to that suggested that there were differences between the sheriff court and the higher courts. I think everyone would agree with that. However, if one takes the statements of principle which my noble and learned friend Lord Ackner took from the Appellate Committee of this House in the case referred to, one can see that they are very general statements. To the Bar's credit it must be said that as I understand it, the Bar's rule at the present moment applies to the Bar in every court and not just in the superior courts. That is an important point. Justice is just as important in the magistrates' court as it is in the superior courts. If the provision is a fundamental rule for justice, it ought not to be restricted only to the superior courts. Surely we are in the business of providing justice at every level and not just in the superior courts.

The amendment makes it plain that it concerns the rights of audience in the superior courts. Therefore the rule it proposes is appropriate for those circumstances. However, I am saying that the general principle that we have here is a general principle of universal application to which there are no exceptions. I hope that we shall have the chance as the Bill develops, and as it is put into practice when it becomes law through the advisory committee and the designated judges, to see the rules of justice and the principle of the proper and efficient administration of justice apply in all courts at all levels. There should be a reference in the rules to the rules for conducting litigation as well as to the rules of rights of audience in the superior courts.

I entirely agree that this is an appropriate rule to consider as regards advocates in the superior courts. However, I say to your Lordships that the rules are the rules. The general principle dictates what the rules should be. Your Lordships would be well advised to leave that matter to the delicate but effective machinery which the Bill has provided and on the general principles of which I believe your Lordships are now substantially agreed.

Lord Alexander of Weedon

My Lords, I thank most warmly all noble Lords who have taken part in or listened to the debate. I shall begin by referring to two points which my noble and learned friend made towards the end of his response. The first concerned those firms of solicitors which refuse to represent rapists. As I understand it, he regards that as something that may have to be looked at. The point I was making was that if and in so far as that attitude was extended to advocacy in the superior courts it would be undesirable. My noble and learned friend appears to accept that. He accepts that we need justice in all courts. Therefore I ask your Lordships quite simply this evening why we should not then begin with regard to the superior courts tonight.

I shall now move on to deal with the other point which my noble and learned friend made. I believe it was the only other point he made. He stressed that we were discussing a rule and not a principle. In his response he made that point many times. However, he also said that he stood by every word of what he had said when he was Dean of the Faculty of Advocates in 1977. That is not in the context of a principle of centuries so long ago. My noble and learned friend described then what he now describes as a rule—I hope he will forgive me for saying so—as a constitutional guarantee. To my mind a constitutional guarantee is a matter of principle.

The Lord Chancellor

My Lords, I believe I am right in saying that on that occasion I said that this rule was a constitutional guarantee. However, I may be wrong about that.

Lord Alexander of Weedon

My Lords, what I am sure about is that my noble and learned friend, whether he then described it as a rule or not, undoubtedly mentioned the words "constitutional guarantee". Why should we not elevate a constitutional guarantee into a principle? That is what I always thought constitutional guarantees were, even if they could also be described as rules.

I wish to refer to another point which has crept into this debate. I believe that my noble friend Lord Hacking raised it. It was suggested that the Bar would prosper in certain circumstances. If I may use the vernacular, who gives a damn whether the Bar will prosper? Who gives a damn whether the measure is inconvenient to solicitors? What matters is the point that my noble friend Lord Irvine made, which is that this matter concerns the interests of the public. We should all forget which side of the profession would benefit from this and decide the issue as one of principle.

I shall deal briefly with the arguments raised against the measure. I say with respect to my noble friend Lord Boardman that I found some difficulty with his argument. He accepted that the rules could be flexible under the terms of our amendment. We are agreed there. I believe he also accepted that it was desirable that the same principle should apply to all advocates. We agree there, too. However, he then went on to suggest that the same rules should not apply to solicitors. I find difficulty with that suggestion with great respect to my noble friend. What concerns me is that reputable solicitors have, in contributing to this debate, suggested that the rule cannot apply to them. It appears that solicitors are reluctant to accept the extension of the monopoly with the corollary of the obligation to the public.

