Lords Sitting of 29 January 1990

Preamble
The House met at half-past two of the clock: The LORD CHANCELLOR on the Woolsack
Prayers—Read by the Lord Bishop of Worcester.

Tate Gallery Collection
Lord Boyd-Carpenter Lord Boyd-Carpenter asked Her Majesty's Government:
How many pictures are on display in the Tate Gallery, how many are in store, and how many are on loan to official and public buildings.
The Parliamentary Under-Secretary of State, Department of the Environment (Lord Hesketh): My Lords, I understand from the Tate Gallery that, as a result of the new hanging, which aims to put on display many works previously in store, there are currently about 660 pictures on display. Approximately 4,000 pictures are in store and some 250 are on loan. The new hanging is a comprehensive and impressive re-ordering and re-presentation of the gallery's collection and was opened last week by the Prime Minister. My right honourable friend the Minister for the Arts has been pleased to add £100,000 in 1990–91 to the generous sponsorship of British Petroleum PLC.
Lord Boyd-Carpenter: My Lords, I thank my noble friend for those interesting figures. Is he aware that under legislation for which I was responsible about 30 years ago, the Tate Gallery has full authority to lend pictures to bodies in official and public buildings? Does the Minister not agree that it would be better that more pictures should be on display in such buildings where some people can see them rather than to have them stored where nobody can?
Lord Hesketh: My Lords, I am sure that all noble Lords are aware of my noble friend's innovative and creative concept as it was originally expounded, and
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I am sure that great public buildings should take advantage of that possibility. I also point out to your Lordships that in 1979 the gallery space was increased by about 50 per cent., with the addition of the Clore Gallery, which contributed 15 per cent., together with phase one of the Tate Gallery at Liverpool, which contributed 35 per cent. That is a very substantial increase in a mere decade.
Baroness Birk: My Lords, is it not a fact that when the Prime Minister opened the reorganised Tate Gallery last week, she said that the Government had the task of trying to keep the great galleries open with the help of the taxpayers? It is quite right that paintings should be loaned to regional and other museums; but does the Minister not agree that that entails additional cost, which makes matters very difficult for the museums and galleries and particularly difficult for the Tate? Does the Minister not agree that, unless the Government assist by giving extra public money, it is very hard to get private sponsors to contribute?
Lord Hesketh: My Lords, I am sure that the noble Baroness is aware that in the past decade the financial commitment of this Government has increased by about 40 per cent. in real terms. The initiative announced by my right honourable friend the Minister of State for the Arts only a few months ago of the provision of about a further £200 million is a sure sign of the commitment of this Government to the matters which she has just raised.
Lord Renton: My Lords, as regards the 4,000 pictures which do not see the light of day, is it not possible for two or three of them to be spared to brighten up the Barry Room? Can the Minister say whether, of those 4,000 pictures, there are some that will probably never be on display? In that case, does the Minister not agree that it would be in the public interest, from several points of view, if they were put on the market?
Lord Hesketh: My Lords, I hope that I can supply good news to my noble friend. It is a fact that I

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observed the chairman of the refreshment committee in deep and important conversation with the director of the Tate Gallery. I believe that the Barry Room is gratefully going to be in receipt —if I can speak on behalf of those simple walls as they stand —of about five pictures from the Tate in the not too distant future.
Lord Hutchinson of Lullington: My Lords, does the Minister not agree that entirely on its own initiative the Tate Gallery has increased its hanging space quite enormously? That has been achieved by, first, building a magnificent new gallery on Millbank; and, secondly, by creating a gallery in Liverpool twice as large which was visited by over 1 million people in the first year of opening. Does the Minister not agree that that is a matter for rejoicing and praise rather than for crabbing criticism? Regarding selling pictures, does the Minister not further agree that it would be a disaster for the trustees, who look after paintings and works of art for the nation, to sell pictures when the particular taste of the time created an atmosphere which was for disliking one type of painting rather than another? Will the Minister inform the noble Lord who asked this Question that one of the functions of the Tate Gallery, as a national museum of modern art, is to acquire what is best and most significant in each decade —
Noble Lords: Speech!
Lord Hutchinson of Lullington:—works which then become part of the heritage of this country, and that that is their overwhelming duty?
Lord Hesketh: My Lords, I have never made any carping criticism of the Tate Gallery. In my Answer today, I went out of my way to give praise. Concerning the policy of the Tate Gallery, I am sure that the noble Baroness, Lady Serota, would be the first to stand up in protest if I were to insinuate that the Office of Arts and Libraries was in any way to interfere with that policy.
Lord Merrivale: My Lords, I ask my noble friend the Minister to use his best endeavours and influence—perhaps with the support of the noble Baroness, Lady Serota —to see that J. S. Copley's painting of the Great Siege of Gibraltar, on loan to the convent from the Tate Gallery, remains in Gibraltar, where it should rightly reside.
Lord Hesketh: My Lords, I shall certainly take my noble friend's remarks to heart and draw them to the attention of my right honourable friend.
Lord Strabolgi: My Lords, can consideration be given to showing more pictures from the Chantry Bequest, especially as taste has now changed and these paintings are much more appreciated than they were some years ago? They are hardly ever seen; and many have never been shown.
Lord Hesketh: My Lords, I think it would be probably more than fair if I were to give a commitment to the House to draw the Hansard
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report of this Question to the attention of the director of the Tate Gallery so that he can make his own decisions with regard to it.
Lord Mason of Barnsley: My Lords, is it not quite incredible that 4,000 paintings are stored in the vaults of one gallery? How long are they destined to stay there? Why cannot more of them be circulated through the regional galleries?
Lord Hesketh: My Lords, there are enjoyable problems and there are disagreeable ones. It is an enjoyable problem that this country has a treasure house unequalled anywhere in the world.
Lord Annan: My Lords, is it not a fact that the director has already said that he intends to rotate the paintings so that for six months some paintings will be on display and then for the next six months another set will be on display? That is one of the ways in which the 4,000 paintings said to be in storage will be seen. They are not really in storage; they are being rotated.
Lord Hesketh: My Lords, the noble Lord is absolutely correct. I have gone to some trouble this afternoon not to prejudge decisions made by the director and the trustees of the gallery.
Lord Grimond: My Lords, can the Minister tell us what proposals the trustees themselves have for this large quantity of pictures that are never seen? Do they hold out any hope that they will ever be seen? How many public buildings can be expected to take on the suggestion of the noble Lord, Lord Boyd-Carpenter? What is proposed for this huge sunken galleon of pictures which lies apparently in the vaults of the Tate?
Lord Hesketh: My Lords, all noble Lords will be indebted to the noble Lord, Lord Annan, for the point that he made earlier. We do not have a sunken galleon; we have a great reserve which is rotated.
Lord Annan: My Lords, is it not also a fact that the director has stated that anyone is entitled to see the paintings in storage, though not perhaps under such advantageous circumstances as obtain in the National Gallery, where the paintings in storage are hung very well? Nevertheless, they can be seen by anyone who wishes to do so.
Lord Hesketh: My Lords, I believe that is correct.
Lord Boyd-Carpenter: My Lords, is my noble friend aware that however frequently the pictures are rotated it still means that 4,000 are at any one time not visible except under the special arrangements to which the noble Lord referred? Will he encourage the directors of the Tate Gallery to be a little quicker and a little more willing in the lending of pictures to official buildings where there is of course no question of the expense that is involved in respect of provincial galleries?
Lord Hesketh: My Lords, I shall certainly draw that point to the attention of my right honourable

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friend. I remind my noble friend that for there to be a lender, there also has to be a happy borrower.
Lord Northfield: My Lords, in America recently I was offered for the Tate Gallery the portrait of the wife of Sir Henry Tate, the benefactor who founded the gallery. However, the owners of the portrait say that they will be happy to give it to the Tate Gallery if the gallery will hang it. It is the companion portrait to that of Sir Henry Tate which has at last been hung in the gallery. Does the Minister realise that the fame of the gallery in the sense of having too many pictures stored away has crossed the Atlantic and is not confined to this country?
Lord Hesketh: My Lords, again I have to point out that it is not the Government's policy to interfere with the picture hanging policy of the director and the trustees of the gallery.

National Insurance Fund: Estimates
2.47 p.m.
Baroness Turner of Camden Baroness Turner of Camden asked Her Majesty's Government:
What is the present deficit on the National Insurance Fund and how much of it is due to incentives paid to individuals opting for personal pensions instead of remaining in the state earnings-related pension scheme.
The Parliamentary Under-Secretary of State, Department of Social Security (Lord Henley): My Lords, the fund's overall balance remains in surplus. The Government Actuary estimates this as £9·4 billion; that is 34 per cent. of annual expenditure on benefits and twice his recommended minimum. There is though a declining balance in the fund. Incentives paid to individuals to encourage take up of personal pensions amount to approximately 1·7 per cent. of fund income.
Baroness Turner of Camden: My Lords, I thank the Minister for that Answer. Is he aware that according to a report in the Financial Times of 19th January a large deficit of £1·7 billion is forecast by the Government actuary for the coming financial year? Moreover, it would appear that the Government are expected to pay out £804 million this year and £615 million next year to persons opting out of the state earnings-related pension scheme. Does he not agree that there is something rather immoral about the Government using public funds in this way to encourage people to take out personal pensions which may not meet their proper expectations and may result in their having to opt back into SERPS at some time in the future?
Lord Henley: My Lords, I take it from the noble Baroness's remarks that she does not accept the fact that our personal pensions initiative has been a huge success. On this side of the House we are delighted that so many people are taking the opportunity of making alternative provision for their retirement. In the longer term that will dramatically reduce the cost of SERPS.
Lord Stoddart of Swindon: My Lords, if the National Insurance Fund is now in surplus to the extent of £9·4 billion, is it not time that state retirement pensions were granted a substantial increase in order to make up the leeway which people have lost over the past 10 years through not having their pensions related to average earnings?
Lord Henley: My Lords, as the noble Lord says, the fund is in surplus at present. However, as I have said, that surplus is declining and will shortly —that is, by about 1991–92—fall below the recommended minimum of 16 per cent. which the Government Actuary sets.
Lord Jay: My Lords, if there is a declining balance and an expected deficit in the fund, why have the Government abolished altogether the Treasury contribution to the fund which has been a fundamental support for the system ever since it was set up?
Lord Henley: My Lords, the Treasury supplement was abolished in line with the principle that contributory benefits should be funded from contribution income and not general taxation. That is the case.
Lord Williams of Elvel: My Lords, will the Minister kindly answer the question put by my noble friend Lady Turner of Camden? Where does the money come from to persuade people to contract out of SERPS? Is it from the Consolidated Fund or is it from the National Insurance Fund?
Lord Henley: My Lords, as the noble Lord knows perfectly well, there is a 2 per cent. incentive which is derived from the National Insurance Fund. Indeed, it has been coming from there since 1987 and will continue until 1993.

Chemistry: Teacher Training Bursary
2.52 p.m.
Baroness Platt of Writtle Baroness Platt of Writtle asked Her Majesty's Government:
Whether the extension of the bursary scheme for teacher training to chemistry has proved successful.
Baroness Blatch: Yes, my Lords, we believe it has. In 1987 there were 376 recruits to postgraduate chemistry courses. In 1988 there were 334. In 1989, the first year of the chemistry bursary, the numbers increased to 383.
Baroness Platt of Writtle: My Lords, I am most grateful to my noble friend for that encouraging reply. I received a letter this morning from the Royal Society of Chemistry which stated that it has long pressed the Government as regards the introduction of this bursary scheme for chemistry and that it welcomes the Government's decision, taken a year ago, to do so. The society believes that the bursary

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scheme has had a beneficial effect and states that last year the highest figure in enrolments for six years was reached. I am personally especially interested in the teaching of sciences and chemistry.
Noble Lords: Question!
Baroness Platt of Writtle: My Lords, I should like to ask my noble friend to comment upon the general teaching supply situation because, although we want children to be scientifically educated, we also wish them to be broadly educated in the humanities.
Baroness Blatch: My Lords, I welcome the statement from the Royal Society of Chemistry. It is always most useful at this point in a scheme to have some feedback. As regards teachers generally, over the country as a whole there are sufficient primary school teachers and a few problems with shortages. Nevertheless, there are problems in some areas, especially inner London. Recruitment to primary initial teacher training continues to be buoyant and there should be sufficient teachers overall to meet demand in the future.
However, I think it is well known, by virtue of a Question which I answered last week, that there are some difficulties in secondary schools as regards particular specialist subjects.
Lord Tordoff: My Lords, will the Minister be good enough to inform the House how many of the people taking up these bursaries are women? I ask that because, as the noble Baroness will know, there is a shortage of science teachers in girls' schools and this leads to a difficult situation in producing sufficient women graduates in the subject.
Baroness Blatch: My Lords, I am not able to give a specific answer to that question. However, I should like to think that following the introduction of the national curriculum —that is, treating all boys and girls equally —we shall see no differential between the two sexes.
Baroness David: My Lords, is the Minister aware that the DES forecast a shortfall of 2,000 chemistry teachers by 1995? Further, has this prediction been updated? Moreover, as the noble Baroness, Lady Platt of Writtle, mentioned the Royal Society of Chemistry, is she also aware that the society is still not satisfied with the position and that it is hoping that the DES will fund certain in-service training initiatives involving the Open University? Can the Minister tell us whether such training will be introduced?
Baroness Blatch: My Lords, I am not aware of the specific information to which the noble Baroness referred. However, I can confirm that there were difficulties with this particular subject. That is why the Government introduced the bursary scheme in the first place. There are encouraging signs that the bursary scheme is working and I hope that it will continue to do so. It is worth repeating that, as the implementation of the national curriculum settles
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down in our schools, a better flow of chemists will result.
Baroness David: My Lords, can the Minister say whether the DES has reviewed the effectiveness of the bursary scheme? I ask that question because initially a number of students changed over to the scheme in order to receive the £1,300 tax free allowance and thereafter the intake dropped slightly. Further, is there any proposal for review, as there are other shortage subjects?
Baroness Blatch: My Lords, the noble Baroness is right to point out the difficulty as to whether the scheme is working. The Government are constantly reviewing the situation. Indeed, it was as a result of the review that chemistry was brought into the bursary scheme and it is likely that other shortage subjects will be included. Therefore, I can promise her that review is a continuing process.
Lord Ritchie of Dundee: My Lords, reverting to the question of general subjects, can the Minister give us any idea of what proportion of teachers in inner London are deterred from remaining in the area because they cannot afford to live there?
Baroness Blatch: My Lords, again, I cannot answer the specific question. However, I know that accommodation is a particular issue in inner London. The cost of housing is a problem but the hope is that as the housing market settles down it will become much easier for teachers to make that decision. However, I also know that the Government are addressing the problem, together with local education authorities.

Ferranti plc: Defence Interests Sale
2.57 p.m.
Lord Molloy Lord Molloy asked Her Majesty's Government:
Whether they were aware of the proposed sale by Ferranti plc of their defence interests to GEC plc while they were negotiating with the West German Government over the award of the radar system contract for the European fighter aircraft.
The Parliamentary Under-Secretary of State, Ministry of Defence (The Earl of Arran): My Lords, the companies informed the Ministry of Defence that discussions were taking place in advance of the announcement of the proposed acquisition on 23rd January.
Lord Molloy: My Lords, I thank the noble Earl for that reply. However, is he aware that, despite that fact, there are still some unpleasant and disturbing aspects in the whole affair? Can he confirm absolutely that the Germans were aware of the negotiations well in time? Further, are Her Majesty's Government aware that the creation of such a massive monopoly would be quite contrary to their philosophy of competition?
The Earl of Arran: My Lords, I can tell the noble Lord, Lord Molloy, that my right honourable friend the Secretary of State did have useful and constructive discussions on many issues with his German counterpart, when he was here last week. These naturally included the European fighter aircraft. Both gentleman agreed that the EFA is the best solution to meet the requirements of their airforces in the second half of the 1990s and beyond. There was also a useful exchange of views on the EFA radar upon which, contrary to speculation, no decisions were made.
As regards the noble Lord's point about competition, I must tell the House that it is entirely the responsibility of the supply company to determine the appointment of its workforce; in other words, it is a commercial judgment at the end of the day. Obviously, it would be most satisfactory if the decision or the prize were given to this country rather than to Germany. However, the decision has yet to be made.
Lord Dean of Beswick: My Lords, can the Minister tell the House, now that this exercise has effectively created a monopoly, what proposals the Government have in mind to ensure and guarantee that the taxpayer will have the benefit of reasonable and realistic pricing?
The Earl of Arran: My Lords, I must correct the noble Lord, Lord Dean, on that point. It is not a monopoly situation; indeed, the decision has not yet been decided. The competition implications will be examined by the Director General of Fair Trading and considered by my right honourable friend the Secretary of State for Trade and Industry. The important point I wish to make is that no decision has as yet been made. Moreover, if the matter is referred to the Monopolies and Mergers Commission, the decision will be made at that time.
Lord Graham of Edmonton: My Lords, will the Minister deal with the main thrust of the Question? Were the Germans made aware of the possibility of the arrangements that became known later at the time the European fighter project was being considered? Will he also tell the House what steps the Government have taken to ensure the protection of the maximum number of jobs? Are the Government concerned that in any such arrangements whereby there are new alignments of management it is inevitable that some job fall-out will take place? What have they done to ensure that that is kept to the minimum?
The Earl of Arran: My Lords, I have just given an answer to the second part of the noble Lord's question. I repeat again, as regards the workforce, it is a commercial judgment as to where the supply contractor deploys his workforce in the event of the prize being given. That is all that I can say on that point.
Lord Marsh: My Lords, does the Minister agree that far from the German authorities not being aware of the proposed bid, GEC is to be congratulated on making the bid, without which it is almost
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inconceivable that the United Kingdom would have obtained the order?
The Earl of Arran: My Lords, in the cirumstances it seems a sensible decision.
Lord Williams of Elvel: My Lords, will the Minister tell the House which view the Ministry of Defence will express to the Director General of Fair Trading via the Merger Panel? As he is aware and has said, the Director General of Fair Trading has to make a recommendation to the Secretary of State for Trade and Industry. The Minister will be aware that the Secretary of State is advised by the Merger Panel upon which the Ministry of Defence is represented. What advice will the Ministry give? Will it give the advice that it gave in respect of the Plessey takeover in 1986 where it said that defence should not be a monopoly situation? Will it give the advice in respect of the GEC takeover of Plessey in 1988 where it advised that it did not matter whether it was a monopoly situation? Which of the two positions will the Minister take?
The Earl of Arran: My Lords, the noble Lord asked a long question which is based on speculation. I am not at the Dispatch Box to answer speculative questions on behalf of Her Majesty's Government.
Lord Molloy: My Lords, does the Minister agree that it is hoped that jobs will be created not just in Edinburgh but throughout the country? If the apprehensions felt by the management, professional bodies and trade unions materialise, will the Government then seek to discuss those matters with the bodies that I have mentioned?
The Earl of Arran: My Lords, again that question is based on speculation. If the outcome is successful, it will be for the commercial judgment of the supply contractor who wins the prize, as I have said, to decide, obviously in conjunction with its trade unions, where its workforce will go.
Lord Annan: My Lords, are we not moving into another ball game in which we have to ask ourselves not merely whether there is a monopoly in this country but whether there is a monopoly in the European Community? Our firms must be able to compete satisfactorily with other firms in Europe even if they form a monopoly in this country.
The Earl of Arran: My Lords, the noble Lord makes a reasonable point. Of course at the end of the day it is for the commercial decision of the supply contractors, and indeed of the Government, as to where they obtain their procurement.

Business
3.3 p.m.
Lord Denham: My Lords, at a convenient moment after 3.30 this afternoon my noble friend Lord Ferrers will, with the leave of the House, repeat a Statement that is to be made in another place on the Hillsborough stadium disaster.

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It may be for the convenience of the House to know that the Committee stage of the Courts and Legal Services Bill will be adjourned at about 7 p.m. for about an hour and that during this adjournment a Motion to withdraw the code of practice on the implementation of the Mental Health Act 1983 will be taken.

Capital Allowances Bill [H.L.]
The Lord Chancellor (Lord Mackay of Clashfern): My Lords, I beg to move that this Bill be now read a second time.
The Bill is a pure consolidation of enactments all relating to capital allowances and is the first consolidation on that subject since 1968. It is the first consolidation Bill in this Session for the whole of the United Kingdom. It is particularly appropriate that once again on this occasion I should offer my thanks and I am sure those of the House to the draftsmen for continuing their important work on consolidation. If your Lordships are content to give the Bill a Second Reading, it will be referred in the usual way to the Joint Committee on Consolidation Bills.
Moved, That the Bill be now read a second time. —(The Lord Chancellor.)
On Question, Bill read a second time, and referred to the Joint Committee on Consolidation Bills.

Courts and Legal Services Bill [H.L.]
3.4 p.m.
The Lord Chancellor: My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved, That the House do now again resolve itself into Committee. —(The Lord Chancellor.)
On Question, Motion agreed to.
House in Committee accordingly.
[The CHAIRMAN OF COMMITTEES in the Chair.]
Clause 24 [Rights of audience]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 139ZG
Page 18, line 37, leave out ("only").
The noble and learned Lord said: With this amendment I should like to speak also to Amendment No. 139ZH. The two amendments seek merely to correct the grammar in the drafting of the clause, which is capable of improvement and which may give rise to misunderstanding. The amendments clarify the fact that a person shall have a right of audience before a court in relation to any proceedings only in the cases listed in subsection (2) and not,
"a person shall only have a right of audience before a court",
as opposed to having a right to conduct litigation or in any other relations in respect of that court in the cases listed. I beg to move.
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No. 139ZH:
Page 18, line 38, after ("proceedings") insert ("only").
The noble and learned Lord said: I have spoken to the amendment. I beg to move.
On Question, amendment agreed to.
Lord Renton Lord Renton moved Amendment No 139ZJ:
Page 18, line 40, leave out ("is granted a") and insert ("has a subsisting").
The noble Lord said: The amendment is grouped with Amendment No. 139ZK. Now that the two previous amendments have been wisely moved by my noble and learned friend, subsection (2) will read as follows if my two amendments are also accepted:
"A person shall have a right of audience before a court in relation to any proceedings only in the following cases: (a) where he has a subsisting right of audience before that court in relation to those proceedings granted by the appropriate authorised body".
The clause then gives another circumstance in which there would be a right of audience.
The drafting of paragraph (a)(i) of subsection (2) would read better if my amendments were made; but the fundamental reason I am putting them forward is that, if a person ceases to be entitled to exercise a right of audience because of a disciplinary step that has been taken in relation to him resulting in expulsion or suspension by the relevant authorised body, clearly the statutory right granted by Clause 24 should lapse. I should have thought that that was a simple proposition which should be reflected in the drafting. If my amendments make that point clear, I hope that they will commend themselves to the Committee. I beg to move.
Lord Campbell of Alloway: I support the amendment. As a matter of precaution it is clearly right that the word "subsisting" should be incorporated, although it may not be strictly necessary.
The Lord Chancellor: There is nothing between my noble friend and I on the policy of this matter; it is just a question of how it is effected. It is intended that the authorities' disciplinary powers should be preserved. If my noble friend will allow me, I shall consider how best this should be done. I am grateful to him for putting these amendments down.
Lord Renton: I am so glad to find myself in agreement with my noble and learned friend. I am grateful to him for his further offer of consideration and beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 139ZK not moved.]
Lord Hutchinson of Lullington Lord Hutchinson of Lullington moved Amendment No. 139A:
Page 19, line 11, at end insert —
("(2A) Subsection (2)(e) shall not extend to appearances as, or on behalf of, a Crown Prosecutor in relation to any application relating to bail in criminal proceedings,").
The noble Lord said: This amendment seeks to rectify what I suggest is a quite unjustifiable provision in the Bill. Clause 24 makes it clear that

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a person may only have a right of audience in relation to any proceedings if granted such a right by an authorised body which must be designated in accordance with the complex provisions of Clause 26 and Schedule 4.
Tucked away in Clause 77 —and no doubt this clause will be reached at some time in the middle of the night —one sees that bail applications are dealt with. It is proposed to give the Director of Public Prosecutions a privileged exception to the clause. That is, a power to designate non-qualified clerks or officials employed in the prosecution service to have rights of audience when bail applications are made to a judge in the Supreme Court, whether in the High Court or in the Crown Courts. That is, applications for bail or for the varying of bail conditions.
In due course, I shall oppose the Question that Clause 77 stand part of the Bill. But even if the Committee were to agree that that immediate exception is unwarranted, Clause 24(2)(e) appears to allow the same thing to occur, as it were, through the back door. If Clause 77 is to go, then this door should also be closed. It is for that reason that I suggest that this is the time for the Committtee to debate the principle which is involved.
The Act that created the Crown Prosecution Service —the Prosecution of Offences Act 1985 —made it clear that the conduct of all proceedings in criminal matters was to be in the hands of qualified lawyers. However, because of underfunding and the continuing difficulty of obtaining sufficient qualified staff, the DPP began using more and more unqualified clerks to carry out work that should have been done by professionally qualified staff. Eventually, in 1988, he was taken to court. The Divisional Court held that what he was doing in his office was ultra vires and unlawful.
In this Bill the Government seek to override that decision of the Divisional Court. They seek to override the terms of the Prosecution of Offences Act, and to override this clause and Schedule 4. They are giving the DPP the right to grant rights of audience to any member of his staff in a crucial area of public interest: the granting or refusing of bail.
Decisions on bail raise acute questions of personal liberty on the one hand and the public interest on the other. With current delays, a refusal of bail may mean the equivalent of a sentence of imprisonment of one month, six months, nine months or 12 months, even up to two years, for a person who has not even been tried. Equally, a grant of bail to the wrong person may result in the commission of serious offences against the public before a trial is reached.
The most recent figures for 1988 show that 48,000 people were remanded in custody awaiting trial. Of those, 19,000 were ultimately acquitted or given non-custodial sentences. That is, 40 per cent. of those persons who had been remanded in custody. In that year, 19,000 people served periods of imprisonment, none of whom was sentenced by a court of law; and, as the inspector of prisons has repeatedly pointed out, they served their time in the worst conditions of overcrowding in the whole prison service.
This is a shocking state of affairs. It shows that something is radically wrong with our procedures relating to applications for bail. In themselves, those figures indicate that it would be absolutely the wrong moment for the Divisional Court and the statute to be overriden in this way. The handling of these applications is of paramount importance. At this early stage in the process, the onus rests pre-eminently on the prosecution to provide the court with all the relevant and accurate information on which to base its considered opinion.
Surely presentation calls for a professional advocate. It involves, among other things, a full knowledge of the case; the seriousness of the charges; the likelihood of conviction; the likelihood of a custodial sentence; a detached assessment of the police evidence; what reliance is to be placed on the confessions which are alleged, and so on; the likelihood of witnesses being interfered with; the legal aspects of the case; the sufficiency of evidence; and points of law on which the whole case may founder in the end. The advocate at that stage must be ready to cross-examine defence witnesses who are called, and to test and to reply to submissions made on behalf of the applicant, often by a defence advocate of great experience.
Competence, experience and knowledge are all essential. The applications are made in chambers where no transcript is kept and of course the public are not present. It is important therefore that in such proceedings, where the liberty of the subject is an issue, the applications should be scrupulously and professionally handled.
Paragraph 3.18 of the White Paper says that this work has hitherto been entirely satisfactory. I do not know what "hitherto" means; it must mean before the creation of the CPS. I do not know where the noble and learned Lord finds the evidence that such work was entirely satisfactory. From my own experience, and what I have heard, it is precisely the opposite.
No doubt the provision appears in the Bill at the behest of the DPP. We all know that the CPS is hopelessly understaffed and overworked, and that using unqualified clerks and other staff would no doubt lighten the load. However, the White Paper says that to use clerks in this way,
"is an efficient use of resources".
That is surely a chilling phrase and I am afraid that it is indicative of much of the thinking behind the Bill. What the phrase really means is that because of chronic underfunding, the Crown Prosecution Service cannot fulfil its statutory duties. So the right to use unqualified staff is sought at the expense of the public and the proper administration. I beg to move.
Lord Campbell of Alloway: I wish to support the amendment for every reason given by the noble Lord, Lord Hutchinson. It is difficult to make a good bail application. It is almost as difficult as making a good plea in mitigation. It affects the liberty of the subject. I ask my noble and learned friend the Lord Chancellor to keep an open mind, as he always does, on the merits of this problem. I wish to advert

