Courts and Legal Services Bill [H.L.]

HL Deb 25 January 1990 vol 514 cc1230-97

House again in Committee.

Clause [The Lord Chancellor's Advisory Committee on Legal Education and Conduct]:

Lord Rawlinson of Ewell moved Amendment No. 96: Page 13, line 13, leave out ("Lord Chancellor's") and insert ("Lord Chief Justice's").

The noble and learned Lord said: In moving Amendment No. 96 I shall speak also to Amendments Nos. 97, 100, 102, 107, 109, 112, 116 and 118 to 120. All of those amendments stand in my name. I informed my noble and learned friend earlier of this intention.

Before I am rebuked by those with less parliamentary experience than I, I should say that I shall speak to all of those amendments as they are consequential on the principle of what I am now proposing in Amendment No. 96. We have now reached Clause 16 in this Bill. It is appropriately being debated on the night when half the Palace of Westminster appears to be blowing down and gales are whipping up the Thames beside this Chamber. Clause 16 concerns the Lord Chancellor's Advisory Committee on Legal Education and Conduct. The functions of that committee appear on pages 66 to 68 in Schedules 1 and 2. Its specific functions are set out particularly in Schedule 2. It is stated in Schedule 2 that the advisory committee will: keep under review the education and training of those who offer to provide legal services". It is further stated that the advisory committee will consider the need for "continuing education and training". The advisory committee will also concern itself with the training: of those who offer to provide legal services … relevant to the needs of legal practice and to the efficient delivery of legal services to the public". The advisory committee will also deal with training in advocacy. It will consider what: form of initial academic and practical training is necessary". The advisory committee will also deal with the: further training for persons exercising such rights". It will also deal with training in the "conduct of litigation". It will consider: what form of initial academic and practical training is necessary to ensure that those who qualify … are adequately trained". All the functions of the advisory committee could be called technical and practical. They are based on the education and training of potential and future practising lawyers. The field of the advisory committee is the law. Its object presumably is to produce better and brighter lawyers than we have ever had in the past. I assume that that is the case as the word "develop" has been kept in the Bill. The advisory committee is a body corporate and it will consist of 15 members.

The first thing I ask the Chamber to consider is that the advisory committee has nothing to do with the exercise of government powers or with the practice of government policy. However, it has everything to do with how lawyers are trained, what they should learn, the theory of law on which they should base their training and, above all, their practice in the courts. Their training will be laid down in the same way as it is for people in other disciplines such as medicine, science and archaeology who devote their lives and careers to a particular discipline. Therefore, highly skilled and technical matters are involved within the duties of the advisory committee. It will be much concerned with the conduct, practice and procedure in court; namely those matters which are the concern not of Ministers, not of government, not of the Executive or of civil servants but of judges. The latter will eventually be drawn from those whose education and training has been controlled by this governmental committee.

It is the judges who will have to rely, as judges do in the practice of the English forensic style, on the integrity, knowledge and skill of advocates. Anyone who has even sat in a minor capacity in a judicial function realises that a great deal depends upon the skill of the advocate, not as regards persuading a jury to acquit a villain but in his skill in presenting complex points of law and making sure that all the authorities are before the court in which they are pleading. Yet we are invited to formulate a committee and agree to a committee which is to consist of people nominated by a Minister who will be a member of the Cabinet.

A Minister is to nominate people, the majority of whom have no real experience of the practice of law. It is stated in Clause 16(5) that some members of the committee will have had some experience in or knowledge of: the provision of legal services". However, that does not mean to say that they know much about the law. Clause 16(5) further states that the members of the committee will have some experience in or knowledge of: civil or criminal proceedings and the working of the courts". Those are the people who will be nominated by a Minister sitting in consultation with those who advise him. There are to be two approved barristers on the committee. They will not be barristers selected by the professional body, the General Council of the Bar. However, they have to be approved. They have to be approved so that the Minister can give his imprimatur to whether or not he approves of the people who have been selected. That is rather like the Chief Whip approving his supporters.

The advisory committee will also contain two approved solicitors. However, the real vice of the system is that the committee will be a Minister's committee. Every member of the committee which is to deal with the training of advocates, their conduct in court and with the education of lawyers will owe their position to the grace of a Minister. It must be accepted that the committee will be a government body.

If one assumes the necessity of having to have such a body —I indicated earlier this afternoon that I do not think there is such a necessity —and the committee is approved, let us consider its functions. Why does it have to be a government creature? Is it right that it should be a government creature? Its proper concern is the education generally and the conduct of would-be advocates or those who are advocates and their skill in court. To whom on the face of the matter should the committee be answerable? It should be answerable to the judges.

My purpose in moving Amendment No. 96 and the subsequent amendments to which I referred is to substitute for the Minister the judiciary —the Lord Chief Justice. Amendments Nos. 97 and 102 reduce the number of laymen on the advisory committee to five, thus giving a majority on that purely technical body dealing with legal education, practice and conduct to those who know something about the subject.

It may be said that the Lord Chief Justice is not answerable to Parliament and it should be the Lord Chancellor since he is answerable to Parliament. However, none of the functions set out in the Bill are functions which directly concern Parliament. They are functions which directly concern the judiciary —conduct in court and skill in court. What have they to do with government policy? There may be governments which will take a very stern view about how the lawyers of the country should perform in the courts. The Executive is here taking upon itself powers which there is no doubt properly lie with the judiciary.

I say to those who subscribe to Tory principles and who believe that the Executive should be cabined, cribbed and confined that the Executive should not be permitted to have powers which are not necessary for the exercise of its policy. Those who subscribe to those principles ought to be very reluctant indeed to grant such powers to a Minister.

To that extent the matter that I have raised is of some constitutional importance. Why should we give the Minister those powers? They ought to be given to the Lord Chief Justice and the judges who will preside over the courts in which the advocates will appear. It is with those considerations in mind that I put down the amendments standing in my name. I beg to move.

Lord Rippon of Hexham

I rise to support the amendments proposed by my noble friend Lord Rawlinson. In the interventions which I have made in the course of the discussions on the Bill, I have expressed concern, as have others, about the width of the powers given to the Lord Chancellor and the Executive, frequently under subordinate legislation. I welcome the amendment because it gives the Committee the chance to consider the proper role of the Lord Chancellor in regard to a Bill which has considerable constitutional implications.

With no written constitution we have to rely on the well established conventions that have hitherto protected the independence of the judiciary and the legal profession. The Scots struck a good bargain with the Treaty of Union. They protected their trade, their kirk, their law and their lawyers. I hope that they will find that provision of help when the Committee comes to consider the amendments proposed as regards Scotland.

The Lord Chancellor is both the head of the judiciary and a Cabinet Minister. He has a vital and often delicate role to play in sustaining the rule of law. Sometimes, as his predecessors have found and as I have seen in Cabinet, those roles may be in conflict. Lord Chancellors are not there just to promote the policy of the government of the day. Although since the war the Lord Chancellor may no longer frequently preside over the judicial sittings of this House, his fundametal responsibility under the constitution is to maintain at all costs the independence of the judiciary and the legal profession.

I find it a pity that those in the Conservative Government who have so warmly embraced Professor Hayek's liberal economic views have not also adopted his political liberal constitutional views. In his great work Law, Legislation and Liberty he describes how we have moved away from the doctrine of the separation of powers as the grand secret of liberty and good government towards the concept of an ideal of government controlled by popular assembly free to take any action of which that assembly approves. He concludes: We can have a rule of law or a rule of majority but it is difficult to have both unless certain constitutional proprieties are maintained". In this Bill the Lord Chancellor seeks to go beyond those constitutional priorities.

In the debate on Clause 1, I was chided by the noble Lord, Lord Henderson, because I made the usual comment that while we have every confidence in the present Lord Chancellor, one does not know what his successors may do. I do not think that that is good enough. As my noble and learned friend has said, this is a Bill which has to last for a long time. I do not believe that he should be given the powers that he is given in this Bill and in particular in this section. We may tinker with it, we may make useful and mitigating amendments, but the whole concept will be fatally flawed if we give the Lord Chancellor, as a Minister of the Crown, the wide powers that are sought.

If the reforms which my noble and learned friend proposes are necessary or desirable then I, like my noble and learned friend Lord Rawlinson, would prefer the Lord Chief Justice to be in charge, in association with his judical colleagues and the representatives of the legal profession, rather than the Lord Chancellor acting as, I suggest, a Minister of Justice.

I have noticed that in the course of these proceedings a number of speakers have asked why we should have the temerity as laymen to intervene in what is essentially a matter that affects lawyers. Some people, as we know, do not like lawyers. One of the troubles with the quantity of legislation which we have today is that the company directors turn up for the company law, the local government people turn up for the local government law, and now the lawyers have turned up to see what is to happen to them.

Many of us in many debates in this Chamber have drawn attention to the increasing number of nominated, non-elected bodies which the Government are introducing right across the board. That is a very dangerous tendency. Of course, when somebody says that the Government must control the body which develops or supervises the BBC, there will be people who will come along and say that it is an extension of power. Unfortunately, it is not only the people who listen to the debate who take part. When I first entered Parliament, my noble friend Lord Thorneycroft said to me, "Geoffrey, it is perfectly all right, always vote if you do not know what you are voting about. Above all, do not listen to the argument". I thought in our Division tonight that the whole weight of the argument was with the people in attendance, but —not perhaps to the same extent as in the other place —the troops marched in.

I should like to quote two paragraphs of the judges' response to the Green Paper. I believe that they should be written on tablets of stone. They should certainly be written into the record. They say: It is of fundamental importance that the existing degree of separation of powers and functions of the Judiciary from those of Parliament and the Government, evolved gradually over the centuries, should be maintained. The independence of the Judiciary and of advocates is perhaps more important now than ever, because one of the great constitutional tasks of the courts today is to control misuse of power by Government Ministers and departments. The Government is proposing that in future the Lord Chancellor should make the final decision on standards of education and training for advocates, prescribe the principles to be embodied in codes of conduct for advocates, and be empowered to make decisions on rights of audience in the High Court and Court of Appeal by means of subordinate legislation". I believe that the judges rightly concluded that those proposals represent a grave breach of the doctrine of the separation of powers.

We should take due note of the fact that until now no government has sought such powers as the noble and learned Lord the Lord Chancellor now seeks. We know that his two immediate predecessors are not enamoured of the Bill. On Second Reading, the noble and learned Lord, Lord Hailsham, castigated the methodology by which the Bill had been constructed. I quoted him in relation to Clause 1. My noble and learned friend pointed out to me that my noble and learned friend Lord Hailsham was talking about Part II. I accept that.

We should also take due note that lawyers in America have been highly critical of the way many new and proposed forms of government control over the legal profession were to be found in the Green Papers, the White Paper and now in the Bill. It is significant that the American Bar Association has consistently and successfully opposed the regulation of the practice of law by the Executive or legislative bodies, whether they be national, state or local.

Much of the mischief of the Bill would be removed if the amendments of my noble and learned friend Lord Rawlinson were accepted, at least in relation to the proposed advisory committee, all of whose members, as he said, are to be appointed by my noble and learned friend the Lord Chancellor.

I do not believe that assurances of consultation, however well meaning or well intentioned, are sufficient. None of the debates that we have had in the House and none of the assurances given by my noble and learned friend the Lord Chancellor have any validity in the courts. We cannot quote what happened in debates in our courts of law. It is difficult, although we sometimes get away with it. Whatever happens, I do not think that consultation is enough.

At the very least —I do not want to make another speech on further amendments —it should be provided, as the noble and learned Lord, Lord Oliver, suggests in a later amendment, that the powers sought by the Government should be exercised only with the consent of my noble and learned friend the Lord Chief Justice and the judiciary. The judges have been right from the outset in saying that it is only in that way that the necessary separation of the proper powers of the judiciary from the Executive can be preserved.

8.30 p.m.

The Earl of Onslow

In this debate I have listened to lawyers who were educated in the 1930s, the 1940s and the 1950s. My noble and learned friend Lord Alexander of Weedon just tipped into the 1960s, so he tells me. I therefore ask my noble and learned friend the Lord Chancellor what, if anything, is wrong with the present legal education system if it produces advocates of the quality that we have heard in all the debates on the Bill? If there is nothing wrong with it, why should we change it? I am in some ways a reasonably conservative sort of chap and that seems to me to be a sound conservative doctrine. If there is nothing wrong with something, we should not muck it about. However, one has the impression that there is an urge to tinker, muck about and fiddle. I have not yet been shown that there is any need to change the legal education system.

Lord Boardman

My noble and learned friend Lord Rawlinson and my noble friend Lord Rippon laid considerable stress on the constitutional issue —the independence of the judiciary—which I understand. I fully support that, but I wonder whether they have overlooked the eventual supremacy of Parliament, which is above all other considerations. The role of the Lord Chancellor is a very special role here. I should have thought that the constitutional position is perhaps not as strong as they make out in suggesting that the role of the Lord Chancellor should be taken over by the Lord Chief Justice.

Lord Rippon of Hexham

With respect, I would not for one moment suggest that. I only say, as I believe my noble and learned friend said, that the chairmanship of and responsibility for the advisory committee should be taken over by the Lord Chief Justice and the judiciary. My noble and learned friend the Lord Chancellor will remain in full control of all the responsibilities that he already possesses.

Lord Rawlinson of Ewell

I hope that I had made it clear that, because those tasks given to the committee affect only education, training and conduct in court, it seemed to me apt and proper that it should be controlled by the judiciary.

Lord Boardman

I understand those points, but both my noble friends made considerable play of the constitutional importance of the appointment.

However, the point that I wish to make —I shall do so briefly —is that the constitutional importance of Parliament in the role of my noble and learned friend the Lord Chancellor exercising those important powers, which both my noble friends stressed were of supreme importance, should be supreme.

Lord Alexander of Weedon

This is nothing to do with the supremacy of Parliament. It is to do with who is responsible for educating and training in areas where the maximum knowledge is needed and where it is important to preserve the separation of powers.

Perhaps I may seek to draw an analogy. The General Medical Council is, as I recollect it from days when I used to do work before its disciplinary committee, fully seized of the training and education of doctors. It is comprised of members who are not appointed by the Minister for Health. I should not have thought it right for them to be appointed by the Minister for Health.

Inevitably the phrase "Lord Chancellor" connotes someone who holds the office of both a Minister of the Crown and head of the judiciary. That office has been an extremely delicate one to hold in recent years. I mean no criticism of my noble and learned friend when I say that in the last year, inevitably perhaps, the impetus has been seen within the profession of the Lord Chancellor being constrained to act as a Minister of the Crown.

I for one was deeply disappointed that my noble and learned friend, as head of the judiciary, felt unable to respond at all to the principles which his judges set out in their response to the consultation paper. I understand the constraints upon him but within the boundaries of those constraints I believe that the profession increasingly sees the holder of that office as a Minister of the Crown. I do not believe that it is right that a Minister of the Crown —I agree that for the title "Lord Chancellor" we should read the word "Minister" — should be the person responsible for the education and training of lawyers. That has nothing to do with the separation of powers. Surely the person in whom we could repose confidence to set up an advisory committee in this area, wholly free from political pressures, is the Lord Chief Justice of England.

Lord Ackner

I referred to an excerpt from the Civil Justice Quarterly which contained a speech by my noble and learned friend Lord Hailsham when he was Lord Chancellor. That part should be recorded because we talk so frequently of the desire and need for judicial independence as if it were supported by everyone. On page 312 he said: But, surely, it will be asked, everyone supports judicial independence? Oh, do they? Certainly not the public or the backbenchers in the House of Commons who constantly revile, frequently from inconsistent standpoints, individual judges, or particular decisions, or what they imagine to be judicial policies, and who daily demand that individual judges be directed or rebuked (presumably by the Executive Government) to move in this direction or that, or even should be removed from office. Certainly not the opposition, whichever party happens to be on the Speaker's left. Certainly not party conferences of any hue". Perhaps I may emphasise the next sentence: And, least of all, I may assure you, individual members of the cabinet, whose departmental interests from time to time basically conflict not only with the views of the judiciary where they are entitled to differ, but in the provision of the means necessary to enable the courts to discharge their functions". That was said by, I imagine, the most experienced former Lord Chancellor of this century. It must be borne in mind because we take the so-called support for judicial independence for granted, and it is not there to be taken for granted.

The Lord Chancellor

The function of the Lord Chancellor has been referred to. For my part, I completely support and endeavour to act upon the principle that the Lord Chancellor has a responsibility to uphold the independence of the judiciary and of the judicial process. I believe that that responsibility has been taken seriously by all my predecessors and I certainly seek to do the same.

However, as was pointed out, the Lord Chancellor is not only a Minister of the Crown; he has the responsibility of the presidency of the Supreme Court. I believe that the Lord Chancellor's Office and my predecessors in office —I am not now speaking of my own term of office but the terms of office of people before me —have a considerable record in appointing to offices for which they have responsibility people of a proper calibre to carry out those responsibilities.

For example, I know that in relation to inquiries in other fields one of the assurances which people thought would secure the independence of inspectors and so on was that they should be nominated by the Lord Chancellor. I shall do my best to maintain that standard. Let me take the example of the noble Lord, Lord Murray of Epping Forest. As he pointed out earlier in this debate, he was appointed by the Lord Chancellor to the Committee of the Bar which deals with this matter. The Bar asks the Lord Chancellor to nominate people for that purpose because the Bar has confidence —and I am glad to say that that confidence is still extended by the Bar to me —that appointments made by the Lord Chancellor will be made in the best interests of justice and the public.

I have the greatest possible respect for the present holder of the office of Lord Chief Justice of England. I have every confidence in appointments that he might make. But my responsibility is in relation to the whole of the Supreme Court. His responsibility is in relation to the Queen's Bench Division and to the Criminal Division of the Court of Appeal. My noble and learned friend the Master of the Rolls has responsibility for the Civil Division of the Court of Appeal. The President of the Family Division has responsibility for that division. The Lord Chancellor, who is the vice-chancellor, is responsible for the Chancery Division particularly.