When I referred to solicitors I did not mean all solicitors as there is no more experienced solicitor advocate in this Chamber than the noble Lord, Lord Mishcon. He spoke for the principle as eloquently as anyone in this House has done. In regard to the reservations that were expressed on a previous occasion, the noble and learned Lord the Master of the Rolls, with his responsibility for the development of the solicitors' profession, accepts that this principle could be enshrined in legislation. I take comfort from that.

I now turn to one final issue. I make the following remarks with a little trepidation but I do so with regard to the sense of this debate. My remarks are prompted by what was said by my noble friend Lord Peyton. I believe he said that on the previous occasion that this matter was debated he had not heard the debate, yet with some unease but obediently—we all seek to behave obediently in appropriate circumstances—he voted for the Government; now that he has heard the arguments, he repented.

My noble and learned friend speaks with all the authority of the Woolsack. The noble Lord the Leader of the House, who has been present during most of the debate—and we thank him for that—is known to be sensitive to the wishes of Members of the House. Bearing in mind the sense of the debate on the two occasions, I ask whether the Government want, if by any chance there are some of their troops within this House who have been unavoidably prevented from hearing the debate, to take them into the Lobbies against us on what has been described on all sides not as a political issue but as an issue of conscience. If, even at this hour and having heard what has been said, my noble and learned friend will not accept the principle of the amendment and bring the matter back at Third Reading I shall seek to take the opinion of the House.

Before I do so, perhaps I may say that I was grateful to the noble and learned Lord for indicating, in regard to what he said on the last: occasion, that what we had said as to the ability of the advisory committee to frame rules met anxieties. In the course of his speech he referred to the details of the Bar Council's rules. With great respect to him, that has nothing to do with our present debate. The details of the rules can be worked out in due course. We believe that those involved will do so. However, if we had a principle that would show that in this period of alteration—which can be made to work—when we are committed to extending rights of audience we are committed to doing so according to principle, according to standards that have stood for centuries, and according to standards which I now invite this House once again to reassert.

7.31 p.m.

On Question, Whether the said amendment (No. 74) shall be agreed to?

Their Lordships divided: Contents, 99; Not-Contents, 92.

DIVISION NO. 2
CONTENTS
Ackner, L.	Lowry, L.
Airedale, L.	Macaulay of Bragar, L.
Alexander of Weedon, L.	Mackie of Benshie, L.
Barnett, L.	Macleod of Borve, B.
Beloff, L.	Masham of Ilton, B.
Blackstone, B.	Meston, L.
Bledisloe, V.	Mishcon, L.
Brandon of Oakbrook, L.	Monson, L.
Bridge of Harwich, L.	Morris, L.
Brooks of Tremorfa, L.	Nicol, B.
Campbell of Alloway, L.	Oliver of Aylmerton, L.
Carlisle of Bucklow, L.	O'Neill of the Maine, L.
Carmichael of Kelvingrove, L.	Parry, L.
	Pender, L.
Carnock, L.	Perry of Walton, L.
Cledwyn of Penrhos, L.	Peyton of Yeovil, L.
Crickhowell, L.	Pitt of Hampstead, L.
Cross, V.	Prys-Davies, L.
David, B.	Pym, L.
Denman, L.	Rawlinson of Ewell, L.
Dilhorne, V.	Rees, L.
Donaldson of Lymington, L.	Renton, L. [Teller.]
Dormer, L.	Rippon of Hexham, L.
Erroll, E.	Robson of Kiddington, B.
Falkland, V.	Rochester, L.
Fisher of Rednal, B.	Roskill, L.
Foot, L.	Russell, E.
Gallacher, L.	Russell of Liverpool, L.
Galpern, L.	Saltoun of Abernethy, Ly.
Goff of Chieveley, L.	Seear, B.
Graham of Edmonton, L. [Teller.]	Selkirk, E.
	Sherfield, L.
Grey, E.	Simon of Glaisdale, L.
Grimston of Westbury, L.	Stoddart of Swindon, L.
Hailsham of Saint	Strabolgi, L.
Marylebone, L.	Swinfen, L.
Halsbury, E.	Taylor of Blackburn, L.
Hampton, L.	Templeman, L.
Hanworth, V.	Terrington, L.
Harmar-Nicholls, L.	Thomas of Gwydir, L.
Harris of Greenwich, L.	Tordoff, L.
Hooson, L.	Turner of Camden, B.
Hutchinson of Lullington, L.	Vinson, L.
Hylton-Foster, B.	White, B.
Irvine of Lairg, L.	Wigoder, L.
Jauncey of Tullichettle, L.	Wilberforce, L.
Jay, L.	Williams of Elvel, L.
Jenkin of Roding, L.	Winchilsea and Nottingham, E.
Jenkins of Putney, L.
Kinnoull, E.	Winstanley, L.
Knutsford, V.	Wynford, L.
Lloyd of Kilgerran, L.