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briefly to the problem —this is a purely personal problem —which arises as regards Clause 24(3). I simply do not know what the words,
"for reasons which apply to him as an individual",
mean. I do not know what they could mean or how they could be interpreted.
It appears that we are to equate the most experienced Silk at the Bar with some kind of clerk employed by an authorised body. If such be the new egalitarian approach so be it, but the following questions arise. What do the words,
"for reasons which apply to him as an individual",
mean? Is it right that in anything which concerns the liberty of the subject there should not be some safeguard for proper, efficient, informed and totally expert representation?
Lord Mishcon: In rising to support the amendment I do not intend to repeat all the good reasons that were advanced so eloquently by the noble Lord, Lord Hutchinson. I merely add another reason for submission to the Committee, which is that one of the main reasons for setting up the Crown Prosecution Service, with which everyone in this Chamber agreed, was that there should be an effective service independent of the police which would make judgments on a professional basis. We thought that such judgments would therefore be seen to be fair as well as, we hoped, actually being fair. It requires a great deal of courage, even if a clerk had the necessary experience, to go against the view of the police that bail should be opposed. It needs a professional man with professional experience and knowledge to make that important decision. I add that as another reason to the many cogent reasons which were advanced by the noble Lords, Lord Hutchinson of Lullington and Lord Campbell of Alloway.
Lord Renton: It is a tradition of the Bar that when prosecuting we should never be persecutors. That tradition has been followed, generation after generation, as a result of the training and upbringing of members of the Bar. I am not saying that those who have not had that training are incapable of learning, but if we want to be sure that justice is maintained and that the wise practices which have prevailed in the past are continued, we must step very warily. I wish to support this amendment for that reason.
I wish to congratulate the noble Lord, Lord Hutchinson, on spotting the fact that unless his amendment to Clause 24 were made, difficulties would arise when we came to leave out Clause 77 which he proposes that we should do. In order that we may keep an open mind on Clause 77 we need to have this amendment here now. The other point I wish to emphasise —this point has already been made —is that surely disappointing experience has shown that the Crown Prosecution Service already has more than enough to do preparing cases without adding to those who have that responsibility the burden of appearing in court. I think that my noble and learned friend would be very wise to accept this amendment or something like it.
Lord Wigoder: I wish to add one brief observation in support of my noble friend Lord Hutchinson. It is quite right and natural that emphasis should be placed upon the fact that great hardship can be caused to a defendant if his application for bail is wrongly refused. Equally, as my noble friend has mentioned, there is a matter of great significance to the community involved here because there have been cases, many of which will occur to the minds of Members of the Committee, where defendants who have applied for bail have been released on bail and have committed serious offences while on bail. The only inference I draw from those two facts is that the judge who is trying the issue is entitled to all the help he can get from both sides. That means in this case the help of professionally qualified people to assist him in coming to what is often a difficult conclusion.
Lord Coleraine: I also wish to support the amendment of the noble Lord, Lord Hutchinson. I believe that the experience of all solicitors who practise in the criminal courts, as I do not, leads firmly to the conclusion that it is absolutely vital that those who make decisions whether or not to oppose bail and those who present the case to the court against bail should be suitably qualified people and not the kind of people envisaged by this clause.
Baroness Macleod of Borve: I also wish to support the noble Lord, Lord Hutchinson. I feel strongly that in this particular case of bail, after having for many years tried to solve the problem myself, it is vital for the man or woman concerned that he or she should have legally qualified representatives, especially in the case of the judge in chambers where, as the noble Lord has said, no members of the public are admitted and very few notes are kept. Those two factors together make it vitally important that this amendment should be added to the Bill.
Lord Murray of Epping Forest: The noble and learned Lord the Lord Chancellor has throughout our discussions rightly impressed on us the fact that one of the central purposes of the Bill is to improve the service to what he and I prefer to describe as the client but which many people refer to as the consumer. I should have thought that in this context the anxieties that some clients or consumers may feel that their case may be put in a second rate way should be a cogent thought in all our minds. From the point of view of the chap who has to try and get bail, he is entitled to the best counsel going. He would have little confidence in persons whom the Bill proposes to allow to conduct cases.
The Lord Chancellor: I understand the matters that have been raised as regards Clause 77. Some Members of the Committee may be under the apprehension that I am proposing in Clause 77 to allow a defendant to be represented in this way. Clause 77 allows the Director of Public Prosecutions to designate certain officials employed by the Crown Prosecution Service who are not legally qualified to make representations in bail applications if acting on the instructions of a Crown Prosecutor. In other words, the Crown Prosecutor would be in charge

17
of the situation but the person designated by the Director of Public Prosecutions would be able to present the application, even if he were not qualified. That is the purpose of Clause 77.
Clause 24 is certainly not appropriate to cover that matter. Clause 24(2)(e) is intended to deal with a solicitor's clerk —that is, a clerk employed by a solicitor —
"or corresponding employee of a recognised body".
The latter refers to a solicitor's incorporated practice. I submit to the Committee that that clause could not cover a person employed as part of the Crown Prosecution Service. Such a person would not come under the definition of a solicitor's clerk.
The rights of audience preserved under Clause 24(2)(e) are rights of audience for solicitors' clerks in chambers in the High Court in circumstances which have existed for very many years and which were confirmed as long ago as in the case of Vimbos Ltd v. Meadowcroft in 1901. There is no intention whatever of Clause 24(2)(e) applying to that. The idea is that the matter should be dealt with in an appropriate substantive clause, such as Clause 77. I have heard what has been said on the matter covered by Clause 77. I should certainly like an opportunity of conferring further upon it.
As to this particular clause, in my submission the person who is described in Clause 77 is not a person who would come under the category of a solicitor's clerk or corresponding employee of an incorporated practice within the meaning of the clause.
3.30 p.m.
Lord Mishcon: Would the noble and learned Lord agree that whereas an "authorised body" is defined in the Bill, that is not true of a "recognised body?" I may be wrong about that, and if so I apologise to the noble and learned Lord. Even if it is so defined, is he quite sure that a recognised body would not cover the Crown Prosecution Service?
The Lord Chancellor: The definition of "recognised body" is contained in Clause 81, which reads:
"'recognised body' means a body recognised under section 9 of the Administration of Justice Act 1985 (incorporated practices)".
I intend to modify the definition for another reason. However that is the definition which applies for the purposes of the clause and it is intended to cover incorporated practices. I do not believe that that could possibly cover the Crown Prosecution Service. Naturally I shall make certain in view of what has been said.
Lord Campbell of Alloway: My noble and learned friend did not answer the question which I asked. To save time I shall not ask him to answer now. I asked what was meant by:
"for reasons which apply to him as an individual".
I merely ask that he takes the matter on board with a view to excising it from the clause at some future stage.
The Lord Chancellor: I apologise. I dealt with the main point and I should, of course, have answered
18
my noble friend. The circumstances that I have in mind are unruliness or similar behaviour. One can envisage circumstances in which a person who has rights of audience may not be in sufficiently good health at the time or may be in an unruly mood on the day in question. The intention is to preserve the judge's power of control in his own court. The right of audience should not be regarded as in any sense overriding that. That is the purpose of the provision and I am happy to improve the way in which it is described. The Committee will appreciate that the subsection may have to describe a variety of different circumstances.
Lord Donaldson of Lymington: Perhaps I may mention a matter which is relevant to that point, although perhaps neither that nor what I have to say is relevant to the amendment. The noble Lord, Lord Campbell, asked what was meant by
"for reasons which apply to him as an individual".
The most obvious and serious example, albeit not a common one, is where someone seeks to address the court on behalf of another but has himself been made subject to an order under Section 42 of the Supreme Court Act 1981 as a vexatious litigant. Under the 1981 Act it was never contemplated that somebody who was a vexatious litigant so found could be employed to appear in the superior courts on behalf of others. Accordingly that section is restricted to appearing as a litigant in person.
It seems to me that a judge would be fully entitled, when faced with a litigant in person seeking to exercise rights of advocacy before a tribunal, for example, quite apart from a court, to say that under subsection (3) he would not hear the litigant for reasons which applied to him as an individual and giving reasons under subsection (4). I mention the matter because, as I have already told my noble and learned friend the Lord Chancellor, I should hope that there could be an express statutory provision dealing with the matter to avoid the judge having to labour the matter and give those special reasons.
Lord Hutchinson of Lullington: I am very grateful to the noble and learned Lord for his explanation of the interpretation of paragraph (e). Yet again —and it will not be the last time in the Bill —one has been misled as to the possible interpretation of the meaning of the words used. However, having regard to what the noble and learned Lord has said and the clear interpretation he has given to those words, I am content to withdraw the amendment.
I am also grateful to the noble and learned Lord for his observations about Clause 77. It may be that the discussion we have had today will shorten the discussion when we come to Clause 77. In those circumstances I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Minister of State, Home Office (Earl Ferrers): In order that we may take the Statement, I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

Hillsborough Disaster: Inquiry Report
3.36 p.m.
Earl Ferrers: My Lords, with the leave of the House, I shall now repeat a Statement being made by my right honourable friend the Home Secretary in another place about the final report of Lord Justice Taylor's inquiry into the tragedy at the Hillsborough stadium on 15th April 1989, which is published today.
"Some months have passed since that terrible event but not long enough, I know, to dull the pain suffered by the bereaved, and I wish to place on record my sympathy for them and for those who sustained injury. I am most grateful to Lord Justice Taylor for the report which sets out clearly why we have had so many major tragedies at football grounds over the years and why we have had disorder and hooliganism. As the House familiarises itself with the report, it will become clear that it is addressed as much to the football industry as it is to the Government. Lord Justice Taylor explains how in his interim report he concentrated on overcrowding because that was the cause of the Hillsborough disaster, but now he goes on to talk of a game, the image of which has become much tarnished, and of a blight over the game due to old grounds, poor facilities, hooliganism, excessive drinking and poor leadership.
"Lord Justice Taylor does not spare those who run the industry. He says indeed that the provision they make for their customers is often not merely basic but squalid, and he says that squalid conditions can have an impact on safety and that in his view they also lead to lower standards of behaviour.
"Lord Justice Taylor says that the Football Association and the Football League have not seen it as any part of their duty to offer guidance to clubs on safety matters, and he questions whether the directors of many clubs are genuinely interested in the welfare of their own supporters or their good behaviour. Players too are criticised, with Lord Justice Taylor pointing out that incitement from the pitch or bad behaviour by players, which is not confined to soccer, has a major influence on the crowd. I acknowledge that some clubs have made an effort to improve standards, but Lord Justice Taylor's clear conclusion was that the majority had not and that the game only has a future if the directors and the players can change their own priorities and give a leadership which is plainly lacking at present.
"He agrees with the Government that there must be a move towards all-seater stadia and points out that Section 11 of the Football Spectators Act specifically provides the machinery for this. The change will improve safety and will improve behaviour, and we intend to bring it about. Lord Justice Taylor makes clear that the bulk of the finances for ground improvements will have to be raised by the clubs themselves. He says there are many ways of raising the money if the clubs' management is enterprising and resourceful
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add he points to the opportunities presented by sponsorship. He also points to the revenue that flows to the football authorities for television rights and says that the football authorities should ensure that this valuable source of revenue is directed towards improving stadia. He canvasses the possibility of a levy on transfer fees which he says have reached a level which many regard as grotesque.
"There are a whole series of detailed recommendations set out in chapters 3, 4 and 5 on matters relating to spectator safety such as gates and gangways. Indeed, of the 76 recommendations, 43 in substance appeared in the interim report. The Government accept these proposals, some of which can be implemented immediately. Some will need further work. For convenience I have placed in the Vote Office a schedule setting out the Government's response to each.
"Honourable Members will recall that Section 13 of the Football Spectators Act provides for the Football Licensing Authority to supervise the safety responsibilities of local authorities in respect of designated football grounds. We intend to implement that provision. Lord Justice Taylor welcomes the establishment of the Football Licensing Authority but would like us to go further and extend its remit to cover other than football grounds. This would require primary legislation and we will have to consider whether it is justified.
"Part III of the report contains a number of proposals relating to crowd control and hooliganism. It acknowledges the crucial role of the police in crowd control. Lord Justice Taylor rightly reminds us that, without the work of the police, many sporting events would be chaotic and could not be permitted to take place. Something like 5,000 police officers are engaged on football duties each Saturday during the season, largely at the expense of the taxpayer and ratepayer. He pays tribute to them for their service. I want to add my thanks to the police for the way they carry out the difficult, thankless and often unthanked tasks which are thrust upon them.
"The report recognises the advances made in the last couple of years in the effectiveness of the policing of football, particularly inside grounds, and to the major impact of closed circuit television on the hooligan problem. It also mentions other measures taken by the Government such as the restriction on the sale of alcohol and the power given to the courts to make orders excluding convicted hooligans from grounds.
"Lord Justice Taylor also recognises the great potential value of the police national football intelligence unit in dealing with football-related crime and with hooligans travelling to matches abroad.
"As I have said, Lord Justice Taylor takes the view that better facilities and better treatment of fans will bring better behaviour. Beyond that, the report recommends the creation of three new specific offences to apply at designated sports grounds: throwing a missile; chanting obscene or

21
racialist abuse; and going on to the pitch without a reasonable excuse: and it also asks for consideration to be given to extending the courts' powers to impose attendance centre orders and for the use of electronic tagging in the case of offenders convicted of football-related offences. The specific new offences suggested do to some extent seem to duplicate offences which are already available in the Public Order Act. But I shall look carefully and quickly at all these suggestions.
"I now come to the proposed football membership scheme. Lord Justice Taylor examined the invitation to tender for a scheme which was issued by the consultants employed by the football authorities. He came to the conclusion that he could not support a scheme of that kind because he did not believe the technology would work well enough to avoid the danger of congestion and disorder. He was also concerned about the call on police resources. Instead he proposes the measures to which I have referred.
"In the light of this advice, the Government have decided not to proceed with the establishment of a football membership authority, but Part I of the Act will remain on the statute book. Work will continue to see how the shortcomings identified by Lord Justice Taylor could be overcome in case we have to return to the matter again, should the problem of hooliganism not be defeated by the alternative strategy proposed in the report.
"Let no one imagine that this means there will be any let-up in the fight against hooliganism. Those who, unlike Government, have for so long shrugged off their responsibilities will now have to face up to them. The Government intend to proceed as quickly as possible to the establishment of a Football Licensing Authority and, subject to consultation, Section 11 of the Football Spectators Act will be used to direct the licensing authority to require all-seater stadia —with standing being reduced by stages and entirely eliminated in First and Second Division grounds by August 1994 and in all designated Football League grounds by 1999. The necessary steps will be taken to ensure improved arrangements for crowd control and better training for police and stewards. There will be urgent consideration of the case for new offences and for new powers to deal with those excluded from grounds by the courts.
"The clubs will be compelled to get rid of the terraces. But Lord Justice Taylor indicates how much more they can do to create a better atmosphere by improving the now often squalid conditions to which they subject their supporters —squalid conditions which can encourage squalid behaviour. Those clubs which have not faced up to their responsibility now have a final opportunity to do so and if they do not now act, the public will not forgive them."
My Lords, that concludes the Statement.
3.46 p.m.
Lord Mishcon: My Lords, I should like to thank the noble Earl for his courtesy in repeating the
22
Statement and to congratulate him on his ability not to stutter and stammer with shame when he came to deal with Lord Justice Taylor's finding on the football membership scheme.
As noble Lords have heard, this is a long Statement. It consists of some eight pages and the reference to the scheme, which forms Part I —and a very important part —of the Bill fills up one paragraph of those eight pages. What a waste of public funds, football club funds and parliamentary time, all caused by sheer, blind obstinacy.
I must remind the House, if it needs any reminding, of what happened on the Second Reading of the Bill not just on the Benches from which I speak, but on opposition party Benches and on the Benches occupied by those members of the government party who also wanted to tell the Government that the scheme would cause more violence, not less, and that technically it carried with it goodness knows how many disadvantages. The Government did not listen.
At Committee stage we went one stage further to save parliamentary time and to prevent the Government from walking into an absolute mess and muddle. We, on these Benches, proposed at least a phasing in of the scheme so that there might be an experiment which we knew would show what Lord Justice Taylor found. What did the Government do? They called in the hordes to vote on that amendment. Many of those whom they called in carried with them identity cards. They were not football identity cards; they were House of Lords identity cards just in case, as happened, the attendants in the House did not recognise them as Members of the House.
It is a sorry state of affairs that through sheer inability to listen the Government have placed themselves in this position and do not have the grace to say, "We were wrong". The Statement is made by way of excuse for all the time and money wasted. Part I will remain on the statute book just in case one day in the future, if everything else fails, it must be used.
I turn now to what is in the Statement. Your Lordships are in the same position that I am. We have not had an opportunity in any way to read the Taylor Report and study it. However, the Statement highlights a few of the recommendations that have been made.
I do not suppose that anyone in this House will disagree that the condition of football grounds in many cases in the First, Second and Third Divisions is pretty deplorable. Safety and other standards have to be improved. I doubt whether it is right or even practicable to leave the funding for all that to the football clubs alone. There will have to be some co-operation between the football clubs, the football pools organisations and the Government. It may be that one way of funding is to allow some revenue advantages to the football pools which may enable them to subscribe more generously to this very important cause.
I shall not say anything more about the new criminal offences to which reference was made in the Taylor Report and in the Statement which the noble Earl repeated. When repeating the Statement,

23
he said that it was most likely that those matters were covered by the existing law. Regarding one of the matters mentioned, which unfortunately is a sorry feature of quite a few grounds and has happened on quite a few occasions, namely, the chorusing of racial and obscene abuse, I have been told that at the moment the police find it extremely difficult to bring a charge under the Public Order Act. I know that the noble Earl, together with other Members of the Government, will be looking at the possibility of clearly strengthening that power. I should have thought that the same would apply to the throwing of missiles.
When it comes to getting on to the pitch unreasonably, I suppose that one had better exercise a little caution before making that a crime. It is not that anyone would want to encourage rushing on to a pitch in order to cause a riot or behave in a way that may occasion some kind of civil unrest on the ground. However, as I said, I feel that possibly the noble Earl will agree with me that one would have to word that criminal charge with the greatest of care.
I end by repeating that the Government have caused themselves considerable embarrassment. I can only hope that it will be a lesson to them, and when the Opposition say something so sensible, as they often do, in the future will they please listen?
3.54 p.m.
Lord Harris of Greenwich: My Lords, I too join the noble Lord, Lord Mishcon, in thanking the noble Earl for having repeated the Statement. I do not believe that any junior Minister has had a more extraordinary Statement to make to this House since I have been a Member of it. The only regret that I would express is that there was no indication whatever of any expression of regret on the part of the Government that such large sums of money held by many not particularly well-to-do football clubs had to be expended in a campaign to bring sense into this matter.
First of all, before coming to the Taylor Report itself, I should like to ask one question. I understand that the report was submitted by Lord Justice Taylor to Ministers last Friday week —10 days ago. Since then, versions of this report have been produced in one newspaper after another. The leaks could only have come from government departments because only Ministers had that report. It seems to me extraordinary that the Government have behaved in such a manner.
They have subjected Lord Justice Taylor to a series of quite deplorable attacks. Some of them have come from the members of the noble Earl's own party in the House of Commons. There have been editorials in newspapers such as The Times, all of which were written by journalists who were basing their judgment on leaked reports from Ministers. It seems to me that that has been an act of gross discourtesy to Lord Justice Taylor. I hope that we shall have no repetition of such deplorable behaviour in the future.
I turn now to some of the less controversial recommendations of Lord Justice Taylor. It would
24
be unwise to come to any settled view about some of his more important recommendations until one has had the opportunity to read his report. Speaking for myself, I certainly think that there is a great deal to be said for all-seater stadia. On the other hand, although First and Second Division clubs can no doubt look after themselves, it is almost impossible to believe that Fourth Division clubs will be able to raise the amounts of money necessary in order to build those stadia. I very much hope that we shall not have a doctrinaire approach by the Government on this matter.
Concerning the three new criminal offences which are suggested by Lord Justice Taylor, again I believe that it would be ill-judged to come to a quick decision. Certainly in the past we have seen far too much throwing of missiles, chanting of racial abuse and running on to football pitches. It may well be necessary to amend the criminal law so far as those actions are concerned.
Lord Justice Taylor rightly drew attention to the poor conditions that exist at many football grounds. It is quite right that urgent priority should be given to improving conditions. Just as squalid streets and squalid housing conditions increase the level of violence in our society, so do squalid conditions at football clubs.
Of course the unusual language in this Statement, directed at the football authorities, is being used to disguise one of the most important recommendations in Lord Justice Taylor's report. The Government have been obliged to retreat on the central issue of the Football Spectators Act —what it was all about in the first place —namely, the foolish, ill considered proposal for a statutory football membership scheme. That was the Prime Minister's own proposal, supported loyally by a junior Minister in the Department of the Environment, Mr. Moynihan. It was introduced by that department and not by the Home Office, which is responsible for public order legislation.
The scheme never had the wholehearted support of the police, as the noble Earl is quite well aware, and some of his colleagues admitted as much while the Bill was going through this House. I believe that one of them said that the police were neutral on the question. I have never known the police to be neutral on any question involving public order legislation. Experienced police officers knew that there were risks involved in the introduction of this scheme and they said so.
The fact of the matter is that they were ignored, as were Members of all parties in this House when they spoke on this matter. At Second Reading, to which the noble Lord, Lord Mishcon, referred, there was overwhelming opposition from Members on all sides of the House. Again the Government chose not to listen to any of that criticism. Now it is clear that Lord Justice Taylor has come to the same conclusion in scuppering this silly, ill thought out proposal. We all owe an enormous debt to Lord Justice Taylor.
4 p.m.
Earl Ferrers: My Lords, I am grateful, I suppose, for what the noble Lords have said. This is a matter

25
of great importance. I am bound to say that I was surprised that the noble Lord, Lord Mishcon, employed so much of his speech making, if I may say so, political points and haranguing the Government for what they had —
Noble Lords: Oh, oh!
Earl Ferrers: It is all very fine, my Lords, for noble Lords to say, "Oh, oh!" I did not say that when I listened to the noble Lord, Lord Mishcon, when he said that the Government had been showing sheer blind obstinacy and referred to their inability to listen.
Let us reflect a little on what happened. The fact was that football was being subjected to the most intolerable hooliganism and the football authorities were advised to try do something to put their sport in better order. They did not do so and the Government decided that they could not see such hooliganism going on without taking some measures. Therefore the Government brought in the Football Spectators Bill.
Of course it was controversial. No one denied that. If the noble Lord, Lord Harris, believes that it is easy for any government to introduce a controversial measure, I can assure him that that is not so. However, the Government did so because they were determined to try to make football a better and cleaner sport. The noble Lord said that since becoming a Member of this House he has never heard a junior Minister make such a disagreeable Statement. If he had been a Member for as long as I have he might have found that other equally disagreeable Statements have had to be made. The Government introduced the Bill and the scheme in order to try to prevent hooliganism.
After the disaster we asked Lord Justice Taylor to look at all the circumstances of Hillsborough. However, he felt that he could not support the invitation to tender under the scheme if it was made on the proposed basis. Therefore, the Government decided to accept the Taylor Report in full. The noble Lord, Lord Mishcon, now turns round and blames the Government for that. If before the Taylor Report the Government had determined to go ahead with the scheme because they felt it to be right, the noble Lord could rightly have castigated them. However, we decided to accept the Taylor Report and all the recommendations with the qualifications that I have made.
Many of the other recommendations relate to the football clubs. At paragraph 26 of his report, Lord Justice Taylor states:
"The picture revealed is of a general malaise or blight over the game due to a number of factors. Principally they are: old grounds, poor facilities, hooliganism, excessive drinking and poor leadership".
It is important to note that at paragraph 53 he refers to the clubs, upon which he puts a great onus of responsibility. He states:
"Boardroom struggles for power, wheeler-dealing in the buying and selling of shares and indeed of whole clubs sometimes suggest that those involved are more interested in the personal financial benefits or social status of being director than of directing the club in the interests of its supporter customers".
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They are fairly tough words. If Part I of the Football Spectators Act is not introduced, reliance is placed on the remainder of Lord Justice Taylor's report to ensure that football is successful. For that, much depends upon the football clubs.
The noble Lords, Lord Mishcon and Lord Harris, could not fail to refer to that. The noble Lord, Lord Mishcon, said that the funding should not be left to football but that we should give revenue advantages for the football pools. We must accept the fact that the football business is part of the leisure industry. Football clubs invite people onto their grounds and it is up to them to make sure that they are as safe as they should be, in the same way as a cinema or theatre would be expected to be a safe place for people to visit.
It is considerably stretching a point when the noble Lord says that, in order to obtain conditions which have not been right heretofore, it, is up to the Governnment to provide funds in the form of tax relief or whatever. Of course such matters will be considered but I am bound to tell the noble Lord that we believe it to be the duty of the football authorities to put their house in order.
4 p.m.
Lord Dean of Beswick: My Lords, I listened with interest to the Minister's Statement. I have spent a long time as a Member of your Lordships' House and of the other place debating a succession of Bills dealing with football. I was surprised that the Minister showed chagrin when my noble friend on the Front Bench levied criticism at the Government for the way in which they delivered the Statement.
I recall amendments which were moved in this House which may well have got the Government off the hook and which anyone in their right mind would have thought reasonable. During the various stages of the Bill through this House we attempted to exclude old-age pensioners from the ID system. Unfortunately, the Government thought it logical to class every old-age pensioner who wanted to watch a football match as a potential mugger or hooligan.
We tabled another amendment to exclude all women but that was not accepted. The Government believe that all women who wish to go to football matches must be of the Amazon type. We also wished to exclude season-ticket holders. I pointed out that it is almost impossible to obtain a season ticket for the top clubs. It is almost like waiting for dead men's shoes. Of course the Minister said that the proposal was nonsense because potential hooligans would be queueing up for the season tickets. I said that I could see no situation in which someone would queue up to pay £250 for a season ticket in order to become a football hooligan.
Many reasonable approaches were made from all sides of your Lordships' House—no particular party or group of Members had a monopoly —but they were thrown out and completely disregarded. It has clearly been shown that the Bill was brought forward totally on the initiative of the Prime Minister and that no one else wanted it. During Question Time in another place last week she made points which the Minister was almost parrot-like in repeating in his Statement.