I must humbly say that it seems to me that the responsibility for making those appointments should lie appropriately with the Lord Chancellor. First of all, as I said, I believe that the Lord Chancellor's Office —I speak about my predecessors and hope to follow their good example —has a good record in obtaining the right people and not being influenced by any kind of improper consideration. Secondly, I believe that it is important that this should be a matter for which the appointing person is responsible to Parliament. Parliament has an interest in the proper administration of justice and in the proper provision of legal services, their nature and suitability; and, of course, the public have an interest in that.

For the moment I shall not go into the detail of the advisory committee and its powers. However, I should like to say that my noble friend Lord Rippon, in reading from the comments of the judges on the Green Papers, is dealing with the system that was proposed in those Green Papers, which I have modified fundamentally in order to take account of those very criticisms. The Lord Chancellor no longer has the final decision in any of these matters. In this case the balance is that the professions must propose —so far as concerns the Law Society and the Bar it is their respective governing bodies —and approval is required not only from the Lord Chancellor but from all the heads of division.

This is an advisory committee and I believe that it is appropriate that the Lord Chancellor should make the appointments for which he is responsible to Parliament. I firmly believe that this is the correct constitutional position and in the light of my remarks I hope that my noble and learned friend Lord Rawlinson will feel able to withdraw his amendment.

8.45 p.m.

Lord Rawlinson of Ewell

There is a great difference between the appointments which the Lord Chancellor recommends, for instance, to the High Court Bench. He makes that recommendation because obviously it has to come from a Minister. If it is not the Lord Chancellor in the future, then it could be a Minister of Justice. Someone has to do that and it has to be a Minister. But to pretend that nowadays the Lord Chancellor knows all the people whom he appoints is, if I may say so with respect, absurd. How many candidates for silk over the past 10 years have been known personally to the Lord Chancellor who made the recommendations? Of course the Lord Chancellor does not know them. He knows the senior judiciary. When the noble and learned Lord took up his office, he had sat on the judicial committee and seen various counsel who appeared before him then. Obviously, because it is only common sense, he has to have consultations and rely upon the advice that he is given.

We are dealing with matters which are not of such grand importance. It concerns something which is completely domestic to the independent profession of the law. If I may say so, the Lord Chancellor's responsibility is not only for the independence of the judiciary but also for an independent profession. I mentioned earlier this evening what some Poles had said to me a few days ago and it still rings in my ears. They said that they had got off their backs the agencies of government and the Ministers who were controlling them, appointing them, telling them how they should be educated and indeed putting some of them into prison. They were relieved to think that now they had their own profession with their own professors of law. They had their own skilled people able to practise in the courts.

What has this to do with government? What has this to do with the Minister? The purpose of my amendment is to hand back to the judges that which they ought to be doing, which is to control those people in their courts, to control their behaviour and ensure that they are educated and trained. What has a Minister of the Crown to do with that? My noble friend Lord Alexander of Weedon referred to the medical profession. What has the Minister of Health to do with their training? What has the Minister of Works to do with archaeology and the training of its practitioners? What has the Department of Education or the Department of Trade to do with appointing and training scientists?

These are people who have to learn how to be able to perform and conduct themselves in court before judges. It is the responsibility of the judges to take that upon themselves. I am therefore disappointed that my noble and learned friend should, as it were, brush aside this matter. Of course he did it with the grace that he always displays. Nevertheless it was brushing aside something which he has not fully explained. Why is it necessary that this matter should be the responsibility of a Minister and not be kept in the hands of the judges and be exercised by the proper professional bodies of the law?

I shall not press this matter to a Division. I shall not withdraw the amendment. Doubtless it will be negatived, but let it be negatived by those who shout "Not-content".

On Question, amendment negatived.

Lord Rawlinson of Ewell had given notice of his intention to move Amendment No. 97: Page 13, line 16, leave out ("14") and insert ("12").

The noble and learned Lord said: I have spoken to Amendments Nos. 97, 100, 102, 107, 109, 112, 116, 118, 119 and 120, which are grouped together. Having spoken to them, and Amendment No. 96 having been negatived, I do not propose to move these amendments.

[Amendment No. 97 not moved.]

Lord Ackner moved Amendment No. 98: Page 13, line 16, leave out ("14") and insert ("15").

The noble and learned Lord said: I hope that I have transmitted to my noble and learned friend the Lord Chancellor indirectly that the amendments grouped together (Amendments Nos. 98, 103 and 110), which relate to the desirability of a stipendiary magistrate being a member of the advisory committee, come much more appropriately with the next amendments which will be moved by my noble and learned friend Lord Oliver; namely, Amendments Nos. 99, 104 and 105. He proposes the appointment of two more senior judicial members of that body; namely, a presiding judge and a circuit judge. I wholly support that proposal. With the concurrence of my noble and learned friend and the Committee, perhaps we may discuss all the amendments together, otherwise there will be an unreality about the situation. I shall put forward my point briefly on the assumption that the debate in respect of Amendments Nos. 99, 104 and 105, which relate to the advisory committee en bloc, can be taken at the same time.

The Lord Chancellor

Certainly.

Lord Ackner

I am grateful. My proposal which, as one would expect, is modest, is that there should be added a member of the judiciary —in all probability the senior stipendiary magistrate —because the magistrates' courts are likely to be one of the main recipients of the advocacy of those who have not yet received entitlement to advocate.

I do not know which bodies are likely to ask for and obtain advocacy certificates, advocacy licences or advocacy permission via the advisory committee, but let it be said to be probation officers, ex-justices of the peace or perhaps a mechanical engineer who is involved in the science of street accidents and running-down cases. There may be many other classes of persons, but if they are thought to be of the type who should be advocating in the magistrates' courts, there will be no legal representative on the advisory committee to advise the laymen, who, ex hypothesi, will know nothing about the problems of running and controlling magistrates' courts.

My modest contribution to the debate at this stage is merely to say that among the judicial members—and I support in advance the proposition that there should be more than a judge of the Supreme Court or a Lord of Appeal —there should be a stipendiary magistrate to speak of the problems and experience which he and other magistrates have to offer to the lay body which will make the decisions —often the majority decisions —on this difficult subject.

The Lord Chancellor

I accept the fact that the senior stipendiary magistrate is a person worthy of consideration in this connection and that a number of others will be suggested. Perhaps my noble and learned friend will allow me to consider all the proposals.

I believe that one must have in mind three main principles: first, that the committee should be of a reasonable size; secondly, that there should be a lay majority; thirdly, that the committee should be capable of functioning in a way that embraces considerable knowledge of the profession under a senior judicial chairman. I am happy to consider all the issues that have been raised.

There are two distinct aspects: first, who might be the members of the committee; secondly, the considerations that one should have in mind in considering the lay persons. I am content that we should discuss those aspects and I undertake to consider them all. However, I do not have it in mind to accept any of the amendments this evening.

The Earl of Onslow

My noble and learned friend said that there should be a lay majority on the committee. Can he tell us why?

Lord Rawlinson of Ewell

I too wish to ask my noble and learned friend why he is convinced that there must be a lay majority on the committee. Why must there be a lay majority on a committee which must deal with the education of the discipline and science of the law, the training of advocates and the conduct of advocacy? I do not see that it is so important as my noble and learned friend seems to suppose. It has been said that the Cabinet has decided on that but I should like to know the reason behind the decision. It is a committee which is technical and which deals with conduct and training. Therefore, why must there be a lay majority when there are many experts? Why should there not be half a dozen professors of law?

The Lord Chancellor

I shall seek to answer both those questions. As was pointed out by the noble Lord, Lord Hutchinson of Lullington, it is difficult for lay people to understand exactly the conditions under which lawyers operate. Therefore, it is extremely useful that they should have assistance in the formulation of the rules. I believe that lay people of appropriate experience can bring forward advice on such issues. After all, the courts and the legal services exist in order to provide for a need which the public has. Under our existing structure the profession will set the rules, subject to the approval of the senior judges and the Lord Chancellor. They will be the people who have the responsibility; the committee is advisory only. I believe that, where the chairman of an advisory committee is a judge, it is appropriate that the balance should be for a lay majority. I have indicated that simply because it is a consideration which I have in mind and I wished to set it out at the beginning of the debate. Like everything else, it is open to discussion.

Lord Ackner

I wish to remind my noble and learned friend of what he said on Second Reading: The key aims are to ensure that the voice of the user of legal services can be heard when questions of the provision of legal services are decided: to make sure that those who make decisions are answerable for them; and that they take them with the benefit of full and considered advice". —[Official Report, 19/12/89; col. 126.] There is no suggestion made that the lay voice must dominate. While there is an opportunity for the lay voice to be heard, I share the puzzlement expressed by my noble and learned friend Lord Rawlinson and other noble Lords as to why there must be a majority.

Lord Murray of Epping Forest

I had not intended to intervene in the dispute, but I should like to comment on the way in which I see the balance between lay people and others on the committee. I have doubts about the committee as such; it has astonishingly wide terms of reference and an enormous amount of hard work will be involved. The way in which the best candidates will be obtained remains to be seen. However, as the noble and learned Lord has said, it is critically important to get the composition right.

The people who will make the advisory committee work are those who have experience in the legal system. They know what needs to be done and how to go about doing it. No one knows better the needs of lay people than the judges before whom such people appear. Judges have direct contact with them, listen to them and are conscious of the difficulties and problems faced by lay people in threading their way through the sometimes tortuous legal system. I was astonished to note that there was no proposal to include judges in the composition of the committee.

I realise that, if one adds all the people suggested in the various amendments, the result will be a majority of people with a legal background. However, I do not see that there is a particular case for a lay majority. There will be no question of voting on the committee; it will be death and destruction if its members ever think about voting. There are in fact only two lay representatives on the Bar Council's professional conduct committee. But in effect we have a veto. I sometimes think that the fact that our number is so small gives us an unfair advantage over the majority of barristers who serve on that committee.

I believe that eight lay people on the committee is quite adequate. I would be happy to see that number reduced, but I believe that the committee would be enormously strengthened in terms of competence, ability and sensitivity if there were added to it a presiding judge, a circuit judge and a stipendiary magistrate. If it were necessary to accommodate them by reducing the number of lay people, I do not believe that that would be a fatal flaw.

9 p.m.

Lord Alexander of Weedon

May I add a word to that? My noble and learned friend said a few minutes ago something with which I think we would all agree. It is often difficult for lay people to understand the processes of the law. I am sure that we all agree that we as lawyers must seek to reduce those difficulties as much as we can. But if that is the starting point, it is hard to see how lay people should dominate a committee engaged in these technical activities.

The noble Lord, Lord Murray, referred to his experience on the Bar Council. I shall always be grateful to him for agreeing, when I was chairman of the Bar, to join our disciplinary committee, which established a principle that, although there was a majority of professionals supplying expertise, we never dismissed a complaint without the consent of both lay members. Therefore, we had a balance there.

May I speak from another aspect of experience, which was my two-year chairmanship of the Takeover Panel. There we had a mix of professionals and independent members. The independent members, of whom I was one, I hope provided a useful perspective. We were a minority —a significant minority —but I am absolutely sure from the perspective of the two years of that work that the system would not have worked as well in these technical areas if the lay members had been in a majority.

With those experiences and with the comments that have been made, except perhaps for a covert appeal to the popular acceptance of the Committee, I have heard no argument that seems to support the desirability of a lay majority. In the light of the views that have been expressed and the concern that this is a committee dealing with technical aspects which affect the welfare of the public, I would hope that my noble and learned friend would reconsider this important point and appoint a significant and highly skilled minority of laymen but not put the committee in the hands of a lay majority.

Lord Boardman

While I agree with much that my noble friend has said with regard to his experience, which I share, I think that we should be careful about carrying this argument too far. If we carried it to the conclusion that would flow from the argument of the noble Lord, Lord Murray, it would mean that government of this country would be run by the civil servants, who know all the intricacies of government —and goodness only knows, they are far greater—and not by the vast lay majority that occupy both Houses.

Lord Oliver of Aylmerton

The amendment that has been proposed and the discussion that has followed have largely stolen the thunder that I was proposing to loose on the amendment that stands in my name on the Marshalled List, which is to much the same effect as Amendment No. 97 proposed by the noble and learned Lord, Lord Rawlinson. It approaches the matter from an angle which is, I hope, practical rather than constitutional, although I do not for one moment ignore or underplay the constitutional aspects that have already been emphasised.

The question is one of considerable importance. I must therefore ask the Committee to be patient if I take up a little time with the reasoning behind these amendments, which has already been adumbrated in the speeches that have been delivered. These amendments are part of a series that have the purpose of altering and, it is hoped, improving the constitution of the Lord Chancellor's Advisory Committee, for which the clause provides.

I say straight away that for may part I am not seeking to quarrel with the establishment of such a body or with the functions that it is intended to perform. I am simply anxious, as indeed I am sure the Committee is that if this body is to be established it should be properly equipped to do the job for which it is established. What I question and have questioned previously in debates in the House on the Green Paper and on the Second Reading of the Bill is whether the committee is sensibly constituted as the clause currently stands.

May we take just a few moments to consider the important purposes for which this committee is being established. As a preliminary it will be observed —and I feel sure that we shall be told again, as we have already been told more than once —that this is only an advisory committee. I stress the word "advisory". It is not to do anything but merely to tender advice. Therefore, it will be argued, it is of less importance than the decision-making body, with the implication that its composition does not matter all that much so long as it consists of reasonably sensible people.

Of course that is right in theory because the Lord Chancellor, the designated judges and the authorised bodies do not have to follow the advice that is tendered. But when we come to consider the breadth of the detail of what the committee is expected to deliberate and advise on, it is obvious to anybody with half an eye that this will be and is intended to be in practice a decision-making body and that what it says will go.

It would be disingenuous to suggest that the Government are in the business of setting up and funding a body of this sort if they considered that there was any practical possibility of its advice not being followed. Effectively this is the body that is going to dictate not just the framework and the detail of the education, training standards and discipline of all those who provide legal services in our courts but the very way in which these services are to operate.

Let us take the briefest look at what it is intended to do. Under Clause 17 it is to assist, in the maintenance and development of standards in the education, training and conduct of those offering legal services". The details of that are set out in Schedules 2 and 4 to the Bill.

To begin with, the committee has the permanent duty of keeping legal education and training under review; though I confess I am not aware that any criticism has been levelled at legal education and training or of what shortcomings it is thought there are in that branch. The committee is to consider what form the initial and further academic practical training should take. That must mean, if it is to have any meaning at all, what subjects shall be studied; to what standard; how they are to be examined, what practical training is required for appearance in court; what other non-legal or quasi-legal disciplines are to be embraced in training, and so on. It is to advise—perhaps that word should be in quotes —all the authorised professional bodies on these matters, including the Law Society and the General Council of the Bar. It is to consider and keep under review schemes relating to the specialised areas of legal practice. It is to consider the qualifications and the rules of conduct —that must include the disciplinary procedures —of all bodies which seek to become authorised bodies for the purpose of granting rights of audience and the right to conduct litigation.

If any authorised body, including the Law Society and the General Council of the Bar, wishes to make any change in its rules relating to qualifications or conduct, those changes have to be submitted to and considered by the committee. It is to the committee that any proposal has to be submitted for the revocation of the designation of a body as a body authorised to grant rights of audience or rights to conduct litigation.

This is therefore a very important body and a body which is to operate in a highly specialised area of professional activity where technical and practical knowledge is absolutely essential to a proper and intelligent exercise of its functions. One might say that it is the apex of the structure of the legal profession, supervising every important aspect of professional practice and training.

I accept straight away —I am sure we all accept —that the profession does not exist for its own sake. It is there to serve the public and the public has a strong interest in ensuring that it is properly served. But just as the public has an interest in ensuring the proper provision of medical services, that proper standards are retained by accountants and actuaries, that buildings are properly designed and constructed, that doctors, dentists, architects and other skilled professional men are properly qualified and behave properly, so it is entirely right and proper that the public should be represented and consulted on the bodies which regulate these professions. I ask, however, is it sensible that the body which regulates all professional activities in a highly technical sphere should be dominated by people whose very qualification for being there is that they do not have expertise in the very profession which it is their function to oversee?

The noble and learned Lord the Lord Chancellor, or the civil servants who advise him, may know of some other profession somewhere else in the world whose education, training, practice and ethics are dictated by persons without any professional experience or qualification. I confess that for my part I do not. I can well imagine the outcry that there would be if, for instance, a proposal were brought forward to replace the General Medical Council by a lay-dominated body appointed by civil servants or by a Minister.

I am sure we will be told that the legal profession is different. I confess that I do not for the life of me see why or how. Nor has the why or: low ever been explained. Paragraph 7.3 of the While Paper states that: many members of the legal profession were concerned that the majority of the advisory committee's members would be non-lawyers". The White Paper goes on to inform us that: the Government has considered these views with great care". No doubt that will be a great comfort to other noble Lords, as it is to me. However, what it does not do is provide any explanation of why the Government consider that, in addition to having available the no doubt very valuable views of what are referred to as "knowledgeable non-lawyers", those knowledgeable non-lawyers should in effect dictate every facet of legal education, training and practice. Subsection (5) sets out seven areas of experience or knowledge to which the Lord Chancellor is to have regard in selecting the lay majority. These are alternatives —they are not cumulative —and only three involve any acquaintance at all with the law or its practice.

I am sure that we will be told that of course the noble and learned Lord the Lord Chancellor will make only the most informed and sensible choices in selecting suitable people and that of course the people selected will defer to the proper opinions of that minority of members of the committee who do have the proper expertise. If that is right, why do we need a lay majority? It can only be because it is envisaged that at some stage circumstances will require that their ex hypothesi non-expert view on education, training and professional conduct must prevail over the expert views of the qualified members of the committee.

I fully expect to be told that I am making a mountain out of a molehill; that it will be perfectly open to the noble and learned Lord the Lord Chancellor to nominate, say, three responsible justices of the peace, two retired High Court judges, two retired solicitors and a past president of the Institute of Arbitrators, and what could be more reasonable than that? The answer is of course, nothing. We are being asked to take an awful lot on trust. For my part I believe that we should approach this very far-reaching legislation with an eye on the future as well as on the present, and on the worst scenario that could occur rather than on an optimistic forecast of what is intended in the immediate future.

We are being asked to bet very heavily on the good sense and good intentions of some future Lord Chancellor years hence and operating in a political climate perhaps very different from that which prevails today. Therefore, I hope that I shall not be thought disrespectful if I ask the Committee to set aside for a moment any pro-or anti-lawyer preconceptions and to look at this matter as a matter of ordinary horse sense. That was once defined as the instinct which prevents horses from betting on men.

