Lords Sitting of 25 January 1990

Preamble
The House met at three of the clock (Prayers having been read earlier at the Judicial Sitting by the Lord Bishop of Leicester): The LORD CHANCELLOR On the Woolsack.
Viscount Mills Viscount Mills—Sat first in Parliament after the death of his father.

School Terms and Exams: Timings
Lord Orr-Ewing Lord Orr-Ewing asked Her Majesty's Government:
Whether they will reconsider the timing of the school terms and school examinations so that the summer term is restored to 12 weeks and the winter term is reduced from the current 14 or 15 weeks.
Viscount Davidson: No, my Lords, legal powers to determine the dates of school terms lie with local education authorities or school governors. Responsibility for the timing of school examinations rests with the GCSE examining groups and the GCE examining boards.
Lord Orr-Ewing: My Lords, I thank my noble friend for that rather negative reply, but the present system is certainly very higgledy-piggledy. Exams will start in mid-May; the whole of the summer term, from both an academic and a sporting aspect, will be increasingly disrupted. The September term of 15 weeks is very long for schoolmasters and pupils who become over-tired. There is much interest in this point from examinees, examiners, parents and the moderators, who are all affected. In other countries they handle these matters rather better. Could not the Government take a little initiative and collect these groups together to see whether there is a more orderly and systematic arrangement?
Viscount Davidson: My Lords, the Government appreciate the need for coherence in the pattern of school terms and holidays, but see no advantage in imposing dates nationally. Coherence is being achieved where it matters most, at the local level, where local education authorities have powers to determine the dates of terms and holidays for county and controlled schools, which constitute about 80 per cent. of all maintained schools.
Baroness Phillips: My Lords, is the Minister aware that a few years ago research was carried out on the possibility of a four-term year? Not only did the universities, teachers and parents agree, but at that time even the Government agreed. Why has it never been revised? Perhaps this is the moment to change, now that the noble Lord has raised the matter.
Viscount Davidson: My Lords, that would be a major change with implications for society generally. We do not think now is the right time to contemplate
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its introduction. However, I can tell the noble Baroness that there is an initiative on the part of certain LEAs in the Midlands to have a test with a four-term year. Our own view is that a piecemeal introduction of this change is likely to give rise to tensions and discontinuities both within and between areas; but we shall follow that trial with interest.
Lord Peston: My Lords, I hate to say anything in support of the Government; but I understand that the Government have been consulting on these matters and, having issued a draft circular, intend issuing a final circular on the relevant considerations of the sort that the noble Lord raised. Can the Minister tell the House whether the final version of the circular outlining the measures that local authorities should be taking into account will be issued in the near future, or is the pressure of work in the DES on other nonsensical matters preventing movement on this very important aspect?
Viscount Davidson: My Lords, I can tell the noble Lord that this circular, which has not yet been issued in its final form, will contain no new guidance on the length or arrangement of the school year.
Lord Airedale: My Lords, perhaps the Minister will turn his attention to the spring term. With the tendency of school holidays to wrap themselves around Easter, and with Easter leaping about the calendar like a gazelle, does this not play havoc with the arrangements for the spring term?
Viscount Davidson: My Lords, I am aware of the noble Lord's views about Easter and its continuous movement. However, I have to say that that will still be a matter for the local education authorities.
Lord Beloff: My Lords, does my noble friend the Minister agree that the effect the summer term has of lowering the status of cricket as our national game is due almost entirely to the convenience of the examiners, and the examining boards being given preference over the convenience of pupils and parents? Should not some balance be introduced into the equation?
Viscount Davidson: My Lords, the Government are very much aware of the concern expressed on that particular matter. Although it is too late to change the timetable for 1990, I understand that GCSE examining groups are looking very carefully at the position for 1991 and beyond. Perhaps I may say that with the exams starting so early and having disposed of those, many pupils would stay on to play more cricket than they have before.
Lord Ritchie of Dundee: My Lords, is it not to the point that the early beginning of exams in May started with the CSE, and with the CSE and the GCE now merged into the GCSE, instead of having two separate exams, we have only one? Therefore —in theory at any rate —it should not take so long to mark, correct and produce the results. Is this not to the point, and might it not make the examination correcting period shorter?
Viscount Davidson: My Lords, the noble Lord is quite right, but that is a matter for the GCSE examining groups, and I am sure that they are looking into it at the moment.
Lord Annan: My Lords, will the noble Viscount draw the attention of the Secretary of State to the very reasonable and important Question put by the noble Lord, Lord Orr-Ewing? I am sorry that the Government, having rightly intervened to impose a national curriculum upon schools, are now so chary of also intervening on this matter. Will he bear in mind that this matter, after 1992, is quite likely to be raised on a European level?
Viscount Davidson: My Lords, I shall certainly draw the attention of my right honourable friend to what has been said in this House this afternoon. I shall certainly not be chary about doing that.
Lord Glenamara: My Lords, whatever the Government do, I hope they will do nothing to shorten the winter term or to break it up. As anybody who has taught in a school will confirm, that is the term in which the solid hard work is done.
Viscount Davidson: My Lords, again, I shall draw that to the attention of my right honourable friend.

Portable Antiquities Review
3.9 p.m.
The Earl of Perth The Earl of Perth asked Her Majesty's Government:
When they expect to finish receiving replies to the review on portable antiquities questionnaire which was issued by the Department of the Environment and the Welsh Office in February 1988.
The Parliamentary Under-Secretary of State, Department of the Environment (Lord Hesketh): My Lords, I am sure my noble friend is aware that the review on portable antiquities has been completed. The responses to the consultation document issued by my department and the Welsh Office in February 1988, were placed in the Libraries of both Houses of Parliament on 8th November 1988 where they have been available for consultation.
The Earl of Perth: My Lords, I thank the Minister for his reply. I was totally unaware that the answers to the questionnaire had been placed in the Printed Paper Office in November 1988. I was one of the people who answered the questionnaire. May I ask the Minister two questions? First —and this is about treasure trove in the main —will the Minister consider passing the answers to the questionnaire to all who replied in the early days, or at least advise them that the answers to the questionnaire are available? My second question is this: have the Government made any commentary on the answers either in the questionnaire or with it? For example, have they explained why they do not intend to introduce any change in the treasure trove laws except as regards scheduled sites?
Lord Hesketh: My Lords, in part the responses were based on the premise of permission being given that the document should be placed in the Libraries of Parliament. In this sense a question-mark was raised which was answered by the department. The answer was that those who required not to be named should not be named. We believe that there is a strategy for moving forward on this issue. Previous Ministers at the Department of the Environment have endorsed the policy that we should strengthen the legislation with regard to scheduled sites when a legislative opportunity arises.
Baroness Birk: My Lords, according to the Minister the responses were placed in the Library in November 1988. The Minister did not refer to that fact when he was questioned on this matter in the debate which took place on 13th December last year. Why has no action been taken on the matter, especially as the Secretary of State is reluctant to schedule additional designated sites? That has been demonstrated in the case of the Rose Theatre.
In these circumstances will the Minister say how the Government expect major archaeological finds and portable antiquities to be saved without any action being taken or any reference being made by them to the fact that the responses have been received? Does the Minister not agree that once responses have been received one then expects action? Can he say whether the Government are determined to do as little as possible or nothing at all for as long as possible?
Lord Hesketh: My Lords, I am sure that the noble Baroness will not be surprised when I say that the Government's position is quite the reverse of what she suggested at the end of her remarks. In order to achieve the best response to the questionnaire originally issued, we offered a discretion for those who required it. However, I refer the noble Baroness to my earlier answer when I said that when we have a suitable opportunity for legislation we shall take advantage of it.
Lord Strabolgi: My Lords, can the Minister say what is the point of putting a document of this kind into the Library if nobody knows that that has been done? Does he not agree that it would have been much better if it had been arranged for a Question to be put down which could then have been answered by the Government? That would have been put into the parliamentary report and then everyone would have known that the document was available.
Lord Hesketh: My Lords, it is fair to say that one of the great contributions that your Lordships' House makes to the country which we all live in and enjoy is that the Question that has been put before the House this afternoon provides the very opportunity to which the noble Lord, Lord Strabolgi, referred.
Lord Cledwyn of Penrhos: My Lords, will the Minister agree that since 1979 only five historic town centres of archaeological importance have been designated? I do not wish to appear to be unduly sensitive, but is he aware that none of these is in Wales? Will he look at the matter very carefully?

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Does he agree that there are in Wales many historic town centres which should be looked at carefully? Will he accept my assurance that there are important archaeological finds to be made in them?
Lord Hesketh: My Lords, I am absolutely certain that the noble Lord, Lord Cledwyn, will accept my promise that I shall investigate the matter that he has drawn to the attention of your Lordships' House this afternoon. I hope that in some way I shall be able to satisfy his request.
Lord Cledwyn of Penrhos: My Lords, I have complete confidence in the noble Lord.
The Earl of Perth: My Lords, I do not believe that the noble Lord answered one part of my original Question. It was this: will the Minister not only consider that your Lordships should know that the answers to the questionnaire are in the Printed Paper Office of this House, but will he also advise those who answered the questionnaire, and not on a discretionary basis, that the answers are available on demand?
Lord Hesketh: My Lords, I can give the noble Earl the assurance that he requires. We can make available what he requires to those who require it.

Tourist Industry: Training
3.15 p.m.
Lord Gainford Lord Gainford asked Her Majesty's Government:
What action is being taken to encourage more training in the tourism industry.
The Parliamentary Under-Secretary of State, Department of Employment (Lord Strathclyde): My Lords, the employment department works with other government agencies to encourage the tourism industry to train staff to their full potential in order to increase the quality of service and to attract and retain new recruits.
Lord Gainford: My Lords, I thank my noble friend for that Answer. Can he say whether he has any information as to the ways in which the Training and Enterprise Council can help tourism? Can the Minister further say whether he has any information as to whether schools are being advised that certain colleges are offering degrees in travel and tourism? I know that Newcastle Polytechnic is one such college. There is another qualification known as COTAC, which is the certificate of travel agents' competence.
Lord Strathclyde: My Lords, it is quite right to say that the TECs are at the centre of the Government's policy for the future delivery of training. It is important that the tourism industry grasps this opportunity and ensures that its training needs are a prominent feature of all such TECs. My noble friend mentioned a couple of qualifications that can be received from universities and polytechnics. I am very glad to say that these are increasing. In March
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I shall be going to Sheffield Polytechnic to launch a new course on tourism and travel.
Baroness Turner of Camden: My Lords, can the Minister tell the House what encouragement ABTA is giving to its member firms to encourage further training in the industry? Can he further say how much attention is being paid to language training?
Lord Strathclyde: My Lords, it is for ABTA to advise its members on training. Whenever the Government meet representatives from that organisation we ask them to encourage their members to train their personnel as effectively as possible. That includes language training, which is a key to the service which we provide to overseas visitors.
Lord Hunt: My Lords, does the Minister not agree that the tourism industry has an important role to play in the matter of conserving the countryside, including the disposal of litter? Can he tell the House whether that aspect of the responsibility of the tourism industry is included in the training programmes?
Lord Strathclyde: My Lords, the noble Lord is quite right in that preservation of the beauty of the countryside and the eradication of the litter problem are extremely important. He will know that there is a Bill before another place to help deal with those problems. The noble Lord ingeniously managed to bring that question into the Question on the Order Paper dealing with training. I say to him that aspects of environmental concern are brought into tourism programmes in schools and colleges.
Lord Molloy: My Lords, will it be possible for the Government to contact the various all-party groups which have liaison with nations almost all over the world? These groups can certainly help the tourism industry. If a connection were made between the tourism industry and the all-party groups, who are so knowledgeable, that would help to make more information available for the tourism industry.
Lord Strathclyde: My Lords, there is a variety of organisations and committees which represent Britain abroad. Any closer links that they develop with their overseas counterparts are to be welcomed.
Lord Dormand of Easington: My Lords, I refer to the question asked by my noble friend Lady Turner. Will the Minister agree that the Association of British Travel Agents has done a great deal towards training in the tourism industry in recent years? Will he further agree that the organisation continues to place great emphasis on training? Can he give an assurance that when ABTA asks the Government for assistance from time to time they will be ready to consider any proposals which it suggests?
Lord Strathclyde: My Lords, the proof that ABTA sets great importance by the quality of its training is that it offers some of the cheapest holidays in the whole of Europe. As for its requests for help with training, the department offers an enormous variety

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of schemes, such as Employment Training, YTS and the new TEC initiatives, which members of ABTA are encouraged to use.

Business
Lord Denham: My Lords, it may be for the convenience of the House if I announce that the Committee stage of the Courts and Legal Services Bill will be adjourned at about 7 p.m. for about an hour and that during the adjournment the Report stage of the Trade Union Act 1984 (Amendment) Bill will be taken.

Motor Trade (Consumer Protection) Bill [H.L.]
3.21 p.m.
Lord Ezra: My Lords, I beg to introduce a Bill to make provision for effective enforcement of the law relating to the supply of unroadworthy motor vehicles and trailers and the alteration of vehicles so as to be unroadworthy; and to provide powers for regulating the manner and cicumstances in which vehicles are supplied, repaired and serviced, including powers to make provision for the recording of mileage information. I beg to move that this Bill be now read a first time.
Moved, That the Bill be now read a first time.—(Lord Ezra.)
On Question, Bill read a first time, and to be printed.

Happisburgh Lighthouse Bill [H.L.]
Read a third time, and passed, and sent to the Commons.

Procedure of the House: Select Committee
The Chairman of Committees (Lord Aberdare): My Lords, I beg to move the Motion standing in my name on the Order Paper.
Moved, That the Lord Wigoder be appointed a member of the Select Committee. —(The Chairman of Committees.)
On Question, Motion agreed to.

Courts and Legal Services Bill [H.L.]
3.22 p.m.
The Lord Chancellor (Lord Mackay of Clashfern): My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved, That the House do now again resolve itself into Committee. —(The Lord Chancellor.)
On Question, Motion agreed to.
House in Committee accordingly.
[The CHAIRMAN OF COMMITTEES in the Chair.]
Clause 14 [The statutory objective and the general principle]:
Lord Rawlinson of Ewell Lord Rawlinson of Ewell moved Amendment No. 79:
Page 12, line 21, leave out ("development") and insert ("supervision").
The noble and learned Lord said: The grouping of amendments that now follows in my name, Amendments Nos. 79, 82, 83 and 84, was suggested by me. I do not propose to move Amendment No. 83. The purpose of the amendments is to limit the advisory committee, if there is to be one, to supervising the duties of proper professional bodies manned by independent persons of learning in the law.
We now come to Part II of the Bill —the most important part, in the view of many of us. It involves constitutional shifts in the balance between the executive and the judiciary and introduces the executive into fields hitherto left to the judiciary and to the independent legal profession. In the United Kingdom there is no separation of powers by writ. It is a delicate balance to maintain the principle, not only of the independence of the judiciary but also of the right of the judiciary to control procedure and practice within the courts without interference from the executive. That principle should commend itself to every quarter of the Committee.
This House, if I may say so with respect, has a particular role in matters of constitutional shifts. High Court judges can be removed only by a resolution of both Houses of Parliament. Within this House there is a Judicial Committee which is the final Court of Appeal in the land. Among us there are the judges. We have the advantage of their participation in our debates. This House has a special responsibility to ensure the balance between the powers of the executive, the rights of Parliament and the independence of the judiciary. They are subjects of great importance.
Also in this House we have a Minister who is in the traditional but anomalous position of being a judge but being also a party politician, a member of a Cabinet expressing party policy which is, in this Administration, as I understand it, market philosophy. During the 35 years that I have been a Member either of this Chamber or of another place there have been five such Ministers. The late Lord Gardiner, about whose death the week before last we sadly read, and of whom I was a colleague and a friend, was, if I may say so, a radical to the tips of his fingers. He was a great law reformer. But I have no doubt that he would have rejected the party policy of the Administration to which he belonged, which was indeed radical enough, if it clashed with the rights and duties for which he held himself responsible; namely, the rights and duties of the judges and of an independent legal profession.
The late Lord Elwyn-Jones was a member of a similar radical Administration. On this side of the Chamber I think of Lord Kilmuir and Lord Dilhorne and of my noble and learned friend Lord Hailsham. Those officers holding this great office of state would not have allowed there to be introduced into such matters the party political philosophy of the

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Administration to which they belonged. It appears, however, that at the present time this party philosophy has prevailed.
Clause 14, to which I am moving amendments, introduces a statutory objective in respect of the law, an objective which has never hitherto been considered necessary. I refer to a government body to develop —"develop" is the word —advocacy, conveyancing, probate and to give attention to training and education in law. Clause 16, which we shall come to debate later today, provides the machinery whereby this novel need expressed as the objective in Clause 14 shall be met through an advisory committee, a government appointed body.
Clause 14 must presuppose that such a body is necessary. It presupposes that such a body is appropriate to be appointed by the executive and to be therefore under executive control. It presupposes the indequacy of the past; the inadequacy, I suppose we have to say, of the past advocates, the past solicitors and of the past judges, all of whom apparently must have been under-trained because they did not have the great advantage of what is proposed in Clause 14.
One has only to think of some Members of this Chamber. I regard the noble and learned Lord, Lord Shawcross, as the advocate whom I most greatly admire. I see the noble Lord, Lord Goodman, in his place. He is a solicitor whose expertise I most admire. I think of the noble and learned Lord, Lord Denning, who is still with us but is not in his place today. None of them apparently had the advantage of this new government-appointed committee which will somehow take on a new task to make those who come thereafter much better advocates, much better solicitors and much better judges than those we have at the present time.
It is said that it is never too late to improve and that one can always make things better. Why not establish a system to teach new dogs new tricks? If this paternal Government decided upon such a course of action one would expect them to seek out the best teachers, the greatest professors and the most learned of lawyers and give them the duty to develop, for example, the budding noble and learned Lords, Lord Shawcross and Lord Denning, and the noble Lord, Lord Goodman. But the matter has apparently been left to be decided under the machinery proposed, whereby persons totally ignorant of the law and totally unschooled in the science of the law will form the majority of those assembled to develop the best practice of the law.
I suppose that the following is not an irrelevance; there must have been some reason for it. I speak of the practice that over the years this Chamber has adopted of referring to judges as "noble and learned". Perhaps we should now abandon that practice. However, whether we like it or not, law is a learned science. Lawyers may not be popular, but lawyers are always consulted and they enter into the life of the citizen when he is in trouble. Moreover, no one likes to have to pay for the consequences of having to receive advice or assistance when in trouble. By the very nature of the beast, lawyers
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cannot be popular. But like it or not, law is a learned science, especially in a complex and sophisticated society, and governments throw at Parliament laws affecting every citizen and every aspect of his life in ever-increasing numbers and in an ever-increasing tautology of obscure language.
In such circumstances I should have thought that the Executive which is taking this novel new power, which it seems to believe is so necessary in regard to the training and practice of the administraton of those laws, would require from those who will supervise its education, long hours of study, long years of experience and a degree of skill and talent. However, it is now seriously proposed in Clause 14 that the Minister will hand over the matter to a group of people, the majority of whom will be laymen and hand-picked by government. They will have power in effect to develop and direct that learning and that practice.
Who will these extraordinary people whom the Government will select actually be? Of course, in reality, they will be selected by civil servants. I have sat in on such conferences. In my view the usual list will be provided: the token director from the Directory of Directors—doubtless an entrepreneur whose face fits—the token trade unionist and the retired civil servant who, after early retirement, it is thought could usefully be added to the committee. Their task will be to develop the education, the learning and the practice of the judges of the future. They will be concerned with that development. The word "development" is not one which is usually associated in the mind of the public, or indeed in anyone's mind, as being something which is totally desirable. Every one of these people will be a government nominee; that is, they will all be picked by, and owe their appointments to, the Minister. There is no other civilised country where government have so much say in who will practise, and how they will do so, in the courts where so much litigation is between the ordinary citizen and the Government.
I returned earlier this week from Poland where the people were celebrating the freedom of the judges from any restraint or control; that is, freedom of the Bar from government agencies and from supervision and direction. They were anxious to follow our practices. I told them that they should hurry because the shadow of authority, disguised in a British compromise, stalks our profession.
In regard to the provision of services, Clause 14 introduces bodies, which are not even confined to professional bodies, to give and provide advocacy, advice and litigation. What is the purpose of that rigmarole, except to concentrate more power in the hands of the Administration? If the extension of the rights of audience was both needed and wanted —as it is suggested will be the case under this Bill —it could be done by way of one clause. Such a clause could state that any person qualified by the Bar Council and the Law Society should have the rights of audience in all courts. But it should be left to teachers of law to train such people and to see that they are duly qualified to do so. Surely that would be more straightforward and, with great respect, it would be more honest. However, we are instead

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asked to create an edifice under this centralising ministerial umbrella.
Throughout the debate on the amendments so far all speakers have, quite rightly, paid a ritual genuflexion to the interest of the customer. Of course, it is right to do so. However, there is always the danger of cant creeping into this particular proposition. In fact, the interest of the customer is best represented by him being represented by a qualified and skilled practitioner who has been educated and trained in law and who is licensed not by government but by a competent professional body. But justice is not always in the interests of a customer; for example, the rapist, the fraudster, the renegade who reneges on a contract or who defames another, want the avoidance of justice. In every case one group will depart from the court thinking that justice has not been done. Therefore what is justice? It can only be that which a wise judge, learned in the law and sometimes with the help of a jury, decides.
If the Government say that there is a need to establish a supervisory body, not manned by government creatures but by experts learned in the law, there might be advantages in the proposition. However, that is not what is being proposed. Is it really necessary for us to have this committee? Of course it will mean more government appointments for different people, but why is it necessary?
Other groups of people do not often visit this country to learn how we manufacture motor cars, how we manage the railways, the health service, how we clear our streets or how we tax our citizens; but they do come regularly to this country to see how we practise law and how we administer justice. Moreover, our judges are regularly invited overseas to lecture and advise. Why then is there such an urgent need for this new development?
One proud legacy of the old British Empire was the law and how it was administered and practised. Clause 14, with its school-masterly and essentially authoritarian powers as regards the training and practice of the law, is nothing but the triumph of the Executive; and perhaps of civil servants, whose bureacracy and decisions affecting the citizen in recent years have come more and more to be criticised and overturned by courts to the intense resentment of government and their agencies.
My noble friend Lord Boyd-Carpenter inferentially chided me on Second Reading for bitterness. However, what I wished to convey passionately—although, obviously I did not do so —was how saddened I had been by what I feel is the abandonment of Tory principle and the putting of populist interests before the defence of excellence. My noble friend has had a distinguished career in government and in politics. However, perhaps he has not seen enough of the way our legal system operates and has not been able to compare it with others. It is because I believe in the integrity and the intellectual standard of British law and its administration that I may have seemed to express what he thought to be bitterness. I spoke with passion, but my thoughts were basically governed by my sadness.
Do we need this bureacratic control by government-appointed creatures who are wholly ignorant of what they are given authority to do? I confess that the amendment ought to have included a second development to be substituted for the word "supervision". However, if Clause 14 at least proposed powers to supervise I would be content. If it is thought unnecessary to develop and play around with the law and the training and education of lawyers but necessary to supervise and ensure that the professional bodies are doing their task, then I can see that that would have some use.
I believe that the Government have made a grave error in proposing this body. I want to ensure therefore that the body of laymen, as it is now constituted, may not develop the law, or education for the law, because it will know nothing about the law, but will supervise. When we come to Clause 16, we should ensure that the members of the body should be people who know what they are doing and know the subject —learning and training —and understand what they are about.
I have spoken to all the amendments in the group, as I warned my noble and learned friend I should. I shall not move Amendment No. 83. My purpose, as I say, is to make the body a supervising body, and not a developing body, until we turn later in Clause 14 to see whether it is necessary to have it in any shape or form on our statute book. 1 beg to move.
Lord Campbell of Alloway: The Committee may think that it is hardly appropriate in Committee for me from these Back-Benches to make, so to speak, a Second Reading speech in reply to the Second Reading speech made by my noble and learned friend Lord Rawlinson of Ewell, which went straight to the principle of the Bill.
With the Committee's leave, and without seeking to import any discourtesy or offence to my noble and learned friend or any Member of the Committee, perhaps I may come straight to the amendments to which he speaks. That, as I understand it, is the object of a Committee stage.
My noble and learned friend says that if there were a power to supervise built into the Bill he would be content; but there is. The supervision sought by the amendment to be imported into the statutory objective contained in Clause 14, as regards advocacy and the conduct of litigation, is already provided for by the professional or other body under the rules of conduct in accordance with the principle, as it is proposed to be amended by my noble and learned friend the Lord Chancellor. Supervision as regards conveyancing is provided for by the board under Clause 31 and the ombudsman under Clause 40. As regards probate services, under Clause 43 supervision is, in effect, exercised under that clause by Section 2A of the Solicitors Act 1974, as amended.
Clause 15 has no application to conveyancing or probate services. It is not understood, with respect, how the amendment to the statutory objective contained in Clause 14 could have any useful effect, but, of course, I stand to be corrected.
As to Amendments Nos. 82 and 84, while again recognising the sincerity of purpose of my noble

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and learned friend in moving the amendments —to protect the interests of the legal profession and the public interest, as he sees it —the Committee may well think that it is much to be doubted whether, if those amendments were carried, they could ever achieve such a purpose.
The effect of Amendment No. 82 would be merely to stop the clock and inhibit any extension of rights of audience beyond those which now obtain. Such indeed appears to me —I may be wrong —to be the effect of the sister amendment (Amendment No. 84). If that were so —if we were to stop the clock —and if the amendments were to be carried, that would leave the Bar and the solicitors with their dispute over rights of audience wholly unresolved, and would afford no discernible means of resolution. Apart from that, to carry the amendments would impugn one of the principles of the Bill which was accepted by this place on Second Reading.
3.45 p.m.
Lord Peyton of Yeovil: Perhaps I may intervene briefly to ask three questions. I do so as one who is no profound admirer of modern legislation, and, confronting this clause, I find myself in a state of unusual confusion. My first question, with due respect to my noble and learned friend Lord Rawlinson, is: what on earth is the point of amending the clause at all? My second question is: what effect will the clause have? Who will it bind if we declare in the middle of a Bill that the general objective of the part is what it is said to be? What is the purpose of putting it there? So far as I recollect, it is not a regular feature of Acts of Parliament to inject at some middle point such a clause merely to declare what the aim of the part is. I should like to hear my noble and learned friend give some explanation that I can understand as to what the effect of the clause is and, in particular, what is the point of declaring the general objective of this part of the Bill. Who does it bind and in what respect? What on earth would be the point of amending it in any way?
Lord Mishcon: It may be of use if, at this stage, and having regard to the speech of the noble and learned Lord, Lord Rawlinson, I were to state the view of those on these Benches in regard to the whole of Part II. It might lead to economy of speeches later. It will shorten any speech of mine on any future amendment. I hope that the noble and learned Lord, Lord Rawlinson, will forgive me if I say that I listened to his speech with some professional pain; because I heard a fine advocate, admired so much in my profession for his advocacy, make the mistake, if I may say so, of so over-stating his case that he lost the jury.
I do not in any way wish to suggest from these Benches that there is a political motive behind the provisions of the Bill that I should be attacking. I see a desire —I may differ from it in particular on behalf of my noble friends —in the philosophy, which is engendered in Clause 14, that —I hesitate to use the words at the moment —a wind of change should blow through the cobwebs on the gates —they are there —of our legal system. We shall talk from these
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Benches with due respect for the great traditions of our law. They are the gates to which I referred. I should not want those gates to be in any way changed. However, in regard to the cobwebs —the delays in hearing our cases in our courts; the fact that so many of our people are precluded from those courts because of lack of means, not covered by legal aid (and I shall always plead for an advancement of legal aid from these Benches)—there is a need to look at the system. We should not just praise the past and use language of eulogy in regard to what is happening; all that is satisfactory.
The words of Clause 14,
"new ways of providing such services and a wider choice of persons providing them",
are a principle on which I hope all parties in this Chamber and those who have no party at all would wish to embark before the cobwebs become ever greater. It is in that spirit that I hope Part II of the Bill will be looked upon by the Committee.
Lord Boyd-Carpenter: I find myself in almost complete agreement with the noble Lord, Lord Mishcon —a situation almost as embarrassing for him as it is for me! I listened to what he said with such agreement that mercifully I can keep my own observations extremely brief.
The amendment is openly designed to reject a large part of the Bill as approved by your Lordships on Second Reading. It is not a mere verbal adjustment. The amendment is to remove the word "development" and substitute "supervision". My noble and learned friend Lord Rawlinson made no bones about the fact that he is wholly opposed to the purposes of this part of the Bill. I happen to differ from him on that. I agree with the noble Lord, Lord Mishcon, that it is highly desirable that we should develop —that is the word used in the clause —our law so as to deal with its present weaknesses. It was well said the other day that the courts of law are, like the Ritz Hotel, open to everyone.
It is a fact that our legal system has many merits, many honourable and distinguished aspects, but it is extremely expensive and slow in operation. Therefore it seems to me that it is the duty of this Government —the duty of any government —to develop it so that while retaining its many good and honourable features they seek to remedy its present defects and weaknesses. No system remains perfect. No system can be treated as simply an object of worship. The government of the day, it seems to me, have a duty as the government responsible to the people to look at our system and suggest to Parliament ways in which it can be developed in the interests of all.
I do not wish to follow my noble and learned friend's example, which was largely making a Second Reading speech. I wish to draw the attention of Members of the Committee to the fact that acceptance of the amendment would tend to nullify, and is intended to nullify, the main purposes of the Bill, examination of which we are now engaged in. For that reason, as well as for others, I am against it.
Lord Hailsham of Saint Marylebone: I make no bones about it: I think that Part II of the Bill is almost wholly bad. I know that my noble and learned friend is aware that I make no bones about it. However, I wonder whether we are not straying from an orderly way of discussing the provisions. I happen to be against the phraseology of Clause 14, even if I agreed with every other provision in Part II. I do not believe in general objectives stated in the statutes. My noble friend Lord Peyton was absolutely right in some of the points he put in his brief but excellent speech. This is setting about reform, in the wrong way. I do not believe that we are discussing the matter in an orderly way. What we really need to do is examine Clause 14 in its entirety, discussing whether the general objective is wisely, prudently or even morally right.
When we come to consider the role of the advisory committee, there will be ample opportunity to do so under Clause 16. We can deal with the general statutory principle in the next clause. I wonder whether we need waste a great deal of time on this amendment, which seems to me to put matters in the wrong order.
The Lord Chancellor: I am very much against wasting time on any amendments, but I wish to say a word or two in answer to the speech of my noble and learned friend Lord Rawlinson of Ewell, who moved the amendment. I have the greatest possible respect for my noble and learned friend as a most distinguished Law Officer and very fine advocate of great experience. I should also like to take this opportunity of paying tribute to the excellent work he did in providing the guidance in a good deal of the reform that was carried out on the internal workings of the Inns and their relationships with the Bar generally. I believe that that was excellent work, and generations to come as well as the present generation will reap the fruits of that excellent work.
This part of the Bill is intended to provide a machinery for dealing with the development of legal services. The first point is that the idea of putting an objective in this part is to explain the purpose of the clause in accordance with the recommendations of the Renton Committee about the formation of legislation. That is so that people coming to the clause and reading that part will understand what we have in mind and use it in reading what follows.
Secondly, we have provided that those who are operating under this part should have to have regard to this objective. In other words, the reason that responsibilities are put on to them under this part of the Bill is so that they may have regard to the objective. It is not binding; it is something that they should have in mind as the purpose of this legislation and the duties imposed upon them.
Therefore on the first question which my noble friend Lord Peyton put —what on earth is the purpose of amending it? —the answer is to make sure that so far as possible we get it right and that those who operate under it will have a reasonable objective to follow. I am glad to see that others as well as myself propose to seek to amend the provision, no doubt with the objective of improving it. I think that answers the questions which my noble friend asked.
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If I have missed one, perhaps he will remind me of it.
On the substance of the amendment, my noble and learned friend suggests inserting "supervision" instead of "development". If I wished to promote some authoritarian system, that is exactly what I might want to do. But it is exactly what I do not want to do. I want the machinery to be used to help the development. Society moves on. The needs of society 150 years ago are not the same as the needs of society now.
I yield to no one here in my respect for the institutions of the law in this country, even though I was brought up principally in another jurisdiction. I have learnt over the years in practice in that jurisdiction to respect and appreciate the developments here. I yield to no one in my appreciation of my noble and learned predecessors who have been referred to. The late Lord Gardiner left us with, I hope, a perpetual memorial to his excellence in a machinery for law reform in the Law Commission. To some very small extent, I have been seeking to follow in his footsteps by developing a machinery for dealing with the profession in seeking to cope with these matters.
I had the great privilege of a very close friendship with the late Lord Elwyn-Jones, whom all of us respected. I found him extremely helpful and I remember him saying in connection with earlier discussions on this matter that he did not think the day would ever dawn when he and I would fall out.
I have the greatest possible respect for my noble and learned friend Lord Hailsham, and a deep affection for him. However, it is the kind of affection that will endure a difference of opinion on some matters from time to time. As for all those who have preceded me in this Office, saints and sinners, I have a considerable respect for the heritage they have left us. Our responsibility now is to try to develop the system which they left us so that it will rise to all the challenges, and they are many, that modern times place on it. I hope that the Committee will not support this amendment and that, in the light of the explanation I have given, my noble and learned friend will feel able to withdraw his amendment.
4 p.m.
Lord Rawlinson of Ewell: In the light of the enchanting flattery paid to me by my noble and learned friend the Lord Chancellor I can do no other than withdraw the amendment. I accept from my noble friend Lord Boyd-Carpenter any rebuke about making a Second Reading speech, but not from my noble friend Lord Campbell of Alloway. The purpose of the amendment is to ensure that if there is to be a development of the law, one must have people capable of understanding what they are developing. One must have a body of distinguished people who are learned in the law —we shall come to that in Clause 16 —to take on that task. I wished to bring that to the attention of the Committee and that is why I introduced my comments about Clause 14 and Clause 16. I wished to ensure that the Committee appreciated that this vitally important task of development and supervision of the law is being

