Lords Sitting of 22 February 1990

Preamble
The House met at three of the clock (Prayers having been read earlier at the Judicial Sitting by the Lord Bishop of Newcastle): The Lord Chancellor on the Woolsack.
The Earl of Lindsay The Earl of Lindsay—Sat first in Parliament after the death of his father.

Royal Assent
The Lord Chancellor (Lord Mackay of Clashfern): My Lords, I have to notify the House, in accordance with the Royal Assent Act 1967, that the Queen has signified her Royal Assent to the following Acts and Measure:

St. George's Hill, Weybridge, Estate Act,

New Southgate Cemetery and Crematorium Limited Act,

Hythe Marina Village (Southampton) Wavescreen Act,

Isle of Wight Act,

Buckinghamshire County Council Act,

United Medical and Dental Schools Act,

London Local Authorities Act,

Penzance Albert Pier Extension Act,

City of London (Spitalfields Market) Act,

Clergy (Ordination) Measure.

Waste Paper Recycling
Baroness Nicol Baroness Nicol asked Her Majesty's Government:
What advice they are giving to local authorities and voluntary groups about waste paper recycling, in view of the present depressed state of the waste paper market.
The Parliamentary Under-Secretary of State, Department of the Environment (Lord Hesketh): My Lords, our consistent message has been that anyone who is involved in collecting waste paper should keep in close touch with their local waste paper merchant so that they know about the state of the market. The Government share the concern about the present glut of low grade paper, although there are signs that the market is again picking up and we are doing all that we can to encourage this.
Baroness Nicol: My Lords, I thank the Minister for that Answer. I am not quite sure what he hopes will result from keeping in touch with the waste paper merchants. The city of Cambridge set up a collection in response to government exhortations. It now finds itself told by its merchants that the value has fallen from £18 to £14, then to £10, £5 and now to nothing. Is the Minister aware of the damage that is caused by setting up the mechanism
382
necessary, both in voluntary groups and local associations, which rely on the co-operation of people collecting the paper, only to find that the demand disappears? Can the Government do nothing to encourage markets?
Lord Hesketh: My Lords, the situation is in part a victim of its own success. However, I can assure your Lordships that further capacity will come on stream within the next two or three years. That is why, in my Answer to the noble Baroness, I indicated that we saw reasons for believing that there would be a restoration of market prices.
The Earl of Kimberley: My Lords, may I ask my noble friend where a lot of the surplus waste paper from the Palace of Westminster goes, and how much there is of it?
Lord Hesketh: My Lords, in answer to my noble friend I can assure your Lordships that all the paper and cardboard from the Palace of Westminster is sent for recycling. How much there is I am afraid I am unable to say.
Lord Graham of Edmonton: My Lords, does the Minister understand that words and encouragement are not enough? If the local authorities and the major waste disposal authorities have a large part to play, it is essential that the Government recognise that there needs to be government involvement in the market mechanism. Is the noble Lord aware that literally billions of tonnes of paper could be salvaged and reused? That paper is simply being thrown on the waste heap. Is this not another case of the Government encouraging themselves to put their money where their mouth is?
Lord Hesketh: My Lords, perhaps the noble Lord, Lord Graham, is suggesting that the Government should purchase recycled paper for no use whatsoever. What the Government can do is this. My colleagues in the Department of Trade and Industry have a recycling forum where consumers and markets are brought together and encouraged to provide the result which we all wish to see: a great increase in the recycling of waste paper.
Lord Strabolgi: My Lords, is it true that we import large quantities of waste paper for recycling from the United States? Do the Government think that this is a good idea when there is not enough capacity in this country for the collections which are carried out so efficiently by local authorities such as, for example, Westminster?
Lord Hesketh: My Lords, I am pleased to hear an endorsement of Westminster City Council by the noble Lord, Lord Strabolgi. I can assure him that one of the difficulties is that there are many different classes and grades of paper which are suited to different uses and the different requirements of the market. I am sorry to say this but it is a rather more complicated issue than simply a case of paper being turned into a simple product.
The Earl of Lauderdale: My Lords, when my noble friend says that more capacity will be available, will that capacity generate more waste paper or consume it? Would he agree that a reduction in legislation might go some way towards helping to solve our problems?
Lord Hesketh: My Lords, I can assure the House that the capacity to which I was referring was of recycling waste paper.
Lord Hylton: My Lords, is the Minister aware that the DoE uses recycled paper for its parliamentary correspondence? Will he encourage other departments to follow that admirable example?
Lord Hesketh: My Lords, I am grateful for that intervention. I can assure your Lordships that the amounts of recycled paper consumed vary from between 50 per cent, to 100 per cent, in that department.
Lord Stoddart of Swindon: My Lords, as to the question asked by the noble Earl, Lord Lauderdale, is it not a fact that the country is awash with unsolicited paper? It comes not only to the Palace of Westminster but through everybody's letterbox every day. Can the Government do something to reduce this enormous pile of paper which eventually becomes unsaleable waste paper?
Lord Hesketh: My Lords, the noble Lord, Lord Stoddart, would not expect me to interfere in free and lawful communication. However, I am sure that all of your Lordships are aware that later on this year the Green Bill will appear in your Lordships' House. There will be much discussion then on the matter of paper lying about the countryside.
Lord Graham of Edmonton: My Lords, the Government rely upon the business efficiency of the industry and the beneficence of local authorities in subsidising collections. Can the Government consider as a third possibility, that in order to encourage recycling from the collection of paper, they themselves should make grants or give assistance through the rate support grant to local authorities like Cambridge? Those authorities may have spent a considerable amount of capital in order to do the Government's job.
Lord Hesketh: My Lords, at the end of the day it will be the demand for paper in the market that will drive on the success of the recycling, which will be initiated by the assistance of the Government in letting the market and the consumer come together.

Public Holidays
3.10 p.m.
Lord Boyd-Carpenter Lord Boyd-Carpenter asked Her Majesty's Government:
Whether they have now reached a decision on the rearrangement of the dates of public holidays.
The Parliamentary Under-Secretary of State, Department of Employment (Lord Strathclyde): My Lords, no. A number of differing views have been expressed about the pattern of public holidays, including the position of the first Monday in May. We continue to keep this matter under review.
Lord Boyd-Carpenter: My Lords, in the course of that review will my noble friend take into account—he will be aware of this fact if he looks at his diary—that in the six weeks from 16th April to 28th May of this year there are three Bank Holidays, that is one a fortnight? However, during the following seven months until Christmas there is only one Bank Holiday. From the point of view of the public and of employees and employers is that not a nonsensical distribution? Is it not time that the Government's prolonged consideration of this matter reached a conclusion?
Lord Strathclyde: My Lords, the analysis of my noble friend sounds reasonable. In 1990 and in 1992 there will be some quite severe bunching as regards the three main Bank Holidays at Easter, May Day and at Whitsun. However, the matter is not quite so simple as my noble friend suggests. There are a number of factors to take into account. As I said, we are still looking at the situation carefully to see whether or not a consensus will arise.
Baroness Turner of Camden: My Lords, will the Minister take into account in his continuing consideration the fact that other member states of the EC often have a far greater number of holidays than is the case in this country? It might aid the bunching to which the Minister has referred if we had some bunching at the other end of the year.
Lord Strathclyde: My Lords, it comes as no surprise that the noble Baroness would like us all to have more holidays. However, as is so often the case, comparisons between what we do in this country and what is done on the Continent are not entirely fair. A casual look at any good diary will show that there is no conformity on the Continent as is the case in the four constituent parts of Great Britain. Therefore, I do not think the suggestion of the noble Baroness is necessarily a good one.
Baroness Phillips: My Lords, has the Minister considered the suggestion that I have made on many occasions and which is linked to the Question of the noble Lord, that if we had a four-term year that would work out much more neatly as regards holidays? So far as I know, universities and other institutions are in favour of that solution. I ask the Minister to look once again at that solution to the problem.
Lord Strathclyde: My Lords, I am sure that the point of the noble Baroness will be considered as part of the review which is considering how to deal with the Bank Holidays.
Lord Airedale: My Lords, is the Minister aware that Easter Monday can occur so late as to fall only one week before the May Day holiday? Is that a satisfactory situation?
Lord Strathclyde: My Lords, the reason for that is that Easter is a movable Feast. We have discussed that matter on many occasions. We have suggested that the interested bodies, particularly the Churches, should reach some kind of consensus on that point.
Lord Hankey: My Lords, will the Government consider the merits of a mid-summer holiday around the end of June?
Lord Strathclyde: My Lords, there have been a whole variety of suggestions. People have suggested a Churchill Day, a Trafalgar Day, a St. George's Day and even a Waterloo Day on 15th June. As we have a Labour Day on 1st May some consider that we should have a Conservative Day. That demonstrates the problem as regards the whole of this issue.

Marine Nature Reserves
3.14 p.m.
Baroness Nicol Baroness Nicol asked Her Majesty's Government:
Whether they can yet announce a date for designation of the proposed marine nature reserve at Skomer and whether any progress has been made on the other five sites identified in 1981.
Lord Hesketh: My Lords, I cannot announce a date for the designation of the proposed marine nature reserve at Skomer but I understand that it is intended to publish the notice of the draft order within the next month. The Nature Conservancy Council published its consultation paper on the proposed marine nature reserve at Menai Straits in September 1988 and has been seeking through consultation to resolve the objections received, which have been mainly from yachting interests. It is now redrafting the consultation paper and hopes to submit its formal application for designation to the Secretary of State for Wales later this year.
Baroness Nicol: My Lords, I thank the Minister for his Answer. However, it is depressing that these sites were identified in 1981 but we are still apparently not in sight of a conclusion. The Minister has only mentioned Skomer and Menai but there are three other sites which have also been identified about which he said nothing. Will it take 10 more years in each case or 10 years consecutively to reach a conclusion on those sites? How can we take the Government's commitment to marine conservation seriously if they appear to put so little effort into the creation of marine nature reserves?
Lord Hesketh: My Lords, I hope I can put the mind of the noble Baroness somewhat at rest on this matter. At St. Abbs Head and on the Isle of Lundy the voluntary arrangements that are in place are considered by the Nature Conservancy Council to be working very well. The activities that have been taking place with regard to Skomer have held up two other sites, but I can assure the noble Baroness that we believe passionately that in the case of marine reserves, which are the most difficult of all reserves, we have to achieve consensus with all those who use and might possibly abuse the reserves.
Baroness Nicol: My Lords, I understand that Lundy has been designated a statutory reserve and is not a voluntary reserve.
Lord Hesketh: My Lords, I stand corrected by the noble Baroness.
Lord Cledwyn of Penrhos: My Lords, my noble friend has raised matters of considerable public importance. Is it not the case that the applications to designate Skomer and the Marloes Peninsula were made in 1984? Those and other applications seem to have been shelved without any urgency of action for several years in respect of that area and other areas. Will the Minister explain to the House the cause of the delay of several years in coming to a conclusion on Skomer and Marloes?
Lord Hesketh: My Lords, I understand that the noble Lord should feel that it is taking a considerable period of time to resolve this matter. However, we feel it is absolutely imperative that we achieve the right arrangements because it is impossible to ring-fence a marine site. That is why it is so difficult to reach a satisfactory conclusion where everyone is in agreement so that marine nature reserves work successfully.
Lord Williams of Elvel: My Lords, I agree with the Minister that we must obtain the maximum amount of co-operation in these cases. However, following on from the question of my noble friend, will the Minister confirm that the sub-aqua divers association is the main obstacle to declaring a marine reserve in Cardigan Bay? That position has lasted for some time and the association has declared itself opposed to marine reserves in principle and therefore will never agree to any such reserves.
Lord Hesketh: My Lords, I am a great believer in the powers of persuasion.

The Community Charge and Second Homes
3.18 p.m.
The Marquess of Ailesbury The Marquess of Ailesbury asked Her Majesty's Government:
Why local authorities are permitted to raise from the owners of second homes a standard community charge which is twice the personal charge.
Lord Hesketh: My Lords, Her Majesty's Government believe it is right that owners of second homes should contribute towards the cost of fire, police and other local authority services from which they benefit. A local authority may set the standard charge on second homes at any one of five multiples between 0 and 2 of the personal community charge for its area. That is a discretion which enables authorities to balance service costs with what would be appropriate in different types of circumstances.
The Marquess of Ailesbury: My Lords, I thank the noble Lord for that reply. However, does he appreciate that some of us who support the principle of the community charge—namely, that every individual should contribute towards the cost of services—regret the abandonment of that principle in this area?
Lord Hesketh: My Lords, as I said in my first Answer, we feel that if an individual owns a property he should make a contribution. We have left it to local authorities to determine what they feel the contribution should be in fixing the multiplier, or a series of multipliers if they feel that is appropriate.
Lord Graham of Edmonton: My Lords, does the Minister accept that there are some circumstances where the proposed charge is very onerous, for example where a person is not purchasing a second home but is for a period in possession of a second house because he cannot sell his first house due to market conditions? Such a person is in danger not only of paying exorbitant mortgage rates but also of being trounced as regards the poll tax. Is this not yet another example of the stupidity of the poll tax?
Lord Hesketh: My Lords, the regulations reflect those that existed with the system of rates, which is that for the first three months after a house has been vacated no community charge is liable. It is only after that period that it is payable, as was the case formerly under the rating system.
Lord Grimond: My Lords, is not the logic behind the poll tax supposed to be that it is a contribution for services? Do not most people make far more use of the services in their first home than those in their second home? Yet those people will pay a higher charge for their second home. Have any special arrangements been made for people who require a second home not as a holiday home but because, for instance, they have to work in London while they have obligations in the country? I am thinking of Members of Parliament of both Houses. Have any special arrangements been made in their case?
Lord Hesketh: My Lords, in the case of an individual who owned a house in London and also a house in the country it would be perfectly possible for the community charge registration officer to designate the London house as the home where the individual and his wife lived and for the children to be educated by the local authority in whose area the house in the country was situated. In those circumstances he would probably gain more in terms of services.
Regarding the situation as it affects Members of your Lordships' House, noble Lords will be able to offset the cost of one standard community charge, regardless of the multiplier applied, in respect of additional accommodation which they occupy wholly or mainly for the purposes of attending the House against the overnight subsistence element of your Lordships' reimbursement allowance.
Lord Shackleton: My Lords, can the noble Lord explain how that can be claimed? Is it claimed against the expenses that noble Lords claim? The provision in expenses in relation to rates is only about £70.
Lord Hesketh: My Lords, I do not believe that I can usefully add to the information that I have already given.
Baroness Phillips: My Lords, the Minister did not answer the previous question fully. Do Members in another place, most of whom have second homes, have to pay a community charge on both?
Lord Hesketh: My Lords, their tax treatment is entirely different. Members with constituencies outside London may in certain circumstances be eligible to claim against the additional cost allowance for the reimbursement of the standard community charge payable on a second home.
Lord Jenkins of Putney: My Lords, does the Minister agree that we do not legislate primarily for the benefit of the Members of this House or of the other place? Does he also agree that the majority of the people in this country do not have two houses and many of them do not have one? Is it not the case that many of us would be very happy if the charge for a second house were three times instead of twice the personal charge?
Lord Hesketh: My Lords, I believe that the question of the noble Lord, Lord Jenkins, is slightly wide of the Question on the Order Paper and rather broadens the scope of the Question.
The Earl of Onslow: My Lords, is my noble friend aware that there were those of us who had an inkling two years ago that the poll tax was not the best tax to charge? Is he further aware that the convolution of his answers has led me to the conclusion that in no way will it last as long as rates—which were founded by King James I of blessed memory—and that there is no way in which the community charge will last 300 years?
Lord Hesketh: My Lords, one of the great joys of our country is freedom of expression and opinion.

Business
3.22 p.m.
Lord Denham: My Lords, it may be for the convenience of the House if I announce that the Report stage of the Courts and Legal Services Bill will be adjourned at about 7 p.m. for about one hour and that during that adjournment the Committee stage of the Chlorofluorocarbons (Control) Bill will be taken.

Government Trading Bill
Brought from the Commons; read a first time, and to be printed.

Capital Allowances Bill [H.L.]
Read a third time.
The Lord Chancellor: My Lords, I beg to move that the Bill do now pass.
Moved, That the Bill do now pass.—(The Lord Chancellor.)
Lord Mishcon: My Lords, I rise to extend the usual courtesies and to thank the members of the committee drawn from both Houses for their efforts in going through what was, in this case, a very complicated consolidation Bill.
The Lord Chancellor: My Lords, I should like to join the noble Lord, Lord Mishcon, in thanking the committee for its efforts in what he has correctly described as a complicated consolidation. I should also like to thank the Law Commission and the draftsmen for their efforts.
On Question, Bill passed, and sent to the Commons.

Courts and Legal Services Bill [H.L.]
3.24 p.m.
The Lord Chancellor: My Lords, I beg to move that the Bill be now further considered on Report.
Moved, That the Bill be further considered on Report.—(The Lord Chancellor.)
On Question, Motion agreed to.
Clause 24 [Rights of audience]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 103:
Page 19, line 16, leave out ("is granted") and insert ("has").
The noble and learned Lord said: My Lords, in moving Amendment No. 103 I should like to speak also to Amendments Nos. 104 and 106 to 109. The amendments give effect to the principle contained in the amendment of the noble Lord, Lord Renton, Amendment No. 139ZJ, which he tabled at Committee but kindly withdrew pending my further consideration as to how best to put it into effect.
The amendments seek to ensure that only current entitlements to exercise rights of audience confer such rights. They provide that where a person has been granted a right of audience by an authorised body, a court or any enactment, he or she shall no longer possess that right if that authorised body or that court withdraws it. Similarly, there will be no right if the provisions of that enactment are disapplied or the right is otherwise granted temporarily or conditionally and subsequently lapses. The disciplinary powers of authorised bodies shall thus be preserved. I beg to move.
Lord Renton: My Lords, this is the first of a number of amendments to be moved today by my noble and learned friend to deal with points which I and others raised at Committee stage. 1 should like to say now that I am grateful to him for what he has done in connection with this amendment, which is quite an
390
important small change. To save the time of the House, I hope that my noble and learned friend will take it for granted that we shall be grateful to him on each of the matters to which he will refer later.
The Lord Chancellor: My Lords, I am very grateful to my noble friend. I am also grateful for the time-saving way in which he has expressed his gratitude for later amendments.
On Question, amendment agreed to
The Lord Chancellor The Lord Chancellor moved Amendment No. 104:
Page 19, line 17, after ("proceedings") insert ("granted").
On Question, amendment agreed to.
Lord Hacking Lord Hacking moved Amendment No. 105:
Page 19, line 19, leave out ("and rules of conduct").
The noble Lord said: My Lords, this is a probing amendment. It arises out of some concern which was felt by members of my side of the legal profession over an idea that was floated by the noble and learned Lord the Master of the Rolls and was also contained in the judges' response to the Green Papers. That was the suggestion that there should be a division between those who prepare cases for litigation and those who present those cases in court. In putting forward the idea the noble and learned Lord flattered my side of the profession, referring to those who prepare cases as the "think men" and those who present them as the "speak men".
The consequence could be that the advisory committee or even one designated judge exercising a power of veto under paragraph 11 of Part II of Schedule 4 to the Bill could disapprove of rules of conduct, either of the Bar or of solicitors, unless there was such a division between those who prepare and those who present cases in court. That is so notwithstanding the terms of the statutory objective contained in Clause 14 because of the proviso contained in that clause of maintaining the proper and efficient administration of justice.
I disagree with the proposition that there should be a division between those who prepare cases and those who present them to the court, but there is a respectable school of thought which thinks otherwise. That possibility has clearly been taken into account in the drafting of Clause 20 of the Law Reform (Miscellaneous Provisions) (Scotland) Bill which is also before your Lordships' House and which relates to extended rights of audience for solicitors in Scotland. Under the scheme in that Bill solicitors will be entitled as of right to full rights of audience when they have satisfied the equivalent of the qualification regulations. Those are the regulations which concern education and training.
Those regulations or rules, as they are referred to in the Scottish Bill, have to be approved by the Lord President and the Secretary of State after consulting the Director General of Fair Trading. Although solicitors also have to abide by rules of conduct, such rules have to be approved by the Lord President and the Secretary of State. The making of such rules is not a condition precedent to the acquisition of rights of audience by solicitors. Therefore, under Clause 20 of the Scottish Bill, no regulations or rules

391
relating to conduct which require the approval of the Lord President are a condition precedent for the acquisition of full rights of audience. That must be contrasted with the way that the matter has been structured in the Bill.
I put the amendment before noble Lords as a probing amendment, probing perhaps not only of the noble and learned Lord the Lord Chancellor but also of the noble and learned Lord the Master of the Rolls—the think man and the speak man. I beg to move.
3.30 p.m.
Lord Campbell of Alloway: My Lords, perhaps I may ask a question. The words,
"have been approved for the purposes of this section, in relation to the granting of that right,"
refer exclusively to the right of audience at line 13 and there is therefore no problem such as was suggested by the noble Lord. I hope that noble Lords may consider that references to the judge's veto are not altogether too well conceived.
Lord Mishcon: My Lords, perhaps I may make a short plea to the noble and learned Lord the Lord Chancellor. From his point of view, it is one which will fall onto ears that are ready to listen. Would it not be advisable to ensure so far as is possible that our laws, especially those governing professions of a similar nature, are the same both north and south of the Border? Is not this a case in which consistency with the Scottish Bill will be brought into our own Bill? Is that not a good reason for accepting the amendment?
Lord Donaldson of Lymington: My Lords, I am not sure whether the term "probing amendment" has a slightly different meaning on this occasion and whether I am being probed. The suggestion that I would in some way use my powers as a designated judge to favour a separation of functions, because I may personally believe in such a separation, is misconceived.
As I understand and approve of it, under the machinery of the Bill the advisory committee, my noble and learned friend the Lord Chancellor and the two branches of the profession together with the designated judges, will discuss all the different views that have been put forward in the press and elsewhere as to the way in which litigation should be conducted, both in respect of separation and in other respects. They should be guided by the interests of justice, which is the paramount consideration. Indeed, the interests of the two branches of the profession do not matter at all. It is the interests of the clients who are involved and, above all, the interests of justice which matter. I have no idea how those conflicting views should be resolved. I should value the views of others on the matter and should obtain them as a result of the machinery.
It may be that the ultimate answer is that there is no case for separate preparation and separate advocacy. It may be that there is a case, but that it arises only in relation to particular proceedings. At
392
present there is a wide field of litigation in which it does not apply; namely, the county courts. I merely want to make it clear that my mind is certainly not closed and I am confident that of the minds of the designated judges none are closed. We want to hear the views of everyone and, in the light of those views, in so far as any of us have formed provisional views, they will be modified.
As I understand it, the amendment would prevent anyone from approving the rules of conduct of the professions, with the possible exception of the Law Society, which would be stuck with me under the residual powers under the Solicitors Act if the amendment were accepted. I should have thought that from its point of view it might be better to have three other minds to influence my mind, but that must be a matter for the Law Society.
Lord Ackner: My Lords, perhaps I may make one limited observation on the intervention of the noble Lord, Lord Mishcon. There is much to be said for consistency between Scotland and England. I support that. Under the Scottish Bill there is to be no advisory committee. I strongly support that. Under the Scottish Bill the Lord President—the equivalent of our Lord Chief Justice—is to have concentrated into him substantial powers. I support that. Under the Scottish Bill, as I read it, the Lord President decides who are to be the judges of the Scottish Court of Appeal. I support that. Finally, under the Scottish Bill, there is no question of laymen—my noble and learned friend the Lord Chancellor knows what I mean by that term; I mean non-lawyers—becoming judges. By all means, let us have consistency, but let us be wholly consistent.
The Lord Chancellor: My Lords, the question of consistency with Scotland will produce interesting discussion as we move through the amendments, including one to be moved shortly by the noble Lord, Lord Hutchinson of Lullington.
It is fair to say that the legal systems of Scotland and of England and Wales have distinctive features which it is wise to recognise. The solution that may be appropriate for England and Wales is not necessarily appropriate for Scotland. With regard to the amendment, I regard it as crucial that rules of conduct should be taken into account in considering the question whether a person should be able to exercise a right of audience in relation to a particular court. The question of what the rules should be is a matter for consideration under the machinery which the Bill sets up. Any question about distinction between preparation and presentation in relation to particular cases should be resolved under that machinery. It is perfectly clear that different considerations might apply to different types of proceedings, as my noble and learned friend the Master of the Rolls said.
That kind of matter could develop with experience over the years. However, it is important to retain as part of what is to be considered under the machinery not only the qualifications but the rules of conduct. I understand that the Lord President and the Secretary of State have the same type of jurisdiction in relation to rules of conduct regarding Scotland as

393
I propose for the Lord Chancellor and the designated judges in England and Wales. It does not by any means follow that the rules which would be regarded as appropriate there would be regarded as appropriate here or conversely.
I hope that, in the light of that explanation, the noble Lord, Lord Hacking, will withdraw his amendment. I should like to conclude by saying that the rules are matters on which I personally have no concluded view and it would be inappropriate to have a concluded view. Like my noble and learned friend the Master of the Rolls, we expect the matter to be discussed in detail within the machinery. I hope that we shall then be able to agree on a concluded view. However, it would be inappropriate for me to express any concluded view on the kind of question that the noble Lord has raised by way of example or by way of probing at this stage.
Lord Irvine of Lairg: My Lords, before the noble and learned Lord sits down, will he say what are the distinctive characteristics of the Scottish legal tradition and history which justify the various differences between the Scottish and English legal systems, to which my noble and learned friend Lord Ackner referred?
The Lord Chancellor: My Lords, I think that it might be possible to summarise those characteristics at some time. All that I am concerned to point out at the moment is that there are distinctions between the two systems which are relevant. For example, solicitors in Scotland have wide rights of appearance in criminal jury trials. That is one of the important distinctions between Scotland and England with regard to this aspect of the matter. I suppose that the reasons are those of development and history, and of course the Treaty of Union has something to do with the preservation of the distinctiveness of the Scottish system.
Lord Hacking: My Lords, I am very grateful to the noble and learned Lords the Lord Chancellor and the Master of the Rolls for giving their observations upon this issue. This was a probing amendment and I am delighted to withdraw it.
Amendment, by leave, withdrawn.
The Lord Chancellor The Lord Chancellor moved Amendments Nos. 106 to 109:
Page 19, line 22, leave out ("is granted") and insert ("has").
Page 19, line 23, after ("proceedings") insert ("granted").
Page 19, line 25, leave out ("is granted") and insert ("has").
Page 19, line 26, after ("audience") insert ("granted").
The noble and learned Lord said: My Lords, I have spoken to these amendments with Amendment No. 103. With your Lordships' leave I propose to deal with them en bloc. I beg to move.
On Question, amendments agreed to.
Lord Morris Lord Morris moved Amendment No. 110:
Page 19, line 32, at end insert ("or the County Court").
The noble Lord said: My Lords, this amendment refers to subsection (2)(e) of Clause 24, which refers to the role of,
394
"a solicitor's clerk, or corresponding employee of a recognised body, and the proceedings … being heard in chambers in the High Court".
The reason for this amendment is to reflect the current position with regard to solicitors' clerks. They enjoy an extensive locus standi in chambers in both the county court and the High Court. I feel that this amendment would be an improvement to the Bill in so far as it reflects the current position with regard to their rights of audience in chambers in both the High Court and the county court. I beg to move.
Lord Hacking: My Lords, I support the noble Lord, Lord Morris—the amendment is tabled in my name also—and in doing so I should like to widen our discussions and refer your Lordships also to Amendments Nos. 112, 117, 138 and 139. The last named amendments are grouped together on the list.
Lord Renton: My Lords, perhaps I may just mention that Amendment No. 117 raises a quite different point from Amendment No. 110 which has been moved and which we are now considering.
3.45 p.m.
Lord Hacking: My Lords, I have to differ from the noble Lord, Lord Renton, but perhaps I may develop my arguments so that your Lordships may see how Amendment No. 117 fits the same problem on which I seek to address the House. The amendment concerns the legal executive's right of audience. Your Lordships may recall from the Committee stage that the discussion breaks down into two parts: those amendments which are designed to preserve the current rights of audience of legal executives and the one amendment (Amendment No. 117) which seeks to set up a mechanism for obtaining modest extensions of the rights of legal executives under the umbrella of the Law Society. In that sense it is separate from the earlier amendments. However, all the amendments are directed toward legal executives' rights of audience.
Your Lordships may recall from Committee that currently the legal executives—solicitors' clerks—have a right of audience in the High Court in chambers. That was established a long time ago by Mr. Justice Cozens-Hardy in the Meadowcroft case. In the county court and other tribunals, such as legal aid tribunals, before which legal executives regularly appear, they do not have a right of audience.
As the noble and learned Lord told us in Committee, the appearance of legal executives in chambers in the county court is a discretionary exercise by the court; similarly, it is only a discretionary exercise when legal executives appear, for example, in front of other tribunals and in arbitrations. In the very clear terms in which Clause 24(2) is drafted, once this Bill becomes law persons will only have rights of audience under the specified categories set out in that subsection. It seemed therefore that this was an opportunity, as it were, to turn a convention into a right. I refer in particular to the convention of legal executives appearing in chambers in front of county court judges and registrars.