We are very fortunate in having at present a Lord Chancellor of charm with, sagacity and integrity. We may feel every confidence in his possession of that ability which the traditions of his high office demand to withstand the political pressures of the moment. But it has not always been thus and it may not always be thus in the future. This advisory committee has been described by some as a sinister body. I do not use that adjective and I am quite certain that it is not sinister in intention.

Nevertheless the fact remains that, as the Bill stands at present, it is an instrument by which the executive can, in a very large measure, control a legal profession which until now has been self-regulatory, and by which it can, by the creation of new classes of practitioners in the courts, secure an even greater control than it enjoys at the moment over the composition and of course, ultimately, the conduct of the judiciary at all levels.

There is never any guarantee that any executive-appointed body will not be packed with political placemen. But, accepting for the moment —which I do only with the very greatest reluctance —that it is right in principle that so influential a body should be totally executive-appointed, I do urge that at least a majority of those appointed should be possessed of the skills which they are to supervise and upon the exercise of which they are to advise.

As drawn at the moment, Clause 16 of the Bill provides for a judicial chairman and 14 members, of whom eight are to be non-lawyers. That may be a touching tribute to the British spirit of amateurism, but does it really make sense? The legal element consisting of the four practising lawyers may by definition all be employees of banks or building societies. In addition there are two academics. The interests of the existing professional bodies are to be protected only by a process of consultation. As matters stand at the moment, the chairman is a toothless watchdog with no casting vote and he is the only judicial representative. In particular there is no place on the committee either for the persons who above all others have their fingers on the pulse of the practical administration of the law —namely, the presiding judges —or for that branch of the judiciary which has the closest contact with the courts to which it is the very purpose of this Bill to steer the major volume of litigation —that is the circuit judges.

Therefore I suggest first that, having regard to the great importance of the committee to the administration of justice and the influence that it is going to wield, the appointment of the members of the committee should not be in the hands of the Lord Chancellor alone, but should be with the concurrence of the person who perhaps has his finger most on the pulse of the administration of the courts: the Lord Chief Justice. It is perfectly true that he is responsible for the Queen's Bench Division and the criminal courts. Above all I believe that he probably knows more of what goes on in the courts than anyone.

Secondly, the rational composition for such an important body, designed as it is to govern the development of the entire legal profession for the foreseeable future, would embrace at least an equality of voting power between professional and lay members, with a casting vote —if voting is appropriate —in the professional chairman. Thirdly, the committee should include places at least for one presiding judge and one circuit judge. Fourthly, those members who are to represent the branches of the practising profession should be nominated by them rather than merely appointed after consultation with them.

9.15 p.m.

Lord Hacking

I do not know whether my thunder has been taken from me. This amendment is tabled in my name also. I rise at this time because I wish to address the Committee on the proposal that there should be also included among the candidates for the advisory committee a legal executive appointed after consultation with the Institute of Legal Executives.

The Committee has considered in some detail the composition of the advisory committee, and proposals have been put forward by the two noble and learned Lords who have just spoken. I do not know whether the noble and learned Lord the Lord Chancellor wishes to deal with those representations before he hears my submissions. The noble and learned Lord indicates that it is convenient for me to address the Committee on Amendment No. 98 and on Amendments Nos. 103 and 108A.

These amendments concern the Institute of Legal Executives. Noble and learned Lords will remember from their days of practice the managing clerk. I dare say that before that creature, the litigation partner, had been created in the London law firms, noble and learned Lords principally received their instructions for major and minor cases from managing clerks.

The Institute of Legal Executives was incorporated in November 1928 as the Solicitors' Managing Clerks Association, and became the Institute of Legal Executives in January 1960. No fewer than 50,000 solicitors' clerks currently serve in the law, working in a variety of solicitors' offices. Of members of the institute there are 20,000, and of those 5,000 are fellows.

In view of the importance of the composition of the advisory committee I shall delay the Committee a little longer to explain that, in order to achieve fellowship of the institute, four general papers in law and practice and three further papers on substantive law have to be taken. When those qualifications have been achieved, the candidate will not only be eligible for fellowship of the institute but he will have the necessary educational requirements to enable him to be exempted from most of the CPE examinations. He can then apply to take the Law Society examinations and become an admitted solicitor.

One of the important roles of the institute is to provide a route into the profession for those young men and women who did not have the educational attainment to enable them to enter the law through the Law Society qualification for articled clerks. As well as the educational side, the institute has a code of conduct and good practice. It arranges courses in practical advocacy and its disciplinary tribunal regulations are approved by the Master of the Rolls. The three main members of its disciplinary tribunal are appointed by the Master of the Rolls.

Members of the institute have by long practice a right of audience before judges, master and registrars in chambers. They have a limited right of audience under the County Courts Act 1961 for unopposed applications for adjournments and applications for judgments by consent in the county court. They have a few other minor rights. A fellow is entitled to manage a branch office of a solicitor's practice.

In this amendment, which is the paving amendment, and in the substantive amendment, Amendment No. 108A, the institute seeks a place on the advisory committee. While I in no way denigrate the candidature of the three judicial candidates, I want to put the case for the legal executive. In doing so, I should say that I am not seeking to upset the balance of lay and professional persons on the committee. If accepted, my proposal would therefore cause minor adjustment only so as to keep a balance of lay persons over the legal representatives on the committee. Further, I do not seek to overload the committee; indeed, I am only asking for one more candidate.

The reason why I am asking that legal executives should have their place on the committee is first that they represent a large part of the legal profession's workforce. Secondly —and this is why I enumerated to the Committee the education, training and disciplinary background —last year more than 15,000 members took the examination in the education and disciplinary requirements. They play an active part in the profession.

The noble and learned Lord, Lord Oliver, drew the Committee's attention to Schedule 2(1). I too draw the attention of Members to those provisions. I also draw attention to the closely related role that legal executives play.

It is true that legal executives could be appointed as lay members under subsection (4)(d), because they do not fall under the disqualification of a practising solicitor, which I believe is defined in subsection (10) of this clause. However, if they were to take a place by that route that would upset the balance, because to all intents and purposes they are practising lawyers. Moreover, those of us who have worked with them know that they are very knowledgeable and experienced practising lawyers.

For all the above reasons, I ask the noble and learned Lord to take a different view when approaching the matter. I ask him to adopt a different approach to legal executives —that is, different from the way he approached the question of the other three judicial candidates. Before the debate I took the step of forwarding to the noble and learned Lord a copy of the institute's memorandum and articles of association and also a copy of its disciplinary tribunal regulations. I did so to enable him to have those documents available to him before considering my proposal to the Committee.

Lord Hailsham of Saint Marylebone

I shall again speak briefly. Of course, technically we are only speaking about the number of members of the advisory committee. However, that has perfectly properly allowed a number of excellent speeches to be made about amendments which follow as to its possible composition. I do not conceal from my noble and learned friend the fact that. I am against this structure. I think that the variety of speeches which have been made show cumulatively the kind of danger into which he has fallen by adopting this structure.

But, having said that, I wish to address one or two points which have a bearing on what has been said. I was very disappointed to hear my noble and learned friend say, some time ago now, that he regarded the lay majority as one of his essential requirements. I say this although I know that it could be said fairly against me that in appointing the Civil Justice Review Committee I deliberately chose to place a lay majority in it and that I also appointed a layman to the chair. I did so quite deliberately because within my professional experience there had been more or less 14 legally-composed committees set up to decide upon civil justice, practice and procedure. They had all ultimately, almost without exception, come to nothing. However, the Civil Justice Review Committee was an ad hoc body and it produced six reports of, I think, very considerable value. Moreover, I hope to see some of the recommendations put into effect one way or another in the near future.

However, we are now talking about a standing body of a quite different kind, which is designed to perform the functions laid down in the statute. We are really discussing what will happen if the members of such a committee try to do the work laid out in Schedule 2 and, for that matter, in Schedule 4 to the Bill.

I venture to repeat a point that I made on Second Reading. How do we visualise that body working in practice? What sort of people will be able to give their time to do that kind of work with any sense of conscientiousness? I believe that I know the answer, and I shall try to give it. The picture is painted of a committee of placemen appointed by some future and ogreish Lord Chancellor who would wish to pack the committee with nominees of his own choice. That would be constitutionally very objectionable indeed, and of course legally it would be perfectly possible if that structure were adopted. I do not believe that is a realistic view to take when considering the constitutional value of the committee and the consequences of making it subject to the Executive.

Can I imagine the present Lord Chancellor or myself being able to discover from our own knowledge of the world of affairs the persons enumerated in Clause 16 in each class from (a) to (d), excluding the excluded classes of those who know something about the subject? I can tell the Committee clearly from my experience that I should have no such ability; and I say with great respect to my noble and learned friend that I doubt whether he has, nor do I imagine that the ogreish figure of the future, who has been painted as a possible danger to our constitution, will.

What in practice will happen is that the Civil Service will tell the Lord Chancellor whom to appoint. It will have chosen, as best it can, the names of the great and the good from some large list which it has of people who have nothing better to do than to interfere with other people's affairs. That is the reality of the matter. The idea that an independent profession should effectively be governed by such a ludicrous body, of which we have seen only too many examples in the past 25 years of my experience of Parliament, is one too terrifying to imagine. Those people will have too much to do.

I wonder whether my noble and learned friend has considered how many meetings such people will have to hold every year and for how long the meetings will last to do even the minimum of the tasks imposed upon them by Schedule 2 with Schedule 4 added onto it. The proposal seems extraordinary. I do not conceal my hostility to it, but there are constitutional objections of a much more practical and serious kind than that of any imaginary Lord Chancellor of the future seeking to fill the committee with hot-headed placemen with their own particular brand of politics. We shall see a number of superannuated old ladies and gentlemen, who have nothing better to do, nominated by the Civil Service which has persuaded the Lord Chancellor to appoint them because there is no one else to appoint.

9.30 p.m.

Lord Beloff

Since the noble and learned Lord, Lord Ackner, was good enough to quote what I said in the debate on the Green Paper about a lay majority on the advisory committee, I should perhaps make it clear that nothing I have heard subsequently has made me change my mind. I am still waiting, and waiting patiently, as I believe other Members of the Committee probably are, to find out what the argument is for a lay majority. I can see the argument for a lay voice. It was expressed by the noble Lord, Lord Murray of Epping Forest, and other noble Lords. There is a great difference between saying that it is useful on occasion to have a non-professional voice, and saying, "That voice must have a majority". We can eliminate what is sometimes put forward in certain quarters as a reason for this concentration on the lay element; namely, that the public as a whole has a great interest in the effective running of the legal system. In that sense, they are—though I dislike the word very much —consumers. Passengers in a liner have an enormous interest in the safe navigation of the vessel. Yet when I have travelled in a liner, I have always found a notice saying, "Access to the bridge is not permitted to passengers".

I feel therefore that we have to abandon these simple explanations and ask ourselves again and ask the noble and learned Lord the Lord Chancellor, I am afraid, to explain the reasons for overriding the various considerations —which were given impressively, if I may say so, by the noble and learned Lord, Lord Oliver —and the rather different but practical considerations given by my noble friend, the former Lord Chancellor. He replied effectively to the noble Lord, Lord Boardman, who tried to equate civil servants with experts, by saying that to demand expert membership of a body which deals with professional matters is equivalent to saying that we should leave things to civil servants. It is the opposite. Lay people, because of their ignorance of the substance, are likely to be more amenable to the wishes of civil servants. As I said in the debate on Second Reading, that is the equivalent of appointing civil servants.

There is one other point which I made on Second Reading and which, with the indulgence of Members of the Committee, I should like to repeat, because I think it is illustrative. It concerns the catastrophe which has befallen the universities under the regime of the new funding council which has a heavy ignorant lay element. Since my speech on Second Reading, I have had occasion to discuss this with the present vice-chancellors of universities and other people eminent in the university world. They have all come to the conclusion —and this bears out something which the noble and learned Lord, Lord Hailsham, said —that one cannot explain the operation of a complicated set of institutions to persons who can only spare a couple of hours once a month to be briefed.

In the space of a few short months, it has already been proved that the experiment of giving this lay preponderance on the funding councils has been enormously damaging to the unversities. The relevance of this point is that it makes one ask again: what is the passion which this Government have for getting away from the historic self-reliance and self-governance of our institutions and our professions in favour of what can only be called populism? That is to say, the constant pleas of the ignorant that ignorance is in some sense a virtue. There are newspapers which proclaim this almost daily.

After all, we are dealing with an enormously serious subject, as Members from all sides of the Committee have reminded us. We are entitled to the explanation which has not been forthcoming of why the noble and learned Lord the Lord Chancellor gives such a dominant place in his considerations to the notion of a lay majority. Unless we are satisfied on that point, I do not see how we can usefully discuss the make up of the Committee; the kind of individuals whom the profession might wish to have; how they should be chosen. All these are secondary. The important question is: why should there be a lay majority on a body whose task—whether it is education or the formulation of rules of conduct —is wholly professional?

Lord Mishcon

I shall immediately answer the challenge of the noble Lord, Lord Beloff, and others who have asked what the case is for a lay majority on the advisory body. I was entranced, as I always am, by the speech made by the noble and learned Lord, Lord Hailsham. I shall tell him why he entranced me, as he usually does.

I can remember when the noble and learned Lord graced the Woolsack and endeavoured to bring to the Chamber reforms in regard to both the law and to the way in which the law should be dealt with. He heard the representations which I tried to make on behalf of the Law Society and he heard representations from the Bar Council. He dealt with those representations, which were contrary to his own wishes, by saying time and time again from the Woolsack —he looked at me with great indignation when I represented the rules of the Law Society —that mine was the most conservative profession he had ever come across. He said that my profession never wanted change or reform. He said that he was trying to introduce reforms which he thought were for the good of justice and the nation, but that my profession always stood in his way.

What did the noble and learned Lord do as a result of his experience? He did what, in sheer honesty, he has told the Chamber today. He found that he had to deal with courts that were apparently not being terribly well administered, with justice that seemed to be delayed and with the clogging machinery of the law. He did exactly what he has explained, in frankness, to the Chamber this evening. He decided that lawyers had looked at the reforms time and time again and, as he told the Chamber, had produced nothing by way of reform. He considered what he should do to improve the machinery of justice which exists for the purposes of the public. He considered what he should do to improve the training of lawyers who should be trained in a practical way. He considered the various subjects they should study and their codes of conduct, not in relation to those specific matters but in relation to the running of the machinery of the law. He decided to appoint a body to conduct a Civil Justice Review. That body was to consider various aspects of the law and was to be composed of a lay majority.

Having regard, as I said, to the noble and learned Lord's castigation of what he called the most conservative profession he had ever come across, although he was such a luminary with regard to that self same profession, and to his castigation of those who were standing in the way of his reforms, and to the way he himself had formed such an important review body which consisted of a body of laymen, I was amazed tonight to hear him of all people argue against all that he had stood for when he spoke from the Woolsack stating that he must get rid of the conservative views of the legal profession. However, the noble and learned Lord differentiated his remarks this evening by stating that the advisory committee was a standing body.

The noble and learned Lord said from the Woolsack that he must get a fresh view on the subject of the law and that when he set up a Civil Justice Review to look at the whole working of the machinery of the law it had better have a lay majority.

Lord Rees

I suspect that my noble, and learned friend the Lord Chancellor faces in this debate a somewhat delicate dilemma. If, to assuage the legitimate anxieties that have been expressed by almost every speaker in this debate he tells us that the committee is only an advisory committee and that its advice can, and will be, regularly overriden, we can dismiss the establishment of the committee as a delicate political charade and we can pack our bags and go home. However —my next point is perhaps another dimension of the point made so forcibly by my noble and learned friend Lord Hailsham —if he tells us that, he will find it extremely difficult to find people of weight and experience to serve on the advisory committee.

If on the other hand he says candidly and honourably, no, the advisory committee will be the predominant voice when it comes to the regulation of these professional matters —and he may take some comfort from a clause which was no doubt considered by him and his colleagues in the legislative committee of the Cabinet, although I do not know whether that is the case —then I believe that we are entitled to say that there is an element of absurdity in making it a predominantly lay committee.

The committee will not just consider the machinery of justice. The machinery of justice is probably outside its purview. It is being asked to control a wide professional field. Even a very cursory glance at Schedule 2 demonstrates that, with the doubtful exceptions of paragraphs 4 and 5, those are all matters of professional concern.

No one, even with a legal background, would say that lay people should not offer a view. They are the clients and the consumers and are certainly entitled to a view. However, should a professional field of such delicacy and intricacy be subject to the predominant voice of a committee which will be controlled by lay members?

I know that my noble and learned friend has been pressed on the issue in various debates. I hope that he will forgive me for pressing the matter again. I am sure that it would assist the Committee enormously in coming to a conclusion on this and related amendments if he could tell us what other professional fields are regulated by a majority of laymen or under plans of this Government which have not yet been disclosed are to be regulated by a majority of laymen. If he cannot produce a fair analogy in other professional fields we shall conclude that he is wrong and that he is in some extraordinary way discriminating against the very profession which bred him.

I shall find it very, very difficult to go along with the Government's proposals on this and related matters.

9.45 p.m.

Lord Campbell of Alloway

Perhaps I may very briefly, to save time, register a very firm protest for the reasons that have been given by noble and learned Lords and by my noble friend who has just spoken against the lay-dominated advisory committee. What on earth is the justification for it in view of the reasoned criticisms that have been given from all sides of the Chamber?

Lord Donaldson of Lymington

I should like to register one short word of protest in response to the noble Lord, Lord Mishcon. People reading his speech will think that it is an accepted fact that the judiciary and senior members of the two branches of the profession are dyed-in-the-wool reactionaries who have no new ideas. They will think that it was for that reason that my noble and learned friend Lord Hailsham appointed a lay majority on the Civil Justice Review. I cannot speak for his reasons, but that just is not true.

There is scarcely an idea put forward in the Civil Justice Review which had not already been discussed by the judges or by members of the two branches of the profession or often by all three. Many of the ideas have developed from pilot schemes which have been run in the national industrial relations court, the commercial court and other courts.