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given to a body of people, the majority of whom know nothing about the law and who are appointed by the Government. We shall come to that matter later on, but in view of the enchanting things that my noble and learned friend the Lord Chancellor said about me I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Alexander of Weedon Lord Alexander of Weedon moved Amendment No. 80:
Page 12, line 22, after ("services") insert ("in ways which uphold and advance the interests of justice, and in particular").
The noble Lord said: In this amendment we seek to set about the task which my noble and learned friend the Lord Chancellor said a moment ago he welcomed. That is the task of improving the terms of Clause 14(1) of this Bill without in any way impeding its general purpose and without in any way interfering with the philosophy underlying the Bill. Our amendment is intended to be, as I hope all Members of the Committee will find it, moderate and constructive. I draw comfort from the fact that it commands considerable support from all parts of the Chamber. That is shown by those who have put their names to the amendment.
As my noble and learned friend Lord Rawlinson of Ewell reminded the Committee, Clause 14(1) of the Bill is of immense importance because Part II of the Bill affects rights of audience in the courts, the conduct of litigation, conveyancing and the provision of probate services. That is a wide field and Clause 14(1) is the only place in the Bill where the general objective of Part II is set out.
As the Committee is well aware, Clause 14(1), as at present drafted, focuses on the development of new ways of providing legal services. The amendment is intended simply and only to ensure that this development takes place in such a way as will maintain standards and ensure the protection of the interests of justice. When I use the phrase "the interests of justice" I do so in the way in which the noble Lord, Lord Mishcon, used it at the opening of our proceedings in Committee. I stress, as he did, that the words are not intended to protect judges. They are not intended to protect or make life smooth for practitioners and they are certainly not intended to make life smooth for administrators. They are designed to ensure that the parties to proceedings benefit because they are those with whom the interests of justice are in a general sense concerned, in addition to the concern which society as a whole has for those interests to be advanced.
Since we tabled this amendment, my noble and learned friend the Lord Chancellor has tabled on behalf of the Government Amendment No. 82A. As I understand it, his amendment is also concerned with stressing, as a statutory objective and as part of the balance of that objective, the maintenance of the:
"proper and efficient administration of justice".
If that is right, he would appear to have in mind the same considerations as does our Amendment No. 80. In the hope that that is so, and that my noble
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and learned friend will indicate that that is the case when he replies, I shall seek to take our amendment more briefly than might otherwise have been necessary.
This issue of rights of audience which this part of the Bill addresses has in the past been controversial. The pressure by some solicitors for increased rights of audience has led to a running debate, sometimes sadly a dispute, with the Bar. This has rumbled on throughout the whole of my 28 years at the Bar and I believe it existed for years previously. Indeed I believe there was an editorial in The Times devoted to that topic on the very day that my noble friend Lord Benson, who has contributed so much in the field of law, was born. Therefore the Committee will realise that it has been an ongoing debate.
Dispute between two branches of a legal profession, both of which exist to serve the public, is highly undesirable. I, and I believe many in my branch of the profession, accept that it was right and necessary that it should be resolved. The Government have chosen one way of going forward with which some of us might disagree, but they have chosen a way which they see as constructive to ensure a widening of the rights of audience on an evolutionary basis. I am sure the whole Committee will hope that this will give scope for sensible development and that all those involved in the administration of justice will work together. This amendment and later amendments to Clause 14 are put forward in no spirit of controversy between barristers and solicitors. I hope the Committee will accept that. From the day of my first two-guinea brief until the day I retired from the Bar I depended upon solicitors for my livelihood. I have been fortunate enough to work with, among others, the noble Lords, Lord Mishcon and Lord Goodman, each of whom would, with respect, grace any legal profession anywhere in the world.
I believe these amendments would serve the public and enhance the standards of the entire legal profession. Before I turn to their detail, I should add that Amendment No. 80 and the subsequent amendments standing in my name are supported by the executive committee of the Society of Conservative Lawyers of which I am chairman. I am glad to say that the society has long been comprised of both solicitors and barristers.
The essential thrust of the amendment is to meet the objectives of the Government as stated in the White Paper. The Government stated in paragraph 2(3) that the purposes of the legislation included the need,
"to maintain the standards of conduct in advocacy and the conduct of litigation which are required in the interests of the proper and efficient administration of justice".
The clause as at present drafted concentrates only on the development of new ways of providing services. It does not focus on ensuring that the standards of those services are at least as good as and preferably better than those already provided. It does not focus on ensuring that the interests of justice are upheld and advanced. It is to achieve that balance in the objective, which I hope as a balance commends itself to all sides of the Chamber, that the amendment is directed.
The considerations which affect the proper and efficient administration of justice may be wide-ranging. They clearly embrace not only qualifications and rules of conduct in the face of court or during the conduct of court proceedings, but they also include the way in which members conduct their practice so as to ensure that they are appropriately dedicated to advocacy and are free from any potential conflict of interest. Barristers for example practise as individuals without financial responsibility to partners. By self-denying ordinance of the Bar they undertake the presentation of important cases, but they rely on the skill and experience of solicitors for their preparation. In my experience, those attributes of the Bar have been of very considerable value. Certainly the judges thought so in the summer when they responded to the consultation papers.
Those considerations are not in issue today. All that we seek to achieve is that the remit of the advisory committee and the others involved, including the judges and the Lord Chancellor, should be wide enough to enable them to maintain and if possible enhance standards and to ensure that the administration of justice as a whole is proper and efficient.
The statutory object as we redraft it would enable the advisory committee, the judges and the Lord Chancellor to take into account all rules which affect conduct and practice which they regard as important or desirable. It would also enable them to take into account if, but only if, they judged it right to do so the importance of maintaining a separate and independent Bar.
Almost all those who responded to the consultation papers stressed their view that an independent Bar was important. To no one is it more important than the high street solicitor who is for most clients the most accessible face of justice. I am very glad that my noble and learned friend the Lord Chancellor shares the view that the independent Bar is of great importance, as he stated so clearly when he introduced the White Paper in July.
Those are the considerations underlying the amendment. In view of the amendment proposed by my noble and learned friend, Amendment No. 82A, I shall say no more at this stage. If he indicates that his amendment is intended to cover the points which I have sought to explain that we have in mind in proposing this amendment then, subject to hearing the views of the Committee, I should be content to withdraw my own amendment. I beg to move.
Lord Hutchinson of Lullington: I should like to say a few words in support of the amendment, against which my name appears. I do so in the same spirit which has been shown by the noble Lord, Lord Alexander, in moving it.
Without being pompous, I shall take this opportunity to say that on these Benches our only aim during the Committee stage of the Bill will be to try to use our best endeavours to make the Bill a better Bill.
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At the Second Reading the noble and learned Lord the Lord Chancellor said that the policy set out in Part II of the Bill, governed as it is by Clause 14, had not changed in any way from that which was set out in the White Paper. He said that ft was precisely the same. It seemed to those of us who have put forward the amendment that the Bill as drafted did not reflect that statement precisely. Therefore the amendments, as the noble Lord has just said, do no more than attempt to make the Bill truly reflect the policy as it was set out in the White Paper.
The Committee will appreciate that in the White Paper there were three objectives; now there is only one in the Bill. Those objectives were education and training covering competence, standards in advocacy —those necessary in the interests of the proper administration of justice —and that there should be no obstacles or restrictions to the access of choice other than those necessary in the interests of justice. Competence, standards, access and choice were all covered, and the interests of justice were paramount.
Many of us who criticise the language of consumerism —which I note with interest the Labour Party seem to have taken on board —and those of us who were fearful of the implications of some parts of the Bill, felt that we could go along with those objectives. However, in the Bill those objectives are reduced to one. The Bill sets out in substitution for the others the general principle which is found in the next subsection. As the noble Lord, Lord Alexander, has said, it is important to appreciate that that single statutory objective covers the development of all legal services across the board and therefore it is essential that we get it right now.
The provision of new ways of providing services and wider choice is excellent, but surely not any new ways and not any wider choice. Improving what is good and maintaining what is excellent should be included in the objectives. We felt that there must be some criterion of quality and, as there was in the White Paper, the criterion of the interests of justice; namely, the public interest.
The noble and learned Lord has put down his own amendments, which have already been referred to. We are most grateful to him for having done so and for covering the ground that we have tilled in our amendments. He refers to "new" "or better" ways of provision and to making the maintenance of the proper and efficient administration of justice govern the whole subsection. If the noble and learned Lord can give an assurance that his phraselogy embraces the rather wider concept that we covered in our amendment of the interests of justice, if he gives the undertaking that his phraseology does indeed cover what we wish to cover in our amendment, then I certainly should be most happy to accept his amendment.
4.15 p.m.
Lord Hailsham of Saint Marylebone: Perhaps I may make a few brief remarks. Having regard to Amendments Nos. 80A and 82A proposed by my noble and learned friend, it is perfectly plain that he realises that the clause as drafted will not do. The

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reason it will not do is very simple. The only criterion of this principal objective in making his genuflection —which I do not agree with —to the idea of my noble friend Lord Renton of putting objectives into legislative is novelty. There is nothing in it as drafted about improvement, and there is nothing about justice, incorruptibility, impartiality or any of the aspects that make up the essence of justice. Whether the amendments are enough or whether the clause ought ever to have been there in its present form is another matter.
My noble and learned friend has taken on board in his two new amendments what I strove to point out on Second Reading. It is the quality of justice that matters and not simply the novelty of the methods adopted in achieving it. That was the point that I sought to make, and it has been made.
At the risk of incurring the wrath of my noble friend Lord Boyd-Carpenter, I must make two or three general points about contested litigation. The first is that it is quite wrong to think that our own system is particularly slow or expensive in comparison with other countries. The contrary is the truth. I could not allow my noble friend's statement to that effect to pass unchallenged.
The second point is one that I ventured to make earlier in the debate on the Green Papers. In contested litigation it has to be realised that the interest of the consumer is not one identical interest because in all contested litigation there are two violently opposed classes. There are the plaintiffs, prosecutors and petitioners who demand something that they have not got out of the defendants, respondents or persons charged with the offences. Their interests are directly opposed. That is the essence of contested litigation of all kinds. It is therefore simply silly to use the phrase "consumer friendly" in that relationship.
The function of the courts arises from the fact that all organised societies, servile or free, demand of their subjects a near monopoly of force. That imposes upon them the necesssity of deciding cases which are bitterly contested between rival parties in order to prevent them from taking what is called the law into their own hands. If we are to talk in terms of consumer friendly we must therefore do so with a great deal of intellectual caution.
That brings me to say what I think is true; namely, that in doing so we must realise that all good policy does not depend, as is sometimes supposed, on putting forward admirable general objectives or general principles. It depends on a proper analysis of policy and facts and putting right what happens to be wrong or is seen to be wrong at the time.
There are, consistent with justice, a number of ways in which both parties may be benefited. If there are undue delays, let them be removed. If there is excessive expense, let it be reduced. If there is inefficiency, let it be abolished. But one does not, simply by saying that one will benefit the consumer, get any further at all, nor does one gain anything, by claiming novelty as an advantage as such.
I venture to say to my noble friend Lord Boyd-Carpenter, who I do not think has analysed
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the problem at all adequately, that litigation is in itself an evil. It is not like gas which everyone wants to warm their houses. It is not like electricity which illuminates our houses. It is an evil caused by disputes which cannot be reconciled in any other way. Once one has established that, one must realise that it is a good thing that of 10 writs which are conceived out of the womb of disputes only one comes to a full-length trial in front of a judge or judge and jury. That is a good thing. It is not a bad thing.
When one talks about the expense of litigation, one always has floating in front of one's mind an expensive libel action which lasts for 41 days and ultimately leads to a verdict one way or the other. Rather, it is the ordinary run of litigation. If a man does not pay his debts, one issues a plaint in the county court, obtains judgment against him in default and executes the judgment by sending in the bailiffs and selling the grand piano. That happens in a matter of weeks at a considerably smaller cost than the cost of a High Court litigation in defamation.
All this stuff is hot air and useless argumentation about drafting, but I am at least glad to know that my noble and learned friend the Lord Chancellor has realised that improvement and not novelty is one of the tests that he must bear in mind.
Lord Boyd-Carpenter: I would not have intervened on the amendment had not my noble and learned friend Lord Hailsham, who is obviously enjoying himself a great deal, seen fit to misquote what I said on the preceding amendment. I did not say —and if he consults Hansard he will find that this is so —that our system was slower or more expensive than that of other countries. I said that it was too slow and too expensive. If one analyses the position in other countries, one finds countries—France is perhaps one of them — which compare favourably with us in that respect.
However, that was not the point that I was making. The point that I was making, which I notice my noble and learned friend did not dispute, was that it would be possible to make our system less expensive to the litigant and quicker in its results. I should have thought that that was an object which everyone would wish to attain and that it was right and proper for the government of the day to introduce legislation which they believed would have that effect. I accept that it remains to be put to the proof, but I found rather depressing my noble and learned friend's suggestion that the Government should not try to deal with what I and most noble Lords regard as one of the weaknesses of our system.
Baroness Phillips: Perhaps I may have the temerity to intervene in the debate as a layman. If I dare say so to the noble Lord, Lord Hutchinson of Lullington, this is an interesting example of what I particularly complained about when I sat as a lay magistrate; namely, the ability of the legal profession to introduce so many different arguments into a simple proposition that at the end of it the people who had to judge the case did not know what it was all about. Luckily, I became quite skilled in sorting the wheat from the chaff.

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I find it mysterious that we should need an amendment which states:
"in ways which uphold and advance the interests of justice".
Surely the purpose of the Bill, of our courts and of the legal service is to advance the cause of justice. It would be exactly the same as having an education Bill which stated that it must advance the cause of education. Surely that is self-explanatory except, presumably, to those highly trained people who handle our law.
I have looked carefully at the explanatory notes and, as I understand it, it is the business of the High Court and other courts. We do not need those unnecessary words because the business of the High Court and other courts surely concerns the best ways of administering justice.
Lord Peyton of Yeovil: In response to the noble Baroness, perhaps I may say that when one puts into a Bill a declaration of one's objectives, that declaration must be comprehensive. One must leave nothing out or it will make the legislation even lengthier than it is now.
Lord Ackner: I shall intervene only briefly because there is clearly a great degree of harmony on this matter. I seek only to enhance it by reference to what my noble and learned friend the Lord Chancellor said on Second Reading; namely:
"1 turn now to the court system itself. What I have sought here is to enable fresh and better ways of administering justice". —[0fficial Report, 19/12/89; col. 123.]
The two went together. Replying to the debate, at col. 241 he said:
"The whole purpose of the Bill is to seek to make improvements and to open up opportunity for improvements in access to justice".
New ways and improvements went together in the debate. It is perhaps strange to find them separated by the word "or" in my noble and learned friend's amendment, but that is probably a typographical slip.
The only other point that I wish to make is in reply to the noble Lord, Lord Boyd-Carpenter. There is no basis for saying that any part of Part II has any relevance to saving costs or improving the speed of litigation. That is all the subject matter of Part I. The reason I can say that with confidence is quite simply that there has been no study, no research and no investigation as to the likely consequence of the proposals. Accordingly, it cannot be said that they are designed to, or even likely to, reduce costs or improve efficiency.
That is even more the case since so many of the proposals are not only flatly contradictory to those in the Royal Commission that pointed out how some of these proposals would increase costs, but those very proposals of the Royal Commission, after four years of no doubt long and prolonged deliberation, were positively assented to by the Government on the basis that the Government were interested in enhancing efficiency and access. I say that only to make it perfectly clear that there is not the basis for any assumption that Part II is directed to or will
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achieve the results that the noble Lord, Lord Boyd-Carpenter, so obviously underlines as being the desire of everybody.
4.30 p.m.
Lord Coleraine: Perhaps I may explain why I oppose the amendment moved by my noble friend Lord Alexander. In a sense I echo the words of the noble Baroness Lady Phillips which were both simple and profound. I tend to agree with my noble and learned friend Lord Hailsham when he said that he did not necessarily follow the recommendations of the committee chaired by my noble friend Lord Renton and that in general he disapproved of general objectives clauses. I generally approve of general objectives clauses but in my view to insert the words of the amendment would be to make the clause even more general in a way which I do not think would serve the interests of justice.
Surely it must be beyond doubt that the interests of justice, however expressed, are already contained within this clause. It seems to me that to restate the obvious is likely to be damaging.
Let me make just one point and consider the words of my noble friend Lord Alexander who referred to the dispute that has gone on for a long time, as he expressed it, between the two branches of the legal profession in regard to advocacy. After reading the response of the judges to the Green Papers, I think that it would be the view of the judges that it is in the interests of justice that advocacy should be carried out in the Supreme Court only by barristers. It is not clear why they allow that It would not be unhealthy for advocacy in the county court to be undertaken by others. It certainly seems to me that, when one looks at the response of the judges and reads the characteristics which they consider essential to an advocate in the Supreme Court, they would say that advocacy in the Supreme Court should be carried out only by barristers.
I believe that the danger in putting those words into the Bill is that at some later stage it may involve a highly embarrassing situation between the judiciary and the administration, which I would hope that at all costs we might avoid.
Baroness Seear: As a complete layman again I ask a question for clarification, which is primarily aimed at the noble Lord, Lord Alexander. If one puts in this clause the words:
"advance the interests of justice, and",
is that a protection against what I can see might happen —especially if we are to have a great deal of regulation in the development of the system of justice—namely that such a regulation could then be challenged on the grounds that is was contrary to the interests of justice and it would be easier to challenge it if that was written into the Bill? If that is so, the amendment would have my entire support.
Lord Alexander of Weedon: In response to that invitation, that is the purpose of the provision. I hope that the noble Baroness, Lady Phillips, will accept that even lawyers can occasionally in this House seek simplicity. But once a statutory objective is spelt out, it is important to have within that

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objective all the important aspects of the framework which those responsible for administering the new system must follow. If, as the noble Baroness, Lady Seear, has just put to me, they were to fail to follow that framework and act in a way which was considered to lower the standards of justice and detract from the administration of justice, then as she surmises that procedure would be open to challenge by virtue of this amendment.
The Lord Chancellor: I am glad to detect a considerable degree of harmony. I am particularly glad that my noble and learned friend Lord Ackner also noted that, although perhaps towards the end of his submissions he may have gone on to more controversial matters.
I entirely agree with my noble and learned friend Lord Hailsham that litigation is an evil. But it is an evil in which many highly honourable and distinguished persons have spent quite a high proportion of their lives. So it is possible to participate in that evil in an honourable way. It is also possible to reduce it so far as the client is concerned. In this connection I try to use the word "client" rather than "consumer". I do not know whether that necessarily makes any difference but I have sought to use the word "client" when considering the provision of legal services so that one may understand that to some extent at least I appreciate the difference between various types of provision of services.
I listened carefully to what was said in the Second Reading debate and in the light of that discussion I decided to seek the advice of parliamentary counsel on matters that had been raised. First, the advice of parliamentary counsel was that the effect of the clause as I had described it in my reply at Second Reading was, in his opinion, in accord with the clause as drafted. Secondly, I appreciated that a number of my noble and learned friends, in particular the Lord Chief Justice, the Master of the Rolls and my noble and learned friend Lord Hailsham, had some difficulty with the objective as it was expressed. Therefore I asked parliamentary counsel, while retaining exactly the policy described in the White Paper, if he could seek to give effect to these matters to the extent of improving the clause while retaining the policy.
The result caused me to table Amendment No. 82A, to which my noble friend Lord Alexander has referred, Amendment No. 80A, to which reference has already been made, and also (which is perhaps quite important) Amendment No. 84A, because there was some question about whether I was thinking only of conduct in court. I was not thinking of that. I was thinking of rules of conduct in the way in which those are normally understood in the professions. So I sought to give effect to that and in so far as I understood the matters that my noble friend and the noble Lord, Lord Hutchinson of Lullington, were seeking to cover, my amendments are intended to do just that.
The structure of this clause is that the statutory objective is subject to the general principle. The general principle, as the noble Baroness, Lady
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Phillips, pointed out, contains the reference to the proper and efficient administration of justice. The idea behind the clause as originally drafted was that the general principle would rule and therefore that these interests would always predominate. However, in view of the difficulties expressed, I felt it right to make these amendments. I certainly propose to move them in due course. I appreciate particularly my noble friend's indication that if I intended to do so he would not press his own version of the amendment.
Lord Alexander of Weedon: I am most grateful to my noble and learned friend for his clear assurance that the factors which I indicated as being factors which fell for proper consideration by the advisory committee and the judges would be factors which, under his amendment, he would regard as being entitled to take into account. In those circumstances I do not seek to answer my noble friend Lord Coleraine. I say simply that the kind of considerations that he raised would, on the basis on which we are all proceeding, be matters for conscientious consideration in the future by the advisory committee and the judges. Therefore I hope that he will forgive me for not dealing with them. In the circumstances I am pleased to seek leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Lord Chancellor The Lord Chancellor moved Amendment No. 80A:
Page 12, line 23, after ("new") insert ("or better").
The noble and learned Lord said: I have already spoken to the amendment. I beg to move.
Lord Simon of Glaisdale: My noble and learned friend has already spoken to the amendment at considerable length. In no way do I question it; on the contrary, I welcome it and the subsequent amendment which he will move and to which he has also spoken at considerable length.
I venture to make a plea to the government business managers. Before they vent their displeasure by requiring Members of the Committee to sit until midnight and into the early hours of the morning, I ask them to consider the grave social and constitutional issues which are raised by the Bill. Will they also consider the number of amendments which have already been tabled by my noble and learned friend the Lord Chancellor and properly spoken to by him at considerable length?
Earlier the noble Baroness, Lady Phillips, said that she had counted some 20 amendments which have been tabled by my noble and learned friend between Second Reading and the Committee stage of the Bill. That is a considerable number and they must all be spoken to. Therefore, when the government business managers become impatient about progress —and their object is to get the business through the House —I ask them to consider that matter also.
Lord Campbell of Alloway: I thank my noble and learned friend the Lord Chancellor for tabling the amendments. They meet every reservation that I raised on Second Reading and I congratulate him on the form which they have taken.
Lord Hailsham of Saint Marylebone: I do not wish to be a peasant but I believe that occasionally lawyers have to be peasants. I welcome the intention of the revised amendment wholeheartedly and unreservedly but does it not read rather oddly? Does it not read that either the ways are to be new or they are to be better? If they are better they are not to be new and if they are new they are not to be better.
I wonder whether the word "better" would not do instead of the words "new or" as an improvement. After all, there was a Roman emperor or postulant to the imperial throne who said, "Either Caesar or nothing". He did not mean that it could be both!
Lord Benson: I have the same difficulty with the words "or better" because the public are worried that new methods will be worse methods. Therefore, "or better" means that the new methods may be worse. If the words were "and better" the problem would probably be removed.
I think a proper wording may be,
"additional ways of providing such services which are equivalent to or better than those now prevailing".
The public do not wish us to go downwards but upwards.
It may be that I am pushing at an open door because my noble and learned friend Lord Ackner quoted from an article indicating that the noble and learned Lord the Lord Chancellor had accepted "fresh and better ways". That is exactly the point that I am trying to make, as was my noble and learned friend Lord Hailsham. It would be helpful if the noble and learned Lord the Lord Chancellor would be kind enough to revise the words so as to remove the aspect of worse in the word "new".
The Lord Chancellor: My Amendment No. 82A, which I propose to move, governs the whole matter by stating:
"while maintaining the proper and efficient administration of justice".
Therefore, there is no problem about the ways being worse.
Viscount Bledisloe: With respect to the noble and learned Lord, that may be the case. However, if a way is new but is not better there is no point in having it. Surely it must be new and better. I think that the noble and learned Lord, Lord Hailsham, went a little too far in saying that if a way is new it must be worse. However, there is a justification for that on the words which are sought to be amended; that it should be new without the need to demonstrate that it should also be better. Why do we go only to novelty if there will not also be an improvement?
4.45 p.m.
The Lord Chancellor: We could have a considerable discussion about the matter but I do not wish to be accused of speaking to my amendments at too great a length. However, such a question may well give rise to extremely difficult arguments. It may be hard to compare a way that is new with what was there before in order to show that it is better. A
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way may be so new that it is difficult to compare with the previous way in which the service was provided. The general phrase:
"while maintaining the proper and efficient administration of justice"
prevents the way from being worse. For those who must administer the provisions, the statutory objective as improved by the amendments is plain.
Lord Alexander of Weedon: I wish to draw attention to the fact that Amendment No. 81 contains the words "new and improved" which may meet the preference of some Members of the Committee. In the light of the concerns that have been expressed, will my noble and learned friend take away the amendment, reconsider the phraseology and come back on Report having taken account of those concerns? In that case, I shall have the pleasure of not moving my Amendment No. 81.
The Lord Chancellor: I have made clear the fact that as we proceed I shall consider any improvement to the Bill. The objective is a general objective to provide new or better ways. I honestly believe that the idea of a better way is an existing way with improvement and that a new way is something that is not presently being done. For the moment I cannot see that the suggested change will make the kind of difference that is being indicated. I shall consider the matters but I hope that the Committee will approve Amendment No. 80A which I have moved.
Lord Ackner: There is an important feature in regard to Clause 14. It is the statutory objective which is referred to with much emphasis in Clause 15 as being something which is imposed on everyone concerned with the administration of the Act to carry out with the utmost dispatch. If there exists the statutory objective with all the dangers that flow from not complying with it, I believe that the ambiguity which has been pointed out should a fortiori be removed. Perhaps my noble and learned friend could have regard to that aspect when reconsidering the matter.
Lord Boardman: I was attracted to the suggestion made by my noble and learned friend Lord Benson that the words "equivalent or better" should be used. However, my noble and learned friend then pointed out the fact that his amendment, when read together with Amendment No. 82A, achieves exactly the same result. It is that the ways must be new or better while maintaining the proper and efficient administration of justice. That amounts to the same as using the words "equivalent or better".
The amendment tabled by my noble friend Lord Alexander, which uses the words "new and improved", places an additional onus upon those trying to obtain approval for the next stage of their mission. They must show not only that the proposed changes are new but that they also bring advantages. It would place on them such an onus that some of those who oppose the admission of solicitors to rights of audience might then believe that it provides an opportunity for them to say that there is no advantage and thus for them to object to that admission.
Lord Mishcon: May I say that a solicitor advocate would have thought that he was wasting the time of the High Court if he had made any of these points.
The Earl of Onslow: May I ask my noble and learned friend what happens if as a result of the consequences of this Bill something is done that is not better and is shown not to be better? Does it then automatically collapse because it is not better?
Viscount Bledisloe: May I reply to the point made by the noble Lord, Lord Mishcon, that if a solicitor advocate would not take a point that "or" is different from "and", it might demonstrate that the solicitor advocate ought not to take points in the High Court.
Lord Mishcon: I must make my position entirely clear in order to protect the dignity of my side of the profession. The noble and learned Lord's answer was that in certain circumstances something which is new cannot possibly be compared with anything that has been previously the practice by virtue of the fact that it is entirely new. If you have the word "development", as you have in Clause 14, before the word "new", I should have thought that it was perfectly proper to have the alternative.
The Deputy Chairman of Committees (Lord Hayter): I think I should make it clear that this amendment is an alternative to Amendment No. 81. Therefore it would follow that if we approve this amendment, Amendment No. 81 would be withdrawn.
On Question, amendment agreed to.
[Amendment No. 81 not moved.]
[Amendment No. 81A had been withdrawn from the Marshalled List.]
[Amendment No. 82 not moved.]
The Lord Chancellor The Lord Chancellor moved Amendment No. 82A:
Page 12, line 24, at end insert (", while maintaining the proper and efficient administration of justice.").
The noble and learned Lord said: I have already spoken to this amendment. I beg to move.
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No. 82B:
Page 12, line 27, at end insert ("in relation to any court or proceedings").
The noble and learned Lord said: With Amendment No. 82B I should like to take Amendment No. 83A. These amendments are two of a number that I am introducing in order to clarify the purpose and workings of the statutory objective and the general principle and to try to take account of a point that arose on Second Reading.
The statutory objective is to include within it both the requirement that the ways in which the provision of legal services are to be developed must be either new or better and the requirement that they maintain the proper and efficient administration of justice. The general principle fulfils a separate function. It is a statement of the criteria by which the question of whether a person be granted a right of audience or a right to conduct litigation is to be decided.
This amendment and the other to which I have referred are intended to point out that the particular qualifications and the particular rules of conduct may vary according to the particular court or the particular type of proceedings that are in question. I thought in the light of the Second Reading debate that it was right to emphasise that and point out that these were not intended to be restrictive in the sense that they were to relate only to conduct during the court time or in relation to the court proceedings but were intended to reflect the question, which might vary from court to court, about what was an appropriate rule or an appropriate qualification. I beg to move.
Lord Hailsham of Saint Marylebone: If you leave out line 31, which I think is under discussion at the present time, do I infer from that that a person who will be given the right of audience has not got to be,
"a member of a professional or other body"?
If that is so can one really guarantee that he will be governed by rules of conduct other than those that he imposes upon himself? If so, how can the body giving him the right of audience guess whether he is likely to enforce them?
The Lord Chancellor: There may be some misunderstanding. Line 31 consists of the words "in question; and".
Lord Hailsham of Saint Marylebone: I am sorry. I was misled about that, or rather I misled myself. I am obliged to my noble and learned friend. I did not realise that line 31 was only those three words. I apologise to my noble and learned friend.
Lord Campbell of Alloway: With respect, I think that the word "and" should still be in. Ought it not to be (a) and (b)?
The Lord Chancellor: I think not. I think that there are three matters to go in. I do not wish to take up time. May I look at that? Certainly the intention is to put this emphasis on,
"in relation to any court or proceedings".
Lord Renton: It should certainly not be "or". If it is not "or", it should be "and".
On Question, amendment agreed to.
[Amendment No. 83 not moved.]
The Lord Chancellor The Lord Chancellor moved Amendment No. 83A:
Page 12, leave out line 31.
The noble and learned Lord said: I have spoken to this amendment. I beg to move.
On Question, amendment agreed to.
The Deputy Chairman of Committees: I think I should explain that Amendment No. 83ZA, which is an amendment to Amendment No. 84A, is printed in the wrong place. I shall have to call it after Amendment No. 84A has been moved. We come now to Amendment No. 84.
[Amendment No. 84 not moved.]
The Lord Chancellor The Lord Chancellor moved Amendment No. 84A:
Page 12, line 33, leave out sub-paragraph (i) and insert —
("(i) has rules of conduct (however described) governing the conduct of its members;").
The noble and learned Lord said: With Amendment No. 84A I want also to take Amendments Nos. 88 and 89A. This explains why "and" was not necessary. When we take account of Amendment No. 89A we have (a), (b) and (c) and so we do not need an "and" between (a) and (b); it is sufficient between (b) and (c). That is the point of this.
Amendment No. 84A is intended to deal with the question of whether the rules of conduct are to be general. We say, "(however described)", and we have a definition later. The purpose of these amendments is to emphasise the question in relation to the body; that is, to have the regulations. The original formulation perhaps looked as though it was too much directed to the question of membership. The real question is the nature of the rules that the body has. This is the reason for putting the emphasis in this way and asking these three questions. I beg to move.
The Deputy Chairman of Committees: I have to point out that if this amendment is agreed to I cannot call Amendment No. 86A.
Lord Alexander of Weedon: As I understand it, this amendment is designed, by reference to a subsequent amendment to the Bill, to cover the point made on Second Reading by my noble and learned friend both in his opening and closing speeches that rules of conduct would be wide enough to cover rules of practice. On that basis may I say that I welcome this amendment. If accepted it will enable me to withdraw Amendment No. 83ZA standing in my name because I believe that, subject to his confirmation, my noble and learned friend's intention is to cover the point that we were also seeking to cover by our amendment.
On Question, amendment agreed to.
[Amendment No. 83ZA not moved.]
[Amendment No. 85 had been withdrawn from the Marshalled List.]
[Amendment No. 85A not moved.]
[Amendment No. 86 had been withdrawn from the Marshalled List.]
5 p.m.
Lord Alexander of Weedon Lord Alexander of Weedon had given notice of his intention to move Amendment No. 86A:
Page 12, line 33, leave out from ("described") to ("in") in line 36 and insert ("binding its members which are appropriate in the interests of justice and its proper and efficient administration both generally and").
The noble Lord said: In the light of the amendments so far made it is unnecessary to move this amendment. Should I prove wrong we shall seek to return to the point on Report. I therefore do not move the amendment.
[Amendment No. 86A not moved.]
Lord Alexander of Weedon Lord Alexander of Weedon moved Amendment No. 86B:
Page 12, line 37, at end insert —
("(ii) as regards rights of audience other than those exercisable by solicitors (in their capacity as solicitors) immediately before the 7th December 1989, by its rules of conduct imposes on its members when practising as advocates an obligation reasonably requiring each of them to act for any client (whether legally aided or not) in cases within his field of practice;").
The noble Lord said: I venture to suggest that Amendment No. 86B is an immensely important amendment, but again is entirely in accordance with the spirit that infuses this Bill and with the intention that we should secure wide and equal access to justice for all citizens. On that basis I very much hope that it will receive favourable consideration by the Government.
Why do we seek to enshrine this in statute rather than leaving it to the advisory committee? It is because we consider this amendment to be so fundamental and central, yet so elementary, that it should go forward to the development of legal services with the endorsement of this Committee and be included in the statute.
The short aim of this amendment is that those who undertake advocacy in the higher courts should accept standards which will secure representation for all clients, however unpopular their cause. It also aims to secure that all advocates will accept a responsibility to carry out legal aid work.
Perhaps I may mention that the amendment as at present drafted reflects the current rules of practice of the Bar. I also stress that, in accordance with the way in which the Bill is proceeding, it will be applicable to solicitors only in regard to new rights of audience granted pursuant to the provisions of the Bill and not in any way trench on the basis of practice on which they exercise their existing rights of audience.
I also stress that this amendment does not require non-advocates to accept advocacy work; nor does it require anyone to accept work except within their field of practice. The amendment is designed only to ensure unrestricted access for the public to specialist advocates within the ambit of the skill and experience of those advocates.
The obligation that advocates should accept instructions from all comers provided that the advocate is available, that there is no conflict of interest and that the fee is reasonable, has been the obligation of the Bar for centuries. Sir Thomas Erskine, a distinguished Scot who, having practised at the English Bar, for a brief period became Lord Chancellor and was probably the greatest advocate since Cicero, said in the late 18th century that the day when an advocate could discriminate between the causes he accepted, according to personal or public sympathies, would be the day on which the liberties of England would come to an end.
I do not seek to put the point so high nor so dramatically, but I suggest that it is a very important principle. Why? It is inevitable that there are some causes which may not be either personally attractive to the advocate or publicly popular: for example, treason trials in the First and Second World Wars;

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prominent spy trials; trials of terrorists on bombing charges and trials for particularly gruesome rapes or murders. In all such cases it is immensely important that a defendant should have a highly competent advocate to present the defence case. The Bar has recognised this by making what is called the cab rank rule a fundamental principle of practice. It proposes to retain that rule. I suggest —again not in a spirit of controversy —that it is important that all those who seek the privilege (I emphasise that there is an element of privilege involved) of conducting advocacy in the higher courts should accept this obligation.
It is sometimes said —I do not shirk this —that the cab rank rule has not worked perfectly. Clearly there are cases when a defendant cannot get the counsel of his first choice. Such counsel may not be available or may have a conflict of interest. Nor do I intend to suggest that all members of the Bar always stick to the principle. Indeed that is why the Bar has recently felt it right to reassert the principle in the clearest possible terms. However, even if sometimes the rule has been breached by individuals, it has succeeded in essence because it has worked sufficiently well to secure its main purpose.
In unpopular cases the defendants have always been able to obtain highly competent counsel who have conducted the case fearlessly without favour and so made a striking contribution to the fair administration of justice. The rule has the additional benefit that advocates who act in those cases do not themselves become the victims, as has happened in the United States, of hate mail or other disapprobation because of popular distaste for the case they are arguing. By and large, our society realises that the function of an advocate is to argue the case to the best of his or her ability and regardless of personal sympathies. This public perception is a valuable additional benefit of the rule. I do not believe it would be right that those who seek to be advocates in the higher courts should do so without a willingness to accept this obligation to society as a whole.
I also suggest that it is important to establish beyond doubt, as the amendment does, that advocates should be willing to take a share of legally aided work. In recent years concerns have been expressed —and they have been ventilated in this House —that the rates of pay for legal aid are not always attractive. There might, therefore, but for the amendment that I propose, be a disincentive for some advocates to accept their share of legally aided work. Again, the Bar has recently asserted unequivocally that this should be the commitment of all its members. I suggest that it should apply equally to all those who are granted rights of audience.
Only today the noble Lord, Lord Mishcon, and my noble friend Lord Boyd-Carpenter stressed the importance of access to justice for those who could not otherwise afford it. That is what this Bill is all about. It is intended to make justice easier of access. The amendment achieves that effect in two ways. First, it will make certain that all who seek justice are entitled to representation of quality whether their
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cause is popular or unpopular. Secondly, it ensures that those who rely on legal aid will be able to take on large organisations with deeper purses with counsel of the same quality.
I once heard a very distinguished United States bishop say:
"Society either defends across the board or it ceases to be an expression of civilisation".
That is what this amendment is all about. I beg to move.
Lord Hutchinson of Lullington: I support this amendment. I do so as an ex-practitioner at the criminal Bar and as a person who has, I hope, observed those principles throughout his professional career.
The noble Lord mentioned cases involving traitors and official secrets as being difficult to take on. I had the honour —if I can call it that —to appear for perhaps the greatest traitor of all, George Blake. Having spent an enormous amount of trouble and effort in representing him with great passion, I managed to achieve for him the longest sentence that has ever been passed on anybody in this country. I give that as an example to show what a duty it is to follow the principle in question.
Throughout my career at the Bar I have met people from time to time who have addressed me on the basis, "I was very surprised to see you mixed up in a case like that". That is the attitude of so many laymen to the advocate. In my humble opinion, this amendment is as important as any that will be put forward during the Committee stage of this Bill.
It has already been said that a right of audience in a court of law is a privilege. As the Committee is aware, whether it is a barrister, solicitor, accountant, layman or whoever is to be an advocate henceforth, the exercise of that privilege must be subject to restriction. As regards barristers, those restrictions have been described as restrictive practices. By far the most important of those restrictions has always been a barrister's duty to take on any brief to appear before a court in the field in which he professes to practice and whether the client is legally aided or not.
That duty simply reflects the right which the advocate upholds of the client's entitlement to select the advocate of his choice. It is not just that the client should be represented but that he should have the advocate of his choice. I put the matter as high as Erskine put it. At the very basis of our freedom lies the knowledge that in the criminal courts, however unpopular your cause, however hopeless, however unlikely, however seemingly overwhelming the pressure of the state upon you is as an individual, you can obtain an independent, professionally dedicated advocate to undertake and argue your case and to argue it before a tribunal which is presided over by an equivalently independent judge.
From then on the advocate must fearlessly promote by all proper and lawful means that person's interest without regard to his own. It is this rule which ultimately guarantees what we have heard so much about in the Bill; namely, access and choice. It is of such fundamental importance that I suggest

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every person seeking to follow the calling of an advocate should be under a statutory duty to observe it. As I have already said, I cannot think of a more important principle that will be raised in this Bill.
I can do no better than to quote to the Committee the words of the noble and learned Lord the Lord Chancellor when he gave evidence to the Scottish Royal Commission:
"This obligation is an important constitutional guarantee from the point of view of a citizen's freedom of access to the courts. As an advocate he has to represent people even though he does not like their views and whether they have legal aid or not".
Surely a constitutional guarantee for the client or the consumer, as the Green Paper repeatedly calls him, should be enshrined in a Bill which seeks to erect a framework for the supply of legal services to the citizen for decades to come and which sets out to satisfy his needs. As the noble Lord, Lord Alexander, has pointed out, as regards the solicitors' branch it has already been granted —and we respect it —limited rights of audience on a very piecemeal basis. It has not been subject to this rule hitherto. Clause 29(1)(a) of this Bill creates an existing rights' principle and those rights we have loyally observed in this amendment.
5.15 p.m.
Lord Campbell of Alloway: I support this amendment and as a matter of conscience I support everything that has been said by the noble Lord, Lord Hutchinson, and my noble friend Lord Alexander. I shall not go over that ground again. This amendment also impinges on the very difficult question of according rights of audience to members of the Bar who will leave the Bar to obtain employment as in-house lawyers with firms of solicitors. There will be some (some say many) of my branch of the profession who will do that.
This is assuredly not the occasion to canvass the merits of this problem, on which the large City firms do not speak with a single voice. This matter is of great consequence to the maintenance of the Bar as an independent institution. It is also of very great consequence to consumers —that is the clients —who are solicitors and the public. That is apparent for the submissions which I know that my noble and learned friend the Lord Chancellor has received from certain large City firms on this matter. Those submissions point to the disadvantage to them as clients and to their clients if this exodus from the Bar were to happen.
The grant of a right of audience to such a person will under the new disposition be a matter for consideration by the advisory committee and in the last resort by the judges. It is totally plain that in considering any such application, and in view of the amendments that have been brought in, the interests of the proper and efficient administration of justice, which involve competency, efficient administration of justice and maintaining standards of quality, competency and conduct on the part of all advocates, should be had regard to.
It may be possible for the advisory committee or the judges to grant, refuse, qualify or restrict for an experimental period such rights of audience. In that regard there appears to be no fetter. Surely as a
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matter of general principle it is right that both aspects of this amendment should be treated as an inherent part of the due administration of justice. Now that these factors are embedded in the Bill my hope is that my noble and learned friend the Lord Chancellor and the Committee will find that this amendment is wholly acceptable.
Lord Mishcon: As an individual Member of this Committee what the noble Lord, Lord Alexander, said is completly acceptable as a principle; namely, that if a solicitor advocate, presumably wearing his wig and gown, stands by the side of his barrister collegue similarly attired, as a principle they should be bound by precisely the same rules of conduct. I pray that one day there will be a joint Bar and Law Society code of conduct regarding advocates.
Having said that, I believe that the Committee would like to be a practical body as regards this legislation. What we are trying to procure is that members of the public who need lawyers to conduct their litigation or their answer to a criminal charge will be able to obtain the services of a lawyer who will be under a professional duty to conduct the case or to act as an advocate when the matter comes to court. While honouring the principle of the amendment, I can tell the Committee as a practitioner that the member of the public does not knock on the door of counsel's chambers saying, "I understand that, as part of your code of conduct, if I knock on your door and you are available, then you must accept my case".
What in fact happens is that the member of the public will find a solicitor. The solicitor, knowing who are the specialists in various fields of the Bar, will then telephone the clerk of chambers and ask him to accept the case on behalf of the member of his chambers.
The solicitor will tell him that the case will be heard on a certain date and inform him that there will be only a moderate fee because his client cannot afford more or that it is a legally-aided case. I have heard this from the noble Lord, Lord Alexander, and also from the noble Lord, Lord Hutchinson, whose reputation at the Bar always was that he would accept a case if he possibly could, regardless of the amount on the brief. I have personal experience of that over many years and I express my gratitude to him for what he has done in the course of his professional life.
This provision is incorporated in the Scottish Bill currently passing through Parliament. The Committee must try to carry through into legislation a practical measure to see to it that the professional body responsible has a duty under statute to ensure that where a person reasonably requires legal representation, the professional body will see to it that he receives it. One cannot expect a member of the public to knock at counsel's door. But one knows that a member of the public will want to try to find a solicitor to deal with the matter. He will find an advocate, whether from the Bar or from the solicitors' side of the profession.
I held a meeting in a room of the House to which the Bar, the Law Society and the Consumers' Association were invited. To my surprise, the