395
There are two ways of tackling this problem. One is for the noble and learned Lord to exercise his right to give a direction under Section 61 of the County Courts Act 1984. The alternative is to put it plainly in this Bill by inserting in Clause 24(2)(e) the words:
"or the County Court".
Another way of tackling the problem is to use the deeming rights set out in Clause 29(1), and that is the effect of my Amendments Nos. 138 and 139. A third way of tackling the problem is the way apparently chosen by the noble and learned Lord the Lord Chancellor as contained in his Amendment No. 112. The difficulty about Amendment No. 112 is that it does not truly cover the situation before county courts in chambers and tribunals because solicitors' clerks do not there have a right of audience. As I said, it is a matter of discretion.
I know that the noble and learned Lord keeps in close contact with the courts which are under his supervision, but he may not know of an event that occurred last week (or the week before) in Gosport County Court. A young advocate—he may well be a young advocate who has assiduously read your Lordships' Hansard—took the point in front of a judge that a solicitor's clerk did not have the right of audience to appear before him in chambers. I was told that, when that point was taken, the learned county court judge rejected the proposition and permitted the solicitor's clerk to appear in front of him. Nonetheless, that illustrates the uncertainty of the situation. Certainly one does not want to have that point taken up and down the country, particularly when it has been long established and accepted that solicitors' clerks do have that right of audience—by discretion or convention—in front of the county court judge in chambers.
As regards the mechanism for obtaining modest extensions of rights of audience—Amendment No. 117 under the umbrella of the Law Society, referring to Clause 24(7)—future rights of audience for legal executives and indeed future rights to conduct litigation could be achieved by various routes. For example, they could be achieved by the Institute of Legal Executives being made an authorised body under the terms of the Bill. As I understand it, that is the point to which the amendments, Amendments Nos. 115 and 129, of the noble Lord, Lord Morris, are directed. Alternatively, they could be achieved by the institute applying to be a designated body under the provisions of Clause 26. However, that does not accommodate what I suggest is the reality of the position of solicitors' clerks.
Noble Lords know from other observations made during the passage of this Bill that there are a great number of solicitors' clerks. There are somewhere in the region of 50,000 currently working in solicitors' offices. They do not work separately from the solicitors' profession. They work with the solicitors' legal profession and inside their offices. It does not seem to me to be desirable—and I put it in the context of the public interest—to have legal executives spinning off to form a separate legal force holding itself open to conduct advocacy and litigation throughout all fields of the law. I am told
396
that the institute, unless it is compelled to take that course, does not wish to do so. I am also told that the Law Society does not want it. Both the institute and the Law Society value their close association. In particular, the Law Society greatly appreciates the large contribution made to the provision of legal services by solicitors' clerks.
For those reasons I suggest that the approach I have sought to make in Amendment No. 117 is the right approach and represents the reality of the present position.
Lord Renton: My Lords, I have an open mind on the amendment strictly under consideration, namely, Amendment No. 110, by my noble friend Lord Morris. I shall be interested to hear what my noble and learned friend the Lord Chancellor has to say.
The noble Lord, Lord Hacking, has referred to a number of other amendments, some of which are grouped with Amendment No. 110, and some not. But they all raise separate issues from those referred to in Amendment No. 110. Having listened to the noble Lord, Lord Hacking, I should have thought that the anxieties and doubts that he has expressed are all met in substance by Amendment No. 112 on the Marshalled List which will be moved by my noble and learned friend the Lord Chancellor. I should have thought, quite frankly, that it confuses the issues raised in Clauses 24 and 29 if we were to accept those amendments as well as Amendment No. 112 in the name of my noble and learned friend.
We need to be very careful. It is a fairly confusing Bill in places anyway. We want to be quite sure that we have left the drafting clear and that we have not created an over elaborate system of consultation and administration. Therefore, with great respect to the noble Lord, Lord Hacking, I should have thought that most of his amendments should not be moved.
Lord Mishcon: My Lords, I can put my point in a couple of sentences. Regardless of everything else, I can tell the House with a humble sense of authority that if solicitors' clerks were not allowed to appear in the county court, practitioners would not be able to continue to accept the burden of work that they have at the moment.
I therefore put my proposition in this way. If the noble and learned Lord is satisfied that solicitors' clerks have that right of audience, we shall listen to what he says, I am sure, with great respect and welcome it. If he feels that the amendment clarifies the issue—as indeed I believe it does—he will accept it.
The Lord Chancellor: My Lords, the situation with regard to solicitor's clerks is regulated in the High Court by the judgment to which the noble Lord, Lord Hacking, referred. It is the unambiguous effect of that judgment that solicitors' clerks do not possess rights of audience to appear before county court judges or registrars in chambers. It has been the custom for judges and registrars to exercise their discretion to permit clerks to be heard. So far as I know, it has never been found in any way unsatisfactory. The ability for judges and registrars

397
in all courts to continue to do this is protected by the provisions of Clause 24(2)(c). If this amendment is not passed, solicitors' clerks will be left with exactly the same rights of audience as they currently possess.
I had not intended in this part of the Bill to grant any individual or group of individuals any new rights of audience under the Bill because I took the view that the framework that we have set up is designed to deal with that. On the issue of legal executives, the correct course is to apply the system that we are seeking to set up. I shall consider what is said in later amendments on whether the Law Society should be able to take them under its umbrella in some way. That is a different point.
The amendment of my noble friend Lord Morris is conferring a new right on solicitors' clerks. From my own point of view, I do not see much harm in it, but it is going outside what I had intended this part of the structure to be dealing with. I have tried to preserve all existing rights. The existing situation for solicitors' clerks in the county courts seems to be satisfactory in that judges and registrars are normally prepared to hear them, and to exercise their discretion in that way.
As matters stand, I would prefer to leave the amendment out. I do not see much harm in it except that it is an innovation on what I was seeking to achieve under this part of the Bill; namely, to preserve the status quo and provide a machinery for changing it under the Bill.
Lord Mishcon: My Lords, before the noble and learned Lord sits down, and with the leave of the House, perhaps I may emphasise the word that he used. He said that it was "normally" permitted. Therefore there could be some abnormal cases of which he would disapprove because he feels, as I understand it, that the discretion that is normally given is the right discretion. Could he therefore remove the abnormal case which would be a nuisance to everybody, by including these words?
The Lord Chancellor: My Lords, if there were a general agreement about that I would be quite content to do so. In the light of the situation that I am in I have sought to devise a system for providing new rights of audience keeping in place all the existing rights. If I were to accede to this amendment, I should be making a change in that policy.
As I have said already, as at present advised I would not see much harm in it. On the other hand, unless the present situation is producing harm it might be wise to leave it as it is because I have not had many views about the matter. If the noble Lord, Lord Mishcon, feels strongly about it, and knows of cases where the present system has not worked satisfactorily, I might be prepared to reconsider. However, so far as I know the present situation has worked perfectly satisfactorily. I am therefore inclined to leave matters as they are.
I do not find it easy to be in a situation where the Bill is conferring new rights of audience instead of restricting itself to providing machinery for determining that question. I can see in later
398
amendments other suggestions for new rights of audience which may or may not commend themselves to the noble Lord, Lord Mishcon. Whether or not they do, they may not commend themselves to others. I find it difficult to step over that boundary even in this rather minor, although not unimportant, case.
Lord Morris: My Lords, it is obvious that I did not make myself clear. The amendment does not seek a new right. It boils down to this question: When does a convention, a practice, become by custom a right? As we have heard, not least from the noble Lord, Lord Mishcon, it has been the practice for many years for solicitors' clerks to be heard in chambers in the county court. This amendment is an attempt to place the current position in the statute. There is nothing new about it.
It is not a matter of great moment in the sense that it is not creating a great change. In the light of the suggestion by my noble and learned friend the Lord Chancellor, that it is possible that he might consider this matter further, I beg leave to withdraw the amendment. I should like to come back to it because I believe it is important that the statute reflects the current practice in the county courts.
Amendment, by leave, withdrawn.
4 p.m.
Lord Hutchinson of Lullington Lord Hutchinson of Lullington moved Amendment No. 110A:
Page 19, line 32, at end insert—
(" () Nothing in this section shall permit an employee of a prosecuting authority to have a right of audience in relation to trials on indictment.").
The noble Lord said: My Lords, the amendment is one of substance and provides that:
"Nothing in this section shall permit an employee of a prosecuting authority to have a right of audience in relation to trials on indictment".
The amendment raises a matter of principle which, I suggest, is of sufficient importance to engage the most careful and considered attention. During our debates on the Bill we must keep in view its implications. We are examining the future administration of justice in the criminal courts and the quality of the judges who will preside over them in the future.
Unamended the Bill will permit the setting up of a state advocacy service across the whole of England and Wales. There will be employed advocates—that is civil servants—conducting all prosecutions in the Crown Court. Noble Lords will appreciate, as the Philips Royal Commission pointed out at paragraph 7.23:
"We know of no common law jurisdiction … either covers an area with anything approaching the population of England and Wales … or deals with a crime load of anything like the same order of magnitude".
Having regard to the comments made by the noble and learned Lord in respect of the previous amendment, on that basis the commission particularly distinguished the procurator fiscal system in Scotland which it examined.
The amendment seeks to prevent so momentous a change taking place simply by the operation of the

399
noble and learned Lord's "mechanism", as he calls it; that is, of the Lord Chancellor's advisory committee and the designated judges. Of course, the purpose of setting up such a national advocacy system would be to try to solve the chronic recruiting problem faced by the Director of Public Prosecutions by making the conditions of service of prosecutors appear more attractive. Surely that is not a good basis for such a fundamental change in our system. If it is to occur it should do so as a result of a decision taken by Parliament after a full debate.
I wish to spell out some of the objections upon which the amendment is founded. First, if all prosecutions are undertaken by employed lawyers, all defences will be in the hands of private advocates. A polarisation will take place of prosecutors on one side and defendants on the other, as is the situation in the United States of America. I remind your Lordships that the United States Chief Justice came to this country especially to try to persuade the Royal Commission not to allow that situation to happen here.
Secondly, it cuts across the whole cab rank principle now enshrined in the Bill: state prosecutors being insulated from it and defence lawyers subject to it. Thirdly, I suggest that it will remove the essential independence of the prosecutor in serious crime. No longer will he be manifestly independent to juries and the public in the Crown Courts, acting as a detached and independently-minded officer of justice as the principle now exists: that is, independent of the police, the prosecuting authority and of any government department; having no personal interest in the success of the case; and no conflict of duty with the court and his own interest in the results.
Further, it will remove a whole reservoir of advocates from promotion to the Bench. Surely all noble Lords agree that it would be inappropriate to appoint as a judge an advocate who had conducted only prosecution cases. The central quality of a judge is balance. As the noble and learned Lord, Lord Hailsham, said in Committee, years of prosecuting tends to produce a certain cast of mind.
If, as was suggested in Committee by the noble Lord, Lord Gifford, employed lawyers conduct only the simpler and shorter cases and experienced, independent advocates are briefed to conduct the heavier and more difficult cases, there will be no experienced and independent advocates because that can come only from long and continuous practice in the handling of the so-called "simple and short" cases. In any event, it is a myth that one can judge the difficulty or the responsibility necessary by the length of the case.
The matter was examined by the Royal Commisson chaired by the noble Lord, Lord Benson. A remarkable fact of our debates, and of the White Paper which preceded them, is that, whereas the Civil Justice Review is quoted extensively as supporting the views of the Government, the huge research and detailed conclusions of the Royal Commission on Legal Services—it sat for four years and is the subject
400
matter of the Bill—is never referred to, and its conclusions are never dealt with. According to the commission, it was vital to ensure that:
"the Crown Court case is put by an advocate who is independent of the police and of the prosecuting authority for this serves an important public purpose".
Later the report states that that is crucial to the proper administration of justice. It further states that prosecutions are to be conducted:
"by one who, in the nature of his training and daily practice, is more likely to bring the essential quality of detachment and balance to bear".
The Philips Royal Commission, on whose finding the CPS was created, set out the functions of such a service as being three: first, the conduct of all criminal cases after charge by the police; secondly, legal advice to the police; thirdly, provision of advocates in the magistrates' court in all cases and the briefing of counsel in all cases tried on indictment in the Crown Court.
I make no apology for raising the matter again, because of the nature of the reply given by the noble and learned Lord in Committee. It gave rise to great concern among those who at present have the conduct of prosecutions. On 29th January, at col. 43 of Hansard, the noble and learned Lord said:
"The idea that merely because someone is employed he cannot be independent is absolute nonsense".
Later he described such a view as "indefensible". I am bound to ask whether the noble and learned Lord has studied the evidence and the conclusions of the Royal Commission. Did he really mean to describe the noble Lord, Lord Benson, the noble and learned Lord, Lord Templeman, Mr. Dahrendorf and their colleagues as talking "absolute nonsense" and their views as being "indefensible" when they said that the matter was crucial to the proper administration of justice?
The Marre Committee described that independence as a safeguard against the risk of wrongful conviction. I ask again: does the noble and learned Lord suggest that that committee was talking nonsense? When the principle was publicly upheld by the present Attorney-General in 1985 and in 1987, and upheld in this House by the noble Lord, Lord Elton, were they and are they also talking nonsense?
The noble and learned Lord's own Green Paper as recently as one year ago states at paragraph 4.15:
"advocates who provide represenation in the more serious cases which are tried in the Crown Court should not, in any given case, have been involved also in the investigation of the evidence".
Of course it is one of the main jobs of the Crown Prosecution Service to be so involved. The undesirability of polarisation was entirely ignored by the noble and learned Lord when we discussed this in Committee.
The noble Lord, Lord Boardman, and certain other noble Lords raised the question in Committee that if the CPS could be independent in the magistrates' court, why should it not be independent in the Crown Court? I can only say to them that the conduct of the prosecution before a jury and a Crown Court judge for a serious crime is totally different from dealing with matters of careless driving, small theft or assaults in the magistrates' court.
As I reminded the noble and learned Lord when we last dealt with this Bill, the noble and learned Lord, Lord Emslie, the late Lord President, and the noble Lord, Lord Morton of Shuna, in the debate on the Scotttish Bill both emphasised what the noble and learned Lord called the real and striking difference in Scotland between the sheriff court and the High Court. The difference was absolute.
Those are the matters which I put before your Lordships in urging this amendment. I ask the noble and learned Lord on this occasion to deal with the fundamental matters of principle raised by the Royal Commission to which I have referred because it was the failure to do that which has encouraged me to table this amendment again at this stage.
Lord Boardman: My Lords, the noble Lord's speech has referred to the dangers which would flow if, using his words, all prosecutions were conducted by the Crown Prosecution Service. His amendment provides that no prosecutions should be carried out by that service. Does his argument rest on the word "all" or is there a half-way house with which he would be happy?
Lord Hutchinson of Lullington: My Lords, the noble Lord will see that the amendment applies only to trials on indictment. Those are the only matters to which it refers.
Lord Boardman: My Lords, in other words, the amendment says that no prosecutions in trials on indictment can be conducted by the Crown Prosecution Service. As I understood the noble Lord's argument—and no doubt I shall be corrected if I am wrong—he is saying that the dangers will flow if all prosecutions are conducted by the Crown Prosecution Service. There is a large gap between those two points.
Lord Hutchinson of Lullington: My Lords, the noble Lord will understand that "any" is the way in which I put it. I beg to move.
4.15 p.m.
Lord Hailsham of Saint Marylebone: My Lords, I should like to say a few words in favour of what the noble Lord has just said to my noble and learned friend on the Woolsack. There are only two points which I wish to make because I made a third in Committee and I shall not repeat it.
I once had a very great friend at school who ultimately went to the Bar. His name was Reggie Manningham-Buller. He sat where my noble and learned friend is now sitting and the actual article of furniture was never quite the same again. During the war, unlike myself, who had a rather different military career, he joined the JAG's Department and became for that purpose a Crown prosecutor. He was a formidable character was Reggie Manningham-Buller and he told me this about prosecuting for the Crown under a salaried prosecuting service. He said that when he prosecuted in a court martial and returned, the prisoner having been acquitted, he was always asked by his superior officer, "What went wrong?" In a brief sentence that
402
illustrates the point which the noble Lord, Lord Hutchinson, was trying to make in the civilian field.
Of course Reggie Manningham-Buller, as he then was, was a disciplined soldier as well as a Crown prosecutor and I make full allowance for that fact. However, I do not believe that a salaried prosecutor in the Crown Court should be in that sort of position because it is the organisation of the Crown Prosecution Service which has decided upon the prosecution. I think that that makes all the difference.
Anybody who tried to intimidate the late Reggie Manningham-Buller was a very strong character, because I should never have attempted that myself. However, I do not believe that it is fair for a Crown prosecutor to be in a salaried service in the Crown Court.
When my noble and learned friend replied to the debate in Committee he seemed to think that it was somehow a slur on the magistrates' court—prosecuting is confined as at present to briefed counsel in the Crown Court—that persons there should be prosecuting who are in one way or another salaried servants of one organisation or another and now, usually, under the Crown Prosecution Service.
My noble friends who were in government with me know that I was always rather queasy about the whole idea of having a Crown Prosecution Service at all. At the moment I am not wearing a white sheet for having been rather queasy on that score. Time will show which of us was right. I have tried to put all my prejudices aside. However, I must say that proceedings in a magistrates' court, where a case is tried and controlled by a Bench of three very reputable, rather well trained, although not legally qualified, magistrates when it is disputed, is a very different affair from jury advocacy. It is far easier to pervert the tribunal of fact in a Crown Court, namely the jury. It is far more important for independence to be shown by the advocate in the Crown Court, where he is addressing 12 randomly selected jurors taken off the voting list than in a much more minor case when addressing three very experienced magistrates who will very soon put him in his place.
Therefore, it is far from being a slur on the petty sessions. In Committee my noble and learned friend put the argument that it was perfectly reasonable to insist that a trained advocate who is independent when addressing the jury and not salaried should be the sole method of conducting prosecutions in the Crown Court. But it by no means follows that a similar practice should be followed in the magistrates' court where magistrates are not only the tribunal of law but also of fact. I think the magistrates' court can very well control a salaried prosecutor. I shall not give any further anecdotal evidence, but I think that the noble Lord, Lord Hutchinson, was right in seeking to move his amendment and it perhaps did not get quite the treatment at the earlier stage that it deserved.
Lord Mishcon: My Lords, it is right that each of us should examine this matter with the greatest of

403
care. We have heard some very reasonable speeches in favour of the amendment. There are some aspects of this matter that worry me, but I want to try to keep an open mind and listen to the debate. It may well be that from the very Benches which I occupy someone will say something quite different, and I think that is extremely healthy.
The first aspect that we want to consider is the prosecution service itself: the type of lawyer we are trying to encourage and not only whether we shall produce a prosecuting service with a properly full establishment—which it does not have at the moment—but whether we shall fill that establishment with exactly the type of people we want. We do not have them at the moment and I know that the noble and learned Lord, Lord Hailsham, will be the first person, whatever his views about the prosecution service, who, once we have it, will want it to be a success.
It has been put as though the prosecution service will consist of young men who have had no previous experience at the Bar or as solicitors; that they will go into the prosecution service and there they will be, year after year, having done nothing at all except prosecuting. I can envisage, and I believe it was envisaged at the Committee stage, that we want to encourage into that service somebody who has been at the criminal Bar for some little time and who has had a great experience on both sides; or perhaps just experience of defendants' work. He would then enter the prosecution service as a career, but with the experience of knowing what it is like to defend and defend and defend. He would know how annoying it sometimes is that prosecuting counsel seem most unreasonable in bringing a case which ought never to be brought at all.
Do we want to say to somebody who is entering the prosecution service as an employee, "You have had quite a bit of experience at the Bar but I am afraid you will not be prosecuting if you are an employee of this service. You will not be allowed to if the matter goes to trial on indictment. You will be doing the little work in the magistrates' court"? That is my first point.
The second point which worries me is the inference that an employee is somebody who merely looks for promotion; somebody who would be frightened of the reprimand almost by a senior officer. I did not know Reggie Manningham-Buller as well as the noble and learned Lord, but I respected him greatly and because I respected him so much and did not know him so well it seems impertinent to call him Reggie Manningham-Buller. However, since he has been so called I know I shall not be thought offensive if I use that term, even in the absence of his son, who we are always delighted to see in this Chamber.
Do we want to encourage in this service the type of employee who will say "Dear me, this is very bad. I have been given 10 cases to prosecute and only have seven convictions so far. My word, I must see that I get another couple out of the next few charges for which I an responsible"? If we have that sort of person in the prosecution service, forgive me for saying it, but God help the prosecution service.
404
That is the second point which makes me somewhat apprehensive. The third and final point was discussed in the always interesting contribution made by the noble and learned Lord, Lord Hailsham. I have in mind a picture of a judge in the Crown Court sitting absolutely silent while prosecuting counsel exceeds his bounds and not reprimanding him and telling him what he should be doing; in his summing-up to the jury he gives no hint that anything untoward has happened. Then I have in mind the picture of three lay magistrates in the magistrates' court having all the perspicacity and all the courage in the world, frowning at prosecuting counsel and intervening in what they consider to be his rather aggressive and improper conduct of the case, saying "Dear me, our experience shows that we must reprimand you for the way you are conducting this case".
Forgive me for saying this, but to me that is a Gilbert and Sullivan situation. I believe that when one is contrasting or comparing the need for care, the care should be in the magistrates' court. In the Crown Court there is a very experienced judge and 12 good men and true who look after the accused.
A noble Lord: And women!
Lord Mishcon: Quite right, and women, I am sorry, I should have said that. However, it is little Mrs. Smith who is charged with shoplifting who needs all the care in the world from a prosecutor who may be dealing with the evidence in a way which may be too aggressive and too unfair. I should have thought on balance that this amendment contains grave imperfections. However, as I said before, I am more than willing to listen to the debate.
Lord Hailsham of Saint Marylebone: My Lords, before the noble Lord sits down perhaps he will consider the case of the little shoplifter who recently had to appeal to the Court of Appeal. I know I am a toffee-nosed old Etonian, as I was so described this morning by the judge in question, but I am bound to say that I do not think she got a very fair crack of the whip from the experienced judge who tried her.
Lord Mishcon: My Lords, I do not intend in any way to indulge in your Lordships' House in either criticising or praising individual judges.
Lord Campbell of Alloway: My Lords, I wish to support this amendment in principle. Some of the reasons for my support I gave at Second Reading (at cols 192–3 of Hansard). Throughout, in principle, this amendment must be right.
First, I thought it was common ground that in criminal cases it is most undesirable that in trials on indictment the person who interviews the witnesses and prepares the case for trial should also have the actual conduct of the trial as an advocate before the jury, especially if he is the prosecutor. I thought that that was common ground. I thought that that was written somewhere in one of the government papers.
Secondly, the concept of any type of approach towards the United States system, a state prosecution

405
service, is abhorrent. The polarisation to which the noble Lord, Lord Hutchinson, referred is a serious and real objection.
Thirdly, with regard to the problems of staffing, pay and recruitment to the Crown Prosecution Service, it is unrealistic, as the noble Lord, Lord Mishcon, suggested, to expect experienced practitioners from the criminal Bar to offer their services when the pay is not sufficiently attractive. This problem therefore leaves a very large question mark over the experience, qualifications and expertise of anyone who happens to be an employee of the CPS having the right of audience in serious criminal trials on indictment.
I am open to correction, but as I understand the position at the moment, the general efficiency of the Crown Prosecution Service is giving ample cause for anxiety and is the subject of consideration by a Select Committee of another place. If the Bar, solicitors and others are to compete on more or less equal terms on rights of audience, is it acceptable to countenance this form of putative monopoly in the CPS on trials on indictment?
There is another matter which was touched on by the noble Lord, Lord Hutchinson, and it is this: at the end of the day the quality of justice in an adversarial system such as ours is largely dependent on the quality of representation. It is of particular importance that in any trial on indictment the standards now observed by the prosecution should be maintained by advocates independent of the Crown Prosecution Service and in-house representation should be proscribed.
The noble Lord, Lord Hutchinson, referred to two reports, one of which stated that that was crucial, and the other that it was a safeguard against wrongful conviction. Surely, those findings are not to be ignored. As always I come to deal with the objection of my noble friend Lord Boardman who first raised the objection at Second Reading which I sought to answer. That answer appears in Hansard on 19th December 1989 at column 193. In effect that objection has been answered not only by the noble Lord, Lord Hutchinson, today, but also by the noble and learned Lord, Lord Hailsham. Your Lordships may well think that the objection was dealt with most effectively in the memorable speech of the noble and learned Lord, Lord Emslie, at Second Reading of the Law Reform (Miscellaneous Provisions) (Scotland) Bill, reported in Hansard on 30th January 1990 at col. 184. It is a short quotation but I make it because it goes to the heart of answering the oft-repeated objection of my noble friend Lord Boardman. The noble and learned Lord said this:
"Is experience, over however long a period, of part-time sheriff court practice likely to offer a fair basis on which to make a judgment of an individual's competence to plead in the superior courts?"
As your Lordships know, solicitors in Scotland also have the right to plead in superior courts.
The hope is that noble Lords will look with favour on this amendment: but, more than that, that my noble and learned friend the Lord Chancellor, who keeps an open mind though provisionally opposed to this concept, might take this matter back to consider whether it is really right to throw the reins of
406
representation over the neck of the Crown Prosecution Service horse so that any employee, without any form of restraint or regulation, can, so to speak, appear with rights of audience in a criminal trial on indictment.
4.30 p.m.
Lord Irvine of Lairg: My Lords, as I recall, the raison d'être of the Crown Prosecution Service was that it should be independent of the police. However, its independence in relation to the activity of prosecution is quite another matter. I entirely appreciate the point which my noble friend Lord Mishcon made that career employees of the Crown Prosecution Service may have had their experience largely in defence work. With respect to my noble friend, that does not entirely meet the point of principle which the noble Lord, Lord Hutchinson of Lullington, brings before your Lordships' House by way of this amendment.
The questions of principle appear to be these: to what extent should a prosecutor, in a criminal case in court, be independent of the interest of the prosecuting authority which he represents? That leads to a second question; namely, to what extent is his independence qualified if his work and his employment is dependent on a contract of employment with the prosecuting authority which, in the ordinary way, will be terminable on short notice?
I assure my noble friend Lord Mishcon that neither he nor I would seek to abuse or devalue the moral quality of the persons who work under a contract of employment. However, the point is to recognise the vulnerability of employees under a contract of employment in a matter of constitutional importance; namely, the independent prosecution of alleged crime. These are questions of first principle. I hope that the noble and learned Lord the Lord Chancellor, when replying, will not seek to answer these important points by reference to analogies from the magistrates' court. I agree with the noble and learned Lord, Lord Hailsham, that such analogies are of no consequence: it is a question of principle which the noble Lord brings before the House, regardless of what happens in the magistrates' court.
Lord Rawlinson of Ewell: My Lords, the definitive evidence on this matter has been given to the Benson Committee and the Marre Committee, as the noble Lord, Lord Hutchinson, said. Like my noble and learned friend Lord Hailsham, perhaps I may be permitted some anecdotal evidence from the time when I had the conduct, the power and the responsibility for prosecution in England and Wales. Some of the recollections go back to the days under Sir John Hobson, which is about 28 years, but more latterly I refer to my own responsibility.
There were occasions when the Director of Public Prosecutions prosecuted with counsel nominated by me as Attorney General. At the conclusion of a trial the representative of the Director of Public Prosecutions sometimes complained because a counsel had, in the exercise of his discretion, taken a plea to a lesser charge, or he may have followed

407
some course which that officer of the Director of Public Prosecutions did not think was right. That happened on one or two occasions. I made it perfectly clear to that officer that such a decision was the responsibility of the independent nominated counsel who was in charge of the prosecution. It was a lesson to myself.
As regards the magistrates' court, it is in the recollection of most of us here that in the old days it was the representative of the Director of Public Prosecutions who used to present the cases at the committal for trial in the magistrates' court. It was a very difficult task conducted with great skill by extremely experienced officers of the Director of Public Prosectutions who, when it came to the trial on indictment, then handed the cases over to the nominated counsel to conduct.
At that time I did not find that there was any lack of ability or attraction of persons who had been recruited into that service. They were content to do that job and they did it extremely well. The point has been made that people will not be recruited into the Crown Prosecution Service if they are not given the right to conduct prosecutions on indictment. I do not believe that is so.
Above all, I urge your Lordships to take seriously the point that it is essential to have independent nominated counsel who has complete control over how the case is conducted. In that case he is bound by his duty as an officer of the court. One will find a great deal more fairness afforded defendants if one continues with that system.
Lord Ackner: My Lords, the Council of Her Majesty's Circuit Judges, a highly responsible body on this subject, reported as recently as nine months ago in answer to the Green Paper. In the preface it indicated just to what extent the circuit judges are consumers, if I may use that phrase, of advocacy talents. The council said this:
"The most recent statistics (1987/1988) show that of the total judicial days sat in cases of first instance and the Crown Court (excluding judicial assistance from Deputies, Recorders, Assistant Recorders, and work carried out by Masters and Registrars) 85 per cent, were by Circuit Judges and 15 per cent, by High Court Judges".
This is what the council said on the subject of the Crown Prosecution Service:
"If rights of audience were granted to the CPS we envisage an unhealthy divide whereby the CPS would monopolise the presentation of prosecutions, whilst barristers"—
I emphasise this—
"and solicitors would be left with defence work. Thus the vital experience of appearing on both sides and developing a balanced view, an essential factor in the proper training for judicial office, would disappear.
Apart from cases which can be presented in a very short time (generally in the Magistrates' Court) we consider that a lawyer employed by the CPS would never be able properly to devote himself to a case which took over a day to present. The pressure of disposing of pending office work and his workload, and transferring work to a colleague because the instant trial could not be concluded as early as expected, would provide harmful distractions".
It concluded with these relevant observations:
"The Director of Public Prosecutions and his department are undoubtedly independent in their own sphere. But their function
408
is not that of advocate. The question is begged by any such comparison. Furthermore, Treasury Counsel are not employees and retain freedom of decision because of their training in and membership of a completely independent profession of advocates. It is an obvious advantage to the administration of justice that prosecutors in the superior courts are represented by independent counsel and it would be regressive to remove it".
I make two final points. One deals with a comment made by the noble Lord, Lord Mishcon. He has his traffic directions flowing in exactly the wrong way. There will be employees from the Crown Prosecution Service who, having developed an expertise, will go to the criminal Bar, to the advantage of the criminal Bar and to the advantage of themselves; but the traffic will be only in that direction. Successful members of the criminal Bar will not go to the Criminal Prosecution Service, not merely because of money but because of the independence and the attractiveness of being a member of that profession.
I was deeply worried to see reports in the press that, in the course of a Select Committee of another place taking evidence, the Director of Public Prosecutions, for whom I have the very greatest respect, expressed his deep anxiety that if solicitors in private practice were given rights of audience in the Crown Court he would find it even harder to recruit into the Crown Prosecution Service unless it had similar rights of audience. Is the quality of the administration of justice in this country to be determined on the basis of how we recruit into a government department? If that is to be so, we are moving towards very sad times indeed.
Lord Boardman: My Lords, in moving his amendment the noble Lord, Lord Hutchinson, referred to the consequences that he believed would flow if all prosecutions were conducted by the Crown Prosecution Service. I entirely share his views on that. It would be completely wrong. But his amendment goes to the other extreme and says in effect that no prosecutions on indictment should be conducted by the Crown Prosecution Service. That is going to the other extreme. It would eliminate from the ranks of those prosecuting people with the experience to which the noble Lord, Lord Mishcon, referred—people who have the qualities to carry such prosecutions and who might wish to cross the Crown Prosecution Service back to the Bar. In his amendment the noble Lord could have referred to a limit of some kind—how the percentage would be defined I know not—but to bar all prosecutions by the Crown Prosecution Service is going too far.
My noble friend Lord Campbell of Alloway referred to our exchange at Second Reading on the role of the magistrates' court. My noble friend said—and I am sure it was a slip of the tongue—that a lower standard of justice must be expected within the magistrates' court. I do not accept that we can have a lower standard of justice in the magistrates' court.
4.45 p.m.
Lord Campbell of Alloway: My Lords, I am obliged to the noble Lord. What I meant to say and should have said, and said later—I corrected it—was that it is a different system. It is a different system and a different standard.
Lord Boardman: My Lords, I fully accept what my noble friend says. I raised the point to give him the opportunity to respond. We cannot accept any lower standard of justice in any part of the courts, whether it be the magistrates' court or the High Court, whether it be for trial on indictment or otherwise. Of course different skills may be needed before the magistrates' court from those required for trial on indictment. In this respect I go with the noble Lord, Lord Mishcon. Surely therefore the Crown Prosecution Service should be in a position to train and provide people with those various skills for the magistrates' court and for the High Court. It would be wrong if the amendment of the noble Lord, Lord Hutchinson, barred all prosecutions on indictment being carried out by anyone within the Crown Prosecution Service. I hope that he will not press the amendment.
Lord Morris: My Lords, I do not wish to prolong the debate but what I have heard has disturbed me considerably. I find worrying the suggestion that has been put around the House on this issue that it is only within the capability of the so-called learned professions to understand and take to their hearts and minds the concept of independence in the interests of justice. This is a monstrous concept.
Lord Hutchinson of Lullington: My Lords, will the noble Lord give way?
Lord Morris: My Lords, I shall not give way. The noble Lord has a right to reply and he has spoken already. It is a monstrous concept when one considers the independence of our Civil Service, of the armed forces and of many other people in employment. To concede that one has to be a member of an independent profession in order to bring these standards to bear is very disturbing indeed.
Lord Harris of Greenwich: My Lords, perhaps I may declare an interest at the outset in that I am neither a barrister nor a solicitor. It is rather necessary to say that in this debate because members of those professions have been abused in the press as a result of the positions they have taken on the Bill. It is the first occasion on which I have spoken.
One point with which I am particularly anxious to deal is the present position of the Crown Prosecution Service. I believe that the central reason for the Government's position on the matter, although not the only reason, relates to the present low state of morale within the Crown Prosecution Service. There is a subsidiary reason given by Sir Robert Andrew in his report on Government legal services, which is attractive to the Treasury, that it would cost less than the present system.
Like many, I welcomed the creation of the Crown Prosecution Service. The noble and learned Lord, Lord Hailsham, indicated a moment ago that he had had his doubts, but, as I recall the debate which we had in this House, there was total support from all quarters for this proposal.
Unhappily, as a result of a serious misjudgment at the time, the service was chronically underfunded
410
from the day of its creation. The result has been that its staff have been submerged under a tidal wave of criticism, which has done serious damage both to its reputation and inevitably to the morale of the staff of the organisation. One has only to look at some of the most recent criticisms made about the CPS. Perhaps I may deal with that because it is highly relevant to the discussion we are having at present.
I would like to refer to evidence given to the Home Affairs Committee of the House of Commons. First, I quote the findings of the Criminal Bar Association after having consulted its members:
"It was an all but unanimous view that the current position was a disappointment. Of the options given—
that is, to people who were involved in their survey—
"all barring a small fraction settled for 'worse' than before 1985. The fraction settled for 'no different'. Only two were found who responded to the general question with which the poll started by giving it as their opinion that the system was working 'better' than before".
There were a number of other criticisms. It was said:
"It is a commonly held view that deterioration is most noticeable in the largest bracket of prosecutions—what might loosely be called 'the lower end'. Yet a disturbing number recount that it is encountered even in the most serious cases …
"Nearly 95 per cent, answered unfavourably a general question as to whether the standard of preparation of cases had fallen".
It is said that there was
"failure to spot evidential problems and lacunae: (there were tales of elementary mistakes persisting even now); embarrassing applications for adjournments flowing from a failure to communicate information (often specifically requested) to the defence; failure to act on the written advice of counsel; poor drafting of indictments; the arrival at the Crown Court of cases plainly unsupportable by the evidence in the committal papers".
Then there is a report by the South Eastern Circuit. The paper they put to the Home Affairs Committee said:
"The general opinion of members of the South Eastern Circuit who were consulted on the subject of the Crown Prosecution Service is that it is understaffed, overworked and of low morale".
They add that the words most commonly used to describe the operation of the Crown Prosecution Service within the magistrates' courts were "a shambles".
I then turn to the evidence of Sir David Hopkin, the chief metropolitan stipendary magistrate, who referred to the late delivery and late review of papers creating a crisis situation at many courts.
Then there is the evidence of the Association of the Chief Police Officers, as follows:
"The 1988/89 Crown Prosecution Service Annual Report elaborated on the staff shortages mentioned earlier. The most startling figure was the £15 million used to pay agents who undertook 40 per cent, of the case load. It follows that the quality of agents varied considerably, and many forces voiced this concern. Lack of commitment to the prosecution, loss of papers, and the option of plea bargaining were common complaints and even an occasion when one agent appeared to represent both the prosecution and the defence".
That is a summary of some of the matters that were raised in evidence very recently to the Home Affairs Committee of the House of Commons. The position is that the service is still well over 20 per cent, below its establishment and is unable effectively to discharge its responsibilities in the magistrates' courts.