I can well understand the desirability of having a large lay element on a body such as the Civil Justice Review and possibly a majority lay element. The product has to be sold outside the professions and one wants a balance. That is the only justification. It would be quite wrong for anybody to think —I speak particularly for the judiciary, but also for the two branches of the profession who are the future judiciary —that they are other than highly innovative. The lay representation helps them to sell their ideas to government.

Lord Mishcon

Before the noble and learned Lord the Master of the Rolls sits down, will he take it from me that the last thing in the world that I should want to do is to say that the leaders of my profession, of which I am proud to be a member, do not act in a progressive way? I made that abundantly clear and the noble and learned Lord, Lord Hailsham, with his usual reaction to speeches of that kind, smiled at me with some indulgence. I did not take that to be an acceptance of all that I said, but he did not say what the noble and learned Lord the Master of the Rolls has now said. He gave a reason as to why he appointed a majority of laymen. It was, he said, because the previous bodies consisting of lawyers who had looked at those matters had —I paraphrase him —produced nothing. That was why he appointed the lay majority. I faithfully repeated what the noble and learned Lord said. I do not therefore think that I quite deserved the words that the noble and learned Lord the Master of the Rolls chose to utter.

Lord Donaldson of Lymington

I apologise if I misrepresented the situation. I understood my noble and learned friend Lord Hailsham to say that nothing had resulted from the deliberations. This was not a criticism of the members but perhaps of their persuasiveness. I would not dream of casting the slightest aspersion in the direction of the noble Lord, Lord Mishcon.

Lord Griffiths

Whichever Lord of Appeal in Ordinary or judge of the Supreme Court ultimately has the awesome responsibility of chairing the committee, he will need all the consumer assistance that he can get. But who are the consumers of advocacy? They are the unfortunate judges who are on the receiving end of it day after day. I say in all seriousness that it is quite ridiculous that he should not have the assistance on the committee of those who are at the receiving end of advocacy, who know the standards of advocacy and who know what our system of legal education produces. There should surely be there available to assist him the presiding judge and the circuit judge suggested by my noble and learned friend Lord Oliver. It is not good enough to say, "You can call them in and get their evidence". One wants them there to be available to discuss matters day in, day out and to help one frame the questions that should be asked. They are absolutely essential to the proper operation of such a committee.

The Earl of Onslow

My noble and learned friend has still not explained to me or the Committee what is wrong with the present legal education system. Please will he do so.

Lord Peyton of Yeovil

I was much impressed when the noble Lord, Lord Mishcon, said that he was entranced, as I have always been, by what my noble and learned friend Lord Hailsham said. I have frequently —in fact always —found myself entranced by the words of the noble Lord, Lord Mishcon, but every now and then there lurks in the back of my mind just a suspicion —the barest suspicion —that he might not always be wholly right.

Having mentioned that outlandish and far-fetched supposition, perhaps I may detain noble Lords for a moment on this point. Clause 17, which I know we are not here discussing, states that: The Advisory Committee shall carry out that general duty by performing the functions conferred on it by Schedule 2". I speak as an amateur and a lapsed lawyer who long ago ceased even_to try to practise. Perhaps we may examine for a moment the words in Schedule 2. I very much hope that my noble and learned friend will be able to draw aside the veil of anonymity which conceals the identity of the person who drafted that schedule.

Paragraph 5 of the schedule, headed "General advisory functions", states that: (1) The advisory committee may make such recommendations with regard to any matters which it is required to keep under review or consider as it thinks appropriate". Quite apart from the fact that the one commodity of which this country is not short at the moment is advice, that does not start the advisory committee off with a big boost.

I invite the Committee's attention to the next paragraph —I could not have dreamt it up —which states: Any such recommendation may be made — (a) by being included in the Advisory Committee's annual report". I ask the Committee to pause and ask itself the simple question: how many noble Lords devote avid attention to anybody's annual report? Any body which is given a heavy responsibility and then, having deliberated in all its wisdom, is given the privilege to expose its thoughts in its annual report will not feel comforted or encouraged.

Another way in which such a recommendation can be made is: by being addressed to any professional body or group of professional bodies". It is very difficult for me. I am faced with an alternative: either this advisory committee will have such overwhelming power that those professional bodies will not only listen but stand to attention and do what they are told or they will take no notice at all and will make use of that most useful item of modern furniture, the waste paper basket, or perhaps even use the shredder.

Then, in case those two methods are not any good, the third way in which this body—

Lord Hacking

I hesitate to interrupt the noble Lord but we have a long haul ahead of us tonight and the analysis of Schedule 2 has not reached us. Could we keep our discussions to the composition of the advisory committee and not go through an analysis of Schedule 2 at this stage?

Lord Peyton of Yeovil

I am deeply indebted to the noble Lord for his advice. Perhaps he would just bear with me for a moment. It seems to me that in considering the advisory committee we are entitled to take into account the powers that it is given and the way in which it will carry out its duties. I should hate to find myself having a difference of opinion with the noble Lord but if I do I shall have to endure the pain.

The third way in which this body is able to voice its opinions is: in such other manner as it thinks fit". I do not have the vocabulary of the noble Lord, Lord Mishcon, and lack the gifts of noble and learned Lords on the Cross-Benches. I do not think that I am capable of expressing myself so eloquently. However, I do not think I have seen in my life so flabby a schedule. I hope very much that my noble and learned friend will not try to force it down our throats.

Lord Boardman

My noble friend no doubt will accept that the schedule which he criticises was drafted by a lawyer or lawyers. Does he agree that, in his claimed role as a layman, his contribution is of great value? The criticism that he makes on the drafting of lawyers might be a point in support of having lay members or a majority of lay members on this committee.

Lord Peyton of Yeovil

My noble friend is entitled to his view but I have never allowed ray respect for lawyers to carry me to the lengths of praising the drafting of any of the measures which have come before us in Parliament in my recent memory.

10 p.m.

Lord Rippon of Hexham

It is most unfair that the draftsmen should be criticised. There are only 45 draftsmen who are paid an average salary of £32,000 per year. They must deal with a mass of legislation under the direction of the Minister. Sometimes Ministers, such as the late Lord Duncan-Sandys under whom I served, liked to draft all the legislation themselves. That is not necessarily a good idea. However, the Minister is responsible and the Lord Chancellor must take responsibility for the drafting.

Lord Renton

Does my noble friend agree —and he must know it from his own knowledge as a former head of department—that instructions for the draftsmen are not given by Ministers? They are given by civil servants within the broad and rather vague ambit of policy laid down by Ministers.

The Lord Chancellor

I should like to deal with some of the issues that have been raised. My noble and learned friend Lord Oliver quoted from the White Paper. The reason advanced in the White Paper at paragraph 7.10 for the majority being lay persons is that the balance aims to ensure that the committee primarily represents the views and interests of the user of legal services, but contains wide representations from those who have practical experience of providing them.

My noble and learned friend Lord Hailsham has described his way of selecting lay people to serve on a committee. I venture to think that. with his usual humility, he is under-estimating the amount of concern that he took in making the appointments. For example, it is apparent that the Civil Justice Review appointments were excellent and that the lay people, as well as the distinguished lawyers who served on that body, produced a report which commanded general acceptance and on which we have sought to take action in Part I of the Bill.

Secondly, my noble friend Lord Beloff told the Committee that when he is on a boat he is not allowed on the bridge. I have no doubt that that is true, although perhaps from time to time he has been privileged to be allowed on the bridge to see what is happening. However, I wish to point out a feature of our legal system which distinguishes it from any other. Every disputed fact in a criminal trial in this country is ultimately decided by lay people, except in a case where the trial judge is a stipendiary magistrate. They are the ultimate consumers of legal services. If the judge receives legal services, those people have the responsibility of judging in criminal trials. They are lay people who above all are concerned in relation to the provision of advocacy services by solicitors. The lay element in our system of justice in this country is extremely strong and it is not the same as the navigation of a ship to which my noble friend referred.

I wish to say a few words about the importance of the committee in answer to my noble friend Lord Rees. I regard the committee as being extremely important because it will give advice to which the professional bodies will be required to have regard. However, the ultimate decision-making will be in the hands of the two branches of the profession and with the necessary concurrence of the judges, including the Lord Chancellor, whom I hope I can describe in that way. The ultimate decision-making will be in the hands of the profession.

In that situation I suggest to the Committee that it is right that the balance in the advisory committee should be in favour of the users of legal services, taking that term in its broadest sense.

My noble and learned friend Lord Oliver speaks about the technical matters. My noble and learned friend Lord Rawlinson has done that too. I accept that there are highly technical matters involved; but there are also questions of what people want. Before you start to design a particular service, you must have some idea of what people require. It is for that element —the element of stating what is wanted; the services desired —that a lay majority is stipulated. It represents the views and interests of the users of legal services; those who want legal services; those who know the kind of service they want.

The idea is to try to match what will be provided both in education and training with what is required. It is the same concerning conduct. I should also like to emphasise, with great respect, the shrewd point made by my noble and learned friend the Master of the Rolls. Where there is a question of selling the rules of conduct of the legal profession to others, it is important that they can be fashioned in a way that intelligent lay people can understand.

I have referred already to the passage in the speech of the noble Lord, Lord Hutchinson of Lullington, on that matter. How difficult it is for lay people to understand, in the way we have expressed them up to date, the delicacies of the duties that, for example, counsel carry. There is no question in my mind but that a lot of people have the idea that the legal profession is dominated by restrictive practices. The contention to which my noble friend Lord Alexander of Weedon referred, which has been going on for much too long, between the Bar and the Law Society on rights of audience in the Supreme Court gives a kind of appearance of high probability to that which it is one of my aims in these proposals to try to resolve. The structure that I have proposed gives the best hope that we have of reaching a sensible resolution of these matters in such a way as to commend them to the general public.

Just in case there is any mistake about it, I entirely agree with the view that the cab rank rule is nothing in the nature of a restrictive practice at all, but that is not the sort of rule that people think of. It is rules about rights of audience, and restrictions on rights of audience, that people think of when they imagine that there are restrictive practices in the legal profession.

From my experience, I know perfectly well that many of these things that others describe as restrictive practices have considerable justification; but it is important that they should be expressed in a way that takes account of that. What I believe is a good, lay voice of the balance that we have here in the structure of the education, training and rule-making of the legal profession will be beneficial to the cause of justice and to the interests of both branches of the profession.

I have already referred to the Civil Justice Review. My noble and learned friend Lord Hailsham said, "But that was an ad hoc committee with a single task". That was true of course, but there was also a proposal made during the time that my noble and learned friend was Lord Chancellor to have a Legal Aid Board. This of course is a standing board, and the recommendation that was accepted by Her Majesty's Government while my noble and learned friend was on the Woolsack was that the Legal Aid Board should have a permanent lay majority.

In my judgment, the necessity is that this body should have a degree of unity and commitment, the one to the other. I believe that we have a good chance of securing that in a structure of this kind.

I am entirely open to suggestions as to the people who should be on the body. A number of suggestions have been made already, and I think there is at least one other amendment suggesting yet another possible person for it. I should love to see, within the constraints that I have mentioned, all of these people on the body. But one has to have regard to its overall size and effectiveness. It may be that one can achieve some of these aims by getting someone who is common to more than one branch. However, the Committee may take it that all of these suggestions will receive further consideration.

Lord Rees

Before the noble and learned Lord sits down, he may recall that I put a question to him before I concluded. I should be most grateful if he could give me an answer. Will he tell the Committee which other professions are regulated by a committee dominated by laymen?

The Lord Chancellor

I thought I explained in answer to that question that this is not a body which is to regulate, it is a body to give advice. I know of no other profession in which such an important part of the decision-making, to which the profession is devoted, is taken by lay people. As I said, a significant feature of our system —of criminal justice particularly—is that the decisions on all disputed matters of fact are for lay people to take. However, above all I am making the point that the advisory committee is not for regulating the professions. The advisory committee is to give advice to those who regulate the professions, which I entirely agree will be very important and I hope very good.

Lord Simon of Glaisdale

Having listened to this debate, I have been strongly under the impression that a high balance of argument —not merely numbers, but the weight of argument —has been against my noble and learned friend the Lord Chancellor. I do not know where we go from there because there is a safe majority outside the Chamber. As Disraeli said, a majority is the best repartee.

However, it disturbs me that as on Tuesday, at a very late hour, Clause 8 of the Bill was absolutely torn to shreds but was still carried by the firmness —I was going to say obduracy —of my noble and learned friend the Lord Chancellor. It seems to be a great pity that he has not shown more sensitivity to the weight of argument that has been put forward.

I wish to make one other point. The noble Lord, Lord Mishcon, endorsed the view —it was his justification of the lay element —that lawyers are incapable themselves of initiating reform. With his skill as an advocate, he endeavoured to quote my noble and learned friend Lord Hailsham in support. Now is not the time to go into that. However, I hope without embarrassing my noble and learned friends I can mention the revolutionary changes and improvements in the procedures of the Chancery Division which we owe to my noble and learned friend Lord Oliver and also my noble and learned friend the Master of the Rolls who made the Commercial Court a court of international resort, so efficient did he make it. Since becoming Master of the Rolls he has utterly transformed the state of business in that court.

There is also the Bar Council with the free representation unit. I confess that it is many years since I worked closely with the Law Society, as I did at one time; but at that time there was no lack of reforming zeal and reforming capacity. However, that is merely seeking to correct what seems to be an injustice in this debate. In the end it comes to this: listening to this debate, the argument has been so overwhelmingly on one side that one can only despair at the way in which this Bill is being dealt with.

10.15 p.m.

Lord Allen of Abbeydale

I have been reluctant to intervene. I have been listening more or less patiently to this very long discussion, in which I have heard some rather astonishing things. I do not accept for a moment that Clause 8 was torn to shreds the other evening. Some of the descriptions of the role of civil servants and their relationship to Ministers bears very little relation to my experience over quite a long period of years.

Though we have discussed the size of the advisory committee and its make-up as between legal and lay representatives, there is a strong body of opinion which is wholly in favour of the view which the noble and learned Lord has put for a majority on that body having regard to the role of the committee as set out in the Bill. Though it is very natural, having so many eloquent lawyers present this evening, to find that the views that have been expressed have on the whole been against the Government's proposals, I should not wish anyone to go away thinking that those views necessarily command wide support outside this Chamber.

I have an amendment which will be discussed later regarding the lay aspect of representation on the advisory committee relating to consumer affairs. The amendment is designed to go a little further than the provision in the Bill as at present drafted, which requires attention to be called to the need for consumer affairs to be represented. The justification for what I have been suggesting is the statement right at the beginning of the White Paper that the legal profession exists for the benefit of its clients. It seems important that the views of the clients should be well represented.

In order to save time I say straight away that I am not proposing to move my amendment but rather to rest on the undertaking which the noble and learned Lord gave an hour and a half ago that he will consider the various points raised on the suggested amendments as to the composition of the advisory committee. I am very content that the point which is implicit in the amendment which I have tabled should be taken care of in that review, This evening I shall be perfectly happy to leave the matter there.

Lord Ackner

I am sure that the Committee is anxious to make progress. In the course of this Bill I have grown used to finding myself cast in the shy, retiring and self-effacing role. Therefore, I feel it is appropriate for me to say that, having listened to my noble and learned friend the Lord Chancellor, I remain wholly unconvinced. As my amendment was designed to act as an appendage to the main group of amendments advanced by my noble and learned friend Lord Oliver, I propose to withdraw it at this stage, reserving the opportunity to bring it up again at the Report stage. The amendment refers to the stipendiary magistrate. I take this course in the confident hope that my noble and learned friend will adhere to what he has so eloquently said regarding his amendment.

Baroness Elles

With the leave of the Committee and the permission of my noble and learned friend, and following on the example of the noble Lord, Lord Allen of Abbeydale, perhaps it will be convenient if I speak now to Amendment No 117A. This amendment too refers to the composition of the advisory committee. If there is no objection I shall introduce it briefly, so that my noble and learned friend the Lord Chancellor may take into account this particular aspect of the composition of the committee.

I remind the Committee that on Tuesday of this week, 23rd January, there was a report in the Financial Times of a case before the Queen's Bench Division. There was a request for an order for security of costs. The court was not able to make the order because the rule of the Supreme Court was in contravention of Article 7 of the EC treaty. This is one example of the effect of Community law on national courts.

I should like to quote from a recent report on the application of European Community law. It says: The effectiveness of European Community law depends to a great extent on national courts. The application of EC law falls within the jurisdiction of national courts in all cases where the Community institution is not a party". The competence of national courts will be increased considerably in the coming years, particularly with the vast amount of legislative measures being introduced into national law in accordance with the 1992 programme. It would therefore seem reasonable that practising lawyers at whatever level should have some elementary knowledge of the principles, procedure and practice of European Community law.

My amendment proposes that at least one member of the advisory committee should have some expert knowledge and interest in this subject and that it should be included as a compulsory subject for any aspiring lawyer. With regard to the amendment itself, I put it to my noble and learned friend that it may possibly not be suitable for inclusion as one of the areas set out in subsection (5) of Clause 16 but could possibly be applied to one of the academics who would be appointed under subsection (4)(c). Perhaps I may leave it to my noble and learned friend to take this into account when deciding on the final composition of the advisory committee.

Lord Ackner

I thought that it was intended to deal with my Amendment No. 98. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Oliver of Aylmerton moved Amendment No. 99: Page 13, line 16, leave out ("14") and insert ("16").

The noble and learned Lord said: I have already spoken to this amendment. It is a paving amendment to lead the way for subsequent amendments. I beg to move.

10.22 p.m.

On Question, Whether the said amendment (No. 99) shall be agreed to?

Their Lordships divided: Contents, 31; Not-Contents, 42.

DIVISION NO. 2
CONTENTS
Ackner, L.	Murray of Epping Forest, L
Addington, L.	Oliver of Aylmerton, L. [Teller.]
Alexander of Weedon, L.
Beloff, L.	Onslow, E.
Byron, L.	Peyton of Yeovil, L.
Carlisle of Bucklow, L.	Rawlinson of Ewell, L.
Camock, L.	Rees, L.
Dilhorne, V.	Renton, L. [Teller.]
Donaldson of Lymington, L.	Rippon of Hexham, L.
Foot, L.	Russell, E.
Griffiths, L.	Seear, B.
Hailsham of Saint Marylebone, L.	Selkirk, E.
	Simon of Glaisdale, L.
Hutchinson of Lullington, L.	Templeman, L.
Lloyd of Kilgerran, L.	Wilberforce, L.
Meston, L.	Winterbottom, L.
Monson, L.

