§ 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.]1166
§ Clause 14 [The statutory objective and the general principle]:
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 1167 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 1168 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 1169 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.1170
§ 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 1171 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 1172 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.
1174 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 1175 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 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
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.
1178 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 1179 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 1180 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.
1181 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 1182 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 1183 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 1184 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 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.
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 1186 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 justiceprevents 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?
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 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 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.1188
§ 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".
§ On Question, amendment agreed to.
§ [Amendment No. 83 not moved.]
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.]1189
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 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.]1190
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; 1191 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 1192 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 1193 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 1194 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 1195 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 1196 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 1197 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 1199 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.
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, 1200 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.
1201 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.
1202 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.
1203 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. 1204 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.
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 1205 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 1206 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 1207 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 1208 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 1209 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, 90.1211
|DIVISION NO. 1|
|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.|
|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.|
|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.]|
|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.|
|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.|
|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.]1212
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.
§ Clause 14, as amended, agreed to.
§ Clause 15 [The statutory duty.]:
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 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?
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 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.1214
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 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?
§ 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.
§ On Question, Motion agreed to.
§ House resumed.