411
Yet this Bill, unless amended, may give members of the service the right of audience in the Crown Courts. Some members of the service undoubtedly want that. Indeed they said so to Sir Robert Andrew when he conducted his inquiry into Government legal services; but I see some objections to that.
First, I fear there would be too great a temptation for Ministers to make a commencement order as far as this part of the Bill is concerned in order to meet their serious anxieties about the morale of the Crown Prosecution Service. It may be said that that is an unfair suggestion, but we are confronted with a sad situation.
We have seen the recent experience of the Serious Fraud Office, which was created as the result of the Roskill Commission. It was set up with very high expectations of success—again with total support of all sides of the House—yet we find it is now grossly under-resourced. We have seen the dreadful situation in many magistrates' courts when, because of the acute shortages of justices' clerks, many court sittings have had to be abandoned. We have had the evidence from the noble and learned Lord, Lord Ackner, and others about the position in the county courts.
In each case the problem is that adequate resources are not being made available to discharge the important responsibilities in our courts system. Yet we are solemnly discussing a situation in which we are prepared to contemplate passing on new responsibilities to a service which at the moment cannot carry out its present responsibilities. It seems to me that this is entirely mistaken.
5 p.m.
The Lord Chancellor: My Lords, perhaps I may begin by pointing out that the noble Lord, Lord Harris of Greenwich, is utterly mistaken in suggesting that a provision in this Bill will confer a right of audience on employed members of any prosecuting authority. This Bill sets up a framework under which matters of rights of audience and the conditions under which they can be exercised are to be determined in the light of advice from an independent advisory committee appointed by the Lord Chancellor in accordance with rules to be proposed by the professional bodies, which will become effective only if they are approved by the four heads of division, the designated judges, and the Lord Chancellor.
That is what we are concerned with. There is no question of my having put forward this Bill in order to bring rights of prosecution to the Crown Prosecution Service except in accordance with decisions taken under that machinery.
My noble and learned friend Lord Ackner has referred to views expressed on behalf of certain of the judiciary on these matters, and I will come back to those. But the noble Lord, Lord Harris of Greenwich, has to be aware of the fact that there is no question of a right of audience being conferred in respect of this type of situation except in accordance with the ultimate views of the designated judges, who are responsible for their position as very senior
412
and quite independent judicial officers in the administration of justice.
Here we are concerned with an amendment proposed by the noble Lord, Lord Hutchinson of Lullington which, before we decide anything else, will completely restrict the operation of the mechanism in that way. It states:
"Nothing in this section"—
that is the section which introduces the mechanism—
"shall permit an employee of a prosecuting authority to have a right of audience in relation to trials on indictment".
The effect of the amendment, as my noble friend Lord Boardman pointed out, is that no person employed by a prosecuting authority will have any right of audience in the Crown Court in any circumstance, even if the CPS in years to come were the most excellently funded service in the public sector. No employee of a prosecuting authority is to have a right of audience in relation to trials on indictment. The fundamental proposition which underlies the amendment is that no employee can be sufficiently independent to be entrusted with that responsibility. That is the issue.
I am not here to deal with the details of the CPS, although since the matter has been raised and elaborated upon, I should perhaps refer to the speech of my right honourable and learned friend the Attorney-General in the other place in which he answered the Adjournment Debate that had been initiated by Mr. Keith Vaz. I shall quote one passage, "The hon. Gentleman", that is Mr. Keith Vaz—
"asked whether I ageed that there was a serious crisis affecting the Crown prosecution service. The answer is no. I acknowledge readily the handicaps that have always affected it and which continue to do so, but they are diminishing. In the words of the Director of Public Prosecutions in his recent evidence to the Select Committee on Home Affairs, the service is 'making progress' towards its objectives. There is no crisis. Nor do I consider there to be feuding with the police or anything like it and I shall take more time on that shortly".—[Official Report, Commons, 12/2/90; col. 64.]
The Attorney-General then goes on to deal with a number of criticisms, but I do not regard that matter as of direct relevance to the present question. I do not propose that the CPS should conduct all trials in the Crown Court by salaried employees or anything of the kind. I suggest that it is not right at this stage, without putting the subject into the mechanism which we have devised with a great deal of care and balance—I believe that I am right to say that the House agreed on the basic structure and principles upon which those questions should be decided, subject perhaps to some later amendments—to decide that no employee shall be allowed to have a right of audience in trials on indictment in the Crown Court.
Just to show how extraordinary some of the argument has been, I should point out that my noble and learned friend Lord Emslie, spoke of the Sheriff Court in Scotland for the purpose of distinguishing between the Sheriff Court and the High Court. Of course there is a distinction, but in Scotland, as I am sure most of your Lordships are aware, salaried officials of the service corresponding to the CPS have a right of audience injury trials on indictment in the Sheriff Court where the sheriff can impose up

413
to three years' imprisonment. Whatever may be said, I do not believe that the views of my noble and learned friend Lord Emslie can be prayed in aid in support of a proposition that it is altogether wrong ever to allow a salaried employee of a prosecuting authority to conduct prosecutions on indictment.
The fundamental question is whether a person who is an employee can be independent. I have quoted before, but it is worth quoting again, a passage from the judgment of Lord Devlin when he was sitting at first instance in a case called the Potato Marketing Board v. Merricks 1958 II Queen's Bench 316 at page 335, which refers to the word "independent":
"I agree with counsel for the respondent that independence ordinarily denotes financial independence, but I do not think that is the only sense in which the word can be used. I think that the word may be used to refer to a person who is permitted—and, perhaps, indeed required—by the man who employs or retains him to bring an independent mind to bear on a particular problem",
and for good measure he gives a solicitor as an example.
The idea that one cannot be employed and have an independent mind is, as I said in Committee, an absurd notion. I said then—this is the passage to which the noble Lord, Lord Hutchinson of Lullington, referred in his opening today:
"The idea that merely because someone is employed he cannot be independent is absolute nonsense".—[Official Report, 29/1/90; col. 43.]
I adhere to that view. I am not saying, and I have never said, that the conclusions of the Royal Commissions of the noble Lord, Lord Benson, or Sir Cyril Phillips, were characterised in that way. That is not the point with which I was dealing. I was dealing with the idea that merely because someone is employed he cannot be independent, and I say that that is nonsense. I strongly adhere to that view. That does not mean that it would be wise that all prosecutions should be conducted, even if it were thought than any should be, by employed persons. The noble Lord was perhaps not taking account of that part of what I said in Committee. I can well understand what my noble and learned friend Lord Hailsham had to say, and what my noble friend Lord Harmar-Nicholls said, on that occasion about the desirability of someone having experience of both sides so that one does nothing but prosecute or defend. I pointed out that one might have continuous periods on either side. I instanced the idea of short-term contracts.
There are people at the Bar who would value the possibility of having some degree of financial security for a period, and short-term contracts are possible; but I am not here to advocate that point one way or another. I am here to point out that to make that decision an impossible one to entertain for the advisory committee and the designated judges in conjunction with the professional bodies, is utterly wrong. I hope that your Lordships will not accept the amendment.
I entirely accept the view that there are important considerations as to what extent any part of the prosecuting service—that refers not just to the CPS but to all prosecuting authorities—should use
414
salaried employees to present cases at any stage. That is an entirely different question. This issue is merely whether the advisory committee, the professions and the designated judges should be debarred, for as long as the provision lasts, from even considering the question of granting rights of audience to a person who is employed by a prosecuting authority to enable him to conduct the prosecution in a criminal trial.
It would be wrong to answer that question "no" for all time, in the way that the amendment suggests. As I have said, that does not mean that I consider that it would be desirable to have a state prosecution service conducting all trials on indictment, or anything of the kind. I am sure that the noble Lord, Lord Mishcon, who spoke on that point earlier, will share that view. That is a different question altogether. The question we are considering is whether anyone who is a salaried employee can be sufficiently independent to be allowed to conduct a trial on indictment.
I should perhaps refer to what my noble and learned friend Lord Rawlinson of Ewell said about people complaining to him subsequently about a decision taken by counsel; for example, to abandon a trial or accept a reduced plea. I contemplate that if a barrister were employed by the CPS to represent it in a criminal trial on indictment, that person appearing for the Crown would have the responsibility and power to make the decision about whether, in the course of the trial, to accept a plea, discontinue the prosecution or whatever.
It is perhaps worth reminding your Lordships that the mere fact that someone has been retained does not necessarily mean that he will be completely independent in the sense that he may have to look to the CPS for further work. One of the difficulties that can arise is where somebody takes a decision of which another person does not approve. The latter may decide that the person whose decision has been impugned should not again be instructed without any right of appeal. However, under our legislation nowadays an employee has the possibility of protection in that situation. I hope that your Lordships will not agree to the amendment.
Baroness Seear: My Lords, before the noble and learned Lord sits down, perhaps I may ask a question. Does he make a distinction between being an employed person in general and being a person employed by a prosecuting authority? Surely it is by whom one is employed that matters, not whether a person is employed.
The Lord Chancellor: My Lords, I can distinguish between a person employed by a prosecuting authority and one employed by somebody else. However, the mere fact that someone is employed by a prosecuting authority does not mean that he cannot bring an independent mind and independent judgment to the problems before him. I do not wish to pursue this too far, but the essence of the reason for the existence of the Crown Prosecution Service is that independent and proper decisions will be taken as to the institution of prosecutions themselves. It is generally the employees of the

415
Crown Prosecution Service who take that decision. It is vitally important that the decisions be taken independently and as the result of the application to the case—where it has to be decided whether the case should be taken—of the independent judgment of the person in question. He is not precluded from having an independent judgment in the matter simply because he is employed.
I said before, and I repeat in regard to the magistrates' court, that it is not that there is no distinction between the magistrates' court and the Crown Court and the others. The independence of judgment by those concerned in the institution and carrying on of prosecutions is essential at every stage. Anything that would cast doubt on that, or seek to impugn it, is counter-productive to the whole idea as a result of which or on the basis of which the Crown Prosecution Service was set up. Of course the noble Lord, Lord Harris of Greenwich, approves of that because he does not approve of the idea that the decision whether or not to carry on a prosecution should be taken independently of those who investigated, namely, the police.
Lord Campbell of Alloway: My Lords, before the noble and learned Lord sits down, perhaps I may respectfully ask him whether he accepts the rectitude of the principle that the person who takes the statements from the witnesses and who prepares the case should not have the conduct of that case for the prosecution as an advocate. Does he accept that?
The Lord Chancellor: My Lords, in his earlier submissions the noble Lord referred to one of the government papers. I think he probably referred to the first of the three Green Papers. I said there that an example of a code of conduct provision might be that the person having the responsibility for the investigation of the case should not have the responsibility for its presentation. I said that in relation to the more serious cases taken on indictment. It does not necessarily apply to all cases on indictment. This is a matter for consideration as part of the rules. However, that is an entirely different question from whether or not the person who presents the case could properly be an employed person.
The Earl of Onslow: My Lords, as one who thinks that—
Noble Lords: Order!
5.15 p.m.
Lord Hutchinson of Lullington: My Lords, I think that I have the privilege of replying to the debate which we have had on the amendment. I wish to take a few moments in reply to the noble and learned Lord by making one or two points about what has been said by other noble Lords. I am grateful to them for their contributions.
The noble and learned Lord has reiterated repeatedly, as he did at Committee stage, that the question in the amendment is whether an employee can exercise an independent mind in relation to
416
prosecutions. With the greatest possible respect to him, that is not the question in the amendment, as I ventured to try to explain on the last occasion. The question is whether a salaried employee of the Crown Prosecution Service can be described as an independent advocate. It is a perfectly simple question. We have only to ask ourselves whether it would be appropriate to appoint such a person to the Bench. The answer will surely come back, "Of course not, because it is essential that a judge should have balance". Someone who has served in the prosecution service as a salaried employee would surely not be an appropriate person—however honourable, however efficient, however good—to be appointed to the Bench. As all noble Lords appreciate, salaried employees in the Crown Prosecution Service will have annual reports made upon their performance. Their promotion within the service will be considered. With great respect, that is not independence.
What the amendment is all about is whether the advocate conducting the prosecution in serious crime can be regarded by the jury, by the judge and by the public as an entirely and completely independent person. All the amendment seeks to do is to ensure for the future that an employee advocate is not the person who will conduct the prosecution. This makes no criticism of the independence of any particular individual. The Customs and Excise staff, the Inland Revenue staff, the staff of the district attorney in the United States of America, the staff in New South Wales, in Hong Kong, where all these questions have arisen in a difficult form, no doubt have employees of perfectly good independence of mind. That is the point of the amendment.
If I may say so, I am disappointed that the noble and learned Lord has not covered the matter of principle which was dealt with in such depth and at such length by the Royal Commission, when this point was taken and answered. It is not a matter of the individual but of principle.
Perhaps I may say to the noble Lord, Lord Mishcon, that when he stated that he would keep an open mind, I entirely accept that he meant that. It was a genuine observation. Throughout the Bill and beforehand on almost no point have he and I differed. We have always felt that the matter could have been cleared up quite easily in regard to the whole Bill if only the noble and learned Lord had got myself and the noble Lord, Lord Mishcon, around a table. We should have resolved the problem in a short time.
When the noble and learned Lord says that it is a question of what type of service we want in the Crown Prosecution Service, I say that that is not the question. It is a recruiting matter. He has only to look at the staff of the DPP which includes barristers who have a right of audience. They take the cases in the magistrates' court, they commit the cases and have always done so. But when it comes to who is to conduct the case in the Crown Court, it is handed over to an independent advocate. The inference is not that the barrister who works in the office of the Director of Public Prosecutions is a non-independent, second-rate person. The conduct of the case is handed over in order to maintain the

417
principle of total independence. I am sure that the Crown Prosecution Service will in due course recruit people of the same quality as have worked hitherto in the director's office.
Lord Mishcon: My Lords, I hope that the noble Lord will not mind giving way for one moment so that we can present the full position. I know that the noble Lord always wishes to present the full position. Does the noble Lord consider that if, at the end of presenting a case to go for trial, there was a submission that there was no case to answer, the director's representative in the magistrates' court would not be fit to conduct that case becasue he could not be independent?
Lord Hutchinson of Lullington: My Lords, the noble Lord still seems incapable of seeing the point of the amendment. Of course that person would not be incapable. The whole point is that when the case reaches the Crown Court the prosecution must be conducted by someone who is clearly independent as a matter of principle. It is not a question of his competence.
I should repeat the point that was made by the noble and learned Lord, Lord Havers, in Committee, on the matter of independence. He found when he was Attorney-General that because certain Treasury counsel had conducted prosecutions for such a length of time at the Central Criminal Court they became prosecution-minded. The noble and learned Lord, Lord Hailsham, referred to that. As a result of that the noble and learned Lord introduced certain reforms. I refer to that only to show that even advocates who have worked for 10 years in a mixed practice in chambers and who later become Treasury counsel can, as the noble and learned Lord, Lord Havers, discovered, adopt a prosecution-minded approach. Therefore, the noble and learned Lord introduced reforms which still apply. That is an example of how independence can disappear if one is conducting only one kind of work.
I apologise for interrupting the speech of the noble Lord, Lord Morris. The noble Lord said that he objected to the view that it was only the learned profession of barristers who could be independent. I have never suggested that for one single moment. The noble Lord has not appreciated that the Bar accepts entirely that solicitors and perhaps other persons should have rights of audience in Crown Courts. This amendment has nothing whatever to do with questions of barristers and solicitors. There will be barristers and solicitors in the Crown Prosecution Service. Now there will also be laymen in the Crown Prosecution Service. There is also a suggestion later on in the Bill that such laymen may conduct bail applications before High Court judges. I wish to reject the constant suggestion that amendments that one moves have something to do with one's own profession. That is not so. This is a matter of principle. Having regard to the support which I have received from all around the House I feel it is incumbent on me to take the view of the House.
5.24 p.m.
On Question, Whether the said amendment (No. 110A) shall be agreed to?
Their Lordships divided: Contents, 49; Not-Contents, 143.

DIVISION NO. 1

CONTENTS

Ackner, L.

[Teller.]

Addington, L.

Irvine of Lairg, L.

Airedale, L.

Lloyd of Kilgerran, L.

Aldington, L.

McGregor of Durris, L.

Allenby of Megiddo, V.

Meston, L.

Amherst, E.

Moyne, L.

Ardwick, L.

Mulley, L.

Beloff, L.

Northfield, L.

Bledisloe, V.

Peyton of Yeovil, L.

Bruce of Donington, L.

Rawlinson of Ewell, L.

Campbell of Alloway, L.

Rees, L.

Craigavon, V.

Renton, L.

Cross, V.

Rippon of Hexham, L.

Donaldson of Kingsbridge, L.

Robson of Kiddington, B.

Falkland, V.

Russell, E.

Foot, L.

Saltoun of Abernethy, Ly.

Grimond, L.

Seear, B.

Hacking, L.

Selkirk, E.

Hailsham of Saint Marylebone, L.

Simon of Glaisdale, L.

Somers, L.

Hanworth, V.

Tordoff, L.

Harris of Greenwich, L.

White, B.

Havers, L.

Wigoder, L. [Teller.]

Hooson, L.

Wilberforce, L.

Houghton of Sowerby, L.

Winchilsea and Nottingham, E.

Hutchinson of Lullington, L.

NOT-CONTENTS

Abinger, L.

Diamond, L.

Allen of Abbeydale, L.

Donaldson of Lymington, L.

Ampthill, L.

Downshire, M.

Arran, E.

Dundee, E.

Auckland, L.

Eccles, V.

Aylestone, L.

Elliot of Harwood, B.

Balfour, E.

Elton, L.

Barnett, L.

Ennals, L.

Bauer, L.

Ewart-Biggs, B.

Belhaven and Stenton, L.

Ferrers, E.

Belstead, L.

Fraser of Carmyllie, L.

Bessborough, E.

Fraser of Kilmorack, L.

Birk, B.

Gainford, L.

Blackstone, B.

Gallacher, L.

Blatch, B.

Geddes, L.

Blease, L.

Gisborough, L.

Blyth, L.

Graham of Edmonton, L.

Boardman, L.

Haddington, E.

Bottomley, L.

Hankey, L.

Boyd-Carpenter, L.

Hayter, L.

Brabazon of Tara, L.

Hemphill, L.

Broadbridge, L.

Henderson of Brompton, L.

Brookes, L.

Henley, L.

Brougham and Vaux, L.

Hesketh, L.

Butterworth, L.

Hives, L.

Caithness, E.

Holderness, L.

Carnegy of Lour, B.

Home of the Hirsel, L.

Clanwilliam, E.

Hooper, B.

Cledwyn of Penrhos, L.

Hughes, L.

Coleraine, L.

Hylton-Foster, B.

Colwyn, L.

Jenkin of Roding, L.

Constantine of Stanmore, L.

Joseph, L.

Cottesloe, L.

Killearn, L.

Cox, B.

Kinloss, Ly.

Crickhowell, L.

Kirkhill, L.

Cullen of Ashbourne, L.

Kitchener, E.

Dacre of Glanton, L.

Knollys, V.

David, B.

Lauderdale, E.

Davidson, V. [Teller.]

Lawrence, L.

Dean of Beswick, L.

Layton, L.

Denham, L. [Teller.]

Limerick, E.

419

Lloyd of Hampstead, L.

Quinton, L.

Long, V.

Rankeillour, L.

Longford, E.

Reay, L.

Lucas of Chilworth, L.

Renwick, L.

Lyell, L.

Rochdale, V.

Mackay of Clashfern, L.

Rodney, L.

Macleod of Borve, B.

Romney, E.

Malmesbury, E.

St. Davids, V.

Mancroft, L.

Sanderson of Bowden, L.

Merrivale, L.

Seebohm, L.

Mersey, V.

Sefton of Garston, L.

Mishcon, L.

Shannon, E.

Monteagle of Brandon, L.

Shaughnessy, L.

Morris, L.

Stedman, B.

Mottistone, L.

Strathcarron, L.

Mountevans, L.

Strathclyde, L.

Mowbray and Stourton, L.

Strathmore and Kinghorne, E.

Munster, E.

Murton of Lindisfarne, L.

Sudeley, L.

Nelson of Stafford, L.

Swansea, L.

Nicol, B.

Terrington, L.

Norrie, L.

Teviot, L.

O'Brien of Lothbury, L.

Thomas of Gwydir, L.

Onslow, E.

Trumpington, B.

Orkney, E.

Tryon, L.

Pender, L.

Turner of Camden, B.

Peston, L.

Ullswater, V.

Phillips, B.

Vaux of Harrowden, L.

Pitt of Hampstead, L.

Wallace of Coslany, L.

Plummer of St. Marylebone, L.

Westbury, L.

Young, B.

Prys-Davies, L.

Resolved in the negative, and amendment disagreed to accordingly.
5.32 p.m.
Lord Renton Lord Renton moved Amendment No. 111:
Page 19, line 32, at end insert—
("(2A) No person shall have a right of audience as a barrister by virtue of subsection (2)(a) above unless he has been called to the bar by one of the Inns of Court and has not been disbarred or temporarily suspended from practice by order of an Inn of Court,").
The noble Lord said: My Lords, I moved a similar amendment at Committee stage. My noble and learned friend the Lord Chancellor said that he could accept it in principle but wished to consider the drafting. That was on 29th January. Today is 22nd February. I should like to know whether my noble and learned friend now considers that the drafting is as perfect as the four present treasurers of the Inns of Court and four of their predecessors think it to be. I should have thought that if he were in a sporting mood he could take the risk of accepting the amendment. I beg to move.
The Lord Chancellor: My Lords, as my noble friend said, I accepted the amendment in principle at Committee stage because I am entirely in sympathy with the point that is made. My noble friend does not need me to tell him that the arrangements that exist between the General Council of the Bar and the Inns of Court are just a little intricate. I have not had as full an opportunity as I should have liked to consider the full implications of the amendment.
However, in order to make progress I propose to recommend to your Lordships that the amendment should be accepted. My noble friend will understand if, as we examine the matter further, additional action has to be taken arising from the amendment. On present advice it appears to be acceptable. We
420
have tried to examine the implications for the future. If my noble friend can accept my agreeing to the amendment subject to that proviso, I shall be very happy to do so.
Lord Renton: My Lords, I thank my noble and learned friend and congratulate him on his sportsmanship.
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No. 112:
Page 19, line 41, at end insert—
("(5A) Where, immediately before the commencement of this section, no restriction was placed on the persons entitled to exercise any right of audience in relation to any particular court or in relation to particular proceedings, nothing in this section shall be taken to place any such restriction on any person.").
The noble and learned Lord said: My Lords, Amendments Nos. 112 and 128 are designed to clarify the position with regard to rights of audience and rights to conduct litigation.
First, with regard to Clause 24, my intention is to ensure that the list of categories of persons who may have rights of audience does not exclude any person who currently has a right to appear before any court. The definition of court in Clause 83(1) of the Bill includes an arbitrator, however appointed, and whether the arbitration takes place under a reference by consent or otherwise. At present, no restrictions upon who may exercise a right of audience before such an arbitrator exist, and the amendment seeks to ensure that the status quo in that regard is not disturbed. It is intended to cover every existing right of audience.
With regard to Clause 25, there currently exist no restrictions upon who may exercise a right to conduct litigation in respect of tribunals, all of which fall within the list of tribunals reviewed by the Council on Tribunals. All such tribunals are contained within the definition of a court set out in Clause 83(1). The amendment seeks to ensure that no person who, before the clause comes into force, has any right to conduct litigation before a court or tribunal which does not restrict who can appear before it will lose that right.
The purpose of the amendments is to do no more than give effect to an undertaking that I gave in the White Paper, and on several other occasions, to ensure that no person or group of persons loses any rights to conduct litigation or right of audience which they currently possess by virtue of the provisions of the Bill. I beg to move.
Lord Hacking: My Lords, I rise to my feet to put in a marker. I commented on the amendment when I spoke in support of Amendment No. 110. In my submission it does not deal with the situation that faces solicitors' clerks for the reasons that I developed; namely, that they do not have a right of audience in chambers in the county court. If the issue of whether solicitors' clerks should appear in chambers before county court judges and county court registrars had come before Mr. Justice Cozens-Hardy in 1901, I have no doubt that Mr. Justice Cozens-Hardy would have pronounced the

421
same way as he did concerning rights of audience in chambers. However, that matter did not come before him and it is still open. I should therefore be grateful to learn from the noble and learned Lord whether he still has an open mind about my amendment, Amendment No. 110.
The Lord Chancellor: My Lords, certainly I do not intend the provision to foreclose the questions raised in relation to Amendment No. 110. Amendment No. 111 makes certain that nobody loses an existing right of audience. Amendment No. 110 deals with an entirely different matter. The noble Lord, Lord Hacking, seeks to confer a right of audience, albeit in practice generally granted by discretion at present. Amendment No. 111 simply preserves all existing rights of audience and was not intended to deal with the noble Lord's problem under Amendment No. 110.
On Question, amendment agreed to.
Lord Simon of Glaisdale Lord Simon of Glaisdale had given notice of his intention to move Amendment No. 113:
Page 19, line 43, leave out ("commencement") and insert ("coming into force").
The noble and learned Lord said: The amendment is designed merely to bring the language of the subsection into line with that of Clause 88. If my noble and learned friend is disposed to accept the amendment I shall move it now; otherwise perhaps it had better be left to the discussion that he so kindly offered.
The Lord Chancellor: My Lords, before my noble and learned friend sits down, perhaps I may say that I wish to consider the point he has raised in the amendment with parliamentary counsel and perhaps report the result to him at the discussion that we have arranged.
Lord Simon of Glaisdale: My Lords, in that event, I shall not move the amendment.
[Amendment No. 113 not moved.]
The Lord Chancellor The Lord Chancellor moved Amendment No. 113:
Page 19, line 43, leave out ("Act") and insert ("section").
The noble and learned Lord said: My Lords, the numerous clauses and provisions of the Bill may come into force on different dates. The term "commencement of this Act" is therefore open to several interpretations. The purpose of the amendment is to ensure that the provisions of subsection (6) of the clause apply to all relevant courts as soon as the provisions of this clause come into force and that no relevant court is omitted merely as a result of those provisions being implemented on a different date from any others. I beg to move.
On Question, amendment agreed to.
Lord Morris Lord Morris had given notice of his intention to move Amendment No. 115:
Page 20, line 13, after ("Society") insert—(" () the Institute of Legal Executives;").
The noble Lord said: My Lords, in view of the fact that the noble Lord, Lord Hacking, spoke so
422
eloquently to the amendment in the course of our discussion on Amendment No. 110, which somewhat surprised me, and, more importantly, in view of the fact that my noble and learned friend has made it clear that the term "authorised body" within the Act should refer only to those bodies which would, within the spirit of the Act, be authorised bodies as of now, and that there is within the Bill the means whereby interested parties could apply to become authorised bodies, it would be best for the amendment not to be moved.
[Amendment No. 115 not moved.]
5.45 p.m.
Lord Lloyd of Kilgerran Lord Lloyd of Kilgerran moved Amendment No. 116:
Page 20, line 13, after ("Society") insert—
(") the Institute of Trade Mark Agents;
() the Chartered Institute of Patent Agents;").
The noble Lord said: My Lords, in moving this amendment I should like to speak also to Amendments Nos. 130, 142 and 143.
All the amendments relate to rights of audience and the right to conduct cases in relation to patents and trade mark matters. It has been said on many occasions during the course of the Bill that patents and trade marks are extremely important matters in national and international trade.
Perhaps I may first take Amendments Nos. 116 and 130 together. Each deals with Clause 24 in relation to rights of audience and Clause 25 in relation to the right to conduct a case. Both amendments are in two parts. Clause 24(2) states:
"A person shall have a right of audience before a court in relation to any proceedings only in the following cases".
The only persons having such a right are those who have been appointed by the appropriate authorised body. In each case the appropriate authorised body is said to be the General Council of the Bar or the Law Society. Through the amendments I seek to add to that list the Institute of Trade Mark Agents and the Chartered Institute of Patent Agents.
Perhaps I may deal first with the Chartered Institute of Patent Agents. We discussed the scope of the membership of the advisory body and the noble and learned Lord the Lord Chancellor kindly wrote to me in that connection on 19th February. He said that, although he rejected the view that patent agents should be members of that advisory body, when seeking lay members from the background designated as being desirable under Clause 16(5),
"[I] would certainly expect to consult the Institute of Patent Agents when seeking candidates".
In support of my contention that they would be helpful, the amendments seek to expedite the course of justice in relation to patents and trade marks and to reduce the costs of litigation. It is suggested that the Chartered Institute of Patent Agents should be a member of the authorised body. In that connection I must invoke Section 292 of the Copyright, Designs and Patents Act 1988 which is of great significance. Section 292(1) states:
"A registered patent agent may do, in or in connection with proceedings in a patents county court"—

423
the amendments are concerned only with county court proceedings—
"which are within the special jurisdiction of that court, anything which a solicitor of the Supreme Court might do, other than prepare a deed".
Under that section, a registered patent agent may do in a patent court exactly what a solicitor may do in the Supreme Court. I believe that some sympathy should therefore be extended to Amendments Nos. 116 and 130 as they relate to registered patent agents and should therefore be included in the definition of "authorised body" and thus the definition of "appropriate authorised body".
On the question of trade mark agents, I am on less secure ground. Amendments Nos. 142 and 143 stand alone in relation to the rights of trade mark agents. Both amendments are framed in virtually the same terms save that one deals with rights of audience and the other deals with the right to conduct litigation.
Amendment No. 142 is important and helpful in relation to trade mark matters before the county courts. It states:
"On the coming into force of section 25, the Institute of Trade Mark Agents shall be deemed—

(a) to have granted the rights of audience in the county courts in relation to matters arising under the Trade Marks Act 1938 as amended to the same extent as is granted to solicitors (in their capacity as solicitors) by subsection (l)(a) of section 29;

(b) to have in force qualification regulations which have been properly approved for the purposes of section 24; and

(c) to have in force rules of conduct which have been properly approved for the purposes of section 24".