NOT-CONTENTS
Adrian, L.	Hooper, B.
Allen of Abbeydale, L.	Huntly, M.
Ampthill, L.	Joseph, L.
Arran, E.	Kinnoull, E.
Belstead, L.	Long, V.
Blatch, B.	Mackay of Clashfern, L.
Boardman, L.	Mishcon, L.
Brougham and Vaux, L.	Morris, L.
Carnegy of Lour, B.	Oxfuird, V.
Coleraine, L.	Ponsonby of Shulbrede, L.
Cowley, E.	Prys-Davies, L.
Davidson, V. [Teller.]	Reay, L.
Denham, L. [Teller.]	Romney, E.
Elles, B.	Shackleton, L.
Elton, L.	Strathmore and Kinghonne, E.
Ferrers, E.
Gisborough, L.	Taylor of Gryfe, L.
Glenarthur, L.	Thomas of Gwydir, L.
Gray, L.	Trefgarne, L.
Henderson of Brompton, L.	Trumpington, B.
Henley, L.	Ullswater, V.
Hives, L.

Resolved in the negative, and amendment disagreed to accordingly.

10.30 p.m.

Lord Simon of Glaisdale

I beg to move that the House do now resume.

The noble Lord the Leader of the House is here. If he indicates that he will accept the Motion I shall sit down. I shall do so pretty quickly, because I have moved the Motion to give him a chance to say how he envisages that matters should go. I hope that he will not say that a long time was taken on one amendment —the last one —because about eight amendments were discussed at the same time. They raised different issues and some were mentioned merely to indicate that they would not be moved. Having proposed the Motion, and having a chance no doubt to reply if necessary, I give way to the noble Lord the Leader of the House.

Moved, That the House do now resume. —(Lord Simon of Glaisdale.)

The Lord Privy Seal (Lord Belstead)

Perhaps I may just say a word in reply to the noble and learned Lord. I understand the concern that he has expressed. The Committee has laboured long and hard today and it has not been a day which has been easy for anyone in this country in view of the weather. We have got through a lot of business.

There is one important point that I should repeat which is left over from a day or so ago. Many Members are under the impression, whether they are here or have left, that we shall reach the end of Part II. It may or may not be possible to do that, but to cut off now would not be reasonable. Therefore, perhaps I may suggest —this is entirely for the Committee to decide —that we should go on at least for a bit longer to see how we get on and what progress we make. I know that there are a number of amendments to come which have already been spoken to. If the noble and learned Lord feels that the Leader of the House is being unreasonable, I shall be here on the Bench and ready to reply again.

Lord Ponsonby of Shulbrede

I believe that the noble Lord the Leader of the House was not quite right. The intention was to reach the end of Part II at the finish of business on Monday, and today to reach Clause 30, which ends the question of representation.

Lord Ackner

I should perhaps indicate that to reach the end of Clause 30, as will be seen, involves Schedule 4, which contains a wide variety of alterations. I am not prepared to concede a lack of vitality to anyone, but I am bound to say that the Law Lords begin a great deal earlier in the day. This week to prepare myself for the debates I was in at 7 a.m. on Monday; 7.30 a.m. on Tuesday; 8 a.m. on Wednesday and 7.15 a.m. today. The Bill is concerned with the administration of justice. If the Committee wants an input from the judges, some slight modification from the usual resilience might be shown.

Lord Belstead

Before the noble and learned Lord, Lord Simon of Glaisdale, decides what to do with the Motion, perhaps I may apologise to the noble Lord, Lord Ponsonby, who is correct: the target is to reach the end of Clause 30. Despite listening to the noble and learned Lord, Lord Ackner, I feel that we ought to go on a bit, see how we go and try to reach a target which noble Lords both inside and outside the House believe we would reach in order to start at a certain position on Monday.

Lord Simon of Glaisdale

I should certainly not wish the word "unreasonable" to be put into my mouth in relation to the noble Lord, the Leader of the House. I was going to ask him what he meant when he said the first time that we should "go on a little bit", and the second time "go on a bit". Will he give some indication as to what hour he thinks it reasonable to expect the Committee to continue to sit to in consideration of a Bill which is accepted in all quarters as of high constitutional and social importance?

Lord Belstead

Let me put it like this. I should have thought that a reasonable time at which to look again at how we were doing would be at about a quarter to midnight. Perhaps I may say to members of the Committee that I believe that the debate on the last amendment took just under an hour and three-quarters. It is for the Committee to decide how long it wishes to take on particular amendments. However, if we are to get anywhere near the kind of target which it was thought would be reasonable at the end of today, I should have thought that it would be not unreasonable to see where we were at about a quarter to midnight.

Lord Rawlinson of Ewell

The noble Lord the Leader of the House was not here when we debated this. About eight amendments were taken in the last debate and when I moved my amendment at 8 o'clock, I spoke to 11 amendments altogether. So we have not spent an hour on one amendment. The noble Lord the Chief Whip shakes his head, but I am trying to explain that we were dealing with a great number of amendments. Only one was called by the Lord Chairman, but we were discussing a great many of the amendments which we dealt with. Of course they took an hour, but it is a very difficult Bill. Only one was called by the noble Lord the Deputy Chairman. However great the huff and puff of the Front Bench, it is a difficult and complicated Bill, to which this Committee must pay a great deal of attention.

Lord Rippon of Hexham

One misunderstanding arose the other day as to the number of days allotted to the Committee stage. I had always understood that agreement had been reached on about six days, but now the indication is that it is five. I am bound to say that I think that that is totally unreasonable and that on a matter of this kind an agreement through the usual channels ought not necessarily to be regarded as in any way binding.

The Deputy Chairman of Committees (Lord Ampthill)

Does the noble and learned Lord, Lord Simon, wish to press his Motion or to withdraw it?

Lord Simon of Glaisdale

I think it ought to be withdrawn. I beg leave to withdraw the Motion.

Motion, by leave, withdrawn.

The Deputy Chairman of Committees

Does the noble and learned Lord, Lord Rawlinson, wish to move Amendment No. 100?

Lord Rawlinson of Ewell

The amendment was discussed with Amendment No. 96 and I do not press it.

[Amendment No. 100 not moved.]

Lord Oliver of Aylmerton had given notice of his intention to move Amendment No. 101: Page 13, line 17, at end insert ("with the concurrence of the Lord Chief Justice").

The noble and learned Lord said: I shall not move the amendment, but I reserve the liberty to reconsider the matter in the light of what was said.

[Amendments Nos. 101 to 108 not moved.]

Lord Mishcon had given notice of his intention to move Amendment No. 108A: Page 13, line 24, at end insert — ("( ) I shall be a practising legal executive appointed after consultation with the Institute of Legal Executives;")

The noble Lord said: I know that the noble Lord, Lord Hacking, spoke to Amendment No. 108A in regard to legal executives. I am sure:hat what he said has been noted by the noble and learned Lord the Lord Chancellor and I therefore propose not to move the amendment.

[Amendments Nos. 108A and 109 not moved.]

Lord Lloyd of Kilgerran moved Amendment No. 109A: Page 13, line 28, after ("appropriate") insert— ("( )—I shall be a practising patent agent appointed after consultation with the Chartered Institute of Patent Agents; and").

The noble Lord said: In moving this amendment, I wish to speak also to Amendments Nos. 112A, 113A and 212A. Amendment No. 109A attempts to add another member to the advisory committee, without affecting the position or the control of the other lay members. The amendment states that, a practising agent appointed after consultation with the Chartered Institute of Patent Agents should be appointed to the advisory committee. I apologise at this stage that these amendments were tabled rather late. I wish to emphasise the practical importance of this amendment in the public interest, having regard to the great number of technical advances and innovations now taking place. These technological advances have been so important that recently the noble and learned Lord the Lord Chancellor agreed to the appointment of a new patents court. Having regard to the rights of audience of the members of the Chartered Institute of Patent Agents to this new court, I wish to emphasise why it is so important to have a patent agent on the advisory committee.

However, I must say with great respect that I felt that the procedure over the past two hours was somewhat confused in the number of amendments that were spoken to on a somewhat ad hoc basis. I do not believe that the noble and learned Lord the Lord Chancellor gave an undertaking that he would consider all the amendments that dealt with proposed additions to the advisory committee. I am most anxious to help in shortening this debate, so if the noble and learned Lord were to say at this stage that, without hearing my reasons for the amendment, it would be convenient for him to consider whether or not the inclusion of a member of the Chartered Institute of Patent Agents on the advisory committee would be helpful, I shall gladly resume my seat and not go through the presentation which I had prepared. However, I do not believe the noble and learned Lord gave that undertaking, although a Member of the Committee said that he had.

The Lord Chancellor

I shall respond to that point before the noble Lord sits down, and therefore before the amendment is put. I said that I would consider these matters —I tried to show the framework in which I was seeking to operate—because there were a number of candidates involved. I should like to know why the noble Lord considers that a patent agent should be included on the advisory committee. He may find it convenient to make representations to me on another occasion, although he is perfectly entitled to do so here if he wishes. That is a matter entirely for him.

Lord Lloyd of Kilgerran

I am much obliged to the noble and learned Lord the Lord Chancellor. He said that I could make representations to him on another occasion before Report. It would save at least half an hour of the Committee's time if I accepted that undertaking. I beg leave to withdraw the amendment.

[Amendment No. 109A not moved.]

[Amendments Nos. 110 to 112A not moved.]

Lord Boardman moved Amendment No. 112B: Page 13, line 29, leave out ("8") and insert — ("2 shall be persons with experience in and knowledge of commercial affairs, appointed after consultation with such organisations representing industrial users of legal services as the Lord Chancellor considers appropriate; and (ee) 6").

The noble Lord said: With this amendment, and the others which are grouped with it, I wish to canvas the merits of candidates to appear on the advisory committee. I shall do so briefly because I think that the case will be well known to my noble and learned friend. It is to promote from the list of those who can be considered under the terms of Clause 16(5) those whose interests must be represented on the advisory committee under the earlier part of the clause. The amendment refers to two candidates who have: experience in and knowledge of commercial affairs". They are to be appointed after consultation by my noble and learned friend with bodies representing. industrial users of legal services", such as the CBI and the Association of British Chambers of Commerce. I am sure that my noble and learned friend will be well aware of the vast importance to industry and commerce of the efficient administration of justice. They are regular users of legal services.

There is one special consideration which I hope my noble and learned friend will bear in mind; that is the impact of 1992 on the legal system. The industrial and commercial worlds are more familiar than most with what is happening in courts overseas, in which they themselves are so often involved.

I am sure that my noble and learned friend will know how much those organisations now contribute and the extent of the legal and quasi-legal advice that they give to government from time to time. I am sure that they will make a valuable addition to the committee. I hope that he will feel able to appoint them in their own right instead of as an optional extra.

I am quite content to leave it to my noble and learned friend to take their case into consideration with that of the other candidates to which he will be referring. I shall not press the amendment if that is the line which he proposes to take. I beg to move.

10.45 p.m.

Lord Morris

Perhaps on the back of this amendment I may take up the invitation which my noble and learned friend the Lord Chancellor proffered to the noble Lord, Lord Lloyd of Kilgerran.

Without even a glance at me, the noble Lord, Lord Mishcon, did not move Amendment No. 108A, although I had added my name to it. I therefore had no opportunity to speak to it. Perhaps I may suggest to my noble and learned friend that I might make representations to him as to the merits of that case. I should be very happy so to do.

Lord Mishcon

I apologise to the noble Lord, Lord Morris. I did not see him in his seat. It was obviously my error. The noble Lord, Lord Hacking, asked me to deal with the amendment in his absence. I am sure the noble Lord acquits me of any discourtesy.

The Lord Chancellor

Certainly I shall be happy to receive the further enlightenment on the Institute of Legal Executives that my noble friend will provide.

So far as concerns the amendment of my noble friend Lord Boardman, I shall certainly have regard to what we can do in relation to those matters. I shall not be very keen to allocate places in the lay part of the committee to particular interests. However, I certainly want to have as wide a spectrum as possible in which to examine and consult, and to take account of these matters in that way.

Lord Hailsham of Saint Marylebone

I hope that in giving that undertaking my noble and learned friend will also bear in mind that that illustrates the point that I sought to make. There will be a lay majority on the committee, and a certain number of professionals are specified. Representation on the committee will have to cover crime, magistrates' courts, county courts and family courts, including the whole business of matrimonial jurisdiction. It will have to include personal injuries cases, which is the bread and butter of some of our divisions. It will have to include employers' liability. As the noble Lord, Lord Lloyd of Kilgerran, reminded us, it will have to include patent agents and copyright specialists. It will also have to include income tax specialists and numerous other persons whose names do not immediately arise. I can think at once of probate and admiralty cases, defamation and all the specialties which come before the courts. Where shall we be if they are all to serve on the committee which at this Committee stage is limited to 14 members in all plus a chairman?

The Lord Chancellor

In response to my noble and learned friend, in case there is any misunderstanding, I indicated at the outset that I would consider the proposals. I indicated the general considerations concerning the committee which I have in mind. I have no intention whatever of proposing a committee on which every possible sectional interest is represented. Otherwise it would be almost a Committee of the Whole House.

Lord Boardman

In view of the comments of my noble and learned friend Lord Hailsham, perhaps I may point out that industry and commerce are involved in all those matters that he listed with the exception of family courts and matrimonial matters, so they would be ideal candidates. In view of the comments of my noble and learned friend the Lord Chancellor, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 113 to 114ZA not moved.]

The Lord Chancellor moved Amendment No. 114A: Page 13, line 34, leave out ("(2)") and insert ("(4)").

The noble and learned Lord said: This amendment is simply intended to correct a printing error in the Bill in the reference to the subsection. I beg to move.

On Question, amendment agreed to.

[Amendments Nos. 115 to 117ZA not moved.]

Baroness Elles moved Amendment No. 1 17A: Page 13, line 43, leave out ("or").

The noble Baroness said: I have already spoken to Amendments Nos. 117A and 117B which stand in my name but I should like an assurance from my noble and learned friend the Lord Chancellor that he will take into account the proposal for the inclusion of Community law within the matters that should be represented on the advisory committee.

Lord Renton

Before my noble and learned friend replies perhaps I may add to what my noble friend Lady Elles has said. There is an increasing commitment on the part of both branches of the legal profession in this country to practise on the Continent of Europe. That will increase still further as the years go by. My noble friend has made an important point which I hope my noble and learned friend will consider sympathetically.

The Lord Chancellor

Yes, certainly.

Baroness Elles

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 117B not moved.]

Lord Mishcon moved Amendment No. 117C: Page 13, line 45, at end insert ("; or (h) the desirability of ensuring equality of appointments for women and people of different ethnic and national origins to enter the legal profession and to become judges and teachers of law").

The noble Lord said: I shall deal with the amendment very briefly. I am not sure whether the English of the amendment is entirely clear by virtue of the fact that it is governed by the preliminary words of subsection (5) which state: In appointing any member who falls within subsection (2)(d), the Lord Chancellor shall have regard to the desirability of appointing persons who have experience in, or knowledge of". It then goes on to deal with the question of desirability.

The purpose of the amendment is plain. I know that the noble and learned Lord and all Members of the Committee realise how important it is that in the entry into the profession, the training within the profession and the appointments within the profession the idea of equality of appointments for women and people of different ethnic and national origins is taken into account. If the noble and learned Lord agreed with the principle, I should ask the leave of the Committee to withdraw the amendment and put the matter into a proper form on Report unless the Government wanted to come forward with their own amendment.

Lord Hutchinson of Lullington

I strongly support the amendment. As the noble and learned Lord knows very well, for the last four years I have been a member of the committee which has been trying to improve the ethnic minorities' position in the criminal process. The result of that inquiry, which is still going on, has been to show the most remarkable lack of realisation and perception of the hidden and often unconscious racial prejudice and the lack of racial representation of ethnic minorities in all the agencies in the criminal process. It is a matter about which I know that the noble and learned Lord the Lord Chancellor is particularly concerned and in which he has shown a particular interest. I should like to support this amendment. In doing so, I hope that it will receive sympathetic attention.

The Lord Chancellor

I am very grateful to the noble Lord, Lord Hutchinson, for his remarks. I am extremely interested in trying as best as I can to promote these matters. I think it is also fair to say that the General Council of the Bar and the Law Society are concerned about other aspects of racial discrimination. I am considering whether anything can be done in relation to this Bill to deal with those problems.

While I am entirely sympathetic to the matter that the noble Lord wishes to advance —and it may go a little beyond the English —I am not certain whether the way in which it is being done here is necessarily the right way. I shall certainly consider whether something can be done about it, perhaps in relation to the terms of reference of the committee, or something of that kind.

However, the noble Lord may take it that I should like to do anything that I reasonably can to advance this cause. If he accepts that from me, he might feel able to withdraw the amendment, although from what I know about it so far I doubt whether that is quite the appropriate way to do it.

Lord Mishcon

It was not only a matter of trying to encourage this generally but I was looking at the membership of the advisory committee itself in order to see that that principle was carried through. Maybe the noble and learned Lord, in his great kindness, would write to me between this stage and Report. We can either agree then upon something to be put in the Bill or I can move my amendment at Report stage and have it considered.

In the circumstances —the noble and learned Lord has nodded and I wish to record that in Hansard—I ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 16, as amended, agreed to.

Clause 17 [Duties of the Advisory Committee]:

Lord Prys-Davis moved Amendment No. 117D: Page 14, line 23, at end insert ("and the maintenance of access to common standards of representation of litigants irrespective of means".

The noble Lord said: This amendment widens the duty of the advisory committee by requiring it to assist in maintaining equal access to justice. When this Bill is enacted we fear that many litigants, in particular those who are on low incomes, will turn not only to friends and relatives (which we very much support) but also to remunerated non-lawyers. I believe that to be one of the main aims of the Bill. I can recall the noble and learned Lord the Lord Chancellor praising lawyer-free litigation as a desirable end in itself.