27
The noble Lord, Lord Harris, pointed out that as regards all-seated stadia few clubs outside the Second Division and some within could survive if the criteria repeated by the Minister are carried out to the letter. Most of the big clubs have all-seated stadia and are not overly worried. Clubs such as those in Manchester, Liverpool and London are already near to that target.
However, the Minister reflected on the way in which that could be financed. Recently in another place Mr. Joe Ashton pointed out the fact that the Government receive more than £200 million a year in taxation from football clubs. I recently tabled a written Question when the noble Lord, Lord Young, was on the Front Bench. I received the most appalling Answer: the figure was not known and had not been identified.
If the Government are concerned about keeping our national sport and making it safer —and I do not say that the clubs are blameless because some of the transfer fees paid are nonsense —then in looking at the financing of all-seated stadia they must consider returning some of the taxes that they gather from football in order that the clubs can get on with the job.
I hope that the House will have an opportunity of debating the report because I do not agree with everything said by Lord Justice Taylor—
Lord Renton: My Lords, we have a great deal of other business to get through today. I understand that questions may be asked about a Statement but that speeches may not be made.
The Lord Privy Seal (Lord Belstead): Before my noble friend Lord Ferrers replies to the noble Lord, Lord Dean, we must not make a Statement an occasion for a debate. I know that there are deeply held feelings on this matter but your Lordships' Procedure Committee, with the agreement of the House, has ruled that we should take 20 minutes for a Statement. Discussion has now taken 24 minutes. It is a matter for the House to decide. Perhaps I may suggest that noble Lords who wish to weigh in —and I am sure that there are some —do so briefly in the form of questions for the House.
Earl Ferrers: My Lords, perhaps I may answer the points that the noble Lord, Lord Dean, made. He found it difficult to resist the temptation to rehearse some of the arguments that we used during the passage of the Football Spectators Bill. I do not wish to become involved in that. Obviously the question of a debate is a matter for the usual channels.
Lord Lyell: My Lords, will my noble friend accept our gratitude for giving us the Statement about which we have been hearing a great deal. Some of us look forward to reading the report from cover to cover, as we were advised by our right honourable friend the Prime Minister. We might learn from it if we do so. Let us not forget that 95 human beings died at the match at Hillsborough. That is the core of the Statement this afternoon. If the final report of Lord Justice Taylor is anything like his interim report, I
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believe that all of the football industry—spectators and everyone connected with it —will have cause to thank Lord Justice Taylor.
Perhaps I may ask my noble friend three questions. First, he has mentioned transfer fees. The figure mentioned in another place last week was £70 million. How much does my noble friend consider that a levy would contribute to the enormous bill that will be incurred by the implementation of the recommendations of Lord Justice Taylor? Does he accept that a fee not far removed from £900,000 was paid by one club last week to a Scottish club? It would quite easily have been an English club. That Scottish club proposes to spend more than 90 per cent. of that alleged fee on an all-purpose stadium for itself as well as for the use of the local community. Where would the funds for that come from if they do not come from transfer fees?
Secondly, my noble friend referred to a proposed offence of chanting racist abuse. Does that also cover religious abuse or other unattractive forms of abuse? How far shall we be able to go?
Thirdly, will my noble friend consider the slogan that has been adopted by the city of Glasgow, "Glasgow smiles better"? I believe that the tenor of much that has been said this afternoon is a replay of one aspect of the Football Spectators Bill. I believe —and I hope that my noble friend will accept it —that the work done by Lord Justice Taylor merits a smile upon the face of football as well as of government.
Earl Ferrers: My Lords, I am grateful to my noble friend for that. I hope that football will be able to smile better, as he puts it, as a result. I agree with him that the report should be read in its entirety and not one particular part of it.
The figure of £75 million for transfer fees is what it is anticipated will be spent during the year 1988–89. For the year before that the figure was £36.7 million. My noble friend asked what the levy would be. It has first to be decided whether there should be a levy; and Lord Justice Taylor's suggestions have to be considered on that basis. That is not the only method of funding. It is therefore impossible to say what any such levy would be.
On racial abuse, the Government have to consider whether or not it is already covered under the Public Order Act.
Lord Jenkins of Hillhead: My Lords, perhaps I may ask the noble Earl whether he can give us his guidance on one aspect of the Government's handling of this matter that is troubling my mind. We hear a great deal from the Government these days about the need to defend the sovereignty of Parliament against depredations from outside. Is it not also the case that the football membership scheme had almost no friends either in your Lordships' House or in another place but that the Government were impervious to that and drove the provision through by whipped majorities? We then had a chance —and chance it was —in that a Lord Justice of Appeal was sitting because of the accident of a terrible tragedy. The Government's attitude is totally torpedoed by a Lord Justice of Appeal,

29
whereas they have completely ignored the feeling in both Houses of Parliament. How does that square with talk about the sovereignty of Parliament?
4.14 p.m.
Earl Ferrers: My Lords, it squares perfectly well. The Government produced a Bill because they were concerned about the state of public order and the conduct of football matches where people were being subjected to the most terrifying things including death. They brought the Bill into Parliament and the Bill was passed. Parliament then had two other opportunities to discuss what was going to be produced when the scheme, as it was, was introduced. Parliament then had the right to give its views on that. When a disaster occurred my right honourable friend asked Lord Justice Taylor to consider everything. Lord Justice Taylor stated that he could not support this part. The Government accept that.
The Earl of Onslow: My Lords, if my noble friend takes notice of the Lord Justice will he take more notice of the Lords of Appeal on the courts Bill? It might be interesting to see the difference in attitude on the advice given.
Earl Ferrers: My Lords, I regard that as a frivolous interjection and nothing to do with the Statement.
Lord John-Mackie: My Lords, Aberdeen has an all-seats stadium. My friends and family who attend that stadium say that it has made a tremendous difference. The time that the Government are giving football clubs to provide all-seats stadia is too long. The Minister should pay attention to what the noble Lord, Lord Dean, said about the Government helping through taxation. The Minister said that it is a leisure issue and should receive no help. However, other leisure areas such as tourism receive help. The Government should not shut their eyes to that aspect.
Earl Ferrers: My Lords, I am grateful to the noble Lord, Lord John-Mackie, for at least saying that the Government are being too generous in their treatment of the football situation. I shall bear in mind what he said. When I gave my reply about taxation, I implied that it was a matter for my right honourable friend. Of course the suggestions of Lord Justice Taylor will be considered. I gave the overall view of the Government.
Lord Hatch of Lusby: My Lords, I have not had an opportunity to read the report. However, on the Statement made by the noble Earl, I agree with him and with Lord Justice Taylor on the strictures about the conduct of many football clubs in this country and the gross transfer fees that have been bandied about. But that is part of the socio-economic system that the Government support. I also agree with the strictures on the actions of some players. I was glad that the noble Earl said —and I believe I heard him correctly —that it was not just soccer players who were to be condemned for giving a bad example on the field of play.
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Having said that, I should like to take further the point made by the noble Lord, Lord Jenkins of Hillhead. I do that in a personal capacity. On 20th February last year, at cols. 412 and 413 of Hansard, I warned the Government against the increased dangers of the use of identity cards, dangers which had been pointed out by the police, the clubs and supporters. Unfortunately, six weeks later at Hillsborough that warning was borne out in tragic practice.
That point was made on all sides of this Chamber. It was not just those noble Lords in Opposition. The noble Lord, Lord Harmar-Nicholls, moved an amendment partly dealing with that very point. Lord Justice Taylor has now confirmed the warnings which we then gave to the Government. I repeat what my noble friend Lord Mishcon said at the beginning: how is it that the Government have no apology to make to this House for the amount of parliamentary time and public money which have been wasted because they would not listen at that time to reasoned arguments from those of us who had some experience of football grounds? How is it that the will of one woman was allowed to prevail—
Noble Lords: Order!
Lord Hatch of Lusby: —against the criticisms of her own supporters as well as those of us who are politically opposed to her?
This was not a political issue but an issue of experience and common sense. We warned the Government at that time of the dangers of their ID scheme. Lord Justice Taylor has now borne out that warning. The Government listen to Lord Justice Taylor but do not listen to Parliament. Apparently they are not prepared to come and say, "We were wrong. We regret the time and public money which were wasted. We shall not put into effect the scheme which took so much time in this House and in another place and which took so much money, much of which came from the clubs themselves".
Earl Ferrers: My Lords, the noble Lord, Lord Hatch, seems to be momentarily unaware of the parliamentary processes. A Bill only reaches the statute book with the approval of both Houses of Parliament. This Bill had that approval.
He asks why the Government have not apologised. The simple answer is that the Government asked the football authorities to do something about the game because of the disasters which had occurred. The authorities did not do that and the Government brought in a Bill to try to meet that criticism. That is why that Bill was brought in. Therefore, there is no reason to apologise for bringing in a Bill which is aimed at trying to combat hooliganism. The noble Lord keeps trying to interrupt from a sedentary position. He has asked me a question and I am endeavouring to answer. Of course the Bill was controversial. Lord Justice Taylor has now looked at the matter and has advised that that part of the Bill should not be brought into effect, and we accept that advice. However, let us be clear that this Bill passed both Houses of Parliament.
Lord Stoddart of Swindon: My Lords, are we to have a debate on the report?
Earl Ferrers: My Lords, that is a matter for the usual channels. I am sure that if the noble Lord wishes to pursue that he will do so.

Courts and Legal Services Bill [H.L.]
4.24 p.m.
House again in Committee on Clause 24.
Lord Renton Lord Renton moved Amendment No. 139 AZA:
Page 19, line 11, at end insert—
("(2A) No person shall have a right of audience as a barrister by virtue of subsection (2)(a) above unless he has been called to the Bar by one of the Inns of Court and has not been disbarred or temporarily suspended from practice by order of an Inn of Court.").
The noble Lord said: This amendment adds a new subsection (2A). It is supported by four noble Lords who have been treasurers of each of the four Inns of Court. Those Inns of Court have not so far been mentioned in the Bill. I was treasurer of Lincoln's Inn; the noble and learned Lord, Lord Ackner, was treasurer of Middle Temple; the noble Lord, Lord Hooson, was treasurer of Gray's Inn; and the noble and learned Lord, Lord Bridge of Harwich, was treasurer of Inner Temple.
Our amendment follows paragraph 3.10 of the White Paper. The purpose of it and the need for it, which is very considerable, are twofold. The first arises because the word "barrister" is not defined in the Bill, so it should be made clear, we suggest, that in England and Wales the only way in which a person can become a barrister is by being called to the Bar by one of the Inns of Court. That has been so since the 15th century.
The second reason for the amendment is that it is surely necessary in the public interest that the Bill should make clear that no barrister should retain the right of audience after being disbarred or while temporarily suspended from practice. I suggest that this is clearly a necessary amendment. I beg to move.
Lord Ackner: I do not wish to take up the time of the Committee, which is anxious to get on. I assume that this is non-contentious. Perhaps my noble and learned friend the Lord Chancellor can indicate that now. If he can, I shall weary the Committee no further.
Lord Hooson: I was going to say something very similar. Looking at paragraph 3.10 of the White Paper, it seems to me that it is probably an oversight that this provision was left out of the Bill. Perhaps the noble and learned Lord the Lord Chancellor can indicate his view on this.
The Lord Chancellor: I welcome the principle of this amendment and wish to give effect to it. If my noble friend Lord Renton, the noble Lord, Lord Hooson, and my noble and learned friends Lord Ackner and Lord Bridge of Harwich are agreeable,
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I wish to take the advice of parliamentary counsel as to the precise way in which this should be done.
I personally had in mind that something of this sort was required but I felt that it was primarily a matter for the General Council of the Bar to resolve with the Inns. I am told that that is agreed. Therefore, I am happy to give effect to the amendment, particularly as I happen to be an honorary bencher of the Inner Temple.
Lord Renton: I too have been told that this amendment has the blessing of, at any rate, the officers of the General Council of the Bar. I am very grateful to my noble and learned friend the Lord Chancellor for saying that he will have this amendment looked at by parliamentary counsel. It would be surprising but very exciting indeed if parliamentary counsel found that our wording was acceptable. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Hutchinson of Lullington Lord Hutchinson of Lullington moved Amendment No. 139B:
Page 19, line 11, at end insert—
("(2B) Nothing in this section shall permit an employee of a prosecuting authority to have a right of audience to conduct trials on indictment.")
The noble Lord said: In moving this amendment, I cannot be as brief as the movers of the last amendment because I suggest that it raises a matter of principle of great importance. This is a principle which has been considered in depth by two Royal Commissions and by the Marre Committee.
The question at issue is:is it in the public interest that prosecutions should be conducted in the Crown Courts by employed lawyers, either on the staff of the prosecution service or as civil servants in various government departments? A second question is raised. Under the provisions of the Supreme Court Act 1981 the noble and learned Lord the Lord Chancellor has the power to direct that solicitors may have rights of audience in the Crown Court. He has similar powers under the Prosecution of Offences Act in relation to employees of the Crown Prosecution Service. Although Clause 24(1) states in terms that the rights of audience shall be determined solely in accordance with Part II of the Bill and although the powers of the judges to regulate rights of audience have been swept away, it appears that the powers of the noble and learned Lord the Lord Chancellor will continue.
A careful examination of the repealing Schedule 13 shows no sign of repeal of either section of the Acts of Parliament I have mentioned. Although there was no reference to the point in the speech of the noble and learned Lord at Second Reading, it would appear that there is a back-door possibility of all prosecutions in the Crown Court being conducted by employees of a state prosecution service and of the procedures under Schedule 4 of this Bill being entirely bypassed. Therefore, I suggest that this matter of principle should be discussed by the Committee. It was put very clearly by the Benson Royal Commission at paragraph 18.43. In moving

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this amendment I can do no better than quote the report where it says
"In one significant aspect the present arrangements serve what many regard, we think rightly, as an important public purpose, by ensuring that in the Crown Court the case for the prosecution is put by an advocate who is independent both of the police and of the prosecuting authority. Whatever the outcome (of the Royal Commission on Criminal Procedure) we think that the effect of the present arrangement on prosecution work should not be disturbed. It provides in every case an advocate … who is seen by the court, the accused and the public at large to be independent of the police and of the prosecuting authority; one who, by the nature of his training and daily practice, is more likely to be able to bring the essential qualities of detachment and balance to bear on the problem in individual cases. These are considerations which we regard as crucial not only to the actual conduct of a jury trial but also to the proper administration of justice in general, including the institution or continuance of criminal proceedings, the acceptance of proposed pleas of guilty and the proper handling of evidential problems".
This amendment seeks to maintain that principle. The Royal Commission on Criminal Procedure stressed the importance of public confidence in the prosecution process. It recommended that the new service should brief independent advocates in all cases tried on indictment in the Crown Court and that there should be a clear separation of responsibility for the conduct of a prosecution from the investigation process. The noble and learned Lord's Green Paper re-emphasised this point at paragraph 4.15:
"Advocates who provide representation in the more serious cases which are tried in the Crown Court should not, in any given case, have been involved also in the investigation of the evidence".
The Marre Committee stated that the prosecutor's independence is one of the constitutional safeguards provided against the risk of wrongful convictions.
The reasons behind this amendment are manifold and go to the very heart of the way in which justice is administered in England and Wales. The prosecution advocate must act and be seen to act as a minister of justice. He must be seen to be independent of the police and the prosecution authority. His duties are far wider that those of the advocate in a civil court. He has a greater independence from those instructing him. He must not press a case beyond what the evidence permits. He must not invite conviction by a jury on evidence which, in his judgment, no longer sustains the charge. He must not put forward a witness as a witness of truth if, in his opinion, that witness no longer enjoys credibility. He must disclose any information in his possession which might go to establish his innocence of the accused. In other words, his duties to the court must override any duty which he owes to his employer, any government department, Minister or to the police.
The Royal Commission condemned the polarisation which existed in some magistrates' courts between those appearing invariably on the side of the authorities and those invariably in opposition. Following an extensive study of other jurisdictions, in particular that of Scotland, the Royal Commission stated at paragraph 18.45:
"Experience outside the United Kingdom suggests that this would be a retrograde step to take, and would not contribute to demonstrably just and fair results".
It would be a disaster if certain prosecutors came to be known, as they inevitably would, as the district
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prosecutor in a particular area —the district attorney of the United States system.
Polarisation inevitably leads to the concept of a public defender. All the evidence indicates that within a prosecution service efficiency and promotion are measured by the rate of convictions secured. Relations with the police and involvement with the preparation of cases inevitably get too close. Eighty-eight per cent. of all prosecutions are now within the control of a single national prosecution service. Its influence and power as a consumer of advocacy talents is now immense. If this monopoly takes over prosecutions in the Crown Court, the day of the independent advocate, prosecuting and defending, free from the pressures of employers and police, administration and investigation will be over.
The principle of independence upheld by both Royal Commissions was endorsed publicly by this Government in 1984, 1985 and March 1987. The noble and learned Lord, Lord Hailsham, described it as "an assured safeguard of individual freedom". The Attorney-General stated that the public interest requires such presentation.
I should like to conclude by referring to government departments. Officers of Customs and Excise have powers of entry, search and detention which far exceed those of the police. Such powers are exercisable in most cases, without the need of a judicial warrant. The officers control an informers' fund from which they make substantial payments. They have a duty to maximise the collection of revenue and have powers therefore of compounding and mitigating penalties as alternatives to prosecution. Does individual freedom not cry out for protection in this regard? The use of informants, the discontinuance of prosecutions and the whole problem of the agent provocateurs require a ruggedly independent assessment to retain the confidence of the courts and the public.
As regards the Inland Revenue, the Judicial Committee of this House has recently made a number of reported comments about the undesirability of the incompetent presentation of tax cases before the commissioners. The only support for this idea comes from the Andrew report on government legal services which was concerned with the problem of recruitment of lawyers of sufficiently high calibre. The report says to give a right of audience would be,
"to give a much needed fillip to the morale of the service and make the work more attractive to the higher quality recruits which are so badly needed".
Yet again an essential principle is discarded in order to repair a penny-pinching policy which condemns a governmental service to second and third rate standards. The creation of this huge nationalised monopoly, protected from the forces of the market place, surely does not sit happily with the Government's philosophy supposedly underlying this Bill. I suggest that it is for Parliament to introduce a state prosecution advocacy service if that is what is required. I beg to move.
Lord Havers: When I was Attorney-General I became increasingly dissatisfied with the system that operated at the Central Criminal Court as regards

35
Treasury Counsel. There were two teams of Treasury Counsel who did nothing but prosecute. It was a rare exception to find a QC there. They were mostly called legal aid QCs because that was the only way in which they could be made to appear. Against quite a great deal of opposition I insisted that there should be at least 20 cases with a duration of a minimum of 14 days in which QCs should prosecute on behalf of the Director of Public Prosecutions. I did that for all the reasons which the noble Lord, Lord Hutchinson, has so ably put forward.
I do not like the idea of having staff prosecutors. It tends to lead —and it did so at the Central Criminal Court —to what is suggested as perhaps rather too cosy an atmosphere between prosecuting counsel and the judges. That is a risk which would occur frequently in the courts if this amendment is not passed. For these reasons I support it.
Lord Boardman: I understand that the amendment moved by the noble Lord, Lord Hutchinson, is not based on the incapacity of an individual who has been given a right of audience but on the fact that he is employed by the Crown Prosecution Service. I understand that and I also understand what was said by the noble Lord, Lord Benson, in his report. What worries me is, if it is said that one cannot get independence from police and prosecuting authorities by the employment of counsel for prosecutions in the Crown Court, how do we obtain sufficient independence in the lower courts?
In the magistrates' courts it is normal for the prosecution to be conducted by a member of the Crown Prosecution Service. If the noble Lord, Lord Hutchinson, is right in saying that this can and is likely to lead to injustice, are we satisfied that regarding similar prosecutions in the magistrates' courts, where inevitably the link between the police, the prosecuting authorities and the advocate prosecuting is very close indeed, we are obtaining justice? It is the difference between the apparent two standards of justice that concerns me very much as regards this amendment.
Baroness Phillips: I neither agree nor disagree with the noble Lord, Lord Hutchinson. For many years I sat as a magistrate in the magistrates' court, which conducts most of the business in the course of justice. I was always full of admiration for the prosecution. Though it was usually the same person, because he was often given the case by the police, there was a dispassionate prosecution of the case which always engaged my admiration. I believe the prosecutions were presented with great fairness and simplicity. That could not always be said for defending counsel, who often took a very emotional stance.
I would not wish this occasion to pass without making a comment. It appeared to me that there was a slight slur on the quality of the people involved. Perhaps the noble Lord, Lord Hutchinson, did not mean that. Having sat as a magistrate I could not fail to be impressed by the quality of the people who carried out the prosecuting service and often, I suspect, for a very poor salary. While I do not enter
36
into the merits of the case, I want it on the record that these people carried out a service with great impartiality.
Lord Renton: This amendment refers only to trials on indictment and not to the magistrates' court at all. For the reasons so fully given by the noble Lord, Lord Hutchinson, in his powerful argument, I too support this amendment.
4.45 p.m.
Lord Wigoder: Is not the answer to the noble Lord, Lord Boardman, that one simply cannot provide for everything in this world? It is important in every case that the prosecutor should be a person of independent mind. It is even more important in cases tried on indictment because they are of even more importance to the community as a whole.
In supporting every single word uttered by my noble friend Lord Hutchinson, I produce one concrete illustration of the position which he was putting forward. Within the past couple of weeks there has been a trial of a gentleman whose name I cannot remember and who was an acquaintance of Mr. Stalker whose name I can remember. That trial came to an end half-way through because prosecuting counsel, who was a very distinguished QC with a lifetime of experience of both presecution and defence work, took the view that it was not appropriate to continue with the case. He said so to the judge and that ended the case. Whether he was right I do not know because I do not know enough about the facts of the case to determine that point.
I ask the Committee to consider the situation if he had not been there and the Crown had been represented by a full-time employee in the Crown Prosecution Service. Would that individual have felt as free as counsel did to come to that same conclusion, bearing in mind that he would have to go back to the office at the end of the day, work with his superiors who had been running the case and no doubt investigating it for very many months? That individual would depend on his colleagues for his prospects of promotion in years to come. Is it not wholly unrealistic to expect a person in that situation to be as fearless as the Queen's Counsel who was conducting the case to which I referred? Is not that a simple example of, first, the importance of coming to the right conclusion in trials on indictment and, secondly, of ensuring that they are not conducted by full-time employees of the prosecuting authority?
Lord Mishcon: I rise because of the implication that appears to be part of this case; namely, that if you are an employee-lawyer you lose your judgment, integrity and independence. If I were a doctor I would resent it if it were assumed that, because I was an employee-doctor, I had less independence as regards the advice that I gave or the ability with which I behaved as a doctor. We must be very careful before we go down that road.
The important consideration is the question of standards. I heard the noble and learned Lord, Lord Havers, make, as always, a very sensitive contribution. Possibly it was ultra-sensitive in one thing that he said. He said that during his eminent

37
period as Attorney-General he saw to it that there was not so frequent a presentation of the case on behalf of the prosecution by particular counsel for, among other reasons, the fact that he might be in too cosy a relationship with a judge. That belittles the standard of the judge and it belittles the standard of prosecuting counsel. I should have thought that everything depends on the standard we want of the Crown Prosecution Service.
Everything depends on the management at the top of that service saying that it wants its employees to behave in the same way as counsel. They are qualified lawyers. If in the middle of a case —I believe that the name of the party in the case to which the noble Lord referred is Taylor —counsel, whether he be an employee counsel, an employee solicitor who has rights of audience, counsel or an independent solicitor, finds that his professional duty is to discontinue a case, he should discontinue it. That is the standard we want of our Crown Prosecution Service.
Of course there will be occasions when because of the complexity or delicacy of a case independent counsel should be instructed. But are we to say —this is what appears to the reasoning behind the amendment —that those who are employed carry out their duty with presumably promotion or keeping their jobs in mind, or is it the integrity of the profession that they joined, whether they be employees or independent? For that reason, I am against the amendment.
Lord Hailsham of Saint Marylebone: I would not have intervened in the debate but for what the noble Lord, Lord Mishcon, has just said. Being an advocate is not quite like being a doctor. I have practised at the Bar on and off—sometimes because I was in the army and sometimes because I was in office —since 1932. If one appears only for the prosecution or only for defendants, although one may be the most honourable man in the world, one gets a certain cast of mind. Looking at my own conscience and casting aspersions at no one, I found that it was of immense benefit to me in my profession that I prosecuted as much as I defended and that I defended as often as I prosecuted. I am sure that that is the truth about advocacy. I have only one point to add. We must never forget that our Bench —our judicial Bench —is recruited from successful practitioners. It is vital that they should have experience of more roles than one.
Lord Ackner: My noble and learned friend the Lord Chancellor said last Thursday that he avoided the word "consumer" and used the word "client". Of course we cannot use the word "client" very conveniently in this context; we should use the word "consumer". The consumers of advocacy talents are the judges who try the cases. It is therefore perhaps helpful to hear what the council of Her Majesty's circuit judges said in their response to the Green Paper. Those judges are at present recruited from both barristers and solicitors, and thank heavens nobody else. They say:
"If rights of audience were granted to the CPS we envisage an unhealthy divide whereby the CPS would monopolise the presentation of prosecutions, whilst barristers and solicitors
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would be left with defence work. Thus the vital experience of appearing on both sides and developing a balanced view, an essential factor in the proper training for judicial office, would disappear.
"Apart from cases which can be presented in a very short time (generally in the magistrates' courts) we consider that a lawyer employed by the CPS would never be able properly to devote himself to a case which took over a day to present. The pressure of disposing of pending office work and his workload, and transferring work to a colleague because the instant trial could not be concluded as early as expected, would provide harmful distraction".
That is a practical reaction to what has been erected by my noble friend Lord Mishcon into some attack on employed lawyers.
It is no attack at all. It was the reason why the Royal Commission emphasised the importance of the practising advocate, the barrister, who was seen by the court, the accused and the public at large to be independent of the police and the prosecuting authority and who because of the nature of his training and his daily practice could bring an air of detachment to the proceedings. This in overclogged trials is of vital importance. A person who is detached as a prosecutor can reach a decision through his independence that a case should not be proceeded with, that a plead to a lesser offence subject to the judge approving it might be appropriate and could be accepted and that certain evidence could be dealt with as common ground. It was no doubt for this reason that in 1983 the Government in their White Paper approved the very recommendation of the Benson Commission that the present situation should continue.
It seems odd that a government who are wedded to the policy of privatising virtually everything in sight should wish in fact to turn the prosecution service into the very reverse, a nationalised part of the legal industry so to speak on the lines of the American system of the District Attorney, and should not allow the situation to continue as it has for many years in the hands of those who specialise in this particularly difficult task.
Lord Campbell of Alloway: I should like briefly to deal with the point made by my noble and learned friend Lord Havers which was taken up by the noble Lord, Lord Mishcon, and, with the greatest respect to the noble Lord, was wholly misunderstood. It is an important point. Were it not I would not detain the Committee for one moment in this long debate.
My noble and learned friend Lord Havers said that as Attorney-General he introduced a new regime into the Old Bailey and he went on to explain it in detail. That regime had the most beneficial results. I speak as one who does not spend his life at the Old Bailey although I go there two or three times a year. I shall be there next month. I know roughly what is going on. I assure the noble Lord that from my experience of talking to others at the Old Bailey the cosy relationship that was beginning to grow between the Crown prosecutors and the judges was not a figment of my noble and learned friend's imagination. It was a reality which was openly talked about in the Bar mess. That is one of the reasons why at Second Reading I took only four exceptions to the Bill. Three of them were met on Clause 14 by my noble and learned friend the Lord Chancellor.
Lord Mishcon: Is the noble Lord telling the Committee, which, thank heavens, consists of members of professions and callings other than lawyers, that the fact that a judge happened to see counsel very often and that therefore I suppose a friendship might ensue would in the slightest degree affect the mind of the judge in the way that he summed up to a jury? If that is what he believes, all I can say is that it is not my picture of a judge.
5 p.m.
Lord Campbell of Alloway: The noble Lord must realise that that is not what I said, and not what I am saying; I am saying that how it appears is exactly how my noble and learned friend, Lord Havers, and I, sought to describe. It is a reality of appearance. It is something which is most undesirable. Moreover, it moves one very near to the state prosecutor system to which I objected as a matter of principle and conscience on Second Reading. It is for that reason that I rise to support the intervention of my noble and learned friend.
As regards the other matter mentioned by my noble friend Lord Boardman, I dealt with that issue on a previous occasion. Indeed, what I said is already reported in Hansard. I entirely endorse the way in which the noble Lord, Lord Wigoder, dealt with the matter. There is no object in any further repetition. Serious crime on indictment is not comparable with crime tried in a magistrates' court. There is absolutely no warrant for cavilling the distinction which has been made.
Lord Renton: Before my noble friend sits down, perhaps I may intervene. I think that his argument is increased by the fact that on indictment there is a jury to be considered but that is not the position in the magistrates' court.
Lord Campbell of Alloway: I am most grateful to my noble friend.
Lord Boardman: In saying that he believed that trials on indictment are very different, will the noble Lord say whether he accepts the following. If independence of the prosecution is essential for trials on indictment, why is it not essential for prosecutions in the lower court? Alternatively, does he believe that a lower standard of justice can be accepted in the lower courts than that for trials on indictment?
Lord Campbell of Alloway: One has to be realistic: in theory, there are budgets and means which must be considered. I accept that the standard of justice in a lower court is not as high as the standard of justice in a higher court. Indeed, I do not see how it can be. It is a different system but basically justice is done. However, I cannot see that there is any form of objection to pointing out the difference between trial on indictment where serious crime is tried and where you have an independent prosecutor and a trial in a magistrates' court.
Baroness Phillips: It seems to me that the noble Lord has forgotten some of the text books which
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he read as a young man. Surely crimes which are indictable are also often heard in the lower courts. As I recall, in the case of theft the defendant is given the option by way of a form of words whereby he is told that he has the right to be tried in a higher court. Therefore, there is no difference between certain crimes; indeed, many people elect to be tried in the lower courts.
The language which has been used is most unfortunate. The quality of justice in 80 per cent. of our small courts is as good as that which is to be found in the hallowed portals of the High Court to which he noble Lord referred.
Lord Campbell of Alloway: I am not seeking to denigrate —although, it may seem so —the quality of justice in the magistrates' court; I am trying to draw a distinction between trial on indictment where there is a jury and where there is one standard, and trial in a magistrates' court where there is clearly a different standard. Surely that is obvious to everyone.
Lord Gifford: I am sorry that my absence abroad has meant that I have not been able to attend the proceedings of the Committee on this important Bill before now. As regards this amendment, and some other parts of the Bill, I feel that my colleagues at the Bar, and certain noble and learned Lords on the Cross-Benches, are guilty of a degree of rigidity in seeking to put into the Bill hard and fast rules about who should, and who should not, appear in particular courts. That policy could operate very much against the public interest.
Of course there are cases where the Director of Public Prosecutions should, and no doubt will, brief the best Queen's Counsels in the land to prosecute. Indeed, there is no provision in the Bill to prevent him from so doing. However, I am opposed to a clause, by way of amendment, which requires him and the Crown Prosecution Service to brief counsel in every case of a trial on indictment whether or not the demands of the public interest or that of the public purse —or, indeed, a comparison of the qualities of the advocates in each case —would suggest that that was the right course.
Frankly, the quality is uneven on both sides. For example, I have certainly known members of the Bar who have taken the detached and independent view which the noble Lord, Lord Hutchinson, described. However, there are also members of the Bar who prosecute as if their future careers depended upon maintaining that prosecution. Moreover, there are barristers who have had to be restrained by the Bench from continuing with a case which in the opinion of the Bench should not proceed. Further, there are cases which should never have been proceeded with by independent prosecutors.
Equally, there is the question of the level of advocacy of the Crown Prosecution Service. When briefed in magistrates' courts recently, there have been times when I have been astonished at the mastery of the law and the skills which those opposing me from the CPS have displayed. They have told me that the trouble is that there is no real pinnacle at which they can aim because advocacy at