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Consumers' Association said, when we were discussing an amendment rather similar to this, that it was not practical and that it was not what the Consumers' Association wanted. It wanted a duty imposed upon the Law Society to see to it that in a proper and deserving case a solicitor was found to look after the case who would in turn find a barrister or a solicitor advocate. It was at the wish of the Consumers' Association that Amendment No. 200A was put down.
I shall now read the amendment, although of course I have no right to move it at this stage. It says:
"Where a person applies to the Law Society stating that they cannot obtain litigation or advocacy services from a qualified legal practitioner, the Law Society shall determine whether that person reasonably requires such services.
(2) Where the Law Society determines under subsection (1) above that a person reasonably requires litigation or advocacy services, it shall be under a duty to find a suitably qualified and able practitioner to act for that person.
(3) In performing its duty under subsection (2) the Law Society may require one or more of its members to act for the applicant.
(4) Where a member fails to comply with a requirement made by the Law Society under subsection (3), the Law Society may apply to the Solicitors Disciplinary Tribunal for them to exercise their powers under section 47 of the Solicitors Act 1974 against that member".
That is practical provision and it achieves the object. The amendment now before the Committee is absolutely right in principle. But as the Consumers' Association said, it does not really help and it does not do the job which I believe the Committee would want it to do.
That is the wish of the Consumers' Association, and it may be the wish of the Committee. What does the Law Society say? Will the Law Society accept it? It was put to the Law Society and I am authorised to tell the Committee that the Law Society is prepared to accept that statutory duty and to have it incorporated into the Bill. I venture to suggest that Amendment No. 200A is possibly the amendment that the public wants; and, as the noble and learned Lord the Lord Chancellor put it, it is the amendment that the client wants. In those circumstances, and only for the reasons I have given, I should have thought that it is a better amendment than the one now before the Committee.
Lord Campbell of Alloway: Before the noble Lord sits down, will he accept that the amendment put forward by the noble Lord, Lord Alexander, is relevant to the grant of rights of audience? It has been supported, assuredly by myself, on that basis as the grant of rights of audience is relevant also to the general interests of justice and to the public interest. Will he also accept that the amendment to which he has just referred, the "consumer" amendment if I may call it that, is not relevant to the grant of rights of audience and that therefore, although his amendment may well be perfectly valid for its own purpose, it does not meet the point or purpose for which the noble Lord, Lord Alexander, moved his amendment?
Lord Mishcon: I am so sorry. I always listen with great respect to the noble Lord, Lord Campbell, but
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I thought that we were trying to ensure that anybody who needs a lawyer either to prepare his case or to act as an advocate shall have one. I went into the practicality of the matter. The member of the public who wants to avail himself of legal services will not be able, if this amendment is passed, to get an advocate in a firm of solicitors. He will not know which firms of solicitors have certified advocates —that is perhaps a clumsy expression; "advocates who have obtained the necessary certificate" is possibly an improvement.
I thought that the object of this exercise was to see that we saw to it practically that members of the public would be able to obtain suitable representation. Amendment No. 200A also mentions the words "or advocacy". Suitable advocates will obviously be either members of the Bar or solicitors who have obtained the necessary certificate for advocacy. The Law Society takes upon itself that statutory duty and will deal with any solicitor advocate, as I understand it, who for reasons which are held to be unreasonable, does not accept a brief. Such a solicitor advocate would have much stronger sanctions imposed upon him than those referred to in this amendment. Indeed, he would be subject to the disciplinary rules of the Law Society. I should have thought that that was the practical job we aim to do.
5.30 p.m.
Baroness Seear: On a matter of such extreme importance—and I speak again as someone quite outside the legal profession —is there any reason for us not having the excellent principle of "belt and braces" —as I understand it to be called? Surely the amendment of the noble Lord, Lord Alexander, imposes an obligation on the practitioners. That is an extremely important factor to assert and to insert into the legislation. However, the amendment put forward by the noble Lord, Lord Mishcon, is protecting the individual who requires legal help. Therefore, can we not have both provisions in the legislation? Surely that would not be otiose.
Lord Ackner: I intended to rise in order to put forward exactly the same suggestion. We have the considerable support of my noble friend Lord Mishcon that the proposed amendment is sound in principle. Matters which are sound in principle prima facie should be put into practice. Quite clearly his proposal is an excellent one. I see nothing disharmonious in the two amendments being considered together. I strongly support this amendment and I hope that it is passed. I also hope that favourable support will be given to the other amendment at a later stage.
Lord Hailsham of Saint Marylebone: Perhaps I may say in one sentence that we must not lose sight of the fact that it is not only barristers and solicitors who are in question in this part of the Bill; it is also the avowed intention of this part of the Bill — rightly or wrongly; and for this purpose I must assume rightly, although that does not necessarily represent my opinion —to allow other professions and members of other bodies, not the Law Society, not

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solicitors and not barristers, to have rights of audience. I should have thought that that was an added reason to impose upon the members of other bodies —if any are so allowed —quite irrespective of the merits or otherwise, the provision contained in the amendment tabled in the name of the noble Lord, Lord Mishcon.
We should also be clear in our minds that it is not only criminal cases that are at issue in this respect. I can remember —and I shall be anecdotal for one sentence only —a case in which I applied for a writ of habeus corpus in the Divisional Court, as it then was. The case in point was reported. I received an enormous hate mail. I represented three Pakistani immigrants who had come into the country and who were imprisoned by the authorities. I was successful in getting them out of prison. However, as I said, I received an enormous hate mail from members of my own party and even adverse questions at public meetings for some time thereafter. I regard the cab rank rule as an absolutely essential part of the equipment of the honourable advocate.
Lord Oliver of Aylmerton: I should like to support the amendment. There is very little I wish to add to what has already been said, save to say that perhaps it should be pointed out that the object of this amendment is not simply to secure what the noble Lord, Lord Mishcon, referred to as adequate representation; it is to secure the representation for the litigant by the counsel or advocate of his choice. That is a most important point.
The so-called cab rank rule is one which the English Bar has imposed upon itself. It may be asked, "Well, if barristers choose to accept that obligation, that's their affair, but why should they try to impose it upon solicitors?" It is not just a matter of level pegging or of even playing fields. The rule is not one which is accepted by the Bar in its own interests. Indeed, no barrister derives, or has ever derived, any advantage from it. It is imposed in the interests of justice and is part of the price —and this is most important —that the Bar has paid for its monopoly of rights of audience in the superior courts. It is only elementary justice that a person who wishes to assert or defend his legal rights, however unmeritorious his claim or defence, or a person who is charged with a crime however awful the offence and however probable his guilt, should be able to obtain proper representation before the court by an advocate in whom he has confidence.
As a profession we cannot proudly assert in one breath the fact that we have a monopoly of audience before the court and then proceed in the next breath to say, "We decline to represent you because we do not like your case". The cab rank rule is the reverse side of the coin of monopoly. The purpose of Part II of the Bill, as I pointed out on a previous occasion, is not to destroy the monopoly regarding rights of audience, but merely to extend it, in what the Government regard as the public interest, to a wider class of advocates. The price of that monopoly must in justice and, in the same public interest, remain the same for all who enjoy those monopoly rights.
Lord Rawlinson of Ewell: The practice of law in the courts has not suffered from the cab rank rule. I remember that my noble and learned friend Lord Havers and myself, as very young men, defended someone in a most sensational and unpopular defence. I was threatened with a horse whip in the Marlborough and Wyndham Club. Fortunately, however, no one perpetrated that assault upon me. We have all had the experience of having to take cases which are grossly to one's financial disadvantage, and which sometimes subject one to all kinds of inconveniences, because of this rule.
If there are going to be distinguished solicitor advocates—indeed, some of them may be present in the Chamber today —they may by reputation become very well known in their particular field. I am not sure whether they will be wearing a wig and a gown because I am afraid that I am revolutionary enough to hope that such trappings will disappear. I may be reactionary in some fields; but I am a revolutionary in others. However, I think that they may become well-known advocates. I can even think of one or two such persons at present, but I shall not mention their names because it may disadvantage some of my colleagues at the Bar. Nevertheless, they could be accepted as very formidable advocates whom a particular client wishes to brief.
As my noble and learned friend Lord Oliver said, if they take upon themselves the right of "parents" in the courts, then they must also take this obligation. I think that the noble Lord, Lord Mishcon, did what lawyers sometimes do —that is, confess and avoid. That is a technical term. In other words, he accepted the principle of it but then pointed out the difficulties regarding practicality. I see no difficulty in achieving that practicality. It is something which, if we are to maintain the same and right standard of representation in the courts for all, in the grandiloquent and true words of Erskine, then this rule must apply to all those who seek the privilege of pleading before the courts.
Lord Murray of Epping Forest: I support this amendment. I am appointed by the noble and learned Lord the Lord Chancellor with my colleagues, to cast a critical and, if necessary, suspicious eye over the activities of barristers. We all agree that the cab rank rule, as such, is enormously valuable. Some barristers show a degree of reluctance to join the cab rank on occasion. That is very exceptional and rare.
However, there are some who are a little reluctant. I am very glad that the Bar Council has recently tightened up its procedures and that it has made it clear beyond peradventure that it intends to ensure that this happens and also that barristers accept legal aid cases.
The amendment will greatly strengthen the hands of the Professional Conduct Committee. First, it would make clear the public expectation that a man who is going to court must have access to the best advocate available; the public expectation should be placed on the face of the Bill. We should not have merely the Bar's internal arrangements. Secondly, the amendment would cut the ground from under the feet of any barristers who felt that they were in

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some way going to be at a disadvantage in the handling of cases in the courts compared with advocates drawn from other professions. While it is critically important that the enforcement of the rule should remain with the professions, it would be advantageous to have the provision on the face of the Bill.
Lord Boardman: I am sure that I, together with all Members of the Committee, recognise the correctness of the objective illustrated by the moving of the amendment by my noble friend Lord Alexander. I also recognise, as I am sure other Members of the Committee do, the effectiveness with which the Bar has operated the cab rank rule. However, the noble Lord, Lord Mishcon, has illustrated, through the amendment that he has tabled, how the same result can be achieved by solicitor advocates. We seek to achieve the objective referred to by my noble friend Lord Alexander —the availability of advocates who accept legal aid and who will take any case. The Bar achieves that objective with the cab rank rule. Solicitors will achieve it if the amendment tabled by the noble Lord, Lord Mishcon, is carried.
The noble Baroness, Lady Seear, asked why we should not have belt and braces. I agree that that is an attractive idea. However, as I understand it, there are major difficulties in applying the cab rank rule to solicitors. There are partnership difficulties. They are distinct from the barrister practising as an individual. I shall not enumerate them because they will be well known to many Members of the Committee. They were put forward in the Bar's response to the Green Paper. The Bar commented that practice in partnership was impractical as well as, in legal terms, incompatible with the cab rank rule. That is an effective answer to the cab rank rule and the amendment. I hope that when we reach it we shall be able to carry Amendment No. 208 tabled by the noble Lord, Lord Mishcon.
Lord Havers: I support the amendment. I have been a great believer in the cab rank rule. If I may say it to his face, the noble Lord, Lord Hutchinson, of all whom I know at the Bar, has been the most firm devotee to the rule. One has many times seen him doing such work because he believed in it.
I wish to make just one point. Sometimes a case is so arduous and will last so long that the advocate who is asked to represent the defendant is entitled to say, "No, I have a number of fixtures next month or at Easter when the case will still be running. I have already done a great deal of work on that case and therefore I am entitled to say that I cannot take it up". All of us who have practised at the Bar have had to represent people whom we found distasteful in cases we found distasteful and in cases which we knew we had no chance of winning. There are a few exceptions to the cab rank rule, especially the long ardous case when one would be entitled to say no.
Viscount Bledisloe: This amendment and the amendment tabled by the noble Lord, Lord Mishcon, would achieve wholly different objectives. The amendment tabled by the noble Lord, Lord Mishcon,
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would ensure that a person who cannot find an advocate to represent him would have someone. The cab rank rule ensures that someone with an important, difficult or unpleasant case can have the best person or the person whom he wants.
When solicitors practise in partnership the rule may need to be modified slightly so as to say that people do not need, and cannot be compelled, to appear against their partner. Subject to that, I can see no possible reason why the cab rank rule should not apply to a solicitor or other person exercising full rights of advocacy. There is a further reason, which has not yet been adverted to, why that principle is important and why the amendment should be passed. Great fear has been expressed that under this regime the largest City firms will gradually accumulate the best advocates. It has been suggested that they will tempt away top members of the Bar. I doubt that they will because top members of the Bar are far too bolshy and difficult to be absorbed into any practice. It is much more likely that they will gradually build up in-house advocates with top class experience and that in 30 years' time the Lord Alexanders will be part of Slaughter and May or Linklaters and Paines.
If that happens, and there is no cab rank rule, it will be disastrous for medium-sized solicitors' practices. If a medium-sized solicitors' practice with an important case wants the Lord Alexander of the day but is told that it can have him only by moving the case to Slaughter and May, because as he is not on the cab rank he will not do the case unless the solicitors also use the services of his firm for the solicitors' work, the medium-sized commercial firm is doomed. For that reason, and the others that have been advanced, I strongly support the amendment and hope that the noble and learned Lord will accept it.
5.45 p.m.
Lord Byron: I shall speak against the amendment with some trepidation because we have heard a great deal in support of it. I know a little of how the cab rank rule works in practice. I have been a barrister, and I am a solicitor. I deal mainly with litigation. The cab rank rule is like family or motherhood. Everyone agrees that it is a wonderful thing, but I am afraid to say that not everyone abides by the rules.
The Bar has been extremely good at taking on unpopular causes. No one would in any way criticise it on that score; but in reality we are talking about economics: whether a case is economic or not. The Committee should realise that there is inevitably a great deal of manipulation by banisters' clerks who steer cases in one direction or another to ensure that in the clerk's eyes the correct advocate gets the correct case.
We have to approach the cab rank rule with a little scepticism. I do not speak against it as a principle, but we must realise that it is not as simple as saying to the clerk, "I should like Mr. So-and-so to take on this case", and the clerk saying, "Yes, of course". It does not happen like that, because the clerk wants to know something about the case because it may not be entirely appropriate for a particular advocate.

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The second point that we must look at, which was touched upon by the noble Lord, Lord Mishcon, is the practicality of the proposal. The amendment applies to advocacy and rights of audience. From the way in which the amendment is drafted it does not apply to the conduct of litigation. Therefore it is perfectly open to a firm of solicitors which conducts litigation —which is the first stage of the operation: the issuing of a writ or whatever—before the matter goes to court —to refuse to take on the case. In practice I do not believe that that is a problem.
I suspect that if solicitors obtain rights of audience in the higher courts, the solicitor will be approached for the conduct of the litigation and usually thereafter to carry out the advocacy. We must bear in mind that solicitors operate in partnership. An amendment was put down in the name of the noble and learned Lord, Lord Rawlinson, which was not moved. It proposed that those who sought rights of audience in the higher courts should operate as sole practitioners. I think that everyone would recognise that that would completely defeat the objects of the Bill, which are to widen those categories of persons who are entitled to have rights of audience.
I speak as a solicitor who has no particular desire to carry on advocacy myself. Certainly in the areas in which I practised in the City of London, I was not conscious of any great desire by London solicitors necessarily to carry on advocacy. But if we are to have rights of audience, we must have a system which will work in practice. With great respect to the noble Lord, Lord Alexander, I do not believe that the amendment would work in practice.
We have heard what the noble Lord, Lord Mishcon, said about the Consumers' Association. Consumers are unhappy about this because they perceive members of the legal profession —be they barristers or solicitors —taking on too much work to be the greatest problem for consumers. They suspect, and I think that they may be right, that this is one of the greatest problems; both barristers and solicitors are reluctant to turn work away. Therefore the work is accepted and either has to be transferred or cannot be carried out satisfactorily. That is what gives rise to the greatest difficulty.
While the amendment appears very attractive, as does the cab rank rule itself, we must approach it with some caution. I do not believe that it would work in practice, for the reasons I have given. Solicitors operate in a different way from barristers and it is intended that they should operate in a different way. Nevertheless it is intended that they should obtain rights of audience. For those reasons I do not believe that the amendment would work in practice.
Lord Goodman: I agree with every word that has just been spoken. I think that this is an unfortunate amendment. It imposes a legal obligation to do something that has been done from the motive of generosity. It has been the proud boast in this country that no man would fail to find someone to plead his cause, however distasteful that course may be.
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When I was in the army I had quite a long discussion about whether it would be possible to find lawyers who would defend William Joyce. In the event, he was defended by the most eminent counsel in the most powerful way. It would be wrong and a disservice to replace a voluntary impulse of a kind that has never failed with a legal obligation. I do not think that is a palatable notion.
The arrival of the amendment at this stage is likely to provoke a good deal of anxiety as to its motivation. I say at once that I have no doubts at all about the motivation of my noble friends Lord Alexander and Lord Hutchinson. The debate has been corroded for a long time because each side has deep suspicions about the other. I was gratified to hear in the course of this debate that that kind of atmosphere was being allayed and dissolved.
I feel that the amendment will be viewed and suspected in some quarters to be a disincentive to solicitors to become advocates and acquire advocacy rights. My own feeling about the amendment is that it would be much better to consider the point when the Bill has been enacted and after a little time has passed. That would enable the profession to settle down and know who will engage in it.
Furthermore, it is important to preserve the right that an advocate be not compelled to do something that is extremely distasteful. I can remember early on in my career briefing a most eminent counsel, later a Member of your Lordships' House whom I need not identify. He was involved in the first obscenity case of any consequence which related to a novel that dealt with lesbianism. It was evident that the silk engaged in the matter found the whole subject distasteful. At the end of the day he explained that he was perfectly prepared to argue the case as a matter of law, but he was not prepared in any way to support the quality of the book.
If a counsel is not wholehearted about a defence, he has every right not to engage in the case, and it would be very foolish to require him to engage in such a case. I have always found that the Bar is immensely generous in its treatment. There are four Queen's Counsel in this assembly today on whose generosity I have relied time and again. But it is a voluntary matter; it is not an obligation imposed by law.
I hope this is not embarrassing but I remember retaining the noble and learned Lord, Lord Hailsham, in a matter concerning which I had some misgivings as to whether he would wish to appear for a leading socialist personality. Those misgivings disappeared at once. He threw himself into the matter with great enthusiasm and was wholly successful.
I think that it would be better to leave this matter, which bristles with difficulties in the manner of enforcing it and deciding whether or not a solicitor or an advocate is justified in not taking a brief—so far we have not even had the opinion of the Law Society on the amendment —until the Bill is disposed of and one knows what the profession will look like. Then it can be considered from the point of view of every implication. There is a great number of implications which we have not discussed and the matter has arrived much too soon.

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It has been the proud boast of this country that one would never fail to find someone to support an unpopular cause. That is in splendid contrast with the reputation that developed in the American Bar over such matters as the McCarthy situation. It was then the case that to find a lawyer to plead the cause of an acknowledged communist was a matter of great difficulty. There has been no such difficulty in this country; no instance has been produced of such a difficulty. I strongly recommend that we defer the discussion until we can consider the matter more leisurely.
Lord Benson: I support this amendment, but I wish to approach it from a slightly different aspect. I am much more concerned, for the purposes of what I wish to say, about the legal aid scheme, and the words in the amendment,
"whether legally aided or not".
As I understand it, within the limits of human endeavour, the object of justice is twofold: first, to be fair, secondly, to be consistent. It follows from that that everybody engaged in carrying out the various tasks of justice must operate under the same ethical rules, the same rules of conduct and the same disciplines. In that respect I entirely agree with the noble Lord, Lord Mischon, who took that view this afternoon.
Although the metaphor is not particularly agreeable to the noble and learned Lord, Lord Oliver, it is a question of playing fields. The playing field must be level for everybody who plays on it. All the players on the field must observe the same rules or chaos will result.
The position at the present time, as I understand it, is that the obligation to give service to the legal aid scheme is already a rule of conduct of the Bar. The amendment provides that those who will in future join the Bar in carrying out their present functions —that is, the solicitors and the new bodies that were permitted to do so —should operate to the same rule of conduct as those at the Bar. Without that provision, the position is neither fair nor consistent.
There is another reason that this amendment should be passed. This is an important reason. If it is not passed, it will be construed very quickly that the Government are prepared to allow different rules of conduct for the same class of practitioner. That is how it will be interpreted and practitioners will immediately look to see how they can find other discrepancies. They will put forward various grounds for allowing them to act differently.
Two points have been raised on this matter. One is that the provision is not practical. I do not understand that point. The provision is already there. It is in the rules of conduct. If this Bill is passed, those rules of conduct will not be capable of being changed, except by law. They have to go through an enormous administrative structure which is to be found in Schedules 2 and 3. The rule of conduct already exists.
The second point concerns a matter raised by the noble Lord, Lord Goodman. He said such a provision was voluntary and a matter of generosity.
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I cannot understand that point either. This is not a voluntary matter or a matter of generosity. It is in the rules of conduct at present, and it works. So why on earth should it not work for everybody else concerned? For those reasons, I cannot help thinking that the amendment should be passed in its present form.
6 p.m.
The Earl of Onslow: I have listened with great care to the whole of this argument and I have been rather struck by the fact that the solicitor Members of the Chamber tended to behave slightly like my grandmother who, when she was proposed to by my grandfather, said, "Marriage is a question of give and take. You give, and I take". It seems to me that the solicitor Members of the Chamber were saying that the members of the Bar must have one rule, but if they are members of the solicitors' profession and become solicitors' advocates, they must act by different rules. In spite of what the noble Lord, Lord Mishcon, said, that is the impression that I, as a layman, obtained. I must say that I listened intently and with care to the debate. The cab rank rule seems to me so fundamentally sound and good that it would be wrong if there were not exactly the same rules for solicitors who advocated as advocates as those that apply for any other kind of advocate, especially the Bar advocates. If we depart from that principle, we shall produce two classes of advocates, one of which can pick and choose, and one of which cannot. That cannot be right for either justice or equity.
Lord Morris: I rise to put two points of clarification and to make one comment. Is the efficacy of this amendment in any way impaired by the fact that it has been placed in what I shall call the declaratory law part of Part II; namely, Clause 14, and not in a substantive part of the Bill? I am slightly concerned by that.
My other point concerns the wording:
"reasonably requiring each of them to act".
Does that wording in any way take away from the efficacy of the cab rank rule in what is the most unpopular case of all; namely, that of the man who not only is not legally aided, but who has neither the means nor the will to pay any fees at all? In that case, would the cab rank rule apply? The comment I wish to make is that the noble Lords, Lord Alexander of Weedon and Lord Hutchinson of Lullington, and other Members of the Committee, have stressed the privilege aspect of an advocate appearing, particularly in the Supreme Court or in the High Court. I am convinced that if I were to ask a young and nervous advocate who appears in the High Court in front of a judge who is in an astringent mood how privileged he felt, I should receive an extremely dusty answer.
Lord Donaldson of Lymington: I had not intended to intervene in this discussion, but I do so because of something that the noble Lord, Lord Benson, said, if I understood him correctly. I understood him to say that if this amendment is not passed, the idea will get about that the Government are prepared to accept rules of conduct —my note ran out at this point —of lower standards or which did not include

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the cab rank rule. However, as I understand the framework of this part of the Bill, it is designed to ensure that it is not for the Government to decide what rules will be accepted. That is to be decided by a partnership between the noble and learned Lord the Lord Chancellor, the two branches of the profession under advice from the advisory committee, and, to a lesser extent, the Director-General of Fair Trading and the judges. I should be very sorry if the idea got about that the Government have any part to play in this at all, except through the participation of my noble and learned friend the Lord Chancellor.
That brings me to the other matter which has surprised me a little about this debate. I consider that the Committee is almost unanimously of the view that the cab rank rule is of fundamental importance. If we were to get round a table to discuss the rule, we each might have slightly different reasons for attributing that importance to it. For my part —I am perhaps ashamed to admit this —I have been a little surprised at one or two of the comments that I have heard today. I always believed that the basic importance of the cab rank rule was that the client who was involved in litigation, whether as an accused person, a claimant, or as a defendant to a claim, did not have to convince the lawyer that he was right. In other words, he was tried by a judge or by a judge and jury.
However, it was not a two stage trial in which he was first tried by the lawyer whom he approached. I regard that as the fundamental principle of the cab rank rule. However, as I readily acknowledge, it spreads into other aspects of the matter in the sense that it was easier for my noble and learned friend Lord Hailsham to appear for clients with whom he was politically opposed because everybody knew that that was his professional duty. That was generally accepted.
The matter is complex. I am merely throwing up for consideration by the Committee the question of whether the matter is better dealt with, giving effect to the Committee's unanimous view that essentially the cab rank rule is necessary, by putting it in primary legislation or whether we should let the message go out from this Chamber to the noble and learned Lord the Lord Chancellor, to the designated judges, of which I am one and shall be one if I live long enough, the two branches of the profession and any other profession that seeks to be involved. Is it better to deal with the matter in primary legislation or to leave it to those people who will be well apprized of the feelings of the Chamber? I ask that question without necessarily giving an answer.
Lord Hacking: I address this Chamber, I hope, in the steps of the noble and learned Lord the Master of the Rolls. On Second Reading I tried to represent the position of my side of the profession on advocacy rules. I said that the same set of rules should apply to all advocates who practise in the same courts. I went further than that and I suggested that there should be common rules of advocacy for all who practise in any court of the land. With great respect to the noble Earl, Lord Onslow, certainly my side of the profession is not seeking to suggest that that rule
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should apply unequally to one side of the profession or the other.
The logic of that comes from the comments of the noble and learned Lord the Master of the Rolls when he said that this matter should be carefully considered. It is a principle that I have tried to apply in some 26 years of practice, of which exactly half was at the Bar and exactly half was on the other side of the profession in which I now practise. The principle is not the difficulty here. The difficulty lies in the application of it. The application of the cab rank rule as we see it on our side of the profession offers difficulties. That is why my side of the profession has come forward with its own recommendation in the form of Amendment No. 200A standing in the name of the noble Lord, Lord Mishcon.
That is our contribution to the protection of the public and to ensuring that the public is well served by the legal profession and that no unpopular cause or unpopular person is left unrepresented in the courts. Following in the steps of the noble and learned Lord, I suggest that for those reasons the matter is much better considered at the advisory committee stage.
The Lord Chancellor: I entirely agree with the view that what has been referred to as the cab rank rule is of great importance. The noble Lord, Lord Hutchinson of Lullington, was kind enough to quote something that I said in my capacity as Dean of Faculty representing the faculty before the Royal Commission in the late 1970s.
Perhaps I should say in response to the point made by the noble Baroness, Lady Seear, that the Faculty of Advocates is rather smaller than any of the English professional bodies with which we are concerned today. However, it deals with both aspects of the matter which concerns us. Each individual advocate has a responsibility of the kind referred to as cab rank rule responsibility. In addition, the Dean of the Faculty has the power to nominate somebody to take a case, particularly in the criminal court, if he feels that a particular level of expertise is called for which might not be within the reach of the individual. He often takes a case himself. He passes the responsibilty round among his senior brethren at the Bar, particularly in relation to murder cases. People in very busy practices might be required to give up a considerable civil case and take a murder case in order to provide proper representation to an accused person.
With some Members of the Committee, I believe that the matter is much better dealt with in the machinery of the advisory committee. I say that for a number of reasons. Some of them have been mentioned by my noble and learned friend the Master of the Rolls. One strikes one immediately on examination of the amendment, which reads:
"as regards rights of audience other than those exercisable by solicitors (in their capacity as solicitors) immediately before the 7th December 1989, by its rules of conduct imposes …".
Perhaps I may give one example. At present the solicitor has a right of audience in the magistrates' court. The Bar also has a right of audience in the magistrate's court. The Bar rules regarding the cab

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rank apply to barristers in the magistrate's court, as I understand it. I assume for the sake of this argument that no such rule applies to solicitors. However, hitherto nobody has thought that there was any injustice about that. It is conceivable that if the clause was passed in the form proposed, arguments would arise about that.
Another difficulty also arises. Let us assume for the sake of testing the argument that another body wants rights of audience in the magistrates' court. The clause would require that it would have to have a cab rank rule even although solicitors do not have a cab rank rule in the magistrates' court. That certainly would not be fair, although it might be right in some circumstances.
I take the view that it would be very desirable to impose some form of the cab rank rule on anyone who has rights of audience in superior courts, for the reasons indicated by my noble and learned friend Lord Oliver of Aylmerton. However, the rule will need to be specified in considerable detail.
I have before me the current edition of the Bar's rule on this matter, and a very elaborate rule it is. Some Members of the Committee will know the rule already. It is quite a lengthy rule. It has a great many provisos relating to various aspects of the arrangements. The Bar itself is in the course of considering a new edition of that rule. I am referring to the fourth and fifth editions of the code of practice. I believe that I am right in saying that the later edition is still under consideration. The new version perhaps places more emphasis on legal aid work than previously. There are a great many requirements in the rule which it would be right to consider applying.
Most of those provisos are covered in the amendment by the word "reasonably". It reads:
"reasonably requiring each of them to act for any client".
There might be a very considerable question about what was reasonable in this connection. While I fully appreciate the spirit in which the amendment is put forward, one of the consequences of putting it into the primary legislation might be to tie the hands of the profession in both its branches and particularly the designated judges and the Lord Chancellor in specifying the detail that might be required in this connection.
I can well see that the circumstances of solicitors might require a different rule from that applying to barristers. Perhaps I may take one example, which I mentioned when I spoke at The Times forum. There is nothing new about it. I suggested that it might be a reasonable rule. I did not reach any conclusion, but I put it forward as a view that I held at that time. It is a view that I still hold. I suggested that it might be reasonable to require a solicitor advocate who had rights of audience in, say, the High Court to give his or her advocacy services without requiring that the solicitor services of his or her firm should also be taken.
In other words, if a medium-sized firm in the country wanted the services of Mr. X who had joined a large city firm, the client would be entitled to instruct Mr. X for his advocacy services without being required at the same time to use the solicitor
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services of the large city firm. I do not say whether that would be a good rule, but it occurs to me as a possible rule if a particular solicitor is to have rights of audience in the higher courts on the basis that my noble and learned friend suggested.
If the clause is passed in this way, the question may well be asked whether we can properly stipulate that. Is it or is it not a reasonable requirement in the circumstances of a solicitor's practice? As I have said, that is a very important issue. The Committee can safely leave the matter in the hands of the designated judges and the Lord Chancellor. It is best left in that way if it is to be effective.
Perhaps I may give one further example. What is the field of practice? If I say that I handle landlord cases under the Housing Acts, is that a field of practice? I should hope that it is not. However, it is at least arguable. If we come down to detailed rules, I should like to see such matters dealt with. Passing the amendment in this form, instead of providing effective and detailed rules for the professional bodies which might have those rights, would restrict and complicate the work of the designated judges, the Lord Chancellor and the professions. Accordingly, I hope that, although noble Lords fully appreciate the importance of the matter, they will not pass the amendment.
The noble Lord, Lord Hutchinson of Lullington, rightly said that I mentioned, as I spoke for the Bar, an important constitutional matter. It stood on the rules of the Bar at that time, as it still does here and in Scotland. These matters can be important and yet be dealt with otherwise than in primary legislation. Noble Lords may safely leave the matter to the detailed consideration of the machinery which we seek to set up.
Lord Alexander of Weedon: Although I am grateful to my noble and learned friend for the obvious sympathy that he feels for the rule, I respectfully differ with him in one way; namely, that what he so eloquently described when he was Dean of the Faculty of Advocates as a constitutional guarantee is surely something which should be embodied in legislation at this time of change and not left to some advisory committee.
Until I heard my noble and learned friend respond, I thought that the principle with which we were concerned was relatively simple. It is a simple principle —access to justice for all, access to counsel of one's choice, and access for those who have the misfortune only to be on legal aid. Parliament is capable of enacting that principle if it can enact many of the other general provisions of the Bill and leaving the advisory committee to deal with the difficulties, which my noble and learned friend stressed, where it has the ability to do so because the essence of the rules contains the rubric "reasonably requiring". Under the Bill, the advisory committee will have many more difficult tasks than interpreting that rubric and implementing the spirit of the cab rank rule.
Perhaps I may now answer the noble Lord, Lord Goodman. I say to him with the greatest respect that that principle has not been one of generosity of the Bar. It has been one which, as the noble and learned

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Lord, Lord Oliver of Aylmerton, pointed out, is fundamental to the acceptance of the privilege and the existence of the monopoly. The corollary of the monopoly is the duty and that is all that we seek to embody in the legislation. The Bar has not done that as generosity; it has done it because it is part of principle and a constitutional guarantee.
This afternoon there have spoken in favour of the amendment two former Lords Chancellors, a former very distinguished holder of both the great law offices of the Crown; several barristers; the noble Baroness, Lady Seear; the noble Lord, Lord Benson, who has given vision and leadership to both branches of the profession over 10 years; and the noble Lord, Lord Murray, with his experience of the operation of the Bar Council and as a leading trade unionist with a lifetime's experience of what, as he put it, the chap wants in terms of access to counsel.
Perhaps I may take up a point made by the noble Baroness, Lady Seear, when she asked why the clause of the noble Lord, Lord Mishcon, was an alternative. It is not an alternative and, if it were, it is not a satisfactory alternative. Perhaps I may with great respect ask the noble Lord, as he supports our principle, to consider whether he cannot accept both and whether in conscience it would not be appropriate to accept both. If one considers what his clause would do by way of reinforcement it is valuable, but if one considers it as a substitute, first, the client must go to the Law Society before he can go to the solicitor and, secondly, the Law Society must adjudicate whether the client reasonably requires representation. That should not be a matter of Law Society adjudication; it should be a matter of client choice. The noble Lord, Lord Mishcon, said that, in a proper and deserving case, the client would obtain representation. We must be particularly careful to consider what some might describe as the undeserving case.
Let us then move on to what the noble Lord has in mind in his amendment; namely, that the Law Society would nominate a lawyer. As sometimes happens in the United States, it would appoint a defender. As the noble and learned Lord, Lord Oliver, said, that is not having counsel of one's choice. So, although that suggestion is a valuable extra reinforcement, which I suspect when it comes to it we would all support, if the noble Lord accepts our principle, he might on reflection accept our amendment.
Perhaps I may now deal with some of the opposition to the amendment. With the exception of my noble and learned friends the Lord Chancellor and the Master of the Rolls —the latter asked a question but did not oppose the amendment —the only opposition came from solicitors. I shall not query their motivation. It would not in any sense be in keeping with the spirit in which we are debating the clause.
However, perhaps I may with the greatest respect take up the point made by my noble friend Lord Boardman, my mentor in my present job. When he said that the proposal was impractical, I wonder whether, when analysed, that means that some
1210
solicitors would prefer for economic reasons not to organise their practices in that way. Knowing him, I am sure that he did not mean that, but we all know that it has been perfectly practical for advocates for centuries. So those who seek the extension of the privilege should accept the responsibility.
If we passed the measure as part of primary legislation, a message would go out from this place. I do not want to sound grandiloquent about this, but in many ways we have led the world in terms of principles of legal practice. We have influenced the Commonwealth. We have to some extent influenced the United States. At this time of change, would it not help if we enshrined as an example to others that which we consider valuable to all?
To bring the matter nearer home, at a time of change would it not be a great comfort to all who are potentially affected to know that the fundamental principles of advocacy in the higher courts remain absolutely unchanged and that those who accept cases will accept them for all and will accept legal aid cases? As my noble and learned friend the Lord Chancellor said, it is a principle of great: importance. It is of such importance that, in keeping with the spirit which has pervaded the debate, we should now enact it into legislation, relying on the advisory committee under the rubric to work out the details in the confidence that it will seek to do so in accordance with the principles.
Bearing in mind that we are concerned with access to justice for the citizen, particularly the disadvantaged, impoverished citizens who may have an unpopular cause, and in the light of an indication from the Government that they will favourably consider the amendment, I believe that this issue is of such importance that I should seek the opinion of the Committe.
6.28 p.m.
On Question, Whether the said amendment (No. 86B) shall be agreed to?
Their Lordships divided: Contents, 79; Not-Contents, 90.

DIVISION NO. 1

CONTENTS

Ackner, L. [Teller.]

Elles, B.

Alexander of Weedon, L.

Ewart-Biggs, B.

Beloff, L.

Foot, L.

Benson, L.

Fraser of Kilmorack, L.

Birk, B.

Gainford, L.

Bledisloe, V.

Galpern, L.

Bonham-Carter, L.

Goff of Chieveley, L.

Bridge of Harwich, L.

Graham of Edmonton, L.

Bruce of Donington, L.

Gray, L.

Callaghan of Cardiff, L.

Hailsham of Saint

Campbell of Alloway, L.

Marylebone, L.

Carlisle of Bucklow, L.

Hampton, L.

Carmichael of Kelvingrove, L.

Hanworth, V.

Havers, L.

Carnock, L.