As the Bill frees and opens up the market, I think that one should also accept that there is need to protect the vulnerable consumers, in particular those who will be seeking assistance from the second tier, if I may use that term, that is manned by the remunerated non-lawyers. That is why we say in this amendment that it should be a task of the advisory committee to ensure the maintenance of access to common standards of representation of litigants, irrespective of means.

We believe that that is a safeguard which should be built into the system from the outset and not arise at some point in the future, possibly after some years of abuse. I very much hope that this amendment can be accepted by the noble and learned Lord as being non-controversial. I beg to move.

The Lord Chancellor

While I perfectly understand the aim of the noble Lord, I do not think that I can accept this amendment. The committee and the framework created in this part of the Bill deal with the question of the structure of the profession and the services provided. It is not intended to deal with the level of remuneration, for example, that should be paid to professional advisers. The effect of the proposed amendment could lead the advisory committee into seeking to stipulate rigid standards to apply to all clients whatever their status, their means or the sums at stake. Wealthier clients would not, for example, be entitled to employ additional counsel in particularly important cases. The object of the Bill is to remove any unnecessary restrictions which inhibit the quality of service, and not to impose them. If the service is freed from any unnecessary restrictive practices, the result will be an increase in client choice. I have been accused in the past of seeking to subject the profession to undesirable influence from the Executive. But the amendment seems to suggest that the advisory committee should advise rigid controls which would probably be deleterious to an independent profession. I suggest that it would be best to let the advisory committee concentrate on legal education and conduct.

I am sure that both branches of the profession will desire to attain the best possible service for clients of differing financial circumstances. The Bar already makes provision for free representation, as has already been mentioned. I am sure that the Law Society will seek to do the same. However, such an arrangement is a matter for the profession in the light of its general structure.

11 p.m.

Lord Prys-Davies

I thank the noble and learned Lord for his response. We must consider in particular whether his reassuring words address the mischief which those who instruct us believe should be met by the wording of the amendment. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 17 agreed to.

Lord Prys-Davies moved Amendment No. 117E: After Clause 17, insert the following new Clause:

("Regional Legal Services Committees.

.—(1) The Lord Chancellor shall establish committees to be known as Regional Legal Services Committees to promote the development of legal and advice services in such areas of England and Wales as he considers appropriate.

(2) Regional Legal Services Committees shall consist of local representatives of consumers and providers of legal and advice services, and others interested in the work of the committees.

(3) Regional Legal Services Committees shall inform professional bodies, Government and others of the needs and wishes of consumers of legal and advice services, and shall consider and promote —

1. (i) innovative ways of providng legal and advice services;
2. (ii) improvements in the education, training and conduct of those offering legal and advice services;
3. (iii) improvements in the way courts meet the needs of litigants in their area.

(4) In addition to their other activities, Regional Legal Services Committees may undertake research and conduct pilot schemes at the request of the Advisory Committee or the Lord Chancellor.

(5) The Lord Chancellor shall provide funds to Regional Legal Services Committees to enable them to perform their duties.".

The noble Lord said: If one is concerned to improve access to legal services and develop new ways of providing such services, there is the need to evolve ways in which the consumers of legal services in different localities can represent their needs and views to the providers of such services.

That has been done by the north-western regional legal services committee. It is a group of lawyers, advice centre workers, academics, court staff, police and probation officers, voluntary organisations and others who are committed to improving legal services. The committee initiated the successful accident leaflet scheme which informed people about their right to claim compensation after an accident. The committee also encouraged people to see a solicitor. Solicitors were offering a free interview. I understand that the scheme has now been taken up by the Law Society and is being promoted throughout the country.

My attention has been drawn to the fact that the Government's Green Paper criticised the Law Society for not "adequately underlining the importance" of written professional standards. Again, the north-western regional committee has taken the lead in that area. It has produced leaflets informing clients of what they have a right to expect from their solicitors. It also encourages centres to refer only to those solicitors who abide by the recommended standards. I understand that the Law Society is considering using the leaflet. I could elaborate on other helpful projects which are undertaken by the committee.

The north-western regional committee survives on a grant of approximately £50,000. It covers a full-time secretary and travelling and administrative expenses. Currently the grant is paid by the Legal Aid Committee. But that committee is considering withdrawing the grant. A similar committee has been established in the North-East, but has yet to find the necessary funding. That is also the position in South Wales where a steering committee has been set up but it cannot make progress because it is without funds.

I think it is generally accepted that the regional legal services committees are a cost-effective way of achieving the objectives of Part I and Part II of the Bill. The object of this particular amendment is to call on the Lord Chancellor to establish a number of such committees, representative of consumers and providers of legal services, in different parts of England and Wales.

It should also be said that the advisory committee that we have been discussing could benefit greatly from the advice it would receive from such a committee because it would not be advice in the abstract but advice based on realistic, practical experience of consumers who are very much on the receiving end of legal services. I believe that this amendment introduces a simple but important improvement that should be built into any system of reform introduced by the Bill. I beg to move.

The Lord Chancellor

We discussed regional legal services committees at the Committee stage of the Legal Aid Act 1988. I said then that the Legal Aid Board already had power under the Legal Aid Act to establish and fund regional committees, should it be found desirable to do so. The Legal Aid Board has already given some consideration lo the role of legal services committees, but needs snore time to develop its own relationship with the providers of legal services. It would not be sensible to pre-empt this work.

Moreover, the effect might be to establish two —or perhaps three—levels of responsibility for legal services. The Lord Chancellor has a ministerial responsibility in this connection. Section 4(1) of the Legal Aid Act gives the board the general function of securing that advice, assistance and representation are available in accordance with this Act. This amendment would require regional legal services committees to: promote the development of legal and advice services. That would have two thoroughly difficult consequences. First, responsibility for legal services would be apt to be somewhat of a muddle. The additional obligation on regional committees introduced by this amendment would seem to be an unnecessary fifth wheel. The second undesirable consequence of this amendment is that it would make these committees responsible for promoting legal and advice services. This would seem to mean all advice services, including generalist advice services such as citizens advice bureaux. This would go far beyond the remit of this Bill and beyond my responsibilities.

In any event, the Legal Aid Board is, even now, looking at the provision of legal advice arid assistance under the Green Form Scheme with a view to enhancing existing standards. I expect them to report to me with their proposals early in 1992. In the meantime it would be wasteful of resources to establish any body with responsibility for advice services while that work is going on. I believe that the Legal Aid Board is pursuing this with a good deal of vigour.

Lord Mishcon

When the noble and learned Lord refers to the good work of these services committees and says that a body is pursuing this with vigour, I refer him to the record of the debate to which he referred. It was on 14th January 1988, which is now over two years ago. When my noble and learned and much lamented friend Lord Elwyn-Jones moved an amendment for this to be dealt with under the Legal Aid Act, the noble and learned Lord the Lord Chancellor, on 14th January 1988, said: I have already explained that power to do what is suggested in this amendment is available to the board subject to the approval of the Lord Chancellor. I also sought to explain that it is a matter of seeing what is required in the view of the board when the board is set up".—[Official Report, 14/1/88/; col. 1438.] One assumed from that —I think justifiably —that something was to be done, if not in 1988 then in 1989; and if not in 1989 then it would be done by the beginning of 1990. I am sure the noble and learned Lord, who does not like delays, will have some opportunity, as a result of what is said now, of expediting these proceedings.

Perhaps I may say something in a lighter vein. I notice that at col. 1438 my late noble and learned friend Lord Elwyn-Jones replied to those observations in the following way: I confess that I was not giving my undivided attention to the earlier consideration of this matter. I therefore may have let something very important pass by in the odd moments when one is allowed relaxation. I shall bring no tears to anyone's eyes but I have sat in this Chamber since three o'clock in the afternoon". My noble and learned friend said that at one minute before 10 o'clock.

In view of what I have said —and reminding him of his observations of over two years ago —will the noble and learned Lord undertake to see that this matter of consideration by the Legal Aid Board is expedited so far as is possible. From what he said in 1988 it is clear that in his own mind he thought that something would be done along those lines, or recommendation made, well before now. If he could give such an undertaking I would willingly ask leave to withdraw the amendment.

The Lord Chancellor

I had in mind in that debate that it was a matter for the Legal Aid Board, but of course it could not do anything until it was set up. The primary function that it has had since it was set up is to try to improve the administration of the existing scheme so as to get applications for legal aid certificates dealt with quickly. I believe that the board is looking at these matters with as much expedition as possible.

I certainly undertake to look at the matter to see how the board is getting on. I know that its members are working hard and, I believe, with a certain amount of success already. I know they are concerned that the provisions of the Legal Aid Act should be as effective as possible. Perhaps with that comfort the noble Lord will feel able to withdraw the amendment.

Lord Mishcon

It is indeed a grain of comfort and, at this stage, I ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 118 to 120 not moved.]

11.15 p.m.

Lord Renton moved Amendment No. 120A: Page 64, line 42, leave out sub-paragraph (4).

The noble Lord said: In the absence of the noble and learned Lord, Lord Simon of Glaisdale, who not surprisingly finds, again, that he suffers from the lateness of the hour, I beg to move Amendment No. 120A which stands in his name and mine. I suggest that we take with it Amendments Nos. 120B to 120F. I go even further, in the hope of saving the time of the Committee, and suggest that we also refer to Amendments Nos. 139ZC to 139ZF, amending Schedule 3, which deal with the same point to which I referred rather late on Tuesday night. I make no apology for the fact that we are bringing up this matter again. The Committee will see that in the amendments I shall move that the consent of the Treasury is required on no fewer than nine occasions with regard to relatively minor details in the Bill. These are matters which are within the responsibility of my noble and learned friend the Lord Chancellor but in relation to each of them the references noted on the Marshalled List state that he is required to obtain the approval of the Treasury or sometimes its consent.

When different words are used in the same statute there is a rule of interpretation by the courts that they are said to have different meanings. If the word "approval" has a different meaning and effect to the word "consent", I believe that we should be told what it is; otherwise our legislation is sloppy. I refer to the particular occasions when the consent of the Treasury is required in Schedules 1 and 3. Schedule 1 at paragraph 7(1)(b) on page 64 of the Bill refers to the payment to members of the advisory committee and those who are co-opted of, such remuneration, and such travelling and other allowances, as may be determined by the Lord Chancellor".

In subparagraph (4) we find that, The approval of the Treasury shall be required for the making of a determination", by him. Under the heading "Staff" and paragraph 8(1) of Schedule 1: The Advisory Committee may, with the approval of the Lord Chancellor as to terms and conditions of service, appoint such staff as it may determine". This time the consent of the Treasury is required at subparagraph (5) on page 65. In paragraph 9(1) under the heading "Accounts and audit" we find that, The Advisory Committee shall keep accounts and shall prepare a statement of accounts". In subparagraph (2): The accounts shall be kept, and the statement shall be prepared, in such form as the Lord Chancellor may … direct", but again with the approval of the Treasury. So it goes on and I am not going to weary the Committee with the details of all the occasions.

I raised this matter on Tuesday evening and it appears at col. 1042 of the Official Report. My noble and learned friend told the Committee, There are some things which the Lord Chancellor is prepared to help with and some which he would rather leave to others". With respect to the noble and learned Lord, it appears from the parts of the schedule that I have read out that he is not leaving these matters to the Treasury. He has to make his own determination and he has to draw up his own form of accounts. After doing that he has to obtain the approval of the Treasury.

On Tuesday evening I suggested that it was rather extraordinary for a great officer of state such as the Lord Chancellor to have to obtain the approval of what appears to be minor officials of the Treasury. It is not the approval of the Chancellor of the Exchequer that is sought but of the Treasury. My noble and learned friend explained to me: The normal procedure is that an order made under a clause such as this would be signed by the Lord Chancellor and a certificate would be signed by two Lords Commissioners of the Treasury as concurring". We all know that two Lords Commissioners of the Treasury would be not very senior Government Whips and they would know little or nothing about what the Lord Chancellor had in mind. It would be a kind of formality and a piece of mumbo-jumbo. Yet Parliament is asked to write this matter of administration within the Government into the statute so that it becomes part of the statute law of the land.

My noble and learned friend Lord Simon of Glaisdale and I, sometimes with the support of others with great experience in politics, have pointed out that this is a misuse of primary legislation. It has gone on for years. It seems to us to be nonsensical. It is time to stop it. I hope that the present Chancellor of the Exchequer, for whom I have a very special admiration and respect because he took over my old constituency 11 years ago, will have the wisdom and the practical sense to stop it and that he will be assisted in making the change by my noble and learned friend the Lord Chancellor. I move this amendment in the hope —I hope that it is not a despairing hope —that we shall stop legislating in ways which merely concern the somewhat formal internal administration of the Government. I beg to move.

The Lord Chancellor

Provisions allowing payment of fees and allowances to be paid out of money provided by Parliament normally require the rates to be set with the consent of the Treasury. It is important that a consistent approach is maintained so that particular fees and allowances do not fall out of step and create pressure for increases elsewhere. The Treasury is responsible to Parliament for the proper administration of moneys voted by Parliament not only in respect of the total amount but in respect also of the ways in which they are disbursed. This reflects the proper care which the Government should have in dealing with what is, after all, the taxpayers' money.

The opening sentence of my previous response was intended as a reply to the concluding words of my noble friend Lord Renton asking that I should do something. It was not really directed to the substance of the amendment.

This is the standard practice. As my noble friend said, it has been going on for a considerable time. I have a note of a similar Motion being made in 1960, so there is a fairly long history to this. That is my understanding of the position and I regret that I cannot accept the amendment.

Lord Renton

When my noble and learned friend refers to having a consistent approach, would he agree that it is a consistent approach within the Government where there is Cabinet responsibility? Is he saying that that consistency cannot be achieved without asking Parliament to write this into the statute? Will he also answer my question, which is a quite serious drafting question? What is the difference between "consent" and "approval"?

The Lord Chancellor

On my noble friend's second point, the question concerns the most appropriate word in the context. The essence is consent. Sometimes the appropriate way to express it is by using the word "approval". Sometimes it is "consent" and sometimes it is "concurrence". It depends on the nature of the context. These phrases are included in recognition of the Treasury's responsibility to Parliament for that aspect of the subject matter.

Lord Renton

We have dealt with this matter only briefly at this late hour. I shall go on trying to get some sense in this matter and in relation to other matters written into statute which are part of the internal administration of government. Having said that, and having made the point again briefly tonight, I beg leave to withdraw the amendment on the understanding that I shall come back to it time and time again.

Amendment, by leave, withdrawn.

[Amendments Nos. 120B to 120D not moved.]

Lord Mishcon moved Amendment No. 120E: Page 66, line 18, at end insert— ("(1A) Such grants shall include money for the commissioning of research.").

The noble Lord said: In moving this amendment I shall, with the leave of the Committee, speak also to Amendment No. 121 B which it will be seen gives power to the advisory committee—noble Lords may think a very necessary power—to fund research so that it may carry out its voluminous and very responsible duties under this paragraph. The members of the advisory committee should obviously have such a power and the provision contained in Amendment No. 120E gives them the money, such grants coming from the noble and learned Lord the Lord Chancellor with the approval of the Treasury, for the commissioning of research".

I beg to move.

The Lord Chancellor

I have a good deal of sympathy with the intention of this amendment but I doubt whether it is a matter which should be dealt with in the Bill. My intention is that the advisory committee should be enabled to conduct a modest programme of research. Paragraph 2 of Schedule 1 gives the committee power to regulate its own procedure, and I think that decisions on whether part of the grant-in-aid should be used for research in any particular year are matters for the committee itself to decide in the light of the matters which are remitted to it for consideration.

There is a great deal of information about legal services already in the public domain. It will be very important for the advisory committee to decide whether it is able or wishes to use that quarry or whether original work, with its attendant delays, is required in deciding how to plan its work. In the light of that indication, I hope that the noble Lord will feel able to withdraw the amendment.

Lord Mishcon

I hope that I shall be able to maintain my patience throughout these long proceedings. But I say with all due respect to the Committee and to the noble and learned Lord, when the advisory committee has to undertake a job of this nature and tender advice to which regard must be paid by the professional bodies, it will look at the powers which it has been given. Under the schedule the members of such a committee are not given powers to commission research; they are not given the funds to pay for it; and they are not given the means to pay for the expenses connected therewith.

The noble and learned Lord said that the committee will be able to carry out research because such provision is contained elsewhere in the Bill. Such words merely say, if I may paraphrase them, that the members of the committee must carry out the work and they must do so in accordance with their duties as set out under the schedule.

I ask the noble and learned Lord, if a provision makes a matter transparently clear, instead of one having to search in order to find precisely a place in the Bill where the power may exist, is it not sensible to put it in the Bill? It does no harm; it only makes the matter clear. I do not know why the noble and learned Lord obstructs the inclusion of such words merely on the basis that the power could be inferred from something else. Quite honestly, that may lead to further argument at a later stage.

I ask the noble and learned Lord at least to say that he will consider whether what is proposed should be accepted. It could be included as a specific provision in the Bill and a specific grant could be given to the advisory committee in this respect. If he utters those honeyed words —as they will be to me at this late hour —I shall then ask him and the Committee for leave to withdraw the amendment. However, if he tells me that what I consider to be a very necessary amendment will not be included in the Bill, although he agrees that the committee should be able to carry out research, he will put me in a difficult position. Of course I know that that is the last thing in the world he would want to do.

The Lord Chancellor

I think that I shall have to leave the noble Lord in such a difficulty at least for the present time.

Lord Mishcon

That is a harsh reply and completely untypical of the noble and learned Lord. We must all be affected by the lateness of the hour. I say that because I know that if I had pleaded with him in these terms at an earlier hour he would have granted my request. However, on Report we may find that the noble and learned Lord will be in a more amenable mood. In those circumstances, I beg leave to withdraw the amendment at this stage but I shall return to the issue at the Report stage.

Amendment, by leave, withdrawn.

[Amendment No. 12F not moved.]

Schedule 1 agreed to.

Schedule 2 [Specific Functions of the Advisory Committee.]:

11.30 p.m.

Lord Mishcon moved Amendment No. 120G: Page 67, line 4, at end insert ("including disadvantaged members of the public.").