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certain levels is debarred from their careers. That depresses both the quality of the person who is attracted to join the CPS and the standards of advocacy which he or she is encouraged to display and to learn.
One difference between the employed barristers and their performance and the independent barristers is if—and this will happen —a prosecutor is seen to develop a narrow and state-minded view by prosecuting and maintaining prosecutions when the evidence or cause of humanity should not require it, there is at least someone to whom we can complain. There is a sytem of accountability. There is the director who has the oversight of the Crown Prosecution Service to whom one can complain. However, as I mentioned, when members of the Bar have wrongly pursued prosecutions, there has been no recourse because they are independent.
Let us maintain a degree of flexibility in the matter. If this flexibility was available, it would mean that the choice was open to those responsible for prosecutions, both in the interests of economy because there are times when many pleas must be taken in one court and one wishes a single officer to undertake them; and also in the interests of standards because there are times when the in-house lawyers will undertake this better. Morever, it would be in the interests of the quality of service given to the public.
Lord Harmar-Nicholls: I do not doubt for a minute that the last observations made by the noble Lord are right. Whatever system eventually comes into being by virtue of this Bill, there will be good and bad, and almost good and almost bad whichever consideration you apply.
I presume to intervene in the debate because I believe that this is more of a psychological decision rather than the legal one which has been presented. I was most impressed by the point made on the issue by my noble learned friend Lord Hailsham. Regarding my legal approach, I should tell the Committee that I am the longest serving student member of the Middle Temple. Unfortunately, I never got beyond that particular point. However, I have sat as a magistrate for 40 years and therefore I have had that kind of experience at that sort of level.
I have also owned and run businesses. One was a group of hotels, where I was responsible, as the owner, when a barman watered the whisky and the gin. After the matter was tested the case had to be brought to court. It was the owner who was accused of having carried out that misdemeanour, although it was nothing to do with the owner, and the man who had been responsible was quickly dismissed, even before the case went to court.
We employed a retired clerk to the licensing justices to advise us on our defence. When the amount of dilution, and how it had been done, was looked into it was clear that we had been just as much the victims of the misdemeanour as the customers who had been defrauded. I remember that retired licensing justices' clerk helping us with our defence. There was no doubt that the drinks had been watered, but after we had carried out experiments to
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work out our defence and mitigate our responsibility, the lawyer said, "I have sat as the clerk to the licensing magistrates for a number of years. I never appreciated the defence point of view in a case such as this. I am certain that if I had been responsible for prosecuting my outlook would have been different from what it is after having had to examine the matter from the employer's point of view".
I hope that that is the point that my noble friend had in mind. Advocates who have to establish guilt or innocence should have had experience of prosecuting and defending. If a person's sole experience has been that of a professional prosecutor, psychologically he is not as likely to use independent judgment, even halfway through a case. I was impressed, as one always is, by the noble Lord, Lord Mishcon, when he defended the integrity of prosecutors whether full or part-time. That is the difference that I see. He is correct: it would not make all that much difference when they were considering where their duty lay. If they have been in the rut of being a prosecutor, they are not as likely to be open minded when they deal with a case as they would be if, as my noble friend said, they had had experience on both sides.
Lord Mishcon: I hope that the noble Lord, Lord Harmar-Nicholls, will forgive me if I say at once that I wish that he had continued his studies at the Bar, because he would have adorned the profession had he been called. Had he gone on with his studies and read a little about licensing law, he would have known —I say this with deep deference —that the job of the licensing justices has nothing to do with criminal offences or the trial of them. The question is merely whether licences should be granted. In such cases one has experience on both sides of saying to the magistrates "I think that the licence should be granted" or "I think that the licence should not be granted". That has nothing to do with prosecuting or defending.
Lord Harmar-Nicholls: I had hoped that I had made that point clear, but it is obvious that I had not made it clear to the noble Lord, Lord Mishcon. The point I was trying to make had nothing to do with licensing law. I was trying to make the point that the lawyer—in the same profession as the noble Lord —who has sat for many years in the courts, mainly on the prosecuting side, may not have appreciated the defence point of view. I agree with what the noble Lord said. It is nothing to do with licensing. The psychological point made by my noble friend should be taken rather more into account than the rigid legal points that the professional lawyers have made in the many speeches that I have heard.
5.15 p.m.
The Lord Chancellor: The attempt is being made in the Bill to establish a framework in which and under which matters relating to rights of audience and rights to conduct litigation should be considered and determined. An important aspect of the proposals is that the rules of conduct and rules of qualification of anyone enjoying those rights of

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audience will require the approval not just of the Lord Chancellor but of the four heads of division, including the Lord Chief Justice of England, the Master of the Rolls, the President of the Family Division and the Vice-Chancellor.
If we are to have a proper framework, we should be able to consider the issues that may affect the conduct of those who have those rights. If the Committee were to accept the amendment, which I fervently hope it will not, it would be saying that if a barrister who has had 20 years' experience of defending with great success passes into the service of the Crown Prosecution Service he would immediately thereafter be debarred from conducting a prosecution. I do not know whether the amendment is intended to deal with the position of the Directors of Public Prosecutions. I should regard it as a gross insult to a person of the standing of the Director of Public Prosecutions to say that merely because he holds an office or is employed he could not exhibit independence of mind.
I understand that when one sees a system operating one sees its advantages and, as my noble and learned friend Lord Havers has pointed out, even under the existing system one could have an arrangement whereby someone prosecuted for too long. That was the situation that existed in the Old Bailey, with private practitioners prosecuting, which he found and corrected with, as he put it, a certain degree of tribulation from various quarters. I happened to be a colleague of his at the time and I recollect the position to some extent. Changes of that kind, even when well intentioned, are not always popular with all those affected by them.
The idea that merely because someone is employed he cannot be independent is absolute nonsense. If that were a sound principle I would share the concerns expressed by my noble friend Lord Boardman, the noble Baroness, Lady Phillips, and others, as to whether it would be right to have employed people prosecuting in the magistrates' courts. It is true that circumstances may differ from one court to another. The framework is intended to take account of that position. It depends upon the court and the proceedings as to what the rule should be. To establish at this stage, and to lay down as if it were an incontrovertible proposition, that someone who is employed cannot be independent strikes me as absurd.
I should like to leave the matter open and consider it in relation to the machinery which we are seeking to set up. One possible effect might be greatly to improve the tradition of the employed service. As the Committee is aware, I had the opportunity of being responsible for some five years for a state prosecution service when a great many jury trials were conducted in the sheriff court by those who were in the full-time service of the state. The traditions of the procurator fiscal service in Scotland greatly encouraged the idea of independence. There are faults and human failings in all systems, but one thing those in the service were good at was detecting difficulties in the evidence put before them by the police.
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The idea that merely because somebody is employed he cannot be independent strikes me as indefensible. On the other hand, I entirely accept the point made by my noble and learned friend Lord Hailsham, as well as the psychological point which my noble friend Lord Harmar-Nicholls made. There may well be much to be said for having arrangements under which people do not always work on one side or the other. For example, there might be much to be said for the idea that if those who are employed by the Crown Prosecution Service had spent some time in defence work at the Bar before they were taken into the service, they would be the kind of people who might be thought appropriate.
There might also be the possibility of short-term contracts. I do not see that it needs to be a lifetime service. My right honourable friend the Attorney-General will have responsibility for supervising that matter. If it were ever to be decided under the machinery that we seek to set up that this should happen, the contracts could be quite short-term. There are a variety of possibilities for securing these aims.
One other point on employment is that these days a certain degree of security of employment exists. A person cannot be turned out of his employment just because he took a decision to discontinue a case. He would have a very good case under which to defend himself if that happened. Alternatively, if those instructing a barrister took the view that he gave up a case too readily, they could cease to instruct him from then on without any right of appeal to anyone or any security behind him on which he could challenge that decision.
I know that my right honourable friend the Attorney-General has taken steps to deal with that matter; it requires action. We are dealing with facts. The mere fact that someone is employed does not seem to me to demonstrate beyond peradventure that he cannot be independent. Therefore I implore the noble Lord —although I quite understand that he puts this forward on the basis of the highest possible desire to achieve excellence —to allow the matter to be dealt with as part of the overall consideration of this legislation. The advisory committee and the profession will have responsibility for it and the designated judges will have responsibility under it. I sincerely hope that the matter will be left that way.
I believe that these proposals require to be explored under a framework which might well produce benefits not only for trials on indictment but also for those, the vast majority of which take place in magistrates' courts, where surely it is just as important that justice should prevail. It is just as important that fairness and independence should be exhibited by the prosecutor. I quite see that the more important the case, the higher the consequences. But many of the cases in the magistrates' court are also of great importance. It is surely essential that the principle of independence should run there.
If the amendment were to be passed, the impression would go out from this Committee that we could not expect independence from employed prosecutors in the Crown Prosecution Service in the

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magistrates' court. I do not believe that to be right: independence is something which we should strongly aim for. I hope that the noble Lord will feel minded to take the course that I have suggested.
Lord Hutchinson of Lullington: I am sorry but I find the reply of the noble and learned Lord completely unconvincing. If I may say so, with the greatest possible respect, the reply comes from someone who has operated under the system in Scotland which was examined in depth by the Royal Commission. As the noble and learned Lord knows perfectly well, it was dealt with in the report.
The noble and learned Lord kept saying over and over again that he would think it insulting to suggest that the Director of Public Prosecutions could not exhibit independence; that members of the CPS could not be independent. This goes to the whole essence of the Bill. Restrictions on advocates are placed there not because the advocate cannot be honest; or because the advocate cannot be disinterested; or because the advocate cannot help owing a loyalty to his employer and so on. These restrictions are put upon advocates in order to make it clear to the public and to persons concerned with legal services that the advocate is honest and independent; not that he is incapable of being so.
The restrictions applying to the advocate's occupation —such as not being in direct contact with witnesses before they are called; not handling clients' money; and not being involved in the preparation of a case which the advocate will put forward —do not mean that otherwise he would be dishonest. Those rules assist the advocate to uphold the highest possible traditions of honesty. It is far easier to be honest if an advocate is not in direct contact in the high street with a criminal. It is much easier if the advocate only sees the criminal in the company of a third party. It is much easier not to be dishonest if he never handles clients' money. It does not mean that the advocate would be dishonest if the rules did not exist.
Surely the noble Lords, Lord Gifford and Lord Mishcon, have again entirely missed the point. The point is one of balance. They know perfectly well—everyone who has spent any time in court knows —that a person who spends his whole time doing one type of work (prosecuting, for example) cannot, even if he is the most honest advocate in the world, show the balance which comes from a varied practice. Everyone can see that; it is patently obvious. It was a major point made by all the members of the Royal Commissions and the inquiries which I have quoted.
We have only to look at the matter and to ask ourselves honestly, "Would it be appropriate for judges to be appointed from those who have only prosecuted in their careers as advocates?" Would my noble friend Lord Gifford say, "Oh yes, absolutely appropriate?" If we cannot say that it would be appropriate, we have to ask ourselves why. The only reason is that such a person would not have the appropriate balance which is required on the Bench. It is not because he would be dishonest or hopelessly prejudiced. He would not have the appropriate balance to sit in judgment on the Bench.
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That is the point of the amendment. It is not casting a slur on anyone. Every time a former barrister puts forward an amendment, it is suggested —as it was suggested this morning in the Guardian—that it is on behalf of one's own profession, on behalf of one's own interests. It never occurs to such commentators that sometimes one puts forward amendments because one believes that there is something called justice and that the best way of administering justice is in the way one is suggesting. There is no suggestion here of slurs on solicitors or slurs on members of an honourable organisation such as the Crown Prosecution Service. When the noble Lord, Lord Gifford, talks about flexibility that is, if I may say so, pie in the sky or perhaps I should say water in the whisky as regards the Crown Prosecution Service. As I said, I found the reply of the noble and learned Lord unsatisfactory. I do not wish to press the amendment to a Division at this stage. However, I shall read what has been said, give the matter thought and possibly raise it at a later stage because I am convinced that this is a most important principle. However, in the circumstances I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
5.30 p.m.
Lord Rawlinson of Ewell Lord Rawlinson of Ewell moved Amendment No. 140:
Page 19, line 35, leave out paragraph (b).
The noble and learned Lord said: Amendment No. 140 is grouped with Amendment No. 141. However, I wish to speak also to Amendments Nos. 142, 143, 144, 145, 146 and 147; namely to eight amendments. I hope that that will relieve my noble and learned friend and encourage the Whips. I wish to speak to all those amendments at the same time because they have the same effect. They are all designed so that in this part of the Bill there should be retained the separate roles and duties of the separate branches of the profession. In my view the changes proposed in Clause 24 do not constitute a reform which in the public mind is an improvement. I think that they constitute an error which in the long term will harm the administration of justice and the efficiency of the courts and increase the expense of the litigant.
Like my noble friend Lord Hutchinson, I can say that my amendments are tabled in alliance with no one and in consultation with no one. They may be poor things but they are my own. I wish to make it perfectly clear that they are my own amendments. As my noble friend Lord Hutchinson said so effectively just now, the amendments are not put on behalf of anyone else. I have tabled the amendments because I believe in them.
I repeat also what my noble friend had to say about interest. I have absolutely no interest in the future shape of the profession in which I served for 40 years. I have no interest in how lawyers will perform, what they will do, whether judges will be successful or whether counsel are skilful. If I go to my solicitor in future, I shall not seek any kind of interest from the services of the law. It is therefore only because I believe in what I am saying and

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because I believe that my experience may be of some value to some who may be listening that I have tabled these amendments.
My belief that it is better to have separate branches of the profession stems from my knowledge of the profession which I practised for 40 years. I also have some knowledge of other systems where there is a unified profession. Therefore, I can see what the proposal we are discussing will lead to. My views are strengthened by the comments of great lawyers in those jurisdictions who have warned against abandoning the British tradition of the separate branches of the profession.
I believe the profession should be divided into advocates and advisers. I cannot think of a better word for the latter. I believe that those two branches are of equal importance. However, the adviser's role as regards service to the consumer or the client is far more important. It is far more widespread and it touches and reaches many more people. It is the most distinguished and honourable service that can be given.
If there are separate branches then there must be separate disciplines. Those who are advocates must have one discipline imposed by one disciplinary body. By this clause and by others the Government have concocted an elaborate, complicated and in my view unwieldy edifice, dominated, as we discussed last week, by a lay majority which is ignorant of its tasks and the difficulties involved in them. I believe that in practice such a system will not last long and that in a few years a Minister will be back in Parliament to replace it with a straightforward, uncomplicated proposal in which all qualified lawyers will have rights of audience. That is what will happen and that is what the Government's proposal, if adopted, will lead to. The proposal, as the Cabinet desires, will lead to the establishment of the American system where everyone sues everyone else and lawyers are very rich.
Despite having heard the noble Earl, Lord Ferrers, at the Dispatch Box earlier this afternoon recounting a strange change in government policy, I have no illusions that the noble and learned Lord will change his mind. He cannot because the will of the Cabinet will prevail. This legislation could only have been prevented if he and the Law Officers had stopped it right at the beginning. I would say to my noble friend Lord Boardman who is not in his place that I move these amendments not because I do not admire and respect the solicitors' branch of the profession. I have worked with solicitors for 40 years and I had a great grandfather who was one of the earliest presidents of the Law Society. I regret the appearance of a sour release in which I figure from the Law Society as a newsflash earlier today. It was unfortunate, sour and unpleasant.
It is not because I do not believe that some solicitors would make excellent advocates, better than many others, that I object to the provision but because I believe that the present system is an effective and well disciplined system which has stood the test of time and which is on balance superior to those systems in other jurisdictions that I have experienced. The amendments to which I am
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speaking seek to make the sole authorised body the General Council of the Bar and to eliminate the others which the Bill seeks to introduce.
I fear the alternative will lead to a more awkward, ineffective and ungainly service which will limit choice. We talked of that last week when the duty of an advocate not to pick or choose cases was rejected. I believe that that provision will increase the cost to the client. The proposals in the Bill are not a reform but an abandonment of a distinctive and traditional British system which in comparison with others had long led the world. If I move the amendments without hope I shall do so certainly with a certain degree of pride as they seek to rectify the proposals of the legislation. I beg to move.
The Lord Chancellor: I entirely respect the point of view from which my noble and learned friend speaks. I have no wish to introduce into these proceedings any note of bitterness or anything of that kind. I understand his point of view and what he thinks I should have done. However, I had to take what I believed was the right course in the circumstances and make these proposals to my colleagues.
The purpose of the legislation is to enable these matters which have agitated the two branches of this honourable profession for a long time to be resolved. It is probable that they will not be resolved for all time at the first step. I believe that this is a system for evolutionary change which would help to overcome the difficulties that have arisen over past years.
I respect entirely the point of view that my noble and learned friend has put forward. As I said earlier, my noble and learned friend has been very distinguished in putting forward reforms for the internal arrangements of the Inns of Court and the Bar. He saw that they required change. I seek to build on the existing foundations of the General Council of the Bar and the Law Society, primarily in order to see whether changes are required and, if they are required, to provide machinery for carrying them out.
I do not believe that any purpose would be served by my going into the matter at any length. I explained the position at Second Reading. Perhaps my noble and learned friend will feel able to withdraw the amendment.
5.45 p.m.
Lord Simon of Glaisdale: I should like to take up a theme which was adumbrated on earlier amendments. My noble and learned friend the Lord Chancellor has just referred to it again. It is the long-standing dispute over rights of audience and preferment to the High Court Bench which has been running —and I think is still running—between the Bar and solicitors. I do so from two points of view. The first is that—apart from the immediate future —I cannot see that what my noble and learned friend proposes will do otherwise than defeat his own purpose. The second is to tell the Committee that I believe that the problem was within an ace of solution at one time and that a solution is still available.

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I have always found that dispute particularly distressing because I have a feeling that it had social roots stretching a long way back which are entirely anachronistic. They stretch back to the days when the Bar was recruited from the sons of gentry and attorneys from the middle classes. That was a different world, but wounding things have been said in that connection, not least by Dr. Johnson, which have remained.
The solution proposed by my noble and learned friend will on the face of it, by giving equal rights of audience, immediately provide a greater availability of legal services to those who seek them. However, that is only the first step. The next step is perfectly cognisable. Lord Gardiner used to ask (and I never heard an answer): if one provides to solicitors the same satisfactions and rewards as are at the moment available to barristers, why should anybody come to the Bar? Why should anybody suffer those early difficult years, however much they have been splendidly mitigated in recent years by the reforms with which we should particularly associate the noble Lord, Lord Alexander, although his predecessor had a good deal to do with them? Those early years at the Bar can be very difficult.
In contrast, the solicitors' profession also made a number of improvements in the position of articled clerks. The early years in the solicitors' profession do not involve anything like the burdens that face the young barrister. If one offers equal rewards and equal satisfaction, as Lord Gardiner used to say, why should anybody become a barrister? It is not just a question of the early years. There are constant dangers in the career of a barrister. He has no partners. He is dependent entirely on the preservation of his health. When he comes to take silk, that can be a pretty risky step. That again is a hazard from which a solicitor with partners can be preserved. So why, it was asked —and I have not heard an answer—should anyone become a barrister?
If the answer is that they will not, we shall see a gradual decline of the barristers' profession. That will not happen immediately because things do not happen immediately in this country. However, I venture to prognosticate that within five years one will find a substantial falling off in numbers recruited to the Bar. If the Bar falls away, leaving only a few specialist pockets, one will have not more competition and a wider choice of legal services but considerably narrower competition and considerably fewer choices available to the client.
However, it does not rest there. What will happen if the work is done, as I believe it will, by the solicitors' profession? It will not be cheaper. Solicitors' overheads are substantially higher than those of members of the Bar. Therefore, not only will one restrict choice but one will make legal services more expensive.
So, although the immediate step is populist and attractive, if one looks beyond the immediate future one will see that the measures will defeat themselves. I only wish that my noble and learned friend, with his great gifts, had shown a little more patience and sought counsel a little more widely because, as I said, the problem was within an ace of solution.
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In the 1960s the late Lord Diplock and I were both on the Bench but we continued on the Council of Legal Education. We were convinced that it was within the purview of education and training that the long-running dispute could be amicably and sensibly solved. The background was that there were a number of solicitors who had come to the Bar, been very successful and served on the Bench. At that time there was Lord Justice Ormerod, who had been a solicitor, and a colleague of mine, Mr. Justice Payne. A little earlier there had been Mr. Justice Finnemore.
We took a small committee of the Council of Legal Education and sought a similar committee from the Law Society. It was headed by an immediate past-president of the Law Society, Sir Henry Lawson, a most distinguished solicitor and most distinguished president. We discussed the matter and argued it out. At the end we came to a solution.
We concluded that we should have a common education. After three years those barristers who felt that their vocation really lay as solicitors and those solicitors who felt that their real vocation lay as barristers should be enabled to change with minimum training and examination requirements, mainly in such specialist subjects as bookkeeping on the one side and advocacy on the other. The committee of the Law Society accepted that, but unfortunately the Secretary General of the Law Society —a man of commanding personality —had obviously kept his ear close to what was going on. I shall not mention him by name, although I am prepared to do so. He came in and rounded on the solicitors, headed by Sir Henry Lawson, as if they were naughty schoolboys. He said that the Law Society had a principle and a policy on that. That was fusion at the time. The whole thing then fell to pieces, but in my mind it was always ready to be picked up.
If my noble and learned friend had sought counsel more widely, that solution might have been picked up and might have solved the long-running quarrel far more sensibly and amicably than is done. I venture to agree with my noble and learned friend Lord Rawlinson that the Bar is being handed over bound hand and foot to the solicitors' profession. I am sure that within a decade or so there will be a few pockets of the Bar, but no flourishing barristers' profession and that large firms of solicitors with their own in-house advocates will be provided extensively. They will not give wider choice either because, although the solicitor will be asked to advise initially, when the matter comes to litigation he will obviously tend to send the client down the corridor to his partner —the litigation partner.
Although I shall not support the amendments in a Division, I thought that noble Lords should know what is the second step —not the immediate step —and the further consequence by way of choice and expense.
Lord Alexander of Weedon: Before my noble and learned friend Lord Rawlinson replies, perhaps I may intervene briefly, first, in regard to the suggestion that, when the Bill was introduced, there