Hemphill, L.

Cledwyn of Penrhos, L.

Hutchinson of Lullington,

Cobbold, L.

Hylton-Foster, B.

David, B.

John-Mackie, L.

Dean of Beswick, L.

Kirkhill, L.

Denman, L.

Kitchener, E.

Dilhorne, V.

Limerick, E.

Dormand of Easington, L.

Mayhew, L.

1211

Meston, L.

Rippon of Hexham, L.

Mishcon, L.

Robson of Kiddington, B.

Molloy, L.

Rochester, L.

Monkswell, L.

Russell, E.

Morris, L.

Seear, B.

Moyne, L.

Selkirk, E.

Murray of Epping Forest, L.

Sherfield, L.

Nicol, B.

Simon of Glaisdale, L.

Norfolk, D.

Templeman, L.

O'Hagan, L.

Terrington, L.

Oliver of Aylmerton, L.

Thomas of Gwydir, L.

Onslow, E.

Tordoff, L.

Oram, L.

Turner of Camden, B.

Orkney, E.

Wigoder, L.

Phillips, B.

Wilberforce, L.

Pitt of Hampstead, L.

Williams of Elvel, L.

Prys-Davies, L.

Willis, L.

Rawlinson of Ewell, L.

Winchilsea and Nottingham, E.

Renton, L. [Teller.]

NOT-CONTENTS

Alexander of Tunis, E.

Joseph, L.

Allen of Abbeydale, L.

Kimball, L.

Ampthill, L.

Lauderdale, E.

Arran, E.

Lawrence, L.

Ashbourne, L.

Llewelyn-Davies of Hastoe, B.

Auckland, L.

Barnett, L.

Lloyd of Hampstead, L.

Beaverbrook, L.

Long, V.

Belstead, L.

Lyell, L.

Blake, L.

Lytton, E.

Blatch, B.

Mclntosh of Haringey, L.

Blyth, L.

Mackay of Clashfern, L.

Boardman, L.

Marshall of Leeds, L.

Borthwick, L.

Merrivale, L.

Boyd-Carpenter, L.

Mersey, V.

Braye, B.

Monteagle of Brandon, L.

Brightman, L.

Mottistone, L.

Brougham and Vaux, L.

Mountevans, L.

Butterworth, L.

Mowbray and Stourton, L.

Byron, L.

Nelson, E.

Caithness, E.

Norrie, L.

Campbell of Croy, L.

O'Brien of Lothbury, L.

Carnegy of Lour, B.

Orr-Ewing, L.

Clanwilliam, E.

Peston, L.

Coleraine, L.

Peyton of Yeovil, L.

Colnbrook, L.

Rankeillour, L.

Craigavon, V.

Reay, L.

Cullen of Ashbourne, L.

Renwick, L.

Darcy (de Knayth), B.

Rodney, L.

Davidson, V. [Teller.]

Sanderson of Bowden, L.

Denham, L. [Teller.]

Sandys, L.

Diamond, L.

Shaughnessy, L.

Donaldson of Lymington, L.

Stedman, B.

Elton, L.

Strathclyde, L.

Fortescue, E.

Strathcona and Mount

Glenarthur, L.

Royal, L.

Goodman, L.

Strathmore and Kinghorne, E.

Greenway, L.

Griffiths, L.

Sudeley, L.

Hacking, L.

Swinfen, L.

Hayter, L.

Taylor of Gryfe, L.

Henderson of Brompton, L.

Thomas of Swynnerton, L.

Henley, L.

Trumpington, B.

Hesketh, L.

Ullswater, V.

Hives, L.

Whitelaw, V.

Hooper, B.

Winterbottom, L.

Jenkin of Roding, L.

Resolved in the negative, and amendment disagreed to accordingly.
6.37 p.m.
[Amendment No. 87 had been withdrawn from the Marshalled List.]
[Amendments Nos. 88 and 89 not moved.]
The Lord Chancellor The Lord Chancellor moved Amendment No. 89A:
Page 12, line 40, at end insert ("; and
(c) whether that body's rules of conduct are, in relation to the court of proceedings, appropriate in the interests of the proper and efficient administration of justice.").
The noble and learned Lord said: I have already spoken to this amendment with Amendment No. 84A. This provides the paragraph (c) in the set of rules. I beg to move.
On Question, amendment agreed to.
[Amendment No. 90 not moved.]
On Question, Whether Clause 14, as amended, shall stand part of the Bill?
Lord Mishcon: I should just like to raise one small point. There are two misprints in Clause 14 that at least ought to be noted. In the fourth line of subsection (1) the word "proision" is hardly the correct word; nor is the word "proviing" in the fifth line. I only draw attention to those misprints so that the corrections can be made in the Bill before it reaches Report stage.
The Lord Chancellor: I am grateful to the noble Lord.
Clause 14, as amended, agreed to.
Clause 15 [The statutory duty.]:
Lord Alexander of Weedon Lord Alexander of Weedon had given notice of his intention to move Amendment No. 91:
Page 13, line 1, after ("conduct") insert ("and practice").
The noble Lord said: In the light of the fact that rules of conduct are now to be interpreted as including rules of practice, this amendment becomes unnecessary and I do not seek to move it.
[Amendment No. 91 not moved.]
Lord Alexander of Weedon Lord Alexander of Weedon moved Amendment No. 92:
Page 13, line 8, leave out ("possible") insert ("reasonably practicable").
The noble Lord said: I shall take this amendment briefly as well. It seeks to insert the words "reasonably practicable" in that part of Clause 15(2) of the Bill which deals with the function of those who have to fulfil the statutory objectives. I raise for consideration whether that might not be a better alternative, to provide a proper and wider framework within which the judgment could be exercised. I welcome the views of the Committee and perhaps of my noble and learned friend on that point.
The Lord Chancellor: The effect of the amendment is slightly to take away from the role played by the statutory objective in the framework for developing legal services which I am trying to establish. The clause as amended would require the advisory committee, the designated judges and myself to act in accordance with the general principle and, subject to that, to act to further the statutory objective only so far as it was reasonably practicable to do so in the circumstances of the case.

1213
The clause as drafted requires the objective to be furthered. The statutory objective is something for which one must have regard; it is not a definition of a statutory duty but a statement of the statutory objective. Therefore, the consideration of achieving it in practical terms is properly left in the way that the clause is stated.
I am content to consider the matter further but at the moment I am not disposed to accept it. I cannot say that I shall consider it favourably but I shall consider it further.
Lord Ackner: I notice that the same words are used in subsection (1), which states:
"Where a person is called upon to exercise any functions … It shall be the duty of that person to exercise those functions as soon as is reasonably practicable".
It is difficult to see why the words "reasonably practicable" cannot be carried into subsection (2). I do not follow the reason and, apologising in anticipation, I am sure that it is entirely my fault.
The Lord Chancellor: I am not saying that the words "reasonably practicable" are not appropriate in some contexts. Of course they are, but I see no advantage in putting them into the provision dealt with by the amendment.
Lord Ackner: That is not an answer to my question. My question was: why are they appropriate in the sentence immediately above but not in the sentence immediately below?
Lord Morris: I suggest that in terms of time practicality is most reasonable. The noble and learned Lord, Lord Ackner, mentioned the practicality with regard to the time taken to carry out the functions. It is not a question of the time taken to perform the functions but of the possibility of performing the functions at all. There lies the reason for the different use of words.
Lord Alexander of Weedon: In the light of my noble and learned friend's indication that he will consider the matter, even if he will not consider it favourably —and I lack the eloquence of the noble Lord, Lord Mishcon, to persuade him to do so —we shall study his answer and, if appropriate, return to it at Report. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
6.45 p.m.
Lord Alexander of Weedon Lord Alexander of Weedon moved Amendment No. 93:
Page 13, line 9, leave out ("and").
The noble Lord said: I should like to speak also to Amendment No. 94, because Amendments Nos. 93 and 94 are linked. The aim of Clause 15(2) is to ensure that a person who is a member of the advisory committee or is the Lord Chancellor, or is one of the designated judges must act in accordance with the general principle. Subject to that, and in order that the general principle shall be overriding, the person must act in order to further the statutory objective.
I have doubts about whether those words are necessary because I understand that a person who is fulfilling a statutory function is obliged, even without that rubric, to seek to further the statutory objective. However, understanding the juxtapositon by which the provision is included with reference to the general principle, I concentrate only on Clause 15(2)(b). It contains the provision that someone should:
"not act in any way which would be incompatible with the statutory objective".
I have always understood the position to be that, if someone given a statutory function acted otherwise than in accordance with the statutory objective, his actions would be ultra vires. That is a classic element of the principle of separation of powers; that a person shall not act outside his powers and, in exercising the powers, shall not act for any ulterior or different purpose from that for which the power was given.
That being so, the clause appears to be tantamount to stating that those involved shall not act in a way which is ultra vires. I have heard that the provision has caused a little offence to some of the distinguished people who would be concerned. I suggest that it is unnecessary in order to achieve the statutory objective and, if that is right, it should not be included in the Bill. I beg to move.
Lord Hutchinson of Lullington: It is most inappropriate to impose on the noble and learned Lord the Lord Chancellor, and on four of the most senior judges in the land sitting in a committee chaired by another senior judge of distinction, mandatory duties in the terms which appear in Clause 15(2)(b). The noble Lord, Lord Alexander, has said that the provision is unnecessary. I urge on the Committee the view that not only is it unnecessary but it is totally inappropriate.
Lord Donaldson of Lymington: I hasten to assure the noble and learned Lord the Lord Chancellor that I am not in the least offended by the wording of the clause. On the other hand, the language could be reconsidered. I prefer the use of the word "shall" instead of the word "must". That is the normal way in which statutory duties are communicated to those who must carry them out. The word "must" is unusual, but be that as it may.
I have not had an opportunity of considering my drafting in detail but I hope that my noble and learned friend the Lord Chancellor will consider the following wording:
"A person exercising any such functions shall act in accordance with the general principle and, subject to that, shall seek to further the statutory objective".
That appears to be simple and normal language.
The Lord Chancellor: I am prepared to consider the wording further. The issue is extremely important. The policies contained in the White Paper were put to the draftsman and he came forward with the provision in his way. I shall draw to his attention what has been said and ask for his views.
Lord Alexander of Weedon: I am grateful for that indication and beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 94 not moved.]
Lord Alexander of Weedon Lord Alexander of Weedon moved Amendment No. 95:
Page 13, line 11, at end insert —
("(3) None of the designated judges shall be liable in damages for anything done or omitted in the discharge or purported discharge of any such functions.").
The noble Lord said: The amendment deals with the position of the designated judges in regard to their role under Part II of the Bill. In particular it deals with their work when at the appropriate stage they consider the recommendation of the advisory committee and, one hopes, work in conjunction with it.
Clause 16(8) properly provides that:
"Neither the Advisory Committee nor any of its staff or members shall be liable in damages for anything done or omitted in the discharge or purported discharge of any of its functions".
Our amendment mirrors that provision in regard to the designated judges. If anyone were to suggest that the designated judges had acted improperly or outside the ambit of the Act, the right remedy, and the one which would remain available, would be that of judicial review. In our submission, it would not be appropriate that they should be placed in a position different from that of the advisory committee and under a potential liability for damages. I hope that my noble and learned friend will consider that it would not be appropriate for the judges to be subject to such a potential liability. I beg to move.
Lord Donaldson of Lymington: I have already expressed the view, I think on Second Reading, that I would not be subject to damages for breach of this duty if I breached it —which I hoped I would not —and that if I was subject to damages I should be looking to my noble and learned friend to persuade the Treasury to stand behind me, as he would in relation to any actions brought against me in my ordinary judicial capacity.
If anybody wants to put this in of course I have no objection, but I really rose in the hope that I might appear on this occasion as an advocate for my noble and learned friend the Lord Chancellor in case the point had not occurred to him. If we are going to do this thing at all ought we not to do it thoroughly and put in "the Lord Chancellor or the designated judges"?
Lord Ackner: I take this to be an important point. I think that the Lord Chancellor can of course come in. He is in a different situation. He is a Minister of the Crown. In the 12th F.A. Mann lecture, which I had the great privilege of hearing and which was given by my noble and learned friend Lord Hailsham, entitled The Office of Lord Chancellor and the Separation of Powers, he said this (at page 312 of the Civil Justice Quarterly for 1989):
"Since 1873, when for all practical purposes he ceased to be a first instance judge, the Lord Chancellor has had one paramount duty. The protection of the independence of the judiciary and the integrity of the profession".
1216
In Tuesday's debate my noble and learned friend the Lord Chancellor, in his characteristically most kindly and friendly way, chided me for not apparently appreciating that. However, later, post prandially, in the debate on Clause 8 I was able to point to a minor example in Clause 8 itself where he had sought to arrogate to himself absolute power as to the choice of lay advocates who should be entitled to appear in certain wide categories of cases in the county court. In so doing he informed the Committee that he was implementing one of the recommendations of the Civil Justice Review. However, that recommendation left the discretion not to the Lord Chancellor but to the court —understandably, because it is for the judges to control how justice is administered in their courts.
Unlike Clause 8, to which I have just made reference, unless amended in the terms that we have proposed, this clause makes a major incursion into the independence of the judiciary. There are other such incursions, but let me concentrate on this one. Independence of the judiciary not merely means their having security in their offce; it involves their being free from interference or pressure from the Executive as to how they perform their judicial functions. Independence means that no one can tell a judge what his decision should be.
It would be quite unrealistic not to conclude that by this Bill the Executive is seeking to control the right of audience, a power in the higher courts previously exercised by the judges, it being an incident inherent in jurisdiction that a court should decide for itself what persons should be permitted to appear before it as advocates. As Clause 16 stands —and I shall seek to avoid debating its merits at this stage —it is the Lord Chancellor, and only the Lord Chancellor, without the obligation to consult anyone else, who makes the appointments. On that Committee there is a lay majority. I quote from the noble Lord, Lord Beloff, at col, 1376 of Hansard on 7th April 1989 in the debate on the Green Paper:
what is a lay majority but a cover for Civil Service control?".
Or perhaps I may add the words of the noble Lord, Lord Benson, in the same debate at col. 1423:
"The blind, by statute, will be leading the blind."
Forced into this much criticised and to be further criticised bureaucracy, the Law Lords apart, the foremost senior judges, already overburdened with their judicial and administrative functions, are to have a new statutory obligation placed upon them. Clause 14, which we have debated, is designed to impose —I use a neutral word —statutory duties both upon an advisory committee and these four senior judges. However, as has been pointed out, in Clause 16(8) neither the advisory committee nor its staff or its members shall be liable in damages for anything done or omitted in the discharge or purported discharge of any of its functions. That advisory committee is to consist certainly of one judge as chairman who is to be a Lord of Appeal in Ordinary or a judge of the Supreme Court. We hope there will be other judges too.
To them, specific immunity from damage is granted. Not so to the designated judges. I ask the simple question, why not? This is the first time that

1217
the senior judiciary in the exercise of their judicial functions have ever been made liable to judicial review, let alone to a claim for damages. They have somehow or other, and I do not know how, to find the time to involve themselves in these onerous duties as a consequence of the executive deciding to remove from them what has hitherto been their sole preserve, and are to have in addition the threat of a claim for damages hanging over their heads if they, or anyone of them, fail to agree with the advice tendered by a lay dominated committee. If this is not the strongest attempt yet in the statute book to interfere with the independence of the judiciary, I do not know what is.
I fully appreciate, and indeed I firmly approve of, the tradition of your Lordships' House on all occasions to be moderate. But I venture to submit that if this amendment is not passed it will be an affront to the designated judges perpetrated by my noble and learned friend, who has stressed so emphatically his paramount duty to protect the independence of the judiciary.
Lord Mishcon: After the serious note that was struck by the noble and learned Lord, Lord Ackner, may I say what an entertaining exercise it would be, if any of the designated judges were in fact sued for damages, whom they would chose to represent them under the cab-rank rule. But having said that, I cannot seriously think that any Member of your Lordships' Committee would wish to see —and I am sure that this applies to the noble and learned Lord —a designated judge liable for damages in the exercise of his duties. I should hope therefore that this amendment would be speedily accepted and passed.
Lord Griffiths: I should like to say that it never occurred to me for one monent that the designated judges could be liable for damages in any suit as a result of the exercise of their functions. I wish to dissociate myself from any idea that this might have been implanted in order to circumscribe the judges by the executive. I entirely repudiate any such idea, but if it is felt that the protection is necessary, so be it, let it be stated.
Lord Campbell of Alloway: I took the view at Second Reading that as matters stood it was doubtful in the extreme whether the designated judges could be made liable for this breach of statutory duty. But if I may I join forces with the noble and learned Lord, Lord Griffiths, who has just spoken, if protection is needed and if there is any doubt, as the noble Lord,Lord Mishcon, suggested, let us clarify the situation beyond doubt.
Lord Bridge of Harwich: I see no sinister bureaucratic attempt in Clause 15 to invade the independence of the judges. Since provision is made in Clause 16(8) to protect the advisory committee from liability in damages, in my submission it would be worth having this amendment in if only to negative the argument. Parliament expressly provided that the advisory committee should not be
1218
liable in damages. It made no such provision in relation to the designated judges; ergo it intended that the designated judges should be so liable.
7 p.m.
Lord Benson: I may be barking up the wrong tree, but I thought this principle had been accepted by this House on several occasions in recent years; namely, the simple principle that, when there is imposed on somebody a statutory duty which may or may not expose him to damages or claims for damages, then he should be indemnified. This was debated in the Financial Services Bill and the indemnification was put into that Bill. It was debated at enormous length last year on the Companies Bill. It was contested in the early stages by the Minister speaking for the Government, but the tenor of the House supported the view that the indemnity should be given. It was therefore put into the Companies Bill. There is now a third occasion. Why is it left out on this occasion? Why do we have to fight for it yet again?
There are three reasons why the principle is important in the general sense. First, if people are exposed to damages in this way and they are not indemnified, they will not want to act. This may not be the precise situation here because the judges have to act, but in cases where there is a choice of people, those people will not want to act. I have experienced this in another context where I could not get people to act unless the indemnity was given.
Secondly, it is impossible to obtain Insurance or, only at prohibitive cost. Again, I have been through this hoop myself in relation to the Companies Bill. We went to great trouble to find out about this. We found that insurance was not available and that therefore unless people had indemnity they were exposed to damages.
Thirdly, a delicate but extremely important reason is that if people are exposed to damages which might ruin their lives they will not give the decision they ought to give. That is the danger and that is why it is absolutely vital to include this provision in the Bill. I hope that will not be construed by anybody in the Chamber as suggesting that the designated judges would deviate from their path of integrity. The fact remains it is vital to maintain the principle that nobody should be put in a position where his life can be completely destroyed by a claim for damages and then have to face a decision which will put him in exactly that position.
The Lord Chancellor: I have to say that it never occurred to me for a moment that the designated judges could be liable in damages in the circumstances of this particular Bill, assuming it becomes an Act. As my noble and learned friend the Master of the Rolls said, it is the invariable practice of the Government to provide indemnity to judges who are sued —as sometimes judges are —in relation to their judicial work.
I believe my noble friend is incorrect in suggesting that this is the first time that judges in their judicial capacity have been given work of this kind. My noble and learned friend the Master of the Rolls approves

1219
the conduct regulations for solicitors under the Solicitors Act. My noble and learned friends the Lord Chief Justice and the Lord Chancellor, along with the Master of the Rolls, approve the training regulations for solicitors. There are also other situations; for example, work in the Rules Committee. The judges and the Lord Chancellor would be liable for their duties in that connection. There is no question, however, of any intention that the judges should be liable in damages.
The only point I have to consider is whether including a provision in this particular Bill might create doubt about the situation in other cases where judges already have statutory functions. I have that consideration in mind, but I certainly undertake to consider the matter. There is nothing between us in principle; the question is how best to achieve the continued immunity of judges from damages for suit.
Lord Alexander of Weedon: It was not part of my suggestion, in opening this amendment briefly, that there was any sinister intent by the exclusion of the judges from the provision in Clause 16(8). All I sought to suggest was that, as Clause 16(8) is in the Bill, as a matter of caution it would be sensible to have the provision in the earlier parts of the Bill. I may be wrong, but I thought I interpreted my noble and learned friend's response —though he did not actually say so —as an indication that he would consider favourably an amendment along those lines. If he gives an informal indication that that is so, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 15 agreed to.
Viscount Ullswater: I beg to move that the House do now resume. In moving this Motion, perhaps I may suggest that the Committee stage should begin again at ten minutes past eight o'clock.
Lord Simon of Glaisdale: May I ask, before the voices are collected, how far the Government reasonably expect us to go this evening and how late they contemplate sitting?
Vicount Ullswater: I understand it is intended that we should reach Clause 30.
Lord Simon of Glaisdale: The noble Viscount did not answer my second question. If we try to reach Clause 30, we shall go well into the early hours of the morning.
Lord Mishcon: Not if the business of the Committee is carried out with reasonable despatch.
On Question, Motion agreed to.
House resumed.

Trade Union Act 1984 (Amendment) Bill [H.L.]
7.7 p.m.
Report received.
Clause 1 [Amendment of s. 10(3)(c) of Trade Union Act 1984]:
Lord Campbell of Alloway Lord Campbell of Alloway moved Amendment No. 1:
Page 1, line 7, leave out from ("be") to end of line 8 and insert ("suspended until such proceedings, including any relevant appellate proceedings, shall have been concluded.").
The noble Lord said: My Lords, I move this amendment in an irenic spirit. Amendment No. 3, which stands in my name, is purely consequential. Noble Lords on all sides of your Lordships' House have striven to reason with Her Majesty's Government and meet all their objections to this Bill. It appeared at Committee stage to no avail. As seen by your Lordships' House this is not a political question and no noble Lord —least of all those of us who have spoken from these Benches —are in any way interested in confrontation with Her Majesty's Government. We have only sought to persuade by reasoned argument —so far to no avail.
Somewhat dispirited, therefore, but not totally downcast, after Committee stage I sought the advice of my old friend the noble Lord, Lord Carr of Hadley whom I served in the early 'seventies in his office as Secretary of State. He authorises me to inform your Lordships —he cannot attend, alas, but would have done so had he been able —that in his opinion, which is reflected in Amendments Nos. 1 and 3, Her Majesty's Government will not allow for any judicial extension of the 28-day period. It is, so to speak, holy writ or cast in stone, if you like. It is a statutory period. My noble friend Lord Carr of Hadley asks: "Why not stop the clock to avoid this unintended injustice and the overburdening of the judiciary and then restart the clock when the proceedings are concluded?"
That is what this amendment and its sister, Amendment No. 3, seek to achieve as an alternative to extending the period as proposed in the amendment to be moved later by the noble Lord, Lord McCarthy. I wish to be totally frank with your Lordships' House and with my noble friend the Minister. If the Government are not attracted to the principle of Amendments Nos. 1 and 3, and refuse to accept them, I shall withdraw them. The noble Lord, Lord McCarthy, will then move his amendment, which I shall support.
If the Government were to accept the principle of the stop-the-clock amendment, the hope is that the noble Lord, Lord McCarthy, would not move his amendment. He is good enough to indicate assent. So we are all at one and we all understand which way we are going, although the matter seems rather complicated.
The time has now come for plain speaking. We have to get down to brass tacks. Noble Lords must know today where they stand. I ask the Minister whether Her Majesty's Government accept that there is a problem; namely, that of unintended injustice and the overburdening of the judiciary. Does the Minister accept that there is such a problem? I would like an answer. If my noble friend accepts that there is a problem can he tell us how Her Majesty's Government propose to deal with it? I also seek an answer to that question.
We are now entitled to an answer, yes or no. If the answer is yes, how do the Government intend to deal with the matter? If the answer is no, I shall withdraw the amendments and we shall proceed on the amendment tabled by the noble Lord, Lord McCarthy. It is common ground between my noble friend the Minister and myself that the Bill now before another place can carry either of these amendments; namely, either the stop-the-clock amendment or that tabled by the noble Lord, Lord McCarthy.
When that Bill reaches your Lordships' House either amendment may be tabled. If it is rejected by another place, and if the mood of this House persists, the matter will be returned to another place. As your Lordships know, I have given an undertaking to continue with this Bill which, if it is killed in another place, can only result in tabling amendments to the Government's Bill when it reaches this House. Undertakings given are to be honoured. I appeal to Her Majesty's Government to accept the inevitable and to avoid a future collision course between the two Houses by today pre-empting such a situation one way or the other.
If the Government propose to do nothing, let it be said; if they propose to do anything, let it be said; if there are reasons in support of either attitude, let those reasons be given today. As a firm supporter of this Administration I have played this measure with an open hand. I have given notice of all these intentions to the Government Whips, the Attorney General and to my noble friend the Minister. In this long and good-humoured debate —and let it always remain so —your Lordships have shown exemplary patience. The House may well feel without in any way capping my noble friend the Minister, that it is only reasonable that we should now have an answer to the questions that I have raised. I beg to move.
7.15 p.m.
Baroness Turner of Camden: My Lords, this amendment, to which I have put my name, is a further attempt to persuade the Government to accept the Bill which has been introduced by the noble Lord, Lord Campbell of Alloway. The reasons for the Bill have been stated on many occasions in this House. I do not wish to repeat them at length tonight. As we have said, the Bill is an attempt to rectify an injustice which arises from the imposition on a union of the obligation to ballot yet again if the 28 days allowed to it under present legislation have been eroded by actions initiated by the employers in the courts.
We know that this has happened once already in the case of the dock work dispute. We also know that it can certainly happen again even though the Government have stated that they regard that situation as very much a one-off business. In our view that is not the case and the situation could easily arise again. The Minister at that time also said that the Government did not want a situation in which an unlimited amount of time would be available to a union within which it could call a dispute following a majority ballot.
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I have re peatedly said, and I say it again in this House, that it is never in the interests of a union to prolong the time following a ballot and to delay calling a dispute once it has a mandate for so doing. Matters tend to go off the boil. Members expect a call from the union and, if nothing happens, they become frustrated and less inclined to follow the union's lead. The same is true if a union has to call a second ballot, if it is forced into that position because the mandate has been exhausted, whatever the reasons may be.
In order to meet the Government's objections, an amendment was accepted in Committee which would have put a limit on the length of time available. We now have before the House another amendment, another variant, which we hope will commend itself to the Minister. The noble Lord, Lord Campbell of Alloway, has described it graphically as a stop-the-clock amendment and that is what it is. That will mean that the 28-day period will not have been completely eroded and the union will not have to ballot again in the normal course of events because even if the proceedings went to appellate level, effectively, they would not be counted as part of the 28-day period.
There is another variant before the Douse in the form of an amendment to be moved by my noble friend Lord McCarthy. I support either variant. We are anxious to see this measure on the statute book. In order to achieve that, we on this side of the House support an amendment which would meet the Government's objections as regards an unlimited period of time. I would be prepared to trust the discretion of the court, a matter provided for in the original Bill. The Government are not prepared to accept that. That being so, I earnestly ask the Minister to indicate to the House whether the Government are prepared to accept either of the amendments. The Bill would then proceed to the statute book and be accepted as law in this area. With those words, I commend the amendment to the House.
Lord Brightman: My Lords, the Bill qualifies for a mention in the Guinness Book of Records. Its history is unique. It has had the advantage of two Second Reading debates and a Committee stage. There have been about 20 speeches in all. Every speaker except the Minister has spoker. in favour of the Bill. We cannot all be wrong, at least I do not think so. I now make my fourth speech. There is no point in repeating what I and others have said. It is sufficient to say that I am in favour of the Bill. I am in favour of the amendment proposed by the noble Lord, Lord Campbell of Alloway. I am also in favour of the alternative amendment which may be proposed by the noble Lord, Lord McCarthy.
Lord Rochester: My Lords, from these Benches I support the amendment. Should it not find favour with the noble Lord, Lord Strathclyde, I shall support the amendment to be moved in that eventuality by the noble Lord, Lord McCarthy.
As I see it, the amendment moved by the noble Lord, Lord Campbell, removed the ambiguity identified in the amendment moved in Committee

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by the noble Lord, Lord McCarthy, to which noble Lords then agreed and which is incorporated in the Bill as now amended. The amendment of the noble Lord, Lord Campbell, also overcomes the objection raised to that amendment by the noble Lord, Lord Strathclyde, when he questioned why, if a ballot were to be held to continue to represent the view of relevant members more than four weeks after it had taken place, that should depend on a court's decision.
At that time the Minister went on to make what was to me a significant statement. He said:
"If there were to be changes in this area of the law, the Government believe that the right approach would be to preserve the principles upon which the present legislation is founded. The noble Lord's amendment" —
the amendment of the noble Lord, Lord McCarthy—
"fails to satisfy this test, in my view". —[0fficial Report, 15/1/90; col. 485.]
With that statement in mind, I should like to put the following proposition to the Minister. Should he regrettably find fault with the proposed amendment on the ground that it fails to satisfy that same test —I very much hope he will not —might the Government's response be more favourable if at Third Reading I were to propose simply that, without reference to the courts, a period of eight or even of only six weeks should be substituted for the period of four weeks now included in the 1984 Act?
Lord McCarthy: My Lords, the series of suggestions put before the Government for their consideration during the proceedings on this Bill proves, if it proves nothing else, that we are doing our very best to try to accommodate all the legitimate objections which the Government might put forward. I apologise for not being in the House in time to read the new amendment proposed by the noble Lord, Lord Campbell of Alloway, and to discuss it with him. This was due to falling trees on the Western Region.
In the light of what he has just said, I believe that his amendment is in many respects superior to mine, superior merely in the sense that it goes a little further to meet the Government's stated objections. If my noble friend Lady Turner refers to the noble Lord's amendment as a stop-the-clock amendment, I suppose that my amendment in Committee which is now down for further discussion today might be called an injury time amendment. I can see that there are advantages from the Government's point of view in stopping the clock rather than having injury time. It would do away with any possible incentive, which they said was a matter of concern to them, for a general secretary of a union to strike first, somewhat irresponsibly, in order to ensure that he could have one ballot even if subsequently a decision went against him at the court of first instance.
It would not be possible, as it might have been possible under previous amendments, for the courts to give the unions more time altogether —although I do not think they ever would —than they would have been given if they had been subject entirely to the 28-day rule. From that point of view it seems that the amendment goes further than my previous amendment did and my amendment on the Marshalled List today does to meet the
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Government's objections. My amendment simply clarifies something which was unclear in Committee.
I am sure that we are all in the Government's hands. If they can indicate that they prefer one amendment to another, or say that while they do not like either of the amendments they like the suggestion of the noble Lord, Lord Rochester, noble Lords will immediately back that proposal. It is very much in the Government's court.
Lord Strathclyde: My Lords, the amendment of my noble friend Lord Campbell of Alloway certainly adopts a very different principle from that which has previously appeared in Clause 1 of the Bill. No longer is it to be left to the courts to exercise discretion about whether to extend the four-week period allowed between the date of a ballot and the union's first authorisation or endorsement of industrial action. Instead a four-week period is to be suspended until any proceedings in which a relevant act is called into question have been concluded —the stop-the-clock provision, as my noble friend called it.
To explain my reservations about the amendment I fear that I must once again restate the essential purpose of the law on industrial action ballots and of the four-week limit. In requiring a union to ballot its members as a condition of immunity for organising industrial action, the law simply ensures that union members can expect to have a vote in a proper ballot before being induced to take industrial action by their union. To allow an undue length of time to elapse between such a ballot and the union's first authorisation or endorsement of industrial action risks the situation in which the ballot result no longer accurately represents the views of the union members as recorded in the ballot. The 1984 Act fixed the limit at four weeks from the date of the ballot.
It may be helpful if I also confirm that these arrangements are quite different from those which would have been adopted if we had meant to ensure that a union invariably had four weeks from the date a ballot first authorised industrial action during which it would not be and could not be constrained by court proceedings or indeed an injunction. This is an important point on which noble Lords should be in no doubt. If more than four weeks pass without a union authorising the industrial action about which its members voted, it cannot be assumed as a matter of course that the ballot result continues to reflect the views of the relevant members.
As it happens, we have recently seen how the views of voters —that is, the votes of union members —may well change with the passage of time. When Ford manual workers were balloted on 18th December, they voted to take industrial action. However, when balloted again on 23rd January, a little over four weeks after the date of the previous ballot, they voted against. That was despite the fact that their union recommended they should vote in favour of industrial action. Surely that illustrates —although, I do not seek to draw a general lesson from the circumstances of a particular case —the dangers of allowing too great an interval between a ballot and the union action to which it relates.
7.30 p.m.
Lord McCarthy: My Lords, I should point out to the Minister that the offer was considerably improved between the time of the first ballot and that of the second ballot. It was not the same issue.
Lord Strathclyde: My Lords, the noble Lord is quite right; the conditions had changed. However, the noble Lord, Lord McCarthy, has entirely missed the point. The leaders of the union recommended that their members should vote for a strike. It was the union members themselves who voted against such action. It shows that sometimes there is a difference between what union leaders think their members want and what their members actually want.
Lord Murray of Epping Forest: My Lords, the Minister must surely recognise that in adducing this argument he has completely missed the point. For example, in the ambulance strike the leadership recommended acceptance of the offer while the members turned it down. What the leadership recommends and what its members decide is totally irrelevant to the issue under discussion. The issue is a simple one. I put it to the Minister in this way: if he had thought of this argument during the passage of the Bill, would he have written the existing condition into the legislation?
Lord Strathclyde: No, my Lords. The point I am trying to make—and, I did say that I was not seeking to draw a general lesson from any particular case —is that within a fairly short space of time, in this case four weeks, the minds of union members can change —
Baroness Turner of Camden: My Lords, I trust that the noble Lord will again give way. Does he not agree that the issue had changed? Of course it is true that the circumstances have not changed; but the issue upon which the members were balloted had changed in that the offer was different.
Lord Strathclyde: My Lords, I totally accept that point. However, the principle I am trying to put across to the House is that union leaders may think in one way while the union members think in another. Therefore, extending the four-week period may not be in the interests of members and may not be what they decide.
I return now to the amendment under discussion. Noble Lords will be aware that the time necessary to conclude the sort of proceedings to which this clause relates could be very considerable. Even interlocutory proceedings can be appealed up to this House. If full trial of the action is necessary before proceedings can be regarded as concluded, that would be a very lengthy process. The point is that by the time such stages had been completed, there could be no guarantee that the original ballot represented the present views of those who voted.
There appears to be another problem concerning the terms of the amendment; for example, exactly what the word "suspended" would be taken to mean. That is a point of detail and is of minor significance
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in comparison with the fundamental difficulty which I have already described —namely, that an undue amount of time might elapse between the date of the ballot and the union's authorisation or endorsement of industrial action which that ballot was about.
The noble Lord, Lord Campbell of Alloway, correctly asked me to represent the Government's position on the Bill and he also asked how he should proceed hereafter. As I said during various debates on the Bill, the Government will certainly keep relevant aspects of the present law under review. However, the fact is that the Government remain unconvinced that there is a problem about this aspect of the present law which needs to be tackled by further legislation.
Noble Lords have made frequent reference to the fact that the TGWU had to reballot its members when the four-week period —during much of which the union was subject to an injunction —had expired, before it first authorised or endorsed industrial action by dockers last summer. We must ask ourselves whether the need to reballot in those circumstances really represented a failure of, or a problem about, the current law as it stands. It seems to me that it was quite right that the union should have gone back to its members and given them the chance to indicate in a proper ballot whether they were still content for it to organise industrial action.
If it is argued that the Bill is not designed to ensure that a union need not be placed in the position of the TGWU last summer, then I must ask: what is it about? The Bill may be based upon a simple proposition: that Parliament was wrong to impose a four-week limit on the validity of an industrial action ballot, as it did in the 1984 Act. Indeed, the noble Lord, Lord Rochester, mentioned that point this evening. I have not heard any real point of principle illustrating that Parliament got it wrong in 1984.
Another possibility is that the Bill is aimed at helping to ease the burden on the courts which can arise from the need to accord a certain priority to dealing with industrial relations litigation. As I said in the debate on 6th December (at col. 961 of Hansard):
"The Government appreciate that ensuring expeditious hearing of priority cases inevitably causes some disruption to judges, listing officers and parties involved in less urgent cases".
It is much to the credit of the courts that they ensure that priority is given where necessary. It is surely a virtue of the way they operate that this can be done. In any case, if that were its motivation, this Bill is not really an appropriate vehicle for addressing what may be wider issues about our machinery of justice. I repeat and reconfirm that we shall continue to keep the law under review.
I must say to my noble friend that no argument put forward in connection with an amendment to the Bill thus far would convince me to support its inclusion in the legislation at this point in time.
Lord Campbell of Alloway: My Lords, my noble friend the Minister has carried his bat on a sticky wicket. I congratulate him. He has been totally forthright. He says that there is no problem. Therefore, as there is no problem, he says that

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nothing need be done. However, that view ignores the consensus of your Lordships' House.
As pointed out by my noble and learned friend Lord Brightman, it is accepted on all sides of the House that there is a problem. Further, such a view also ignores the letter, dated 7th December, from the Master of the Rolls referred to in cols. 480 and 481 of Hansard on 15th January. It is what I would call the own goal letter. It pointed out to my noble friend the Minister that if his point of construction —to which he referred this evening —is right, he is in fact scoring an own goal. Not only does the Minister's view ignore the contents of that letter, it also ignores the corrective interventions of the noble Lords, Lord Murray and Lord McCarthy, and that of the noble Baroness, Lady Turner of Camden.
The Government insist that there is no problem. Therefore there is no more to be said. The four weeks issue raised by the noble Lord, Lord Rochester, was dealt with by my noble and learned friend on the suggestion that the Government might have got the four-week period wrong and that this could be rectified because they are always looking at legislation.
However, I have never suggested that the four-week period was wrong. Moreover, no noble Lords in the course of debate have ever suggested that such a period was wrong, and I am not here and now going to suggest otherwise. In my view, four weeks is a reasonable and fair period. Your Lordships' House has accepted it as such. There it is. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord McCarthy Lord McCarthy moved Amendment No. 2:
Page 1, line 8, at end insert ("as from the expiry of the period of 4 weeks referred to above").
The noble Lord said: My Lords, I am sorry that we have come to the amendment because I thought that the Government might have been a little kinder to the still more modest amendment moved by the noble Lord, Lord Campbell of Alloway; nevertheless, here we are. The House is well aware of what the amendment is intended to do: it is intended to make it clear, whereas it is said not to be clear in the amendment that I moved in Committee, that we are excluding the original 28 days in the maximum allowed for judicial discretion, and we are therefore suggesting that the maximum overall time available for the exercise of discretion is 10 weeks.
Of course, despite what the Government have said, if we had any indication that any other formulation, such as that suggested by the noble Lord, Lord Rochester, might find a somewhat less flinty heart on the other side of the House, we would change it again. If the Government destroy the Bill in another place, we can return to the issue when the Goverment's latest Employment Bill comes to the House. We shall go on.
The only new argument put forward by the Government tonight is that the four weeks are to be regarded as sacred because —I am trying to be fair to the Minister —in four weeks anything could change and, in particular, the rank and file members might
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then disagree with their executive. If they disagreed with their executive, and the executive was recommending a strike, they might then be prepared to take the offer. In order to support that, the Minister quotes one instance—Ford's.
As my noble friend rightly said, that issue was not the same. There was a considerable improvement in the offer. Therefore when the executive went out to ballot the second time, it is true that the leadership gave the same recommendation that it had given previously. On that occasion, on a separate issue, the members decided that they were prepared to take the offer. A much better comparison, and one that I made in Committee, and one made by Mr. Clarke, the Secretary of State for Health, in the recent debate on the issue, is that of the ambulancemen. In that dispute there were two ballots. In that case the issue was the same because there had been no significant improvement in the offer; nevertheless, there was second ballot and the majority for continuing the dispute was larger than it had been in the first place. It is far more likely if the Government force people, especially in the context of an intervention by the courts, to have a second ballot, that the majority will be increased. That is what happened in the case of TGWU and the docks.
Therefore, in his own interests and in the interests of good industrial relations, the Minister should try to find some way to join the widely expressed feeling in the House. For all those reasons, I beg to move.
Lord Campbell of Alloway: My Lords, I support the amendment for the reasons given by the noble Lord and to place on record the gratitude of your Lordships' House to the noble and learned Lords, Lord Brightman and the Master of the Rolls, whose names appear against the amendment and who drafted it. I am grateful to them for their assistance.
7.45 p.m.
Baroness Turner of Camden: My Lords, I support the amendment moved by my noble friend. As I said earlier, I support both amendments, and I am sorry that the first amendment did not attract government support. I should like to take the Minister up on one point that he made. He said, and my noble friend has emphasised this point, that he believes the four weeks are sacred. In the dock work dispute, the TGWU did not have four weeks. The four weeks were totally absorbed by legal proceedings, which is what this Bill is all about. We should be happy if the union had four weeks. The whole point of the attempted legislation is that the union does not have four weeks unless there is a provision such as is proposed in the amendment. I support the amendment.
Lord Murray of Epping Forest: My Lords, the aim of the Government's employment legislation is to improve industrial relations. One of its sub-aims is to reduce the number of strikes. That is fair enough; we are all in the business of trying to reduce the number of strikes wherever we can. The assumption that the Government are making on this issue is that the holding of a second ballot would reduce the probability of a strike.