The noble Lord said: I shall move the amendment with the same brevity as I did the previous one. The Committee will see at the top of page 67 of the schedule that the advisory committee is to give certain advice with regard to the needs of legal practice and the efficient delivery of legal services to the public.

It will be an important part of the committee's work to see that those services and that advice is available to disadvantaged members of the public. So that that requirement is brought to the attention of everyone, including the advisory committee, the amendment seeks to add those words to the schedule. I beg to move.

The Lord Chancellor

I am happy to consider further how this matter should be dealt with. The "public" of course includes all those who are disadvantaged. The general includes the particular. I can see a possible advantage in having a specific reference to that group of people. If the noble Lord will allow me, I should like to consider the matter further.

Lord Mishcon

I gladly observe a change of tone and mood. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Rawlinson of Ewell had given notice of his intention to move Amendment No. 121: Page 67, line 36, leave out ("the Law Society and other authorised bodies").

The noble and learned Lord said: This is the first of a series of amendments to the schedule which are consistent with the opinions that I have expressed during the course of the debates on the Bill. The amendment follows my belief that the right of audience should be limited to those who are barristers. It is to that end that I tabled the amendment and Amendments Nos. 122 to 131 and 132 to 135.

The noble Lord the Leader of the House is at this moment entering the Chamber. We had an altercation about an hour and a half ago about the time spent on debating one amendment. We had in fact debated a dozen or more. That is what we shall be doing with the present amendment. We did not spend all that time debating one amendment; we were dealing with a series. I hope that he will understand that. He is a man of great moderation and understanding.

I am not happy to move amendments at this time in a Chamber of this size. Does the noble Lord believe that it is consonant with the importance of the Bill that we should discuss serious matters at so late an hour? The noble and learned Lord the Lord Chancellor has been sitting on that Bench —most of us have been on these Benches likewise —speaking to amendments since something like three o'clock. It was apparent a short time ago that the pressure of that duty was beginning to affect even so resilient a person and so able a debater as the noble and learned Lord.

Parliament is not being served if we continue with these debates this evening. In moving the first of the amendments I shall be dealing with a point that goes to the very heart of the matter. It is a long trail that I am blazing. I am aware that it is so and I do not expect it to be successful.

However, I am continually reminded by my noble and learned friend Lord Ackner, that every man is a debtor to his profession and I was not going to see this Bill passed without having my say and keeping up my opposition to the bitter end. Those are the principles in which I believe.

The proposal is that only the General Council of the Bar, rather than the Law Society and other authorised bodies, should have control over the rights, duties, learning, teaching and the conduct of the advocacy. That is not because someone like the noble Lord, Lord Mishcon, could not easily and properly be Lord Chancellor. It is not because I think the noble Lord, Lord Goodman —who, understandably at this late hour, has left the Chamber —could not be Lord Chancellor. That is not the point. The point is that there should be one body controlling with one discipline the rights and duties of the advocate.

This is a series of amendments. I do not think it compatible with the dignity of the House that we should enter into these discussions at this time. I should have hoped that the Leader of the House would allow us to go away and come back on Monday. I shall return to the amendments at another stage of the Bill and, in accordance with that intention, I shall not move Amendments Nos. 121, 122 to 131 and 132 to 135. I give the assurance that I shall bring them back at another time when there are more Members present to consider the argument. I shall not move the amendments.

Lord Renton

Before my noble and learned friend sits down, in the presence of the Leader of the House I wish to say that by sitting at this late hour we are merely piling up business for the Report stage. If we sat in Committee at a more reasonable hour and had perhaps one more day, we would not pile up so much more for the Report stage, which will now last that much longer.

[Amendment No. 121 not moved.]

Lord Mishcon moved Amendment No. 121 A: Page 67, line 43, leave out ("to the extent that it applies in relation to matters connected with advocacy or the conduct of litigation.").

The noble Lord said: The Committee will observe that, in Schedule 2, paragraph 5(4), at the bottom of page 67, it is provided that any body to which a recommendation of the advisory committee is addressed or which is given advice by the advisory committee is to have regard to it. Then these limiting words occur: to the extent that it applies in relation to matters connected with advocacy or the conduct of litigation". In other words, as regards anything else that the committee usefully has to say, it looks as though the bodies which are being advised need have no regard to it at all. Why these limiting words occur I know not. That is why I hope that the amendment is usefully moved. I beg to move.

The Lord Chancellor

The committee has a general advisory function, but in relation to advocacy and litigation it has a particular and more central function. That role would be weakened if its advice on advocacy and litigation matters carried no more weight than that on other legal services issues. The Government remain committed to the principle that in the first instance the maintenance of standards in legal services is a matter for the professional bodies themselves. The general objective in this part of the Bill of developing legal services gives the advisory committee a role to play. But that role has been carefully drawn so as not to impinge unduly on the independence of the professions. I consider that the correct balance between complete professional independence and the right of the users of legal services to have their voice heard in advice through the medium of the committee is struck with the present requirement that the professional bodies should be under an obligation to have regard to the committee's advice only to the extent that it relates to advocacy or litigation, because that is the statutory matter that is central to its role. It is for that reason that this limitation is included, and that I do not feel able to accept the amendment. I hope that in the light of that explanation the noble Lord may feel able to withdraw it.

Lord Boardman

I share the concern addressed by the noble Lord, Lord Mishcon. It appears that we have two kinds of advice, some one has regard to and some one does not have regard to. I am not sure that I have followed the explanation of ray noble and learned friend.

Lord Mishcon

The matter is even worse than that, if I may say so, because the inference is that if the advisory body seeks to give advice or make a recommendation to one of the bodies which does not come within the description of advocacy or the conduct of litigation, the statute states one should not have regard to it. It is almost mandatory not to take any notice of it at all and to throw it into what I believe was wittily called by a Member of the Committee opposite a furniture receptacle: namely, a waste paper basket. That inference seems rather extraordinary, but if the noble and learned Lord persists in his view that he does not even wish to consider the matter, I shall obviously have to sit down.

Lord Ackner

It is no doubt the effect of the approach of the witching hour that I find myself drawn to support my noble and learned friend the Lord Chancellor. It seems to me that the advisory committee has an excess of diet. It will suffer from indigestion, but for heaven's sake do not let it be worse unless it is fatal. If it is likely to be fatal, I would support the amendment.

Lord Mishcon

With such help I believe the noble and learned Lord could do without, if the Committee will forgive the English of that expression. As I said before, I wonder whether in view of the exclusion, which presumably every professional body will have to have to any advice given upon any other matter, the noble and learned Lord might consider that the provision is a little odd and that the wording might be rather different. However, if he persists in his view, I shall have to take a certain course. I hope he will make an observation on what I have just said.

The Lord Chancellor

I have explained the position as I see it. It is something worth waiting for to have my noble and learned friend on my side. That is extremely pleasant. I have sought to explain the matter, but the real point is to deal particularly with advocacy and the conduct of litigation. That does not imply that we do not have regard to that in other circumstances; it just means that there is no particular statutory obligation to have regard to it.

Lord Mishcon

In view of the hour, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 121E to 131 not moved.]

The Deputy Chairman of Committees (The Viscount of Oxfuird)

I must advise that if Amendment No. 131A is agreed to, the Committee cannot speak to Amendment No. 132 due to pre-emption. I now call Amendment No. 131A.

11.45 p.m.

Lord Renton moved Amendment No. 131A: Page 68, line 26, leave out sub-paragraph (6).

The noble Lord said: Rather to my surprise the amendment seeks to leave out sub-paragraph (6) whereas I thought I had tabled the amendment in such a way as to leave out paragraph 6 of Schedule 2 which occupies most of page 68.

This is a probing amendment anyway, and whether the peg on which I hang my remarks is sub-paragraph (6) or paragraph 6 makes little difference. The point is this that here —this is the only point in the Bill at which it occurs —we come to the matter of specialisation schemes. At Second Reading, in relation to the reference in the Green Paper to specialisation, I threw some doubt on whether or not specialisation could be overdone. The noble Lord, Lord Goodman, with his great experience as a solicitor, agreed with me.

We have a rather strange position regarding the scheme set out on page 68. The advisory committee will be given power: to consider whether specialisation schemes should be established by any representative body in any particular area of legal services; and to keep under review specialisation schemes maintained by representative bodies". In the next sub-paragraph we find "a specialisation scheme". It is: a scheme for recognising those members of the body who —

1. (a) have undergone training relevant to the area of legal services to which the scheme relates;
2. (b) have acquired expertise in that area; and
3. (c) specialise in providing legal services in that area".

We find, and the next subparagraphs lead up to it, that all that the advisory committee can do is to make a suggestion to the representative body. For all practical purposes we are talking about the Law Society and the Bar Council.

There are well-recognised and laudable forms of specialisation, especially at the Bar and to a lesser extent among solicitors. Indeed, the divisions of the High Court reflect those degrees of specialisation. However, it would not be in the public interest or the interests of justice for over-specialisation to become the rule. Indeed we should not be able to find High Court judges, or I dare to say even suitably qualified Lord Chancellors, if nearly all members of the Bar were to specialise.

I know that at the Scottish Bar there is not very much specialisation. They are splendid people who have to take whatever comes within the law. I remember that my noble and learned friend Lord Hailsham and I, who practised in the same chambers, never specialised. We took what came. I am sure that that is true of many members of the Bar. I say that without any discredit to those who do specialise.

The point that arises under the scheme in the Bill is this. When the representative body is given the advice by the advisory committee under subsection (6) what is it to do? There obviously cannot be anything akin to direction of labour. It must obviously be something that will be done voluntarily. Then there is the question of any cost that would be required if it was found that people were not prepared to do it voluntarily but had to be persuaded to carry on a particular specialisation. They might not do it unless the cost of setting up chambers, or something of that kind, were offered to them.

I am puzzled as to how the scheme will work out in practice. I should have thought that it might be better not to have a scheme of this kind but to leave the matter to the law of supply and demand, or, in the modern jargon, to the market. Be that as it may, I should be so grateful if my noble and learned friend would say what he really has in mind and what he thinks the representative bodies would do when the advisory committee has recommended that some form of specialisation should be initiated in a particular part of the country. I beg to move.

Lord Rawlinson of Ewell

I had assumed that my noble friend intended to leave out the whole of paragraph 6 because it did not seem sensible to me that he should leave out only sub-paragraph (6), but he has explained that that is what he intended.

I considered the specialised schemes in paragraph 6 to be the duty of the advisory committee with its majority of lay members who would examine some of the most complicated and difficult specialisations of the law. As I understand it, they will decide whether it will be established. They will decide whether to keep the various schemes under review. They will give the Bar Council or the Law Society advice on those schemes. They therefore require an expertise which they will clearly not have. There will be a judge. As I understand it, numbers will be increased by perhaps having another judge but those majority of laymen, who are totally ignorant of the law, will examine specialisation schemes and then give advice to the Bar Council and the Law Society; in other words to people who have spent their lives in the practice of the law.

This is just another example of the impractical nature of the scheme. It is living in Cloud-cuckoo-land for that wretched committee with its laymen to look at such matters as specialisation schemes. I do not see how it can conceivably work. I see what my noble friend has in mind, but it will not work.

Lord Donaldson of Lymington

It is for my noble and learned friend the Lord Chancellor to deal with that point, but perhaps I may make a small contribution from the point of view of the solicitors' profession, subject of course to correction by the noble Lord, Lord Mishcon.

I am aware that thought has been given in the solicitors' profession to setting up specialist panels and possibly backing them with conditions on the practising certificates. Members of the Bar may think of specialisation in wholly different terms from those thought of by the solicitors' profession. It has caused a good deal of concern to me and the Law Society in the field of personal injuries, which a barrister would regard as being the most generalised practice. However, it is vital that the solicitors who handle such cases know a good deal about how one handles personal injury claims. From the point of view of someone who is preparing litigation that is a speciality.

We in the courts certainly find that delays are caused by solicitors who meet personal injury claims fairly infrequently. In the large centres where there are industrial premises, solicitors will of course become familiar with them, but that is not so outside. Only the other day I met a lady solicitor who was trying to cope with a personal injuries case in the Court of Appeal. The case was reduced to farce because she said that she had no idea how to handle it. Of course, the situation was coped with, but it was brought home to me that here is quite a different case for specialisation in the solicitors' profession from that at the Bar. Perhaps the measure has something to do with that.

The Lord Chancellor

I am not in favour of over-specialisation, but I am in favour of consideration being given to specialisation in certain areas. One of the functions of the advisory committee, and particularly of those members who are familiar with requiring legal services, is to advise on that kind of question. For example, in what kind of areas should people exhibit specialisations? Personal injuries is a good example. One of the points that comes to my notice as Lord Chancellor concerns letters from Members of Parliament complaining about a delay in handling a case for a client who is a constituent. Quite often the delay is due to the client having gone originally to someone who was not familiar with the area of law in which the claim arose. That perhaps is primarily a matter that arises in a solicitor's practice.

So far as concerns the Bar, I personally believe that there is a great deal to be said for encouraging specialisation in places other than London. For example, advice on that kind of matter and a consideration of the machinery under which it might be promoted would come under this general power. I believe that directing attention to the possibilities of specialisation is an important point and it is right to include it as one aspect of the committee's work.

I expect the lay people on the committee to be people who will know what sort of legal services are required and then the other part of the committee will be helpful in seeing how the services that are being provided are tailored to meet that situation. I believe that to be valuable and something which will be an appropriate development of our legal practice.

Lord Renton

In what my noble and learned friend said the operative word is "tailored". When the advisory committee has pointed out to the Bar Council or to the Law Society that the people, say, in Norfolk will lack certain specialisations, what is it expected that the Bar Council or Law Society will do about it? Will they merely draw attention to this, give publicity to it and hope that somebody will then go to Norfolk or that some of the people in Norfolk will start up the specialisation? If so, it may be useful advice which might be acted upon. But if the word "tailored" is to have effect, it would seem to indicate that maybe some kind of financial help in establishing chambers or, in the case of solicitors, in taking on staff to help to pursue the speciality would be needed.

If it is mere exhortation, let us be absolutely plain and let us understand —let everybody, the public and the consumers understand —that it is mere exhortation. Well and good. Exhortation can be of value sometimes. But we need to know if that is all that my noble and learned friend has in mind when he uses the word "tailored".

The Lord Chancellor

I suppose that I could have used some other word but what I have in mind is advice to the professional bodies in relation to particular specialisations, the need for them, the way in which they should be recognised, what particular aspects the service should have, and so on —a fairly general remit —and it is advice on these matters to the professional bodies that is in question.

Lord Renton

I ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 132 to 135 not moved.]

Schedule 2 agreed to.

Clause 18 [The Legal Services Ombudsman]:

Lord Coleraine had given notice of his intention to move Amendment No. 135AZA: Page 14, line 29, leave out ("the Legal Services Ombudsman") and insert ("the Commissioner for the Legal Services Professions").

The noble Lord said: We now come to the five clauses of the Bill which deal with the legal services ombudsman. I express my personal regret that these very important matters are being dealt with at this time of night, especially as I see that the noble Lord, Lord Allen of Abbeydale, who has an amendment of some interest tabled in his name and who speaks for consumers on matters which concern consumers, is not in his place. I believe it to be the wish of the Committee that I do not move the first amendment standing in my name but take it away and bring it back on Report when it can be discussed at greater length with a fuller Chamber.

[Amendment No. 135AZA not moved.]

Clause 18 agreed to.

Clause 19 [Ombudsman's functions]:

[Amendment No. 134ZA not moved.]

12 midnight

Lord Mishcon moved Amendment No. 135ZB: Page 15, line 3, after ("body") insert ("or was such a member at the time to which the complaint relates").

The noble Lord said: I can put the matter shortly. At present the Bill provides that the function of the ombudsman shall relate to: an authorised advocate, authorised litigator, licensed conveyancer, recognised body or notary who is a member of that professional body". That would mean that somebody who had tactfully resigned knowing that the complaint was coming forward would not be a member at the time of the complaint. Therefore, the ombudsman would have no jurisdiction. In order to cover that lacuna we suggest the insertion of the words in the amendment: or was such a member at the time to which the complaint relates".

I beg to move.

The Lord Chancellor

I have much sympathy with the sentiment behind the amendment, although I recognise that in practice it may be difficult for the ombudsman to pursue such cases or to achieve a result of real benefit to the client. If the noble Lord agrees to withdraw the amendment I shall consider whether we can do something effective about the matter.

Lord Mishcon

I add an observation only to assist the noble and learned Lord. There are many professional bodies which include those words deliberately so that they can discipline a member for a professional offence committed during his membership. However, the complaint may be dealt with only after the member has resigned from that professional body. Usually, the provision is included in order not to rob the ombudsman —and much worse the complainant before him —of his rights to look into a matter.

Where a complaint properly arises, I do not believe that the noble and learned Lord would want it to fail merely because there had been a resignation and the ombudsman no longer had the powers. I had anticipated that the noble and learned Lord would immediately accept the amendment. However, he has said that he will consider it and I hope that the word "favourably" will be introduced. Again, the noble and learned Lord nods his head and, therefore, I beg leave to withdraw the amendment.

Lord Donaldson of Lymington

In reconsidering the matter I invite the noble and learned Lord the Lord Chancellor to take into account representations which have been made during the past few days by the Solicitors Disciplinary Tribunal. It states that it needs powers over ex-solicitors. Following the keeping of the roll regulations, it is now possible for a solicitor who has seen Nemesis on the horizon to cease to be a solicitor overnight merely by failing to pay £15. It is a convenient way of disappearing from the roll.

By contrast, the present position at the Bar is that one must ask to be taken off the roll and people then start to look round before they agree. However, under the keeping of the roll regulations, saving £15 may be saving a great deal more.

The Lord Chancellor

I shall also look into that matter. There are a number of amendments to solicitors' legislation for which the Law Society has asked. We shall be considering them and this point will be kept in mind. I am grateful to my noble and learned friend.

Amendment, by leave, withdrawn.

The Lord Chancellor moved Amendment No. 135ZC: Page 15, line 33, after ("which") insert ("is being or").

The noble and learned Lord said: The amendment will prevent the ombudsman from examining issues which are being determined by a court or professional disciplinary tribunal. I beg to move.

On Question, amendment agreed to.

Lord Mishcon moved Amendment No. 135ZD: Page 15, line 33, after ("by") insert ("or is raised in proceedings before").