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was any dispute between the two branches of the profession as to whether solicitors should be eligible for the High Court Bench.
Some years ago the Bar and the Law Society set up a joint committee under the chairmanship of a distinguished independent layman, Lady Marre, to consider various questions of dissent between the two branches of the profession. The membership of that committee comprised a number of solicitors, a number of barristers and a number of independent members who numerically exceeded the number of either barristers or solicitors but were not in a majority. It was recommended in the committee's unanimous report that solicitors should be eligible for appointment to the High Court Bench. That recommendation was made with the consent of all barrister and solicitor members. My noble and learned friend will perhaps acknowledge that that degree of harmony existed before the introduction of the Bill.
While I am on my feet, perhaps I may make one other point. I say with the greatest respect to my noble and learned friend Lord Simon that I understand his anxieties. They are legitimate anxieties, but, in the course of the progress that has so far been made on the Bill, a good deal has been done to meet them. Last week my noble and learned friend the Lord Chancellor accepted the principle of an amendment, which he enshrined in his own amendment, intended to secure that the full interests of the proper and efficient administration of justice should be taken into account. In moving that amendment, one of the considerations mentioned was that the advisory committee, the designated judges and the Lord Chancellor should have in mind the importance of the preservation of an independent Bar in deciding how rights of audience should be determined. If the House and Parliament as a whole are consistent with that principle, it should be possible to fashion the development of rights of audience in such a way as to preserve an independent Bar.
However, it is crucial to that progress that the criterion is accepted, as I understand it has been. The involvement of the designated judges and of my noble and learned friend the Lord Chancellor in the way we make progress is in turn crucial to that process. If we are able to do that —and only if—I hope that the fears expressed by my noble and learned friend will be unfounded.
In that new situation the Bar as a whole is determined to demonstrate by its merits that its services continue to be of value to society.
Lord Mishcon: Perhaps I may say with great respect that the Committee stage of the Bill is hardly likely to progress if speeches repeating arguments advanced on Second Reading continue. I have previously referred to the noble and learned Lord, Lord Simon, in terms of the respect and affection in which he is held, but his speech was a Second Reading Speech. Because he made it, because the Committee listened and because, as the noble Lord, Lord Hutchinson, mentioned, papers like the Guardian have in an editorial speculated whether
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debates on this matter should be limited to members of the legal profession and whether the consumer or client is being properly considered, I must remind the Committee that the rights of the Bar and of solicitors have been mentioned in speeches so far, but that no one has said whether the reforms mentioned will be to the benefit of the public.
I therefore remind the Committee, if it requires that reminder, that those reforms are being instituted as the Government said —this is either right or wrong—for the benefit of the public and to increase legal services and make them more economical. It is the right of every member of the Committee to take the view that the Government do not achieve their aim. However, we give a wrong impression if we limit our speeches to whether matters seem to be of benefit to the Bar and encourage people to go to the Bar or are to the benefit of the solicitors' profession.
Having regard to a remark made by the noble and learned Lord, Lord Alexander, I must briefly mention a little history. He was correct in saying that at a meeting that was held, and in view of recommendations from an authoritative source, it was felt that solicitors should be admitted to the Bench if they were sufficiently qualified. Perhaps I may remind him that I moved an amendment on those lines in a Bill which was in the command of the noble and learned Lord, Lord Hailsham, who was then Lord Chancellor. No one defers in the Committee more than I do to the work done by the noble and learned Lord during his distinguished Lord Chancellorship.
However, perhaps I may remind the Committee and the noble and learned Lord of his answer to that amendment. He said that in his view the only people who could go to the High Court Bench were those who had exercised the rights of advocacy in the High Court. He said that if they had not done so and had not had that experience, in his view they were not fit to be High Court judges. That looks extremely like a vicious circle. If there is an agreement that solicitors can go to the High Court Bench but they are not fit to do so unless they have been advocates in the High Court, one finds oneself in something of a quandary, wondering who then can go to the High Court Bench.
So we have this Bill before us. As I said most respectfully, it has passed its Second Reading. In my respectful submission, if we were to concentrate on what is good for the public, who are our real customers and clients, and not give the impression that solicitors are fighting for the rights of solicitors and barristers fighting for barristers, not only shall we get on much more speedily with the various stages of this Bill but this House will give a better impression of itself generally to the public.
6 p.m.
Lord Hailsham of Saint Marylebone: I should not perhaps have entered into this discussion but for the fact that the noble Lord, Lord Mishcon, made a reference to me and what he said. I beg him to remember, even at the cost of repeating something

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that I may have said at earlier stages of the Bill, that when one is dealing with contested litigation there is no one public interest other than justice.
There are two divided classes of litigant: one asking for something and the other trying to refuse it. They are marxian classes with exactly the opposite interests involved. There are husband and wife in matrimonial cases; employer and employed in personal injury cases; creditor and debtor in contract cases; and so on. The fact of the matter is that we have evolved a system of justice which recognises that the business of contested litigation is based on an evil and not on a good. It is not like electricity or gas which everybody needs at a cheap price and in sufficient quantity —even when the lines break down owing to a hurricane.
It is a fact that we want a justice that is independent and gives due weight to both the defendant who has a reasonable defence and the plaintiff who may be producing a vexatious, frivolous or even perjured claim. It may or may not be the case that one side is right and one side is wrong. We want to evolve a system which does justice between contested cases in the light of the fact that every civilised society needs a quasi-monopoly force and is therefore bound to stop people taking the law into their own hands, as is said.
It so happens that human institutions are of two kinds: the traditional and the contrived. The American Constitution is an example of the contrived; our own system is largely a matter of tradition. I know what the public think. I have given up the Guardian for the Independent. I have done so precisely because of the former's sour and offensive attitude toward those who believe in a traditional system, as I happen to do. If I may use an absurd mixture of metaphors, we are not just fat cats seeking to feather our own nests. We are trying to achieve justice between man and man when they cannot settle their own disputes amicably.
It just so happens that the test of what makes a traditional system good is whether it works. Obviously a contrived system has to be intellectually defensible according to the best intellectual systems of the time, bearing in mind that in 20 years' time there are bound to be quite different philosophies which are popular then.
I agree with my noble friend Lord Alexander that there is nothing more disreputable than a battle between solicitors and counsel. They ought to get on with one another because the real truth is that one is trying to produce a system which gives honesty, integrity, independence and the right result in the end. We have a profession that has an interface in which each branch has a different function and different economics and in which each monitors the performance of the other.
I only want to add that during the war I had the peculiar experience of having at one time to do a solicitor's job because I was the only counsel of any standing east of the Suez Canal who was not employed by either the Provost-Marshal's Department or the Judge Advocate's Department. Against my expressed will, I was constantly being recruited to act as prisoner's friend. I tried to do the
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solicitor's job when I was prisoner's friend and I did it very badly because I did not know how to do it. But I did the advocate's job quite well. I even got a man off who was accused of stealing tyres in Damascus in the street called strait.
I believe that our system is a good one. I say to my noble and learned friend on the Woolsack only that I hope that my noble and learned friend Lord Rawlinson does not take this matter to a Division for the reason that he gave. I believe that the end product of what my noble and learned friend is doing in Part II of the Bill will be to undermine the integrity of the system of justice that we have developed over the years. That is why I make no apology for occasionally giving Second Reading speeches in Committee.
Lord Mishcon: Before the noble and learned Lord sits own, may I take it that the fact that he has not commented on the reply that he gave to my amendment as to solicitors being High Court judges is admitted by him to be a correct paraphrase of what he said?
Lord Hailsham of Saint Marylebone: I never accuse the noble Lord of misinterpreting what I say either deliberately or inadvertently. However, by way of a footnote to what he said I have to say that what I was then arguing was that there should be a greater interchangeability between the branches of the profession. I myself was the pupil master to a pupil who discovered that his gift was not advocacy and straightaway became a very distinguished solicitor.
A number of persons with whom I worked began their careers as solicitors —like the late Lord Widgery, who was Lord Chief Justice —and found that their true function was that of a barrister and changed over. Greater interchangeability, I argued then, was the right answer to the promotion of solicitors to the High Court Bench. In fact I was the Lord Chancellor who introduced solicitor judges to the Crown Court. They were a great success. The only trouble was that very few solicitors wanted to be circuit judges because they found that they could make more money by remaining as solicitors. The trickle, therefore, although of admirable quality, was totally insufficient in point of quantity. If it had not been for the fact that by the time they become judges they are a bit on the old side and long in the tooth, I would have suggested that after a year or two on the Circuit Bench they might have been promoted to the High Court. But that is an argument which is now over.
The noble Lord, Lord Mishcon, who asked me to say just a word before I sat down, has now provoked me into making another speech.
Lord Boyd-Carpenter: Despite that speech, nowadays I disagree reluctantly with my noble and learned friend, Lord Hailsham. That was less so, as he may recall, in the old days on the south-eastern circuit when sometimes I had the privilege of appearing against him and once or twice was successful.
Lord Hailsham of Saint Marylebone: Not the time that I remember.
Lord Boyd-Carpenter: That was a very characteristic observation; my noble and learned friend never remembers his defeats. This is a case in point. However, I do differ from him. If I may say so, I very much prefer the very helpful attitude adopted by the noble Lord, Lord Alexander of Weedon, who seemed to me to approach this matter in a balanced and helpful way.
I support the giving of rights of audience to solicitors, not because of any particular partiality for that profession but because I believe that, as the Government intend with the Bill, it is in the interests of the public. My noble and learned friend Lord Hailsham referred to the interests of justice. I agree with everything that he said on that. But it is perhaps significant that neither he nor any of the noble Lords who have spoken to the amendment referred to the other aspect of the interest to the public —the cost of litigation.
Lord Simon of Glaisdale: Will the noble Lord allow me to intervene? I dealt precisely with that on the basis that the overheads of solicitors are much higher than those of the Bar.
Lord Hailsham of Saint Marylebone: Will my noble friend also forgive me for intervening. I dealt with that matter at very great length at the last sitting of the Committee.
Lord Boyd-Carpenter: I am certainly not exciting the noble and learned Lord to do so again. I was about to refer to the noble and learned Lord, Lord Simon of Glaisdale, when he intervened. He undoubtedly said —it seemed to me very dogmatically —that the change that will be introduced by the Bill would not be economical but more expensive. I was about to deal precisely with that issue. However, the point that I was making before he leapt up to intervene was that he did not seem to be particularly concerned with the cost to the public. I am glad to say that by this Bill the Government are so concerned.
I take up the argument of the noble and learned Lord, Lord Simon of Glaisdale, that the admission of solicitors to the right of audience would be more expensive. Let us analyse it. The noble and learned Lord trotted out the argument mentioned previously that solicitors have higher overheads than barristers. That is perfectly true; but it does not answer the point. The noble and learned Lord knows as well as anyone that if one employs counsel in the higher courts one also has to employ solicitors. One has the cost of a solicitor and all his overheads. One has him sitting beside learned counsel; therefore, one is not saving anything with a solicitor although one is paying an additional amount for the member of the Bar. If the noble and learned Lord really believes that it is cheaper to employ two men than one I can only say that I am lost in admiration of his credulity. It is the fact that one has to employ both a solicitor and a barrister in these cases. It seems to me very difficult to argue that that would be more economical.
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However, I put this to the noble and learned Lord. If he is right —and until the new system is operating no one can be 100 per cent. certain whether he is right or wrong —the public will undoubtedly choose the cheaper alternative. If the noble and learned Lord is right, he need not fear the introduction of this measure because the system that he advocates will be cheaper and therefore more fully employed by the public. But if he is wrong, then it may well be that some of his apprehensions are justified. I do not believe the noble and learned Lord's argument that if one allows solicitors a right of audience the Bar would disappear in a matter of years. I am perfectly certain that great companies and very rich men will employ distinguished counsel when they have high-grade litigation and will go on doing so for years. But it may well be that those who are less well off, who do not have the means to pay for expensive litigation, may decide solely to employ a solicitor. All that the Bill does is to give people who take that view the opportunity so to do.
I very much agree with what was said earlier in the discussion. The Committee should not mainly be concerned about the interests of the Bar, nor the interests of the Law Society and of solicitors. It should be concerned mainly with the interests of the public. It is because the Government are seeking in this way to serve the interests of the public that we have the Bill in its present shape and form. However, there is consolation for those who, like the noble and learned Lord, Lord Simon of Glaisdale, are apprehensive, that if their gloomy prophecies are right, then in the nature of things, matters will not develop in the way that they fear. The system will continue very much as at present. But if the Government are right —as I believe that they are —then solicitors will be employed in advocacy in higher courts.
Lord Renton: And charge a fee for doing so, as they do.
Lord Boyd-Carpenter: The noble Lord, Lord Renton, speaks from a sedentary position.
Lord Renton: I shall stand up and make the point again. The solicitor advocate, in addition to charging a fee for the preparation of the case in the usual way, will also charge an advocate's fee. At present that would go to a barrister. But the solicitor's advocate's fee might be higher because the solicitor's overheads will be higher than those of the barrister.
6.15 p.m.
Lord Boyd-Carpenter: If my noble friend is right, why does he think that anyone would employ a solicitor? That is the fallacy of his argument. If one leaves it to members of the public to decide whom they employ —as this Bill does —they will undoubtedly in general employ the most economical. If my noble and learned friend is right, then he has absolutely nothing to fear. But if he is wrong, he may well have certain apprehensions.
I welcome this proposal as I welcome most of the Bill. I believe that the Government have shown commendable courage in facing the opposition

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which they must have known they would encounter from a profession whose capacity lies in advocacy. It is an exceedingly brave and courageous thing to have done. I applaud it. I hope that the noble and learned Lord the Lord Chancellor will stand absolutely firm on the matter and that we shall see a change that I believe is in the interests above all of the British public.
The Earl of Onslow: As a member of the public who is not a silver tongued advocate, even though he might wish to be, I give my noble friend on the Front Bench the views as expressed by a Surrey or Guildford solicitor to whom I go with regard to my small private affairs of business. I could not afford to go to Linklaters or Travers Smith, or whoever it may be, because they are very expensive. In desperation I might try to afford to go to the noble Lord, Lord Mishcon, because I am certain that he would do a seriously good job. But that is neither hither nor yon.
Small town solicitors are frightened that the big solicitors will get hold of the advocates and restrict the practice of those advocates to the client. Let us take the example of such large solicitor firms as Linklaters or Travers Smith. The public person who has not much money but is outside legal aid will not be able to have access to the Bar. He will not be able to have access to the silver tongued advocates of this world such as the noble Lord, Lord Alexander of Weedon. If I go to him via Messrs Sue, Grabbit & Run of Tolpuddle-under-the-Marsh (or whatever the name of the solicitor is), at least I know that I shall have a cheap fee on the one hand and an expensive fee on the other. But if I go to Linklaters I shall have an expensive fee with Linklaters and an expensive fee with my noble friend Lord Alexander. The problem that we are creating is that if solicitors grab too large a hold over the advocacy skills, the amount of choice available to the public will be reduced and not increased.
Lord Gifford: I wish to intervene only briefly and not make the speech that I could not make on Second Reading. I wish to urge the Committee to resist the amendment and to applaud the basic thrust of the Government's desire to open up advocacy to a wider range of people and to bring a wider range of services to the client.
For several summers I have worked as a lecturer in the state of Victoria, Australia. In that state the reform for which the noble and learned Lord is pushing was introduced in 1891. There remains a flourishing Bar in Victoria because the market exists for precisely the reasons indicated by the noble Earl, Lord Onslow. There are people who need and want independent advocates to take their cases. However, no one has a cosy monopoly.
If a solicitor has the ability and wishes to provide an advocacy service he does so. There are a small minority of solicitors who do that very well. The Government will have cause to remember Mr. Turnbull from New South Wales who came from the solicitors' profession. He carried out a job which caused them much discomfort.
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That is the essence of the proposals put forward by the noble and learned Lord, provided that the machinery works and that the standard of the advocates and their training are adequate. In that sense it is better than the Australian system because there will be specific advocacy training—
Lord Hutchinson of Lullington: Will the noble Lord indicate to the Committee to which amendment he is directing his observations?
Lord Gifford: Yes, the amendment which the Committee is discussing. It proposes that the Bar's monopoly on all rights of audience should be retained. I believe that to be a retrograde amendment and I am explaining why.
The standard of service given by the Bar is uneven; at times it is good and at times it is bad. There are times when the public would welcome the opportunity to have a wider choice as between solicitors and barristers in order to decide who should take the case.
Lord Rippon of Hexham: I do not believe that the Bill will provide better, quicker or cheaper justice. I must say that over and over again even if it is a repetition of a Second Reading speech. However, I am brought to my feet by the speech of my noble friend Lord Boyd-Carpenter. He has suggested that Members who have spoken in this and other debates have not been concerned with cost. As I understood the speech of my noble and learned friend Lord Rawlinson, he referred specifically to cost.
I share entirely the views expressed by my noble friend Lord Onslow as regards the effect of the Bill on the small high street solicitor. I believe that it will be most damaging and that will not be helpful to the consumer or the client, however one cares to describe the user of the services. Of course in London there are many large firms of solicitors which also make the point. I have in my hands a submission made by a large firm of solicitors in London. It states:
"We do not understand that the enactment of the proposals will reduce the cost of litigation. The process of litigation is the same whether carried out by solicitor, barrister or certificated advocate. There is no particular reason why people doing the same work should not receive the same pay. The danger is that it will reduce the number of people doing the work, whether solicitors or barristers, and the fees will tend to rise".
I wish to draw the attention of my noble and learned friend the Lord Chancellor to one further point. I have received representations from several quarters noting that certain existing rights of audience currently enjoyed by legal executives, trainee solicitors and others acting on behalf of a solicitor will be withdrawn. Can he assure the Committee that no such existing rights will be withdrawn because clearly it is a service now provided and it will be cheaper than those which will otherwise obtain?
Lord Simon of Glaisdale: As regards the parliamentary aspect, I wish to point out the following in case what I call the Mishcon doctrine should be thought to have been adopted by default,

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that is if Second Reading has been given to a measure, the principle enshrined in the main provision cannot be discussed in Committee.
In many cases—and this is not one—there is a convention whereby noble Lords automatically do not dispute Second Reading. But even where that does not apply it all depends on the time given on Second Reading and in Committee. Advisedly I did not speak on Second Reading because over 40 noble Lords had put down their names and only one day was allowed for the debate. However, that cannot properly preclude me from putting forward my view on the principle enshrined in one of the main provisions which animates the Bill. I hope that we shall not be told that in no circumstances may Second Reading speeches be made in Committee. It all depends on the circumstances.
A few days ago the noble Lord, Lord Mishcon, twitted me amiably enough for making a speech in which I asked for more time to be given to the Bill. He said that if speeches made in Committee were short —that is, shorter than mine—we could proceed very fast. I confess that, when later in the debate the noble Lord moved a new clause, I was amused to find that he spoke for exactly twice as long as I had.
My main point is that, even if a Bill has been passed on Second Reading and according to every parliamentary principle and practice, when one of the main clauses arises in which the drive of the Bill is embodied, discussion as wide as is indicated is called for.
Lord Mishcon: I share the amusement of the Committee. However, I wish to remind the noble and learned Lord that my gentle criticism was directed towards the fact that he made a speech on the question of how long we ought to be speaking. He wanted that time to be shortened but the speech that he made on the subject was very long. The speech that I made later concerned a new clause—
Lord Simon of Glaisdale: It did not concern the length of time that we should be speaking. It concerned how many days should be given to Committee and the hours that Members should be compelled to sit.
The Lord Chancellor: I do not wish to reply to the amendment because I did so some time ago. In answer to my noble friend Lord Rippon of Hexham, I intend to preserve existing rights of audience and Clause 24(2)(e), which we discussed earlier, is an example of that. I shall also take into account any others that are brought to my attention.
The Earl of Selkirk: Can my noble friend tell the Committee whether solicitor advocates will work under precisely the same discipline which exists for members of the Bar or will it be entirely different?
The Lord Chancellor: The Bill sets out a framework for determining the rules under which solicitors will operate. The full requirements of the professional body, the designated judges and the Lord Chancellor must be met before any new rights of audience can be exercised.
The Earl of Selkirk: Does the noble and learned Lord mean different rights of audience?
The Lord Chancellor: The rights of audience may well be different as between a solicitor and a barrister.
6.30 p.m.
Lord Rawlinson of Ewell: Exactly 58 minutes ago I moved the amendment and spoke to my group of eight. I said that they were poor amendments but my own and since they have been taken over by all noble Lords who have spoken to them.
I reinforce what has been said by the noble and learned Lord, Lord Simon, to the noble Lord, Lord Mishcon, who always treats everybody with the greatest of ceremonious courtesy and then, like a Renaissance prince, produces from behind his back a dagger with which he stabs the person whom he was complimenting! However, some of us have had a lot of experience in Parliament and know when we are allowed to make Second Reading speeches and when we are not. As has been said by the noble and learned Lord, Lord Simon, Clause 24 deals with rights of audience in a Bill which contains many different provisions. Therefore, to be censured for making a speech saying that one does not think that this is a good clause seems to me to be rather hard. However, as I said, the noble Lord, Lord Mishcon, does that with such great ceremony that I always enjoy the flash of the dagger.
Perhaps I may say to my noble friend Lord Boyd-Carpenter that it is always disappointing to find that someone sitting within six inches has not understood what one has said. I spoke about costs. However, there are statistics which bear me out. If the noble Lord likes to examine the difference between costs in cases in county courts and magistrates' courts where a solicitor instructs a barrister and a solicitor appears himself as an advocate, he is very welcome to do so. If he did that, I do not believe he would make the same speech he made on my amendments.
Also we are not talking here about privileges and the rights of particular branches of the legal profession. I thought that I had made it clear that we are talking about my interest in the efficient and effective administration of justice. It is because I believe that what my noble and learned friend proposes will make that less effective and more costly and will not advance the interests of those who come to the courts and have to be served by the courts that I have taken the view that I have.
As regards the relationship between the professions, I see that my noble friend Lord Boardman is here. I referred to him when I moved my amendments to make it clear what I felt about his branch of the profession: namely, that I have worked closely with it, I admire it and I believe that it has played an important part in the lives of many more citizens than would a barrister. In 1975 when I was chairman of the Bar, I went with Sir Edmund Liggins, a distinguished president of the Law Society, to Bath where we issued a declaration of alliance, friendship and working together between the two

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branches of the profession. Others came later which somewhat disrupted the spirit which had grown up between the two branches of the profession.
I believe that we have different tasks and need different skills. It is not because of any privilege for barristers—a profession from which I have retired —that I move these amendments. It is in the best interests of the administration of justice. I have seen that elsewhere where there is a combined profession the system does not work as well as it does here. For those reasons I move this amendment. I do not propose to ask leave to withdraw them but I do not propose to go into the Division Lobby in support of them.
On Question, amendment negatived.
Lord Hacking Lord Hacking moved Amendment No. 140A:
Page 19, line 35, at end insert —
("( ) the Institute of Legal Executives;").
The noble Lord said: In addressing the Committee on this amendment I also seek to address it on Amendments Nos. 141ZA, 145A, 154A and 154B. By taking five amendments together, which I do not believe are controversial, I hope that we shall slightly increase the pace of our deliberations this evening.
My amendments concern the Institute of Legal Executives and are directed towards two objectives —to enable solicitors' clerks to retain their existing rights of audience (I refer the noble and learned Lord to Amendments Nos. 154A and 154B for that purpose) and to enable solicitors' clerks to gain limited increased rights of audience (I refer for that purpose to Amendments Nos. 140A and 141ZA).
I have tabled Amendment No. 145A which relates to the rights of solicitors' clerks to conduct litigation. Having further considered the Bill, I do not believe that it is necessary at this stage to consider that matter because it appears that under Clauses 25 and 30 solicitors' clerks have and will continue to have the same rights to conduct litigation within and out of solicitors' offices.
I told the Committee something about the Institute of Legal Executives last Thursday evening. Therefore, it is not necessary for me to repeat what has already been said. I merely remind the Committee that the institute is the parent body for solicitors' clerks and legal executives. There are an estimated 50,000 solicitors' clerks currently employed in the profession.
However, I do just add to my previous speech a word about the important contribution which legal executives and their forerunners, managing clerks, make to the legal process. Throughout my 25 years of practice I have had many occasions on each side of the profession to rely upon the wisdom and experience of experienced legal executives. Nor is that a new experience, because in 1901, when Mr. Justice Cozens-Hardy was considering in the case of Vimbos v. Meadowcroft, which the noble and learned Lord has already cited to the Committee, the objection taken by counsel that a solicitors' clerk did
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not have the right of audience in chambers before the High Court, he said that:
"The judge in chambers habitually hears not only counsel and the solicitors of the parties, but also any responsible representative of the solicitors sent from their office. Business could not be conducted satisfactorily unless managing clerks were allowed to represent their principals in chambers".
With that background, I identify for the Committee the current rights of audience possessed by legal executives. First, they have the right —and this is based on the authority already cited to the Committee by the noble and learned Lord —to appear in chambers in the High Court before High Court judges and masters of the High Court. That right is preserved in this Bill in Clause 24(2)(e).
Secondly, legal executives have the right to appear in open proceedings in the county court, not for opportunities of great forensic triumph but on unopposed applications for adjournments and on applications for judgment by consent. As I read this Bill, that right is also to be preserved in Clause 24(1)(b) and by the operation of Section 61 of the County Courts Act. Under that section the Lord Chancellor has the right to give directions to enable persons to have an audience in the county court. The noble and learned Lord's predecessor, Lord Elwyn-Jones, gave a direction which allowed an audience to Fellows of the Institute in those open proceedings in the county court which I have just described to the Committee.
The third right of audience of solicitors' clerks is in chambers in county courts. That right is not preserved by Section 61 of the County Courts Act, but I assume that before this Bill becomes law the noble and learned Lord will give a direction to enable solicitors' clerks to continue to have that right of audience. I should be grateful for confirmation about that matter.
A fourth area where solicitors' clerks currently have a right of audience is before a legal aid tribunal when a legal aid certificate is refused. They have certain rights of audience before other tribunals, statutory inquiries and arbitrations. Those rights are not covered by the Bill for reasons I shall outline. From now onwards all rights of audience will be determined, as stated in Clause 24, solely in accordance with the terms of Part II of the Bill. There is no special provision for these rights of audience under Clause 24(2) and there is no deeming clause for the preservation of all existing rights held by solicitors' clerks and legal executives as there are for rights of audience for the Bar under Clause 28 and for solicitors under Clause 29.
The concern arises because the definition of "courts" under Clause 81 extends to tribunals, arbitrations and statutory inquiries. It appears therefore that the rights of audience of solicitors' clerks are no longer preserved under the Bill.
The solution that I place before the Committee in Amendments Nos. 154A and 154B would require an amendment to Clause 29(1). Under that clause solicitors' rights of audience would be extended to cover existing rights of solicitors' clerks in their employment. I ask the noble and learned Lord to accept those two amendments. If there is any defect