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Where there has been a legal intervention and then a second ballot, history shows that that assumption is dead wrong. If we go back as far as the rail dispute under the Industrial Relations Act, the majority on the second ballot was far greater because the membership resented intervention by the law. The Minister will be accentuating the danger of a strike because he will pile Pelion on Ossa. He will add grievance to grievance in the eyes of the membership. If he does not care about that, why should we? But I do care, because I do not want to see more strikes caused unnecessarily.
Lord Strathclyde: My Lords, the amendment moved by the noble Lord, Lord McCarthy, helpfully makes clear the intended effect of the amendment that he successfully introduced in Committee. My response to that amendment assumed that that was what he had in mind. It follows that there is nothing I can usefully add to the reply I then gave.
The amendment fails to satisfy the requirement that the essential principle of the present arrangements must be preserved; that is, to allow an undue length of time to elapse between a ballot and the union's first authorisation of the industrial action risks a situation in which the ballot result no longer accurately represents the views of the union members as recorded in that ballot. The 1984 Act fixed the time at four weeks. Nothing that I have heard convinces me that it would have been any better to set the limit at 10 weeks. There is nothing necessarily sacred in four weeks, but we have no evidence to show that the situation would be improved if the limit were 10 weeks.
The noble Lord invoked the ambulance dispute in his defence. I invoked Ford's. Had there been no four-week limit and no second ballot at Ford's, the union could have authorised industrial action on the basis of the first ballot which we now know did not reflect the views of the membership.
Baroness Turner of Camden: My Lords, it did.
Lord Strathclyde: My Lords, it did not, because the union leaders recommended strike action. They recommended the union members to vote yes, but they did no such thing. They voted no. That shows that the union executive is out of touch with what its members wanted. It also shows that the four-week period is the correct period.
Lord McCarthy: My Lords, the Minister does not appreciate the first thing about union executives. The executive says what it thinks the members should do. It is not its business to be slavishly in touch. The Minister does not complain when the unions involved in the ambulance dispute recommend acceptance. He does not say that they are out of touch. They are only out of touch when they recommend a strike and the members do not want it. The executive gives its opinion. It is for the members to decide. That does not mean that the executive is out of touch.
Lord Strathclyde: My Lords, all I am saying is that the noble Lord has not provided any evidence to show that it will be better to set the limit at 10 weeks as opposed to four.
Lord Campbell of Alloway: My Lords, before my noble friend sits down, perhaps he would accept that he has got the matter slightly wrong. The offer changed. In industrial relations when the offer changes, even by a small margin, the back pay comes into play so the small margin makes a great difference. If the offer changes, with the greatest respect to my noble friend, it destroys I he argument on which he was relying.
Lord Strathclyde: My Lords, I am sure that my noble friend does not wish to get into a lengthy discussion about the Ford dispute. I made it absolutely plain when I used that example that I was not making a great case of it; it was simply an example of how the members' views differed from those of the executive.
Lord McCarthy: My Lords, I heard what the Minister said. However in the light of the remarks of the noble Lord, Lord Campbell of Alloway, I must retain the amendment and ask the House to vote on it.
The argument which the Minister used is not an argument at all. The only example, the only case he has is that of the Ford Motor Company. It has come to my mind, listening to him, that the second ballot in the Ford dispute was not called by the law. It was decided on by the executive, not because they had to carry it out, but because they wished to find out what the members thought of a different offer. If that happens, it is not the same situation. In those circumstances I think that we should vote on the amendment.
On Question, amendment agreed to.
Clause 2 [Interpretation]:
Lord Campbell of Alloway Lord Campbell of Alloway had given notice of his intention to move Amendment No. 3:
Page 1, line 9, leave out from ("act"") to ("as") in line 10 and insert ("has the same meaning").
The noble Lord said: My Lords, I have spoken to this amendment. It was consequential upon Amendment No. 1 which I have withdrawn. I beg leave to withdraw the amendment.
[Amendment No. 3 not moved.]
The Earl of Strathmore and Kinghorne: My Lords, I beg to move that the House do now adjourn during pleasure until ten minutes past eight.
Moved accordingly, and, on Question, Motion agreed to.
[The Sitting was suspended from 7.52 to 8.10 p.m.]

Courts and Legal Services Bill [H.L.]
House again in Committee.
Clause [The Lord Chancellor's Advisory Committee on Legal Education and Conduct]:
Lord Rawlinson of Ewell Lord Rawlinson of Ewell moved Amendment No. 96:
Page 13, line 13, leave out ("Lord Chancellor's") and insert ("Lord Chief Justice's").
The noble and learned Lord said: In moving Amendment No. 96 I shall speak also to Amendments Nos. 97, 100, 102, 107, 109, 112, 116 and 118 to 120. All of those amendments stand in my name. I informed my noble and learned friend earlier of this intention.
Before I am rebuked by those with less parliamentary experience than I, I should say that I shall speak to all of those amendments as they are consequential on the principle of what I am now proposing in Amendment No. 96. We have now reached Clause 16 in this Bill. It is appropriately being debated on the night when half the Palace of Westminster appears to be blowing down and gales are whipping up the Thames beside this Chamber. Clause 16 concerns the Lord Chancellor's Advisory Committee on Legal Education and Conduct. The functions of that committee appear on pages 66 to 68 in Schedules 1 and 2. Its specific functions are set out particularly in Schedule 2. It is stated in Schedule 2 that the advisory committee will:
"keep under review the education and training of those who offer to provide legal services".
It is further stated that the advisory committee will consider the need for "continuing education and training". The advisory committee will also concern itself with the training:
"of those who offer to provide legal services … relevant to the needs of legal practice and to the efficient delivery of legal services to the public".
The advisory committee will also deal with training in advocacy. It will consider what:
"form of initial academic and practical training is necessary".
The advisory committee will also deal with the:
"further training for persons exercising such rights".
It will also deal with training in the "conduct of litigation". It will consider:
"what form of initial academic and practical training is necessary to ensure that those who qualify … are adequately trained".
All the functions of the advisory committee could be called technical and practical. They are based on the education and training of potential and future practising lawyers. The field of the advisory committee is the law. Its object presumably is to produce better and brighter lawyers than we have ever had in the past. I assume that that is the case as the word "develop" has been kept in the Bill. The advisory committee is a body corporate and it will consist of 15 members.
The first thing I ask the Chamber to consider is that the advisory committee has nothing to do with the exercise of government powers or with the practice of government policy. However, it has everything to do with how lawyers are trained, what they should learn, the theory of law on which they should base their training and, above all, their practice in the courts. Their training will be laid
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down in the same way as it is for people in other disciplines such as medicine, science and archaeology who devote their lives and careers to a particular discipline. Therefore, highly skilled and technical matters are involved within the duties of the advisory committee. It will be much concerned with the conduct, practice and procedure in court; namely those matters which are the concern not of Ministers, not of government, not of the Executive or of civil servants but of judges. The latter will eventually be drawn from those whose education and training has been controlled by this governmental committee.
It is the judges who will have to rely, as judges do in the practice of the English forensic style, on the integrity, knowledge and skill of advocates. Anyone who has even sat in a minor capacity in a judicial function realises that a great deal depends upon the skill of the advocate, not as regards persuading a jury to acquit a villain but in his skill in presenting complex points of law and making sure that all the authorities are before the court in which they are pleading. Yet we are invited to formulate a committee and agree to a committee which is to consist of people nominated by a Minister who will be a member of the Cabinet.
A Minister is to nominate people, the majority of whom have no real experience of the practice of law. It is stated in Clause 16(5) that some members of the committee will have had some experience in or knowledge of:
"the provision of legal services".
However, that does not mean to say that they know much about the law. Clause 16(5) further states that the members of the committee will have some experience in or knowledge of:
"civil or criminal proceedings and the working of the courts".
Those are the people who will be nominated by a Minister sitting in consultation with those who advise him. There are to be two approved barristers on the committee. They will not be barristers selected by the professional body, the General Council of the Bar. However, they have to be approved. They have to be approved so that the Minister can give his imprimatur to whether or not he approves of the people who have been selected. That is rather like the Chief Whip approving his supporters.
The advisory committee will also contain two approved solicitors. However, the real vice of the system is that the committee will be a Minister's committee. Every member of the committee which is to deal with the training of advocates, their conduct in court and with the education of lawyers will owe their position to the grace of a Minister. It must be accepted that the committee will be a government body.
If one assumes the necessity of having to have such a body —I indicated earlier this afternoon that I do not think there is such a necessity —and the committee is approved, let us consider its functions. Why does it have to be a government creature? Is it right that it should be a government creature? Its proper concern is the education generally and the conduct of would-be advocates or those who are advocates and their skill in court. To whom on

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the face of the matter should the committee be answerable? It should be answerable to the judges.
My purpose in moving Amendment No. 96 and the subsequent amendments to which I referred is to substitute for the Minister the judiciary —the Lord Chief Justice. Amendments Nos. 97 and 102 reduce the number of laymen on the advisory committee to five, thus giving a majority on that purely technical body dealing with legal education, practice and conduct to those who know something about the subject.
It may be said that the Lord Chief Justice is not answerable to Parliament and it should be the Lord Chancellor since he is answerable to Parliament. However, none of the functions set out in the Bill are functions which directly concern Parliament. They are functions which directly concern the judiciary —conduct in court and skill in court. What have they to do with government policy? There may be governments which will take a very stern view about how the lawyers of the country should perform in the courts. The Executive is here taking upon itself powers which there is no doubt properly lie with the judiciary.
I say to those who subscribe to Tory principles and who believe that the Executive should be cabined, cribbed and confined that the Executive should not be permitted to have powers which are not necessary for the exercise of its policy. Those who subscribe to those principles ought to be very reluctant indeed to grant such powers to a Minister.
To that extent the matter that I have raised is of some constitutional importance. Why should we give the Minister those powers? They ought to be given to the Lord Chief Justice and the judges who will preside over the courts in which the advocates will appear. It is with those considerations in mind that I put down the amendments standing in my name. I beg to move.
Lord Rippon of Hexham: I rise to support the amendments proposed by my noble friend Lord Rawlinson. In the interventions which I have made in the course of the discussions on the Bill, I have expressed concern, as have others, about the width of the powers given to the Lord Chancellor and the Executive, frequently under subordinate legislation. I welcome the amendment because it gives the Committee the chance to consider the proper role of the Lord Chancellor in regard to a Bill which has considerable constitutional implications.
With no written constitution we have to rely on the well established conventions that have hitherto protected the independence of the judiciary and the legal profession. The Scots struck a good bargain with the Treaty of Union. They protected their trade, their kirk, their law and their lawyers. I hope that they will find that provision of help when the Committee comes to consider the amendments proposed as regards Scotland.
The Lord Chancellor is both the head of the judiciary and a Cabinet Minister. He has a vital and often delicate role to play in sustaining the rule of law. Sometimes, as his predecessors have found and as I have seen in Cabinet, those roles may be in
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conflict. Lord Chancellors are not there just to promote the policy of the government of the day. Although since the war the Lord Chancellor may no longer frequently preside over the judicial sittings of this House, his fundametal responsibility under the constitution is to maintain at all costs the independence of the judiciary and the legal profession.
I find it a pity that those in the Conservative Government who have so warmly embraced Professor Hayek's liberal economic views have not also adopted his political liberal constitutional views. In his great work Law, Legislation and Liberty he describes how we have moved away from the doctrine of the separation of powers as the grand secret of liberty and good government towards the concept of an ideal of government controlled by popular assembly free to take any action of which that assembly approves. He concludes:
"We can have a rule of law or a rule of majority but it is difficult to have both unless certain constitutional proprieties are maintained".
In this Bill the Lord Chancellor seeks to go beyond those constitutional priorities.
In the debate on Clause 1, I was chided by the noble Lord, Lord Henderson, because I made the usual comment that while we have every confidence in the present Lord Chancellor, one does not know what his successors may do. I do not think that that is good enough. As my noble and learned friend has said, this is a Bill which has to last for a long time. I do not believe that he should be given the powers that he is given in this Bill and in particular in this section. We may tinker with it, we may make useful and mitigating amendments, but the whole concept will be fatally flawed if we give the Lord Chancellor, as a Minister of the Crown, the wide powers that are sought.
If the reforms which my noble and learned friend proposes are necessary or desirable then I, like my noble and learned friend Lord Rawlinson, would prefer the Lord Chief Justice to be in charge, in association with his judical colleagues and the representatives of the legal profession, rather than the Lord Chancellor acting as, I suggest, a Minister of Justice.
I have noticed that in the course of these proceedings a number of speakers have asked why we should have the temerity as laymen to intervene in what is essentially a matter that affects lawyers. Some people, as we know, do not like lawyers. One of the troubles with the quantity of legislation which we have today is that the company directors turn up for the company law, the local government people turn up for the local government law, and now the lawyers have turned up to see what is to happen to them.
Many of us in many debates in this Chamber have drawn attention to the increasing number of nominated, non-elected bodies which the Government are introducing right across the board. That is a very dangerous tendency. Of course, when somebody says that the Government must control the body which develops or supervises the BBC, there will be people who will come along and say that it is an extension of power. Unfortunately, it is

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not only the people who listen to the debate who take part. When I first entered Parliament, my noble friend Lord Thorneycroft said to me, "Geoffrey, it is perfectly all right, always vote if you do not know what you are voting about. Above all, do not listen to the argument". I thought in our Division tonight that the whole weight of the argument was with the people in attendance, but —not perhaps to the same extent as in the other place —the troops marched in.
I should like to quote two paragraphs of the judges' response to the Green Paper. I believe that they should be written on tablets of stone. They should certainly be written into the record. They say:
"It is of fundamental importance that the existing degree of separation of powers and functions of the Judiciary from those of Parliament and the Government, evolved gradually over the centuries, should be maintained. The independence of the Judiciary and of advocates is perhaps more important now than ever, because one of the great constitutional tasks of the courts today is to control misuse of power by Government Ministers and departments.
"The Government is proposing that in future the Lord Chancellor should make the final decision on standards of education and training for advocates, prescribe the principles to be embodied in codes of conduct for advocates, and be empowered to make decisions on rights of audience in the High Court and Court of Appeal by means of subordinate legislation".
I believe that the judges rightly concluded that those proposals represent a grave breach of the doctrine of the separation of powers.
We should take due note of the fact that until now no government has sought such powers as the noble and learned Lord the Lord Chancellor now seeks. We know that his two immediate predecessors are not enamoured of the Bill. On Second Reading, the noble and learned Lord, Lord Hailsham, castigated the methodology by which the Bill had been constructed. I quoted him in relation to Clause 1. My noble and learned friend pointed out to me that my noble and learned friend Lord Hailsham was talking about Part II. I accept that.
We should also take due note that lawyers in America have been highly critical of the way many new and proposed forms of government control over the legal profession were to be found in the Green Papers, the White Paper and now in the Bill. It is significant that the American Bar Association has consistently and successfully opposed the regulation of the practice of law by the Executive or legislative bodies, whether they be national, state or local.
Much of the mischief of the Bill would be removed if the amendments of my noble and learned friend Lord Rawlinson were accepted, at least in relation to the proposed advisory committee, all of whose members, as he said, are to be appointed by my noble and learned friend the Lord Chancellor.
I do not believe that assurances of consultation, however well meaning or well intentioned, are sufficient. None of the debates that we have had in the House and none of the assurances given by my noble and learned friend the Lord Chancellor have any validity in the courts. We cannot quote what happened in debates in our courts of law. It is difficult, although we sometimes get away with it. Whatever happens, I do not think that consultation is enough.
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At the very least —I do not want to make another speech on further amendments —it should be provided, as the noble and learned Lord, Lord Oliver, suggests in a later amendment, that the powers sought by the Government should be exercised only with the consent of my noble and learned friend the Lord Chief Justice and the judiciary. The judges have been right from the outset in saying that it is only in that way that the necessary separation of the proper powers of the judiciary from the Executive can be preserved.
8.30 p.m.
The Earl of Onslow: In this debate I have listened to lawyers who were educated in the 1930s, the 1940s and the 1950s. My noble and learned friend Lord Alexander of Weedon just tipped into the 1960s, so he tells me. I therefore ask my noble and learned friend the Lord Chancellor what, if anything, is wrong with the present legal education system if it produces advocates of the quality that we have heard in all the debates on the Bill? If there is nothing wrong with it, why should we change it? I am in some ways a reasonably conservative sort of chap and that seems to me to be a sound conservative doctrine. If there is nothing wrong with something, we should not muck it about. However, one has the impression that there is an urge to tinker, muck about and fiddle. I have not yet been shown that there is any need to change the legal education system.
Lord Boardman: My noble and learned friend Lord Rawlinson and my noble friend Lord Rippon laid considerable stress on the constitutional issue —the independence of the judiciary—which I understand. I fully support that, but I wonder whether they have overlooked the eventual supremacy of Parliament, which is above all other considerations. The role of the Lord Chancellor is a very special role here. I should have thought that the constitutional position is perhaps not as strong as they make out in suggesting that the role of the Lord Chancellor should be taken over by the Lord Chief Justice.
Lord Rippon of Hexham: With respect, I would not for one moment suggest that. I only say, as I believe my noble and learned friend said, that the chairmanship of and responsibility for the advisory committee should be taken over by the Lord Chief Justice and the judiciary. My noble and learned friend the Lord Chancellor will remain in full control of all the responsibilities that he already possesses.
Lord Rawlinson of Ewell: I hope that I had made it clear that, because those tasks given to the committee affect only education, training and conduct in court, it seemed to me apt and proper that it should be controlled by the judiciary.
Lord Boardman: I understand those points, but both my noble friends made considerable play of the constitutional importance of the appointment.
However, the point that I wish to make —I shall do so briefly —is that the constitutional importance of Parliament in the role of my noble and learned

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friend the Lord Chancellor exercising those important powers, which both my noble friends stressed were of supreme importance, should be supreme.
Lord Alexander of Weedon: This is nothing to do with the supremacy of Parliament. It is to do with who is responsible for educating and training in areas where the maximum knowledge is needed and where it is important to preserve the separation of powers.
Perhaps I may seek to draw an analogy. The General Medical Council is, as I recollect it from days when I used to do work before its disciplinary committee, fully seized of the training and education of doctors. It is comprised of members who are not appointed by the Minister for Health. I should not have thought it right for them to be appointed by the Minister for Health.
Inevitably the phrase "Lord Chancellor" connotes someone who holds the office of both a Minister of the Crown and head of the judiciary. That office has been an extremely delicate one to hold in recent years. I mean no criticism of my noble and learned friend when I say that in the last year, inevitably perhaps, the impetus has been seen within the profession of the Lord Chancellor being constrained to act as a Minister of the Crown.
I for one was deeply disappointed that my noble and learned friend, as head of the judiciary, felt unable to respond at all to the principles which his judges set out in their response to the consultation paper. I understand the constraints upon him but within the boundaries of those constraints I believe that the profession increasingly sees the holder of that office as a Minister of the Crown. I do not believe that it is right that a Minister of the Crown —I agree that for the title "Lord Chancellor" we should read the word "Minister" — should be the person responsible for the education and training of lawyers. That has nothing to do with the separation of powers. Surely the person in whom we could repose confidence to set up an advisory committee in this area, wholly free from political pressures, is the Lord Chief Justice of England.
Lord Ackner: I referred to an excerpt from the Civil Justice Quarterly which contained a speech by my noble and learned friend Lord Hailsham when he was Lord Chancellor. That part should be recorded because we talk so frequently of the desire and need for judicial independence as if it were supported by everyone. On page 312 he said:
"But, surely, it will be asked, everyone supports judicial independence? Oh, do they? Certainly not the public or the backbenchers in the House of Commons who constantly revile, frequently from inconsistent standpoints, individual judges, or particular decisions, or what they imagine to be judicial policies, and who daily demand that individual judges be directed or rebuked (presumably by the Executive Government) to move in this direction or that, or even should be removed from office. Certainly not the opposition, whichever party happens to be on the Speaker's left. Certainly not party conferences of any hue".
Perhaps I may emphasise the next sentence:
"And, least of all, I may assure you, individual members of the cabinet, whose departmental interests from time to time basically conflict not only with the views of the judiciary where they are
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entitled to differ, but in the provision of the means necessary to enable the courts to discharge their functions".
That was said by, I imagine, the most experienced former Lord Chancellor of this century. It must be borne in mind because we take the so-called support for judicial independence for granted, and it is not there to be taken for granted.
The Lord Chancellor: The function of the Lord Chancellor has been referred to. For my part, I completely support and endeavour to act upon the principle that the Lord Chancellor has a responsibility to uphold the independence of the judiciary and of the judicial process. I believe that that responsibility has been taken seriously by all my predecessors and I certainly seek to do the same.
However, as was pointed out, the Lord Chancellor is not only a Minister of the Crown; he has the responsibility of the presidency of the Supreme Court. I believe that the Lord Chancellor's Office and my predecessors in office —I am not now speaking of my own term of office but the terms of office of people before me —have a considerable record in appointing to offices for which they have responsibility people of a proper calibre to carry out those responsibilities.
For example, I know that in relation to inquiries in other fields one of the assurances which people thought would secure the independence of inspectors and so on was that they should be nominated by the Lord Chancellor. I shall do my best to maintain that standard. Let me take the example of the noble Lord, Lord Murray of Epping Forest. As he pointed out earlier in this debate, he was appointed by the Lord Chancellor to the Committee of the Bar which deals with this matter. The Bar asks the Lord Chancellor to nominate people for that purpose because the Bar has confidence —and I am glad to say that that confidence is still extended by the Bar to me —that appointments made by the Lord Chancellor will be made in the best interests of justice and the public.
I have the greatest possible respect for the present holder of the office of Lord Chief Justice of England. I have every confidence in appointments that he might make. But my responsibility is in relation to the whole of the Supreme Court. His responsibility is in relation to the Queen's Bench Division and to the Criminal Division of the Court of Appeal. My noble and learned friend the Master of the Rolls has responsibility for the Civil Division of the Court of Appeal. The President of the Family Division has responsibility for that division. The Lord Chancellor, who is the vice-chancellor, is responsible for the Chancery Division particularly.
I must humbly say that it seems to me that the responsibility for making those appointments should lie appropriately with the Lord Chancellor. First of all, as I said, I believe that the Lord Chancellor's Office —I speak about my predecessors and hope to follow their good example —has a good record in obtaining the right people and not being influenced by any kind of improper consideration. Secondly, I believe that it is important that this should be a matter for which the appointing person is responsible to Parliament. Parliament has an interest in the proper administration of justice and in the proper

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provision of legal services, their nature and suitability; and, of course, the public have an interest in that.
For the moment I shall not go into the detail of the advisory committee and its powers. However, I should like to say that my noble friend Lord Rippon, in reading from the comments of the judges on the Green Papers, is dealing with the system that was proposed in those Green Papers, which I have modified fundamentally in order to take account of those very criticisms. The Lord Chancellor no longer has the final decision in any of these matters. In this case the balance is that the professions must propose —so far as concerns the Law Society and the Bar it is their respective governing bodies —and approval is required not only from the Lord Chancellor but from all the heads of division.
This is an advisory committee and I believe that it is appropriate that the Lord Chancellor should make the appointments for which he is responsible to Parliament. I firmly believe that this is the correct constitutional position and in the light of my remarks I hope that my noble and learned friend Lord Rawlinson will feel able to withdraw his amendment.
8.45 p.m.
Lord Rawlinson of Ewell: There is a great difference between the appointments which the Lord Chancellor recommends, for instance, to the High Court Bench. He makes that recommendation because obviously it has to come from a Minister. If it is not the Lord Chancellor in the future, then it could be a Minister of Justice. Someone has to do that and it has to be a Minister. But to pretend that nowadays the Lord Chancellor knows all the people whom he appoints is, if I may say so with respect, absurd. How many candidates for silk over the past 10 years have been known personally to the Lord Chancellor who made the recommendations? Of course the Lord Chancellor does not know them. He knows the senior judiciary. When the noble and learned Lord took up his office, he had sat on the judicial committee and seen various counsel who appeared before him then. Obviously, because it is only common sense, he has to have consultations and rely upon the advice that he is given.
We are dealing with matters which are not of such grand importance. It concerns something which is completely domestic to the independent profession of the law. If I may say so, the Lord Chancellor's responsibility is not only for the independence of the judiciary but also for an independent profession. I mentioned earlier this evening what some Poles had said to me a few days ago and it still rings in my ears. They said that they had got off their backs the agencies of government and the Ministers who were controlling them, appointing them, telling them how they should be educated and indeed putting some of them into prison. They were relieved to think that now they had their own profession with their own professors of law. They had their own skilled people able to practise in the courts.
What has this to do with government? What has this to do with the Minister? The purpose of my
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amendment is to hand back to the judges that which they ought to be doing, which is to control those people in their courts, to control their behaviour and ensure that they are educated and trained. What has a Minister of the Crown to do with that? My noble friend Lord Alexander of Weedon referred to the medical profession. What has the Minister of Health to do with their training? What has the Minister of Works to do with archaeology and the training of its practitioners? What has the Department of Education or the Department of Trade to do with appointing and training scientists?
These are people who have to learn how to be able to perform and conduct themselves in court before judges. It is the responsibility of the judges to take that upon themselves. I am therefore disappointed that my noble and learned friend should, as it were, brush aside this matter. Of course he did it with the grace that he always displays. Nevertheless it was brushing aside something which he has not fully explained. Why is it necessary that this matter should be the responsibility of a Minister and not be kept in the hands of the judges and be exercised by the proper professional bodies of the law?
I shall not press this matter to a Division. I shall not withdraw the amendment. Doubtless it will be negatived, but let it be negatived by those who shout "Not-content".
On Question, amendment negatived.
Lord Rawlinson of Ewell Lord Rawlinson of Ewell had given notice of his intention to move Amendment No. 97:
Page 13, line 16, leave out ("14") and insert ("12").
The noble and learned Lord said: I have spoken to Amendments Nos. 97, 100, 102, 107, 109, 112, 116, 118, 119 and 120, which are grouped together. Having spoken to them, and Amendment No. 96 having been negatived, I do not propose to move these amendments.
[Amendment No. 97 not moved.]
Lord Ackner Lord Ackner moved Amendment No. 98:
Page 13, line 16, leave out ("14") and insert ("15").
The noble and learned Lord said: I hope that I have transmitted to my noble and learned friend the Lord Chancellor indirectly that the amendments grouped together (Amendments Nos. 98, 103 and 110), which relate to the desirability of a stipendiary magistrate being a member of the advisory committee, come much more appropriately with the next amendments which will be moved by my noble and learned friend Lord Oliver; namely, Amendments Nos. 99, 104 and 105. He proposes the appointment of two more senior judicial members of that body; namely, a presiding judge and a circuit judge. I wholly support that proposal. With the concurrence of my noble and learned friend and the Committee, perhaps we may discuss all the amendments together, otherwise there will be an unreality about the situation. I shall put forward my point briefly on the assumption that the debate in respect of Amendments Nos. 99, 104 and 105, which relate to the advisory committee en bloc, can be taken at the same time.
The Lord Chancellor: Certainly.
Lord Ackner: I am grateful. My proposal which, as one would expect, is modest, is that there should be added a member of the judiciary —in all probability the senior stipendiary magistrate —because the magistrates' courts are likely to be one of the main recipients of the advocacy of those who have not yet received entitlement to advocate.
I do not know which bodies are likely to ask for and obtain advocacy certificates, advocacy licences or advocacy permission via the advisory committee, but let it be said to be probation officers, ex-justices of the peace or perhaps a mechanical engineer who is involved in the science of street accidents and running-down cases. There may be many other classes of persons, but if they are thought to be of the type who should be advocating in the magistrates' courts, there will be no legal representative on the advisory committee to advise the laymen, who, ex hypothesi, will know nothing about the problems of running and controlling magistrates' courts.
My modest contribution to the debate at this stage is merely to say that among the judicial members—and I support in advance the proposition that there should be more than a judge of the Supreme Court or a Lord of Appeal —there should be a stipendiary magistrate to speak of the problems and experience which he and other magistrates have to offer to the lay body which will make the decisions —often the majority decisions —on this difficult subject.
The Lord Chancellor: I accept the fact that the senior stipendiary magistrate is a person worthy of consideration in this connection and that a number of others will be suggested. Perhaps my noble and learned friend will allow me to consider all the proposals.
I believe that one must have in mind three main principles: first, that the committee should be of a reasonable size; secondly, that there should be a lay majority; thirdly, that the committee should be capable of functioning in a way that embraces considerable knowledge of the profession under a senior judicial chairman. I am happy to consider all the issues that have been raised.
There are two distinct aspects: first, who might be the members of the committee; secondly, the considerations that one should have in mind in considering the lay persons. I am content that we should discuss those aspects and I undertake to consider them all. However, I do not have it in mind to accept any of the amendments this evening.
The Earl of Onslow: My noble and learned friend said that there should be a lay majority on the committee. Can he tell us why?
Lord Rawlinson of Ewell: I too wish to ask my noble and learned friend why he is convinced that there must be a lay majority on the committee. Why must there be a lay majority on a committee which must deal with the education of the discipline and science of the law, the training of advocates and the conduct of advocacy? I do not see that it is so
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important as my noble and learned friend seems to suppose. It has been said that the Cabinet has decided on that but I should like to know the reason behind the decision. It is a committee which is technical and which deals with conduct and training. Therefore, why must there be a lay majority when there are many experts? Why should there not be half a dozen professors of law?
The Lord Chancellor: I shall seek to answer both those questions. As was pointed out by the noble Lord, Lord Hutchinson of Lullington, it is difficult for lay people to understand exactly the conditions under which lawyers operate. Therefore, it is extremely useful that they should have assistance in the formulation of the rules. I believe that lay people of appropriate experience can bring forward advice on such issues. After all, the courts and the legal services exist in order to provide for a need which the public has. Under our existing structure the profession will set the rules, subject to the approval of the senior judges and the Lord Chancellor. They will be the people who have the responsibility; the committee is advisory only. I believe that, where the chairman of an advisory committee is a judge, it is appropriate that the balance should be for a lay majority. I have indicated that simply because it is a consideration which I have in mind and I wished to set it out at the beginning of the debate. Like everything else, it is open to discussion.
Lord Ackner: I wish to remind my noble and learned friend of what he said on Second Reading:
"The key aims are to ensure that the voice of the user of legal services can be heard when questions of the provision of legal services are decided: to make sure that those who make decisions are answerable for them; and that they take them with the benefit of full and considered advice". —[Official Report, 19/12/89; col. 126.]
There is no suggestion made that the lay voice must dominate. While there is an opportunity for the lay voice to be heard, I share the puzzlement expressed by my noble and learned friend Lord Rawlinson and other noble Lords as to why there must be a majority.
Lord Murray of Epping Forest: I had not intended to intervene in the dispute, but I should like to comment on the way in which I see the balance between lay people and others on the committee. I have doubts about the committee as such; it has astonishingly wide terms of reference and an enormous amount of hard work will be involved. The way in which the best candidates will be obtained remains to be seen. However, as the noble and learned Lord has said, it is critically important to get the composition right.
The people who will make the advisory committee work are those who have experience in the legal system. They know what needs to be done and how to go about doing it. No one knows better the needs of lay people than the judges before whom such people appear. Judges have direct contact with them, listen to them and are conscious of the difficulties and problems faced by lay people in threading their way through the sometimes tortuous legal system. I was astonished to note that there was no proposal to include judges in the composition of the committee.