I need hardly add that at the present time the Institute of Trade Mark Agents has examinations and regulations with regard to qualifications and has a strict code of practice. Paragraphs (b) and (c) are therefore a statement of the present position. Amendment No. 142 relates to rights of audience and, as I have said, Amendment No. 143 is framed in exactly the same terms save that it is directed to the conduct of litigation whereas the other amendment is limited to rights of audience.
I am sorry to have taken up so much of the House's time on these important, practical matters. Patent agents should certainly be accredited members of the authorised body. I am on more difficult ground to press the amendments at this stage, particularly as the noble and learned Lord the Lord Chancellor was sympathetic to some aspects of my submissions regarding Amendment No. 117 and invited members of the Institute of Trade Mark Agents to come to his office to discuss matters further. I beg to move.
Lord Renton: My Lords, we all respect the tremendous expertise in patent, trade mark and copyright work which the noble Lord, Lord Lloyd of Kilgerran, has acquired in his practice as a barrister—I stress as a barrister. However, what he suggests goes beyond the present structure of the Bill; namely, that two non-legal professional organisations (if I may describe them as such) should become authorised bodies under the Bill and be selected when there are a good many other non-legal professional organisations which are not mentioned in the Bill but whose claims to become authorised
424
bodies might eventually have to be considered. One thinks, for example, of the Royal Institute of British Architects, the Royal Institution of Chartered Surveyors, town planning institutes, accountants' bodies and others. They are legion.
If we are to start being selective now, we could alter the whole structure of the Bill and pre-empt its machinery as envisaged by my noble and learned friend the Lord Chancellor. Frankly, these are not amendments that I should expect my noble and learned friend to accept.
The Lord Chancellor: My Lords, the noble Lord, Lord Lloyd of Kilgerran, is right. There is already a statutory right to be heard in the patent county court granted under the Act to which he referred. To that extent patent agents are distinguished from bodies such as the Royal Institute of British Architects and others to which my noble friend Lord Renton referred. That particular right is preserved under Clause 24(2)(b). Paragraph (a) of that clause does not apply. However:
"he is granted a right of audience before that court in relation to those proceedings by or under any enactment".
So that right is conferred under the statute to which the noble Lord, Lord Lloyd, referred.
I believe that so far as other rights of audience and rights to conduct litigation are concerned it would be appropriate, as my noble friend Lord Renton said, that the machinery of this Act should be applied to consider whether or not any such rights should be granted either to the Chartered Institute of Patent Agents or to the Institute of Trade Mark Agents. That system is open, if the Bill is approved, and anything that they might have to put forward would be considered under that machinery. I do not of course in any way prejudge the outcome of any such application.
In the light of that explanation, I hope that the noble Lord will feel able to withdraw his amendment.
Lord Lloyd of Kilgerran: My Lords, I am very much obliged to the noble Lord, Lord Renton, for his kind remarks about me. I am also obliged to the noble and learned Lord the Lord Chancellor for explaining to me that at least patent agents are in a totally different class from surveyors, having regard to the terms of the Copyright, Designs and Patents Act, where it is indicated that they have rights similar to those of a solicitor.
In view of the indication given by the noble and learned Lord that under the Bill—if I quote him correctly—it would be open to chartered patent agents and trade mark agents to consider their position in so far as this Bill is concerned, given of course without any commitment, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Hacking Lord Hacking moved Amendment No. 117:
Page 20, line 21, at end insert ("or an employee of a member").
The noble Lord said: My Lords, I have already addressed your Lordships on this amendment when I spoke on Amendment No. 110. I should, however, like to make one further remark. The noble and

425
learned Lord kindly agreed to make arrangements for the noble Lord, Lord Morris, myself and representatives of the Institute of Legal Executives to have a discussion with his department in the time between Committee and Report stages. Noble Lords will recall that this amendment was tabled and debated in Committee. Therefore, I am grateful to the noble and learned Lord for giving us the opportunity to have a discussion with his officials.
In moving this amendment, which in my submission sets up a convenient mechanism for legal executives to obtain modest extensions to their rights of audience under the umbrella of the Law Society, I should like to emphasise that it in no way stops the Institute of Legal Executives from applying under Clause 26 to be designated as an authorised body. For example, if at any time the institute did not feel that it was obtaining sufficient rights of audience under the umbrella of the Law Society, it would always be open to it to exercise its rights under Clause 26 of the Bill.
However, at the moment all legal executives who are members of the institute and all solicitors' clerks conduct the entirety of their rights of audience and rights of litigation under the auspices of members of the Law Society. It is that realism that I seek to reflect in this amendment, which has the support of the Law Society and the institute as well as, I believe, that of the Bar. I beg to move.
Lord Donaldson of Lymington: My Lords, unfortunately, I do not have with me my copy of the Solicitors Act. However, I entertain some doubts as to whether there is a power in the Council of the Law Society to make rules which are directly binding upon legal executives. If one looks at the rules of conduct in this clause, at line 29 one finds that rules of conduct:
"in relation to an authorised body, means rules (however they may be described) as to the conduct required of members of that body".
If this paragraph with which we are concerned is to read:
"of which that person is a member or an employee of a member",
I think that we have to find somewhere rules of conduct which directly bind the employee. I am not at the moment quite clear about where we get them. I may be very forgetful about such matters but I do not remember ever being asked to approve rules under the Solicitors Act which directly bound legal executives. It may bind solicitors contractually to give instructions to legal executives and it may bind the solicitors in the sense that they may be vicariously responsible for the legal executives; but that seems to be rather different from extending the matter and treating the legal executives as being part of the Law Society in some way.
They are very respected members of the profession but they are, so to speak, associate members. I should have thought that to extend this right to associate members would require quite extensive redrafting in other parts of the Act apart from this one.
Lord Mishcon: My Lords, I do not know whether I can be of any assistance in this matter. As one would expect, the Master of the Rolls is absolutely
426
right when he says that solicitors are personally responsible for their employees in regard to their professional conduct.If indeed an executive errs in a professional way, the matter can come before the solicitors' disciplinary tribunal and that executive can be stopped from being employed by any member of the Law Society if that executive has behaved badly. However, there may be something more in the remarks of the noble and learned Lord the Master of the Rolls because I have merely dealt with what he said was vicarious responsibility.
The Lord Chancellor: My Lords, this amendment would suggest that the authorised bodies named in the Bill—the Law Society and the General Council of the Bar—would be expected to exercise a disciplinary authority over, and have training regulations and conduct rules for, individuals who are not their members. That would be quite contrary to the general principle contained in Clause 14(3) which, as your Lordships know, requires every person exercising rights of audience himself to be a member of an appropriate authorised body which can maintain standards of qualification and conduct. In fact, such employees not only might be members of those bodies, but in some cases—for example, legal executives—they might be members of completely separate professional bodies.
The detrimental effect on these professional bodies, their status and authority, would surely be considerable if another body were the authorised body for the purposes of this Bill for some or all of their members. Rather worse would be the situation in which the employees' own professional body was an authorised body for some proceedings and their employers' for others. The possibilities for confusion are clearly rather serious. I suggest to the noble Lord, Lord Hacking, that the correct approach here must be for the various professional bodies to which these employees belong to become authorised themselves—that is appropriate—for the purpose of granting rights of audience to their members. Only by that means can appropriate standards of competence and conduct among practitioners be maintained.
The idea of personal responsibility is quite important in this area. I would wish to adhere to it. I hope that the noble Lord will feel that in the circumstances it would not be wise to press the amendment.
Lord Hacking: My Lords, I certainly do not intend to press the amendment. However, there is a practical problem that I have tried to explain to the House. At the moment that practical problem is not resolved. I have made the points that I felt should be made in support of the amendment. I have heard the noble and learned Lord. I leave the position as it is at the moment. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 118 not moved.]
6 p.m.
The Lord Chancellor The Lord Chancellor moved Amendment No. 119:
Page 20, line 34, after ("solicitor)") insert ("and section 25 of that Act (costs where unqualified person acts as a solicitor)").
The noble and learned Lord said: My Lords, the Bill provides a framework whereby people other than solicitors will have the right to conduct litigation. It is right that those who do such work should be able to recover costs. These amendments are consequential in that, and seek only to ensure that, a person who is not a solicitor but who is granted a right of audience or a right to conduct litigation by virtue of the provisions of either Clauses 24 or 25 shall not thereby be unable to recover his or her costs on the grounds that he or she is an unqualified person acting as a solicitor. This might be the case were the amendment not to be approved. I beg to move.
On Question, amendment agreed to.
Clause 25 [Rights to conduct litigation]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 120:
Page 20, line 40, leave out ("only").
The noble and learned Lord said: My Lords, in moving the amendment I should like to speak also to Amendment No. 121.
These two amendments seek merely to improve the grammar of the drafting of this clause, which, if left, might give rise to misunderstanding. The amendments clarify the fact that a person shall have a right to conduct litigation in relation to any proceedings only in the cases listed in subsection (2), and not that a person shall only have a right to conduct litigation as opposed to having a right of audience or holding any other relation in respect of any proceedings in the cases listed. I beg to move.
Lord Kilbracken: My Lords, the word "only" is one that frequently becomes misplaced under strict grammatical rules. The amendment of the noble and learned Lord goes some way towards placing it in the right position. It is certainly an improvement.
However, I should like to suggest to him that it would be even better to put it at the end of line 41:
"any proceedings in the following case only".
Perhaps he would like to consider that for the next stage of the Bill.
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No. 121:
Page 20, line 41, after ("proceedings") insert ("only").
The noble and learned Lord said: My Lords, I have already spoken to this amendment. If I am not mistaken, I believe that I am here doing what the noble Lord, Lord Kilbracken, asked, and putting "only" at the end of line 41. I beg to move.
Lord Kilbracken: My Lords, the noble and learned Lord is putting the word "only" after "proceedings" in line 41. I am suggesting that it should come after the word "cases" at the end of line 41.
The Lord Chancellor: My Lords, I am grateful to the noble Lord, I shall certainly consider whether the provision can be improved even further.
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No. 122:
Page 20, line 43, leave out ("is granted the") and insert ("has a").
The noble and learned Lord said: My Lords, I should like to move Amendment No. 122 and speak to Amendments Nos. 123 to 127 inclusive. These amendments are designed to achieve the same aim in relation to rights of audience under Clause 24 as I achieved in respect of earlier amendments in fulfilment of an undertaking that I gave to my noble friend Lord Renton.
The amendments seek to ensure that only current entitlements to exercise rights of litigation confer such rights. They provide that where a person has been granted a right to conduct litigation by an authorised body, a court or any enactment, he or she shall no longer possess that right if that authorised body or that court withdraws it. Similarly, there will be no right if the provisions of that enactment are disapplied, or the right is otherwise granted temporarily or conditionally and subsequently lapses. The disciplinary powers of authorised bodies are thus preserved. I beg to move.
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendments Nos. 123 to 128:
Page 20, line 44, after ("proceedings") insert ("granted").
Page 21, line 1, leave out ("is granted the") and insert ("has a").
Page 21, line 2, after ("proceedings") insert ("granted").
Page 21, line 4, leave out ("is granted the") and insert ("has a").
Page 21, line 5, after ("litigation") insert ("granted").
Page 21, line 11, at end insert—
("(3A) Where, immediately before the commencement of this section, no restriction was placed on the persons entitled to exercise the right to conduct litigation in relation to a particular court, or in relation to particular proceedings, nothing in this section shall be taken to place any such restriction on any person.").
The noble and learned Lord said: My Lords, I have already spoken to Amendments Nos. 123 to 127 with Amendment No. 122. I have spoken to Amendment No. 128 with Amendment No. 112. With your Lordships' leave, I should like to move Amendments Nos. 123 to 128 en bloc. I beg to move.
On Question, amendments agreed to.
[Amendments Nos. 129 to 130 not moved.]
The Lord Chancellor The Lord Chancellor moved Amendment No. 131:
Page 21, line 32, after ("solicitor") insert ("and section 25 of that Act (costs where unqualified person acts as a solicitor)").
The noble and learned Lord said: My Lords, I have already spoken to this amendment with Amendment No. 119. I beg to move.
On Question, amendment agreed to.
Schedule 4 [Authorisation and Approval]:
Lord Ackner Lord Ackner moved Amendment No. 132:
Leave out Schedule 4.
The noble and learned Lord said: My Lords, the apparent robustness of the amendment is entirely out of character with the mover. It was put down

429
because I was told that it was the only way to discover what was going on with Schedule 4. The schedule was to be the subject matter of considerable amendment. My noble and learned friend the Lord Chancellor dealt with the matter in the debate at Committee stage on 29th January—that is nearly four weeks ago—with considerable co-operation and with characteristic charm and courtesy. Since nothing has happened, either by communication with me or on the Marshalled List, I am advised that this is the only way of getting further and better particulars of the position, if there are any. That is the purpose of moving the amendment. I beg to move.
The Lord Chancellor: My Lords, the situation is that I had hoped that I might be able to have the necessary amendments put down in time. However, as the noble and learned Lord has said, I had undertaken to look fairly extensively at Schedule 4. It is important to get it right.
We have not finished the work required to give effect to my undertakings in Committee. We are pressing ahead. Considering the time the Committee stage lasted, we have done a good deal of work in the meantime in presenting amendments to take account of undertakings. I am sorry that I have not been able to complete that. It is not for lack of will. It is a matter that I should very much like to have completed. But the difficulties and the amount of work involved mean that I am not yet able to present an amendment. I hope that in the light of that report on progress the noble and learned Lord will be kind enough to withdraw the amendment.
Lord Ackner: My Lords, will my noble and learned friend the Lord Chancellor be indulgent enough to let us have informally in advance some indication as to how the matter is progressing? I understand that the time normally permitted between the Report stage and Third Reading is very restricted and that the timings that we have been permitted between the Second Reading, Committee stage and this stage have been, so I am told, the minimum possible. I should find it very difficult if, with a schedule of this complexity, one had a couple of days at most to consider it. I appreciate also, as do noble Lords, that in parliamentary matters I am a child, although the pressure of leading a dual existence is having an ageing process hourly.
On that basis perhaps my noble and learned friend the Lord Chancellor can assist by making some indulgent move to make sure that we do not waste time in the final stages arguing about matters that do not require argument.
The Lord Chancellor: My Lords, with the leave of the House, I should like to do anything I possibly can to prevent any premature ageing settling down on my noble and learned friend. I shall do my best to enlighten him when we have completed the necessary work.
I hope—that is the best that I can say—that I shall be able to present something to him informally to give him time to consider it before we come to Report stage.
Lord Mishcon: My Lords, before the noble and learned Lord sits down, he gave a courteous reply to the noble and learned Lord, Lord Ackner, saying that he would be informed informally of the progress in regard to Schedule 4. May I take it that the same courtesy applies to all of us who have been interested in the matter?
The Lord Chancellor: My Lords, with the leave of the House, I am happy to inform all noble Lords who are interested. That may be rather a wide class, but I shall certainly seek to inform the noble Lord, Lord Mishcon, about my progress. Perhaps anyone with a particular interest in Schedule 4 will contact me and I shall try to copy any correspondence I have with my noble and learned friend Lord Ackner and pass it to them.
Lord Ackner: My Lords, for me hope has been the main form of buoyancy throughout the debates and, therefore, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 28 [The General Council of the Bar]:
Lord Meston Lord Meston moved Amendment No. 133:
Page 23, line 13, at end insert ("and").
The noble Lord said: My Lords, I should like to speak also to Amendments Nos. 134 and 137. We return to the mysteries of Clause 28. In Committee the noble Lord, Lord Renton, and I questioned the meaning of Clause 28(2)(c) and (3). The noble and learned Lord the Lord Chancellor told us that they refined the White Paper proposals and left open the possibility that the existing regulations and rules of the Bar Council might be altered. The same mechanism applies to the Law Society under Clause 29. The fact remains that the provisions qualify the statements contained in the White Paper that the current rules of the Bar Council and the Law Society will remain in force.
The amendments seek to ask what may happen to the existing rules, when that may happen and how. The clause is concerned only with rules governing rights of audience, although it is not entirely clear what the rules might be. Neither is it clear in what circumstances such rules may be scrutinised, when the scrutiny will take place and what critieria will apply.
As regards the circumstances in which consideration of the existing rules may occur, Clause 28(3) refers to the event of "any question arising". Are those words meant to be as broad as they appear? Also, how long after enactment of the legislation may such questions arise?
As regards the criteria to be applied on consideration of the existing rules, we can assume that the rights of audience rules will not be subject to the proposed restrictive trade practices criteria, because paragraph 11.2 of the White Paper states that. Therefore, what are the criteria?
The anxiety held about these matters is based on the fact that, at worst, the existing rules of the Bar and the Law Society may be struck down. The profession is concerned to know why they may be

431
struck down, in what circumstances and whether there will be any recourse. Therefore, I ask the question: what in reality is added by the last part of Clause 28?
In Committee the noble Lord, Lord Renton, suggested that it added nothing except obfuscation. If that is right I submit that it should be removed. If the noble and learned Lord the Lord Chancellor persuades the House that the provisions contained at the end of Clause 28 are necessary we shall accept them. However, perhaps they may be more acceptable if the provision contained in Clause 28(3)(c) was altered as I suggest in my next amendments, Nos. 135 and 136. I beg to move.
6.15 p.m.
Lord Renton: My Lords, I wish to support the noble Lord, Lord Meston. I need only add that on the previous occasion we noted that my noble and learned friend the Lord Chancellor made clear that the existing rules of the Bar Council—that is, those which existed when the Bill came into force—would receive deemed approval. However, it is not clear whether members already called to the Bar, whether practising or not, will have the right of audience. That point also arises and needs clarification.
Lord Donaldson of Lymington: My Lords, in the light of the discussion I raise a point which my noble and learned friend may wish to examine. It is the question of whether the provision relates to the existing rules which are deemed to be approved. The point had not occurred to me until I listened to the debate and recollected that consultation documents have been circulated in relation to the Law Society's rules, in particular its publicity code. I suppose that, quite unreasonably, the Law Society could make those rules before the Bill comes into force, subject to the concurrence of the Master of the Rolls. The same would apply to the Bar Council. After a quick glance it appeared that the Bar would be deemed to have granted rights of audience to the extent that barristers would have those rights immediately before 7th December, They would be deemed to have had their rules approved, but not necessarily those which were in force on 7th December. I raise the matter because suddenly it appeared to me to be a little odd.
The Lord Chancellor: My Lords, I shall deal first with the point raised by my noble and learned friend the Master of the Rolls. The intention is that the rights of audience are defined by reference to the situation on 7th December 1989, when the Bill was published. The regulations which are given effect are those which exist on the coming into force of Clause 24, dealing with the rights of audience. However, rules which are made now by the General Council of the Bar or the Law Society under another clause will have effect if they are not altered before the clause comes into force.
The intention is to provide that they are deemed to be approved, for reasons which I explained on the last occasion. However, they can be deemed to be approved for all purposes only if there is an
432
opportunity to question any provision of the rules. It is helpful in the sense that any rules which are approved by the mechanism which we have set up will not be affected by any other authority under the policy set out in the White Paper on restrictive trade practices.
The intention of the provision is to enable the rules to be scrutinised, if any question arises about them, and to go through the ordinary procedure. Instead of putting them all through the normal procedure, which would be one option, we have sought to leave with deemed approval rules in respect of which no question arises. We have done so in order to save trouble and to concentrate only on rules in respect of which a question requires to be determined. I believe that the noble Lord was raising a question on subsection (5), which states:
"Nothing in this section shall affect the validity of anything done in reliance on any provision of regulations or rules at any time before … it is determined in accordance with subsection (3)(c) that that provision is deemed not to have been approved".
In other words, the rules continue to have effect until they are not approved under the procedure. That is the purpose of this provision. I hope that in the light of that explanation, the noble Lord will feel able to withdraw his amendment.
Lord Mishcon: My Lords, before the noble and learned Lord sits down, our procedure is somewhat difficult on Report, as he will appreciate. When perfectly pertinent questions are asked by the mover of the amendment, the noble and learned Lord is courteous enough to answer and then one is deemed to be or has to be silent. Therefore, I only have the opportunity of asking the noble and learned Lord a question before he sits down.
Does what the noble and learned Lord has said mean that if either the Lord Chancellor or any one of the designated judges has doubts about a provision, automatically the protection which is given from the competition authority would go? If that is so, that lands us in a very difficult situation. On this matter, I speak on behalf of the Law Society
The Lord Chancellor: My Lords, the idea is that if there should be a question about any of the rules then that question should be submitted for consideration in the ordinary way under the machinery. The advisory committee, the Lord Chancellor and the four designated judges would have to look at the rule to see whether it should be approved. In other words, the deemed approval will apply to everything in respect of which there is no requirement to go through the procedure. That strikes me as the safest and easiest way.
The alternative is to require approval for all the rules. I felt that it was much better to leave the rules as they are with a deemed approval unless a question is raised about them. For example, let us suppose that one of the designated judges wishes to raise a question about one of the rules of the Law Society. In the light of the expressed views the Law Society may decide itself to change it. It might well say that the learned judge has made an obvious point and that there should be change. If that was so, the change would have to be examined by the advisory

433
committee and approved through the usual machinery. However, if the Law Society felt it wanted to maintain the rule, it would say so, the advisory committee would consider it and the designated judges and the Lord Chancellor would examine the question in the light of that advice and decide whether or not the rule should be approved. That is the system which I have in mind.
I always try to wait until everyone who wishes to speak has spoken before I speak on Report. However, I quite understand that if my answer is not entirely clear there is a difficulty. I believe that the procedure of asking a question before I sit down is a way of dealing with that matter which, generally speaking, works reasonably well. I am not certain whether that is so on this occasion.
Lord Mishcon: My Lords, does that mean that if any one of the designated judges disliked the provision, which until then had been deemed to be passed, then the protection against the competition authority would be removed?
The Lord Chancellor: My Lords, the rule would be considered, and if it was then approved by the Lord Chancellor and the designated judges it would have protection from the competition authority. A possible scenario is that the Lord Chancellor would raise a question about the rules. Speaking generally, I see the draft rules before they are approved as regards education and training for the Law Society, and I have always been courteously afforded a sight of the rules of the Bar. However, if any question arose about a rule then I should require to put that rule through the procedure.
The purpose of that is to give the benefit of deemed approval to all the rules which can be passed without question. If there is a question, it should be considered in the ordinary way. That is the purpose of the mechanism. It is designed to give protection in the simplest way possible to all the rules which do not raise any questions for the advisory committee, the designated judges or the Lord Chancellor. I believe that that is the simplest system which I can offer.
Lord Meston: My Lords, I am grateful to all noble Lords who have spoken in this short debate. I am particularly grateful to the noble Lord, Lord Mishcon, for his questions. It seems to me that the phrase:
"In the event of any question arising",
is meant to be as wide-ranging as it seems to be. It is still a little unclear how, when and why such a question might arise. Apparently it might arise in the mind of a designated judge or the Lord Chancellor, and might arise at any time.
Therefore, it also seems to me that this part of the clause qualifies the unqualified promises in the White Paper. There is an anxiety as to what might be struck down. I do not wish to make heavy weather of this and it is certainly not a matter which I shall press to a Division.
The Lord Chancellor: My Lords, before the noble Lord sits down, I am very happy to discuss this
434
matter with him further if there is any problem. The intention is to confer a possible benefit, and it is only in that sense that it goes a little further than the White Paper. That was going to leave the existing rules without any sort of approval. However, if the noble Lord would like to discuss this matter with me on a more informal basis, I shall be happy to do so.
Lord Meston: My Lords, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 134 not moved.]
Lord Meston Lord Meston moved Amendment No. 135:
Page 23, line 25, leave out ("not").
The noble Lord said: My Lords, a few moments ago I ventured to suggest that the noble and learned Lord might wish to consider a slight redrafting of this part of Clause 28, and the intention of Amendments Nos. 135 and 136 is to produce such a redrafting. They alter the wording without, I hope, altering the intention of Clause 28 so far as the intention can be understood. Of course, I am particularly grateful for the explanation which we have this evening.
However, the mechanism of Clause 28(2)(c) and Clause 28(3)(c) is not easy to envisage because it requires an actual consideration of whether a rule which exists is deemed to be approved. That is a somewhat speculative exercise. I suggest that the mental gymnastics involved may be reduced by these amendments, by altering the emphasis of Clause 28(3)(c) so that it reads: "that provision shall be deemed to have been so approved unless the Lord Chancellor and each of the designated judges determine otherwise".
The noble and learned Lord the Lord Chancellor said a few moments ago that this was intended to be the simplest of all procedures. With respect to him, I would argue that my amendments further simplify the procedure and make the procedure a little easier to understand. I beg to move.
6.30 p.m.
Lord Renton: My Lords, although I did not add my name to the two amendments of the noble Lord, Lord Meston, I should like to support him. I do so not only for the reasons he has given but also because it appears quite clearly that the main purpose of Clause 28 is to maintain the status quo as at the time the Bill comes into force or the 7th December, as the case may be. We are more likely to give the impression of trying to maintain the status quo if, instead of putting this in the negative, as the Bill now does, we allow the assumption that the provision has been approved unless the Lord Chancellor and each of the designated judges determine otherwise. That is more consistent with what has gone before and, I hope, more consistent with the intention of my noble and learned friend, as I am sure it is the intention of your Lordships.
Lord Donaldson of Lymington: My Lords, I am most unwilling that there should be any misunderstanding or ambiguity as to what all this

435
means, so I ask for help. No doubt if it arose after the Bill is enacted somebody would have to address us learnedly about this, but perhaps I could try to see whether I have it right.
Under Section 28(1)—I only take the General Council of the Bar; the same will apply to the Law Society—the General Council of the Bar is deemed:
"to have in force qualification regulations … and rules of conduct which have been properly approved for the purposes of Section 24".
One starts with that assumption and then goes on to find that those qualification regulations and rules of conduct are deemed to have been approved only in relation to rights of audience. I understand that; it is not right across the board, it is only in relation to rights of audience.
There is therefore a deemed approval in relation to rights of audience. They are deemed to be approved only so far as they would have been approved for the purposes of Section 24. However, we already know that they have been properly approved for the purposes of Clause 24 under Clause 28(1). Is this, so to speak, a factual inquiry under subsection (3) or is it a construction inquiry? Is one concerned to see whether a particular rule relates only to rights of audience or is one concerned, on the wording, to go into the merits of the rule? I fully appreciate that the intention is that we should go into the merits, otherwise there would be no point in going to the advisory committee and the director. As long as the noble and learned Lord appreciates that it is clear, I am quite happy, but I find it difficult working my way up, down and around.
Lord Mishcon: My Lords, it is on the assumption that it merely deals with merits. We support this amendment on the basis that an existing rule relating to rights of audience should only be challenged, if I may put it that way, and certainly only be done away with if there is a unanimous view of the Lord Chancellor and each of the designated judges. That is what this amendment does.
Viscount Bledisloe: My Lords, surely the exchange that took place between the noble and learned Lord and the noble Lord, Lord Mishcon, before either sat down on the last occasion demonstrates plainly that this amendment is right. Existing rules should survive unless it is plain that they are wrong. As the provision stands only one of the designated judges has to have some doubt and the existing rule goes, because they shall be deemed not to be so approved unless the Lord Chancellor and each of the designated judges is positively satisfied that it is right. Surely that puts the onus entirely the wrong way. One should strike down an existing rule only if everyone is convinced that it is bad. That would be the effect of the amendment of the noble Lord, Lord Meston, and I venture to suggest that it is right.
The Lord Chancellor: My Lords, it is not only a question of dealing with existing rules; it is applying to these existing rules a deemed approval. That is the point. It is not only dealing with existing rules and challenging them; it is providing them with a deemed approval.
436
There are two courses open. The first is to say that all of these rules, before they are approved, would have to go through the machinery if they were to get approval. In other words, unless and until they are approved they do not have that cover. That is a possible way of taking forward the policy of the White Paper.
However, in order to leave out unnecessary work, in this provision I sought to say "deemed approval" for all the rules; in other words, they will all carry my approval and the approval of my noble and learned friend the Lord Chief Justice, the Master of the Rolls, the President of the Family Division and the Vice-Chancellor. They will all be deemed to have our approval. That is all right, but if any one of us felt that a rule should not be approved, it would not be approved. It is therefore right that if there is a question about a particular rule it should not carry that deemed approval but should be submitted to all of us for consideration in the same way as if it were a rule we were looking at for the first time.
The protection for the existing rules is provided by the closing words of this clause, which make it clear that nothing which has happened or is happening will be affected unless and until the rule is not approved for the purposes of this clause. That therefore gives the benefit of a deemed approval to all the rules immediately and without question unless there is a question about a particular rule. In so far as there is a question about any rule, then that rule is submitted for the ordinary procedure to apply to it and all the designated judges and the Lord Chancellor will have to approve the rule before it will carry that approval from that time forward. That strikes me as a reasonable arrangement.
The alternative arrangement is to require all the rules on the date that the Bill comes into force to be submitted for approval and to go through the full procedure. That does not seem to be necessary unless there is a question—and I hope there will not be—about a particular rule or more than one rule. We will then concentrate only on that and apply the procedure only to that. That is what the provision seeks to do.
Viscount Bledisloe: My Lords, what then happens if one designated judge does not like an existing rule and all the rest of them like it? That means neither the existing rule is approved nor can any other rule be approved because the other designated judges think the rule should stand as it is. The Bar or the Law Society has existing rights of audience and there is no rule at all governing some important aspects of the matter. Surely it should be right that all the rules stand unless and until this body unanimously disapproves a rule so that something has to be put in its place.
The Lord Chancellor: My Lords, it depends on what value one attaches to approval of the rules. The point is whether one wants these rules to carry approval. That is the need for the procedure. There is no question of no rule at all applying. The rule in question would be considered and a rule that would apply from that time forward would be the rule that the judges and the Lord Chancellor considered to be

437
appropriate in the interests of the proper and efficient administration of justice. That is the purpose of this provision and it is intended to give the protection of approval to the existing rules so far as that can properly be done.
Lord Meston: My Lords, I am particularly grateful for the support I have received to these amendments. Like the noble Lord, Lord Renton, I looked at them in terms of trying to impose a presumption in favour of the status quo. I am also reassured that the noble and learned Lord the Master of the Rolls does not find this clause easy. It seems to me, yet again, to beg the question of when any question may arise as to whether a provision is deemed to have been approved. Frankly, it is a tortuous clause. It is a matter which will need to be looked at yet again, but meanwhile I beg leave to withdraw this amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 136 and 137 not moved.]
Clause 29 [The Law Society: rights of audience]:
Lord Hacking Lord Hacking had given notice of his intention to move Amendment No. 138:
Page 24, line 3, after ("solicitors") insert ("solicitors' clerks or corresponding employees of a registered body").
The noble Lord said: My Lords, the purpose in tabling this amendment was to preserve the rights of audience currently held by solicitors' clerks. Since tabling that amendment your Lordships have approved Amendment No. 112 in the name of the noble and learned Lord the Lord Chancellor. In more general terms this amendment preserves inter alia the rights of solicitors' clerks and although it does not do so with the same precision, I am content to acknowledge that it does so sufficiently. In the circumstances I do not propose to move this amendment.
[Amendment No. 138 not moved.]
[Amendment No. 139 not moved.]
Lord Hacking Lord Hacking had given notice of his intention to move Amendment No. 140:
Page 24, line 5, at end insert—
("(aa) to have granted to solicitors rights of audience in all interlocutory proceedings in the High Court;").
The noble Lord said: My Lords, we debated this matter very late at night in Committee. The purpose of the amendment is not to attempt to obtain additional rights of audience which are currently not held by solicitors, but to preserve their current rights of audience in the High Court in interlocutory matters. The situation arose because proposals have been put to the Supreme Court Procedure Committee that interlocutory proceedings in the Queen's Bench Division should no longer be heard in chambers but in open court.
It is right to record that a good deal of pressure is being put on the Supreme Court Procedure Committee. For example, since the Committee stage I have received a letter from the Guild of British Newspaper Editors. We have a number of important matters to discuss further at the Report stage. The Supreme Court Procedure Committee could take the
438
line not to agree to the transfer from chambers to open court of interlocutory matters held in the Queen's Bench Division until the advisory committee, under the provisions of this Bill, has decided what further rights of audience it is prepared to grant solicitors in the High Court, including rights of audience on interlocutory matters in the Queen's Bench Division.
Therefore, because we have a number of important matters to discuss further, unless any noble and learned Lord wishes to speak to this amendment, I would prefer to leave this matter to the good sense of the Supreme Court Procedure Committee and not to move on this issue until the matter of rights of audience has been resolved. I see that the noble and learned Lord the Master of the Rolls wishes to speak and therefore perhaps I should formally move the amendment.
Lord Donaldson of Lymington: My Lords, I hope the noble Lord is aware that it is not for the Supreme Court Procedure Committee to decide on rights of audience. At present it is for the judges to decide.
Lord Hacking: My Lords, then I am very happy for the matter to rest in the hands of the noble and learned Lord and his fellow judges.
[Amendment No. 140 not moved.]
Lord Coleraine Lord Coleraine had given notice of his intention to move Amendment No. 141:
Page 24, line 5, at end insert—
("(bb) to have granted to solicitors rights of audience in all criminal proceedings in the Crown Court other than a trial on indictment at which a plea of not guilty is entered?").
The noble Lord said: My Lords, I tabled this amendment in order to probe my noble and learned friend as to whether there were reasons why—apart from the desire that all extensions of rights of audience should be dealt with by the advisory committee—he had changed his mind between the appearance of the Green Paper and the White Paper as regards granting rights of audience in pleas in the Crown Court and the like. I feel it is desirable that we should get on to a subject in which I am particularly interested; namely, the extension of conveyancing rights. In the circumstances I do not propose to move this amendment.
[Amendment No. 141 not moved.]
[Amendments Nos. 142 and 143 not moved.]
6.45 p.m.
Lord Ackner Lord Ackner moved Amendment No. 143A:
After Clause 30, insert the following new clause:
("Judges' recommendations concerning regulations and rules of authorised bodies.
.—(1) The Lord Chancellor or, acting jointly, the designated judges, may at any time make to the General Council of the Bar, the Law Society or any other authorised body such recommendations (including recommendations for additions, omissions and other changes) as they think appropriate concerning any aspect of that body's qualification regulations and rules of conduct and practice, whether or not relating to advocacy or the conduct of litigation.
(2) Any body to which a recommendation under this section is made shall have regard to it.").
The noble and learned Lord said: My Lords, I tabled this amendment only because I raised the matter about four weeks ago. The function of the amendment was that designated judges should be able actively to initiate the process of change and where appropriate make alterations to existing regulations and rules. An immediate intervention followed from the noble Lord, Lord Mishcon, which I am happy to read out again because, coming from him he paid that most valuable of all things, an unequivocal compliment, which I treasure. He immediately said:
"May I say how sensible the amendment is".
That compliment was followed with the usual slightly without prejudice applause from my noble and learned friend the Lord Chancellor. Here we are, four weeks on, and I still do not know whether that applause has ripened into anything or whether it has abated. That is the purpose of my taking up the time of the House. I beg to move.
The Lord Chancellor: My Lords, I took this matter to be part of the rearrangement suggested in respect of Schedule 4 and what I said in respect of that also applies to this amendment.
Lord Ackner: My Lords, all I can say is that if I had been told in advance I would not have worried the House. I now cease to worry the House further. I beg leave to withdraw the amendment, hope still springing eternally, but perhaps there will be an end even to that.
Amendment, by leave, withdrawn.
Clause 33 [Provision of conveyancing services by authorised practitioners]:
Lord Renton Lord Renton moved Amendment No. 144:
Page 27, line 34, after ("body") insert ("(other than a rule imposed by the General Council of the Bar applying only to barristers in independent practice)").
The noble Lord said: My Lords, the point I wish to raise concerning this amendment I raised in slightly different circumstances at the Committee stage on 29th January. What occurred was brought to its culmination as reported in Hansard of that date at col. 138 when my noble and learned friend said:
"I intended to say that I would consider that point. I believe it is capable of being dealt with".
If my noble and learned friend gives an indication, even by a nod of the head, that I need not take up the time of the House, then I shall formally move my amendment. Otherwise, I believe I should explain once more the point that I wish to make. My noble and learned friend has nodded his head, so I shall sit down. I beg to move.
The Lord Chancellor: My Lords, this is a point of importance and there are somewhat related points to be dealt with in connection with later amendments. From all I have seen, what I seek to achieve may be possible of achievement within the restrictions proposed by these various amendments. I am
440
considering how Clause 33 might be amended to deal with the matter. The intention certainly was not to overrule the ordinary rule about indirect access which the Bar presently has. There was no intention of doing that. I wish to see whether I can devise a form of words which makes it plain that that is so without having to apply it specially to the Bar, but a rule which would apply equally to the solicitors and which would have the right effect. We shall no doubt be discussing some aspects of this matter under later amendments.
Lord Renton: My Lords, I am most grateful to my noble and learned friend. I look forward either to hearing from him or perhaps he will send me copies of any amendments which are to be drafted to cover the point. While I am on my feet I should draw attention to a very strange Hansard misprint. I do not blame the Hansard reporter. I used the word "client" and that has been changed to "clerk". There are two references here to "lay clerks" when I meant to say "lay clients".
The point I was making was that we do not want conveyancing barristers, of whom there are a number among my friends in Lincoln's Inn, to be subjected to approaches direct from lay clients; they should come from solicitors. I am grateful to my noble and learned friend and I live in hope. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Stedman Baroness Stedman moved Amendment No. 145:
Page 27, line 35, after ("person") insert ("or any employee of such person").
The noble Baroness said: My Lords, it is with some diffidence that I intervene in this kind of debate with no legal knowledge whatever. I have been persuaded by my friends in the Council for Mortgate Lenders and some in the building societies to say that there is a need for clarification of this clause. As I understand it, Clause 33 seeks to ensure that Section 22 of the Solicitors Act 1974, which limits the provision of conveyancing, will not apply to authorised practitioners, their officers or employees. Clause 33(2) seeks to prevent a professional body, such as the Law Society, from imposing rules on qualified persons; preventing them from acting as authorised conveyancers, or employees or officers of authorised practitioners, or on behalf of authorised conveyancers. There are those, including those who have been advising me, who feel that this clause is unfortunately worded and that it could give the impression that the Law Society would not be able to prevent a qualified person from acting for an authorised conveyancer but would be able to prevent an employee of an authorised conveyancer from so doing. My two amendments seek to reconcile that.
Surely no professional body can be permitted to frustrate the will of Parliament by forbidding its members from participating in an activity approved by Parliament which is in the interests of the consumer. For example, a solicitor himself will be able to become an authorised practitioner and be able also to be employed by one. It is clearly in the public interest that banks, building societies or other