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in the means by which I seek to achieve that objective, I should be very grateful if the noble and learned Lord could accept the principle.
In proposing the amendment I have the support of the Law Society and I think, although I have not received it in writing, the support of the Bar.
The second amendment would enable legal executives to acquire modest increased rights of audience under the provisions of the Bill. That will involve the full consultation process with the advisory committee under Schedule 4. Legal executives do not anticipate seeking extensive new rights of audience; they are anxious to have rights of audience, for example, in open court before the registrar of the county court where they already have extensive experience in chambers. There are other limited rights which they would like considered under the mechanism of the advisory committee; for example, audience in open court before the county court and the magistrates' courts.
There are two alternative means of achieving the objective. The first is to enable the Institute of Legal Executives to become an authorised body, as proposed by Amendment No. 140A. For a variety of reasons I believe that that course is undesirable. Legal executives work as employees of solicitors. They have no wish to practise independently of the solicitors' practice. Many of the younger members, as I told your Lordships in Committee on Thursday evening, by means of their training and education as legal executives, progress to become fully admitted solicitors.
The alternative means of achieving the objective is under the umbrella of the Law Society so that the Law Society, under Clause 24(7), can grant rights of audience not only to its members but to its members' employees. That approach, contained within Amendment No. 141ZA, has the support of the Law Society and, I believe, of the Bar.
In relation to public interest, it is recognised that there is a need for more advocates at the lower end of the market. There is a need for more advocates, and less expensive advocates, although of good and experienced quality, to appear before the registrar in the county court. To that extent this amendment seeks to serve the public interest. I beg to move.
Lord Donaldson of Lymington: No one who has been at the Bar has other than the greatest possible respect for managing clerks, as they were, and legal executives, as they now are. I am sure that, one way or another, my noble and learned friend the Lord Chancellor wishes to preserve their jurisdiction. In so far as anybody wishes that jurisdiction to be widened, perhaps it is a matter that is better dealt with through the machinery that is established by the Bill.
I rise because I think that the noble Lord, Lord Hacking, has stumbled, advertently or inadvertently, upon a quite astonishing drafting result —I hesitate to suggest that it is an error —if I have understood it correctly. It arises under Clause 24(2) when read with the definition of "court." The subsection states:
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"A person shall only have a right of audience before a court in relation to any proceedings in the following cases".
Apparently "court" includes a consensual arbitration according to the definition in Clause 81(1)(c) which states that,
"an arbitrator or umpire, however appointed and whether the arbitration takes place under a reference by consent or otherwise".
It is arguable that Clause 24 prevents anyone appearing before a consensual arbitrator. I find that situation quite astonishing; I am sure that it is not intended. Perhaps the noble and learned Lord the Lord Chancellor or those advising him will give the matter a little consideration.
Lord Hacking: It was not an inadvertent stumble; it was something that I had identified. I am very grateful for the noble and learned Lord for joining in my concern.
Lord Mishcon: I believe that there are certain proceedings where a solicitor's clerk can attend before the Master, namely in regard to a claim for damages and the assessment of damages where the proceedings are not technically heard in chambers but in open court. That is only a procedural matter. The noble and learned Lord may care to look into that situation because of the words "in chambers in the High Court". I shall raise this matter on clause stand part. That is a present ability of the solicitor's clerk to be heard by the Master.
Lord Roskill: I should like to echo the point made by my noble and learned friend the Master of the Rolls. I had not spotted it until the noble Lord, Lord Hacking, and the noble and learned Lord the Master of the Rolls drew attention to it. I have always understood that anyone can appear in an arbitration, whatever their qualification. You can have a friend from down the street; you can have your neighbour. Some of us have occasionally suffered from incoherent advocates without any professional qualification appearing in arbitrations. I am sure that my noble and learned friend the Master of the Rolls would agree that the provision in Clause 24 appears to be restricted. Therefore, if this provision stands, somebody who hitherto has been entitled to appear before an arbitration, will not be entitled to do so. Like the noble and learned Lord, I cannot believe that that is the intention.
The Lord Chancellor: It is intended that all existing rights of audience should be preserved. We are not in the business of cutting any down. I shall look at the point that has been raised concerning the definition.
The general saving is intended to be effected by Clause 24(2)(ii)(b) which states:
"Where paragraph (a) does not apply but he is granted a right of audience before that court in relation to these proceedings by or under any enactment".
That general provision goes a long way towards preserving existing rights.
With regard to the point raised about chambers in the county court, my understanding is that the Institute of Legal Executives does not have rights in that regard. It is a matter of discretion for the

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registrar or the judge. As regards legal aid tribunals and the like, there are no current restrictions so the Bill does not alter that position. With reference to new rights of audience, I suggest to the noble Lord, as my noble and learned friend the Master of the Rolls has suggested, that if extended rights of audience were to be granted to the Institute of Legal Executives it should be done under the machinery created under the Bill.
Lord Mishcon: As I understand it, the noble and learned Lord has undertaken to look at the point that I have raised.
The Lord Chancellor: I dealt with that matter by saying that it is intended to preserve all existing rights of audience.
Lord Morris: I rise not least for the reason that my name is attached to this amendment. Another reason for rising is that at a late hour last week my noble and learned friend the Lord Chancellor accepted a suggestion concerning the Institute of Legal Executives, or managing clerks, as they were known. I referred to the interests of these members and asked for these matters to be considered between now and the next stage of the Bill. It is for that reason that I do not wish to delay the Committee in any way.
I wish to make one point. In my view there is no doubt that one of the main directions in which this Bill is going is in opening up access to the general public to greater opportunities for representations in the courts or in the conduct of litigation. It would be difficult to find a more experienced band of people than those who used to be called managing clerks. Here we have a perfect opportunity for the public to take advantage of this experience, as many solicitors and barristers who are involved in the conduct of litigation have done.
With that in mind, I should have thought that Her Majesty's Government would consider these issues important not least with regard to the ongoing success of the Crown Prosecution Service. It has a very serious problem in finding good people to act for it. If a person is a member of the Institute of Legal Executives—and I may be quite wrong here—he is qualified under the rules of that organisation in certain aspects of the criminal law. Those qualifications are totally accepted by the Law Society in terms of standards. However, the members have no rights of audience in the courts as pleaders either for the prosecution or for the defence.
We have here an opportunity for the Government to take advantage of a band of people who are qualified and who practise within the law. That is the only reason this amendment has been tabled by the noble Lord, Lord Hackling, whom I support. However, the hour is very late and I do not wish to pursue the issue, particularly bearing in mind the fact that my noble and learned friend the Lord Chancellor has agreed to consider these matters in the intervening period between now and the next stage of the Bill.
Lord Hacking: Though I have the voice of the noble and learned Lord the Lord Chancellor and possibly that of the noble and learned Lord the Master of the Rolls against me, I rise with some concern. The noble and learned Lord said that there is no intention in this Bill to deprive any person who has existing rights of audience. I am very grateful to hear that. The noble and learned Lord then began to alarm me by saying, in the first place, that he identified the right of audience before a registrar in the county court as a discretionary right resting with the individual registrar. Therefore I understood him to say that, as presently advised, as regards this Bill he has no intention to use Section 61 of the County Courts Act which would enable that right to be established under his authority.
The Lord Chancellor: I did not say that at all. That right exists if I give a direction. As regards new rights of audience not already covered by the statute, I suggest they should be covered by the machinery in the Bill.
Lord Hacking: It is just a technical matter. My argument is that in the way the Bill is drafted certain existing rights available to the legal executive will not exist under the terms of this Bill unless they are amended in the way I suggested to the Committee. As regards the future provisions, I am urging on the Committee no course other than that legal executives should obtain increased rights of audience under the mechanism of this Bill if they so wish them.
There is difficulty, and that is why I have moved this amendment. There is not a convenient mechanism under the terms of this Bill available for members of the Institute of Legal Executives. I shall be corrected if I am wrong, but as the Bill is currently drafted the only way in which the Institute of Legal Executives and its members can obtain rights of audience is through an application under Clause 24(7)(c), which states:
"any professional or other body which has been designated by Order in Council as an authorised body".
The institute would then have to go through the full process of seeking its rights under the terms of the Bill.
I have already urged on the Committee that that is not the most convenient or appropriate course because legal executives are seeking to continue to practice where they are practising now; namely, under solicitors and working in solicitors' offices. That is why I suggested the alternative and much more convenient course with the Law Society. If Members of the Committee look at subsection (7) of that clause they will find the definition of the appropriate "authorised body". If under subsection (7)(c), "appropriate authorised body", paragraph (b) was amended to include after the words "a member" the words "or an employee of a member", the Law Society would be able to obtain for legal executives, in discussion with the institute and others, further rights of audience. Without that amendment there is left a very clumsy position; namely, that the institute has to go the whole hog and seek to become an authorised body. That is undesirable.
The Lord Chancellor: I understand what the noble Lord has said and I will consider the matter further. My present view is that if Members of the Institute of Legal Executives are to obtain further rights of audience in their own right as legal executives by virtue of their qualifications, that is probably best done by their applying in the ordinary way. It is not a very big thing to do. I should have thought that was the right way to go about it. The idea that the Law Society can apply on behalf of the Institute of Legal Executives concerning a person who is one of its employees may be all right, but a question would arise concerning his rights if he left its employment. I believe that the situation may not be as straight-forward as suggested. I am certainly happy to consider the matter further.
Lord Hacking: If I have done nothing else I have here identified a problem. On the basis of the noble and learned Lord expressing a willingness to consider the matter, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn
[Amendment Nos. 141 and 141ZA not moved.]
The Lord Chancellor The Lord Chancellor moved Amendment No. 141A:
Page 19, line 47, after ("it") insert—
(" "recognised body" means any body recognised under section 9 of the Administration of Justice Act 1985 (incorporated practices)").
The noble and learned Lord said: I have already spoken to this amendment. I beg to move.
On Question, amendment agreed to
[Amendment No. 141B not moved.]
Clause 24 agreed to.
Clause 25 [Rights to conduct litigation]:
[Amendments Nos. 142 to 147 not moved.]
Clause 25 agreed to.
Clause 26 [Authorised bodies: designation and approval of regulations and rules]:
Lord Morris Lord Morris had given notice of his intention to move Amendment No. 147A:
Page 21, line 33, at end insert —
("( ) An Order in Council shall not be made in pursuance of a recommendation made under subsection (2) above unless a draft of the Order has been laid before and approved by a resolution of both Houses of Parliament.").
The noble Lord said: I have already spoken to this amendment and received an adequate reply from my noble and learned friend the Lord Chancellor. Therefore I shall not move it.
[Amendment No. 147A not moved.]
Clause 26 agreed to.
Viscount Ullswater: This may be a convenient time to break for dinner. In moving that the House do now resume, perhaps I may suggest that the Committee stage does not begin before 8.5 p.m. I beg to move.
Moved, That the House do now resume. —(Viscount Ullswater.)
Lord Simon of Glaisdale: Perhaps I may ask the noble Viscount how late we are expected to sit tonight. In doing so I should like to indicate the undesirability of having to discuss a Bill of this kind late at night or early in the morning. I should also point out that we spent three-quarters of an hour earlier this afternoon on a Statement.
Viscount Ullswater: I understand that lists of the amendments to be moved today are available at the door. We must see how we do during the course of the evening.
On Question, Motion agreed to
House resumed.

Code of Practice on the Implementation of the Mental Health Act 1983
7.2 p.m.
Lord Mottistone Lord Mottistone rose to move, That the code laid before the House on 5th December be withdrawn.
The noble Lord said: My Lords, I am advised by the National Schizophrenia Fellowship whose views are strongly supported by a parallel organisation called Rescare.
The code of practice for England and Wales is most unfortunately still not a success. It had a fairly chequered history which I shall briefly outline. The Secretary of State asked the Mental Health Act Commission to prepare a draft which was circulated for comments in December 1985. As a result of considerable and often critical response, including that from the National Schizophrenia Fellowship, to this lengthy 236-page document, the Secretary of State decided to withdraw it and produce a shorter document. This 45-page revised code appeared in August 1987 and comments were invited by November 1987. Once again people complained about it. It was widely criticised, especially by the Mental Health Act Commission. It was again withdrawn.
Mr. William Bingley, the legal director of MIND, was seconded early in 1989 for six months to the Department of Health to prepare a third version, which was laid before the House of Commons in December 1989 without formal consultation. The National Schizophrenia Fellowship was asked to give its views on the draft in an ad hoc and informal way, but its concerns have not been taken on board. The Act has been in existence for six years without its much-needed code of practice to guide the professionals in its use. This code is still unnecessarily long, at 86 pages, and does not in many places accurately reflect the Act. I make a strong point of that. The Act requires the code to clarify and explain it.
The Scottish code to which I must refer has been generally welcomed throughout Scotland and in particular by the Scottish branch of the National Schizophrenia Fellowship. It is much shorter, at only 24 pages, but more importantly still it takes care where relevant to quote the Scottish Act accurately.
Having dealt with that basic problem I should like to make three detailed criticisms of the code which exemplify where it is wrong and point to parts of it which clearly need to be put right. The first relates to paragraphs 2.6 and 2.7 of the code which give the reasons for compulsory admission to hospital. These are stated clearly in Part I of the Scottish code. It says that a person can be detained in hospital:
"in the interests of his own health or safety or for the protection of others".
It uses the exact words of the Act. In the English code the words "health and safety" and later "health and/or safety" are used, which do not appear in the Act. I consider it extremely important that the words of the Act should not be tampered with and that the code should clarify a situation which has led to many problems, and will continue to do so unless the matter is cleared up, for England and Wales.
Many NSF members report extreme difficulty or failure in securing compulsory admission to hospital for schizophrenics who refuse treatment on a voluntary basis but are felt by their relatives or carers to need it urgently. It has seemed for some time that this partly arose from misconceptions about the Act on the part of some social workers and doctors. The parts to which I have just referred will make this worse, not better, because it will be more difficult for social workers and doctors to interpret the Act accurately. Evidence of this misconception by workers and doctors was published recently in a standard psychiatric textbook written by three psychiatrists. The NSF has had it corrected. A book written by a consultant psychiatrist made the same mistake, as did a printed summary of the main provisions of the Act published by the Royal College of Psychiatrists. This mistake is to say that compulsory admission is only possible if a person is a danger to himself or others.
The NSF knows of cases where a person has never been admissible for those reasons. For example, the son of one of its members spent two-and-a-half years having bizarre fantasies after breaking down at university. Depite diagnosis of schizophrenia and efforts to admit him formally he refused to accept that he was ill. He was never a danger to himself or others. When admitted compulsorily at last in the interests of his own health he improved dramatically after treatment and was even able to work with computers.
My second point relates to paragraphs 18.23 and 18.28 which concern care for the patient detained in hospital. Those patients are detained because they are a danger to themselves: they may commit suicide; they may also be a danger to others; and they are violent because of their delusions. Moreover, in England they are often not in fact detained.
An extract from an NSF members letter illustrates that fact. It reads:
"Four or five attempts were made by us, his parents, to get our son into hospital … He eventually finished up assaulting a poor woman and was therefore committed to prison on remand. He was shuffled around Croydon, Leicester, Birmingham, Herts … and finally to Brixton … When eventually up in court in Croydon he was ordered to be detained in Warlingham Park Hospital … I knew he should have been put in a secure ward and expressed my disquiet when this was not effected … he was put in an open
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ward. He absconded, was picked up, and again remanded for breaking terms of bail. How do the authorities expect a man to behave …when he is in effect shown an open door?"
The NSF's concern, and indeed mine, is with the emphasis in the English code which seems to be over much on the patient's freedom, despite his admission as a detained patient who may remain violent or suicidal until treatment has had time to help him. It is found that detained patients leave hospital with ease. The Scottish code, while firmly stating what are the patients' rights, is far more balanced about the need to sometimes restrict that liberty. To find reference to that one would need to turn to paragraphs 4.7 and 4.8 of the Scottish code.
Finally, I should like to turn to paragraphs 2.27 and 2.30 of the code. There the English and Welsh code seems to be reluctant to involve the nearest relative. This particular section refers to what the nearest relative should know. The Scottish code states clearly in paragraph 1.2 that an application for admission to hospital,
"is made by a person's nearest relative or by a mental health officer".
It continues to say,
"the nearest relative will require professional guidance".
It then stipulates in paragraph 1.7 that one of the first tasks of the mental health officer,
"should be to agree with the nearest relative which of them should make the application".
The English code is quite different in saying that the approved social worker and doctor should advise the nearest relative of his right to apply, "where necessary". In a situation where relatives are usually totally ignorant about the provisions of the Act, I feel that professionals should tell them what their rights are, what they can do legally and how to do it —as the Scottish code requires.
Therefore we are left with an inadequate code. The examples I have quoted are not the only inadequacies. It is a code which is excessively biased towards what one might call the "civil liberties theme". That is not what Parliament wished to introduce when it passed the Act. Moreover, the code does not repeat the Act. Therefore it will be much better if this code could be withdrawn even at this late stage and if the Department of Health could swallow its pride and issue for England and Wales the Scottish code, suitably amended to take care of the fact that we do not have sheriffs south of the border. Of course, other small points would have to be dealt with where the provisions of the Acts may be different. But, most important, we should have a code which reflects the Act and one which explains it; but it should not be interpreted by someone who happens to be keen on civil liberties.
Therefore I hope that noble Lords will find themselves able to support my plea that this code should be withdrawn. I also hope that my noble friend the Minister will be able to tell us that there will be some give as regards amending, if not withdrawing, this code in the future. We do not have much time.
I have endeavoured to speak as rapidly as possible. I trust that I have covered the main points, and I hope that those splendid noble Lords who have put

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their names down to speak will do so briefly. Further, I hope that those who do not take my view will not speak at all. I beg to move.
Moved, That the code laid before the House on 5th December be withdrawn. —(Lord Mottistone.)
7.15 p.m.
Lord Kilmarnock: My Lords, this splendid noble Lord (if I may be allowed to creep in under that umbrella) will certainly speak briefly. Many noble Lords present in the Chamber this evening will remember the passage of the Mental Health Bill in 1982. That legislation subsequently became enacted in 1983. It is quite true, as the noble Lord, Lord Mottistone, pointed out, that it had a strong emphasis on patients' rights and on civil liberties. Moreover, bodies such as Justice were very active in promoting those aims throughout the Bill's passage. Most of us at that time felt when the Bill was enacted that we had an enlightened Act of which we could be proud. That is certainly my recollection of those days.
I was somewhat alarmed to hear the noble Lord, Lord Mottistone, speak in what I thought to be slightly disparaging terms of a "civil liberties theme". However, that does not mean that I think he has not made a good point. But the scale of the problem is that of nearly 200,000 admissions in 1986—which is the last year for which figures are available—14·9 per cent., say, 15 per cent. of admissions for mentally ill patients were in the area of schizophrenia and paranoid cases —that is to say, roughly, 30,000 admissions. Over that period, only 6·8 per cent. of the admissions were compulsory. That means, if we spread it evenly across the board that possibly something in the region of 2,000 admissions were compulsory in that category. As I understand it that is the scale of the problem.
The concern of the noble Lord, Lord Mottistone, in moving his Motion really seems to fall into two main categories. The first is that the code does not sufficiently emphasise what is written in the Act under Section 2(2)(b) under the title,
"Compulsory Admission to Hospital and Guardianship".
The subsection reads:
"he should be so detained in the interests of his own health or safety or with a view of protection of other persons".
Therefore there are three considerations —that is, his own health; his safety; or the protection of other persons. The implication behind this Motion is that health professionals are perhaps not giving enough attention to the first of those three categories—namely, the interests of his, or, by implication, her health.
The second implication that I read into the noble Lord's Motion is that the rights of relatives are not being sufficiently valued by the health professionals concerned. If we look at Section 13(4) of the Act it reads:
"It shall be the duty of a local social services authority, if so required by the nearest relative of a patient residing in their area, to direct an approved social worker as soon as practicable to take the patient's case into consideration under subsection (1) above with a view to making an application for his admission to hospital;
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and if in any such case that approved social worker decides not to make an application he shall inform the nearest relative of his reasons in writing".
I think that I am right in saying that the relative can be one of the people who make an application with a GP for an emergency admission, in conjunction with two health professionals, one of whom must have been a psychiatrist for a longer period of time. In the noble Lord's speech and the briefing put out by the National Schizophrenia Fellowship, I detect a feeling that those two rights or areas of concern of the relatives are not being properly met.
The noble Lord also suggested that the code does not properly reflect the Act. It uses the words "when necessary"; that is to say, that the relative can be informed of his or her rights "when necessary". That is presumably a subjective judgment by the social worker or the other health professionals concerned. That right should be made clearer to the relatives. There is a delicate balance to be struck. There is obviously some substance in those worries which is related partly to the nature of schizophrenia. There are many conditions of mental illness which do not normally lead to psychosis, whereas, sadly, at one time or another schizophrenia almost invariably does. The patient suffers from delusions and is divorced from reality. That often gives rise to severely aberrant behaviour against himself, herself or others. The noble Lord said that suicides are not infrequent in schizophrenia cases.
The thing about psychotic conditions, as I understand it —I hesitate to speak when noble Lords with a medical background are in the House —is that they can be successfully treated with a chemical therapy if given in time and maintained at a proper level. If action is not taken in time on the application of a concerned relative by the necessary health professionals, then the type of case mentioned by the noble Lord where the patient ends up in prison on remand is a possible outcome.
It is probably not clear at the moment which side I am coming down on. Those concerns need to be considered. I am informed that psychiatrists are often afraid to use their powers to treat patients, even when they have been detained compulsorily, in case there are later actions against them. My recollection is that there are plenty of provisions in the Act to protect patients; that is to say, the six-month safeguard of an application to the Mental Health Tribunal or a compulsory review. When the Bill was going through the House, we wrote those provisions into it, and as far as I know they still operate.
The noble Lord mentioned the Scottish code, which I am bound to say I have not read. I know that the Act is different but perhaps the noble Baroness will tell us when she replies whether there are rational grounds for the divergence between the two codes north and south of the Border.
I assume that in accordance with the normal practice of the House the noble Lord will not push this Motion to a Division. If he were to do so, I would find it difficult to support him. He has raised some queries which the Government should take seriously, with the aim of seeing whether, in this

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extremely difficult area, the interests of the patient's health and the difficulties faced by the relatives of schizophrenic patients cannot be improved or the balance against the families and the carers perhaps to some extent redressed.
I return to where I started. The Act was a liberal and a civilising one designed to remove repressive measures from mentally ill people. That is one of its main purposes; I remain fully in support of that purpose. It would be surprising if, after several years of operation, difficulties in the administration of the Act did not emerge. It is reasonable that the Government should take on board some of the concerns expressed by the noble Lord and produce a reasoned answer to them. We look forward to hearing what the noble Baroness says.
7.24 p.m.
Lord Thurlow: My Lords, as this is the first occasion the noble Baroness has answered from the Dispatch Box on a Motion on mental health, I should like to say how warmly I welcome her arrival in this important field of health. As the prospects seem to be that the responsibilities for treatment and after care are likely to remain fragmented between two or three central departments and a host of local authorities, it is especially fortunate that she has had distinguished service in local government and is well known for her distinguished service in co-ordinating air traffic control. Her powers will be fully exercised.
I am pleased that the noble Lord, Lord Mottistone, has given us this opportunity to air some of the uneasiness we feel about the omissions in the code. I, and I am sure others, are mystified as to why the points put forward by the NSF which, after all, is the recognised expert on schizophrenia, have not been taken on board by the department when they were courteously brought to its attention.
To take the noble Lord's first ground for uneasiness, it is extremely important that grounds for admission are generally recognised as the right of a sick person to be treated whether or not there is an apparent danger to himself or others. That distinction goes to the root of many of the problems involved in handling schizophrenia. There is often danger, but there is often no danger. We are dealing with a serious pathological state. The illness is the central causation of the symptoms, and it is mainly a health issue. Social aspects, however important, are secondary. So why does the code conceal from those it seeks to guide the fact that the first ground for compulsory admission to hospital is the interests of the patient's health? I cannot believe that there is a deliberate effort to conceal. If the answer is that all concerned know that well enough and know that admission is possible on grounds of health alone, it must be said that that is not true. Relatives normally have little familiarity with the terms of the Act. As the noble Lord reminded us, if those writing the textbooks sometimes do not know, how can the ordinary layman be expected to know?
In my view, the code is in most respects admirable and will be of great help. No one therefore wishes to delay its publication. Goodness knows, it has been long enough in gestation. Therefore, I wonder whether the objects of the noble Lord might be
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achieved not by delaying publication but by circulating an accompanying brief leaflet with every copy of the code. Then the correction could be made in due course when the second edition of the code is circulated. We certainly do not wish to be obstructive but the code must not be allowed to mislead.
I have further uneasiness about it in its present excellent form. That uneasiness relates to chapter 26 on aftercare. The code quite rightly says that all those contributing to the discussion about what should be done for the patient after discharge should take into account a variety of important considerations. One paragraph dealing with issues that must be considered refers to,
"day care arrangements, appropriate accommodation, out-patient treatment…assistance in managing finances, and, if necessary, in claiming benefits".
That is just a selection of the issues that have to be considered. If there is to be the right kind of aftercare, all these issues require a great many qualified, trained staff. In previous discussions in your Lordships' House, we have expressed our dismay at the present gap between the need for trained community psychiatric nurses, for instance, and the existing provision. To some extent in this chapter the code is in danger of encouraging a complacent approach to what is likely to emerge. Resources are at the centre of the solution to the aftercare problem. We look forward to the debate which will take place before very long on the forthcoming Bill. We hope that we shall be given encouraging news about resources. We also hope that the noble Baroness will do her best to ensure that this comes about.
In the absence of such an outcome it seems to me that there is precious little possibility of the kind of aftercare to which the code looks forward. Until the resources are available and until the necessary trained and qualified aftercare staff are available I suggest that the discharge of patients should for the most part be suspended.
7.35 p.m.
Earl Haig: My Lords, I wish to add my congratulations to the noble Baroness who will answer the Prayer of my noble friend Lord Mottistone. He has enabled us to debate the matter this evening and I support his Motion for this code of practice to be withdrawn in order that it may be reworded. Doctors need to be given stronger and clearer powers to enable them to make sure that patients remain in hospital until reasonable time has been given both for diagnosis and for treatment.
Treatment delays always militate against recovery chances in cases of schizophrenia. There is an ambiguity about the wording of the code of practice for England and Wales and it is liable to be misinterpreted. It should be possible to retain a patient in hospital either because of the seriousness of his condition or because of the possibility of physical harm being done to himself or to others.
Withdrawal of the code of practice will enable it to be replaced by a clearer code. The giving of greater powers to retain a person in hospital should run parallel with adequate provision of nursing staff, hospital beds and aftercare treatment. A new code

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will give more confidence to all concerned, not least to relatives, who need to rely on doctors to assume full responsibility in matters where only medicine can help and only doctors can decide.
The rights of the patient must be carefully defined so that unwarranted periods of incarceration are avoided. The claustrophobic fear arising from lengthy stays in the not altogether homely confines of hospital should be understood. Where enforced incarceration is required for the sake of treatment, there should be rules available to enforce the incarceration —not only rules, but as a last resort there should be practical ways in which to stop people from escaping as well. I remember once escaping from hospital myself, but that was my first night of freedom after three years of incarceration as a POW. It was perhaps understandable.
This Prayer concerns the English and Welsh code of practice only. I am glad to think that in this instance Scotland may have done it better and I should be happy to see the Scottish code taken as a guide.
7.38 p.m.
Lord Winstanley: My Lords, I must apologise for the fact that my name was omitted from the list of speakers in error, although perhaps I should say in defence that the error was not mine. Since noble Lords have not been given written notice that they would have to listen to me, it behoves me to be as brief as I possibly can. I shall be.
I too at the outset wish to congratulate the noble Baroness who is to reply on the subject from the Front Bench. I am sure she will make an admirable Minister but I must warn her that if she becomes too good at it, when she has mastered the subject properly the Government will move her. That always happens in our House.
The noble Earl, Lord Haig, talked about the need for doctors to have more powers. As a doctor I am a little nervous about powers. I tend to feel that doctors do not need powers if they do their job properly. However I take the point that the noble Earl made that patients are discharged from hospital who should not be discharged.
The question of powers is at the very heart of the argument we have been having. We had the same argument way back in 1982 when we debated at very great length, night after night, the Mental Health Act, the Mental Health Act Commission and so on. We then had to try to balance the civil liberties side of the question, the rights of the individual and individual freedom with medical needs. That is not an easy balance to strike.
Noble Lords are right, particularly the noble Lord, Lord Thurlow, in making it entirely clear that the difficulties tend to arise with patients suffering or believed to be suffering from schizophrenia. The noble Lord, Lord Mottistone, does and has done admirable work for some time for the National Schizophrenia Fellowship. It is therefore entirely understandable that he should raise the fellowship's present anxieties, most of which arise in that field.
It is right to say that this is a difficult area. It is not one in which there are easy solutions. However,
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we know that schizophrenic patients have a tendency to relapse if they stop taking their medication. They have a tendency to stop taking their medication once they cease to be under medical control. That is one of the problems. In my view it would be regrettable if the code were now withdrawn after many years of compilation of evidence. We need a code.
I note that the Royal College of Psychiatrists is very anxious that the code should not be withdrawn. However, perhaps it would be appropriate to remind the Royal College that some of the difficulties have arisen because some of the members of that college have sometimes made grave errors with regard to schizophrenic patients. I raised the matter of one such patient in your Lordships' House some time ago. I mentioned the tragic case of Isabel Schwarz who was a social worker in a hospital in London murdered by a schizophrenic patient. That patient had received no supervision at all from the consultant psychiatrist under whose care he had been.
How do we draw the lines? It is difficult, but we are certainly not drawing them in the right places. The noble Lord, Lord Thurlow, was right to highlight aftercare. The noble Lord, Lord Mottistone, introduced schizophrenia aftercare legislation because aftercare for schizophrenic patients is not now a reality in any sense of the word. No kind of code of practice can make it so. The aftercare that many such patients receive is the care they receive sleeping rough on the streets of London. A high proportion of the people who occupy beds in hostels for homeless people are schizophrenic patients.
I am not saying that all those patients should be rounded up and locked up in hospital, but there are many cases in which schizophrenic patients have exercised their freedom and have discharged themselves from hospital. However, no real efforts have been made to keep them under medication at a time when their health requires it. Therefore, I think it is regrettable that we have wandered away from the words in the Act in drawing up the code of practice.
I agree that the Scottish code is better. It is a much shorter code but shorter provisions are usually better. We often hear that things are done better in Scotland than here. I am not saying that we should scrap the English and Welsh code and merely adopt the Scottish one, but this debate has been useful in that it will have drawn attention to the fact that grave problems are arising and the code of practice is unclear about a number of matters.
One thing is certain in my view and that is that if all the psychiatrists, social workers and others involved with these patients interpreted the Act and the code of practice sensibly, intelligently and with great care nothing need go wrong. The code of practice cannot on its own stop things going wrong but far too many things have gone wrong and seriously wrong in recent years with regard to schizophrenic patients. The code of practice cannot stop that but thought about the code of practice and particularly re-examination of it by those who have to operate it can do nothing but good. I shall not sit