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I realise that, if one adds all the people suggested in the various amendments, the result will be a majority of people with a legal background. However, I do not see that there is a particular case for a lay majority. There will be no question of voting on the committee; it will be death and destruction if its members ever think about voting. There are in fact only two lay representatives on the Bar Council's professional conduct committee. But in effect we have a veto. I sometimes think that the fact that our number is so small gives us an unfair advantage over the majority of barristers who serve on that committee.
I believe that eight lay people on the committee is quite adequate. I would be happy to see that number reduced, but I believe that the committee would be enormously strengthened in terms of competence, ability and sensitivity if there were added to it a presiding judge, a circuit judge and a stipendiary magistrate. If it were necessary to accommodate them by reducing the number of lay people, I do not believe that that would be a fatal flaw.
9 p.m.
Lord Alexander of Weedon: May I add a word to that? My noble and learned friend said a few minutes ago something with which I think we would all agree. It is often difficult for lay people to understand the processes of the law. I am sure that we all agree that we as lawyers must seek to reduce those difficulties as much as we can. But if that is the starting point, it is hard to see how lay people should dominate a committee engaged in these technical activities.
The noble Lord, Lord Murray, referred to his experience on the Bar Council. I shall always be grateful to him for agreeing, when I was chairman of the Bar, to join our disciplinary committee, which established a principle that, although there was a majority of professionals supplying expertise, we never dismissed a complaint without the consent of both lay members. Therefore, we had a balance there.
May I speak from another aspect of experience, which was my two-year chairmanship of the Takeover Panel. There we had a mix of professionals and independent members. The independent members, of whom I was one, I hope provided a useful perspective. We were a minority —a significant minority —but I am absolutely sure from the perspective of the two years of that work that the system would not have worked as well in these technical areas if the lay members had been in a majority.
With those experiences and with the comments that have been made, except perhaps for a covert appeal to the popular acceptance of the Committee, I have heard no argument that seems to support the desirability of a lay majority. In the light of the views that have been expressed and the concern that this is a committee dealing with technical aspects which affect the welfare of the public, I would hope that my noble and learned friend would reconsider this
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important point and appoint a significant and highly skilled minority of laymen but not put the committee in the hands of a lay majority.
Lord Boardman: While I agree with much that my noble friend has said with regard to his experience, which I share, I think that we should be careful about carrying this argument too far. If we carried it to the conclusion that would flow from the argument of the noble Lord, Lord Murray, it would mean that government of this country would be run by the civil servants, who know all the intricacies of government —and goodness only knows, they are far greater—and not by the vast lay majority that occupy both Houses.
Lord Oliver of Aylmerton: The amendment that has been proposed and the discussion that has followed have largely stolen the thunder that I was proposing to loose on the amendment that stands in my name on the Marshalled List, which is to much the same effect as Amendment No. 97 proposed by the noble and learned Lord, Lord Rawlinson. It approaches the matter from an angle which is, I hope, practical rather than constitutional, although I do not for one moment ignore or underplay the constitutional aspects that have already been emphasised.
The question is one of considerable importance. I must therefore ask the Committee to be patient if I take up a little time with the reasoning behind these amendments, which has already been adumbrated in the speeches that have been delivered. These amendments are part of a series that have the purpose of altering and, it is hoped, improving the constitution of the Lord Chancellor's Advisory Committee, for which the clause provides.
I say straight away that for may part I am not seeking to quarrel with the establishment of such a body or with the functions that it is intended to perform. I am simply anxious, as indeed I am sure the Committee is that if this body is to be established it should be properly equipped to do the job for which it is established. What I question and have questioned previously in debates in the House on the Green Paper and on the Second Reading of the Bill is whether the committee is sensibly constituted as the clause currently stands.
May we take just a few moments to consider the important purposes for which this committee is being established. As a preliminary it will be observed —and I feel sure that we shall be told again, as we have already been told more than once —that this is only an advisory committee. I stress the word "advisory". It is not to do anything but merely to tender advice. Therefore, it will be argued, it is of less importance than the decision-making body, with the implication that its composition does not matter all that much so long as it consists of reasonably sensible people.
Of course that is right in theory because the Lord Chancellor, the designated judges and the authorised bodies do not have to follow the advice that is tendered. But when we come to consider the breadth of the detail of what the committee is expected to

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deliberate and advise on, it is obvious to anybody with half an eye that this will be and is intended to be in practice a decision-making body and that what it says will go.
It would be disingenuous to suggest that the Government are in the business of setting up and funding a body of this sort if they considered that there was any practical possibility of its advice not being followed. Effectively this is the body that is going to dictate not just the framework and the detail of the education, training standards and discipline of all those who provide legal services in our courts but the very way in which these services are to operate.
Let us take the briefest look at what it is intended to do. Under Clause 17 it is to assist,
"in the maintenance and development of standards in the education, training and conduct of those offering legal services".
The details of that are set out in Schedules 2 and 4 to the Bill.
To begin with, the committee has the permanent duty of keeping legal education and training under review; though I confess I am not aware that any criticism has been levelled at legal education and training or of what shortcomings it is thought there are in that branch. The committee is to consider what form the initial and further academic practical training should take. That must mean, if it is to have any meaning at all, what subjects shall be studied; to what standard; how they are to be examined, what practical training is required for appearance in court; what other non-legal or quasi-legal disciplines are to be embraced in training, and so on. It is to advise—perhaps that word should be in quotes —all the authorised professional bodies on these matters, including the Law Society and the General Council of the Bar. It is to consider and keep under review schemes relating to the specialised areas of legal practice. It is to consider the qualifications and the rules of conduct —that must include the disciplinary procedures —of all bodies which seek to become authorised bodies for the purpose of granting rights of audience and the right to conduct litigation.
If any authorised body, including the Law Society and the General Council of the Bar, wishes to make any change in its rules relating to qualifications or conduct, those changes have to be submitted to and considered by the committee. It is to the committee that any proposal has to be submitted for the revocation of the designation of a body as a body authorised to grant rights of audience or rights to conduct litigation.
This is therefore a very important body and a body which is to operate in a highly specialised area of professional activity where technical and practical knowledge is absolutely essential to a proper and intelligent exercise of its functions. One might say that it is the apex of the structure of the legal profession, supervising every important aspect of professional practice and training.
I accept straight away —I am sure we all accept —that the profession does not exist for its own sake. It is there to serve the public and the public has a strong interest in ensuring that it is properly served. But just as the public has an interest
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in ensuring the proper provision of medical services, that proper standards are retained by accountants and actuaries, that buildings are properly designed and constructed, that doctors, dentists, architects and other skilled professional men are properly qualified and behave properly, so it is entirely right and proper that the public should be represented and consulted on the bodies which regulate these professions. I ask, however, is it sensible that the body which regulates all professional activities in a highly technical sphere should be dominated by people whose very qualification for being there is that they do not have expertise in the very profession which it is their function to oversee?
The noble and learned Lord the Lord Chancellor, or the civil servants who advise him, may know of some other profession somewhere else in the world whose education, training, practice and ethics are dictated by persons without any professional experience or qualification. I confess that for my part I do not. I can well imagine the outcry that there would be if, for instance, a proposal were brought forward to replace the General Medical Council by a lay-dominated body appointed by civil servants or by a Minister.
I am sure we will be told that the legal profession is different. I confess that I do not for the life of me see why or how. Nor has the why or: low ever been explained. Paragraph 7.3 of the While Paper states that:
"many members of the legal profession were concerned that the majority of the advisory committee's members would be non-lawyers".
The White Paper goes on to inform us that:
"the Government has considered these views with great care".
No doubt that will be a great comfort to other noble Lords, as it is to me. However, what it does not do is provide any explanation of why the Government consider that, in addition to having available the no doubt very valuable views of what are referred to as "knowledgeable non-lawyers", those knowledgeable non-lawyers should in effect dictate every facet of legal education, training and practice. Subsection (5) sets out seven areas of experience or knowledge to which the Lord Chancellor is to have regard in selecting the lay majority. These are alternatives —they are not cumulative —and only three involve any acquaintance at all with the law or its practice.
I am sure that we will be told that of course the noble and learned Lord the Lord Chancellor will make only the most informed and sensible choices in selecting suitable people and that of course the people selected will defer to the proper opinions of that minority of members of the committee who do have the proper expertise. If that is right, why do we need a lay majority? It can only be because it is envisaged that at some stage circumstances will require that their ex hypothesi non-expert view on education, training and professional conduct must prevail over the expert views of the qualified members of the committee.
I fully expect to be told that I am making a mountain out of a molehill; that it will be perfectly open to the noble and learned Lord the Lord

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Chancellor to nominate, say, three responsible justices of the peace, two retired High Court judges, two retired solicitors and a past president of the Institute of Arbitrators, and what could be more reasonable than that? The answer is of course, nothing. We are being asked to take an awful lot on trust. For my part I believe that we should approach this very far-reaching legislation with an eye on the future as well as on the present, and on the worst scenario that could occur rather than on an optimistic forecast of what is intended in the immediate future.
We are being asked to bet very heavily on the good sense and good intentions of some future Lord Chancellor years hence and operating in a political climate perhaps very different from that which prevails today. Therefore, I hope that I shall not be thought disrespectful if I ask the Committee to set aside for a moment any pro-or anti-lawyer preconceptions and to look at this matter as a matter of ordinary horse sense. That was once defined as the instinct which prevents horses from betting on men.
We are very fortunate in having at present a Lord Chancellor of charm with, sagacity and integrity. We may feel every confidence in his possession of that ability which the traditions of his high office demand to withstand the political pressures of the moment. But it has not always been thus and it may not always be thus in the future. This advisory committee has been described by some as a sinister body. I do not use that adjective and I am quite certain that it is not sinister in intention.
Nevertheless the fact remains that, as the Bill stands at present, it is an instrument by which the executive can, in a very large measure, control a legal profession which until now has been self-regulatory, and by which it can, by the creation of new classes of practitioners in the courts, secure an even greater control than it enjoys at the moment over the composition and of course, ultimately, the conduct of the judiciary at all levels.
There is never any guarantee that any executive-appointed body will not be packed with political placemen. But, accepting for the moment —which I do only with the very greatest reluctance —that it is right in principle that so influential a body should be totally executive-appointed, I do urge that at least a majority of those appointed should be possessed of the skills which they are to supervise and upon the exercise of which they are to advise.
As drawn at the moment, Clause 16 of the Bill provides for a judicial chairman and 14 members, of whom eight are to be non-lawyers. That may be a touching tribute to the British spirit of amateurism, but does it really make sense? The legal element consisting of the four practising lawyers may by definition all be employees of banks or building societies. In addition there are two academics. The interests of the existing professional bodies are to be protected only by a process of consultation. As matters stand at the moment, the chairman is a toothless watchdog with no casting vote and he is the only judicial representative. In particular there
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is no place on the committee either for the persons who above all others have their fingers on the pulse of the practical administration of the law —namely, the presiding judges —or for that branch of the judiciary which has the closest contact with the courts to which it is the very purpose of this Bill to steer the major volume of litigation —that is the circuit judges.
Therefore I suggest first that, having regard to the great importance of the committee to the administration of justice and the influence that it is going to wield, the appointment of the members of the committee should not be in the hands of the Lord Chancellor alone, but should be with the concurrence of the person who perhaps has his finger most on the pulse of the administration of the courts: the Lord Chief Justice. It is perfectly true that he is responsible for the Queen's Bench Division and the criminal courts. Above all I believe that he probably knows more of what goes on in the courts than anyone.
Secondly, the rational composition for such an important body, designed as it is to govern the development of the entire legal profession for the foreseeable future, would embrace at least an equality of voting power between professional and lay members, with a casting vote —if voting is appropriate —in the professional chairman. Thirdly, the committee should include places at least for one presiding judge and one circuit judge. Fourthly, those members who are to represent the branches of the practising profession should be nominated by them rather than merely appointed after consultation with them.
9.15 p.m.
Lord Hacking: I do not know whether my thunder has been taken from me. This amendment is tabled in my name also. I rise at this time because I wish to address the Committee on the proposal that there should be also included among the candidates for the advisory committee a legal executive appointed after consultation with the Institute of Legal Executives.
The Committee has considered in some detail the composition of the advisory committee, and proposals have been put forward by the two noble and learned Lords who have just spoken. I do not know whether the noble and learned Lord the Lord Chancellor wishes to deal with those representations before he hears my submissions. The noble and learned Lord indicates that it is convenient for me to address the Committee on Amendment No. 98 and on Amendments Nos. 103 and 108A.
These amendments concern the Institute of Legal Executives. Noble and learned Lords will remember from their days of practice the managing clerk. I dare say that before that creature, the litigation partner, had been created in the London law firms, noble and learned Lords principally received their instructions for major and minor cases from managing clerks.
The Institute of Legal Executives was incorporated in November 1928 as the Solicitors' Managing Clerks Association, and became the Institute of Legal

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Executives in January 1960. No fewer than 50,000 solicitors' clerks currently serve in the law, working in a variety of solicitors' offices. Of members of the institute there are 20,000, and of those 5,000 are fellows.
In view of the importance of the composition of the advisory committee I shall delay the Committee a little longer to explain that, in order to achieve fellowship of the institute, four general papers in law and practice and three further papers on substantive law have to be taken. When those qualifications have been achieved, the candidate will not only be eligible for fellowship of the institute but he will have the necessary educational requirements to enable him to be exempted from most of the CPE examinations. He can then apply to take the Law Society examinations and become an admitted solicitor.
One of the important roles of the institute is to provide a route into the profession for those young men and women who did not have the educational attainment to enable them to enter the law through the Law Society qualification for articled clerks. As well as the educational side, the institute has a code of conduct and good practice. It arranges courses in practical advocacy and its disciplinary tribunal regulations are approved by the Master of the Rolls. The three main members of its disciplinary tribunal are appointed by the Master of the Rolls.
Members of the institute have by long practice a right of audience before judges, master and registrars in chambers. They have a limited right of audience under the County Courts Act 1961 for unopposed applications for adjournments and applications for judgments by consent in the county court. They have a few other minor rights. A fellow is entitled to manage a branch office of a solicitor's practice.
In this amendment, which is the paving amendment, and in the substantive amendment, Amendment No. 108A, the institute seeks a place on the advisory committee. While I in no way denigrate the candidature of the three judicial candidates, I want to put the case for the legal executive. In doing so, I should say that I am not seeking to upset the balance of lay and professional persons on the committee. If accepted, my proposal would therefore cause minor adjustment only so as to keep a balance of lay persons over the legal representatives on the committee. Further, I do not seek to overload the committee; indeed, I am only asking for one more candidate.
The reason why I am asking that legal executives should have their place on the committee is first that they represent a large part of the legal profession's workforce. Secondly —and this is why I enumerated to the Committee the education, training and disciplinary background —last year more than 15,000 members took the examination in the education and disciplinary requirements. They play an active part in the profession.
The noble and learned Lord, Lord Oliver, drew the Committee's attention to Schedule 2(1). I too draw the attention of Members to those provisions. I also draw attention to the closely related role that legal executives play.
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It is true that legal executives could be appointed as lay members under subsection (4)(d), because they do not fall under the disqualification of a practising solicitor, which I believe is defined in subsection (10) of this clause. However, if they were to take a place by that route that would upset the balance, because to all intents and purposes they are practising lawyers. Moreover, those of us who have worked with them know that they are very knowledgeable and experienced practising lawyers.
For all the above reasons, I ask the noble and learned Lord to take a different view when approaching the matter. I ask him to adopt a different approach to legal executives —that is, different from the way he approached the question of the other three judicial candidates. Before the debate I took the step of forwarding to the noble and learned Lord a copy of the institute's memorandum and articles of association and also a copy of its disciplinary tribunal regulations. I did so to enable him to have those documents available to him before considering my proposal to the Committee.
Lord Hailsham of Saint Marylebone: I shall again speak briefly. Of course, technically we are only speaking about the number of members of the advisory committee. However, that has perfectly properly allowed a number of excellent speeches to be made about amendments which follow as to its possible composition. I do not conceal from my noble and learned friend the fact that. I am against this structure. I think that the variety of speeches which have been made show cumulatively the kind of danger into which he has fallen by adopting this structure.
But, having said that, I wish to address one or two points which have a bearing on what has been said. I was very disappointed to hear my noble and learned friend say, some time ago now, that he regarded the lay majority as one of his essential requirements. I say this although I know that it could be said fairly against me that in appointing the Civil Justice Review Committee I deliberately chose to place a lay majority in it and that I also appointed a layman to the chair. I did so quite deliberately because within my professional experience there had been more or less 14 legally-composed committees set up to decide upon civil justice, practice and procedure. They had all ultimately, almost without exception, come to nothing. However, the Civil Justice Review Committee was an ad hoc body and it produced six reports of, I think, very considerable value. Moreover, I hope to see some of the recommendations put into effect one way or another in the near future.
However, we are now talking about a standing body of a quite different kind, which is designed to perform the functions laid down in the statute. We are really discussing what will happen if the members of such a committee try to do the work laid out in Schedule 2 and, for that matter, in Schedule 4 to the Bill.
I venture to repeat a point that I made on Second Reading. How do we visualise that body working in practice? What sort of people will be able to give their time to do that kind of work with any sense of

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conscientiousness? I believe that I know the answer, and I shall try to give it. The picture is painted of a committee of placemen appointed by some future and ogreish Lord Chancellor who would wish to pack the committee with nominees of his own choice. That would be constitutionally very objectionable indeed, and of course legally it would be perfectly possible if that structure were adopted. I do not believe that is a realistic view to take when considering the constitutional value of the committee and the consequences of making it subject to the Executive.
Can I imagine the present Lord Chancellor or myself being able to discover from our own knowledge of the world of affairs the persons enumerated in Clause 16 in each class from (a) to (d), excluding the excluded classes of those who know something about the subject? I can tell the Committee clearly from my experience that I should have no such ability; and I say with great respect to my noble and learned friend that I doubt whether he has, nor do I imagine that the ogreish figure of the future, who has been painted as a possible danger to our constitution, will.
What in practice will happen is that the Civil Service will tell the Lord Chancellor whom to appoint. It will have chosen, as best it can, the names of the great and the good from some large list which it has of people who have nothing better to do than to interfere with other people's affairs. That is the reality of the matter. The idea that an independent profession should effectively be governed by such a ludicrous body, of which we have seen only too many examples in the past 25 years of my experience of Parliament, is one too terrifying to imagine. Those people will have too much to do.
I wonder whether my noble and learned friend has considered how many meetings such people will have to hold every year and for how long the meetings will last to do even the minimum of the tasks imposed upon them by Schedule 2 with Schedule 4 added onto it. The proposal seems extraordinary. I do not conceal my hostility to it, but there are constitutional objections of a much more practical and serious kind than that of any imaginary Lord Chancellor of the future seeking to fill the committee with hot-headed placemen with their own particular brand of politics. We shall see a number of superannuated old ladies and gentlemen, who have nothing better to do, nominated by the Civil Service which has persuaded the Lord Chancellor to appoint them because there is no one else to appoint.
9.30 p.m.
Lord Beloff: Since the noble and learned Lord, Lord Ackner, was good enough to quote what I said in the debate on the Green Paper about a lay majority on the advisory committee, I should perhaps make it clear that nothing I have heard subsequently has made me change my mind. I am still waiting, and waiting patiently, as I believe other Members of the Committee probably are, to find out what the argument is for a lay majority. I can see the argument for a lay voice. It was expressed by the noble Lord, Lord Murray of Epping Forest, and other noble
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Lords. There is a great difference between saying that it is useful on occasion to have a non-professional voice, and saying, "That voice must have a majority". We can eliminate what is sometimes put forward in certain quarters as a reason for this concentration on the lay element; namely, that the public as a whole has a great interest in the effective running of the legal system. In that sense, they are—though I dislike the word very much —consumers. Passengers in a liner have an enormous interest in the safe navigation of the vessel. Yet when I have travelled in a liner, I have always found a notice saying, "Access to the bridge is not permitted to passengers".
I feel therefore that we have to abandon these simple explanations and ask ourselves again and ask the noble and learned Lord the Lord Chancellor, I am afraid, to explain the reasons for overriding the various considerations —which were given impressively, if I may say so, by the noble and learned Lord, Lord Oliver —and the rather different but practical considerations given by my noble friend, the former Lord Chancellor. He replied effectively to the noble Lord, Lord Boardman, who tried to equate civil servants with experts, by saying that to demand expert membership of a body which deals with professional matters is equivalent to saying that we should leave things to civil servants. It is the opposite. Lay people, because of their ignorance of the substance, are likely to be more amenable to the wishes of civil servants. As I said in the debate on Second Reading, that is the equivalent of appointing civil servants.
There is one other point which I made on Second Reading and which, with the indulgence of Members of the Committee, I should like to repeat, because I think it is illustrative. It concerns the catastrophe which has befallen the universities under the regime of the new funding council which has a heavy ignorant lay element. Since my speech on Second Reading, I have had occasion to discuss this with the present vice-chancellors of universities and other people eminent in the university world. They have all come to the conclusion —and this bears out something which the noble and learned Lord, Lord Hailsham, said —that one cannot explain the operation of a complicated set of institutions to persons who can only spare a couple of hours once a month to be briefed.
In the space of a few short months, it has already been proved that the experiment of giving this lay preponderance on the funding councils has been enormously damaging to the unversities. The relevance of this point is that it makes one ask again: what is the passion which this Government have for getting away from the historic self-reliance and self-governance of our institutions and our professions in favour of what can only be called populism? That is to say, the constant pleas of the ignorant that ignorance is in some sense a virtue. There are newspapers which proclaim this almost daily.
After all, we are dealing with an enormously serious subject, as Members from all sides of the Committee have reminded us. We are entitled to the

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explanation which has not been forthcoming of why the noble and learned Lord the Lord Chancellor gives such a dominant place in his considerations to the notion of a lay majority. Unless we are satisfied on that point, I do not see how we can usefully discuss the make up of the Committee; the kind of individuals whom the profession might wish to have; how they should be chosen. All these are secondary. The important question is: why should there be a lay majority on a body whose task—whether it is education or the formulation of rules of conduct —is wholly professional?
Lord Mishcon: I shall immediately answer the challenge of the noble Lord, Lord Beloff, and others who have asked what the case is for a lay majority on the advisory body. I was entranced, as I always am, by the speech made by the noble and learned Lord, Lord Hailsham. I shall tell him why he entranced me, as he usually does.
I can remember when the noble and learned Lord graced the Woolsack and endeavoured to bring to the Chamber reforms in regard to both the law and to the way in which the law should be dealt with. He heard the representations which I tried to make on behalf of the Law Society and he heard representations from the Bar Council. He dealt with those representations, which were contrary to his own wishes, by saying time and time again from the Woolsack —he looked at me with great indignation when I represented the rules of the Law Society —that mine was the most conservative profession he had ever come across. He said that my profession never wanted change or reform. He said that he was trying to introduce reforms which he thought were for the good of justice and the nation, but that my profession always stood in his way.
What did the noble and learned Lord do as a result of his experience? He did what, in sheer honesty, he has told the Chamber today. He found that he had to deal with courts that were apparently not being terribly well administered, with justice that seemed to be delayed and with the clogging machinery of the law. He did exactly what he has explained, in frankness, to the Chamber this evening. He decided that lawyers had looked at the reforms time and time again and, as he told the Chamber, had produced nothing by way of reform. He considered what he should do to improve the machinery of justice which exists for the purposes of the public. He considered what he should do to improve the training of lawyers who should be trained in a practical way. He considered the various subjects they should study and their codes of conduct, not in relation to those specific matters but in relation to the running of the machinery of the law. He decided to appoint a body to conduct a Civil Justice Review. That body was to consider various aspects of the law and was to be composed of a lay majority.
Having regard, as I said, to the noble and learned Lord's castigation of what he called the most conservative profession he had ever come across, although he was such a luminary with regard to that self same profession, and to his castigation of those who were standing in the way of his reforms, and to
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the way he himself had formed such an important review body which consisted of a body of laymen, I was amazed tonight to hear him of all people argue against all that he had stood for when he spoke from the Woolsack stating that he must get rid of the conservative views of the legal profession. However, the noble and learned Lord differentiated his remarks this evening by stating that the advisory committee was a standing body.
The noble and learned Lord said from the Woolsack that he must get a fresh view on the subject of the law and that when he set up a Civil Justice Review to look at the whole working of the machinery of the law it had better have a lay majority.
Lord Rees: I suspect that my noble, and learned friend the Lord Chancellor faces in this debate a somewhat delicate dilemma. If, to assuage the legitimate anxieties that have been expressed by almost every speaker in this debate he tells us that the committee is only an advisory committee and that its advice can, and will be, regularly overriden, we can dismiss the establishment of the committee as a delicate political charade and we can pack our bags and go home. However —my next point is perhaps another dimension of the point made so forcibly by my noble and learned friend Lord Hailsham —if he tells us that, he will find it extremely difficult to find people of weight and experience to serve on the advisory committee.
If on the other hand he says candidly and honourably, no, the advisory committee will be the predominant voice when it comes to the regulation of these professional matters —and he may take some comfort from a clause which was no doubt considered by him and his colleagues in the legislative committee of the Cabinet, although I do not know whether that is the case —then I believe that we are entitled to say that there is an element of absurdity in making it a predominantly lay committee.
The committee will not just consider the machinery of justice. The machinery of justice is probably outside its purview. It is being asked to control a wide professional field. Even a very cursory glance at Schedule 2 demonstrates that, with the doubtful exceptions of paragraphs 4 and 5, those are all matters of professional concern.
No one, even with a legal background, would say that lay people should not offer a view. They are the clients and the consumers and are certainly entitled to a view. However, should a professional field of such delicacy and intricacy be subject to the predominant voice of a committee which will be controlled by lay members?
I know that my noble and learned friend has been pressed on the issue in various debates. I hope that he will forgive me for pressing the matter again. I am sure that it would assist the Committee enormously in coming to a conclusion on this and related amendments if he could tell us what other professional fields are regulated by a majority of laymen or under plans of this Government which have not yet been disclosed are to be regulated by a

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majority of laymen. If he cannot produce a fair analogy in other professional fields we shall conclude that he is wrong and that he is in some extraordinary way discriminating against the very profession which bred him.
I shall find it very, very difficult to go along with the Government's proposals on this and related matters.
9.45 p.m.
Lord Campbell of Alloway: Perhaps I may very briefly, to save time, register a very firm protest for the reasons that have been given by noble and learned Lords and by my noble friend who has just spoken against the lay-dominated advisory committee. What on earth is the justification for it in view of the reasoned criticisms that have been given from all sides of the Chamber?
Lord Donaldson of Lymington: I should like to register one short word of protest in response to the noble Lord, Lord Mishcon. People reading his speech will think that it is an accepted fact that the judiciary and senior members of the two branches of the profession are dyed-in-the-wool reactionaries who have no new ideas. They will think that it was for that reason that my noble and learned friend Lord Hailsham appointed a lay majority on the Civil Justice Review. I cannot speak for his reasons, but that just is not true.
There is scarcely an idea put forward in the Civil Justice Review which had not already been discussed by the judges or by members of the two branches of the profession or often by all three. Many of the ideas have developed from pilot schemes which have been run in the national industrial relations court, the commercial court and other courts.
I can well understand the desirability of having a large lay element on a body such as the Civil Justice Review and possibly a majority lay element. The product has to be sold outside the professions and one wants a balance. That is the only justification. It would be quite wrong for anybody to think —I speak particularly for the judiciary, but also for the two branches of the profession who are the future judiciary —that they are other than highly innovative. The lay representation helps them to sell their ideas to government.
Lord Mishcon: Before the noble and learned Lord the Master of the Rolls sits down, will he take it from me that the last thing in the world that I should want to do is to say that the leaders of my profession, of which I am proud to be a member, do not act in a progressive way? I made that abundantly clear and the noble and learned Lord, Lord Hailsham, with his usual reaction to speeches of that kind, smiled at me with some indulgence. I did not take that to be an acceptance of all that I said, but he did not say what the noble and learned Lord the Master of the Rolls has now said. He gave a reason as to why he appointed a majority of laymen. It was, he said, because the previous bodies consisting of lawyers who had looked at those matters had —I paraphrase him —produced nothing. That was why he appointed
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the lay majority. I faithfully repeated what the noble and learned Lord said. I do not therefore think that I quite deserved the words that the noble and learned Lord the Master of the Rolls chose to utter.
Lord Donaldson of Lymington: I apologise if I misrepresented the situation. I understood my noble and learned friend Lord Hailsham to say that nothing had resulted from the deliberations. This was not a criticism of the members but perhaps of their persuasiveness. I would not dream of casting the slightest aspersion in the direction of the noble Lord, Lord Mishcon.
Lord Griffiths: Whichever Lord of Appeal in Ordinary or judge of the Supreme Court ultimately has the awesome responsibility of chairing the committee, he will need all the consumer assistance that he can get. But who are the consumers of advocacy? They are the unfortunate judges who are on the receiving end of it day after day. I say in all seriousness that it is quite ridiculous that he should not have the assistance on the committee of those who are at the receiving end of advocacy, who know the standards of advocacy and who know what our system of legal education produces. There should surely be there available to assist him the presiding judge and the circuit judge suggested by my noble and learned friend Lord Oliver. It is not good enough to say, "You can call them in and get their evidence". One wants them there to be available to discuss matters day in, day out and to help one frame the questions that should be asked. They are absolutely essential to the proper operation of such a committee.
The Earl of Onslow: My noble and learned friend has still not explained to me or the Committee what is wrong with the present legal education system. Please will he do so.
Lord Peyton of Yeovil: I was much impressed when the noble Lord, Lord Mishcon, said that he was entranced, as I have always been, by what my noble and learned friend Lord Hailsham said. I have frequently —in fact always —found myself entranced by the words of the noble Lord, Lord Mishcon, but every now and then there lurks in the back of my mind just a suspicion —the barest suspicion —that he might not always be wholly right.
Having mentioned that outlandish and far-fetched supposition, perhaps I may detain noble Lords for a moment on this point. Clause 17, which I know we are not here discussing, states that:
"The Advisory Committee shall carry out that general duty by performing the functions conferred on it by Schedule 2".
I speak as an amateur and a lapsed lawyer who long ago ceased even_to try to practise. Perhaps we may examine for a moment the words in Schedule 2. I very much hope that my noble and learned friend will be able to draw aside the veil of anonymity which conceals the identity of the person who drafted that schedule.

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Paragraph 5 of the schedule, headed "General advisory functions", states that:
"(1) The advisory committee may make such recommendations with regard to any matters which it is required to keep under review or consider as it thinks appropriate".
Quite apart from the fact that the one commodity of which this country is not short at the moment is advice, that does not start the advisory committee off with a big boost.
I invite the Committee's attention to the next paragraph —I could not have dreamt it up —which states:
"Any such recommendation may be made —
(a) by being included in the Advisory Committee's annual report".
I ask the Committee to pause and ask itself the simple question: how many noble Lords devote avid attention to anybody's annual report? Any body which is given a heavy responsibility and then, having deliberated in all its wisdom, is given the privilege to expose its thoughts in its annual report will not feel comforted or encouraged.
Another way in which such a recommendation can be made is:
"by being addressed to any professional body or group of professional bodies".
It is very difficult for me. I am faced with an alternative: either this advisory committee will have such overwhelming power that those professional bodies will not only listen but stand to attention and do what they are told or they will take no notice at all and will make use of that most useful item of modern furniture, the waste paper basket, or perhaps even use the shredder.
Then, in case those two methods are not any good, the third way in which this body—
Lord Hacking: I hesitate to interrupt the noble Lord but we have a long haul ahead of us tonight and the analysis of Schedule 2 has not reached us. Could we keep our discussions to the composition of the advisory committee and not go through an analysis of Schedule 2 at this stage?
Lord Peyton of Yeovil: I am deeply indebted to the noble Lord for his advice. Perhaps he would just bear with me for a moment. It seems to me that in considering the advisory committee we are entitled to take into account the powers that it is given and the way in which it will carry out its duties. I should hate to find myself having a difference of opinion with the noble Lord but if I do I shall have to endure the pain.
The third way in which this body is able to voice its opinions is:
"in such other manner as it thinks fit".
I do not have the vocabulary of the noble Lord, Lord Mishcon, and lack the gifts of noble and learned Lords on the Cross-Benches. I do not think that I am capable of expressing myself so eloquently. However, I do not think I have seen in my life so flabby a schedule. I hope very much that my noble and learned friend will not try to force it down our throats.
Lord Boardman: My noble friend no doubt will accept that the schedule which he criticises was drafted by a lawyer or lawyers. Does he agree that, in his claimed role as a layman, his contribution is of great value? The criticism that he makes on the drafting of lawyers might be a point in support of having lay members or a majority of lay members on this committee.
Lord Peyton of Yeovil: My noble friend is entitled to his view but I have never allowed ray respect for lawyers to carry me to the lengths of praising the drafting of any of the measures which have come before us in Parliament in my recent memory.
10 p.m.
Lord Rippon of Hexham: It is most unfair that the draftsmen should be criticised. There are only 45 draftsmen who are paid an average salary of £32,000 per year. They must deal with a mass of legislation under the direction of the Minister. Sometimes Ministers, such as the late Lord Duncan-Sandys under whom I served, liked to draft all the legislation themselves. That is not necessarily a good idea. However, the Minister is responsible and the Lord Chancellor must take responsibility for the drafting.
Lord Renton: Does my noble friend agree —and he must know it from his own knowledge as a former head of department—that instructions for the draftsmen are not given by Ministers? They are given by civil servants within the broad and rather vague ambit of policy laid down by Ministers.
The Lord Chancellor: I should like to deal with some of the issues that have been raised. My noble and learned friend Lord Oliver quoted from the White Paper. The reason advanced in the White Paper at paragraph 7.10 for the majority being lay persons is that the balance aims to ensure that the committee primarily represents the views and interests of the user of legal services, but contains wide representations from those who have practical experience of providing them.
My noble and learned friend Lord Hailsham has described his way of selecting lay people to serve on a committee. I venture to think that. with his usual humility, he is under-estimating the amount of concern that he took in making the appointments. For example, it is apparent that the Civil Justice Review appointments were excellent and that the lay people, as well as the distinguished lawyers who served on that body, produced a report which commanded general acceptance and on which we have sought to take action in Part I of the Bill.
Secondly, my noble friend Lord Beloff told the Committee that when he is on a boat he is not allowed on the bridge. I have no doubt that that is true, although perhaps from time to time he has been privileged to be allowed on the bridge to see what is happening. However, I wish to point out a feature of our legal system which distinguishes it from any other. Every disputed fact in a criminal trial in this country is ultimately decided by lay people, except in a case where the trial judge is a stipendiary

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magistrate. They are the ultimate consumers of legal services. If the judge receives legal services, those people have the responsibility of judging in criminal trials. They are lay people who above all are concerned in relation to the provision of advocacy services by solicitors. The lay element in our system of justice in this country is extremely strong and it is not the same as the navigation of a ship to which my noble friend referred.
I wish to say a few words about the importance of the committee in answer to my noble friend Lord Rees. I regard the committee as being extremely important because it will give advice to which the professional bodies will be required to have regard. However, the ultimate decision-making will be in the hands of the two branches of the profession and with the necessary concurrence of the judges, including the Lord Chancellor, whom I hope I can describe in that way. The ultimate decision-making will be in the hands of the profession.
In that situation I suggest to the Committee that it is right that the balance in the advisory committee should be in favour of the users of legal services, taking that term in its broadest sense.
My noble and learned friend Lord Oliver speaks about the technical matters. My noble and learned friend Lord Rawlinson has done that too. I accept that there are highly technical matters involved; but there are also questions of what people want. Before you start to design a particular service, you must have some idea of what people require. It is for that element —the element of stating what is wanted; the services desired —that a lay majority is stipulated. It represents the views and interests of the users of legal services; those who want legal services; those who know the kind of service they want.
The idea is to try to match what will be provided both in education and training with what is required. It is the same concerning conduct. I should also like to emphasise, with great respect, the shrewd point made by my noble and learned friend the Master of the Rolls. Where there is a question of selling the rules of conduct of the legal profession to others, it is important that they can be fashioned in a way that intelligent lay people can understand.
I have referred already to the passage in the speech of the noble Lord, Lord Hutchinson of Lullington, on that matter. How difficult it is for lay people to understand, in the way we have expressed them up to date, the delicacies of the duties that, for example, counsel carry. There is no question in my mind but that a lot of people have the idea that the legal profession is dominated by restrictive practices. The contention to which my noble friend Lord Alexander of Weedon referred, which has been going on for much too long, between the Bar and the Law Society on rights of audience in the Supreme Court gives a kind of appearance of high probability to that which it is one of my aims in these proposals to try to resolve. The structure that I have proposed gives the best hope that we have of reaching a sensible resolution of these matters in such a way as to commend them to the general public.
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Just in case there is any mistake about it, I entirely agree with the view that the cab rank rule is nothing in the nature of a restrictive practice at all, but that is not the sort of rule that people think of. It is rules about rights of audience, and restrictions on rights of audience, that people think of when they imagine that there are restrictive practices in the legal profession.
From my experience, I know perfectly well that many of these things that others describe as restrictive practices have considerable justification; but it is important that they should be expressed in a way that takes account of that. What I believe is a good, lay voice of the balance that we have here in the structure of the education, training and rule-making of the legal profession will be beneficial to the cause of justice and to the interests of both branches of the profession.
I have already referred to the Civil Justice Review. My noble and learned friend Lord Hailsham said, "But that was an ad hoc committee with a single task". That was true of course, but there was also a proposal made during the time that my noble and learned friend was Lord Chancellor to have a Legal Aid Board. This of course is a standing board, and the recommendation that was accepted by Her Majesty's Government while my noble and learned friend was on the Woolsack was that the Legal Aid Board should have a permanent lay majority.
In my judgment, the necessity is that this body should have a degree of unity and commitment, the one to the other. I believe that we have a good chance of securing that in a structure of this kind.
I am entirely open to suggestions as to the people who should be on the body. A number of suggestions have been made already, and I think there is at least one other amendment suggesting yet another possible person for it. I should love to see, within the constraints that I have mentioned, all of these people on the body. But one has to have regard to its overall size and effectiveness. It may be that one can achieve some of these aims by getting someone who is common to more than one branch. However, the Committee may take it that all of these suggestions will receive further consideration.
Lord Rees: Before the noble and learned Lord sits down, he may recall that I put a question to him before I concluded. I should be most grateful if he could give me an answer. Will he tell the Committee which other professions are regulated by a committee dominated by laymen?
The Lord Chancellor: I thought I explained in answer to that question that this is not a body which is to regulate, it is a body to give advice. I know of no other profession in which such an important part of the decision-making, to which the profession is devoted, is taken by lay people. As I said, a significant feature of our system —of criminal justice particularly—is that the decisions on all disputed matters of fact are for lay people to take. However, above all I am making the point that the advisory committee is not for regulating the professions. The

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advisory committee is to give advice to those who regulate the professions, which I entirely agree will be very important and I hope very good.
Lord Simon of Glaisdale: Having listened to this debate, I have been strongly under the impression that a high balance of argument —not merely numbers, but the weight of argument —has been against my noble and learned friend the Lord Chancellor. I do not know where we go from there because there is a safe majority outside the Chamber. As Disraeli said, a majority is the best repartee.
However, it disturbs me that as on Tuesday, at a very late hour, Clause 8 of the Bill was absolutely torn to shreds but was still carried by the firmness —I was going to say obduracy —of my noble and learned friend the Lord Chancellor. It seems to be a great pity that he has not shown more sensitivity to the weight of argument that has been put forward.
I wish to make one other point. The noble Lord, Lord Mishcon, endorsed the view —it was his justification of the lay element —that lawyers are incapable themselves of initiating reform. With his skill as an advocate, he endeavoured to quote my noble and learned friend Lord Hailsham in support. Now is not the time to go into that. However, I hope without embarrassing my noble and learned friends I can mention the revolutionary changes and improvements in the procedures of the Chancery Division which we owe to my noble and learned friend Lord Oliver and also my noble and learned friend the Master of the Rolls who made the Commercial Court a court of international resort, so efficient did he make it. Since becoming Master of the Rolls he has utterly transformed the state of business in that court.
There is also the Bar Council with the free representation unit. I confess that it is many years since I worked closely with the Law Society, as I did at one time; but at that time there was no lack of reforming zeal and reforming capacity. However, that is merely seeking to correct what seems to be an injustice in this debate. In the end it comes to this: listening to this debate, the argument has been so overwhelmingly on one side that one can only despair at the way in which this Bill is being dealt with.
10.15 p.m.
Lord Allen of Abbeydale: I have been reluctant to intervene. I have been listening more or less patiently to this very long discussion, in which I have heard some rather astonishing things. I do not accept for a moment that Clause 8 was torn to shreds the other evening. Some of the descriptions of the role of civil servants and their relationship to Ministers bears very little relation to my experience over quite a long period of years.
Though we have discussed the size of the advisory committee and its make-up as between legal and lay representatives, there is a strong body of opinion which is wholly in favour of the view which the noble and learned Lord has put for a majority on that body having regard to the role of the committee as set out in the Bill. Though it is very natural, having
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so many eloquent lawyers present this evening, to find that the views that have been expressed have on the whole been against the Government's proposals, I should not wish anyone to go away thinking that those views necessarily command wide support outside this Chamber.
I have an amendment which will be discussed later regarding the lay aspect of representation on the advisory committee relating to consumer affairs. The amendment is designed to go a little further than the provision in the Bill as at present drafted, which requires attention to be called to the need for consumer affairs to be represented. The justification for what I have been suggesting is the statement right at the beginning of the White Paper that the legal profession exists for the benefit of its clients. It seems important that the views of the clients should be well represented.
In order to save time I say straight away that I am not proposing to move my amendment but rather to rest on the undertaking which the noble and learned Lord gave an hour and a half ago that he will consider the various points raised on the suggested amendments as to the composition of the advisory committee. I am very content that the point which is implicit in the amendment which I have tabled should be taken care of in that review, This evening I shall be perfectly happy to leave the matter there.
Lord Ackner: I am sure that the Committee is anxious to make progress. In the course of this Bill I have grown used to finding myself cast in the shy, retiring and self-effacing role. Therefore, I feel it is appropriate for me to say that, having listened to my noble and learned friend the Lord Chancellor, I remain wholly unconvinced. As my amendment was designed to act as an appendage to the main group of amendments advanced by my noble and learned friend Lord Oliver, I propose to withdraw it at this stage, reserving the opportunity to bring it up again at the Report stage. The amendment refers to the stipendiary magistrate. I take this course in the confident hope that my noble and learned friend will adhere to what he has so eloquently said regarding his amendment.
Baroness Elles: With the leave of the Committee and the permission of my noble and learned friend, and following on the example of the noble Lord, Lord Allen of Abbeydale, perhaps it will be convenient if I speak now to Amendment No 117A. This amendment too refers to the composition of the advisory committee. If there is no objection I shall introduce it briefly, so that my noble and learned friend the Lord Chancellor may take into account this particular aspect of the composition of the committee.
I remind the Committee that on Tuesday of this week, 23rd January, there was a report in the Financial Times of a case before the Queen's Bench Division. There was a request for an order for security of costs. The court was not able to make the order because the rule of the Supreme Court was in contravention of Article 7 of the EC treaty. This is one example of the effect of Community law on national courts.

