Courts and Legal Services Bill [H.L.]

HL Deb 22 February 1990 vol 516 cc389-443

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 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 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 moved Amendment No. 104: Page 19, line 17, after ("proceedings") insert ("granted").

On Question, amendment agreed to.

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 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 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 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 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 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, 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.

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 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 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 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 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 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 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 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 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.

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 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 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 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 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 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.

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 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 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 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 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 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 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.

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 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 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 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 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 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 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 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 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 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"— 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—

1. (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;
2. (b) to have in force qualification regulations which have been properly approved for the purposes of section 24; and
3. (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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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.

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 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 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 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 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 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 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 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 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 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 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 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 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.