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on the fence as the noble Lord, Lord Kilmarnock, said he was, like the good old Liberal which he used to be —
Lord Kilmarnock: I came off the fence.
Lord Winstanley: The noble Lord says that he came off the fence. It would be regrettable if the code of practice were withdrawn but I think it is helpful that some of our misgivings should be ventilated. However, it would be even more helpful if some of the things that were said in your Lordships' House, not only on this occasion but in the debates that took place during the passage of the legislation of the noble Lord, Lord Mottistone, not so long ago, were heard and heeded by those who work in this field. If that were the case, things would be bound to improve.
7.45 p.m.
The Lord Bishop of Worcester: My Lords, I too should apologise for not having my name on the list of speakers. I should thank also the noble Baroness, Lady Blatch, for showing kindness to a Bishop who has gone astray. However, I was not in time to put my name on the list.
I am in touch with this subject through being president of the Worcestershire branch of MIND. I can say that the need for a code of practice is paramount. Everyone involved in this field tells me that now is the time to have a code. I believe they are in favour of the one we have on the table. However, we must also take account of what the National Schizophrenia Fellowship is saying. I have seen all too often families almost destroyed by the problem of schizophrenia which they have to cope with by themselves. They are asking that a schizophrenic person should be put into care for his or her own benefit.
In one Salvation Army hostel in this city, out of 123 men nearly 40, that is 32 per cent., are schizophrenic patients who have discharged themselves from hospital and have gone onto the streets. Sometimes of course their parents have died and they have no home to go to. They are not on the lists of any agency and the future is extremely bleak for them. I hope that Her Majesty's Government will produce a code of practice, whether it be this one or the Scottish one, as we cannot wait any longer. The Mental Health Act was passed in 1983 and a code of practice for those working in the field is now necessary.
Further, I ask that the pleas of the National Schizophrenia Fellowship be taken seriously and that that body be reassured. I go along with those who have already said that codes of practice will be of no use at all unless there are reasonable resources of professional help for those in the community. May we have a code and may we take seriously the things which are said by the National Schizophrenia Fellowship? I go along with the code that we already have, if only the Government can reassure those who are in doubt about the schizophrenia problem.
7.48 p.m.
Lord Campbell of Croy: My Lords, I told my noble friend Lord Mottistone several days ago that I would
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be speaking in this debate but I was not aware that there would be a list of speakers as on previous occasions of this kind there has not been such a list. That is why my name is not on the list.
First of all I wish to congratulate my noble friend Lady Blatch on her present position. I believe this is the first health debate to which she will reply although she has already been active at Question Time. I wish to support what my noble friend Lord Mottistone has said in raising two matters under the code of practice for England and Wales which are dealt with quite differently from the way in which the Scottish code deals with them. The Scottish code appears to be satisfactory on the reasons for compulsory admission to hospital. The Scottish code repeats exactly the words of the 1984 Scottish Act.
As regards the treatment of the nearest relative to the sufferer, in the Scottish code the nearest relative is to be given the kind of professional guidance and help which most of us believe the nearest relative should get as the relative probably does not know very much about the illness and the availability of help. On those two points my noble friend has rightly pointed out the weaknesses in the code for England and Wales.
We all have in mind —it is quite right that it should be prominent in our minds —when considering this provision that schizophrenia is a severe mental illness which is not the Jekyll and Hyde phenomenon that many think it is. Its cause is still not known and a cure has not been discovered. Much progress has, however, been made in medicine and in the treatment of the illness.
In the last Session my noble friend Lord Mottistone piloted through the Schizophrenia After-Care Bill as a Private Member's Bill. In doing so, he performed an important service in drawing attention to the problems which arise with that illness. I shall not repeat some of what I and others said at various stages of the Bill.
Schizophrenia is an illness which does not observe parliamentary orders. In particular, it strikes when people are in their teens. It very often leads to the disappearance of the young person, who may travel a long distance. Certainly the Scottish Border will not be a barrier, in one direction or the other. It also strikes when people are students and away from home. It seems wrong that there should be differences in those two important points in the codes.
I am patron of the National Schizophrenia Fellowship (Scotland). I was also chairman for Scotland in 1981 of the International Year of Disabled People. We placed emphasis in the United Kingdom at that time on mental disabilities. On that occasion, I had a great deal to do in the United Kingdom and in England because, as some noble Lords will remember, the chairman for England, Sir Christopher Aston, was very ill and in hospital for much of the year. Sadly for his family and many friends, he died at the end of the year. He made a magnificent contribution as chairman for England though he himself was burdened with severe illness.
In 1981 in the United Kingdom we placed an emphasis on mental disability to draw attention to

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it and generate greater public awareness at a time when, I am glad to say, more and more people in the country were prepared to consider mental illness for what it was, and not sweep it under the carpet. In the spirit of that year and the way it was conducted, I ask the Government to have another look at the code for England and Wales.
7.52 p.m.
Lord Seebohm: My Lords, I also apologise for not having put my name down on the list of speakers in time. I shall be very brief. When I heard about this Motion, I spoke to my neighbour who has a schizophrenic son. She said that she would consult her son and ask what he thought of the proposal that compulsory admission should be available in the interests of the health of the schizophrenic on the application of a relation or doctor. He was in complete agreement that it should be clear that that was the right thing to do. He admitted that he had discharged himself from hospital before he should have done. This is anecdotal, but he confirmed that a friend of his in the same situation agreed.
There are only two other points I wish to make. On discharging themselves schizophrenics will almost certainly not take their medication. That is extremely important and is supposed to be put right in the National Health Service and Community Care Bill, to which the noble Lord, Lord Thurlow, referred. When that is enacted it will be compulsory to have a nominated carer for every mental health patient. Provided that carer is qualified, I believe that he or she should also have the right to make an application for compulsory admission.
7.53 p.m.
Lord Ennals: My Lords, perhaps I may begin, as others have done, by congratulating the noble Baroness on the first occasion on which she has replied to a debate. We always say on these occasions, "and we hope that she shall do so many times". That will depend upon what she says. Having seen the noble Baroness at work, I have great confidence that I shall want to say that.
I should also like to say a word to the noble Lord, Lord Mottistone. The fact that I shall disagree with most of what he said should not be taken in the sense that I have not greatly appreciated the work that he does for the National Schizophrenia Fellowship or the work of the fellowship, which in many ways I greatly admire. I am looking forward to addressing one of its conferences very soon. I greatly admired the work of the noble Lord in this House when he took through as far as another place the after-care Bill. I thought that he did a very fine job of it.
I have to say also that I am afraid that I shall not be drawn into the Anglo-Scottish debate as to whether the Scottish code is better because it came first. I have not read the Scottish code and so I cannot comment on it.
To begin with, I should like to say something about the importance of the Act. I had a great interest in it, and I see two other noble Lords sitting opposite
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who also had an interest. Back in 1973, when I was director of MIND, I put forward to the then Secretary of State, Sir Keith Joseph (now the noble Lord, Lord Joseph), a set of proposals to bring the 1959 Act up to date. He took action and work was started. That work was followed up by his successors, the noble Lord, Lord Jenkin, and my friend Mrs. Barbara Castle, until I arrived on the scene in 1976. I picked up the excellent results of the work that had been done under the supervision of the previous Ministers. I then did a great deal of work on the Act. I picked up the letter that I had written to the noble Lord, Lord Joseph, and took my cue from what I had told him that he ought to do. We went through the process of the Act. By that time I was on the Back Benches in another place but serving on the Standing Committee.
I agree that the Act is of great importance. Of course it recognised civil liberties. It is my recollection that, as it went through the other place and this House, that it would have been extraordinary had we not given due recognition to the need to recognise the civil liberties of people with mental illness, their relatives and the community. That is what the Act tried to do. In my view, it is what the code of practice seeks to do.
We are not here to amend the Act. The Act is passed and the code of practice is its application. Anyone who wants to see a different Act will have to start the process, as I did, of persuading successive governments to change the Act. They will see how long it takes.
The code of practice is also of great urgency. The fact that it is now six years —and nearly seven years —since the Act came into law in 1983 proves that urgency. As has been said, there were two previous drafts of the code. Although I did not see either of those drafts I have discussed them with many people who did. They were very unsatisfactory and had to be withdrawn. I have been lucky enough to have sight of an earlier draft of the latest code. It is an extremely good document; I want to support it right down the line.
I say to the noble Lord, Lord Winstanley, that it is important that we get the code of practice right. That will be accepted by all those who criticise it as well as those who support it. The first part of the code of practice, Chapter 1, reminds us that it does not impose a legal duty to comply with the code of practice, although it was the Act that determined that there should be a code of practice, but that failure to follow the code could be referred to in evidence in legal proceedings. So it is not just a piece of chatty advice on a flimsy leaflet. It is a serious set of recommendations as to how an Act passed after very great deliberation should be carried out.
The committee which was set up under the chairmanship of Mr. James Collier and the secretaryship of Mr. William Bingley —both men of very great ability whom I have had the privilege of knowing for many years, including the time when I was in the department (and that may be a criticism)—was set a daunting task. It has produced a very good document. It warmed my heart when I first had sight of it and it warms my heart now. It is

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comprehensive and comprehensible, sensible and sensitive. I congratulate the draftsmen on the job of work that they have done.
I received, as did others, the letter from Dr. Birley, the president of the Royal College of Psychiatrists, who said:
"It is now nearly six years since the Mental Health Act received Royal Assent. The College very much supported the suggestion in 1982 that there should be a Code of Practice but very much regrets the long delay in its preparation. There have been several draft Codes and the College has commented fully on each. We could not have supported earlier drafts, but this latest Code has been revised by a Department of Health Working Party and is acceptable in its present form to the psychiatric profession. We would therefore oppose any suggestion that the code be withdrawn".
Some noble Lords have said that doctors need guidance about how they should fulfil their professional responsibilities, but the doctors are pretty skilled, although they are governed as much as anyone else by the terms of the Act. The code of practice is directed to everyone concerned —doctors, social workers, nurses, managers, patients, patients' families and all who are concerned with the welfare of patients. In that sense it must be a sensitive document.
The noble Lord, Lord Mottistone, and the National Schizophrenia Fellowship criticised the terms of paragraphs 2.6 and 2.7 on the grounds that they do not clarify the criteria for admission under Part II of the Act concerning civil detentions. I do not think that that is justified. The paragraphs are not there to restate the law which is to be found in subsections (2) and (3) and is reflected in the standard form of admission. All use the expression "health or safety" when describing the first two grounds for detention. Given that neither the words "danger" nor "dangerous" appears in the Act, it would have been misleading to bring them into the code of practice.
It is right that we should consider what paragraph 2.6 states. I did not recognise some interpretations of it. I shall not take long, but it is an important paragraph. It states:
"In judging whether compulsory admission is appropriate, those concerned should consider not only the health and safety of the patient but also:—

—the patient's wishes and view of his own needs;

—his social and family circumstances;

—his cultural background;

—the nature of the illness/behaviour disorder;

—what may be known about the patient by his nearest relative, any other relatives or friends and professionals involved, assessing in particular how reliable this information is;

—other forms of care or treatment including, where relevant, consideration of whether the patient would be willing to accept medical treatment in hospital informally or as an out-patient;

—the needs of the patient's family or others with whom the patient lives;

—the need for others to be protected from the patient;

—the impact that compulsory admission would have on the patient's life after discharge from detention;

—the burden on those close to the patient of a decision not to admit under the Act".

That is a comprehensive list of the factors which should be taken into consideration when deciding whether compulsory admission is appropriate. I do not therefore find that the code of practice either
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misrepresents or misunderstands or does anything but justice to the intentions of the Act.
It is clear that the National Schizophrenia Fellowship is concerned about the matter. It is not for me to give assurances. I hope that the Minister will do that. Part of my judgment as to whether I shall welcome her next time depends on whether she gives those assurances because the fellowship's anxieties should be properly considered. I imagine that it had the opportunity to submit its observations on earlier drafts seen by the drafting committee and I must suppose that not all its views were accepted.
That is also true for the Royal College of Psychiatrists, which had some criticisms. I understand that MIND has some criticisms and would like to see the code drafted in a slightly different way. Anyone who has had any experience, as many people here have, of trying to take into consideration all the different interests of professionals and pressure groups will understand that one can never find one set of words that is totally acceptable to everyone.
There is much in the code of practice which we should welcome. I found it a sensitive, clear, easy to read and easy to understand document which will meet its needs. It lives up to its intention that its presentation should be acceptable not only to its professional audience but to patients and their families, friends and supporters. It does not shrink in the introduction from stating some simple but significant basic principles which underpin the rest of the code. Those principles are important. Paragraph 1.4 states:
"it means that, when treatment or care is provided in conditions of security—"
that is what we are talking about—
"patients should be subject only to the level of security appropriate to their individual needs and only for so long as it is required".
However, those needs must be met as long as necessary. When it is essential that there should be some limitations on freedom, those limitations may be imposed provided that the interests of all concerned are respected.
The section of the code dealing with assessment emphasises the importance of collaboration between the professionals (approved social workers and doctors) involved in the Mental Health Act assessments and the importance of each profession understanding and respecting each other's professional roles and responsibilities. The code gives straightforward and practical guidance on what are recognised as difficult areas for the professionals involved in the assessment, such as the use of Mental Health Act admission to protect others —that point was touched on by the noble Lord, Lord Mottistone; the interests of all must be considered —the problem of the deteriorating patient and when it is possible to use compulsion, and how to handle disagreements between assessing professionals. There are many other good points that might be made.
I have read the document carefully several times and I believe that it has taken into consideration the anxieties of each group. It has been alleged that the code of practice is in some way a liberation document

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and that it will make it more difficult for people with mental health problems to receive the care and treatment that they need. I do not believe that that is so. It will be of considerable assistance to patients and their families in ensuring that the proper care is delivered to them in a well thought out and accountable way.
I hope that the Government will not withdraw the code as they have been asked to do. It is essential that it should now be carried through as a proper and effective interpretation of the Act which was given so much consideration here and in another place and by voluntary organisations. We all have some criticisms, but I wish the document and all the mental health workers who will be guided by it well. It is a relief for me to find something on which I can genuinely congratulate the Government, as I warmly do.
8.8 p.m.
Baroness Blatch: My Lords, perhaps I may start by thanking those noble Lords who have extended their good wishes to me on my appointment. I only hope that the remarks of the noble Lord, Lord Ennals, will still stand at the end of the debate. I thank those noble Lords who share the anxieties of my noble friend Lord Mottistone for the understanding way in which they have expressed those anxieties. Like the noble Lord, Lord Winstanley, I believe that the debate has been most useful.
I welcome the opportunity on behalf of the Government to respond to the concerns of my noble friend about the code of practice and propose to do so by seeking to put the points that he has raised in their full context.
We are here dealing with an issue of great importance and complexity; namely, the circumstances in which it is proper for someone to be admitted compulsorily to hospital. Depriving someone of his or her freedom is a very serious thing to do. The Mental Health Act 1983 reflects Parliament's best sense of the criteria to be satisfied and the procedures to be followed before such a step is taken.
While the Act as a whole commanded the support of Parliament, and I hope still does, there were in 1983, and still are, genuine differences of view. Some think that the 1983 Act has made it too difficult to have clearly disturbed people admitted for treatment against their will. Others think that present arrangements do not offer sufficient protection against continued compulsory detention in hospital. In the end this is very much a matter of personal judgment.
The code of practice does not of course amend the 1983 Act. Rather, its purpose is properly to reflect the Act while offering practical guidance to those who have to operate it in their daily work. I make this point because it is fundamental to how we have approached the task of drawing up the code —seeking the widest possible agreement on good practice within the terms of the Act.
Initially the task of preparing a draft was given, with its agreement, to the Mental Health Act
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Commission, which includes representatives of all the relevant professions and informed laymen and women. The commission produced a draft which had much to commend it, but which also attracted considerable criticism. This was no reflection on the commission. Rather, it was a reflection of the sheer difficulty of producing practical guidance that was widely acceptable where there are strongly held differences of opinion.
Officials in the Department of Health studied the many comments on the Mental Health Act Commission's draft very carefully, and produced a second draft, upon which there was further widespread formal consultation. Although it is hard to sum up in a sentence reaction to this second draft, it is probably fair to say that the draft met objections to the first one by becoming more a commentary on the Act than a practical code of practice.
Ministers concluded that it would not be appropriate to lay the second draft before Parliament, and last spring decided to establish a small working group of professional people with extensive personal experience of working the Act, to consider both drafts and the comments received upon them and to produce a further draft.
That working group, chaired by Mr. James Collier, produced the draft which was laid before Parliament on 5th December. In the course of its work the group took soundings, informally, of a range of the key interests, and has produced what Ministers regard as a well balanced, potentially very useful code, entirely consistent with the Act. Although the Minister concerned, my honourable friend the Parliamentary Under-Secretary of State for Health, Mr. Freeman, has thanked the members of the group personally, I should like to add my thanks and express the Government's appreciation for the hard work which has led to this draft.
Despite the fact that the code is the product of extensive consultation —two formal rounds and subsequent informal soundings over four years —and careful deliberation by people with direct, practical experience of working within the Act, it is true that there are aspects of it that some would wish to see amended. My noble friend Lord Mottistone referred to some points that are of concern to the National Schizophrenia Fellowship. We know that other bodies, such as the Royal College of Psychiatrists and MIND, would also prefer that some sections had been drafted differently.
The truth here is that the issues involved are such as to make it unrealistic to meet everyone's point of view to the letter. There are incompatible points of view, for example, over the extent to which wards containing detained patients should be locked. I would ask that the adequacy or otherwise of the present code is not judged by whether this or that body objects to particular phrasing or emphasis, but by whether, taken as a whole, it is felt to be a balanced and useful aid to those who have to work within the Act. I am convinced that those Members of this House who have the interest and opportunity to read the whole document will agree with us that it is. The Royal College of Psychiatrists has written to me, and I quote from the same letter as was received by the noble Lord, Lord Ennals:

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"The Royal College of Psychiatrists has studied the code in detail and although there are some minor flaws, we do not consider that it would be beneficial, either to health professionals or to patients, to withdraw the code".
I also stress that the code is not fixed for all time. The Government have already asked the Mental Health Act Commission to advise them regularly on the operation of the code, and to propose any changes that experience shows to be desirable. Ministers will then consult on the commission's recommendations, in conformity with the Act, and if the Government judge it appropriate, they will be laid before Parliament in the form of amendments to the code.
I turn now to the specific points raised by my noble friend Lord Mottistone. First, there is my noble friend's point about reasons for compulsory admission. I accept that the first sentence of paragraph 2.6 could usefully have been expanded. However, the last section of that paragraph says that the applicant should judge whether the criteria stipulated in any of the admission sections of the Act are satisfied. This is reinforced in paragraph 2.18c. I hope that my noble friend will see that the code does in fact reflect the Act.
Secondly, there is the issue of care for patients detained in hospital. The noble Lord prefers the Scottish version. We believe that our draft offers much fuller practical advice to professional staff, who have the very difficult job of judging what degree of security detained patients need from time to time.
Thirdly, the noble Lord refers to what the nearest relative should know. I agree with him that the words "where necessary" in paragraphs 2.27 and 2.30 are very definitely ambiguous. They are meant to indicate that, where a nearest relative is unaware of his or her rights, professional staff should inform him. But, as the fellowship has proved, they can be read a different way. The proper meaning will be made clear in the letter that will cover the issue of the code and we shall consult on a better form of words.
I should like to suggest that my noble friend withdraws his Prayer upon the following undertaking. Ministers will ask the Mental Health Act Commission to consider in detail the points that he has raised today, and advise upon them as part of the first report on the operation of the code. Ministers will then consult upon them and, in the light of the response, judge whether or not to lay amendments before Parliament. The aim would be to complete this process within one year. Perhaps I could also say that that offer is extended to all noble Lords who have spoken in this debate. I believe that that covers all parties in the House and of course the noble Lord, Lord Ennals.
If, after advice from the commission and further consultation, Ministers decide not to seek to amend the code as the noble Lord proposes, the responsible Minister, my honourable friend in another place Mr. Freeman, will write to him and to the other noble Lords I have mentioned setting out his reasons. In any case the Minister would be happy to meet my noble friend and representatives of the National Schizophrenia Fellowship at an early date to hear their concerns at first hand. I hope that the House
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will regard this as a positive and constructive proposal, made in good faith in response to points raised by an organisation for which we all have much respect. On that basis I hope that my noble friend will agree to withdraw his Prayer.
In conclusion, may I emphasise the intrinsic difficulty of what lies at the heart of both the Act and the code. We must balance the rights of the individual suffering from a serious mental illness with the need to protect him or her from the consequence of that illness. Taking such a decision is extremely difficult. We believe that this code gives good, well balanced practical advice to those who have the responsibility. I therefore commend the code to the House.
Lord Mottistone: My Lords, I start by congratulating my noble friend for the most admirable way in which she made the whole of her speech. I thought that for a first go at this sort of thing, with rather hardy people arguing about mental health, it was a jolly good speech.
I thank her and indeed my honourable friend the Minister, Mr. Roger Freeman, very much indeed for the many undertakings that they gave to me and indeed to the National Schizophrenia Fellowship. I do not think that they could have gone any further, short of withdrawing the code and I did not expect them to do that. I am extremely sorry that some noble Lords have not read the Scottish code, in particular the noble Lord, Lord Ennals. I am sure that it would do him a power of good to do so, for then he would see how much better it is than the English code.
Having said that, and having very much appreciated all the contributions that many noble Lords have made to this debate, I beg leave to withdraw my Motion.
Motion, by leave, withdrawn.

Courts and Legal Services Bill [H.L.]
8.20 p.m.
House again in Committee.
Clause 27 [Revocation of authorised body's designation]:
[Amendments Nos. 148 and 148A not moved.]
Clause 27 agreed to.
Schedule 4 [Authorisation and Approval]:
Lord Ackner Lord Ackner moved Amendment No. 148B:
Page 70, line 38, after ("Committee") insert (", the Lord Chancellor and each of the designated judges").
The noble and learned Lord said:
"The first bringer of unwelcome news hath but a losing office and the tongue sounds ever as a sullen bell remembered tolling a departing friend".
I am happy to tell the Committee that I bring, I hope, welcome news.
The many amendments that stand in my name relating to Schedule 4 have been drafted by those a great deal more expert than I am. That has had two distinct advantages. First, they are likely to be in