441
institutions which already employ a number of solicitors and barristers should be able to staff their conveyancing operations as professionally as they needed to. Indeed, in Clause 37 we are providing for the Lord Chancellor's regulations to ensure proper competence and qualifications in the staff of those practitioners.
Clause 33(2)(c) is vital. It will ensure that solicitors are able to do conveyancing while remaining in independent private practice on a sub-contract basis for an authorised practitioner institution. This is an option as an alternative to their own in-house operations with employed solicitors, which many of the lenders are keen to have. Therefore Amendment No. 145 takes account of the fact that a professional body may have via its members a degree of control also over their employees. The professional body may well have extensive powers in relation to its members which relate to their staff, be they qualified or unqualified. The Law Society, for example, has disciplinary powers whereby it can direct solicitors not to employ particular persons. Amendment No. 145 seeks to take account of that possibility.
Amendment No. 146 is a purely technical amendment which is similar to the phrase already in Clause 33(1)(b) and in Clause 74(6)(d). It simply recognises the fact that in some institutions a relevant person may hold a senior position as a secretary, director or other officer. There seems to be no reason why for consistency these amendments should not be acceptable. If Clause 33(1)(b) assumes that an officer or employee may do acts in connection with conveyancing, surely Clause 33(2)(b) should logically follow that line. I beg to move.
Lord Mishcon: My Lords, the noble Baroness has moved the amendment with great ability. I emphasise that because it is so refreshing to have an amendment moved by someone who is not a member of the legal profession. Some of us could learn from her not only by the able way in which she moved it but by the economy of words which she used.
I intend to follow her example. This is not an acceptable amendment. It is generally accepted that conveyancing services which are to be provided by authorised practitioners must be undertaken by or supervised by solicitors or licensed conveyancers. In order to see that the public are properly dealt with in regard to the professional assistance they receive, it is absolutely essential that the Law Society in protection of the public should be able to place restrictions on the activities that may be undertaken by unqualified staff employed by solicitors. If the Law Society were to attempt to impose unreasonable or wrong rules, those rules if they were new ones would be subject to a restriction, a qualification or indeed a cancellation. But the Law Society must have the right to impose those rules.
The Lord Chancellor: My Lords, I join the noble Lord, Lord Mishcon, in complimenting the noble Baroness on the clarity with which she moved the amendment. It is a technical area, but a technical area enlightened best, perhaps, by lay people.
I wish to limit the effect of Clause 33(2) to the extent necessary to ensure that the authorised
442
practitioner scheme can work effectively. This is to ensure that conveyancing is personally supervised by a qualified person. I want to ensure that a qualified person is available to supervise the work. It is essential that the public are not in any way deprived by the scheme of the skill, knowledge and integrity of qualified practitioners. All I am concerned to do is to make it possible for their services to be available in a way different from that which is presently available through building societies and the like.
The need that I have mentioned does not apply to employees of qualified people. I do not wish to interfere with professional rules more than is absolutely necessary to achieve the purpose. I believe that the amendment goes beyond the aim of the clause. I do not mean for a moment that the Law Society would do this, but if, for example, the Law Society made a rule that an employee of a building society who was a solicitor could not supervise any of this work the whole scheme would collapse. On the other hand, if the Law Society made a rule about an employee of a qualified solicitor the scheme would not collapse. So long as the qualified solicitor could do it, what happened about his employee would not matter.
This amendment goes further than is necessary for the purposes of the clause. The disapplication of the professional rule is to allow the qualified person to act as an authorised practitioner, or as an employee or agent of an authorised practitioner. Professional rules apply only to the members of the profession, not to their employees or agents, unless of course these are also members of the profession, in which case they would also be subject to the profession's rules. Merely because they were employed would not make them any less solicitors than they were before, the same perhaps being true of other branches of the profession.
The amendment serves no useful purpose but might be regarded as an unnecessary extension of interference with the rule-making powers of the professional bodies. I do not wish to do that except in so far as is necessary to secure that the scheme can go ahead using either independent practitioners or employed practitioners, according to the circumstances. In the light of that explanation, I hope that the noble Baroness will feel able to withdraw Amendment No. 145.
As regards the second amendment, Amendment No. 146, so far as I know no current professional rules would prevent members of professional bodies from acting as officers of authorised practitioners. To go further than employees and include officers of companies or bodies who are not also employees goes beyond what at the moment I consider to be necessary to achieve the purpose required. For the reasons that I have just mentioned I do not wish to go further than is necessary to achieve the purpose. I hope therefore that the noble Baroness will feel that I have given sufficient explanation in relation to the second amendment to enable her to be satisfied about that.
Baroness Stedman: My Lords, I am most grateful to the noble and learned Lord. As I said, I am a lay person in these matters. Far be it from me to try to

443
push too far or to try to institute some interference in what is going on. I think I am somewhat satisfied with what the noble and learned Lord said. I shall study his words in Hansard, but for the moment I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Viscount Ullswater: My Lords, I beg to move that further consideration on Report be now adjourned. In moving this Motion may I suggest the Report stage begin again at 8 p.m.
Moved accordingly, and, on Question, Motion agreed to.

Chlorofluorocarbons (Control) Bill [H.L.]
7 p.m.
Baroness Robson of Kiddington: My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
Moved, That the House do now resolve itself into Committee.—{Baroness Robson of Kiddington.)
On Question, Motion agreed to.
House in Committee accordingly.
[The Baroness Cox in the Chair.]
Clause [Timetables]:
Lord Hatch of Lusby Lord Hatch of Lusby moved Amendment No. 1:
Page 1, line 5, leave out ("bring about the total elimination of) and insert ("prohibit the production and use of).
The noble Lord said: This is a very simple amendment. It strengthens the sense of the Bill and does away with a certain degree of ambiguity. "Total elimination" can mean various things. I am suggesting the words "prohibit the production and use of, which takes the prohibition to its source. I believe that with the substitution of those words the intention and effect of the Bill will be strengthened. I beg to move.
Baroness Robson of Kiddington: I am very happy to accept the amendment. When I introduced the Bill on Second Reading I was unhappy about the wording because it implied what is perhaps impossible to enforce. I was unable to think of better wording, and I am only too happy to accept the amendment suggested by the noble Lord, Lord Hatch of Lusby.
There is an additional advantage: during the Second Reading debate questions were raised by the noble Lord, Lord Hatch of Lusby, about exports and imports of CFCs, and the wording that he has introduced, "to prohibit the production and use of," clarifies the matter, and I am very pleased to accept it.
On Question, amendment agreed to.
Baroness Robson of Kiddington Baroness Robson of Kiddington moved Amendment No. 2:
Page 1, line 8, leave out ("he may determine") and insert ("defined in the annex to the Montreal Protocol").
The noble Baroness said: I beg to move the amendment standing in my name. This is purely an amendment to clarify what the Bill is about. The original wording was:
"chlorofluorocarbons and such other ozone-depleting substances as he may determine by 1st January 1995".
As the whole Bill aims at speeding up or putting pressure on the acceptance and introduction of the Montreal Protocol, I think it is right that it should be written into the Bill. I beg to move.
Lord Graham of Edmonton: Perhaps I may begin by expressing the sadness of my colleague the noble Lord, Lord Mcintosh, who is unable to be with us this evening and who played a major part in the discussions on the Bill at Second Reading.
I rise to support the good sense of what the noble Baroness, Lady Robson, has proposed. Although the Montreal Protocol is not the be-all and end-all, it is a substantial benchmark and measuring rod, and wherever we can write such an international agreement into the Bill not only do I believe that it improves the words but it gives it much more meaning. Secondly, marginally it takes away from the Secretary of State what he can do in this field. Of itself that is a very good reason for the amendment.
Lord Hatch of Lusby: I have one reservation only about the amendment. I understand that the Montreal Protocol includes five CFC gases and three halons, but it does not include a number of gases that were mentioned during the Second Reading debate. For example, it does not include HFC134A, HCFCs, methyl chloroform, or carbon tetrachloride.
I would hope that by the time we reach the end of the Committee stage the subsequent amendments will cover this point. If so, that is fine, but I should like to draw the attention of the Committee to the fact that the Montreal Protocol does not include all the dangerous gases, the production of which we want to see abolished. With that reservation I support the noble Baroness.
Lord Reay: Perhaps it might be for the assistance of the Committee if I set out at this stage the Government's attidude to the amendment. In the debate on Second Reading I set out some of the Government's reservations about the Bill. They would be considerably increased by the adoption of this amendment.
The amendment requires the Secretary of State to adopt timetables for all ozone-depleting substances defined in the Annex to the Montreal Protocol, so that they are eliminated by January 1995. The Annex covers two groups of chemicals, that is CFCs and halons. When the protocol is amended in June, other chemicals will almost certainly be added, particularly methyl chloroform and carbon tetrachloride.
Some countries would also like to see the HCFCs covered by the protocol. These are new chemicals under development and will do typically some 2 per cent, to 5 per cent, of the damage to the ozone layer done by the CFCs themselves. Moreover, in order to stop using CFCs in refrigeration, rigid polyurethane

445
foams and other applications, we must be able to use the HCFCs instead until new, completely ozone-friendly susbtitutes are developed.
In order not to inhibit the development, testing and production of the HCFCs, the Government, and the European Community, are opposed to their inclusion in the protocol, but some countries want them in, and we must accept their inclusion as a possibility.
For a variety of reasons, the Montreal Protocol sets out separate schedules for the reduction of CFCs and halons, and will propose a separate schedule for each new class of chemical.
If the protocol is changed to include HCFCs, then the amendment would require their elimination by 1995. It is expected that of current CFC use 30 per cent, will have to be replaced by using HCFCs. We must ensure that HCFCs are used in such a way as to minimise their emission to the atmosphere, and thus the damage that they do.
Many countries agree that HCFCs should not be regulated under the protocol. Even those countries which favour their inclusion specify dates for their elimination ranging from 2010 to 2060. To stop using them by 1995, to take but two examples, would disrupt the world's food supply by destroying much of the refrigeration industry, and would increase the demand for energy by removing many of the most effective forms of insulation. It is the CFCs which do the most damage, and it is those which are most easily got rid of, whether by 1995 as the Bill requires, or by 2000 as the governments of the world believe.
In that respect we are fortunate. We in this country have cut our consumption of CFCs by over 50 per cent, from the 1986 levels. We are pressing for the protocol to require 85 per cent, cuts by 1995. The other ozone-depleting substances do much less damage. They require a range of different responses to minimise their emission to the atmosphere, but those responses should not, in our opinion, involve elimination by 1995, as the amendment requires.
Lord Graham of Edmonton: I am most impressed by what the Minister has told us of the Government's intentions in this matter; but surely the Minister and his colleagues should take a more positive attitude to the Bill. If the Government want to see a timetable, but not the timetable mentioned in the Bill, it is open to them to improve it here or at a later stage in another place. The Minister must understand that the purpose of the Bill is to try to persuade the Government to be more positive in their attitude than they have been in the past.
Lord Reay: We are being extremely positive. The Government support the objectives of the Bill, but we have reservations about the way it is sought to carry them out.
Lord Hatch of Lusby: The Minister is saying that we must take the lesser of the two evils, but no one knows at the moment which is the lesser of the two evils. He talked about HCFCs and HFCs. It is reasonably well established that they are not such strong agents for depleting the ozone layer; but the
446
Minister has not answered the point I raised on Second Reading: both those gases are detrimental and add to the greenhouse effect. He did not mention that point.
Again on Second Reading I suggested that it was a negative action to exchange one polluting agent for another. The Minister talked about the possible inclusion of the two gases he mentioned in the Montreal Protocol in June. What is the Government's response to the fact that they both deplete the ozone layer, although not as much as CFCs, and greatly increase the extent of the greenhouse effect?
Baroness Robson of Kiddington: The Bill has been introduced in this place and this is its Committee stage. So far as I am aware, the annex to the Montreal Protocol does not as yet contain many of the substances to which the Minister referred. We are dealing with what the annex contains at the moment. Other countries have accepted that those substances should be eliminated by 1994. I am grateful to the Minister for sending me the translation of the order which is in force in Sweden.
We have a later amendment which deals with what might happen in the future. I would ask the Committee to accept that, as the Montreal Protocol provides at the moment, 1995 is a reasonable date.
On Question, amendment agreed to.
7.15 p.m.
Lord Hatch of Lusby Lord Hatch of Lusby moved Amendment No. 3:
Page 1, line 14, at end insert—
("(e) any substitute for CFCs that has the potential to damage the environment.").
The noble Lord said: I wish to reinforce a great deal of what I have already said about the alternative gases which are being developed by the chemical industry to replace CFCs. The chemical industry is now developing various alternative chemicals and some of us are worried about the effect that those chemicals will have.
HCFCs, as I have said, still deplete the ozone layer. They have a deleterious effect on the greenhouse problem. They are not as destructive of the ozone layer as are CFCs but they add to the greenhouse effect. Some scientists argue that the hole in the Antarctic ozone layer will never recover if HCFCs remain in use. HFC134A is a powerful greenhouse gas. I said on Second Reading that it is estimated that it is two-and-a-half thousand times as dangerous as carbon dioxide.
As we know, ICI is already planning to open two plants to produce HFC134, one in Runcorn and one in the United States. That is jumping out of the frying pan into the fire. If this country is to make a determined effort to deal with what will be a major human problem over the next 10 years, we must consider the whole environmental impact of any substances which we allow to be produced. We must be especially vigilant about those substances which will be used to replace CFCs.
The Minister did not answer the point that I made on the previous amendment. What is the

447
Government's attitude to the effect that those gases will have on the greenhouse syndrome? I know that there is a certain amount of ambiguity in the word "potential" and I accept that the amendment might need redrafting by the time we come to Report stage. With our present knowledge we can state what substances have the potential to damage the environment. Their production, use and export should be prohibited. For that reason, I beg to move.
Lord Graham of Edmonton: The amendment makes good sense. We are discussing legislation which deals not just with what we know but what might possibly happen. The amendment is drafted to deal with that position. With the reservation that my noble friend Lord Hatch put forward, I believe that the amendment will strengthen the weapon that the Bill gives to a future government. It has my support.
Lord Reay: The amendment seeks to add,
"any substitute for CFCs that has the potential to damage the environment"
to the list of chemicals in Clause 1 of the Bill for which the Secretary of State will determine a timetable to bring about its elimination. The words,
"potential to damage the environment"
are a broad rather than an ambiguous term. It could be said to apply to all industrial processes.
Substitutes for CFCs are not only the new HCFC and HFC chemicals, some of which do very small amounts of damage to the ozone layer, and all of which contribute to the greenhouse effect, albeit at about one-tenth of the level of the CFCs which they replace. Substitutes also include propane and butane, which may contribute to photochemical smog in a very small way. Of course propane and butane are widely used but only a fraction of their use is as a CFC replacement. I cannot see any great prospect of being able to establish a timetable for the end to their production and use.
CFCs are used in insulating foam and there are many other means of insulation, even though they are almost all less effective. As with any manufactured product, even bricks can be said to have the potential to damage the environment. But to fail to use insulation also damages the environment, through increased energy use. Refrigeration is another area where the direct potential of chemicals to damage the environment has to be weighed against the energy use of different processes.
As the supply of CFCs is phased out, their use as solvents will be replaced by new chemicals and by water-based cleaning methods. The dirty water has to be disposed of, with implications for the environment. At the extreme interpretation, this amendment would require an end to the process of cleaning things with water.
The Government would be extremely reluctant to prohibit industrial products and processes without some idea of what is to replace them and of the implications of such replacement. For the new chemicals being developed specifically as CFC
448
replacements, the answer is to do all we can to ensure that their release to the atmosphere is kept to a minimum. This is often best achieved through codes of practice and voluntary agreements rather than the blunt instrument of legislation. The relatively high cost of such chemicals will provide a good incentive for this. As these chemicals are developed and introduced we will be keeping such matters under review.
Baroness Robson of Kiddington: I have much sympathy with the amendment of the noble Lord, Lord Hatch of Lusby. However, I have one problem with it. Having listened to the Minister, I wish to emphasise that when, under the reasonably tight timetable, CFCs are eliminated there will inevitably be a period when a substitute will have to be used. I ask the noble Lord whether he would contemplate coming back at Report stage with this amendment, putting a different timetable to it from the 1995 date. In Scandinavia the Government contemplate something like 1998 or 1999, which might be more realistic. In essence I am 100 per cent, behind the aim of the amendment that we should make certain that the substitutes for CFCs are not equally dangerous.
Baroness Nicol: Perhaps I may add one small point to what the noble Baroness has just said. It seems to me that if the noble Lord, Lord Hatch, is to bring the amendment back at a later stage, he would do well to remove the word "environment" and specify the damage which he is trying to eliminate. That might be helpful because there is something in what the Minister said—that almost everything we do damages the environment in one way or another.
Lord Hatch of Lusby: I am grateful to both noble Baronesses. I accept the suggestion made by the noble Baroness, Lady Robson, that I should come back at Report stage. However, I do not accept the argument put by the Minister. He seemed to alternate between an attitude of reductio ad absurdum by talking about bricks, dirty water and so on without addressing himself to what he knows is the real issue raised by the amendment. The real issue is whether we shall allow CFCs to be replaced by other substances that we then discover will possibly damage another part of the environment. We know that they will still deplete the ozone layer, but we also know, as I have pointed out, that they are extremely damaging as concerns the greenhouse effect.
Quite frankly, I totally reject the other part of the noble Lord's argument that this is better done by voluntary agreement than by legislation. All the history of the subject shows that, as has been demonstrated in the Scandinavian countries in particular, when there is legislation there is action. When there is agreement there are compromises. We find that we are not tackling the immediate problem, a problem of this decade. We are not seeing action taken. So I totally reject that part of the noble Lord's argument.
I accept the suggestion of the noble Baroness, Lady Robson, that we should re-examine the wording of

449
the amendment. I shall consult my advisers and look at the wording and possibly also the timetables. In that spirit, I suppose that the best thing I can do is withdraw the amendment tonight with notice that I shall come back again at Report stage.
Amendment, by leave, withdrawn.
Lord Hatch of Lusby Lord Hatch of Lusby moved Amendment No. 4:
Page 1, line 14, at end insert—
("(f) all new manufacture and sales of halons by 1st July 1991 and a complete ban on the use of halons by 1st July 1995.").
The noble Lord said: The Committee will see that there is a timetable in this amendment which brings the deadline further forward than that for the rest of the substances dealt with in Clause 1. We do this because halons are a great danger particularly to the Antarctic ozone layer. I understand that they account for between 15 and 30 per cent, of the depletion of the Antarctic ozone layer. Halons are used largely in fire fighting equipment. They are powerful in destroying the ozone layer—much more powerful than CFCs.
Under the Montreal Protocol there is a requirement that there should be a freeze at the 1986 levels. Because large amounts of halons are stored in fire protection equipment, it is essential that we put an end at an early date to both production and sales. I understand that at present the Swedish Government are considering proposals from their environmental agency to apply such controls by 1st July 1990, with a total phase-out five years later, on 1st July 1995.
For these reasons it seems to me to be important that these gases should be included in Clause 1 and that the timetable should be much shorter than that for other gases. If the Swedes can end the use of these gases by July this year, I suggest that we take no more than another year to do the same and completely ban their use five years later, on 1st July 1995. I beg to move.
7.30 p.m.
Lord Reay: As the noble Lord, Lord Hatch, has explained, this amendment concerns halons. Halons are used in fire-fighting. They are very effective, and have unique properties which at this stage we cannot duplicate in any substitute agent. Each alternative has its disadvantages. Carbon dioxide, for example, puts out fires by reducing the amount of oxygen to a level where combustion cannot take place. The resulting shortage of oxygen would mean that people would have to be evacuated from the area concerned. That is dangerous if that area is, for example, the control room of a nuclear power station. That is impossible if it is an aeroplane. Water does great damage to documents and works of art, and as it conducts electricity it cannot be used where sensitive electronic equipment has to be kept going. Other fire-fighting agents have similar problems. It is highly unlikely that all of these problems can be resolved before the turn of the century at the very earliest.
There may indeed be some scope for using existing halons more effectively and diverting them from less
450
essential areas. In the current renegotiation of the Montreal Protocol we are pressing for the restrictions on overall production and consumption which would encourage these processes, and we are examining what more needs to be done within this country. I see little prospect, however, of this enabling us to follow the sort of timetable which the amendment would require.
Baroness Robson of Kiddington: I support this amendment as the mover of the Bill. I do not accept that it is impossible to follow the timetable suggested in the amendment of the noble Lord, Lord Hatch of Lusby. If that can be achieved in other countries, it can be achieved in this country also. That provision is already on the statute book in Sweden. It is essential that we impose a timetable in the Bill that does not stretch too far into the future. If we are to achieve an improvement as regards ozone depletion we must be quite firm about what we shall do with the gases that we have been discussing. I support the amendment moved by the noble Lord, Lord Hatch of Lusby.
Lord Hatch of Lusby: I am grateful to the noble Baroness for her support. I need to say very little more than she has done. I do not accept the brief that the Minister read out. Every time we raise these matters the Government say, "This is difficult. We shall have to find some other way of doing this", or, "We shall have to use this instead of that". It is the Government's job to use their scientists and to fund scientists in the academic world to find the means of achieving a solution. We simply cannot continue to emit gases into the atmosphere when, as I have pointed out, halons are calculated to be somewhere between three and 10 times more powerful than CFCs as regards depleting the ozone layer.
It is just not good enough for the Government to say that it is difficult to phase out those substances. It is the job of the Government to do that. We are trying to help the Government in that task. As the noble Baroness has said, if other countries can achieve this measure so can we. We have to achieve it if we are to save this planet from what I am sure the Minister agrees is a direct, immediate menace to life on it. I am reinforced by the support of the noble Baroness.
On Question, amendment agreed to.
Lord Hatch of Lusby Lord Hatch of Lusby moved Amendment No. 5:
Page 1, line 14, at end insert—
(" () In the meantime the Secretary of State shall ensure that all manufacturers who make or use CFCs and other ozone depleting substances or CFC substitutes shall publish, every six months, a complete inventory of all such substances made, used, sold, exported or imported.").
The noble Lord said: This amendment concerns the matter of commercial confidentiality. I could speak for a long time on that matter because it has been raised on so many occasions with regard to different issues. Indeed, I received a letter only yesterday from the Secretary of State for Energy which emphasised the importance of commercial confidentiality.
However, it is not good enough to stress commercial confidentiality if that confidentiality is

451
used as a cover to produce substances that are damaging the planet now and will leave the planet gravely damaged for our children and grandchildren. It is not good enough to repeat this parrot phrase of confidentiality.
My amendment proposes that it will be the responsibility of the Secretary of State to,
"ensure that all manufacturers who make or use CFCs and other ozone depleting substances",
publish what they are doing. This is an interim measure until the provisions of the Bill take effect. Unless that is done we know that behind this mask of confidentiality all kinds of experiments will take place and all kinds of dangerous gases and other materials will be produced within the chemical industry. There will be no accountability. This amendment gives to the Secretary of State the responsibility for ensuring that all manufacturers of all these dangerous substances are accountable to him and that they report to him.
At the moment I understand that data are collected in secret from companies in 24 of the major industrial OECD countries. Data are also collected from India, Mexico, Brazil and Venezuela. Those data are collated by the Chemical Manufacturers' Association. The data are published only on a regional and not on a national basis. However, Denmark and Sweden already publish their CFC consumption figures. If they do that, why cannot Britain? The Prime Minister claims that Britain is in the vanguard of the green movement and that it is in the vanguard of the attack on those elements which are destroying the planet. If we are, let us show it. Let us show that we are at least as concerned as either Denmark or Sweden to ensure that the use of these dangerous gases is published.
Confidentiality only damages what is now an essential provision, that is the international debate. It damages the debate throughout the world and the collection of knowledge throughout the world as regards what is happening to our planet. Confidentiality also covers up some of the realities. It is constantly stated, for example, that India and China are among some of the major users or potential users of CFCs. India's current total annual use of CFCs by its 800 million people is 4,500 tonnes. That is equal to only 15 days' production of CFCs in the United Kingdom. That is an example of the distorted pictures that are created by the use of the phrase "confidentiality".
There has to be public access to the information. One of the most important elements of the campaign is public education. To be realistic, public education can only be based on genuine information. Without public access to that genuine information all kinds of distortions will appear.
I hope that the Government will recognise that the issue goes beyond ordinary commercial considerations. It goes right to the heart of public accountability and the right of the public to know. I trust that the Committee will support the amendment so that the Government, Parliament and the people know what is happening in this vital area of national life and there can be informed public debate. I beg to move.
Lord Reay: Manufacturers of CFCs and halons are already required under European legislation to report to the Commission and to their national governments their production, import and export of these substances. Discussions are taking place over the reporting regime which should apply for the new substitute chemicals. As the noble Lord revealed he knows, the data cannot be published as they are commercially confidential.
The development of CFC substitutes is a highly competitive business. If commercially sensitive information was to be given away companies might not produce the substances that we need. The cases of Denmark and Sweden are different. They do not have producers of CFCs or CFC substitutes who could be damaged by disclosure.
Baroness Robson of Kiddington: Does the Minister agree that the type of information which he tells us is being collected, but which is not for publication, could be made available to the committee that will be set up under the Bill?
Lord Grahan of Edmonton: Does the Minister not understand the very real anxiety which is reflected in the amendment? We all understand what commercial confidentiality means. We also understand that often it is a cloak for avoiding releasing information. Very often the Government have to release information which they would rather not publish because it could be embarrassing, but they accept that responsibility. In this case we are speaking of an issue which could affect the life of the planet.
Even if the Government are unwilling to accept the amendment, it would be helpful—not only to the noble Lord, Lord Hatch, but also to the people of this country—if the Minister could say something that would persuade my noble friend to consider an alternative form of words that might be more acceptable. Simply to say that it is not possible—in other words, that it is not desirable—because commercial issues are at stake, is not acceptable. We are not only talking about commerce, we are talking about life itself.
Lord Reay: The noble Baroness asked me a specific question. I am given to understand in respect of her proposal that it would depend on the rules that applied to the conduct of the committee. If the committee agreed to keep the information confidential that might be considered.
Lord Hatch of Lusby: All the noble Lord has said is that the matter is commercially confidential. He has not said why it is commercially confidential, except that it might affect the bidding in prices. That is a trivial argument to use on such a vital question.
The Committee may be interested to know that yesterday I received a letter from the Bird Group of Companies, which is very concerned about the Bill. The Company works with ICI and local authorities to recover CFCs from certain cooling circuits. It has taken sufficient interest in the Bill to send me a long letter on the subject. I shall content myself with quoting a paragraph which relates directly to the

453
attitude that has been adopted by the Minister. The letter, from the group environmental controller of the Bird Group of Companies, concludes with these words:
"I believe legislation is required, or at the least very strong guidance, to ensure that society accepts the direct costs of protecting the global environment.
"Since Swedish and German authorities are taking positive action, there is a chance for the United Kingdom to take the lead to make an important impact to reduce a significant amount of CFC being released from the traditional disposal methods of refrigerators and freezers, not to forget building insulation and packaging materials".
That commercial company says that legislation is required. If a commercial company is convinced that the issue is so important that it goes beyond the normal range of commercial practice, I should have thought that the Government, who claim to be in the lead on environmental issues, would have seen that this issue supervenes normal commercial arrangements and traditions and the profit and loss account. The public, the Government, Parliament, and the committee established under the Bill have a right to know exactly what is going on in the chemical world concerning the production and use of CFCs.
On Question, amendment agreed to.
Baroness Robson of Kiddington Baroness Robson of Kiddington moved Amendment No. 6:
Page 1, line 24, at end insert—
(" () Nothing in subsection (1) above shall prevent the continued use of CFCs in aerosols used—

(a) in the treatment of asthma and

(b) for other pain-relieving purposes and for which there are, at present, no alternatives.").

The noble Baroness said: I am grateful to the noble Baroness, Lady Nicol, and the noble Lord, Lord Mcintosh, for their advice during the Second Reading debate. They pointed out areas where my proposals for the prevention of the use of CFCs were too restrictive. I have therefore tabled an amendment to the effect that, for the treatment of asthma and for other pain-relieving purposes, the use of CFCs may be allowed until there are alternatives. Obviously, none of us wants to introduce something which would cause great suffering to some people. I beg to move.
Baroness Nicol: I welcome the amendment proposed by the noble Baroness. I understand that the use of CFCs in aerosols is very small. As she said, it would be a great pity to deprive those who need it of the facility.
Lord Reay: The Government are of course concerned that there should be sufficient time for the proper evaluation and testing of alternatives before CFCs are withdrawn from use as propellants in medical aerosols. At present we do not find it possible to put a date on that, but I am confident that it will be before the end of the century, which is the date by which we consider that all CFC consumption can safely be ended.
The Committee will be aware that there are indeed many applications for CFCs where we cannot estimate when acceptable alternatives will be available. Those include medical uses, whether or not in aerosols, and other uses from which society
454
obtains great benefits. It is for that reason that our approach is to limit the overall supply of CFCs, so as to encourage all users to find alternatives, and to set a realistic date for their total elimination.
On Question, amendment agreed to.
Clause 1, as amended, agreed to.
Clauses 2 to 6 agreed to.
House resumed: Bill reported with amendments.
Viscount Long: My Lords, I beg to move that the House do now adjourn during pleasure until eight o'clock.
Moved accordingly, and, on Question, Motion agreed to.
[The Sitting was suspended from 7.53 to 8 p.m.]