The noble Lord said: The noble and learned Lord may have noticed that the amendment which I tabled covers precisely the same point as the amendment which he has just moved. I hope that he will think that I have tabled at least one sensible amendment. I beg to move.

The Lord Chancellor

I have already indicated in the most practical manner possible that quite a number of amendments put down were extremely sensible, because I have accepted some of them. I entirely accept the point that the noble Lord has made. Perhaps I should have said it earlier.

Lord Donaldson of Lymington

May I mention in the briefest possible terms, using this as a convenient peg, that either the noble and learned Lord the Lord Chancellor will have to make an order under the subsection, or there must be express reference in the Bill to the position of the visitors as the appellate body from the disciplinary tribunal of the Council of the Inns of Court? If I may declare an interest, may I suggest that the same might be done for me as the appellate body in some respects from the solicitors disciplinary tribunal?

Lord Mishcon

I beg leave to withdraw my amendment.

Amendment, by leave, withdrawn.

Lord Mishcon moved Amendment No. 135ZE: Page 15, line 42, at end insert— ("(7A) Notwithstanding the provisions of subsection (7) the Ombudsman may investigate any issue which is raised in proceedings before a court if he is satisfied that substantial hardship is likely to be caused to the person making the complaint or the person with respect to whom the complaint is made by the likely delay in the determination of the issue of the court.").

The noble Lord said: I hope that I can briefly deal with this amendment. It is right that, as a general rule, the ombudsman should not be looking into matters which are before the court. But where there is a case of extreme hardship —I think "substantial hardship" are the words used in the amendment —which would be caused if the matter was delayed, he ought to be given a power.

The sort of case that I have in mind, and it may be rare, is where a writ is deliberately issued and not really proceeded with when it is known that a complaint is going to go before the ombudsman. This would cause grave hardship to a complainant and would stop the ombudsman from being able to look into the complaint. Where such a rare case occurs and where substantial hardship would be caused, he ought to be given this special power. I beg to move.

The Lord Chancellor

While I see the point that the noble Lord makes on the second amendment, I regret that I do not think it would be right to accept this, and indeed it would not be right to give it favourable consideration. The fact that somebody has been bogged down, or gagged, by a legal process is something where the court is the best forum. If the situation arose that the noble Lord suggested where, just in order to prevent something being dealt with by the ombudsman, somebody took out a writ, there might well be power in the court to regard that as an abuse of process.

There are dangers in an overlap and in allowing the ombudsman to have jurisdiction in a case which is being pursued in the court. I hope that the noble Lord on reconsideration may feel that that is an important principle, and that there might be better ways than his of alleviating the problem that he, I quite appreciate, sees.

Lord Mishcon

I thought that this would be an exceptional case, but if the noble and learned Lord would consider, for example, a writ being issued and an appearance being entered and then no statement of claim delivered for some time, a defendant in those circumstances could apply to the court for the action to be struck out. But months could elapse before anything like that was effected. In the meantime, and in the very special case, hardship could be caused to the complainant.

This is only a rare case, but I would have thought that it was wise to give this special power to the ombudsman in such a case to deal with the matter. I leave these thoughts with the noble and learned Lord, and ask him if, in his kindness, he will consider them. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 135A not moved.]

[Amendments Nos. 136 and 137 had been withdrawn from the Marshalled List.]

Lord Renton moved Amendment 1" o. 137A: Page 16, line 16, at end insert— ("(10A) The Ombudsman may investigate any allegation with respect to the manner in which a complaint made about the administration of the Courts has been dealt with by the Lord Chancellor's Department or by any official of that Department.").

The noble Lord said: On Tuesday night, fairly late at 11 p.m., the noble Lord, Lord Hacking, moved an amendment and in the course of discussion the possibility of the Parliamentary Commissioner for Administration considering the administration of the courts and of the Lord Chancellor's Department was referred to. My noble and learned friend said: The administration of my department is already subject to the Parliamentary Commissioner for Administration". He later added: I entirely agree with the view that it would probably be more appropriate, if anyone is to oversee this area, for it to be the Parliamentary Commissioner for Administration, who acts on request by Members of the other place, rather than the legal services ombudsman".—[Official Report, 23/1/90; col. 1045.] I must say that I tend to agree with that and therefore the Committee may wonder why I move this amendment about complaints made to the ombudsman about his department. The reason is that the department of my noble and learned friend only yesterday issued a press notice which made clear that the Parliamentary Commissioner for Administration would have jurisdiction to investigate maladministration by court staff. There are other references but the statement by my noble and learned friend refers to investigation by court staff and to court administration. However, it does not specifically refer to the Parliamentary Commissioner for Administration doing what my noble and learned friend said the other night he felt the commissioner should do; namely, consider the administration of his own department.

It is because of the rather narrow terms of the statement he made yesterday and of the press notice that I thought, as I had this amendment on the Marshalled List, I should ask him possibly to clarify the position. I beg to move.

The Lord Chancellor

Certainly I shall do my best. On Tuesday night I said that the administration of my department is already subject to the Parliamentary Commissioner for Administration, but the administration of the courts —although staff are supplied to the courts by the Lord Chancellor —is not part of the administration of the Lord Chancellor's Department because the courts are a distinctly separate institution. It is that which has caused the difficulty.

In no way do I wish to protect staff provided by me from any investigation by the Parliamentary Commissioner for Administration, but because of my responsibility for the independence of the judiciary and the judicial process I cannot agree, in view of the terms of the Act of Parliament, that the Parliamentary Commissioner for Administration should have under the present law any jurisdition to deal with the administration of the courts.

However, it is apparent that some administration in the courts is nearer to the judicial process than others and therefore I am looking for a formula that will enable the Parliamentary Commissioner for Administration to investigate administrative acts of officials provided by the Lord Chancellor to the court service so long as that investigation does not prejudice the independence of the judiciary and the judicial process. Somewhat similar considerations will apply to tribunals. That is the kind of amendment that I am looking for. I cannot be absolutely certain yet that we shall achieve a good formulation of that boundary. I certainly hope that we shall be able to do so.

12.15 a.m.

Lord Mishcon

I did not quite understand what the noble and learned Lord said and I am sure it is my fault. On the last occasion I did not understand whether he was seeking a formula which would be incorporated in this Bill or whether he was seeking one which might lead to an amending Act.

The Lord Chancellor

I intend to propose an amendment to this Bill if I can find the right formula. I believe it is within the scope of this Bill to deal with the extent to which the Parliamentary Commissioner for Administration should have access to administrative staff provided by the Lord Chancellor for the administration of the courts. So it is in this Bill that I am proposing to introduce the measure, assuming that I can achieve a reasonable amendment. I said that in response to the amendment tabled by the noble Lord, Lord Hacking, which appears towards the end of Part I of the Bill.

Lord Mishcon

And which I was going to move. I am very interested in this matter. I wonder whether the noble and learned Lord can give an indication as to the course he proposes to take. If he is not ready with his own proposals on this matter at Report stage, in order to bring it to a final conclusion, it would not be helpful to table an amendment. However, if the noble and learned Lord felt that a government amendment could be tabled by Third Reading, and there is an undertaking to that effect, one would wait until then. If the noble and learned Lord does not think it unhelpful, I was considering returning with the amendment at Report stage in the hope that, if he did not accept it, he would have one in substitution.

The Lord Chancellor

As matters stand at the moment, I am certainly hoping that I shall have an amendment ready at Report stage. I have not yet been able to ascertain completely how difficult the drawing of the boundary line may be. I am certainly hopeful. I have had discussions with a number of interested people about the matter. I shall keep in touch with the noble Lord and with the noble Lord, Lord Hacking, in view of the fact that he brought forward the amendment. If my noble friend likes to ask me about it I shall be happy to say how I stand at the moment of questioning.

Lord Renton

I am most grateful to my noble and learned friend —as I am sure is the Committee —for the clarification and assurances that he has given. It is satisfactory to know that the matter can eventually be dealt with in this Bill. I believe that he has got the matter right. It is better that the Parliamentary Commissioner should have this responsibility rather than that we should try to fasten it on the ombudsman. With those assurances, I am very glad to withdraw the amendment.

Amendment, by leave, withdrawn.

The Lord Chancellor moved Amendment No. 137B: Page "16, line 23, after ("subsection") insert — (" "recognised body" means any body recognised under section 9 of the Administration of Justice Act 1985 (incorporated practices) or under section 32 of that Act (incorporated bodies carrying on business of provision of conveyancing services)").

The noble and learned Lord said: These amendments are intended to deal with the definition of "recognised body". The definition can be found in the definition clause of the Bill, but on fuller consideration we see that is not satisfactory for every purpose. The single definition is not appropriate. Accordingly, the first amendment applies a definition to Clause 19. I am referring to Amendment No. 137B. The second amendment incorporates a definition currently included in Clause 81, the interpretation clause, and Clause 24 which deals with advocacy rights. It is the only clause to which it applies. The third amendment removes the definition from Clause 81 where it is no longer needed. That is the explanation to this amendment and to Amendments Nos. 141A and 209A when we come to them. I beg to move.

On Question, amendment agreed to.

[Amendment No. 138 not moved.]

Clause 19, as amended, agreed to.

Clause 20 [Recommendations].

[Amendment No. 139 not moved.]

Lord Mishcon had given notice of his intention to move Amendment No. 139ZA: Page 16, line 42, at end insert ("provided that no recommendation may be made under this paragraph in respect of a complaint against any person which concerns an aspect of his conduct in relation to which he has immunity from any action in negligence or contract").

The noble Lord said: This is much too complex a matter to bring before the Committee at such a late hour. I shall therefore not move the amendment at this stage.

[Amendment No. 139ZA not moved.]

Lord Coleraine moved Amendment No. 139ZAB: Page 17, line 25, leave out subsection (8).

The noble Lord said: I am very sorry that I cannot completely follow the time-saving course of my noble colleague Lord Mishcon, but I shall speak very briefly to the amendment in the hope that my noble and learned friend may do for it what he mentioned to the noble Lord, Lord Mishcon, a few minutes ago in connection with other amendments, and accept it.

The ombudsman has power to investigate not only complaints made by clients against the way in which their complaints had been investigated and dealt with by professional bodies, but also the substantive complaints being made against the practitioner concerned. The Bill provides that the ombudsman will give his conclusions and make his recommendations to the practitioner, which may involve the payment of substantial compensation to the client. Under subsection (7), the practitioner is required, before the end of the period of three months beginning with the date on which the report was sent, to notify the ombudsman of the action which he has taken, or proposes to take, to comply with the recommendation.

With most complaints that come before the ombudsman the practitioner will realise that the ombudsman has investigated fairly and will comply with the ombudsman's requirements. However, it must be remembered that what the ombudsman is doing is carrying out an investigation. He is not holding a hearing. He is, in effect, coming to his own private conclusion that, prima facie, there is a good case to be answered by the practitioner. It may be that the practitioner will decide not to comply with the recommendation. This is a voluntary scheme.

I now come to subsection (8) which I seek to persuade my noble and learned friend should be deleted. It provides that any person, who fails to comply (whether wholly or in part) with a recommendation under subsection (2) shall publicise that failure, and the reasons for it, in such manner as the Ombudsman may specify". It seems very curious indeed that where the practitioner is not obliged, because this is a voluntary system, to fall in with the ombudsman's requirements, he should be obliged in this way to don, as it were, the red badge of shame himself and pay for the cost of advertising his decision not to comply with the ombudsman's requirements. I see no reason why the ombudsman should not make it clear that the practitioner has taken this course. But there does not seem to be any reason why the practitioner should have to do this.

I could understand a compulsory scheme provided that it had suitable safeguards and a suitable way for the complaint to be heard so that the practitioner was provided with what was equivalent to a hearing. But in this case it seems that the clause seeks somehow to get round the fact, in what is really an underhand way, that this is a voluntary scheme by imposing a considerable liability on what may be a small practice or a single practitioner; and in circumstances where that practitioner has already had the substance of the complaint investigated by his professional body, no doubt at great expense, and the essence of the finding by the professional body was that the complaint was not substantiated. I beg to move.

The Lord Chancellor

This type of provision is not unique and I am certainly not aware that it has caused any difficulties elsewhere. I believe that something along the lines of subsection (8) is needed to ensure that a recommendation of the ombudsman may not be ignored by the practitioner or the professional body.

There is a fine balance to be drawn here. It is not appropriate for the ombudsman to have the powers to award compensation that will be given to a disciplinary tribunal or to a court. At the same time it is essential that he should have authority and that his recommendations should be given due respect. Indeed, this power recognises that the ombudsman may on occasion make recommendations which are not appropriate. It therefore gives the practitioner an opportunity to put his side of the story forward publicly. Should the ombudsman's requirements be too onerous, they will always be open to judicial review.

One of the frequent criticisms of the lay observer has been that the ombudsman lacks the power to enforce his recommendations. This provision will ensure that the recommendations of the ombudsman are heeded by the practitioner. If they are reasonable then it is surely right that they should be followed and the publicity sanction will be sufficient to ensure that the practitioner thinks twice before ignoring them. If they are unreasonable, the practitioner will be able to put his point of view satisfactorily. With this amendment the ombudsman's powers would be severely compromised and I believe that his whole jurisdiction would be seriously damaged. For that reason I regret to say that I am unable to accept the amendment. However, in the light of my explanation, it may be that my noble friend will feel able to withdraw the amendment.

Lord Coleraine

I would not wish to withdraw my amendment before asking my noble and learned friend to inform the Committee of the precedents. I am aware that in paragraph 10.24 of the White Paper the analogy with the building societies scheme is drawn, but I am sure that if he takes the matter away and refers carefully to that scheme he will see many points of principle which differentiate between that and what is proposed here.

There may be other cases where this sort of provision is used in these kind of circumstances, but I hope that my noble and learned friend can enlighten the Committee while I am deciding what to do with the amendment.

The Lord Chancellor

As I already said, there are a number of schemes in which the ombudsman has a power of this kind. If my noble friend feels that all these can be distinguished, I shall be happy to consider the matter further. However, I believe that this is a fairly general feature in ombudsman schemes.

Lord Coleraine

Obviously I shall have to try to find some of the schemes to which my noble and learned friend referred. However, I shall return to the matter on Report. In the circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 20 agreed to.

Clauses 21 and 22 agreed to.

Clause 23 [Extension of Ombudsman's remit]:

Lord Morris moved Amendment No. 139ZB: Page 18, line 32, at end insert — ("( ) No regulations shall be made under subsection (1) above unless a draft of the regulations has been laid before and approved by a resolution of both Houses of Parliament.").

The noble Lord said: I can deal very quickly with this amendment. It is the first of a series of purely drafting amendments of such simplicity that they are even within my grasp. In moving Amendment No. 139ZB I should like to speak also to Amendments Nos. 147A, 148A, 176A, 209C, 209D and 209E. All these amendments are linked.

I think it would help the Committee to follow my argument if Members would turn to Clause 82 of the Bill, which covers regulations and orders. There is a lacuna in the side note on page 61 in that it refers only to "Regulations and", with no mention of the word "orders". However, it is quite clear from subsections (3) and (4) that there are only five clauses in the whole of the Bill which call for affirmative resolution in both places. In the interests of clarity —although I admit not in the interests of brevity —I think that those instructions with regard to the affirmative resolution should lie within the body of the section.

Noble Lords will no doubt remember the misunderstanding which was caused in connection with Clause 1 because such a provision was omitted from the body of the clause. The resultant confusion wasted a considerable amount of the time of this Chamber. It is purely a matter of drafting style. Where clarity in drafting is in conflict with brevity, clarity must prevail. I beg to move.

The Lord Chancellor

I am in favour of clarity where it can be attained, but with the greatest respect to my noble friend, I doubt whether he has gone any real distance towards achieving it.

We have gathered 11 those powers which require the affirmative procedure and stated what they are. My noble friend said that we had some difficulty with Clause 1, and I accept that. The question that arose on Clause 1 was whether there was power to make a separate order under subsection (1) and subsection (4). If my noble friend's method had been provided for under Clause 1, I doubt whether that point would have been resolved. The argument about ambiguity and confusion would have been the same whether his or our method has been adopted. I am doing what I can to put the position of Clause 1 beyond doubt. I shall probably propose an amendment on Report to deal with that matter.

With the greatest respect my noble friend, there is a great deal to be said for having one reference point to which one can go to discover which procedure applies to a particular power. I hope that with that explanation my noble friend will feel able to withdraw his amendment. It is a matter of drafting practice, and I believe that the method that we have followed is that generally followed, which is both economical, as he has accepted, and widely understood.

Lord Morris

I am grateful for that explanation. I was astonished at the number of people who know more about the construction of statutes than I do who did not go to the root of the matter in Clause 82, which relates to regulations and orders, before they considered Clause 1. My amendment was purely an attempt to improve the Bill. I am now a great deal wiser than I was a few moments ago. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

On Question, Whether Clause 23 shall stand part of the Bill?

Lord Coleraine

Before we pass finally from the substantive clause dealing with the legal services ombudsman perhaps I may refer the Committee to something that my noble and learned friend said on Second Reading. He said that the Law Society was seeking an extension to its present powers to deal with complaints against solicitors. He was hoping to draft clauses to introduce in Committee. If we are to have a useful discussion about the legal services ombudsman on Report it will depend upon our seeing those clauses in good time. I wonder whether my noble and learned friend can give me any indication as to when they may be tabled.

The Lord Chancellor

Work is proceeding on those clauses. I cannot give an undertaking at present that we shall have them in time for Report. I should like to have a chance to see how far we get with those matters. It is a question of co-operation in their preparation between the Law Society and my department. Perhaps I may write to my noble friend when I have had a chance to examine the present situation. I hope that he will find that satisfactory.

Clause 23 agreed to.

Schedule 3 [The Legal Services Ombudsman]:

Lord Renton had given notice of his intention to move Amendment No. 139ZC: Page 69, line 26, leave out ("with the approval of the Treasury").

The noble Lord said: I have already spoken to the amendment and the following three and I shall not move any of them.

[Amendment No. 139ZC not moved.]

[Amendments Nos. 139ZD to 139ZF not moved.]

Viscount Ullswater

I beg to move that the House do now resume.

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

House resumed.