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I should like to quote from a recent report on the application of European Community law. It says:
"The effectiveness of European Community law depends to a great extent on national courts. The application of EC law falls within the jurisdiction of national courts in all cases where the Community institution is not a party".
The competence of national courts will be increased considerably in the coming years, particularly with the vast amount of legislative measures being introduced into national law in accordance with the 1992 programme. It would therefore seem reasonable that practising lawyers at whatever level should have some elementary knowledge of the principles, procedure and practice of European Community law.
My amendment proposes that at least one member of the advisory committee should have some expert knowledge and interest in this subject and that it should be included as a compulsory subject for any aspiring lawyer. With regard to the amendment itself, I put it to my noble and learned friend that it may possibly not be suitable for inclusion as one of the areas set out in subsection (5) of Clause 16 but could possibly be applied to one of the academics who would be appointed under subsection (4)(c). Perhaps I may leave it to my noble and learned friend to take this into account when deciding on the final composition of the advisory committee.
Lord Ackner: I thought that it was intended to deal with my Amendment No. 98. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Oliver of Aylmerton Lord Oliver of Aylmerton moved Amendment No. 99:
Page 13, line 16, leave out ("14") and insert ("16").
The noble and learned Lord said: I have already spoken to this amendment. It is a paving amendment to lead the way for subsequent amendments. I beg to move.
10.22 p.m.
On Question, Whether the said amendment (No. 99) shall be agreed to?
Their Lordships divided: Contents, 31; Not-Contents, 42.

DIVISION NO. 2

CONTENTS

Ackner, L.

Murray of Epping Forest, L

Addington, L.

Oliver of Aylmerton, L. [Teller.]

Alexander of Weedon, L.

Beloff, L.

Onslow, E.

Byron, L.

Peyton of Yeovil, L.

Carlisle of Bucklow, L.

Rawlinson of Ewell, L.

Camock, L.

Rees, L.

Dilhorne, V.

Renton, L. [Teller.]

Donaldson of Lymington, L.

Rippon of Hexham, L.

Foot, L.

Russell, E.

Griffiths, L.

Seear, B.

Hailsham of Saint Marylebone, L.

Selkirk, E.

Simon of Glaisdale, L.

Hutchinson of Lullington, L.

Templeman, L.

Lloyd of Kilgerran, L.

Wilberforce, L.

Meston, L.

Winterbottom, L.

Monson, L.

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NOT-CONTENTS

Adrian, L.

Hooper, B.

Allen of Abbeydale, L.

Huntly, M.

Ampthill, L.

Joseph, L.

Arran, E.

Kinnoull, E.

Belstead, L.

Long, V.

Blatch, B.

Mackay of Clashfern, L.

Boardman, L.

Mishcon, L.

Brougham and Vaux, L.

Morris, L.

Carnegy of Lour, B.

Oxfuird, V.

Coleraine, L.

Ponsonby of Shulbrede, L.

Cowley, E.

Prys-Davies, L.

Davidson, V. [Teller.]

Reay, L.

Denham, L. [Teller.]

Romney, E.

Elles, B.

Shackleton, L.

Elton, L.

Strathmore and Kinghonne, E.

Ferrers, E.

Gisborough, L.

Taylor of Gryfe, L.

Glenarthur, L.

Thomas of Gwydir, L.

Gray, L.

Trefgarne, L.

Henderson of Brompton, L.

Trumpington, B.

Henley, L.

Ullswater, V.

Hives, L.

Resolved in the negative, and amendment disagreed to accordingly.
10.30 p.m.
Lord Simon of Glaisdale: I beg to move that the House do now resume.
The noble Lord the Leader of the House is here. If he indicates that he will accept the Motion I shall sit down. I shall do so pretty quickly, because I have moved the Motion to give him a chance to say how he envisages that matters should go. I hope that he will not say that a long time was taken on one amendment —the last one —because about eight amendments were discussed at the same time. They raised different issues and some were mentioned merely to indicate that they would not be moved. Having proposed the Motion, and having a chance no doubt to reply if necessary, I give way to the noble Lord the Leader of the House.
Moved, That the House do now resume. —(Lord Simon of Glaisdale.)
The Lord Privy Seal (Lord Belstead): Perhaps I may just say a word in reply to the noble and learned Lord. I understand the concern that he has expressed. The Committee has laboured long and hard today and it has not been a day which has been easy for anyone in this country in view of the weather. We have got through a lot of business.
There is one important point that I should repeat which is left over from a day or so ago. Many Members are under the impression, whether they are here or have left, that we shall reach the end of Part II. It may or may not be possible to do that, but to cut off now would not be reasonable. Therefore, perhaps I may suggest —this is entirely for the Committee to decide —that we should go on at least for a bit longer to see how we get on and what progress we make. I know that there are a number of amendments to come which have already been spoken to. If the noble and learned Lord feels that the Leader of the House is being unreasonable, I shall be here on the Bench and ready to reply again.
Lord Ponsonby of Shulbrede: I believe that the noble Lord the Leader of the House was not quite right. The intention was to reach the end of Part II at the finish of business on Monday, and today to reach Clause 30, which ends the question of representation.
Lord Ackner: I should perhaps indicate that to reach the end of Clause 30, as will be seen, involves Schedule 4, which contains a wide variety of alterations. I am not prepared to concede a lack of vitality to anyone, but I am bound to say that the Law Lords begin a great deal earlier in the day. This week to prepare myself for the debates I was in at 7 a.m. on Monday; 7.30 a.m. on Tuesday; 8 a.m. on Wednesday and 7.15 a.m. today. The Bill is concerned with the administration of justice. If the Committee wants an input from the judges, some slight modification from the usual resilience might be shown.
Lord Belstead: Before the noble and learned Lord, Lord Simon of Glaisdale, decides what to do with the Motion, perhaps I may apologise to the noble Lord, Lord Ponsonby, who is correct: the target is to reach the end of Clause 30. Despite listening to the noble and learned Lord, Lord Ackner, I feel that we ought to go on a bit, see how we go and try to reach a target which noble Lords both inside and outside the House believe we would reach in order to start at a certain position on Monday.
Lord Simon of Glaisdale: I should certainly not wish the word "unreasonable" to be put into my mouth in relation to the noble Lord, the Leader of the House. I was going to ask him what he meant when he said the first time that we should "go on a little bit", and the second time "go on a bit". Will he give some indication as to what hour he thinks it reasonable to expect the Committee to continue to sit to in consideration of a Bill which is accepted in all quarters as of high constitutional and social importance?
Lord Belstead: Let me put it like this. I should have thought that a reasonable time at which to look again at how we were doing would be at about a quarter to midnight. Perhaps I may say to members of the Committee that I believe that the debate on the last amendment took just under an hour and three-quarters. It is for the Committee to decide how long it wishes to take on particular amendments. However, if we are to get anywhere near the kind of target which it was thought would be reasonable at the end of today, I should have thought that it would be not unreasonable to see where we were at about a quarter to midnight.
Lord Rawlinson of Ewell: The noble Lord the Leader of the House was not here when we debated this. About eight amendments were taken in the last debate and when I moved my amendment at 8 o'clock, I spoke to 11 amendments altogether. So we have not spent an hour on one amendment. The noble Lord the Chief Whip shakes his head, but I am trying to explain that we were dealing with a great number of amendments. Only one was called
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by the Lord Chairman, but we were discussing a great many of the amendments which we dealt with. Of course they took an hour, but it is a very difficult Bill. Only one was called by the noble Lord the Deputy Chairman. However great the huff and puff of the Front Bench, it is a difficult and complicated Bill, to which this Committee must pay a great deal of attention.
Lord Rippon of Hexham: One misunderstanding arose the other day as to the number of days allotted to the Committee stage. I had always understood that agreement had been reached on about six days, but now the indication is that it is five. I am bound to say that I think that that is totally unreasonable and that on a matter of this kind an agreement through the usual channels ought not necessarily to be regarded as in any way binding.
The Deputy Chairman of Committees (Lord Ampthill): Does the noble and learned Lord, Lord Simon, wish to press his Motion or to withdraw it?
Lord Simon of Glaisdale: I think it ought to be withdrawn. I beg leave to withdraw the Motion.
Motion, by leave, withdrawn.
The Deputy Chairman of Committees: Does the noble and learned Lord, Lord Rawlinson, wish to move Amendment No. 100?
Lord Rawlinson of Ewell: The amendment was discussed with Amendment No. 96 and I do not press it.
[Amendment No. 100 not moved.]
Lord Oliver of Aylmerton Lord Oliver of Aylmerton had given notice of his intention to move Amendment No. 101:
Page 13, line 17, at end insert ("with the concurrence of the Lord Chief Justice").
The noble and learned Lord said: I shall not move the amendment, but I reserve the liberty to reconsider the matter in the light of what was said.
[Amendments Nos. 101 to 108 not moved.]
Lord Mishcon Lord Mishcon had given notice of his intention to move Amendment No. 108A:
Page 13, line 24, at end insert —
("( ) I shall be a practising legal executive appointed after consultation with the Institute of Legal Executives;")
The noble Lord said: I know that the noble Lord, Lord Hacking, spoke to Amendment No. 108A in regard to legal executives. I am sure:hat what he said has been noted by the noble and learned Lord the Lord Chancellor and I therefore propose not to move the amendment.
[Amendments Nos. 108A and 109 not moved.]
Lord Lloyd of Kilgerran Lord Lloyd of Kilgerran moved Amendment No. 109A:
Page 13, line 28, after ("appropriate") insert—
("( )—I shall be a practising patent agent appointed after consultation with the Chartered Institute of Patent Agents; and").
The noble Lord said: In moving this amendment, I wish to speak also to Amendments Nos. 112A, 113A and 212A. Amendment No. 109A attempts to add another member to the advisory committee, without affecting the position or the control of the other lay members. The amendment states that,
"a practising agent appointed after consultation with the Chartered Institute of Patent Agents"
should be appointed to the advisory committee. I apologise at this stage that these amendments were tabled rather late. I wish to emphasise the practical importance of this amendment in the public interest, having regard to the great number of technical advances and innovations now taking place. These technological advances have been so important that recently the noble and learned Lord the Lord Chancellor agreed to the appointment of a new patents court. Having regard to the rights of audience of the members of the Chartered Institute of Patent Agents to this new court, I wish to emphasise why it is so important to have a patent agent on the advisory committee.
However, I must say with great respect that I felt that the procedure over the past two hours was somewhat confused in the number of amendments that were spoken to on a somewhat ad hoc basis. I do not believe that the noble and learned Lord the Lord Chancellor gave an undertaking that he would consider all the amendments that dealt with proposed additions to the advisory committee. I am most anxious to help in shortening this debate, so if the noble and learned Lord were to say at this stage that, without hearing my reasons for the amendment, it would be convenient for him to consider whether or not the inclusion of a member of the Chartered Institute of Patent Agents on the advisory committee would be helpful, I shall gladly resume my seat and not go through the presentation which I had prepared. However, I do not believe the noble and learned Lord gave that undertaking, although a Member of the Committee said that he had.
The Lord Chancellor: I shall respond to that point before the noble Lord sits down, and therefore before the amendment is put. I said that I would consider these matters —I tried to show the framework in which I was seeking to operate—because there were a number of candidates involved. I should like to know why the noble Lord considers that a patent agent should be included on the advisory committee. He may find it convenient to make representations to me on another occasion, although he is perfectly entitled to do so here if he wishes. That is a matter entirely for him.
Lord Lloyd of Kilgerran: I am much obliged to the noble and learned Lord the Lord Chancellor. He said that I could make representations to him on another occasion before Report. It would save at least half an hour of the Committee's time if I accepted that undertaking. I beg leave to withdraw the amendment.
[Amendment No. 109A not moved.]
[Amendments Nos. 110 to 112A not moved.]
Lord Boardman Lord Boardman moved Amendment No. 112B:
Page 13, line 29, leave out ("8") and insert —
("2 shall be persons with experience in and knowledge of commercial affairs, appointed after consultation with such organisations representing industrial users of legal services as the Lord Chancellor considers appropriate; and (ee) 6").
The noble Lord said: With this amendment, and the others which are grouped with it, I wish to canvas the merits of candidates to appear on the advisory committee. I shall do so briefly because I think that the case will be well known to my noble and learned friend. It is to promote from the list of those who can be considered under the terms of Clause 16(5) those whose interests must be represented on the advisory committee under the earlier part of the clause. The amendment refers to two candidates who have:
"experience in and knowledge of commercial affairs".
They are to be appointed after consultation by my noble and learned friend with bodies representing.
"industrial users of legal services",
such as the CBI and the Association of British Chambers of Commerce. I am sure that my noble and learned friend will be well aware of the vast importance to industry and commerce of the efficient administration of justice. They are regular users of legal services.
There is one special consideration which I hope my noble and learned friend will bear in mind; that is the impact of 1992 on the legal system. The industrial and commercial worlds are more familiar than most with what is happening in courts overseas, in which they themselves are so often involved.
I am sure that my noble and learned friend will know how much those organisations now contribute and the extent of the legal and quasi-legal advice that they give to government from time to time. I am sure that they will make a valuable addition to the committee. I hope that he will feel able to appoint them in their own right instead of as an optional extra.
I am quite content to leave it to my noble and learned friend to take their case into consideration with that of the other candidates to which he will be referring. I shall not press the amendment if that is the line which he proposes to take. I beg to move.
10.45 p.m.
Lord Morris: Perhaps on the back of this amendment I may take up the invitation which my noble and learned friend the Lord Chancellor proffered to the noble Lord, Lord Lloyd of Kilgerran.
Without even a glance at me, the noble Lord, Lord Mishcon, did not move Amendment No. 108A, although I had added my name to it. I therefore had no opportunity to speak to it. Perhaps I may suggest to my noble and learned friend that I might make representations to him as to the merits of that case. I should be very happy so to do.
Lord Mishcon: I apologise to the noble Lord, Lord Morris. I did not see him in his seat. It was obviously my error. The noble Lord, Lord Hacking, asked me to deal with the amendment in his absence. I am sure the noble Lord acquits me of any discourtesy.
The Lord Chancellor: Certainly I shall be happy to receive the further enlightenment on the Institute of Legal Executives that my noble friend will provide.
So far as concerns the amendment of my noble friend Lord Boardman, I shall certainly have regard to what we can do in relation to those matters. I shall not be very keen to allocate places in the lay part of the committee to particular interests. However, I certainly want to have as wide a spectrum as possible in which to examine and consult, and to take account of these matters in that way.
Lord Hailsham of Saint Marylebone: I hope that in giving that undertaking my noble and learned friend will also bear in mind that that illustrates the point that I sought to make. There will be a lay majority on the committee, and a certain number of professionals are specified. Representation on the committee will have to cover crime, magistrates' courts, county courts and family courts, including the whole business of matrimonial jurisdiction. It will have to include personal injuries cases, which is the bread and butter of some of our divisions. It will have to include employers' liability. As the noble Lord, Lord Lloyd of Kilgerran, reminded us, it will have to include patent agents and copyright specialists. It will also have to include income tax specialists and numerous other persons whose names do not immediately arise. I can think at once of probate and admiralty cases, defamation and all the specialties which come before the courts. Where shall we be if they are all to serve on the committee which at this Committee stage is limited to 14 members in all plus a chairman?
The Lord Chancellor: In response to my noble and learned friend, in case there is any misunderstanding, I indicated at the outset that I would consider the proposals. I indicated the general considerations concerning the committee which I have in mind. I have no intention whatever of proposing a committee on which every possible sectional interest is represented. Otherwise it would be almost a Committee of the Whole House.
Lord Boardman: In view of the comments of my noble and learned friend Lord Hailsham, perhaps I may point out that industry and commerce are involved in all those matters that he listed with the exception of family courts and matrimonial matters, so they would be ideal candidates. In view of the comments of my noble and learned friend the Lord Chancellor, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 113 to 114ZA not moved.]
The Lord Chancellor The Lord Chancellor moved Amendment No. 114A:
Page 13, line 34, leave out ("(2)") and insert ("(4)").
The noble and learned Lord said: This amendment is simply intended to correct a printing error in the Bill in the reference to the subsection. I beg to move.
On Question, amendment agreed to.
[Amendments Nos. 115 to 117ZA not moved.]
Baroness Elles Baroness Elles moved Amendment No. 1 17A:
Page 13, line 43, leave out ("or").
The noble Baroness said: I have already spoken to Amendments Nos. 117A and 117B which stand in my name but I should like an assurance from my noble and learned friend the Lord Chancellor that he will take into account the proposal for the inclusion of Community law within the matters that should be represented on the advisory committee.
Lord Renton: Before my noble and learned friend replies perhaps I may add to what my noble friend Lady Elles has said. There is an increasing commitment on the part of both branches of the legal profession in this country to practise on the Continent of Europe. That will increase still further as the years go by. My noble friend has made an important point which I hope my noble and learned friend will consider sympathetically.
The Lord Chancellor: Yes, certainly.
Baroness Elles: I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 117B not moved.]
Lord Mishcon Lord Mishcon moved Amendment No. 117C:
Page 13, line 45, at end insert ("; or
(h) the desirability of ensuring equality of appointments for women and people of different ethnic and national origins to enter the legal profession and to become judges and teachers of law").
The noble Lord said: I shall deal with the amendment very briefly. I am not sure whether the English of the amendment is entirely clear by virtue of the fact that it is governed by the preliminary words of subsection (5) which state:
"In appointing any member who falls within subsection (2)(d), the Lord Chancellor shall have regard to the desirability of appointing persons who have experience in, or knowledge of".
It then goes on to deal with the question of desirability.
The purpose of the amendment is plain. I know that the noble and learned Lord and all Members of the Committee realise how important it is that in the entry into the profession, the training within the profession and the appointments within the profession the idea of equality of appointments for women and people of different ethnic and national origins is taken into account. If the noble and learned Lord agreed with the principle, I should ask the leave of the Committee to withdraw the amendment and put the matter into a proper form on Report unless the Government wanted to come forward with their own amendment.
Lord Hutchinson of Lullington: I strongly support the amendment. As the noble and learned Lord knows very well, for the last four years I have been a member of the committee which has been trying to improve the ethnic minorities' position in the criminal process. The result of that inquiry, which is still going on, has been to show the most remarkable lack of realisation and perception of the

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hidden and often unconscious racial prejudice and the lack of racial representation of ethnic minorities in all the agencies in the criminal process. It is a matter about which I know that the noble and learned Lord the Lord Chancellor is particularly concerned and in which he has shown a particular interest. I should like to support this amendment. In doing so, I hope that it will receive sympathetic attention.
The Lord Chancellor: I am very grateful to the noble Lord, Lord Hutchinson, for his remarks. I am extremely interested in trying as best as I can to promote these matters. I think it is also fair to say that the General Council of the Bar and the Law Society are concerned about other aspects of racial discrimination. I am considering whether anything can be done in relation to this Bill to deal with those problems.
While I am entirely sympathetic to the matter that the noble Lord wishes to advance —and it may go a little beyond the English —I am not certain whether the way in which it is being done here is necessarily the right way. I shall certainly consider whether something can be done about it, perhaps in relation to the terms of reference of the committee, or something of that kind.
However, the noble Lord may take it that I should like to do anything that I reasonably can to advance this cause. If he accepts that from me, he might feel able to withdraw the amendment, although from what I know about it so far I doubt whether that is quite the appropriate way to do it.
Lord Mishcon: It was not only a matter of trying to encourage this generally but I was looking at the membership of the advisory committee itself in order to see that that principle was carried through. Maybe the noble and learned Lord, in his great kindness, would write to me between this stage and Report. We can either agree then upon something to be put in the Bill or I can move my amendment at Report stage and have it considered.
In the circumstances —the noble and learned Lord has nodded and I wish to record that in Hansard—I ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 16, as amended, agreed to.
Clause 17 [Duties of the Advisory Committee]:
Lord Prys-Davis Lord Prys-Davis moved Amendment No. 117D:
Page 14, line 23, at end insert ("and the maintenance of access to common standards of representation of litigants irrespective of means".
The noble Lord said: This amendment widens the duty of the advisory committee by requiring it to assist in maintaining equal access to justice. When this Bill is enacted we fear that many litigants, in particular those who are on low incomes, will turn not only to friends and relatives (which we very much support) but also to remunerated non-lawyers. I believe that to be one of the main aims of the Bill.
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I can recall the noble and learned Lord the Lord Chancellor praising lawyer-free litigation as a desirable end in itself.
As the Bill frees and opens up the market, I think that one should also accept that there is need to protect the vulnerable consumers, in particular those who will be seeking assistance from the second tier, if I may use that term, that is manned by the remunerated non-lawyers. That is why we say in this amendment that it should be a task of the advisory committee to ensure the maintenance of access to common standards of representation of litigants, irrespective of means.
We believe that that is a safeguard which should be built into the system from the outset and not arise at some point in the future, possibly after some years of abuse. I very much hope that this amendment can be accepted by the noble and learned Lord as being non-controversial. I beg to move.
The Lord Chancellor: While I perfectly understand the aim of the noble Lord, I do not think that I can accept this amendment. The committee and the framework created in this part of the Bill deal with the question of the structure of the profession and the services provided. It is not intended to deal with the level of remuneration, for example, that should be paid to professional advisers. The effect of the proposed amendment could lead the advisory committee into seeking to stipulate rigid standards to apply to all clients whatever their status, their means or the sums at stake. Wealthier clients would not, for example, be entitled to employ additional counsel in particularly important cases. The object of the Bill is to remove any unnecessary restrictions which inhibit the quality of service, and not to impose them. If the service is freed from any unnecessary restrictive practices, the result will be an increase in client choice. I have been accused in the past of seeking to subject the profession to undesirable influence from the Executive. But the amendment seems to suggest that the advisory committee should advise rigid controls which would probably be deleterious to an independent profession. I suggest that it would be best to let the advisory committee concentrate on legal education and conduct.
I am sure that both branches of the profession will desire to attain the best possible service for clients of differing financial circumstances. The Bar already makes provision for free representation, as has already been mentioned. I am sure that the Law Society will seek to do the same. However, such an arrangement is a matter for the profession in the light of its general structure.
11 p.m.
Lord Prys-Davies: I thank the noble and learned Lord for his response. We must consider in particular whether his reassuring words address the mischief which those who instruct us believe should be met by the wording of the amendment. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 17 agreed to.
Lord Prys-Davies Lord Prys-Davies moved Amendment No. 117E:
After Clause 17, insert the following new Clause:
("Regional Legal Services Committees.
.—(1) The Lord Chancellor shall establish committees to be known as Regional Legal Services Committees to promote the development of legal and advice services in such areas of England and Wales as he considers appropriate.
(2) Regional Legal Services Committees shall consist of local representatives of consumers and providers of legal and advice services, and others interested in the work of the committees.
(3) Regional Legal Services Committees shall inform professional bodies, Government and others of the needs and wishes of consumers of legal and advice services, and shall consider and promote —

(i) innovative ways of providng legal and advice services;

(ii) improvements in the education, training and conduct of those offering legal and advice services;

(iii) improvements in the way courts meet the needs of litigants in their area.

(4) In addition to their other activities, Regional Legal Services Committees may undertake research and conduct pilot schemes at the request of the Advisory Committee or the Lord Chancellor.
(5) The Lord Chancellor shall provide funds to Regional Legal Services Committees to enable them to perform their duties.".
The noble Lord said: If one is concerned to improve access to legal services and develop new ways of providing such services, there is the need to evolve ways in which the consumers of legal services in different localities can represent their needs and views to the providers of such services.
That has been done by the north-western regional legal services committee. It is a group of lawyers, advice centre workers, academics, court staff, police and probation officers, voluntary organisations and others who are committed to improving legal services. The committee initiated the successful accident leaflet scheme which informed people about their right to claim compensation after an accident. The committee also encouraged people to see a solicitor. Solicitors were offering a free interview. I understand that the scheme has now been taken up by the Law Society and is being promoted throughout the country.
My attention has been drawn to the fact that the Government's Green Paper criticised the Law Society for not "adequately underlining the importance" of written professional standards. Again, the north-western regional committee has taken the lead in that area. It has produced leaflets informing clients of what they have a right to expect from their solicitors. It also encourages centres to refer only to those solicitors who abide by the recommended standards. I understand that the Law Society is considering using the leaflet. I could elaborate on other helpful projects which are undertaken by the committee.
The north-western regional committee survives on a grant of approximately £50,000. It covers a full-time secretary and travelling and administrative expenses. Currently the grant is paid by the Legal Aid Committee. But that committee is considering withdrawing the grant. A similar committee has been established in the North-East, but has yet to find the necessary funding. That is also the position in South Wales where a steering committee has been set up
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but it cannot make progress because it is without funds.
I think it is generally accepted that the regional legal services committees are a cost-effective way of achieving the objectives of Part I and Part II of the Bill. The object of this particular amendment is to call on the Lord Chancellor to establish a number of such committees, representative of consumers and providers of legal services, in different parts of England and Wales.
It should also be said that the advisory committee that we have been discussing could benefit greatly from the advice it would receive from such a committee because it would not be advice in the abstract but advice based on realistic, practical experience of consumers who are very much on the receiving end of legal services. I believe that this amendment introduces a simple but important improvement that should be built into any system of reform introduced by the Bill. I beg to move.
The Lord Chancellor: We discussed regional legal services committees at the Committee stage of the Legal Aid Act 1988. I said then that the Legal Aid Board already had power under the Legal Aid Act to establish and fund regional committees, should it be found desirable to do so. The Legal Aid Board has already given some consideration lo the role of legal services committees, but needs snore time to develop its own relationship with the providers of legal services. It would not be sensible to pre-empt this work.
Moreover, the effect might be to establish two —or perhaps three—levels of responsibility for legal services. The Lord Chancellor has a ministerial responsibility in this connection. Section 4(1) of the Legal Aid Act gives the board the general function of securing that advice, assistance and representation are available in accordance with this Act. This amendment would require regional legal services committees to:
"promote the development of legal and advice services."
That would have two thoroughly difficult consequences. First, responsibility for legal services would be apt to be somewhat of a muddle. The additional obligation on regional committees introduced by this amendment would seem to be an unnecessary fifth wheel. The second undesirable consequence of this amendment is that it would make these committees responsible for promoting legal and advice services. This would seem to mean all advice services, including generalist advice services such as citizens advice bureaux. This would go far beyond the remit of this Bill and beyond my responsibilities.
In any event, the Legal Aid Board is, even now, looking at the provision of legal advice arid assistance under the Green Form Scheme with a view to enhancing existing standards. I expect them to report to me with their proposals early in 1992. In the meantime it would be wasteful of resources to establish any body with responsibility for advice services while that work is going on. I believe that the Legal Aid Board is pursuing this with a good deal of vigour.
Lord Mishcon: When the noble and learned Lord refers to the good work of these services committees and says that a body is pursuing this with vigour, I refer him to the record of the debate to which he referred. It was on 14th January 1988, which is now over two years ago. When my noble and learned and much lamented friend Lord Elwyn-Jones moved an amendment for this to be dealt with under the Legal Aid Act, the noble and learned Lord the Lord Chancellor, on 14th January 1988, said:
"I have already explained that power to do what is suggested in this amendment is available to the board subject to the approval of the Lord Chancellor. I also sought to explain that it is a matter of seeing what is required in the view of the board when the board is set up".—[Official Report, 14/1/88/; col. 1438.]
One assumed from that —I think justifiably —that something was to be done, if not in 1988 then in 1989; and if not in 1989 then it would be done by the beginning of 1990. I am sure the noble and learned Lord, who does not like delays, will have some opportunity, as a result of what is said now, of expediting these proceedings.
Perhaps I may say something in a lighter vein. I notice that at col. 1438 my late noble and learned friend Lord Elwyn-Jones replied to those observations in the following way:
"I confess that I was not giving my undivided attention to the earlier consideration of this matter. I therefore may have let something very important pass by in the odd moments when one is allowed relaxation. I shall bring no tears to anyone's eyes but I have sat in this Chamber since three o'clock in the afternoon".
My noble and learned friend said that at one minute before 10 o'clock.
In view of what I have said —and reminding him of his observations of over two years ago —will the noble and learned Lord undertake to see that this matter of consideration by the Legal Aid Board is expedited so far as is possible. From what he said in 1988 it is clear that in his own mind he thought that something would be done along those lines, or recommendation made, well before now. If he could give such an undertaking I would willingly ask leave to withdraw the amendment.
The Lord Chancellor: I had in mind in that debate that it was a matter for the Legal Aid Board, but of course it could not do anything until it was set up. The primary function that it has had since it was set up is to try to improve the administration of the existing scheme so as to get applications for legal aid certificates dealt with quickly. I believe that the board is looking at these matters with as much expedition as possible.
I certainly undertake to look at the matter to see how the board is getting on. I know that its members are working hard and, I believe, with a certain amount of success already. I know they are concerned that the provisions of the Legal Aid Act should be as effective as possible. Perhaps with that comfort the noble Lord will feel able to withdraw the amendment.
Lord Mishcon: It is indeed a grain of comfort and, at this stage, I ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 118 to 120 not moved.]
11.15 p.m.
Lord Renton Lord Renton moved Amendment No. 120A:
Page 64, line 42, leave out sub-paragraph (4).
The noble Lord said: In the absence of the noble and learned Lord, Lord Simon of Glaisdale, who not surprisingly finds, again, that he suffers from the lateness of the hour, I beg to move Amendment No. 120A which stands in his name and mine. I suggest that we take with it Amendments Nos. 120B to 120F. I go even further, in the hope of saving the time of the Committee, and suggest that we also refer to Amendments Nos. 139ZC to 139ZF, amending Schedule 3, which deal with the same point to which I referred rather late on Tuesday night. I make no apology for the fact that we are bringing up this matter again. The Committee will see that in the amendments I shall move that the consent of the Treasury is required on no fewer than nine occasions with regard to relatively minor details in the Bill. These are matters which are within the responsibility of my noble and learned friend the Lord Chancellor but in relation to each of them the references noted on the Marshalled List state that he is required to obtain the approval of the Treasury or sometimes its consent.
When different words are used in the same statute there is a rule of interpretation by the courts that they are said to have different meanings. If the word "approval" has a different meaning and effect to the word "consent", I believe that we should be told what it is; otherwise our legislation is sloppy. I refer to the particular occasions when the consent of the Treasury is required in Schedules 1 and 3. Schedule 1 at paragraph 7(1)(b) on page 64 of the Bill refers to the payment to members of the advisory committee and those who are co-opted of,
"such remuneration, and such travelling and other allowances, as may be determined by the Lord Chancellor".
In subparagraph (4) we find that,
"The approval of the Treasury shall be required for the making of a determination",
by him. Under the heading "Staff" and paragraph 8(1) of Schedule 1:
"The Advisory Committee may, with the approval of the Lord Chancellor as to terms and conditions of service, appoint such staff as it may determine".
This time the consent of the Treasury is required at subparagraph (5) on page 65. In paragraph 9(1) under the heading "Accounts and audit" we find that,
"The Advisory Committee shall keep accounts and shall prepare a statement of accounts".
In subparagraph (2):
"The accounts shall be kept, and the statement shall be prepared, in such form as the Lord Chancellor may … direct",
but again with the approval of the Treasury. So it goes on and I am not going to weary the Committee with the details of all the occasions.
I raised this matter on Tuesday evening and it appears at col. 1042 of the Official Report. My noble and learned friend told the Committee,
"There are some things which the Lord Chancellor is prepared to help with and some which he would rather leave to others".
With respect to the noble and learned Lord, it appears from the parts of the schedule that I have read out that he is not leaving these matters to the

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Treasury. He has to make his own determination and he has to draw up his own form of accounts. After doing that he has to obtain the approval of the Treasury.
On Tuesday evening I suggested that it was rather extraordinary for a great officer of state such as the Lord Chancellor to have to obtain the approval of what appears to be minor officials of the Treasury. It is not the approval of the Chancellor of the Exchequer that is sought but of the Treasury. My noble and learned friend explained to me:
"The normal procedure is that an order made under a clause such as this would be signed by the Lord Chancellor and a certificate would be signed by two Lords Commissioners of the Treasury as concurring".
We all know that two Lords Commissioners of the Treasury would be not very senior Government Whips and they would know little or nothing about what the Lord Chancellor had in mind. It would be a kind of formality and a piece of mumbo-jumbo. Yet Parliament is asked to write this matter of administration within the Government into the statute so that it becomes part of the statute law of the land.
My noble and learned friend Lord Simon of Glaisdale and I, sometimes with the support of others with great experience in politics, have pointed out that this is a misuse of primary legislation. It has gone on for years. It seems to us to be nonsensical. It is time to stop it. I hope that the present Chancellor of the Exchequer, for whom I have a very special admiration and respect because he took over my old constituency 11 years ago, will have the wisdom and the practical sense to stop it and that he will be assisted in making the change by my noble and learned friend the Lord Chancellor. I move this amendment in the hope —I hope that it is not a despairing hope —that we shall stop legislating in ways which merely concern the somewhat formal internal administration of the Government. I beg to move.
The Lord Chancellor: Provisions allowing payment of fees and allowances to be paid out of money provided by Parliament normally require the rates to be set with the consent of the Treasury. It is important that a consistent approach is maintained so that particular fees and allowances do not fall out of step and create pressure for increases elsewhere. The Treasury is responsible to Parliament for the proper administration of moneys voted by Parliament not only in respect of the total amount but in respect also of the ways in which they are disbursed. This reflects the proper care which the Government should have in dealing with what is, after all, the taxpayers' money.
The opening sentence of my previous response was intended as a reply to the concluding words of my noble friend Lord Renton asking that I should do something. It was not really directed to the substance of the amendment.
This is the standard practice. As my noble friend said, it has been going on for a considerable time. I have a note of a similar Motion being made in 1960,
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so there is a fairly long history to this. That is my understanding of the position and I regret that I cannot accept the amendment.
Lord Renton: When my noble and learned friend refers to having a consistent approach, would he agree that it is a consistent approach within the Government where there is Cabinet responsibility? Is he saying that that consistency cannot be achieved without asking Parliament to write this into the statute? Will he also answer my question, which is a quite serious drafting question? What is the difference between "consent" and "approval"?
The Lord Chancellor: On my noble friend's second point, the question concerns the most appropriate word in the context. The essence is consent. Sometimes the appropriate way to express it is by using the word "approval". Sometimes it is "consent" and sometimes it is "concurrence". It depends on the nature of the context. These phrases are included in recognition of the Treasury's responsibility to Parliament for that aspect of the subject matter.
Lord Renton: We have dealt with this matter only briefly at this late hour. I shall go on trying to get some sense in this matter and in relation to other matters written into statute which are part of the internal administration of government. Having said that, and having made the point again briefly tonight, I beg leave to withdraw the amendment on the understanding that I shall come back to it time and time again.
Amendment, by leave, withdrawn.
[Amendments Nos. 120B to 120D not moved.]
Lord Mishcon Lord Mishcon moved Amendment No. 120E:
Page 66, line 18, at end insert—
("(1A) Such grants shall include money for the commissioning of research.").
The noble Lord said: In moving this amendment I shall, with the leave of the Committee, speak also to Amendment No. 121 B which it will be seen gives power to the advisory committee—noble Lords may think a very necessary power—to fund research so that it may carry out its voluminous and very responsible duties under this paragraph. The members of the advisory committee should obviously have such a power and the provision contained in Amendment No. 120E gives them the money, such grants coming from the noble and learned Lord the Lord Chancellor with the approval of the Treasury,
"for the commissioning of research".
I beg to move.
The Lord Chancellor: I have a good deal of sympathy with the intention of this amendment but I doubt whether it is a matter which should be dealt with in the Bill. My intention is that the advisory committee should be enabled to conduct a modest programme of research. Paragraph 2 of Schedule 1 gives the committee power to regulate its own procedure, and I think that decisions on whether part of the grant-in-aid should be used for research