Courts and Legal Services Bill [H.L.]
Consideration of amendments on Report resumed on Clause 33.
[Amendment No. 146 not moved.]
Lord Mishcon Lord Mishcon moved Amendment No. 147:
Page 27, line 42, at end insert—
("(2A) Nothing in subsection (2) prevents rules made by the Council of the Law Society securing that the terms and conditions on which solicitors may act as agents of authorised practitioners do not restrict or prevent those solicitors from offering independent legal and financial advice to clients in connection with the provision of conveyancing services.").
The noble Lord said: My Lords, this is a very important amendment. I am sorry to see that the House appears somewhat diminished, certainly in quantity if not in quality. I shall proceed to move the amendment and hope that noble Lords will be patient with me.
We should be looking at subsection (2) of Clause 33 which states:
"Any rule imposed by any professional or other body which purports to restrict or prevent a qualified person from—

(a) providing any conveyancing services as an authorised practitioner;

(b) acting as an employee of an authorised practitioner in connection with the provision of any such services; or

(c) acting on behalf of an authorised practitioner in connection with the provision of any such services,"

and then come the brave, bold and clear words:
"shall be of no effect".
At Committee stage in an attempt to protect the public—and I emphasise that that is the whole purpose of my amendment and it has no other purpose—some concern was expressed that this subsection could create a very dangerous situation in regard to rules that ought to be made to protect the public in conveyancing matters. As I understood it, the noble and learned Lord was at that time reluctant to see the complete removal of this provision. So in deference to him we have thought very carefully about how we should now seek to do two things—not to remove this subsection, but, first, to amend it and, secondly, to amend it in such a way as to make absolutely clear the evil that we seek to prevent. It was not that we wanted to be able to

455
make rules of a very general nature which might offend the spirit of subsection (2). We were anxious to counter what we thought was an evil—certainly a possible evil.
I turn at once to the way in which we seek to accomplish that purpose. We are dealing with a clause which says that any rule of the nature that I have just indicated "shall be of no effect". The amendment adds a subsection which states:
"Nothing in subsection (2) prevents rules made by the Council of the Law Society"—
and then we get at the danger from which we are trying to safeguard the public—
"securing that the terms and conditions on which solicitors may act as agents of authorised practitioners do not restrict or prevent those solicitors from offering independent legal and financial advice to clients in connection with the provision of conveyancing services".
Perhaps I may break off for a moment to tell your Lordships that since the issue of the Green Paper the Law Society has received from solicitors over 120 examples of how the public, had they not received protection from members of the solicitors' profession—in some cases unfortunately they did not receive the protection in time—would have walked into very disadvantageous transactions indeed. I shall give only one solid example. In fact I could quote worse examples but this is a very clear one.
Mr. H and his sister had been left a property by their parents and Mr. H wished to raise a mortgage to buy his sister's share. He was told by an estate agent that he had to have an endowment policy. The solicitor to whom he went arranged for a repayment mortgate for him. Subsequently the estate agent wrote to the solicitor stating that the solicitor had not "played the game" by persuading Mr. H not to take out an endowment policy. The estate agent said that he would lose a very great deal of commission and that he would not recommend clients to go to that solicitor in the future. Subsequently the life insurance representative visited the solicitor. He was extremely angry and threatened to blacklist the solicitor's firm for dissuading a client from taking out a policy with his company.
That is just one example. I am not in any way saying that every life insurance company, every life insurance company's representative, any estate agent or any employee of an estate agent must be deemed to be dishonourable. I do not say that at all. I do say that there is a very great danger of some representatives behaving as those representatives from the estate agent and the life insurance company behaved.
As a result of this Bill, together with the other legislation which has been passed, what do we think will happen which will enable life insurance companies, building societies and banks to set up solicitors' departments if they so desire? Perhaps I may be allowed to use such shorthand. I think, and your Lordships may agree with me, that they will find it rather difficult. It would be much simpler and less expensive for them if they were to get hold of firms of solicitors and say to them, "Please, we should like you to act as our agents". The Law
456
Society is frightened—and I repeat that the sole purpose of this amendment is the protection of the public—that contracts may be entered into between life insurance companies, banks or building societies with a firm of solicitors to do all the work of a conveyancing nature that may fall to that building society, insurance company or bank in a certain area. At the present moment, such solicitors could not enter into such a contract and see the client who was the vendor, purchaser or mortgagor, and act for that vendor, purchaser or lender. That prohibition is consistent with the policy of the Government on conflict of interest in conveyancing as laid down in 1985.
What the Law Society wants to be able to do is to ensure that it has the possibility of making proper professional rules that will govern the conditions of any such contract entered into by a member of the Law Society with a bank, an insurance company or for that matter an estate agent. We want to do it—the Law Society wants to do it; my side of the profession wants to do it—in protection of the public. What we are afraid of—indeed, we have reason to be afraid of it—is that if one reads again the subsection that I read out at the commencement of my remarks it could well be said that that was a rule imposed by a professional body (the Law Society) which purported to restrict or prevent a qualified person from providing conveyancing services or acting on behalf of an authorised practitioner, and so on.
The subsection imposed a very proper rule to ensure that the contents of any such contract should impose a duty upon the solicitor to act as though he were an independent adviser, as the member of the public would be entitled to assume, and not to act as an agent of anybody in seeing that endowment policy arrangements were not interfered with by the solicitor concerned.
We feel that it is an extremely important amendment. It amends the provisions that the noble and learned Lord thought should be in the Bill, but it is a specific amendment dealing with a specific area in which the public may be in danger. I hope that the noble and learned Lord—who seeks to do everything he can to ensure that the public receive proper independent advice, as he has made clear, and that nothing in the Bill will interfere with the right of the public to be independently advised—will consider that we have gone all the way to meet the point that he made in Committee. I hope that he will accept the amendment. I beg to move.
8.15 p.m.
Lord Boardman: My Lords, I am extremely sympathetic to the argument put forward by the noble Lord, Lord Mishcon. I shall not repeat the grounds that he has given in support of the argument. I found them convincing. All the information that I have been given fully justifies them. Indeed, there are many instances of abuses to which he has referred. Those are likely to be aggravated if the Bill remains in its present form.
I refer to one matter that I believe is important. In the Bill as it now stands, a high street solicitor can act in two capacities. He can be an independent operator and adviser, able to give the full services

457
to which my noble and learned friend referred in Committee as available from the high street solicitor. If he acts as an agent to a building society or bank, whatever it may be, he will be confined to giving a different level of service. That is confusing and unfair to the customer. I hope that my noble and learned friend will be able to console me about the dangers that otherwise lie ahead.
Lord Hutchinson of Lullington: My Lords, I should like to support the amendment. It is very nice to hear the noble Lords, Lord Mishcon and Lord Boardman, standing up for the independence of individuals on behalf of the public. I only wish that they had been able to do the same when the matter arose earlier.
Lord Prys-Davies: My Lords, I should very much like to support the powerful case that has been presented by my noble friend Lord Mishcon. He referred to the possible evil that may flow unless this clause is amended. The real fear must be that where the authorised practitioner's services are provided by its solicitor agent, the client will be denied independent legal or financial advice. If that were to happen it could open the door to the evil to which my noble friend has referred, or at least to a diminution in the standard of service.
It is my experience that under the present system the solicitor will almost invariably offer advice if he senses that there are grounds for believing that the terms of the deal should be questioned because they are too onerous or because they stretch his client's financial means unreasonably. The point should be made that under the present system the purchaser-borrower will often be in touch with his solicitor while he is negotiating the terms of the loan or of the purchase and will receive a great deal of guidance and advice. However, under the new system, the client will first meet the solicitor when he is looking to an authorised practitioner for the provision of services after the solicitor has received his instructions from the authorised practitioner.
As I understand it—I am subject to correction—the only duties of the solicitor will be to ensure that the client fully understands the terms of the transaction and that he realises the effect of signing a contract or mortgage deed, but that the duty does not extend beyond those two considerations unless the client is buying the property when the solicitor has to ensure that the purchaser obtains a good title.
If the duties of the solicitor agent of the authorised practitioner are confined to those two or three areas, a valuable shield will be lost. I should like to ask the noble and learned Lord this question. If the clause is to stand, will there be a duty on the solicitor agent to say to the client, "You have to look elsewhere for independent legal advice on this transaction. You have to look elsewhere as to whether or not these terms are fair and reasonable and whether the repayments are within your means"? I hope the House will say that the solicitor agent should be under a statutory duty to provide independent legal advice.
Baroness Seear: My Lords, I support the amendment not as a legal person but as the woman
458
on the Clapham omnibus, or however one may describe the non-professional.. Eighteen months ago I sold and bought a flat. I should have been extremely uneasy had I thought that the solicitor had any kind of relationship with the bank, the estate agent or any other party to the deal. The solicitor was acting for me and only for me. I wanted my solicitor to be deeply suspicious of all the other parties to the deal and therefore he must be completely independent.
Lord Coleraine: My Lords, if the Law Society does not have the powers for which the noble Lord, Lord Mishcon, asks, not only will the public be in danger but the legal profession will be irreparably damaged when it becomes known that there are firms of solicitors to whom the public go which will not give a fair deal.
The Lord Chancellor: My Lords, the noble Baroness told of her experience. I was not certain whether any mortgage facilities were involved and, if so, who acted in connection with the conveyancing in support of the mortgage. However, there is no doubt that independent solicitors in private practice act for the purchaser and the person who provides the mortgage. That happens in a high percentage of cases and, I believe, with no detriment to anyone.
In the provision to which the amendment relates I merely wish to prevent rules being made which would frustrate the scheme contained in the Bill for the provision of conveyancing services to the public by banks or building societies. It is advantageous to what has been described as the "network" of solicitors, so I am particularly anxious that a way should be open for banks, building societies and the like to provide that service by utilising the services of solicitors in private practice if they are willing to provide them. Therefore, I have little difficulty with the principle lying behind the amendment.
I envisage a solicitor in private practice being willing to provide to a purchaser at the request of a building society, say, the services that the purchaser requires in connection with conveyancing, and, further, to provide to the building society the services which it requires in connection with the transaction; namely, the conveyancing necessary to secure a proper mortgage on the property. I see nothing inconsistent with the idea of the solicitor being able to provide services to the clients over and above what may have been provided to the client at the request of the building society. The building society price, whatever that is, will cover defined services. If the client wants only conveyancing services at that price he can obtain them.
I understand that the amendment is in accordance with those ideas. It will allow the solicitor in the kind of transaction that I have in mind to say to the client that the transaction should be modified in some way so as to be in the best interests of the client.
Lord Mishcon: My Lords, the noble and learned Lord is most courteous in allowing me to intervene. I wish him to follow the kind of danger we envisage and if he has not done so it is my fault and not his.

459
Will he take for granted that, in order to carry out general work for the building society, insurance company or whatever institution, the solicitor is asked whether he will have a contractual arrangement to do so? Will he also take it that there is a clause in the contract which states that in no circumstances will he advise the client not to enter into a policy negotiated with the insurance company or building society before he came along?
If the Law Society properly in accordance with the noble and learned Lord's wishes tried to make a rule which provided that solicitors must not enter into any such contract in regard to conveyancing services, and that the professional right of the solicitor was restricted in certain ways in order to safeguard the public as I and other noble Lords indicated, the clause as it stands in the Bill could well prohibit the Law Society from making any such rule. That is the danger with which I am dealing.
Lord Chancellor: My Lords, I do not agree that, as it stands in the Bill, the clause will have that effect. However, we are at one on the policy. I do not wish to prevent the solicitor from giving such advice if he deems it appropriate. Whatever the Law Society rules, I do not want the building society to be able to prevent the solicitor from offering such advice and I do not believe that the clause as presently drafted, allows that. However, if it does I shall take steps to clarify the matter.
The principle of the amendment is acceptable to me. All I wish to prevent is the making of a rule which will render it impossible for a solicitor in private practice to have an arrangement with a building society under which he provides conveyancing services to the clients of the building society and also acts for the building society in connection with the title to the mortgage. There is no other remit from the building society, only that in relation to the title of the mortgage. The solicitor is acting for the private client only, the building society paying for that on agreed terms. That is the type of transaction that I have in mind. I do not believe that there is any provision in the clause which will prevent the solicitor from giving independent advice, financial or legal, if he wishes.
The noble Lord, Lord Prys-Davies, suggested that there should be a statutory duty on, I believe, the solicitor, to give independent advice. As far as I know there is no such statutory duty at present but only a reservation of conveyancing in favour of solicitors, barristers and licensed conveyancers. All I wish to do is open that up to the extent of allowing those services to be provided either by arrangement with the building society or by an employee of the building society who is properly qualified.
From my understanding of that explanation, the amendment is perfectly acceptable to me. If the noble Lord, Lord Mishcon, will allow me, I should like to take advice on the way in which it will fit into our proposals from the drafting point of view. The principle is absolutely consistent with what I am seeking to achieve. As the noble Lord knows, I am anxious to do everything that I possibly can to
460
prevent arrangements under which members of the public are conned into accepting insurances which are not the best for them in the circumstances perhaps because the arrangements which are made in respect of commission favour those who proffer the policies. I am entirely against the public being subject to that.
As noble Lords know, the Government have initiated steps to widen the matter considerably in relation to estate agents and the like. The Director General of Fair Trading is considering these matters, as we announced some time ago, because the sort of difficulty to which the noble Lord referred exists at present. He gave examples of things which can happen. I believe that he said that in the case to which he referered the evil had been prevented. However, from the 120 cases which were referred to, he illustrated other situations in which the evil had not been prevented. Therefore, those evils can happen under the present system.
I am anxious to avoid those and to make no step in the new system which would make it any less effective in preventing that sort of difficulty which arises at present. Therefore, if the noble Lord, Lord Mishcon, is prepared to allow me time to consider this amendment with my drafting adviser, I think I can assure him that it will receive the most favourable consideration.
Baroness Seear: My Lords, I ask the noble and learned Lord a direct question. In these circumstances, is the solicitor's primary loyalty to the building society or to the individual purchaser?
8.30 p.m.
The Lord Chancellor: My Lords, this is what I have set out before and it is the same here. I regard the arrangements as being that a solicitor will have all the responsibilities of a private solicitor to his client. The only responsibility which he will have to the building society is to secure for the building society a proper title in respect of the mortgage. The arrangements which I have in mind will secure that. In other words, the building society is providing a solicitor for the client, either a solicitor employed by the building society or arranged by it if the client wants that. That does not prevent the client going to another solicitor altogether if he so wishes. There is no suggestion that this arrangement is compulsory. It is merely a facility which the building society will be able to offer to the client if the proposals of this scheme go through.
Lord Mishcon: My Lords, one of the first lessons which an advocate learns—and nobody knows this better than the noble and learned Lord—is that if the judge is with you, for heaven's sake be quiet and sit down. I merely make the excuse of saying anything else in view of the fact that I wanted to make something abundantly clear.
This amendment gives the power to the Law Society—so that there is no doubt about it—to see to it that arrangements are not made on an agency basis with solicitors which would prevent them from giving independent legal and financial advice to

461
clients in connection with the provision of conveyancing services. It is limited to that. It makes the clause clear. However, I express my gratitude to the noble and learned Lord who has told me that the most favourable consideration will be given to seeing that a suitable provision is put in if the wording of this amendment is not acceptable. Therefore, I unreservedly beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Lord Chancellor The Lord Chancellor moved Amendment No. 148:
Page 27, line 44, leave out ("notary") and insert ("duly certificated notary public").
The noble and learned Lord said: My Lords, I have already spoken to this amendment with Amendment No. 98. I beg to move.
On Question, amendment agreed to.
Clause 34 [Authorisation of practitioners];
Baroness Stedman Baroness Stedman moved Amendment No. 149:
Page 28, line 10, after ("person") insert ("and that it is conducted with prudence and integrity and with adequate professional skills").
The noble Baroness said: My Lords, I shall also speak to Amendment No. 153. At this stage I seek some clarification as to how the noble and learned Lord sees the position which we are putting to him.
Amendment No. 149 seeks to ensure that when considering applications for authorisation as a conveyancing practitioner, the board is satisfied that the applicants are fit and proper persons to carry out their duties with prudence, integrity and adequate professional skills. In suggesting that in this amendment we are importing two of the relevant criteria of prudent management from Section 45(3) of the Building Societies Act 1986, to which the building society authorised practitioners will be subject in any event.
It also seems appropriate that those criteria should apply to other practitioners. They would give the board important additional grounds to the fit and proper one which is already stated in considering the applications for authorisation. Perhaps it may be suggested that the two phrases which we are using are in effect synonymous. However, I believe my proposal in Amendment No. 149 would make the clause more specific in what it says.
The purpose of Amendment No. 153 would be to require the board to take an existing authorisation into account not only for the purposes of the fit and proper requirement of subsection (l)(a), but also when considering whether the applicant will comply with the Clause 34(7) requirements relating to compliance with the relevant rules and regulations, having satisfactory arrangements to meet claims and so on. I am arguing that an existing authorisation as a building society, insurance company or bank is relevant in regard to these matters as well as the fit and proper requirement. I beg to move.
The Lord Chancellor: My Lords, prudence, integrity and adequate professional skills are all matters which concern me. I believe, however, that the present Bill and the proposed regulations will
462
adequately cover the aim of this amendment. Clause 34(1)(a), to which the noble Baroness referred, requires an applicant's business to be carried on by fit and proper persons or, if an individual, by a fit and proper person, The provision for the manner in which those persons are to operate is set out elsewhere. Under subsection (l)(b) the board must be of the opinion that the applicant will comply with the requirements of subsection (7). It is these requirements which will govern how the work is to be done. In particular, Clause 37(1) provides for regulations to secure that authorised practitioners maintain satisfactory standards of competence and conduct and that clients' interests are satisfactorily protected. Clause 37(2) also covers other matters which may be included in the regulations, such as the efficient transaction of business and supervision by qualified persons.
The noble Baroness will know, from indications which I have already given, that I propose that the regulations should cover in some detail the standard of supervision to be required, including the provision of a personal interview at the outset of the conveyancing transaction.
Therefore, my approach to the amendment of the noble Baroness is that the principle of it is entirely acceptable to me and entirely appropriate. However, I believe that the necessary professional skills and the manner in which the transaction is carried out requires to be more closely regulated than those words of generality. Therefore, this matter is appropriately dealt with by detailed regulations. That is the way in which the Bill proposes to take forward the aims of the noble Baroness.
Baroness Stedman: My Lords, I am most grateful to the noble and learned Lord for that reply. It has given some clarification and I am satisfied that, by regulations, he will be able to cover the points which I made. I beg to leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Prys-Davies Lord Prys-Davies moved Amendment No. 150:
Page 28, line 40, at end insert—
("() submits to the Board annually a report by an accountant as to whether in his opinion the accounts of the authorised practitioner have been kept in accordance with regulations made under section 37(2)(f).").
The noble Lord said: My Lords, the accountant's report plays a key role in the procedures which are designed to protect clients' money. We believe that he can, and should, play the same role in monitoring the practices of the authorised practitioner. If we rely on the accountant's report, if something is amiss with the way the authorised practitioner handles his client's money, it should be spotted by the accountant at an early stage and attention drawn to it in his report.
We appreciate that Clause 37(2)(f) makes it possible for regulations to cover the handling by authorised practitioners of their clients' money, but we consider that that is not specific enough or does not go far enough. We want to see on the face of the Bill a requirement that the authorised practitioner files with the conveyancing board an annual report

463
that the accounts have been kept in accordance with Clause 37(2)(f).
In Committee the noble and learned Lord the Lord Chancellor indicated that reliance should be placed on the information received from the conveyancing ombudsman and other regulatory bodies. The snag with that is that much damage will already have been caused before the circumstances come to the attention of the conveyancing ombudsman. Therefore, what is required is an early warning system, and the accountant's report is the best warning method available.
Again in Committee the noble and learned Lord the Lord Chancellor suggested that the requirement in the Bill that an accountant's report be filed would impose an unnecessary burden on the authorised practitioners and could entail expenditure of time and expense which eventually would have to be borne by the client. The Law Society has considered that response and does not attach so much weight to that particular argument because in any event an accountant will invariably be instructed for various other purposes.
The purpose of the amendment, therefore, is to plead for the accountant's report to play a significant role as far as the procedures of the authorised practitioners are concerned. I beg to move.
The Lord Chancellor: My Lords, as I said in Committee in response to a similar amendment, the existing powers already set out in the Bill are adequate to allow regulations to ensure what is required without imposing unnecessary burdens. In addition, Clause 32 provides that, in discharging its duty to supervise the activities of authorised practitioners, the board shall make arrangements designed to enable it to ascertain whether authorised practitioners are complying with regulations made by the Lord Chancellor under Section 37. I do not believe that it is necessary to make specific provision for an annual certificate by an accountant to be provided in this particular way. If the board finds, in the light of experience, that this is necessary for supervision, then there are adequate powers for it to make such a requirement. If, on the other hand, the board considers such a requirement to be unnecessary, the only thing the amendment would achieve is to increase the cost for the client.
Perhaps I may take an illustration. Let us suppose a building society were to arrange its affairs, so far as conveyancing was concerned, in the manner we were discussing in the earlier amendment moved by the noble Lord, Lord Mishcon, by using an independent solicitor. In that situation such a requirement would not appear to be necessary because the actual conveyancing would be handled by someone whose accounts were already subject to the surveillance of the Law Society.
I entirely accept the spirit of the amendment in the sense that we want to have power to make sure that what the authorised practitioners' board and the Lord Chancellor's regulations require are being fulfilled, but it is not necessary to tie ourselves down
464
in primary legislation to this particular method of enforcement. There are other methods which might be more suitable in the circumstances.
The noble Lord may take it therefore that I wish to secure that the regulations are complied with, but that I do not believe it is necessary to tie ourselves down to this particular method; this method being open should circumstances suggest that it is the appropriate one. I am sure the noble Lord has no more desire than I have to impose unnecessary costs on companies or on clients. If this is a necessary cost, in the light of all the circumstances, it would be right to impose it, but if it turns out not to be, then I believe the right thing to do in that situation is not to impose it. To leave the flexibility with the regulations is, in my submission, the appropriate course.
In the light of that explanation I hope the noble Lord may feel that the purpose of moving the amendment has been served.
Lord Prys-Davies: My Lords, I am somewhat dismayed by the response of the noble and learned Lord the Lord Chancellor. We believe that we are possibly exaggerating the financial burden which would be borne by the authorised practitioners. I am told that any company or firm offering conveyancing services would almost certainly need to instruct an accountant for various other purposes, such as the Companies Act, auditing and the production of accounts for tax purposes. The accountant instructed for these purposes is unlikely to charge the institution a considerable additional sum if he is instructed to produce a report certifying that the institution had complied with the regulations made under Clause 37(2)(f)
I am satisfied that we have raised this issue and I very much hope that the mischief which we fear will not arise. In the circumstances I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Lord Chancellor The Lord Chancellor moved Amendment No. 151:
Page 28, line 42, leave out ("a bank") and insert ("an institution").
The noble and learned Lord said: My Lords, this is a technical amendment which brings the definition of "bank" in this clause into line with that used in Clause 44. The main reason for the proposed alteration is that an institution may be authorised under the Banking Act 1987 if it has minimum net assets of £1 million. An institution may, however, only call itself a bank if it is a company incorporated in the UK and has paid-up share capital and/or undistributed reserves of £5 million in accordance with Section 67(2)(a). It was not intended to exclude those institutions whose minimum paid-up share capital was less than £5 million but were nevertheless authorised to take deposits in the United Kingdom under Part I of the Act. I beg to move.
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No. 152:
Page 28, line 43, leave out ("operate") and insert ("carry on").
The noble and learned Lord said: My Lords, with this amendment I speak also to Amendment No. 162. These are technical amendments which bring the terminology of the clause into line with that used in the Banking Act 1987. I beg to move.
On Question, amendment agreed to.
[Amendment No. 153 not moved.]
The Lord Chancellor The Lord Chancellor moved Amendment No. 154:
Page 29, line 5, at end insert—
("(8A) The Board shall maintain a register of authorised practitioners which shall be open to inspection, at all reasonable times, without charge").
The noble and learned Lord said: My Lords, this is an amendment I bring forward to implement an undertaking given in Committee to consider favourably an amendment by the noble Lord, Lord Prys-Davies, which required the conveyancing board to keep a register of authorised practitioners which could be inspected by members of the public free of charge.
This amendment fulfils that undertaking and contains the results of my consideration. I hope it is acceptable to the noble Lord. I beg to move.
Lord Prys-Davies: My Lords, I am grateful to the noble and learned Lord the Lord Chancellor for his favourable response.
On Question, amendment agreed to.
Lord Boardman Lord Boardman moved Amendment No. 154A:
After Clause 34, insert the following new clause:
Fiduciary relationships in relation to conveyancing services.
(".—(1) A fiduciary relationship shall be deemed to exist between an authorised practitioner and any person for whom the authorised practitioner provides any conveyancing services.
(2) The extent of the fiduciary relationship imposed by subsection (1) shall be the same as would exist between a solicitor and his client for whom similar services were being provided.").
The noble Lord said: My Lords, this amendment goes to the heart of a problem debated at some length on previous stages of this Bill; that is, the conflict of interests. I am sorry that the noble Lord, Lord Hutchinson of Lullington, is not in his place because I should like to reassure him that on this amendment, as indeed on every other one to which I have spoken—and indeed on every amendment to which the noble Lord, Lord Mishcon, has spoken—we have been concerned with the interests of the consumer and not with specifically narrow interests. I hope I misunderstood what he said in his comments, but I should like to get it clearly on record for my part—and certainly I am convinced also on the part of the noble Lord, Lord Mishcon—that that is so.
This issue of conflict of interest was debated fully on 1st February. There was very wide concern coming from all parts of the Committee at the conflicts of interest that could arise, particularly when authorised practitioners were part of a group with varied activities such as estate agents, insurance agents and the rest. My noble and learned friend the Lord Chancellor fully recognised that. As I understand his comments, he said that the protection against that would be adequately provided by the
466
personal interview with the solicitor or licensed conveyancer that would have to be provided by the authorised practitioner.
The noble and learned Lord said, as reported in Hansard at col. 461:
"But I consider that there may be conflicts of interest depending on individual circumstances … I have asked myself how one can deal with that. I took the view that the way to deal with it is that the professional person should have the responsibility of saying whether there was a conflict of interest in relation to the transaction, and if there was, the building society or the bank would not be able to act. That is the purpose, among other matters, of the initial interview; namely, that that would be a matter for determination by the professional person in the light of his standards of competence and conduct as laid down by his own professional body".
My noble and learned friend went on to say at col. 463:
"I envisage that the regulations under this clause—as set out in the White Paper—will provide that the qualified person in charge of the transaction should have a personal interview with the client at the beginning of the transaction. A number of points should then be considered, the most important being whether there is any likelihood of a conflict of interest. I also envisage that the qualified person will advise on the nature of the services he can provide and whether there are any other legal services related to the transaction which he is not able to provide. He should then indicate to the client that those services are desirable but not available from him. That is a perfectly reasonable requirement to deal with the type of problem raised by my noble friend".
It begs the question as to whom the professional person conducting the interview is accountable. That matter was raised during the debate and was dealt with by my noble and learned friend in col. 466, where he said:
"We have provided, and I intend to provide, that if the solicitor employed by the building society undertakes a transaction for a client, then his primary duty will be to the client. There is nothing to prevent that happening merely because he is employed. The terms of employment can secure that position. Therefore, his mandate from the employer will be to secure for the employer a properly secured mortgage on the property in question".
I fully support what my noble and learned friend said there. He went on to say that he was extremely open to proposals which might improve the measure of protection. It is with that in mind that my amendment has been tabled. I believe it does precisely that. It makes quite clear where the primary duty lies, which is to the lay client with whom the fiduciary relationship will be established. It places a responsibility on the professional adviser, the authorised practitioner, to have that duty to the lay client who is seeking advice.
The matter goes somewhat further than that. The fiduciary relationship would also overcome certain other matters of concern. It would ensure that there is equal treatment between the authorised practitioner and the independent practitioner, the high street solicitor, on such matters as disclosure and accounting. These matters were debated in Committee and it was decided to accept an amendment which said that the Lord Chancellor may make—I stress "may"—provision for disclosure and accounting.
I believe that duty should be even more. A fiduciary relationship would make it a statutory duty that the authorised practitioner must accept the same obligations as a private solicitor would accept with

467
his client. As we were told in Committee, that duty includes disclosing any amounts that he receives and accounting to his client for them. I believe that is a duty which should be accepted by the authorised practitioner. If there is received an insurance commission on an endowment policy or whatever it may be, the solicitor must be accountable to the customer client for that.
In the course of discussing various amendments we have spoken of the need for level playing fields. I certainly believe that this is an area where we should seek to get level playing fields between the independent high street solicitor and the authorised practitioner. If my amendment were accepted, both the independent solicitor and the authorised practitioner would be on equal terms. That is consistent with the decision that the House made on Tuesday concerning the cab rank rule; namely, those who accept extended rights—in this case it would be the authorised practitioner—should also accept the same duties as those with whom they would be in competition.
I hope that those who felt the need to vote in favour of the extension of equal rights under the cab rank rule will be no less convinced of the need to support an amendment which provides for equal rights between the independent high street solicitor and the authorised practitioner. I believe that this is an essential requirement for the protection of the consumer. It is the consumer who is entitled to have the best advice, to be protected, and also to know that he is getting independent advice; namely, the kind of advice to which the noble Baroness, Lady Seear, referred concerning an earlier amendment. I beg to move.
Lord Mishcon: My Lords, we on these Benches support this amendment for the reasons given so eloquently by the noble Lord, Lord Boardman.
Lord Coleraine: My Lords, I believe it is axiomatic that anyone providing conveyancing services should be under a fiduciary duty to the client and that any derogation from his duty, however allowed, is entirely against the interests of justice. It seems to me that whether or not it is the case that an authorised practitioner is under this fiduciary duty, it should be spelt out on the face of the Bill where we are dealing with authorised praactitioners who, in the majority of cases, will not represent organisations which have in the past subjected themselves to the kinds of responsibilities which they should and ought to be assuming if they are to provide conveyancing services.
The Lord Chancellor: My Lords, as I see it, the essential point is that the person who is acting as the qualified person—namely, the solicitor or licensed conveyancer—should owe the proper professional duty to the client whether he is an employee or acting as an agent of a building society. This clause as drafted would go further than that. The idea must be that the conveyancing work is done by a person who owes the client the proper professional duty, and that should rest on the professional person.
468
For example, suppose that a building society arranges for a solicitor to do my conveyancing work. I believe that it would be perfectly reasonable to arrange the matter in such a way that the solicitor doing that work was under a duty to me and that duty to me was the same kind of duty as if the solicitor was employed by me directly without the intervention of the building society. That is what I believe to be the correct situation. As regards this clause, I am not sure to what extent this fiduciary duty is supposed to extend. The amendment states:
"(1) A fiduciary relationship shall be deemed to exist between an authorised practitioner and any person for whom the authorised practitioner provides any conveyancing services.
(2) The extent of the fiduciary relationship imposed by subsection (1) shall be the same as would exist between a solicitor and his client for whom similar services were being provided".
The extent of that duty is restricted to the conveyancing work. The building society, for example, will be giving a mortgage to the client. That mortgage cannot be in pursuance of a fiduciary duty. If the fiduciary duty is the duty in relation to the conveyancing services, I suggest to my noble friend that it is much better put upon the professional person who is required to supervise the transaction. It is by that method that the interests of the client will best be safeguarded. That fiduciary duty, as I explained, is already implied by the arrangements that I have made. But to seek to make the building society itself subject to a fiduciary duty when it is, for example, a lender to the client would have consequences that my noble friend does not have in mind.
9 p.m.
Lord Boardman: My Lords, perhaps I may try to clarify the point. I see the duties of the authorised practitioner in so far as he is doing the work that was otherwise done by the high street solicitor to be identical, and it is for the building society, if it is employing a professional person in order that he may do the conveyancing work, to accept a fiduciary responsibility to that person that a firm of solicitors would accept from its client. That includes such matters as disclosure of commission, accounting, and so on.
The drafting of the clause may be inadequate for carrying out the wish, which my noble and learned friend and I share, that the client should be properly advised. If my noble and learned friend felt that we could have something to put that principle more firmly into the Bill I would welcome it. But unless that happens there will be concern regarding the position of a solicitor or professional person employed by a building society to which he looks for his salary, pension, and so on, as distinct from his duty to the person who has come to him from the estate agency. I believe that the establishment of a fiduciary duty could reinforce the point. I hope that that may be helpful to my noble and learned friend.
The Lord Chancellor: My Lords, what my noble friend has said is helpful. He wishes to establish that the professional person who is in charge of the transaction, even if he is employed, has a fiduciary

469
duty to the client. As I understand it, the amendment seeks to ensure that the professional person, even if he is employed by a building society, will have a fiduciary duty to the client which will override any duty that he may owe to the building society by which he is employed. If that is my noble friend's point, I do not have any difficulty in trying to achieve that. I doubt whether the amendment does it. The amendment is directed to placing a fiduciary duty on the authorised practitioner who may be the employer. My noble friend has just said that he wants to be sure that when the solicitor is acting, even if he is an employee of the building society, he will act for the client in the same way and with the same responsibility as if he were acting for the client and was not employed by the building society.
Lord Boardman: My Lords, I am grateful to my noble and learned friend. If I have understood him correctly, he accepts the obligation for the professional person acting in the matter to accept the same fiduciary duties as a solicitor has to his client. If my noble and learned friend feels able to look at that point to see whether he can bring something forward to underline that duty, I shall happily not proceed further with the amendment. I do not know whether my noble and learned friend is able to give that assurance.
The Lord Chancellor: My Lords, I should like to read the report of our discussions. So far as I have understood my noble friend's point, I believe that I can favourably consider bringing forward an amendment to make it clear that where the authorised practitioner is providing these services, the person who is responsible for the transaction at the professional level shall have the responsibility to the client in carrying out the transaction that a solicitor would have in relation to the ordinary practice. There may be difficulties about that. My noble friend will, I am sure, take that into account. I shall look carefully at this point to see to what extent I can meet his concern.
Lord Boardman: My Lords, I am grateful to my noble and learned friend. In anticipation of his being able to achieve something to meet my problem—I recognise the drafting difficulties—I ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 37 [Regulations about competence and conduct of authorised practitioners]:
Lord Mishcon Lord Mishcon moved Amendment No. 155:
Page 30, line 25, at end insert—
("(c) that authorised practitioners do not engage in unfair competition by settling their prices for the provision of conveyancing services at a level that fails to provide a reasonable rate of return on the costs of providing those services.").
The noble Lord said: My Lords, in order that noble Lords may have a full understanding of this important amendment perhaps I may ask them to
470
refer to Clause 37 of the Bill. Against the clause there is the marginal note:
"Regulations about competence and conduct of authorised practitioners".
Noble Lords will see that this is an empowering clause for the Lord Chancellor to make provision by regulation as he considers expedient with a view to securing satisfactory standards of competence and conduct and ensuring that the interests of the clients are satisfactorily protected. At first sight one sees that, both by the marginal note and much more importantly by the wording of the clause, this enabling power to make the regulation is restricted to competence and conduct and the interests of clients.
In his speeches both in this House and outside the noble and learned Lord has made it perfectly clear that the last thing in the world that he would want to see is unfair competition in regard to charges that would have, as he himself has admitted or as he himself has confirmed, the very damaging effect of closing up the little high street solicitor who is of such great advantage to the public who want legal advice. The Green Paper and the White Paper were awfully keen on this point.
I ventured to move an amendment at Committee stage which went somewhere near the amendment that I am in fact moving today. I want to base my amendment very clearly on government policy. That is why I made the introduction that I did as to the White Paper and to the noble and learned Lord's own views, as I know them.
I hope that your Lordships will forgive me if I quote the relevant paragraph of the White Paper, so that there is no misunderstanding. It is paragraph 5.14, and I am omitting a few words that are irrelevant to my argument. It says:
"…the Green Paper proposed that unauthorised practitioners should be prevented from offering conveyancing services at less than their true cost, and that their annual accounts would have to provide proof of that… It was argued"—
that was during the consultation period, if I may make that intervention—
"that an annual requirement to demonstrate in the accounts that there was no predatory pricing would impose very substantial costs, and might also lead to increased qualification of accounts. In the light of the consultation response, authorised practitioners will be required to submit to their regulatory bodies each year details of the prices they charge for conveyancing services, certifying that those prices have been settled on a fair and reasonable basis to provide a reasonable rate of return on costs of providing those services alone. This aims to remove cross-subsidy on a significant and systematic basis".
Nothing could be clearer, that this was to protect the solicitor—I repeat it—the high street solicitor in particular, from unfair competition by way of pricing, because obviously the large financial institutions will not aim to make their money out of conveyancing costs. They will aim to make their money out of all that goes with it, in regard to mortgage loans, endowment policies and perfectly honourable matters of that nature. But from their point of view that is where the money will be.
The CBI, of all people, saw that and they fully suppported the amendment which I moved at Committee stage. They said that one of industry's grave concerns was the effect of the proposals in the