NOT-CONTENTS
Allenby of Megiddo, V.	Bridgeman, V.
Ampthill, L.	Brookeborough, V.
Annaly, L.	Brookes, L.
Arran, E.	Brougham and Vaux, L.
Ashbourne, L.	Byron, L.
Balfour, E.	Caithness, E.
Bauer, L.	Carnegy of Lour, B.
Beaverbrook, L.	Clanwilliam, E.
Belstead, L.	Coleraine, L.
Bessborough, E.	Colnbrook, L.
Blatch, B.	Craigavon, V.
Blyth, L.	Craigmyle, L.
Boardman, L.	Davidson, V. [Teller.]
Borthwick, L.	Denham, L. [Teller.]
Boyd-Carpenter, L.	Elibank, L.

Elliot of Harwood, B.	Mills, V.
Elliott of Morpeth, L.	Milverton, L.
Ferrers, E.	Montgomery of Alamein, V.
Fisher, L.	Mountevans, L.
Fortescue, E.	Mountgarret, V.
Fraser of Carmyllie, L.	Munster, E.
Gibson-Watt, L.	Murton of Lindisfarne, L.
Gisborough, L.	Nugent of Guildford, L.
Goodman, L.	Orkney, E.
Goold, L.	Phillips, B.
Greenway, L.	Platt of Writtle, B.
Hacking, L.	Polwarth, L.
Hayter, L.	Raglan, L.
Henderson of Brompton, L.	Rankeillour, L.
Henley, L.	Reay, L.
Hesketh, L.	Redesdale, L.
Hives, L.	Renwick, L.
Home of the Hirsel, L.	Rochdale, V.
Hooper, B.	Sanderson of Bowden, L.
Johnston of Rockport, L.	Skelmersdale, L.
Joseph, L.	Stedman, B.
Kinloss, Ly.	Stodart of Leaston, L.
Lindsey and Abingdon, E.	Strange, B.
Long, V.	Strathclyde, L.
Lyell, L.	Strathmore and Kinghorne, E.
McColl of Dulwich, L.
Mackay of Clashfern, L.	Swinton, E.
Mackintosh of Halifax, V.	Tonypandy, V.
Margadale, L.	Trefgarne, L.
Marshall of Leeds, L.	Trumpington, B.
Merrivale, L.	Ullswater, V.
Mersey, V.

Resolved in the affirmative, and amendment agreed to accordingly.

Lord Alexander of Weedon moved Amendment No. 75: Page 13, line 4, at end insert ("; and (d) whether, as regards rights of audience in any of the superior courts other than those exercisable by solicitors (in their capacity as solicitors) immediately before the 7th December 1989, that body's rules of conduct include provisions embodying in appropriate terms, and with any appropriate exceptions, the principle that, except in circumstances in which it would be unreasonable to require him to do so, an advocate practising in any of those courts is under a duty to act for any client (whether legally aided or not) in cases within his field of practice, ").

The noble Lord said: My Lords, we heard the argument for Amendment No. 75 with the argument for Amendment No. 74. I beg to move.

On Question, amendment agreed to.

Lord Alexander of Weedon moved Amendment No. 76: Page 13, line 5, at end insert— (" () In this section "the superior courts" means the Supreme Court, the House of Lords and the Judical Committee of the Privy Council.").

On Question, amendment agreed to.

The Earl of Strathmore and Kinghorne

My Lords, I beg to move that further consideration on Report be adjourned. In moving the Motion, perhaps I may suggest that the Report stage begin again at 8.40 p.m.

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

7.40 p.m.