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in any particular year are matters for the committee itself to decide in the light of the matters which are remitted to it for consideration.
There is a great deal of information about legal services already in the public domain. It will be very important for the advisory committee to decide whether it is able or wishes to use that quarry or whether original work, with its attendant delays, is required in deciding how to plan its work. In the light of that indication, I hope that the noble Lord will feel able to withdraw the amendment.
Lord Mishcon: I hope that I shall be able to maintain my patience throughout these long proceedings. But I say with all due respect to the Committee and to the noble and learned Lord, when the advisory committee has to undertake a job of this nature and tender advice to which regard must be paid by the professional bodies, it will look at the powers which it has been given. Under the schedule the members of such a committee are not given powers to commission research; they are not given the funds to pay for it; and they are not given the means to pay for the expenses connected therewith.
The noble and learned Lord said that the committee will be able to carry out research because such provision is contained elsewhere in the Bill. Such words merely say, if I may paraphrase them, that the members of the committee must carry out the work and they must do so in accordance with their duties as set out under the schedule.
I ask the noble and learned Lord, if a provision makes a matter transparently clear, instead of one having to search in order to find precisely a place in the Bill where the power may exist, is it not sensible to put it in the Bill? It does no harm; it only makes the matter clear. I do not know why the noble and learned Lord obstructs the inclusion of such words merely on the basis that the power could be inferred from something else. Quite honestly, that may lead to further argument at a later stage.
I ask the noble and learned Lord at least to say that he will consider whether what is proposed should be accepted. It could be included as a specific provision in the Bill and a specific grant could be given to the advisory committee in this respect. If he utters those honeyed words —as they will be to me at this late hour —I shall then ask him and the Committee for leave to withdraw the amendment. However, if he tells me that what I consider to be a very necessary amendment will not be included in the Bill, although he agrees that the committee should be able to carry out research, he will put me in a difficult position. Of course I know that that is the last thing in the world he would want to do.
The Lord Chancellor: I think that I shall have to leave the noble Lord in such a difficulty at least for the present time.
Lord Mishcon: That is a harsh reply and completely untypical of the noble and learned Lord. We must all be affected by the lateness of the hour. I say that because I know that if I had pleaded with
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him in these terms at an earlier hour he would have granted my request. However, on Report we may find that the noble and learned Lord will be in a more amenable mood. In those circumstances, I beg leave to withdraw the amendment at this stage but I shall return to the issue at the Report stage.
Amendment, by leave, withdrawn.
[Amendment No. 12F not moved.]
Schedule 1 agreed to.
Schedule 2 [Specific Functions of the Advisory Committee.]:
11.30 p.m.
Lord Mishcon Lord Mishcon moved Amendment No. 120G:
Page 67, line 4, at end insert ("including disadvantaged members of the public.").
The noble Lord said: I shall move the amendment with the same brevity as I did the previous one. The Committee will see at the top of page 67 of the schedule that the advisory committee is to give certain advice with regard to the needs of legal practice and the efficient delivery of legal services to the public.
It will be an important part of the committee's work to see that those services and that advice is available to disadvantaged members of the public. So that that requirement is brought to the attention of everyone, including the advisory committee, the amendment seeks to add those words to the schedule. I beg to move.
The Lord Chancellor: I am happy to consider further how this matter should be dealt with. The "public" of course includes all those who are disadvantaged. The general includes the particular. I can see a possible advantage in having a specific reference to that group of people. If the noble Lord will allow me, I should like to consider the matter further.
Lord Mishcon: I gladly observe a change of tone and mood. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Rawlinson of Ewell Lord Rawlinson of Ewell had given notice of his intention to move Amendment No. 121:
Page 67, line 36, leave out ("the Law Society and other authorised bodies").
The noble and learned Lord said: This is the first of a series of amendments to the schedule which are consistent with the opinions that I have expressed during the course of the debates on the Bill. The amendment follows my belief that the right of audience should be limited to those who are barristers. It is to that end that I tabled the amendment and Amendments Nos. 122 to 131 and 132 to 135.
The noble Lord the Leader of the House is at this moment entering the Chamber. We had an altercation about an hour and a half ago about the time spent on debating one amendment. We had in

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fact debated a dozen or more. That is what we shall be doing with the present amendment. We did not spend all that time debating one amendment; we were dealing with a series. I hope that he will understand that. He is a man of great moderation and understanding.
I am not happy to move amendments at this time in a Chamber of this size. Does the noble Lord believe that it is consonant with the importance of the Bill that we should discuss serious matters at so late an hour? The noble and learned Lord the Lord Chancellor has been sitting on that Bench —most of us have been on these Benches likewise —speaking to amendments since something like three o'clock. It was apparent a short time ago that the pressure of that duty was beginning to affect even so resilient a person and so able a debater as the noble and learned Lord.
Parliament is not being served if we continue with these debates this evening. In moving the first of the amendments I shall be dealing with a point that goes to the very heart of the matter. It is a long trail that I am blazing. I am aware that it is so and I do not expect it to be successful.
However, I am continually reminded by my noble and learned friend Lord Ackner, that every man is a debtor to his profession and I was not going to see this Bill passed without having my say and keeping up my opposition to the bitter end. Those are the principles in which I believe.
The proposal is that only the General Council of the Bar, rather than the Law Society and other authorised bodies, should have control over the rights, duties, learning, teaching and the conduct of the advocacy. That is not because someone like the noble Lord, Lord Mishcon, could not easily and properly be Lord Chancellor. It is not because I think the noble Lord, Lord Goodman —who, understandably at this late hour, has left the Chamber —could not be Lord Chancellor. That is not the point. The point is that there should be one body controlling with one discipline the rights and duties of the advocate.
This is a series of amendments. I do not think it compatible with the dignity of the House that we should enter into these discussions at this time. I should have hoped that the Leader of the House would allow us to go away and come back on Monday. I shall return to the amendments at another stage of the Bill and, in accordance with that intention, I shall not move Amendments Nos. 121, 122 to 131 and 132 to 135. I give the assurance that I shall bring them back at another time when there are more Members present to consider the argument. I shall not move the amendments.
Lord Renton: Before my noble and learned friend sits down, in the presence of the Leader of the House I wish to say that by sitting at this late hour we are merely piling up business for the Report stage. If we sat in Committee at a more reasonable hour and had
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perhaps one more day, we would not pile up so much more for the Report stage, which will now last that much longer.
[Amendment No. 121 not moved.]
Lord Mishcon Lord Mishcon moved Amendment No. 121 A:
Page 67, line 43, leave out ("to the extent that it applies in relation to matters connected with advocacy or the conduct of litigation.").
The noble Lord said: The Committee will observe that, in Schedule 2, paragraph 5(4), at the bottom of page 67, it is provided that any body to which a recommendation of the advisory committee is addressed or which is given advice by the advisory committee is to have regard to it. Then these limiting words occur:
"to the extent that it applies in relation to matters connected with advocacy or the conduct of litigation".
In other words, as regards anything else that the committee usefully has to say, it looks as though the bodies which are being advised need have no regard to it at all. Why these limiting words occur I know not. That is why I hope that the amendment is usefully moved. I beg to move.
The Lord Chancellor: The committee has a general advisory function, but in relation to advocacy and litigation it has a particular and more central function. That role would be weakened if its advice on advocacy and litigation matters carried no more weight than that on other legal services issues. The Government remain committed to the principle that in the first instance the maintenance of standards in legal services is a matter for the professional bodies themselves. The general objective in this part of the Bill of developing legal services gives the advisory committee a role to play. But that role has been carefully drawn so as not to impinge unduly on the independence of the professions. I consider that the correct balance between complete professional independence and the right of the users of legal services to have their voice heard in advice through the medium of the committee is struck with the present requirement that the professional bodies should be under an obligation to have regard to the committee's advice only to the extent that it relates to advocacy or litigation, because that is the statutory matter that is central to its role. It is for that reason that this limitation is included, and that I do not feel able to accept the amendment. I hope that in the light of that explanation the noble Lord may feel able to withdraw it.
Lord Boardman: I share the concern addressed by the noble Lord, Lord Mishcon. It appears that we have two kinds of advice, some one has regard to and some one does not have regard to. I am not sure that I have followed the explanation of ray noble and learned friend.
Lord Mishcon: The matter is even worse than that, if I may say so, because the inference is that if the advisory body seeks to give advice or make a recommendation to one of the bodies which does not come within the description of advocacy or the conduct of litigation, the statute states one should

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not have regard to it. It is almost mandatory not to take any notice of it at all and to throw it into what I believe was wittily called by a Member of the Committee opposite a furniture receptacle: namely, a waste paper basket. That inference seems rather extraordinary, but if the noble and learned Lord persists in his view that he does not even wish to consider the matter, I shall obviously have to sit down.
Lord Ackner: It is no doubt the effect of the approach of the witching hour that I find myself drawn to support my noble and learned friend the Lord Chancellor. It seems to me that the advisory committee has an excess of diet. It will suffer from indigestion, but for heaven's sake do not let it be worse unless it is fatal. If it is likely to be fatal, I would support the amendment.
Lord Mishcon: With such help I believe the noble and learned Lord could do without, if the Committee will forgive the English of that expression. As I said before, I wonder whether in view of the exclusion, which presumably every professional body will have to have to any advice given upon any other matter, the noble and learned Lord might consider that the provision is a little odd and that the wording might be rather different. However, if he persists in his view, I shall have to take a certain course. I hope he will make an observation on what I have just said.
The Lord Chancellor: I have explained the position as I see it. It is something worth waiting for to have my noble and learned friend on my side. That is extremely pleasant. I have sought to explain the matter, but the real point is to deal particularly with advocacy and the conduct of litigation. That does not imply that we do not have regard to that in other circumstances; it just means that there is no particular statutory obligation to have regard to it.
Lord Mishcon: In view of the hour, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 121E to 131 not moved.]
The Deputy Chairman of Committees (The Viscount of Oxfuird): I must advise that if Amendment No. 131A is agreed to, the Committee cannot speak to Amendment No. 132 due to pre-emption. I now call Amendment No. 131A.
11.45 p.m.
Lord Renton Lord Renton moved Amendment No. 131A:
Page 68, line 26, leave out sub-paragraph (6).
The noble Lord said: Rather to my surprise the amendment seeks to leave out sub-paragraph (6) whereas I thought I had tabled the amendment in such a way as to leave out paragraph 6 of Schedule 2 which occupies most of page 68.
This is a probing amendment anyway, and whether the peg on which I hang my remarks is sub-paragraph (6) or paragraph 6 makes little difference. The point is this that here —this is the only point in the Bill at
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which it occurs —we come to the matter of specialisation schemes. At Second Reading, in relation to the reference in the Green Paper to specialisation, I threw some doubt on whether or not specialisation could be overdone. The noble Lord, Lord Goodman, with his great experience as a solicitor, agreed with me.
We have a rather strange position regarding the scheme set out on page 68. The advisory committee will be given power:
"to consider whether specialisation schemes should be established by any representative body in any particular area of legal services; and to keep under review specialisation schemes maintained by representative bodies".
In the next sub-paragraph we find "a specialisation scheme". It is:
"a scheme for recognising those members of the body who —

(a) have undergone training relevant to the area of legal services to which the scheme relates;

(b) have acquired expertise in that area; and

(c) specialise in providing legal services in that area".

We find, and the next subparagraphs lead up to it, that all that the advisory committee can do is to make a suggestion to the representative body. For all practical purposes we are talking about the Law Society and the Bar Council.
There are well-recognised and laudable forms of specialisation, especially at the Bar and to a lesser extent among solicitors. Indeed, the divisions of the High Court reflect those degrees of specialisation. However, it would not be in the public interest or the interests of justice for over-specialisation to become the rule. Indeed we should not be able to find High Court judges, or I dare to say even suitably qualified Lord Chancellors, if nearly all members of the Bar were to specialise.
I know that at the Scottish Bar there is not very much specialisation. They are splendid people who have to take whatever comes within the law. I remember that my noble and learned friend Lord Hailsham and I, who practised in the same chambers, never specialised. We took what came. I am sure that that is true of many members of the Bar. I say that without any discredit to those who do specialise.
The point that arises under the scheme in the Bill is this. When the representative body is given the advice by the advisory committee under subsection (6) what is it to do? There obviously cannot be anything akin to direction of labour. It must obviously be something that will be done voluntarily. Then there is the question of any cost that would be required if it was found that people were not prepared to do it voluntarily but had to be persuaded to carry on a particular specialisation. They might not do it unless the cost of setting up chambers, or something of that kind, were offered to them.
I am puzzled as to how the scheme will work out in practice. I should have thought that it might be better not to have a scheme of this kind but to leave the matter to the law of supply and demand, or, in the modern jargon, to the market. Be that as it may, I should be so grateful if my noble and learned friend would say what he really has in mind and what he thinks the representative bodies would do when the

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advisory committee has recommended that some form of specialisation should be initiated in a particular part of the country. I beg to move.
Lord Rawlinson of Ewell: I had assumed that my noble friend intended to leave out the whole of paragraph 6 because it did not seem sensible to me that he should leave out only sub-paragraph (6), but he has explained that that is what he intended.
I considered the specialised schemes in paragraph 6 to be the duty of the advisory committee with its majority of lay members who would examine some of the most complicated and difficult specialisations of the law. As I understand it, they will decide whether it will be established. They will decide whether to keep the various schemes under review. They will give the Bar Council or the Law Society advice on those schemes. They therefore require an expertise which they will clearly not have. There will be a judge. As I understand it, numbers will be increased by perhaps having another judge but those majority of laymen, who are totally ignorant of the law, will examine specialisation schemes and then give advice to the Bar Council and the Law Society; in other words to people who have spent their lives in the practice of the law.
This is just another example of the impractical nature of the scheme. It is living in Cloud-cuckoo-land for that wretched committee with its laymen to look at such matters as specialisation schemes. I do not see how it can conceivably work. I see what my noble friend has in mind, but it will not work.
Lord Donaldson of Lymington: It is for my noble and learned friend the Lord Chancellor to deal with that point, but perhaps I may make a small contribution from the point of view of the solicitors' profession, subject of course to correction by the noble Lord, Lord Mishcon.
I am aware that thought has been given in the solicitors' profession to setting up specialist panels and possibly backing them with conditions on the practising certificates. Members of the Bar may think of specialisation in wholly different terms from those thought of by the solicitors' profession. It has caused a good deal of concern to me and the Law Society in the field of personal injuries, which a barrister would regard as being the most generalised practice. However, it is vital that the solicitors who handle such cases know a good deal about how one handles personal injury claims. From the point of view of someone who is preparing litigation that is a speciality.
We in the courts certainly find that delays are caused by solicitors who meet personal injury claims fairly infrequently. In the large centres where there are industrial premises, solicitors will of course become familiar with them, but that is not so outside. Only the other day I met a lady solicitor who was trying to cope with a personal injuries case in the Court of Appeal. The case was reduced to farce because she said that she had no idea how to handle it. Of course, the situation was coped with, but it
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was brought home to me that here is quite a different case for specialisation in the solicitors' profession from that at the Bar. Perhaps the measure has something to do with that.
The Lord Chancellor: I am not in favour of over-specialisation, but I am in favour of consideration being given to specialisation in certain areas. One of the functions of the advisory committee, and particularly of those members who are familiar with requiring legal services, is to advise on that kind of question. For example, in what kind of areas should people exhibit specialisations? Personal injuries is a good example. One of the points that comes to my notice as Lord Chancellor concerns letters from Members of Parliament complaining about a delay in handling a case for a client who is a constituent. Quite often the delay is due to the client having gone originally to someone who was not familiar with the area of law in which the claim arose. That perhaps is primarily a matter that arises in a solicitor's practice.
So far as concerns the Bar, I personally believe that there is a great deal to be said for encouraging specialisation in places other than London. For example, advice on that kind of matter and a consideration of the machinery under which it might be promoted would come under this general power. I believe that directing attention to the possibilities of specialisation is an important point and it is right to include it as one aspect of the committee's work.
I expect the lay people on the committee to be people who will know what sort of legal services are required and then the other part of the committee will be helpful in seeing how the services that are being provided are tailored to meet that situation. I believe that to be valuable and something which will be an appropriate development of our legal practice.
Lord Renton: In what my noble and learned friend said the operative word is "tailored". When the advisory committee has pointed out to the Bar Council or to the Law Society that the people, say, in Norfolk will lack certain specialisations, what is it expected that the Bar Council or Law Society will do about it? Will they merely draw attention to this, give publicity to it and hope that somebody will then go to Norfolk or that some of the people in Norfolk will start up the specialisation? If so, it may be useful advice which might be acted upon. But if the word "tailored" is to have effect, it would seem to indicate that maybe some kind of financial help in establishing chambers or, in the case of solicitors, in taking on staff to help to pursue the speciality would be needed.
If it is mere exhortation, let us be absolutely plain and let us understand —let everybody, the public and the consumers understand —that it is mere exhortation. Well and good. Exhortation can be of value sometimes. But we need to know if that is all that my noble and learned friend has in mind when he uses the word "tailored".
The Lord Chancellor: I suppose that I could have used some other word but what I have in mind is advice to the professional bodies in relation to particular specialisations, the need for them, the way in which they should be recognised, what particular aspects the service should have, and so on —a fairly general remit —and it is advice on these matters to the professional bodies that is in question.
Lord Renton: I ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 132 to 135 not moved.]
Schedule 2 agreed to.
Clause 18 [The Legal Services Ombudsman]:
Lord Coleraine Lord Coleraine had given notice of his intention to move Amendment No. 135AZA:
Page 14, line 29, leave out ("the Legal Services Ombudsman") and insert ("the Commissioner for the Legal Services Professions").
The noble Lord said: We now come to the five clauses of the Bill which deal with the legal services ombudsman. I express my personal regret that these very important matters are being dealt with at this time of night, especially as I see that the noble Lord, Lord Allen of Abbeydale, who has an amendment of some interest tabled in his name and who speaks for consumers on matters which concern consumers, is not in his place. I believe it to be the wish of the Committee that I do not move the first amendment standing in my name but take it away and bring it back on Report when it can be discussed at greater length with a fuller Chamber.
[Amendment No. 135AZA not moved.]
Clause 18 agreed to.
Clause 19 [Ombudsman's functions]:
[Amendment No. 134ZA not moved.]
12 midnight
Lord Mishcon Lord Mishcon moved Amendment No. 135ZB:
Page 15, line 3, after ("body") insert ("or was such a member at the time to which the complaint relates").
The noble Lord said: I can put the matter shortly. At present the Bill provides that the function of the ombudsman shall relate to:
"an authorised advocate, authorised litigator, licensed conveyancer, recognised body or notary who is a member of that professional body".
That would mean that somebody who had tactfully resigned knowing that the complaint was coming forward would not be a member at the time of the complaint. Therefore, the ombudsman would have no jurisdiction. In order to cover that lacuna we suggest the insertion of the words in the amendment:
"or was such a member at the time to which the complaint relates".
I beg to move.
The Lord Chancellor: I have much sympathy with the sentiment behind the amendment, although I recognise that in practice it may be difficult for the ombudsman to pursue such cases or to achieve a result of real benefit to the client. If the noble Lord agrees to withdraw the amendment I shall consider whether we can do something effective about the matter.
Lord Mishcon: I add an observation only to assist the noble and learned Lord. There are many professional bodies which include those words deliberately so that they can discipline a member for a professional offence committed during his membership. However, the complaint may be dealt with only after the member has resigned from that professional body. Usually, the provision is included in order not to rob the ombudsman —and much worse the complainant before him —of his rights to look into a matter.
Where a complaint properly arises, I do not believe that the noble and learned Lord would want it to fail merely because there had been a resignation and the ombudsman no longer had the powers. I had anticipated that the noble and learned Lord would immediately accept the amendment. However, he has said that he will consider it and I hope that the word "favourably" will be introduced. Again, the noble and learned Lord nods his head and, therefore, I beg leave to withdraw the amendment.
Lord Donaldson of Lymington: In reconsidering the matter I invite the noble and learned Lord the Lord Chancellor to take into account representations which have been made during the past few days by the Solicitors Disciplinary Tribunal. It states that it needs powers over ex-solicitors. Following the keeping of the roll regulations, it is now possible for a solicitor who has seen Nemesis on the horizon to cease to be a solicitor overnight merely by failing to pay £15. It is a convenient way of disappearing from the roll.
By contrast, the present position at the Bar is that one must ask to be taken off the roll and people then start to look round before they agree. However, under the keeping of the roll regulations, saving £15 may be saving a great deal more.
The Lord Chancellor: I shall also look into that matter. There are a number of amendments to solicitors' legislation for which the Law Society has asked. We shall be considering them and this point will be kept in mind. I am grateful to my noble and learned friend.
Amendment, by leave, withdrawn.
The Lord Chancellor The Lord Chancellor moved Amendment No. 135ZC:
Page 15, line 33, after ("which") insert ("is being or").
The noble and learned Lord said: The amendment will prevent the ombudsman from examining issues which are being determined by a court or professional disciplinary tribunal. I beg to move.
On Question, amendment agreed to.
Lord Mishcon Lord Mishcon moved Amendment No. 135ZD:
Page 15, line 33, after ("by") insert ("or is raised in proceedings before").
The noble Lord said: The noble and learned Lord may have noticed that the amendment which I tabled covers precisely the same point as the amendment which he has just moved. I hope that he will think that I have tabled at least one sensible amendment. I beg to move.
The Lord Chancellor: I have already indicated in the most practical manner possible that quite a number of amendments put down were extremely sensible, because I have accepted some of them. I entirely accept the point that the noble Lord has made. Perhaps I should have said it earlier.
Lord Donaldson of Lymington: May I mention in the briefest possible terms, using this as a convenient peg, that either the noble and learned Lord the Lord Chancellor will have to make an order under the subsection, or there must be express reference in the Bill to the position of the visitors as the appellate body from the disciplinary tribunal of the Council of the Inns of Court? If I may declare an interest, may I suggest that the same might be done for me as the appellate body in some respects from the solicitors disciplinary tribunal?
Lord Mishcon: I beg leave to withdraw my amendment.
Amendment, by leave, withdrawn.
Lord Mishcon Lord Mishcon moved Amendment No. 135ZE:
Page 15, line 42, at end insert—
("(7A) Notwithstanding the provisions of subsection (7) the Ombudsman may investigate any issue which is raised in proceedings before a court if he is satisfied that substantial hardship is likely to be caused to the person making the complaint or the person with respect to whom the complaint is made by the likely delay in the determination of the issue of the court.").
The noble Lord said: I hope that I can briefly deal with this amendment. It is right that, as a general rule, the ombudsman should not be looking into matters which are before the court. But where there is a case of extreme hardship —I think "substantial hardship" are the words used in the amendment —which would be caused if the matter was delayed, he ought to be given a power.
The sort of case that I have in mind, and it may be rare, is where a writ is deliberately issued and not really proceeded with when it is known that a complaint is going to go before the ombudsman. This would cause grave hardship to a complainant and would stop the ombudsman from being able to look into the complaint. Where such a rare case occurs and where substantial hardship would be caused, he ought to be given this special power. I beg to move.
The Lord Chancellor: While I see the point that the noble Lord makes on the second amendment, I regret that I do not think it would be right to accept this, and indeed it would not be right to give it favourable consideration. The fact that somebody has been bogged down, or gagged, by a legal process
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is something where the court is the best forum. If the situation arose that the noble Lord suggested where, just in order to prevent something being dealt with by the ombudsman, somebody took out a writ, there might well be power in the court to regard that as an abuse of process.
There are dangers in an overlap and in allowing the ombudsman to have jurisdiction in a case which is being pursued in the court. I hope that the noble Lord on reconsideration may feel that that is an important principle, and that there might be better ways than his of alleviating the problem that he, I quite appreciate, sees.
Lord Mishcon: I thought that this would be an exceptional case, but if the noble and learned Lord would consider, for example, a writ being issued and an appearance being entered and then no statement of claim delivered for some time, a defendant in those circumstances could apply to the court for the action to be struck out. But months could elapse before anything like that was effected. In the meantime, and in the very special case, hardship could be caused to the complainant.
This is only a rare case, but I would have thought that it was wise to give this special power to the ombudsman in such a case to deal with the matter. I leave these thoughts with the noble and learned Lord, and ask him if, in his kindness, he will consider them. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 135A not moved.]
[Amendments Nos. 136 and 137 had been withdrawn from the Marshalled List.]
Lord Renton Lord Renton moved Amendment 1" o. 137A:
Page 16, line 16, at end insert—
("(10A) The Ombudsman may investigate any allegation with respect to the manner in which a complaint made about the administration of the Courts has been dealt with by the Lord Chancellor's Department or by any official of that Department.").
The noble Lord said: On Tuesday night, fairly late at 11 p.m., the noble Lord, Lord Hacking, moved an amendment and in the course of discussion the possibility of the Parliamentary Commissioner for Administration considering the administration of the courts and of the Lord Chancellor's Department was referred to. My noble and learned friend said:
"The administration of my department is already subject to the Parliamentary Commissioner for Administration".
He later added:
"I entirely agree with the view that it would probably be more appropriate, if anyone is to oversee this area, for it to be the Parliamentary Commissioner for Administration, who acts on request by Members of the other place, rather than the legal services ombudsman".—[Official Report, 23/1/90; col. 1045.]
I must say that I tend to agree with that and therefore the Committee may wonder why I move this amendment about complaints made to the ombudsman about his department. The reason is that the department of my noble and learned friend only yesterday issued a press notice which made

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clear that the Parliamentary Commissioner for Administration would have jurisdiction to investigate maladministration by court staff. There are other references but the statement by my noble and learned friend refers to investigation by court staff and to court administration. However, it does not specifically refer to the Parliamentary Commissioner for Administration doing what my noble and learned friend said the other night he felt the commissioner should do; namely, consider the administration of his own department.
It is because of the rather narrow terms of the statement he made yesterday and of the press notice that I thought, as I had this amendment on the Marshalled List, I should ask him possibly to clarify the position. I beg to move.
The Lord Chancellor: Certainly I shall do my best. On Tuesday night I said that the administration of my department is already subject to the Parliamentary Commissioner for Administration, but the administration of the courts —although staff are supplied to the courts by the Lord Chancellor —is not part of the administration of the Lord Chancellor's Department because the courts are a distinctly separate institution. It is that which has caused the difficulty.
In no way do I wish to protect staff provided by me from any investigation by the Parliamentary Commissioner for Administration, but because of my responsibility for the independence of the judiciary and the judicial process I cannot agree, in view of the terms of the Act of Parliament, that the Parliamentary Commissioner for Administration should have under the present law any jurisdition to deal with the administration of the courts.
However, it is apparent that some administration in the courts is nearer to the judicial process than others and therefore I am looking for a formula that will enable the Parliamentary Commissioner for Administration to investigate administrative acts of officials provided by the Lord Chancellor to the court service so long as that investigation does not prejudice the independence of the judiciary and the judicial process. Somewhat similar considerations will apply to tribunals. That is the kind of amendment that I am looking for. I cannot be absolutely certain yet that we shall achieve a good formulation of that boundary. I certainly hope that we shall be able to do so.
12.15 a.m.
Lord Mishcon: I did not quite understand what the noble and learned Lord said and I am sure it is my fault. On the last occasion I did not understand whether he was seeking a formula which would be incorporated in this Bill or whether he was seeking one which might lead to an amending Act.
The Lord Chancellor: I intend to propose an amendment to this Bill if I can find the right formula. I believe it is within the scope of this Bill to deal with
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the extent to which the Parliamentary Commissioner for Administration should have access to administrative staff provided by the Lord Chancellor for the administration of the courts. So it is in this Bill that I am proposing to introduce the measure, assuming that I can achieve a reasonable amendment. I said that in response to the amendment tabled by the noble Lord, Lord Hacking, which appears towards the end of Part I of the Bill.
Lord Mishcon: And which I was going to move. I am very interested in this matter. I wonder whether the noble and learned Lord can give an indication as to the course he proposes to take. If he is not ready with his own proposals on this matter at Report stage, in order to bring it to a final conclusion, it would not be helpful to table an amendment. However, if the noble and learned Lord felt that a government amendment could be tabled by Third Reading, and there is an undertaking to that effect, one would wait until then. If the noble and learned Lord does not think it unhelpful, I was considering returning with the amendment at Report stage in the hope that, if he did not accept it, he would have one in substitution.
The Lord Chancellor: As matters stand at the moment, I am certainly hoping that I shall have an amendment ready at Report stage. I have not yet been able to ascertain completely how difficult the drawing of the boundary line may be. I am certainly hopeful. I have had discussions with a number of interested people about the matter. I shall keep in touch with the noble Lord and with the noble Lord, Lord Hacking, in view of the fact that he brought forward the amendment. If my noble friend likes to ask me about it I shall be happy to say how I stand at the moment of questioning.
Lord Renton: I am most grateful to my noble and learned friend —as I am sure is the Committee —for the clarification and assurances that he has given. It is satisfactory to know that the matter can eventually be dealt with in this Bill. I believe that he has got the matter right. It is better that the Parliamentary Commissioner should have this responsibility rather than that we should try to fasten it on the ombudsman. With those assurances, I am very glad to withdraw the amendment.
Amendment, by leave, withdrawn.
The Lord Chancellor The Lord Chancellor moved Amendment No. 137B:
Page "16, line 23, after ("subsection") insert —
(" "recognised body" means any body recognised under section 9 of the Administration of Justice Act 1985 (incorporated practices) or under section 32 of that Act (incorporated bodies carrying on business of provision of conveyancing services)").
The noble and learned Lord said: These amendments are intended to deal with the definition of "recognised body". The definition can be found in the definition clause of the Bill, but on fuller consideration we see that is not satisfactory for every purpose. The single definition is not appropriate. Accordingly, the first amendment applies a

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definition to Clause 19. I am referring to Amendment No. 137B. The second amendment incorporates a definition currently included in Clause 81, the interpretation clause, and Clause 24 which deals with advocacy rights. It is the only clause to which it applies. The third amendment removes the definition from Clause 81 where it is no longer needed. That is the explanation to this amendment and to Amendments Nos. 141A and 209A when we come to them. I beg to move.
On Question, amendment agreed to.
[Amendment No. 138 not moved.]
Clause 19, as amended, agreed to.
Clause 20 [Recommendations].
[Amendment No. 139 not moved.]
Lord Mishcon Lord Mishcon had given notice of his intention to move Amendment No. 139ZA:
Page 16, line 42, at end insert ("provided that no recommendation may be made under this paragraph in respect of a complaint against any person which concerns an aspect of his conduct in relation to which he has immunity from any action in negligence or contract").
The noble Lord said: This is much too complex a matter to bring before the Committee at such a late hour. I shall therefore not move the amendment at this stage.
[Amendment No. 139ZA not moved.]
Lord Coleraine Lord Coleraine moved Amendment No. 139ZAB:
Page 17, line 25, leave out subsection (8).
The noble Lord said: I am very sorry that I cannot completely follow the time-saving course of my noble colleague Lord Mishcon, but I shall speak very briefly to the amendment in the hope that my noble and learned friend may do for it what he mentioned to the noble Lord, Lord Mishcon, a few minutes ago in connection with other amendments, and accept it.
The ombudsman has power to investigate not only complaints made by clients against the way in which their complaints had been investigated and dealt with by professional bodies, but also the substantive complaints being made against the practitioner concerned. The Bill provides that the ombudsman will give his conclusions and make his recommendations to the practitioner, which may involve the payment of substantial compensation to the client. Under subsection (7), the practitioner is required, before the end of the period of three months beginning with the date on which the report was sent, to notify the ombudsman of the action which he has taken, or proposes to take, to comply with the recommendation.
With most complaints that come before the ombudsman the practitioner will realise that the ombudsman has investigated fairly and will comply with the ombudsman's requirements. However, it must be remembered that what the ombudsman is doing is carrying out an investigation. He is not holding a hearing. He is, in effect, coming to his own private conclusion that, prima facie, there is a good
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case to be answered by the practitioner. It may be that the practitioner will decide not to comply with the recommendation. This is a voluntary scheme.
I now come to subsection (8) which I seek to persuade my noble and learned friend should be deleted. It provides that any person,
"who fails to comply (whether wholly or in part) with a recommendation under subsection (2) shall publicise that failure, and the reasons for it, in such manner as the Ombudsman may specify".
It seems very curious indeed that where the practitioner is not obliged, because this is a voluntary system, to fall in with the ombudsman's requirements, he should be obliged in this way to don, as it were, the red badge of shame himself and pay for the cost of advertising his decision not to comply with the ombudsman's requirements. I see no reason why the ombudsman should not make it clear that the practitioner has taken this course. But there does not seem to be any reason why the practitioner should have to do this.
I could understand a compulsory scheme provided that it had suitable safeguards and a suitable way for the complaint to be heard so that the practitioner was provided with what was equivalent to a hearing. But in this case it seems that the clause seeks somehow to get round the fact, in what is really an underhand way, that this is a voluntary scheme by imposing a considerable liability on what may be a small practice or a single practitioner; and in circumstances where that practitioner has already had the substance of the complaint investigated by his professional body, no doubt at great expense, and the essence of the finding by the professional body was that the complaint was not substantiated. I beg to move.
The Lord Chancellor: This type of provision is not unique and I am certainly not aware that it has caused any difficulties elsewhere. I believe that something along the lines of subsection (8) is needed to ensure that a recommendation of the ombudsman may not be ignored by the practitioner or the professional body.
There is a fine balance to be drawn here. It is not appropriate for the ombudsman to have the powers to award compensation that will be given to a disciplinary tribunal or to a court. At the same time it is essential that he should have authority and that his recommendations should be given due respect. Indeed, this power recognises that the ombudsman may on occasion make recommendations which are not appropriate. It therefore gives the practitioner an opportunity to put his side of the story forward publicly. Should the ombudsman's requirements be too onerous, they will always be open to judicial review.
One of the frequent criticisms of the lay observer has been that the ombudsman lacks the power to enforce his recommendations. This provision will ensure that the recommendations of the ombudsman are heeded by the practitioner. If they are reasonable then it is surely right that they should be followed and the publicity sanction will be sufficient to ensure that the practitioner thinks twice before ignoring them. If they are unreasonable, the practitioner will

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be able to put his point of view satisfactorily. With this amendment the ombudsman's powers would be severely compromised and I believe that his whole jurisdiction would be seriously damaged. For that reason I regret to say that I am unable to accept the amendment. However, in the light of my explanation, it may be that my noble friend will feel able to withdraw the amendment.
Lord Coleraine: I would not wish to withdraw my amendment before asking my noble and learned friend to inform the Committee of the precedents. I am aware that in paragraph 10.24 of the White Paper the analogy with the building societies scheme is drawn, but I am sure that if he takes the matter away and refers carefully to that scheme he will see many points of principle which differentiate between that and what is proposed here.
There may be other cases where this sort of provision is used in these kind of circumstances, but I hope that my noble and learned friend can enlighten the Committee while I am deciding what to do with the amendment.
The Lord Chancellor: As I already said, there are a number of schemes in which the ombudsman has a power of this kind. If my noble friend feels that all these can be distinguished, I shall be happy to consider the matter further. However, I believe that this is a fairly general feature in ombudsman schemes.
Lord Coleraine: Obviously I shall have to try to find some of the schemes to which my noble and learned friend referred. However, I shall return to the matter on Report. In the circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 20 agreed to.
Clauses 21 and 22 agreed to.
Clause 23 [Extension of Ombudsman's remit]:
Lord Morris Lord Morris moved Amendment No. 139ZB:
Page 18, line 32, at end insert —
("( ) No regulations shall be made under subsection (1) above unless a draft of the regulations has been laid before and approved by a resolution of both Houses of Parliament.").
The noble Lord said: I can deal very quickly with this amendment. It is the first of a series of purely drafting amendments of such simplicity that they are even within my grasp. In moving Amendment No. 139ZB I should like to speak also to Amendments Nos. 147A, 148A, 176A, 209C, 209D and 209E. All these amendments are linked.
I think it would help the Committee to follow my argument if Members would turn to Clause 82 of the Bill, which covers regulations and orders. There is a lacuna in the side note on page 61 in that it refers only to "Regulations and", with no mention of the word "orders". However, it is quite clear
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from subsections (3) and (4) that there are only five clauses in the whole of the Bill which call for affirmative resolution in both places. In the interests of clarity —although I admit not in the interests of brevity —I think that those instructions with regard to the affirmative resolution should lie within the body of the section.
Noble Lords will no doubt remember the misunderstanding which was caused in connection with Clause 1 because such a provision was omitted from the body of the clause. The resultant confusion wasted a considerable amount of the time of this Chamber. It is purely a matter of drafting style. Where clarity in drafting is in conflict with brevity, clarity must prevail. I beg to move.
The Lord Chancellor: I am in favour of clarity where it can be attained, but with the greatest respect to my noble friend, I doubt whether he has gone any real distance towards achieving it.
We have gathered 11 those powers which require the affirmative procedure and stated what they are. My noble friend said that we had some difficulty with Clause 1, and I accept that. The question that arose on Clause 1 was whether there was power to make a separate order under subsection (1) and subsection (4). If my noble friend's method had been provided for under Clause 1, I doubt whether that point would have been resolved. The argument about ambiguity and confusion would have been the same whether his or our method has been adopted. I am doing what I can to put the position of Clause 1 beyond doubt. I shall probably propose an amendment on Report to deal with that matter.
With the greatest respect my noble friend, there is a great deal to be said for having one reference point to which one can go to discover which procedure applies to a particular power. I hope that with that explanation my noble friend will feel able to withdraw his amendment. It is a matter of drafting practice, and I believe that the method that we have followed is that generally followed, which is both economical, as he has accepted, and widely understood.
Lord Morris: I am grateful for that explanation. I was astonished at the number of people who know more about the construction of statutes than I do who did not go to the root of the matter in Clause 82, which relates to regulations and orders, before they considered Clause 1. My amendment was purely an attempt to improve the Bill. I am now a great deal wiser than I was a few moments ago. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
On Question, Whether Clause 23 shall stand part of the Bill?
Lord Coleraine: Before we pass finally from the substantive clause dealing with the legal services ombudsman perhaps I may refer the Committee to something that my noble and learned friend said on Second Reading. He said that the Law Society was

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seeking an extension to its present powers to deal with complaints against solicitors. He was hoping to draft clauses to introduce in Committee. If we are to have a useful discussion about the legal services ombudsman on Report it will depend upon our seeing those clauses in good time. I wonder whether my noble and learned friend can give me any indication as to when they may be tabled.
The Lord Chancellor: Work is proceeding on those clauses. I cannot give an undertaking at present that we shall have them in time for Report. I should like to have a chance to see how far we get with those matters. It is a question of co-operation in their preparation between the Law Society and my department. Perhaps I may write to my noble friend when I have had a chance to examine the present situation. I hope that he will find that satisfactory.
Clause 23 agreed to.
Schedule 3 [The Legal Services Ombudsman]:
Lord Renton Lord Renton had given notice of his intention to move Amendment No. 139ZC:
Page 69, line 26, leave out ("with the approval of the Treasury").
The noble Lord said: I have already spoken to the amendment and the following three and I shall not move any of them.
[Amendment No. 139ZC not moved.]
[Amendments Nos. 139ZD to 139ZF not moved.]
Viscount Ullswater: I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

London Local Authorities Bill [H.L.]
Returned from the Commons agreed to with amendments; the amendments considered and agreed to.
House adjourned at twenty-six minutes before one o'clock.