471
Green Paper, and then the White Paper, and the effect that they might have of a damaging nature unless there was proper, fair competition in regard to prices.
The noble and learned Lord knows that I always speak with deep respect in regard not only to him personally, but in regard to the interpretation that he gives us and as he sees it of the provisions of the Bill. As I understood him he seemed to take the point at Committee stage, but to say that Clause 37 enabled him to make regulations which would protect the position that I had mentioned in this amendment, and that therefore one need not worry about it because, quite obviously, he had clearly in mind the policy in the White Paper. That was why I asked your Lordships, in your kindness, to refer first of all to the provision in Clause 37. I would merely remind your Lordships of what I read out and what was the margin note, which is the shorthand for what really is set out fully in the Bill:
"Regulations about competence and conduct of authorised practitioners".
I concede at once that, although the matters raised in the amendment are so very definitely spoken of in the White Paper as government policy, at all events it strains interpretation to say that these matters are covered by competence or the conduct of authorised practitioners.
The noble and learned Lord seems to have the great ability not only to sit at late hours and keep clarity of mind, but even at a late hour to hear two arguments going on at once. I must say that he is the envy of every one of us.
I was saying that the interpretation was at all events strained; but whatever it be, is it not at least arguable—I put the submission at the lowest that I can—that someone would later say that they could challenge the Lord Chancellor's right under Clause 37 to make a regulation which operates against charges being unfair or cross-subsidised? I give him—I do it most respectfully—the opportunity to see that any such argument has no chance of success, by the Bill clearly stating that such a power exists and, as he has expressed the willingness to carry out the policy of the White Paper, to see that on the face of the Bill that regulatory power is open to him, and is one that will be carried through.
I also want to make it clear, because of what was said in Committee, that the question of predatory pricing and cross-subsidy being prevented is vital, and that they are two different, although somewhat connected, matters. Therefore it is against both evils—if I may put it that way—that the regulation should be made pursuant to the White Paper policy; namely, that there should be neither predatory pricing nor cross-subsidy, and that the conveyancing costs should stand on their own and should be shown to be fair and attributable to the conveyancing department of the institution concerned. I beg to move.
9.15 p.m.
The Earl of Kinnoull: My Lords, I do not know whether one is allowed to interfere in what is a
472
two-man argument, but I am interfering because, although I respect totally the noble Lord, Lord Mishcon, I disagree with the amendment. I disagree with the amendment because, although there is clearly a balance to be achieved in the Bill or by subsequent regulation, there is the argument relating to the interference with commercial practice; there is the argument as to whether the competition legislation would bite on that situation, and there is the argument, which I believe my noble and learned friend put up in Committee, which I support, that the solicitor in the high street would not capitulate merely because he found that the conveyancing part of his business was becoming competitive.
Despite the fact that the CBI has supported the amendment moved by the noble Lord, Lord Mishcon, there is a consumer interest in the position. I feel passionately that much progress has been made towards benefiting the consumer, and I feel that the substance of the amendment would be far better in regulations than in the Bill.
The Lord Chancellor: My Lords, the noble Lord, Lord Mishcon, is asking me whether the regulation-making power, as drafted in the Bill, is wide enough to enable me to make the type of regulations that he has in mind. I have sought advice upon that point, but in view of the question that the noble Lord has asked, I shall look at the matter again.
I would not wish to restrict the unfair competition aspect to the one that the noble Lord has suggested. That is one aspect, but there could be other aspects of unfair competition which might require to be dealt with. One which is important and which arose in the Green and the White Papers, was the system whereby, if the costs were incurred by a private solicitor, they would not be added to the mortgage but, "If you take our service", they will be added. That is a type of tying-in which is brought within Clause 72. There are other aspects of unfair competition, apart from this one, which I would wish to have in my sights in case they should develop. The precise way in which this aspect of unfair competition should be dealt with is a matter of some judgment.
When we drew up the White Paper, I had intended that the different institutions would be answerable to their own prudential regulations—the building societies, the building societies registrar and so on, each being separate. Following recommendations and suggestions made to us by the Law Society among others, we have now put all the authorised practitioners under one board. That makes it much easier for the board to take a bird's eye view of all that is happening. It will see all the prices. It may be much easier for it to tell what is going on in a particular area because it will have the high street solicitors' prices, the prices of the various authorised practitioners available to it for the various services. In that way they may be able to operate an even more efficient method of getting at the problem than I had originally thought of when I was putting the White Paper together.
The board has a duty to promote competition. While the noble Lord was putting forward his

473
argument I was looking at a certain passage and I received an item of information from his noble friend in passing, rather than listening to the argument. I thought of suggesting that, as in Clause 32. we insert:
"to seek to develop fair competition"—
I think that is implied but not expressed—
"in the provision of conveyancing services".
It may be that I ought to have a provision mirroring that at the beginning of Clause 37. If the noble Lord will leave the matter with me, I shall be happy to consider it further in the light of what has been said.
The policy I have is to seek to ensure that the competition is fair. That is in the interests of the consumer. I do not wish to propose any improper protection from competition for any of those providing conveyancing services, but I wish to do my best to ensure that the arrangements that we make provide for fair competition in the interests of the client.
Lord Mishcon: My Lords, as I understand the noble and learned Lord, he has been good enough to say in reply to the amendment that he will look into whether Clause 37 would give him the power to make a regulation dealing with fair pricing, fair costing and cross-subsidy. Secondly, he would wish in any regulations he made to carry out the policy in the White Paper, an extract from which I read. Thirdly, he will obviously have in mind, when we come to the third stage, putting down an amendment if he finds that it is necessary after examining the powers under Clause 37 which will deal with these matters. On the basis that I have understood the noble and learned Lord correctly, I am pleased to withdraw the amendment. However, I should like him to confirm that.
The Lord Chancellor: My Lords, I wish to make sure that I have the necessary power to ensure fair competition in all aspects—price, cross-subsidy and so on, and any other matters that may occur to us as we develop the proposals for regulations. The main heading in issue here is fair competition. We wish to see as we go along the precise way in which these aims may be achieved, but that is the purpose that I have in mind. I believe that what the noble Lord says is in accordance with what I propose.
Lord Mishcon: My Lords, I think this is important. Perhaps the noble and learned Lord will say that he in no way seeks to differ now from the policy set out in the White Paper.
The Lord Chancellor: My Lords, all I am saying is that the precise manner in which the policy is carried out is different from what we had in the White Paper. I am not sure now, for example, that the best way of securing what I had in mind in the passage which the noble Lord read from the White Paper is the statement annually to the prudential authorities. It may be much better to look at their prices and judge whether the prices are fair, rather than relying on certificates and so on. I do not want the noble Lord to be misled. What I have in mind is to achieve the aims that were set out in that passage of
474
the White Paper. The precise manner in which we shall achieve them will be developed in the course of consultation on the regulations.
Lord Mishcon: My Lords, it was of course the aims of the passage that I had in mind. I understand that the machinery can obviously be dealt with after consideration as regards the best machinery to be employed. I am deeply grateful to the noble and learned Lord for his remarks. On that basis, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 156 not moved.]
Lord Airedale Lord Airedale moved Amendment No. 157:
Page 30, line 34, leave out ("each transaction to be") and insert ("any transaction to remain").
The noble Lord said: My Lords, this amendment arises out of an amendment that was tabled in Committee by my noble friend Lord Evans of Claughton. I notice that the next amendment that we are to discuss is identical with the amendment of my noble friend Lord Evans. However, this time it stands in the name of the noble and learned Lord the Lord Chancellor. I may in pursuing my amendment, be open to the charge that the Liberal Democrats are never satisfied. However, I think there is common ground between us that paragraph (c), which we are discussing, is not satisfactory as it stands. It makes use of the expression "each transaction". Assuredly, people will take the words "each transaction" to mean every transaction. They will think that paragraph (c) therefore states that every transaction shall come under the overall control of the same member of a firm, however large the firm.
I understand that that is not at all the intention of the noble and learned Lord the Lord Chancellor as he expressed it in Committee. The intention is simply that each single transaction will remain under the control of the same member of a firm throughout its course so that the client does not get pushed around from one member of the firm to another. This amendment replaces the words "each transaction" with the words "any transaction" and therefore ensures that we are talking about transactions taken one at a time. The amendment introduces the words "to remain" instead of the words "to be" so as to emphasise the continuity of supervision which is, I believe, very much part of the intention of the noble and learned Lord. I beg to move.
The Lord Chancellor: My Lords, it would never occur to me to suggest that the Liberal Democrats were never satisfied. However, we had intended to satisfy the noble Lord, Lord Evans of Claughton, whom I am sorry cannot be with us. However, I understand perfectly the reason for that. I thought that in satisfying the noble Lord I could do no better than carry out what he suggested. However, I am advised that what I am proposing in Amendment No. 158 would have the effect that each transaction—that is to say, each individual transaction—would be under the overall control of one individual. That is what I wish to achieve. I

475
believe my amendment does achieve my intention; namely, that a particular transaction should be under the overall control of a single identified person from start to finish. This is perhaps a matter of style and judgment. As I have accepted in effect the amendment of the noble Lord, Lord Evans, the noble Lord, Lord Airedale, may feel that it is appropriate to leave the matter at that. However, I am of course in his hands.
Lord Airedale: My Lords, no doubt my noble friend Lord Evans would be pleased to learn that the noble and learned Lord the Lord Chancellor had moved an identical amendment to his on Report. Therefore, in that case I am happy to beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Lord Chancellor The Lord Chancellor moved Amendment No. 158:
Page 30, line 35, leave out ("the same") and insert ("one").
The noble and learned Lord said: My Lords, this is the amendment that we discussed. I am very grateful to the noble Lord, Lord Airedale, for taking the trouble to suggest an amendment. I am sure that he did so before he knew what I intended to do. I am extremely grateful to him for accepting what I have proposed. I beg to move.
On Question, amendment agreed to.
9.30 p.m.
Lord Prys-Davies Lord Prys-Davies moved Amendment No. 159:
After Clause 37, insert the following new clause:
("Safeguarding clients' money etc.
.—(1) The Lord Chancellor shall, for the purpose of safeguarding clients' money and clients' affairs, by order provide for—
(a) the circumstances in which the Board may intervene in the conveyancing business of an authorised practitioner; and
(b) the powers which the High Court and the Board may exercise on an intervention under this section.
(2) An order under this section shall, in particular, empower the Board to intervene where—
(a) an authorised practitioner ceases to conduct conveyancing business; and
(b) the Board has reason to suspect dishonesty on the part of an authorised practitioner or an officer, employee or associate of an authorised practitioner.
(3) an order under this section shall, in particular, on an intervention under this section—
(a) empower the High Court to order that no payment shall be made without the leave of the court by any bank, building society or other person or any money held by it or him on behalf of the authorised practitioner; and
(b) empower the Board to require an authorised practitioner to deliver to the Board documents in its possession relating to its conveyancing business.
(4) The power to make an order under this section shall be exercisable by statutory instrument.").
The noble Lord said: My Lords, the purpose of the amendment is to enable the Lord Chancellor to make an order by statutory instrument empowering the Authorised Conveyancing Practitioners Board to intervene in the conveyancing business of an authorised practitioner where it is necessary to do so to safeguard clients' money. An amendment was
476
moved by my noble friend Lord Mishcon at Committee stage which was designed to achieve the same end as this amendment.
The Law Society is empowered to intervene in a solicitor's practice in certain circumstances where clients' money and clients' affairs require to be safeguarded. Similar powers are vested in the Council for Licensed Conveyancers and I understand that Sections 64 to 71 of the Financial Services Act 1986 contain detailed provisions regarding powers of intervention.
In Committee, in response to the amendment moved by my noble friend Lord Mishcon, the noble and learned Lord the Lord Chancellor said that he felt that the Bill as drawn gave sufficient control to the Authorised Conveyancing Practitioners Board without attempting to give it the full panoply of intervention powers of a professional body. That is a role which the noble and learned Lord felt was unnecessary and unsuitable for the board. The noble and learned Lord referred the Committee to certain duties and powers which were conferred on the board under Clause 32(1)(b), Clause 32(2) and Clause 36(3)(d). However, the power of intervention is missing from all three clauses. Therefore my noble friend Lord Mishcon was unhappy with the reply of the noble and learned Lord the Lord Chancellor and reserved the right to return to the matter. Having received advice from the Law Society we have tabled the amendment which is now before the House.
It is generally felt that the response of the noble and learned Lord at Committee did not address the vital point that where a business handles large sums of clients' money it is essential that the regulatory body has emergency powers to intervene swiftly if it learns of a breach of regulations in order to safeguard such money. In our submission, it is not sufficient for the Bill to require the board to supervise the activities of authorised practitioners under Section 32(1)(b) or to require it in Clause 32(2) to make arrangements to ascertain that authorised practitioners are complying with the relevant regulations. Those powers will not enable the board to intervene.
Moreover, it should be said again that if the board is to be given the power of intervention it must be such as to enable the board not only to bind the authorised practitioner but also third parties such as banks and building societies which hold money on behalf of the authorised practitioner. None of the provisions in the Bill as currently drawn would create such powers which would be binding on third parties.
It is fair to say that in Committee the noble and learned Lord the Lord Chancellor referred to Clause 36(3)(d) which enables the board to make rules concerning transitional arrangements for dealing with work in hand should an authorised petitioner's authorisation be revoked or suspended. However, in practice, there is likely to be a considerable lapse of time after the board learns of an alleged dishonesty or malpractice and before the authorised practitioner's authorisation is revoked or suspended. The transitional provisions would be used only once revocation or suspension had taken effect. The missing element is the power for the board to intervene quickly and decisively where it is necessary

477
to do so in order to protect clients' money and affairs. I beg to move.
The Lord Chancellor: My Lords, the powers that the Bill confers on the board are aimed to enable it to perform its duties of authorising and supervising practitioners in a way that is light and flexible as well as effective. The board has a general duty to supervise the activities of authorised practitioners and it will have to make arrangements designed to enable it to ascertain whether authorised practitioners are complying with the extensive regulations which the Lord Chancellor will make if Parliament so decides. In addition, the board may make rules concerning transitional arrangements for dealing with any work in hand should an authorised practitioner's authorisation be revoked or suspended.
As I said in Committee, I do not consider it necessary to give the board the full panoply of intervention powers which the Law Society has. That is because the board is not in a similar position to the Law Society. It is a regulatory body similar in many ways to the Building Societies Commission and the Bank of England. Those institutions provide a more appropriate model for the kind of powers that it needs to carry out its supervisory and disciplinary functions. I am therefore considering whether the board should have intervention powers similar to those provided by Section 55 of the Building Societies Act 1986 which would provide that the board may appoint one or more competent persons to investigate and report to it on the state and conduct of the business of the authorised practitioner concerned, or any particular aspect of that business. That, together with the specific statutory powers to call for an authorised practitioner's documents which I propose to provide, and the powers which are already given to the board, give the board ample powers to carry out its duty of supervising authorised practitioners in connection with their provision of conveyancing services.
A number of the bodies that we have in mind will already be subject to prudential supervision by other authorities such as the Building Societies Commission. We want a reasonably self-consistent system. Where it is a question of conferring power on the board, it is probably wise to confer those powers in the primary legislation rather than by order, as in the amendment of the noble Lord, Lord Prys-Davies, although I understand the reason for his choice. In my further consideration of the comments of the noble Lord, Lord Mishcon, on the last occasion and in preparing to address the amendment. I took the view that any additional powers that we thought of providing should probably be provided in the primary legislation.
I hope that in the light of that explanation the noble Lord will feel able to withdraw the amendment. However, I believe that the full panoply of powers of the Law Society would probably not be appropriate here. To that extent, there is something between us. On the other hand, I cannot expect the noble Lord to express a concluded view until he sees the proposal with which I shall come forward, but I am certainly working on that aspect of the matter.
Lord Prys-Davies: My Lords, I am particularly grateful to the noble and learned Lord for his reassuring response. I take the point that he does not consider that the Law Society's powers are a precedent in that respect, but we are nevertheless pleased that the matter is being given further consideration. In those circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Lord Chancellor The Lord Chancellor moved Amendment No. 160:
After Schedule 6, insert the following new schedule
("SCHEDULE

Probate
Advice from the Advisory Committee
1.—(1) Where the Lord Chancellor receives an application from a professional or other body ("the applicant") for approval under this Schedule, he shall refer the application to the Advisory Committee.
(2) It shall be the duty of the Advisory Committee to consider the application and to give to the Lord Chancellor such advice as it considers appropriate.
Advice from the President of the Family Division
2.—(1) When the Lord Chancellor has received the Advisory Committee's advice he shall refer the application, together with that advice, to the President of the Family Division.
(2) It shall be the duty of the President to consider the application, in the light of that advice, and to give to the Lord Chancellor such advice as he considers appropriate.
(3) If the President asks the Committee to give him advice with respect to the application, it shall be the duty of the Committee to do so.
Information to be supplied by applicant
3. The applicant shall provide the Lord Chancellor, the Advisory Committee and the President with any information that they may reasonably require.
Approval by Lord Chancellor
4. Having considered the advice given to him by the Advisory Committee and by the President, the Lord Chancellor may by order approve the application if, but only if, he is satisfied that the applicant has in force suitable arrangements—

(a) for training; and

(b) for ensuring that any person to whom the applicant grants the exemption mentioned in section 44A(1) will at all times, while exempt, comply with the requirements of section 44A(2)(a) to (e).

Refusal to approve
5.—(1) If the Lord Chancellor porposes to refuse the application he shall give the applicant written notice of his proposal.
(2) The notice shall—

(a) give the Lord Chancellor's reasons for proposing to refuse the application and

(b) inform the applicant of the effect of sub-paragraph (3).

(3) Where such a notice is served, it shall be the duty of the Lord Chancellor, before determining whether to grant or refuse the application, to consider any representations duly made by the applicant.
(4) For the purposes of sub-paragraph (3), representations are duly made if—

(a) they are made to the Lord Chancellor before the end of the period of 28 days beginning with the day on which the notice is served; and

(b) unless the Lord Chancellor directs in a particular case, are in writing.

(5) If the Lord Chancellor refuses the application he shall give notice to the applicant in writing.
(6) Any notice given under sub-paragraph (5) must give the Lord Chancellor's reasons for refusing the application.
Revocation of approval
6.—(1) The revocation of any approval given under this Schedule shall be by order ("a revoking order") made by the Lord Chancellor.
(2) A revoking order may only be made if—

(a) the approval body has made a written request to the Lord Chancellor asking for it to be made;

479

(b) the approved body has agreed in writing to its being made; or

(c) the Lord Chancellor is satisfied that the circumstances at the time when he is considering the question are such that, had that body then been applying to become an approved body, its application would have failed.

(3) A revoking order may make such transitional and incidental provision as the Lord Chancellor considers necessary or expedient.
(4) Where a revoking order is made—

(a) the exemption granted to any person by the body with respect to whom the order is made shall cease to have effect, subject to any transitional provision made by the order; and

(b) the Lord Chancellor shall—

(i) give the body with respect to whom the order is made written notice of the making of the order;

(ii) take such steps as are reasonably practicable to bring the making of the order to the attention of members of that body; and

(iii) publish notice of the making of the order in such manner as he considers appropriate for bringing it to the attention of persons (other than those members) who, in his opinion, are likely to be affected by the order.

Role of the Advisory Committee
7.—(I) Where the Lord Chancellor is considering whether to make a revoking order by virtue of paragraph 6(2)(c)—

(a) he shall seek the advice of the Advisory Committee; and

(b) the Advisory Committee shall carry out such investigations with respect to the approved body as it considers appropriate.

(2) Where—

(a) the Lord Chancellor has not sought the advice of the Advisory Committee under sub-paragraph (1); but

(b) the Advisory Committee has reason to believe that there may be grounds for recommending that a revoking order be made under paragraph 6(2)(c) with respect to an approved body,

it may carry out such investigations with respect to the approved body as it considers appropriate.
(3) If, on concluding any investigation carried out under sub-paragraph (1) or (2), the Advisory Committee considers that there are grounds for recommending the making of a revoking order with respect to the approved body concerned, it shall advise the Lord Chancellor accordingly.
Notice to approved body
8.—(1) If the Advisory Committee advises the Lord Chancellor that there are grounds for recommending the making of a revoking order with respect to an approved body, the Lord Chancellor shall send written notice of that advice, and of the effect of such an order, to that body.
(2) Any such notice shall invite the approved body to make representations in writing to the Lord Chancellor or such person as he may appoint for the purpose.
(3) Any such representations must be made before the end of the period of three months beginning with the date on which the notice was given.
Notice to members of approved body
9.—(l)Where—

(a) the Lord Chancellor has given notice to approved body under paragraph 8(1); or

(b) is proposing to make a revoking order with respect to an approved body, by virtue of paragraph 6(2)(a) or (b),

he shall take such steps as are reasonably practicable to bring the matter to the attention of the members of the approved body and of any other persons who, in his opinion, are likely to be affected by any revoking order made with respect to that body.
(2) Any such steps shall include inviting those members and other persons to make representations to the Lord Chancellor or (as the case may be) to the person appointed by him for the purpose.
(3) Any such representations—

(a) shall, except in such circumstances as the Lord Chancellor may specify, be in writing; and

(b) must be made before the end of the period of three months beginning with such date as may be fixed by the Lord Chancellor.

Consideration by Lord Chancellor and President
10.—(1) It shall be the duty of the Lord Chancellor to consider—

(a) any advice given to him by the Advisory Committee under paragraph 7; and

(b) any representations duly made under paragraph 8 or 9.

(2) Having done so, the Lord Chancellor shall—

(a) send to the President a copy of any such advice and of any such representations (including a note of any oral representations); and

(b) inform the President of his view as to whether or not a revoking order with respect to the approved body concerned should be made.

(3) It shall be the duty of the President—

(a) to consider the information sent to him by the Lord Chancellor;

(b) to inform the Lord Chancellor of his own decision in the matter; and

(c) to give his reasons, in writing, for his decision.

(4) No revoking order shall be made with respect to the approved body unless the Lord Chancellor and the President agree that it should be made.").
The noble and learned Lord said: My Lords, I undertook in Committee to give further thought as to whether or not the provisions relating to the authorisation of new classes of probate practitioner provided proper client protection. The amendments represent the fruit of that consideration.
First, I took the view that entitling "classes" of people to prepare papers for probate was probably not specific enough. I therefore decided that the field of those who could apply for authorisation should be narrowed to "a professional" or other body which is approved by the Lord Chancellor under the schedule.
More important, I considered that these new classes of "probate practitioner" should be required to comply with certain standards of competence and conduct. The amendments therefore provide that, before the Lord Chancellor may approve an application to be authorised to grant the right to prepare papers, he must be satisfied that the applicant has in force suitable arrangements for training, and also for ensuring that any person to whom the applicant grants the exemption from Section 23 of the Solicitors Act will comply with certain requirements as to conduct and competence. These are that the applicant should be fit and proper; he, and any person employed by him in the provision of probate services, must be suitably trained; there must be satisfactory arrangements in force at all times for covering adequately the risk of any claim made against him in connection with the provision of probate services by him, however arising; he has to be a member of, or otherwise subject to, a complaints scheme and have in force satisfactory arrangements to protect his clients in the event of his ceasing to provide probate services.
I also deemed it wise that I should seek specific power, having had advice from the advisory committee and with the agreement of the President

481
of the Family Divison, to revoke approval where I considered that the body was not meeting the requirements for authorisation. I hope that the House will accept that I am committed to maintaining proper standards of competence and conduct, and I believe that the amendments will ensure that these new classes of "probate practitioners" are suitably supervised and regulated. This is in response to the concerns expressed in Committee. I beg to move.
Lord Prys-Davies: My Lords, we were very pleased indeed to read the amendments tabled by the noble Lord the Lord Chancellor and we are grateful that he has moved to meet the concerns that we expressed in Committee. I understand that the Law Society is also pleased with the amendments, though it believes that they may not go far enough to meet its anxieties. However, I understand that it proposes to study the amendments further and it may well be that the other place will come back to this amendment for further consideration.
Lord Simon of Glaisdale: My Lords, this is a truly astonishing amendment—a complete new schedule brought forward at Report stage. There has been no attempt to re-commit the Bill so that it can be properly considered. Not only is it quite astonishing that a new schedule of more than three pages should be tabled at Report stage and that it is brought forward at twenty to ten at night with a sparse House, but the content of the schedule is truly astonishing.
Modern schedules in modern statutes tend to fall into two classes: those that try to teach grandmothers to suck eggs and those that try to set out administrative instructions suitable for departmental standing orders. Astonishingly, this schedule manages to do both.
I ask your Lordships to consider merely the first two paragraphs. Under the Bill, and in the eyes of my noble and learned friend, the advisory committee is central. My noble and learned friend attaches great importance to it. But do we need to stipulate that the Lord Chancellor shall consult and ask advice from an advisory committee? Yet that is the first thing that is done. Do we need to say that the advisory committee shall consider any request from the Lord Chancellor? Do we need to say that it must communicate that advice? Since it is a high-powered advisory committee can its members not be trusted to behave like sensible men constituting such a committee?
Then, having enjoined it to give its advice, can we not trust the Lord Chancellor to consider the advice? One does not attain one of the highest offices in the state—in fact the highest civil office in the state—without having proved oneself not only as a famous lawyer but as an admirable man of business. Can he not be trusted to consider the advice that is tendered to him, without a statutory authority?
Then we have the President of the Family Division, who oddly enough, is responsible for undefended probate business, the principal probate registry and all the district probate registries. Again, he is not appointed unless he has proved himself capable of transacting public business. Do we really
482
have to write into a statute that he must consider any communication on the subject from the Lord Chancellor? Do we really need to say that he must answer the letter in writing? Do we need to say that the Lord Chancellor must then consider what he has received from the President of the Family Division?
At this time of night, with the schedule not recommitted, of course it would be absurd to divide against it. It is brought up in an empty House at the time of night that I have indicated. No doubt the Government business managers have learned a lesson from what happened on Tuesday. I do not doubt that there is a silent and deaf majority faithfully assembled by the noble Lord the Chief Whip ready to vote down any attempt to defeat the schedule. However, one cannot let it go by without pointing out how absurd, how wrong it is, to swell a statute book with such rubbish.
A short time ago we had a debate on the subject of the swelling statute book. The noble Lord, Lord Rippon, drew attention to the way in which it has expanded. The noble Lord, Lord Mishcon, drew similar attention in relation to the volumes of statutory instruments. Shall we really do nothing to try to halt the swelling by introducing completely flatulent and unnecessary legislation—the volumes of the statute book that have to be typed out, printed, read, and every stage of draft approved, at enormous expense? In the glad, glorious morning of Thatcherdom, economy was one of the considerations. Is it not time that that was considered again; and considered, incidentally, in the sphere of preparation of legislation?
9.45 p.m.
Lord Renton: My Lords, I must apologise to my noble and learned friend the Lord Chancellor for uttering a word, since I had not heard much of his moving of the amendment. However, having heard the noble and learned Lord, Lord Simon of Glaisdale, I feel bound to make three comments.
First, the noble and learned Lord, Lord Simon, was himself the President of the Probate, Divorce and Admiralty Division which preceded the Family Division. He therefore has very good reason for knowing what he is talking about.
Secondly—I am glad to see that my noble friend the Chief Whip is within hearing—in your Lordships' House we do not, as a matter of routine, as is done in another place, have the system of recommittal at or before Report stage of matters of substance which were not before the House before the Report stage. Essentially this matter would have been suitable for recommital.
Thirdly, at paragraph 125 of the schedule we reach a position where, after the various pieces of machinery have been covered, the Lord Chancellor is in the position of overruling consent given by the president of the Family Division. The public regards the administration of the system of justice as being primarily the responsibility of the Lord Chancellor. However, the public does not expect to see any disagreement between the Lord Chancellor and the heads of divisions of the High Court publicly expressed in a way which is provided for by statute.

483
It is most unusual and it is a feature of the schedule which should arouse your Lordships' curiosity.
Lord Mishcon: My Lords, I believe that the last thing which the noble and learned Lord the Lord Chancellor wants is a defence from this Dispatch Box provided by me. He does not need it and, for all I know, it may embarrass him. However, I wish to answer the points that have been raised. The time of night has not diminished the eloquence of the noble and learned Lord, Lord Simon, nor the power to speak in his usual forthright way.
During the Committee stage I tried to plead with the noble and learned Lord—if that is not putting it too high—to deal with probate matters in the same way as he dealt with conveyancing matters in order to ensure that the public was properly protected. I pointed out to him most respectfully that possibly the public needed a little more protection in the administration of estates than would normally be required in conveyancing matters. It needs protection in both, and I made that point.
If those points are raised in Committee it is a little extraordinary to find that there is criticism of the noble and learned Lord, who listened to what was said and who has produced an answer in a speedy but nevertheless efficient way. However, as my noble friend Lord Prys-Davies said, it may be that certain amendments must be tabled in another place. If on Report a concession is made to what was said in Committee it is hardly a matter for complaint. In sheer fairness I say that it is not a case of the Government coming forward with something that should have been thought of a long time ago but was not.
It is only fair to say that we have talked many times in this House about the value of judicial review. In the normal case that is possible only where the citizen can point out to the court that a Minister has not carried out the machinery of consultation and of considering advice clearly imposed upon him by statute. If one gave arbitrary rights to Ministers, even to great Lord Chancellors, on the basis that they are capable administrative men, fine lawyers and are people to be trusted, the first complaint would be that this was giving to Ministers powers that nobody should give them.
When you put carefully into a statute that there must be consultation and that that consultation must be considered, the citizen has a right to say, "Oh, statute, Parliament has imposed a procedure which has not been carried out and therefore I, the citizen, shall ask for judicial review and I shall ask for this matter to be considered in accordance with the regulation of statute". I thought it only fair that I should make those remarks.
Lord Simon of Glaisdale: My Lords, how can anybody know whether the Lord Chancellor has considered the advice tendered to him?
The Lord Chancellor: My Lords, as I explained, this amendment was brought forward in order to seek to satisfy the matters raised in Committee by the noble Lord, Lord Mishcon. I have sought to set
484
out a procedure under which an order would be made by the Lord Chancellor, which of course is a statutory instrument requiring parliamentary procedure.
I have sought to set out a reasonable procedure for the reasons which the noble Lord, Lord Mishcon, explained. I have sought to do that in as clear a manner as possible. I believe that it is advantageous to set out those matters so that, when an application comes in, it is dealt with fairly and, if more than one application comes in, they are dealt with on the same basis.
The noble and learned Lord, Lord Simon of Glaisdale, has unique experience in the field of probate, as my noble friend Lord Renton said, as the president of the division as it was in his day which has now become the Family Division. It appears to me to be right that the judge who should have a concern and responsibility for those matters should be the president of the Family Division. The object of the arrangement is that Parliament will be able to tell what advice the president should give. This is a perfectly open matter and I believe that it is right that it should be done in that way.
Obviously there are situations in which the Lord Chancellor consults the judges and the matters are between him and the judges. However, there are other areas and other parts of this Bill where it was felt, in the light of the consultation which preceded, that the views of the judges should be made clear and distinct from those of the Lord Chancellor.
Therefore, in answer to a request, this is an attempt to produce a fair procedure with a more elaborate protection for the public in the field of probate than had been originally proposed. I believe that one of the great advantages of parliamentary procedure is that the proposals which the Government make in Bills should be developed in the light of the discussion in Parliament. I have benefited, and I am sure that this Bill has benefited, a great deal from the contributions which your Lordships have made. I have sought to respond to those contributions and this is an example where I have sought to respond to the contribution of the noble Lord, Lord Mishcon. I have also sought to respond to contributions from my noble friend Lord Renton. I have responded to contributions from my noble and learned friend Lord Simon of Glaisdale and I expect to do so again. Therefore, I hope that the House will agree to accept this amendment.
Lord Renton: My Lords, before my noble and learned friend sits down, does he not agree that, when his admirable response involves tabling a new schedule which is four pages long, that should be the subject of recommittal, which is possible within our procedure although very rarely used, rather than being submitted on Report, subject to the very strict rules which we then have for discussion?
The Lord Chancellor: My Lords, with the leave of the House, I believe that this is an appropriate way to deal with the matter and the schedule is very much along the lines of the sort of procedure which has been suggested in relation to the main provisions.
On Question, amendment agreed to.
Clause 44 [Preparation of papers for probate etc.]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 161:
Page 34, line 19, at end insert—
("(bb) the Public Trustee;").
The noble and learned Lord said: My Lords, this amendment seeks to include the Public Trustee in the list of those who may prepare, for reward, applications on which to found or oppose a grant of probate or letters of administration.
I believe the House will accept that the Public Trustee is a fit and proper person to carry out this work. Regarding a complaints mechanism, as the Public Trust Office is under the ministerial responsibility of the Lord Chancellor, complaints about probate services can be directed to him. Furthermore, as the Public Trustee is listed in Schedule 2 to the Parliamentary Commissioner Act 1967 the Parliamentary Commissioner can investigate complaints about the Public Trustee's probate services. In these circumstances it seems to me that he can be treated in the same way as barristers and duly certificated notaries public; and I do not propose that he should be a member of or subject to a complaints scheme as specified in subsection (2)(2A). I beg to move.
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No. 162:
Page 34, line 22, leave out ("operate") and insert—("carry on").
The noble and learned Lord said: My Lords, I have spoken to this amendment with Amendment No. 152. I beg to move.
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No. 163:
Page 34, line 35, after ("subsidiary") insert—
("(as defined by section 736(1) of the Companies Act 1985)").
The noble and learned Lord said: My Lords, this is a technical amendment and it defines "subsidiary", for the purposes of this clause, in the terms of Section 736 of the Companies Act 1985, as replaced by Section 144(1) of the Companies Act 1989. I beg to move.
On Question, amendment agreed to.
Lord Simon of Glaisdale Lord Simon of Glaisdale had given notice of his intention to move Amendment No. 164:
Page 34, line 39, leave out ("which").
The noble and learned Lord said: My Lords, unless my noble and learned friend would like me to move this amendment with a view to its immediate acceptance I propose not to move it but to leave it for discussion. Perhaps he will indicate whether he would like me to move the amendment or leave the matter to be discussed.
The Lord Chancellor: My Lords, before my noble and learned friend sits down, I should be grateful if he left the amendment for discussion. I have difficulty in understanding precisely its effect, so if my noble and learned friend is willing I would appreciate its being left to form part of the discussion we intend to have.
Lord Simon of Glaisdale: In those circumstances I do not move the amendment.
[Amendment No. 164 not moved.]
The Lord Chancellor The Lord Chancellor moved Amendment No. 165:
Page 34, leave out lines 40 to 44.
The noble and learned Lord said: My Lords, Amendment No. 165 leaves out words which are referred to in Amendment No. 168. I have spoken to this amendment with Amendment No. 160, but I should like to draw attention to that. I beg to move.
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No. 166:
Page 35, line 7, at end insert ("with respect to matters relating to such complaints").
The noble and learned Lord said: My Lords, this amendment seeks to clarify subsection (l)(2A)(b). It was intended that the Lord Chancellor's regulation-making powers in this subsection should relate only to a complaints scheme. It was not intended to provide a general regulation-making power. Such a power is not necessary as Amendment No. 169 sets out the standards of conduct and competence which probate practitioners will be expected to meet. It appeared from the discussion in Committee that this limitation was not clear from the subsection as drafted, and I hope that the amendment now emphasises that the regulations may be made only in respect of the complaints scheme. I beg to move.
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No. 167:
Page 35, leave out lines 8 to 18.
The noble and learned Lord said: My Lords, Amendment No. 167 also has an impact on Amendment No. 168 and will require it to be moved in a different place from that indicated in the Mashalled List. I have already spoken to Amendment No. 167 with Amendment No. 160. I beg to move.
On Question, amendment agreed to.
Lord Mishcon Lord Mishcon moved Amendment No. 168:
Page 35, line 12, at end insert—
("(2C) Regulations made under subsection (2A) shall make such provisions as the Lord Chancellor considers expedient with a view to securing—

(a) that—

(i) any body falling within paragraph (c)—(f) of subsection (2); or

(ii) any person falling within a class of person prescribed by order made under paragraph (g) of subsection (2)

who or which provides probate services maintains satisfactory standards of competence and conduct in connection with the provision by them of probate services; and

(b) that the interests of their clients and any beneficiaries entitled under the estate are satisfactorily protected.

(2D) The regulations shall, in particular, make provision—

(a) designed to ensure that bodies and persons providing probate services have satisfactory arrangements at all times in force for covering adequately the risk of any claim made against them in connection with the provision of probate services, however arising;

487

(b) designed to ensure that bodies and persons providing probate services are members of a compensation scheme for compensating persons who have suffered loss in consequence of dishonesty on the part of such bodies or persons or their officers or employees in connection with the provision of probate services;

(c) designed to provide for the efficient administration of estates and to avoid unnecessary delays;

(d) as to the supervision, by persons with such qualifications as may be prescribed, of probate services;

(e) as to the terms and conditions on which bodies and persons providing probate services may provide such services;

(f) designed to avoid conflict of interests; and

(g) as to the handling by bodies and persons providing probate services of their clients' money.")

The noble Lord said: My Lords, I wondered what was going to happen to my amendment and I uttered a little prayer that someone would say that it was out of order in which case I would put it down for the next Report day. I can take this very quickly. I believe the House will agree that it is sensible to have a protective procedure for the public which is roughly similar, though there may have to be differences, to that dealing with probate and conveyancing matters. I said a few minutes ago, repeating what I said in Committee, that maybe the public needs even more protection over the administration of estates than in respect of most conveyancing transactions. One thinks in terms of dishonesty, negligence, delay or incompetence in relation to such matters. I have studied the new clause tabled by the noble and learned Lord. I have tried to compare it with Clause 37 which contains the detailed regulation-making power concerning conveyancing matters. I have made some observations about the possible limitations of that clause. I note that clear regulation-making power, and my proviso.
When one looks at the regulation-making power in regard to the probate services, I do not find it at all clear what the noble and learned Lord the Lord Chancellor could or could not include in those regulations. Perhaps I may give an example. The complaints scheme is given no statutory power. As I see it—and those advising me are of the same view—as the clause now stands it is unlikely that those responsible for the scheme would have the power to require information and documents relevant to any investigation to be furnished to them or the payment of compensation by the provider of probate services.
Schedule 7 was introduced by the noble and learned Lord at the Committee stage. It equipped the conveyancing ombudsman with these specific powers. There is no logic in failing to equip the probate service's complaints scheme with analogous powers. It is for that reason that the amendment seeks to give the regulation-making power to the noble and learned Lord. It would seem to run in parallel with that relating to conveyancing services. I beg to move.
The Lord Chancellor: My Lords, I think I must first explain that I believe this amendment to be slightly misdirected. The regulations in subsection (2A) were intended to relate to a complaints scheme,
488
as has been made clear by my Amendment No. 166. That said, I do not believe that it is necessary or indeed appropriate to give the Lord Chancellor a general regulation-making power. I think it would help if I first emphasise that the area which we are opening up is the preparation of applications for grants of representation in probate. The administration of estates is not subject to a prohibition on who may undertake this work. It is currently done by banks, insurance companies, other trust corporations; indeed anyone may administer an estate for reward. I therefore do not consider it necessary to make provisions in the terms of this amendment in relation to such a small monopoly area as is the probate area. I certainly do not believe, and it would be contrary to general government policy, in introducing regulation where previously no regulation existed.
As I said when moving Amendment No. 60, I am committed to ensuring that the public has proper protection. It is for this reason that I decided that all probate practitioners, other than solicitors, barristers, notaries and the Public Trustee, should be subject to, or a member of, a suitable complaints scheme. This scheme is likely to require that there should be an ombudsman who will have powers to compensate clients of probate practitioners. Banks, building societies and insurance companies are all presently subject to prudential supervision by their appropriate regulatory bodies and I can see no benefit in adding another further unnecessary layer of regulation.
So far as concerns those new approved bodies, I have set out on the face of the statute certain requirements as to conduct and competence with which the new probate practitioners will be required to comply. These relate to a "fit and proper" test, training arrangements for compensating clients in respect of claims made in connection with probate, and satisfactory arrangements to protect clients in the event of ceasing to provide probate business. In addition, these new probate practitioners will also have to belong to a suitable complaints scheme. The Lord Chancellor will not be able to approve a body unless he is satisfied, after advice from the advisory committee and consultation with the President of the Family Division, that it has in force suitable arrangements for training and enforcing compliance with these competence and conduct requirements.
I consider that the proposals in my amendment provide satisfactory consumer protection in respect of the preparation of applications while not imposing unnecessary restrictions on those who already do trustee work, or those entering the market who will be required to be suitably trained and subject to regulation by their "approved body". I hope that in the light of my explanation the noble Lord will consider that the purpose behind the amendment, so far as it is necessary and directed to the probate aspect, has been served by what I have done.
Lord Mishcon: My Lords, I shall obviously have to consult with those advising me on this matter. In the meantime, I ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Lord Chancellor The Lord Chancellor moved Amendment No. 169:
After Clause 44, insert the following new clause:
("Preparation of probate papers etc:
exemption from section 23(1) of Solicitors Act 1974
—(1) The provisions of section 23(1) of the Solicitors Actl974 (preparation of papers for probate etc. by unqualified persons) shall not apply to any person to whom exemption from those provisions is granted by an approved body.
(2) An approved body may only grant such an exemption to a person who is one of its members and who satisfies it—

(a) that his business is, and is likely to continue to be, carried on by fit and proper persons or, in the case of an individual, that he is a fit and proper person;

(b) that he, and any person employed by him in the provision of probate services, is suitably trained;

(c) that satisfactory arrangements will at all times be in force for covering adequately the risk of any claim made against him in connection with the provision of probate services by him, however arising;

(d) that he is a member of, or otherwise subject to, a scheme which—

(i) has been established (whether or not exclusively) for the purpose of dealing with complaints about the provision of probate services; and

(ii) complies with such requirements as may be prescribed by regulations made by the Lord Chancellor with respect to matters relating to such complaints; and

(e) that he has in force satisfactory arrangements to protect his clients in the event of his ceasing to provide probate services.

(3) In this section "approved body" means a professional or other body which is approved by the Lord Chancellor under Schedule (Probate).
(4) The approval of any body under Schedule (Probate) may be revoked under that Schedule.").
The noble and learned Lord said: My Lords, I spoke to this amendment with Amendment No. 160. I beg to move.
Lord Simon of Glaisdale: My Lords, I have only one queston. Subsections (3) and (4) refer to the "Schedule (Probate)". I cannot see where the Schedule (Probate) is properly established in the body of the statute. It may be something that my noble and learned friend can answer immediately, or it may be something on which he would wish to consult with the draftsman.
The Lord Chancellor: My Lords, the answer to my noble and learned friend's question is that the only purpose of the schedule is to say how a body becomes an approved body. Subsection (3) says:
"In this section 'approved body' means a professional or other body which is approved by the Lord Chancellor under Schedule (Probate)".
Subsection (4) says:
"The approval of any body under Schedule (Probate) may be revoked under that Schedule".
That is the only effect the schedule needs to have, and that the way in which it has been done.
Lord Simon of Glaisdale: My Lords, before my noble and learned friend sits down, I am afraid I did not make my meaning clear. A schedule is normally invoked by a provision in the statute itself. At the side of the clause there is a reference to the subsection of the Act which does it. It was to that aspect I was drawing attention.
The Lord Chancellor: My Lords, it was to that aspect that I was seeking to give the answer. The
490
effect of the schedule is to describe an approved body. That is what subsection (3) of the clause does. It says:
"In this section 'approved body' means a professional or other body which is approved by the Lord Chancellor under Schedule (Probate)."
That is the only statutory effect the schedule needs to have. It tells us what is an approved body. That is the way it has been dealt with.
On Question, amendment agreed to.
Clause 45 [Conditional fee agreements]:
10.15 p.m.
The Lord Chancellor The Lord Chancellor moved Amendment No. 170:
Page 36, line 3, after ("agreement") insert ("in writing").
The noble and learned Lord said: My Lords, I should like to move Amendment No. 170 and speak to Amendment No 171.
At Committee state I said I would like to consider the amendments of the noble Lord, Lord Hacking, to require conditional fee agreements to be in writing, and to empower the Lord Chancellor to prescribe information which such agreements should contain. I believe my amendments achieve these purposes. Your Lordships will see that the second of the two amendments provides for the prescribing of requirements rather than information. While the former includes the latter, it also seemed wise on reflection to include the possibility of prescribing, for example, how conditional fee agreements should define success in the client's action. I believe both amendments to be real, if not major, improvements to the clause, and I commend them to your Lordships.
Lord Renton: My Lords, I agree that the first of my noble and learned friend's amendments, that the conditional fee agreement should be in writing, is certainly an improvement; but when he says that the Lord Chancellor should be able to prescribe various requirements, unspecified, in this new and highly controversial departure from the previous practice and etiquette of the Bar in England and Wales, I must say that I do not find his second amendment so welcome.
Perhaps the noble and learned Lord could give us some idea of the kind of requirements which he had in mind when he tabled the amendment. After all, we have in the clause as it stands a certain amount of statutory indication as to what the agreement could or should contain or not contain. Now, in this highly controversial matter we are adding a factor of uncertainty which, speaking for myself, I do not welcome. But I should like to hear what my noble and learned friend has to say about it.
Lord Mishcon: My Lords, perhaps I may add a sentence or two. I believe that the noble Lord, Lord Renton, put his finger on a good description of this fee when he said it was highly controversial. None of us quite knows how it is going to work. I should have thought that when one has something which is highly controversial, when one needs to see how it works out and how it ought to be regulated—indeed, how it may have to be stopped—the requirement is

491
for flexibility, to give this power to make regulations from time time to condition the fee, to limit the rights or to extend them in some way. I should have thought this was a proper amendment. We support it.
The Lord Chancellor: My Lords, I brought these amendments forward as a result of the amendments moved by the noble Lord, Lord Hacking. I am glad that my noble friend Lord Renton approves of the first one.
So far as the second one is concerned, with respect I think the fact that the matter is somewhat controversial is a very good reason for giving the Lord Chancellor power to make additional requirements if that seems to be necessary. It was in that spirit that I decided that it would be wise to accept the principle of the noble Lord, Lord Hacking's amendment. I can see that it could do good to have this power, but I cannot see how it could do harm. The requirements would be additional to the requirements in the statute and, to that extent, might be able to meet elements of doubt that my noble friend had about the matter. It was on that principle that I brought the matter forward. If the noble Lord thinks it is adding a damage to the clause I should be glad to know on what basis. On the contrary, it seems to me to provide a possible defence against any difficulty which may emerge in a situation which my noble friend describes as controversial.
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No. 171:
Page 36, line 8, after ("circumstances") insert—
("(bb) complies with such requirements (if any) as may be prescribed by the Lord Chancellor;").
The noble and learned Lord said: My Lords, I have already spoken to the amendment. I hope that I have assured my noble friend about the matter. I beg to move.
On Question, amendment agreed to.
Lord Ackner Lord Ackner had given notice of his intention to move Amendment No. 172:
Page 36, line 11, leave out subsection (2) and insert—
("(2A) A conditional fee agreement shall be unenforceable so far as it provides for the amount of any fees to which it applies to be increased above the amount which would be payable if it were not a conditional fee agreement.").
The noble and learned Lord said: My Lords, the amendment relates to the new contingency fee. We spent two hours on the subject on the sixth day (the last day) of the Committee stage debate. It is now approaching 10.30 p.m. The House is virtually empty. It would be inappropriate to address the House at any length. It would be even more inappropriate for me to seek to divide the House on an issue as important as this. I do not therefore propose to move the amendment. I shall return to it on Third Reading.
[Amendment No. 172 not moved.]
[Amendments Nos. 173 and 174 not moved.]
The Lord Chancellor The Lord Chancellor moved Amendment No. 175:
Page 36, line 22, leave out subsections (5) and (6) and insert—
("(5) Any such order shall prescribe the maximum permitted percentage for each description of specified proceedings.
(6) An agreement which falls within subsection (2) shall be unenforceable if, at the time when it is entered into, the percentage specified in the agreement exceeds the prescribed maximum permitted percentage for the description of proceedings to which it relates.").
The noble and learned Lord said: My Lords, the amendment is intended, in the light of the discussions that we have had, to improve the clause. Subsection (5) of the clause as drafted empowers the Lord Chancellor to prescribe maximum permitted percentages by which the lawyer's fee under a conditional fee agreement may be increased.
Subsection (2) requires any increase to be stated in the agreement. Since the power in subsection (5) is permissive, it might be argued that where no maximum has been prescribed, it is left open to the lawyer to agree an unlimited increase and that the agreement would then be rendered enforceable by subsection (3). In fact, the Lord Chancellor could effectively prevent any such development by prescribing a maximum percentage increase for every category of specified proceedings; nevertheless, I think it right to put the matter beyond doubt, by substituting for subsection (5) an absolute requirement that wherever a conditional fee agreement is to be enforceable, there must be a maximum permitted percentage increase.
The amendment to subsection (6) is purely consequential, removing the impression, which might otherwise become misleading, that an increase might be permitted where no maximum had been laid down. I beg to move.
Lord Mishcon: My Lords, I wonder how the noble and learned Lord thinks that the amendment could, in practice, be carried out. I would understand it completely if the profession were subject to a rate card which said precisely how much a client would be charged. I could understand it if there were no such thing as an agreement between solicitor and client as to the fees that should be charged. I could understand it if it were a rule, which it certainly is not, that all clients should be charged on precisely the same basis—the wealthy the same as those who are fairly comfortably placed, and the fairly comfortably placed in the same way as the poor client. All that I could understand if one were thinking in terms of an order which laid down a percentage as a maximum; but, bearing in mind the way in which the profession works, I do not see, with respect, how the provision has any practicability at all. If I have erred, I know that the noble and learned Lord will deal with me gently. However at the moment I do not see how this can be put in a statute because as I see it the provision has no practical outcome at all.
The Lord Chancellor: My Lords, my understanding is that the clause already in the Bill allows a percentage increase on the fee that would otherwise be payable, assuming that there were no conditional fee agreement attached to it. What was in the Bill

493
allowed a maximum permitted percentage. I wish to be clear that no conditional fee agreement shall be enforceable unless it is within that category. In other words, if no additional fee is allowed, the agreement is unenforceable if an additional fee or additional percentage is stipulated for. I hope that I have made that clear to the noble Lord. A stipulation is allowed for, for an additional fee, but a maximum percentage is allowed for it. I indicated that I regarded it as likely that it would be small, and not a big percentage uplift.
In this amendment I provide that:
"Any such order shall prescribe the maximum permitted percentage for each description of specified proceedings".
In other words every specified proceeding must have a maximum attached to it. The second point that I provide in the amendment is that:
"an agreement … shall be unenforceable if, at the time when it is entered into, the percentage specified in the agreement",
is more than the permitted maximum. In other words it makes absolutely clear that the permitted maximum cannot be exceeded in any case and still retain the enforceability of the agreement.
Lord Mishcon: My Lords, with the leave of the House and before the noble and learned Lord sits down, I understand that. It may well be that I ought to have raised this matter at Committee stage. I am anxious that before the Bill leaves the House everybody is apprised of the fact that we have allowed the Bill to go from this place in an orderly and practical way. If every bill of costs of a solicitor is taxed, it will impose a terrific burden upon the taxing office of the court, quite apart from imposing hardship upon practitioners who may have to wait a long time before they know what fee is payable by the client. What beats me at the moment is this. A fee agreement may presumably say, "Because I have entered into an arrangement with you, the client, to act for you on this matter and it is upon the conditional fee basis, if you are successful I am to be paid a sum which is equivalent to the amount of costs that I would normally have received, plus x per cent.".
I just do not know how one regulates the situation from there. Comes the day when the client is successful. All he has to do, unless every bill is taxed, is presumably to say, "Well, let me see, I would have charged you normally £1,500". He has to do this at the end of the day, not at the beginning. "My agreement says that I am entitled to charge you a percentage over and above that". The poor client does not know whether the £1,500 is a just fee or an unjust fee unless he taxes. Normally the relationship of solicitor and client is such that if there is no percentage arrangement and limit, the client agrees the fee as being reasonable. Only in very rare cases is it taxed. But how would one know whether the law was being complied with? I am not talking, I hope, about the average practitioner. All a practitioner has to do and may do is to put an outlandish sum in regard to what he says he would normally have charged and then obtain an excess merely by saying that he has complied with the maximum percentage and all he is going to do is to add x per cent, to that. I do not know how anyone will
494
regulate this matter—that is my difficulty—unless every conceivable bill is taxed to see whether the solicitor has properly complied with the law; namely, that he has in fact charged only the proper charge that he would have made theoretically if this agreement had not existed, and then added a percentage to it. That is my difficulty. I apologise if I should have raised this matter in Committee when the debate took place.
10.30 p.m.
Lord Renton: My Lords, before my noble and learned friend replies I must intervene as I shall not be able to address your Lordships later. I now rise to make the rather simpler point that I was about to make when I wanted the noble Lord, Lord Mishcon, to get in before me. First, I am opposed to there being any kind of uplift percentage increase. Secondly, although it is not stated in the clause, I assume that this means a percentage increase over what would otherwise be scale fees as costs on taxation. But in any event I think that if there is to be an uplift, the maximum permitted percentage should of course be limited, if necessary by order, as the amendment of my noble and learned friend indicates. Therefore, I should have thought that if we are to have uplift (which I am strongly opposed to) subsection (5) is rather necessary. It follows therefore—this is the sanction to enforce subsection (5)—that if there is to be an uplift, if the uplift is exceeded it should be unenforceable, as described in the proposed subsection (6) of the amendment of my noble and learned friend. I say without prejudice to any discussion that we may have at a later stage on whether there should be a maximum permitted percentage that, if there is to be one, the proposals of my noble and learned friend ought to be accepted.
Lord Simon of Glaisdale: My Lords, as my noble and learned friend shows every sign of asking leave to speak again, I shall make one short point that perhaps he can deal with. Why is the word "unenforceable" used in this amendment and not the word "void"?
The Lord Chancellor: My Lords, the amendment deals with the situation that arises if the agreement is not in accordance with the prescription. As I understand the law at present, it states that a conditional fee agreement is unenforceable. Therefore I seek to maintain that state of the law in respect of any conditional fee agreement which does not comply with the requirements of the clause.
I am grateful to my noble friend Lord Renton for his support on these amendments, which I believe to be right. These amendments do not affect the basis of the clause except to make it clear that there will always be a specified maximum. That is without prejudice to the question of whether any uplift should be allowed at all. If an uplift is allowed it should not exceed a specified maximum in any case. If it exceeds the specified maximum the agreement is unenforceable.
So far as concerns the point raised by the noble Lord, Lord Mishcon, what I have in mind is that the agreement should specify that the fee is conditional

495
and may be increased over the normal fee that would have been payable had the fee not been under a conditional fee agreement. The noble Lord is right to say that in most cases it would be possible to ascertain and determine the fee without resort to taxation. The rights of the parties will be agreed between them. The solicitor may say, "The normal fee would be x. We have agreed an uplift of 5 per cent, which is applicable in the circumstances. Therefore the fee is x x 105/100". If there is a dispute about x—and I hope that disputes would be the exception—that would be determined by the taxing officer in the normal way. The solicitor would submit his account for taxation. If x was disputed, x would be determined and the percentage added. I do not see the difficulty in that.
The fee agreement could specify the fee and dispense with taxation altogether, but that would be most unusual. Normally the fee would be one that would arise in the normal course of events and it would be agreed that there should be an addition to the ordinary fee for the reasons which I explained when we dealt with the matter in Committee.
Lord Ackner: My Lords, before my noble and learned friend sits down I should like assistance in order to ascertain to what extent the client is protected. The client does not know the difference between what would result from taxation and what would result from an ordinary agreement.
In the debate my noble and learned friend was at pains to say that he was anxious that the damages which justice awarded to the successful plaintiff should come to that successful plaintiff virtually untouched. How can that be the case unless the client is given clear statutory protection so that he knows that he has, and must be told that he has, the option in every such agreement to go for taxation? It would be quite improper in such a situation for a fee to be agreed at the outset which might have little or nothing to do with the amount of work done ultimately, particularly if there is a settlement. We had a substantial debate on how the conflict might arise between the interest of the client and that of the solicitor as to whether there should be a settlement. If there is to be proper protection for a client in that highly undesirable situation, there must be some statutory obligation to inform the client that in every such agreement he is entitled to have the costs taxed, if he is so minded, before the percentage uplift—which I hope will never occur—is applied to the Bill.
The Lord Chancellor: My Lords, with the leave of the House, I am not sure that that issue arises under the amendment for which I have sought your Lordships' approval. However, as I understand it, in litigation a client is always entitled to have his account taxed. I do not propose any change in that respect. All I say is that the amount that would be awarded on taxation under a conditional fee agreement could be increased by not more than the specified percentage.
The noble Lord, Lord Mishcon, asked how that can work unless there is a taxation in every case.
496
The answer is that it would work in exactly the same way as in other cases in which there is no taxation; in other words, the client would accept the fee proposed under the agreement by the solicitor. If he disputes it, the remedy is by taxation. That applies as well to this as to the ordinary case.
On Question, amendment agreed to.
[Amendment No. 176 not moved.]
The Lord Chancellor: My Lords, I call Amendment No. 177.
Lord Simon of Glaisdale: Not moved.
The Lord Chancellor: My Lords, it may help my noble and learned friend Lord Simon of Glaisdale if I said that I was willing to accept his Amendment No. 177.
Lord Simon of Glaisdale: My Lords, I am not sure whether I am in order or not. I thought that my noble and learned friend called Amendment No. 177 and I said, "Not moved".
Lord Renton: My Lords, on a matter of procedure, I understand that my noble and learned friend the Lord Chancellor has power to move the amendment himself, if he wishes, in order to accept it. If he does not, I shall.
The Lord Chancellor: My Lords, I am not sure whether my noble and learned friend and I are at cross-purposes. I am certainly willing to accept his amendment. I should much prefer it if he were to move it himself, but I am perfectly happy to do so.
Lord Simon of Glaisdale: My Lords, in that case I shall move the amendment.
The Lord Chancellor: My Lords, I shall be extremely glad to accept the amendment.
Lord Simon of Glaisdale Lord Simon of Glaisdale moved Amendment No. 177:
Page 37, line 5, leave out subsection (11).
On Question, amendment agreed to.
Clause 47 [Regulation of right of Scottish and Northern Ireland lawyers to practise in England and Wales]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 178:
Page 37, line 17, leave out from ("litigation") to end of line 19.
The noble and learned Lord said: My Lords, I bring forward this amendment to give effect to an undertaking that I gave to my noble friend Lord Coleraine on the sixth day of Committee. Indeed, my amendment is identical to that which my noble friend brought forward on that occasion. Parliamentary counsel advises me that his drafting cannot be improved upon. I am grateful to my noble friend for bringing forward this amendment and for his patience.
I gave an undertaking in the White Paper to make regulations which will ensure that United Kingdom lawyers have rights to practise in other parts of

497
the United Kingdom at least equivalent to those available to lawyers from other EC countries. The clause as drafted, however, goes further in making provisions for such cross-border practice than the EC directive did with regard to inter-state practice. That was not my original intention and I am, therefore, bringing forward this amendment to make the clause comply with the policy that I had already indicated. I beg to move.
Lord Coleraine: My Lords, I am grateful to my noble and learned friend whose amendment is clearly every bit as effective as the one that I moved in Committee.
On Question, amendment agreed to.
Lord Simon of Glaisdale Lord Simon of Glaisdale had given notice of his intention to move Amendment No. 179:
Page 37, line 27, leave out subsection (3).
The noble and learned Lord said: My Lords, on this occasion I do not move the amendment.
[Amendment No. 179 not moved.]
[Amendment No. 180 not moved.]
10.45 p.m.
Lord Simon of Glaisdale: My Lords, I beg to move that consideration of the Bill on Report be adjourned.
It is most important that noble Lords should have control of the business. It is now virtually a quarter to eleven. It is not for the government business managers to fix a target—Amendment No. so-and-so—and threaten to vote down any attempt to rise earlier. Already perhaps the most important amendment on the Marshalled List—that of my noble and learned friend Lord Ackner relating to contingency fees up-lift—has been withdrawn owing to the lateness of the hour.
In view of the fact that so many amendments have not been moved and have been postponed virtually until Third Reading, I do not think that we shall have much difficulty in completing the business on the third day of Report. However, since your Lordships and not the Government's business managers are in control of your business, I submit that noble Lords should say that at a quarter to eleven enough is enough.
Moved, That further consideration on Report be now adjourned.—(Lord Simon of Glaisdale.)
The Lord Privy Seal (Lord Belstead): My Lords, the Government would have no objection at all to finishing now. I think that the House has laboured long and hard. I look at other noble Lords—at my noble and learned friend who is in charge of the Bill and whose Bill it is, at the noble Lord, Lord Mishcon, and at the noble Baroness, Lady Seear. They may like to say a few words. The Government would be particularly happy to accede to what the noble and learned Lord, Lord Simon, suggests.
Lord Hacking: My Lords, perhaps I may first put one point. I have stayed in your Lordships' House especially to thank the noble and learned Lord for Amendment No. 183. I should be disappointed not
498
to be able to express those thanks this evening. I think that we have perhaps only about two minutes more of business left.
Lord Ponsonby of Shulbrede: My Lords, I think that we agreed to go to Amendment No. 183. It would only take a short time to get there and it might be a good idea to finish that tonight.
Lord Simon of Glaisdale: My Lords, it is a matter for the House. The noble Lord the Lord Privy Seal accepted that if it were the view of the House we should adjourn now. I think the general feeling of the House is that we should go on up to Amendment No. 183. In that case, I beg leave to withdraw my Motion.
Motion, by leave, withdrawn.
Clause 48 [Right of barrister to enter into contract for the provision of his services]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 181:
Page 38, line 3, leave out ("with his client").
The noble and learned Lord said: My Lords, we discussed this clause on the sixth day of Committee. With the agreement of the House, I hope it will be helpful if I speak to this amendment and to Amendment No. 182 at the same time. The purpose of this clause is to abolish any rule of law which prevents a barrister from entering into a contract for the provision of his or her services as a barrister. During our discussion on the sixth day of Committee, my noble and learned friend the Master of the Rolls indicated that he thought that some doubt existed as to whether "client" in the clause as originally drafted included lay client as well as professional client. The government amendment is designed therefore to remove any question of doubt. It simplifies the provision, so that it would be clear that any rule of law preventing a barrister from entering into a contract for the provision of his services as a barrister is abolished.
As I understand the amendment tabled by my noble friend Lord Renton and the noble Lord, Lord Meston, it seeks to restrict the ability to make contracts to making contracts with barristers' professional clients. Such an amendment defeats the object of the clause. Its purpose is to ensure that there are no rules of law preventing contracts. Clause 48(2) makes clear that it will remain open to the Bar Council to make rules which restrict a barrister's right to enter into contracts and I would argue that such rules would be the appropriate place for restricting the making of contracts to a barrister's professional clients.
The result of that is to make the arrangements completely a matter for the General Council of the Bar to regulate. That is the purpose of the clause. However, at the moment I am dealing only with Amendment No. 181. It is clear that if Amendment No. 181 is agreed to, Amendment No. 182 is pre-empted. I therefore thought it right to make clear that that would be the effect. I beg to move.
Lord Renton: My Lords, to me it is absolutely unthinkable that a barrister could enter into such a

499
contract as this, which is not possible at the moment and has never been done, except with a professional client. For him to deal direct with a lay client would be absurd.
My noble and learned friend says, "Ah, but the Bar Council can ensure that. That is all right". But what are we bothering to enact if the first subsection says that there can be a contract with any client and then it is understood that the General Council of the Bar will restrict it to a professional client?
We are proposing provisions in legislation which are not necessary and only cause doubt and confusion. However, if we are to have this measure, we should make it abundantly plain by keeping the words "with his client" and adding my one word "professional" to make it clear that it is only with the professional client that any such contract could be made, if at all, and subject to what the Bar Council says.
Baroness Seear: My Lords, I did not speak when the noble Lord, Lord Simon of Glaisdale, made his proposal that the House do adjourn. I make the point completely out of order, but it seems to me that the amendment raises a matter of very considerable importance which ought to be discussed in a fuller House with people more wide awake than they are at this time. I do not know whether there is a way out of this difficulty, but I think it most unfortunate that we proceed on this matter at such a late hour in an empty House.
Lord Simon of Glaisdale: My Lords, I entirely agree with what the noble Baroness has said. However, with a view to further discussion, perhaps I may ask this question on Amendment No. 181. Your Lordships discussed the immunity rule earlier, I believe at Committee stage. Under the immunity rule an advocate has immunity for his performance in court. He has that immunity because he owes a supervening duty to the court and it is highly undesirable that he should be looking over his shoulder to see whether he might be criticised, litigated against, by his client. The case of Rondel v. Worsley was a warning. But that is as far as the law gives immunity. If a lawyer is advising, other than in performance in court, he has no immunity. I am not sure what is the position with regard to solicitors, but that is the position with regard to counsel.
In view of the point that the noble Baroness has made—that this matter ought properly to be considered at a more suitable hour—my question is this. Would it be possible under this amendment for any lawyer to stipulate in the contract that he should not be liable in negligence or in breach of contract? Obviously that would be subject to the control of the Bar Council. However, leaving that matter aside, would such a stipulation be possible?
Lord Hutchinson of Lullington: My Lords, I have a certain amount to say on this matter. I do not know whether the noble Lord the Leader of the House can indicate whether we can defer further
500
discussion about this or whether we are now committed to going on?
Lord Belstead: My Lords, I am advised that one of your Lordships may propose the adjournment of this particular amendment, and then we propose the adjournment of the Report stage. But, for once, it is one of those occasions where I do not think that I can help the House very much further. I have no objection to ending now, but it is a matter for your Lordships.
Lord Renton: My Lords, I wish to respond to the generous offer made by my noble friend the Leader of the House. I beg to move that further consideration of Amendment No. 181 be adjourned.
On Question, Motion agreed to.
Lord Renton: My Lords, I beg to move that further consideration on Report be now adjourned.
Moved accordingly, and, on Question, Motion agreed to.

Planning (Consequential Provisions) Bill [H.L.]
A message was received from the Commons that they concur in the Lords Message of Monday last.
House adjourned at six minutes before eleven o'clock.