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proper form; and, secondly, it has enabled me to continue to give such contributions as I can to the Appellate Committee where no doubt my noble and learned friend the Lord Chancellor would wish me to concentrate the major part of my efforts.
Before dealing with these amendments, perhaps I may indicate to the Committee how I intend to go about it. I propose to deal with the philosophy behind the amendments which require both explanation and justification, having set out on page 9 for the convenience of the Committee exactly what the amendments will look like. If my noble and learned friend the Lord Chancellor wishes to follow what one usually has in English litigation, I have a copy which shows underlined in red what I am taking out, and in black what has been put in. The net consequence of these amendments is shown from page 9 onwards of the Marshalled List. Before embarking upon that task, perhaps I may first invite the Committee's attention to what appears in paragraph 8.5 of page 28 of the White Paper. It reads as follows:
"It is necessary also to recognise the role of the judiciary in determining how work before the courts is done".
I leave out a number of unnecessary matters.
"Draft rules relating to advocacy or the conduct of litigation will, under the legislation be made by the professional body but to become effective they will require the concurrence of the Lord Chancellor and each of the Lord Chief Justice, Master of the Rolls, the President of the Family Division and the Vice-Chancellor. Both the Lord Chancellor and the senior judges will be required to have regard to the Advisory Committee advice. The duties of the profession, the Advisory Committee, the Lord Chancellor and of the senior judiciary are of course interrelated".
I stress this part.
"The Government envisages that this will, in practice, be reflected in the earlier stages of the preparation of drafts by the professional bodies who by a process of discussion involving all four parties".
In the debate on the Second Reading, at col. 244, of the Official Report, when my noble and learned friend the Master of the Rolls expressed his concern at the procedural layout in Schedule 4 whereby the senior judges —the designated judges —came in so to speak just before the curtain fell, my noble and learned friend the Lord Chancellor stated:
"I entirely agree with the view that in practice we should be able to have discussions to determine the various steps to be carried out in the same way as the noble and learned Lord, Lord Donaldson of Lymington, deals with solicitors' recommendations some of which require his approval only and some of which require the approval of my noble and learned friend the Lord Chief Justice and of the Lord Chancellor".
It is in my submission extremely important if these principles are to work in harmony, that, to quote again the White Paper,
"in the earlier stages of the preparation of drafts by professional bodies, there should be a process of discussion involving all four parties".
The desirability of this was well reflected in the speeches in the debate on the Second Reading. I make only two quotations. The first is from my noble and learned friend Lord Alexander of Weedon at column 162 of Hansard. He said:
"This year has been an immensely sad one for those who care about the administration of justice and believe that there is much to be done to improve our law and there is much that the Government, the judiciary and the profession need to do together
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to improve our substantive law and procedure. The division, bitterness and distrust created by the conflict over the structure of the profession need to be ended if we are to tackle the real problems that affect access to justice".
The noble Lord, Lord Hooson, at cols. 233 and 234 was a little more direct. He said:
"…noble Lords—judges, members of the Bar and others—have expressed exactly the same doubts about the Bill as they expresed about the Green Paper. It is a very serious matter that the noble and learned Lord the Lord Chancellor has not been able to ally the fears of the senior judges about the long-term effect of his proposed measures … The noble and learned Lord appears to have embarked upon a confrontational course with the Bar and the judiciary. It is unjustified in the circumstances".
I now turn to the philosophy behind the justification for redrafting Schedule 4 in the manner that we have. There are eight points. First, the role of the senior judges is not appropriately provided for. Their concurrence should not be the last step in a procedure that has wound its way via the advisory committee, the Lord Chancellor, the advisory committee again, the Director General of Fair Trading, the Lord Chancellor again, and finally the senior judges. Taking Part I of Schedule 4 as an example, the first step should be the submission in paragraph 2 which should be to the Lord Chancellor and —I emphasise "and" —each of the senior judges. They will then send it to the advisory committee and the Director General of Fair Trading for advice. Once that advice has been received, the Lord Chancellor and —I emphasise "and"—the senior judges should then consult together —and I emphasise the word "together" —and each form a judgment whether the application meets the requirement of the statutory objective and the general principle both generally and specifically. They should then each deliver a reasoned decision.
Secondly, the present framework in Schedule 4 puts the senior judges —by that I mean the designated judges —in a purely passive role at the end of a long procedural chain. On the contrary, they should be involved throughout.
Thirdly, moreover, the senior judges and the Lord Chancellor should be able to initiate possible changes themselves. The judges as well as the Lord Chancellor will through experience and consultation with the higher judiciary, circuit judges and others, become aware of circumstances calling for change. In my respectful submission, the present framework bars any initiative by the senior judges or the Lord Chancellor, except only the part of the Lord Chancellor in the limited circumstances related to revocation under Clause 27.
Fourthly, the framework in Schedule 4 does not allow for consultation of other authorised bodies. They have a legitimate expectation that they will be consulted as to the effect of what is proposed for the particular authorised body or proposed authorised body. It is only common sense that they should be consulted. For example, if it were proposed that the Royal Institute of Chartered Surveyors should become an authorised body for the purpose of granting rights to conduct litigation, it would be wrong for the Law Society and the Bar Council not to be fully consulted. They may have considerable relevant observations to make and that should be provided for.
Fifthly, the framework in Schedule 4 makes no provision for the authorised body, proposed authorised body, or any other such body to have an opportunity to respond to the advice of the advisory committee and Director General of Fair Trading. Clearly that would be a step necessary in fairness to all concerned and it should be provided for.
Sixthly, the framework in Schedule 4 requires the senior judges (that is the designated judges) to give their reasons if they are against —and I emphasise the word "against" —an application but not if they are for it. Apparently that proceeds on the footing that it is only if an application is refused that any question as to the correctness of the decision can arise. Clearly that is not right. A decision to approve an application may be erroneous in law or in fact just as much as a decision to refuse an application. Therefore, the Lord Chancellor and the senior judges should be required to give reasons whichever way they may decide.
Seventhly and penultimately, the reason of the Lord Chancellor and of each of the senior judges should be available to the public on every occasion. That is rather than the framework now proposed which could only expose the senior judges to undue pressure —and I emphasise those words —by publicising only the reasons of any of them who refuse to approve an application (see Schedule 4, paragraph 5(10)).
Eighthly and lastly, at present there is no provision in Schedule 4 to enable the designated judges to take the initiative to put in train the procedure to review existing rights to grant rights of audience. That is an omission and Schedule 4 should be amended accordingly.
The Committee will appreciate that in no way have I sought to produce amendments that can be said to prejudice what the Lord Chancellor desires by way of proper consultation. On Second Reading I expressed my views about the undesirability of the whole of this legislation and I do not seek to repeat any part of those submissions. In the spirit which my noble and learned friend Lord Alexander of Weedon stressed on Thursday, I have endeavoured to put forward proposals to try to ensure that what is proposed by the Government works better.
On previous occasions the Lord Chancellor has emphasised —and I have quoted him —that no harm is ever done by consulting the people who have wisdom to provide. In the amendments I have sought to provide what the White Paper suggested; that is bringing in the judiciary, which, in the words of the Lord Chancellor, has a vital role to play at an earlier and more effective stage and making the consultation open, friendly, harmonious and in a manner designed to achieve sensible results rather than the confrontational system which the noble Lord, Lord Hooson, understandably thought existed as Schedule 4. I beg to move.
8.30 p.m.
The Lord Chancellor: These are full amendments and I am grateful to my noble and learned friend for the way in which he has set out their result on page 9 of the Marshalled List.
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There is little between us. As I have already made clear, it was always my intention that the judges and myself would be involved at any appropriate stage. I have sought to model the provision on the arrangements which were made in the statute of the solicitors' branch of the profession for approval by the Master of the Rolls in some cases and by the Lord Chief Justice, the Master of the Rolls and myself in relation to others. I anticipate that, as it was in those cases, so it should be in this machinery; that without any risk to their ultimate judgment judges should be able to participate in discussion of such matters.
I also believe it to be right that their formal decision should be the ultimate stage in the process. That is to say, unless their consent is obtained the regulations will not become effective. That is right but it does not mean that their views will not become involved in the formation of the arrangements at an earlier stage. Therefore, we can readily accept most of the proposals put forward by my noble and learned friend.
However, it is unwise to include formal requirements for consultation with authorised bodies. It is right that in many cases that would be appropriate, but by no means would the consultation be restricted to the authorised bodies. Consultations that the advisory committee might undertake in respect of such matters should be far-reaching. To include existing authorised bodies as having a stuatutory right to be consulted while excluding others would not be an improvement. It would tend towards the confrontational arrangement which it is my noble and learned friend's objective to eliminate.
I believe that in formulating proposals in that area the advisory committee would be right to take account of the views of all those who have interests as members of authorised bodies but also the views of others. The result is likely to be more satisfactory. That is the main distinction between my noble and learned friend's proposals and what I believe to be right.
As regards the response to the advice of the advisory committee and the Director General of Fair Trading, of course the intention would be that the advisory committee's advice would be available to the professional body involved in making the application and that would be generally available. The intention is that the advisory committee should come to its views in a way which is presented to the public.
I am perfectly content to accept the view that the judges should give their reasons, whichever way they may decide, and that those views should be available to the public on any occasion.
It was also my intention that, in common with others, the judges could initiate moves to make changes, but I am perfectly content to make that a formal part of the arrangements. Therefore, although I find it unacceptable that there should be a legal obligation to consult the authorised bodies without mentioning anyone else, most of the other proposals are acceptable. I believe that what must happen is that the advisory committee must have a full chance to consider the matter and come to a conclusion on

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it, taking the benefit of every shade of opinion and view which it considers to be appropriate. I hope that in the light of that response my noble and learned friend will allow me to consider these matters further.
Lord Alexander of Weedon: Before the noble and learned Lord, Lord Ackner, has an opportunity 0to respond, perhaps I may say how much I welcome the response given by my noble and learned friend. It is sometimes suggested that the judges are not innovative or that they are not critical of counsel. That has not been my experience at the Bar. I very much welcome that the judges, who have so often taken the lead in procedural reforms, will be in a position under the suggestion accepted by my noble and learned friend both to take the initiative in putting forward proposals and to be consulted at an early stage. I believe that that is the way in which effective progress in the administration of justice has traditionally been made; that is, by regular consultation between the Lord Chancellor's Department and judges. I am very glad that my noble and learned friend believes it desirable to continue in that way.
I accept totally what he says about the possible lack of necessity to provide for specific consultations with the authorised bodies. Since the rights of their members are affected, it may in any event be necessary to consult them as a matter of natural justice. Be that as it may, from the spirit in which this answer has been given on the consultation procedure I believe it is clear that my noble and learned friend has in mind that their views should be taken into account.
8.45 p.m.
Lord Simon of Glaisdale: This is an immensely complicated schedule and Members of the Committee will be very much indebted for the exemplary clarity of my noble and learned friends Lord Ackner and the Lord Chancellor in explaining where their difference lies. As I understand it, my noble and learned friend the Lord Chancellor only demurred on one point; namely, that although he thought it right that the authorised bodies should be consulted, he did not think it right that they should be the only bodies necessarily to be consulted.
I did not understand that my noble and learned friend Lord Ackner had proposed expressly any exclusions. If he did, that is a matter which can easily be put right on Report, his amendments being accepted as a whole.
However, it may be that my noble and learned friend the Lord Chancellor had in mind the doctrine of construction generally expressed in the Latin maxim expressio unius est exclusio alterius. Again, if that is what he fears as applicable, I am by no means sure that that would be applicable. That is a matter which every day the draftsman excludes by saying, "Without prejudice to any other consultation which might be deemed to be desirable". Therefore, at present, having listened with admiration to the explanation of my two noble and learned friends, I
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do not see why the Lord Chancellor does not accept these amendments as a whole.
Lord Hooson: I should also like to congratulate the noble and learned Lord the Lord Chancellor on his reaction to these amendments, which is very reassuring. However, as I understand his response he was only concerned that Amendment No. 148M was too restrictive and that he did not believe he should be restricted only to consult the authorised bodies because he might want to go outside that.
It seems to me that he could accept that amendment and bring a further amendment to it which should read something like, "The Lord Chancellor shall also send copies of the regulations and rules and of the statement of proposed rights to every existing authorised body and such other bodies as he deems it expedient to send them to", or something along those lines. He would not then be restricted but nevertheless he would fulfil the purpose which the noble and learned Lord, Lord Ackner, has in mind; namely, that there should be consultations with the authorised bodies. I well understand the reaction of the noble and learned Lord the Lord Chancellor that he does not want to be restricted to merely consulting those bodies.
Lord Renton: I too should like to show my appreciation of the open-mindedness on this matter of my noble and learned friend the Lord Chancellor. When he says that he does not go along with the idea of consultation with authorised bodies, I assume that he refers to the new subsection (2A) which is to be seen on page 10 of the Marshalled List. That is very simple and clear in its terms and does not impose much of an obligation upon anybody. However, as my noble friend Lord Alexander of Weedon said, it might be a matter of natural justice to allow those authorised bodies to be told what is happening. It is analogous with the rule of natural justice,audi alteram parte. I should have thought that my noble and learned friend the Lord Chancellor would lose nothing and might gain a great deal in the working of the machinery if he were to accept this proposal for consultation.
Lord Mishcon: Perhaps the Committee will agree with me that it would be economical of time if I were to speak to my Amendments Nos. 148T to 148Y without moving them at this stage because those amendments concern the very provisions which we are talking about in Schedule 4.
Perhaps I may say at once that I have heard the noble and learned Lord, Lord Ackner, and others who spoke after him. We all take for granted, as I am sure we should, that the amendments have been put forward in thoroughly good faith and that when the judges are being consulted on the question of the rules and regulations and any alterations to them we can count on the fact that they have accepted the spirit and objects of this Bill and that in no sense at all, because this phrase has been used in the media and elsewhere, will there be any question of endeavouring to sabotage —I do not use the word, but others have used it —the whole purpose of this Bill.

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It is in that sense that we are all listening to these suggestions. We wish to be sure that the spirit in which the judges carry out their work will be consistent with the spirit of the Bill.
Having said that, I should like to turn to the spirit of the amendments which stand in my name and in the names of the noble Lords, Lord Prys-Davies, Lord Goodman and Lord Allen of Abbeydale. If any of those noble Lords take the view that I am not expressing what they would like to express in support of this amendment, I know that the opportunity will be granted to them to say so.
Lord Rawlinson of Ewell: The noble Lord, Lord Mishcon, referred to those noble Lords who supported him. I looked round anxiously to see where they were so that we could hear what they wanted to say.
Lord Renton: The noble Lord, Lord Prys-Davies, is here.
Lord Mishcon: The noble Lord, Lord Prys-Davies, is here. I am sure that when the other noble Lords have read what I have had to say regarding the amendment, they will have an opportunity at another stage of the Bill to express a view, if it happens to be contrary to mine.
What was my anxiety behind these amendments? It was an anxiety that I have heard expressed by the noble and learned Lord, Lord Rawlinson. I am reminded of his name only because he has just made his helpful intervention in regard to my absent friends. That anxiety has been expressed by other noble Lords. We know the present noble and learned Lord the Lord Chancellor. We have every respect for him and we have every faith in him. Who knows what may arise in the future under the guise of the Lord Chancellor, wearing his noble robes? We felt that a spirit of caution ought to be present in our deliberations when we envisaged some eccentric Lord Chancellor who might not be doing what we should like him to do.
Eccentricity does not only lie with future imagined Lord Chancellors; it can also —dare I say it? —arise in respect of a designated judge. It is possible to assume such a state of affairs. This point is followed through in the amendments of the noble and learned Lord, Lord Ackner. Any one designated judge, leaving aside the Lord Chancellor, in his eccentricity, as it might exist, has the power under the Bill to say: the principle of the Bill has not been observed; the application is refused. He has the power to say that he disagrees with the application to amend the rules. Noble Lords will observe from the wording of the amendment and the Bill that that is the power of veto which is given to any one designated judge.
My amendment is a probing one dealing with this question: in those circumstances, would consultation be more appropriate? The Lord Chancellor makes his decision after receiving the opinion of each of the designated judges. However, I do not stand rigidly behind consultation. The purpose of my probing amendment was to voice to the Committee the view that under the Bill it should be a majority decision that counts with the Lord Chancellor without giving
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an individual veto. If the noble and learned Lord would kindly consider the situation that he may be faced with in future years —that every one of the designated judges has to agree one way or the other —he may find that there is wisdom, if I may humbly say so, in an amendment which provides that the majority decision of the designated judges ought to count with him.
If the noble and learned Lord feels that after receiving the opinion of each one of them and then altering the word "decisions" to "opinions" this is a good amendment, I shall be happy, as I am sure will the noble Lords whose names appear with mine on this amendment. However, if that does not find favour with the noble and learned Lord and Members of the Committee, then I respectfully suggest that we should come forward at Report stage with a provision that it should be the majority. We would then avoid the unhealthy spectacle of either judicial review upon the judgment of one of the designated judges, or a situation where the eccentricity or obdurate attitude of one of the designated judges upsets the whole applecart.
It was for that reason that I put down the amendments. I hope that the Committee feels that it was sensible of me to rise when I did in order to voice those opinions. I shall take a certain course, which I hope will be an abbreviated way of dealing with the matter, when these amendments are reached.
Lord Hutchinson of Lullington: The noble Lord spoke of the possibility of there being an eccentric designated judge. What would happen if there were an eccentric Lord Chancellor?
Lord Rawlinson of Ewell: I thought that it was the policy of the party to which the noble Lord belongs to abolish the House of Lords. Presumably he would abolish the Lord Chancellor also. There would then be a great deal of eccentricities for which the noble Lord would have to provide.
Lord Mishcon: This is not the only time when the noble and learned Lord, Lord Rawlinson, not in a ceremonial way but in another way, has voiced an opinion which is not necessarily the correct one. My party has adumbrated its policy of reforming the House of Lords. Whether all of us agree with the announcement of the policy is another matter. I hope that in any such reformation the dignified role of Lord Chancellor would play a part.
Lord Hooson: As I understand it, as all of the designated judges in a few years' time will be solicitors in any event, I am surprised that the noble Lord, Lord Mishcon, suggests that one of them might be eccentric.
It is much more important that the status and authority of future designated judges should not be undermined, whether they have a background of being solicitors or barristers. It must be right that if the designated judge is wrong in his decision he can be challenged by way of judicial review. In practice the truth of the matter is that they would be so careful in their decisions that they would come to a

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judicial decision on what is required in the circumstances. I think the noble Lord should withdraw this amendment.
Lord Mishcon: I have not moved the amendment; therefore it is difficult for me to withdraw it. However, I should like to be permitted the courtesy of answering immediately.
If the noble Lord, Lord Hooson, thinks that I have not met an eccentric solicitor in my professional career, he is wrong. I regard anyone who disagrees with the point of view that I put forward on behalf of my client as being eminently eccentric.
To deal with the matter seriously, as I know the noble Lord did, are we going to face a situation where the remedy, says the noble Lord, Lord Hooson, is to go by way of judicial review because one judge has differed from all of the others? I shall not repeat my speech. I hope that it will be deemed to be good and sensible legislation policy to provide that a majority of the judges would carry sway if, as I say, the Committee does not like the idea of the consultation process.
9 p.m.
Lord Ackner: I shall not take up the valuable time of the Committee by dealing with such of the media who may have used the word "sabotage". They are irresponsible and do not deserve any comment.
The High Court judges and the Court of Appeal, after deliberation, published a long document setting out their reactions to the Green Paper. Interestingly enough, the media did not criticise any of the essential principles which were adumbrated. The amendment tabled by the noble Lord, Lord Mishcon, seems to have somewhat changed course. There is no reference to majority or minority; there is reference to opinion. That really means you can consult but you can then ignore. That is what taking account of an opinion means.
I remind my noble and learned friend the Lord Chancellor of what happened as recently as last Thursday during the Committee stage. At col. 1235 of the Official Report the noble Lord, Lord Rippon, quoted this passage from the judges' written response:
"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 the Court of Appeal by means of subordinate legislation".
My noble and learned friend the Lord Chancellor, in replying to that quotation, said at col. 1239:
"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
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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 as their respective governing bodies—and approval is required not only from the Lord Chancellor but from all heads of division".
That was the considered reply last Thursday. I am sure that my noble and learned friend the Lord Chancellor can be relied upon to be consistent.
I do not know what the noble Lord, Lord Mishcon, means by the eccentric judges. When I started in practice one of the qualities that many of the judges had was eccentricity; it was part of their character. But we are now so leavened into a mould of similarity that eccentricity no longer exists. If the noble Lord meant by eccentricity irrationality, then he should say so. He avoided the word irrationality because, as the able lawyer he is, we all know that irrationality is one of the classic grounds for judicial review. No one would know that better than even an eccentric head of a division.
Finally, I refer to the question raised by my noble and learned friend the Lord Chancellor as the one reservation that he had. In my address to the Committee I said that these bodies may or might have a legitimate expectation. That is a phrase that my noble and learned friend the Lord Chancellor will recall, I believe I am right in saying, from the GCHQ case involving judicial review. If there is a legitimate expectation, then it has to be reasonably complied with. It was in order to ensure that a schedule was not produced which itself could be attacked as being irrational by not allowing a legitimate expectation, that I specifically used those terms.
I am very grateful to my noble and learned friend the Lord Chancellor for his willingness to consider the matter. Perhaps he might consider that aspect, too. We shall then have an opportunity at Report stage to see how the new Schedule 4 reads. For the moment I am quite happy to withdraw my amendment.
The Lord Chancellor: Before my noble and learned friend sits down what I have to say may help because I have not responded to what the noble Lord, Lord Mishcon, said. I want to adhere absolutely to the policy set out on this matter in the White Paper. In the light of what my noble and learned friend Lord Ackner has proposed, all I am considering is whether any improvement can be made to the machinery for achieving what is required in order to enable the judges to participate informally as well as, ultimately, formally. I have explained my situation in that regard.
As regards consent, I have given the matter as much consideration as I am capable of doing. I came to the conclusion that it was right to require the consent of each head of division. I came to that conclusion for this reason: originally I had said in the Green Papers that the Lord Chancellor would consult the senior judiciary. I had in mind that, in my experience, the Lord Chancellor would be very likely to go along with the views of the senior judiciary in seeking to deal with these matters. He might well influence these views in discussion with them.

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It appeared from the consultation that many, including my noble and learned friend Lord Ackner and others, were afraid that whatever I might do, the Lord Chancellor as such might not do the same. Therefore if was thought wise to have an express requirement of concurrence from the senior judiciary on the lines of what the Law Society had been familiar with for many years in their training and conduct regulations. But in this case where the right of audience is in question I had in mind that each of the heads of division has a distinct responsibility. I have mentioned them before; the Lord Chief Justice for the Queen's Bench Division, the Criminal Division of the Court of Appeal; the Master of the Rolls for the Civil Divison of the Court of Appeal; the President for the Family Division and the Vice-Chancellor for the Chancery Division, making up in total the High Court. I felt that each distinct part of the court might have a distinct aspect to consider. Therefore I believe it is right to require that for rules to become effective they should have the concurrence of each of the heads of division, which is in accordance with what I proposed.
As the noble Lord, Lord Hooson, has pointed out, the law is not powerless to deal at least with irrationality. Notwithstanding what my noble and learned friend said about the complete elimination of eccentricity in the judges of the present day, I do not believe that the law necessarily completely does that by its available procedures. I am open to further instruction from my noble and learned friend on that point as the Bill proceeds. But at least on the question of the rationality of the judgment, there is available legal remedy.
I should not like the noble Lord, Lord Mishcon, to feel that I would consider in any favourable way what he proposed as I did not reach my present conclusion in the White Paper without a great deal of consideration. On the other matters, I am grateful to my noble and learned friend. We have dealt only with the principle of the matter here in order to focus on the detailed matters that we shall want to consider.
Lord Ackner: I beg leave to whitdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 148C to 148P not moved.]
The Lord Chancellor The Lord Chancellor moved Amendment No. 148Q:
Page 72, line 12, leave out ("42") and insert ("41").
The noble and learned Lord said: Perhaps I may speak at the same time to Amendment No. 148ZP. There are typographical errors in the Bill. The investigations made by the Director General of Fair Trading will be made under Clause 41 and not under Clause 42. These amendments correct identical typographical errors. I beg to move.
Lord Simon of Glaisdale: I did not understand my noble and learned friend. He said that he was speaking to Amendment No. 148Q. I thought he said Amendment No. 148P. Either I misheard or it was a slip of the tongue.
The Lord Chancellor: It was Amendment No. 148ZP. That is what I hope I said; that is certainly what I intended to say.
On Question, amendment agreed to.
[Amendments Nos. 148R and 148S not moved.]
Lord Mishcon Lord Mishcon had given notice of his intention to move Amendment No. 148T:
Page 72, line 36, leave out ("or any") and insert ("after receiving the opinion of each").
The noble Lord said: I have spoken to Amendments Nos. 148T to 148Y. I should rather like to consider the courteous words which the noble and learned Lord addressed me on these matters. For the time being I shall not move the amendments.
[Amendment No. 148T not moved.]
[Amendments Nos. 148U to 148ZN not moved.]
The Lord Chancellor The Lord Chancellor moved Amendment No. 148ZP:
Page 74, line 39, leave out ("42") and insert ("41").
The noble and learned Lord said: This is the amendment to which I spoke on the last occasion. I beg to move.
On Question, amendment agreed to.
Lord Ackner Lord Ackner had given notice of his intention to move Amendment No. 148ZQ:
Page 74, line 39, at end insert —
("Opportunity, for applicant to comment on advice of Advisory Committee and the Director
10A. When he has received the advice of the Advisory Committee and that of the Director, the Lord Chancellor shall afford the applicant a reasonable opportunity to comment on that advice.").
The noble and learned Lord said: I shall not move Amendments Nos. 148ZQ to 148ZZC. I hope that the Chief Whip will give us some credit for this effort.
[Amendment No. 148ZQ not moved.]
[Amendments Nos. 148ZR to 148ZZC not moved.]
Schedule 4, as amended, agreed to.
Clause 28 [The General Council of the Bar]:
9.15 p.m.
Lord Meston Lord Meston moved Amendment No. 149:
Page 22, line 23, at end insert ("and the word "barristers" shall include barristers holding judicial office").
The noble Lord said: This amendment is grouped with Amendments Nos. 155, 203 and 204. I shall, with the leave of the Committee, speak to all four amendments. These are all probing amendments which are designed to seek clarification. They are concerned with the qualifications for judicial office and the interchangeability of judicial office. At present such qualification is that the person concerned is a barrister or a solicitor of so many years' standing. On appointment he will remain a barrister or solicitor and therefore eligible for other appointments requiring similar qualifications.
Under the provisions of Clause 50 and Schedule 7 to the Bill, the qualification for judicial office is

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an advocacy qualification of so many years. For example, if after the Bill is enacted a barrister or solicitor becomes a district judge of the principal registry of the Family Division or a Supreme Court master, he will have done so by virtue of a seven-year general qualification. His deemed rights of audience under Clauses 28 and 29 will count towards that qualification.
However, if after a few years such a person wishes to become, say, a district judge elsewhere, the same seven-year qualification would be needed. The question arises, therefore, whether he still has that qualification and the necessary eligibility. This is not entirely clear, especially since Clause 50(4) refers to,
"a person who, for the time being has that qualification".
Let us suppose alternatively that the same person wishes to stay as a district judge of the principal registry or a master but also wishes to become a recorder or assistant recorder which requires a 10-year qualification. If he had not attained that eligibility by the time of his original appointment on the strength of a seven-year qualification, is it then too late? On the other hand, if he had a 10-year period under his belt when first appointed, does he still retain that qualification? I think that the provisions contained in Clause 50(5) mean that he does, but it is not entirely clear because subsection (5) does not refer back to subsection (4)(b); it refers only to subsection (4)(a).
The third question concerns the position of present office holders and those who may be appointed before this Bill takes effect. These people are no longer in practice. However, do they have advocacy rights for the purposes of other appointments in the future? I assume that the provisions of the Bill are intended to allow flexibility as regards appointments and that the intention is not to cut office holders off from future moves and changes. If that is correct, then these amendments merely seek to clarify the position. I beg to move.
The Lord Chancellor: I shall look carefully at the three cases mentioned by the noble Lord, Lord Meston. The intention is that one does not lose the qualification by virtue of a judicial appointment. Accordingly, from the point of view of further judicial appointment, the qualification remains.
There are other problems in this connection and I was not certain whether the noble Lord intended to raise them. I refer to what should happen to someone ceasing to hold judicial office. I had not in fact intended to address that issue in the Bill. At this stage the matter is dealt with purely on the basis of qualifications. If that accords with what the noble Lord has in mind, then my intention is in accordance with his request. However, I shall check the position to ensure that that is so.
Lord Meston: I am most grateful for that indication as regards the intention in this respect. This was only a small probing amendment dealing with a technical point. I am pleased that it has been
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received in that spirit. On that basis, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 149A not moved.]
Lord Renton Lord Renton moved Amendment No. 149B:
Page 22, line 32, leave out from ("audience") to end of line 35.
The noble Lord said: In moving this amendment I shall speak also to Amendment No. 149C. These are probing amendments because, quite frankly, it does not seem to me that subsection (2)(c) and subsection (3) of Clause 28 are as clear in their effect as they might be. There is in particular some concern as to their effect on the existing position with regard to the rights of audience of barristers. Paragraph 3.10 of the White Paper states: "Primary legislation should recognise" —I take it that it should be expressly recognized—
"that any person called to the Bar by one of the Inns of Court … in accordance with the regulations on education and training will have rights of audience which can be exercised in all courts and appropriate tribunals when pupillage is complete".
That is the present state of affairs so far as the Bar is concerned. It ensures that people are not inflicted upon the courts, or upon their clients for that matter, unless and until they are properly trained.
Perhaps my noble and learned friend will look at the wording of the parts of Clause 28 that I have mentioned and confirm that nothing in Clause 28 would effect a departure from the existing practice which I have described. I am sure that he does not wish to put back the clock, but we must ensure that in this part of the Bill there is no intention to do so and it will not have that effect.
As I say, this is a probing amendment but it is an important point. I look forward to hearing what my noble and learned friend has to say. I beg to move.
Lord Meston: I support Amendments Nos. 149B and 149C because Clause 28(1) ensures that the Bar Council's regulations and rules are deemed approved. As the noble Lord, Lord Renton, said, that was the promise contained in paragraph 3.10 of the White Paper, reiterated in paragraph 11.4, which reads:
"As has already been made clear, the Bar's and the Law Society's current rules and codes will remain in force when the legislation proposed in this White Paper is implemented until either professional body chooses to amend them".
It is worth mentioning that the concerns dealt with in the amendments are those which might affect the Law Society in relation to Clause 29.
However, Clause 28, subsections (1) and (2)(a) and (b) suffice to give effect to the promise contained in the White Paper. Subsections (2)(c) and (3), which the amendments seek to delete, seem to qualify the promise and create an uncertainty because they raise the prospect of the Bar Council's current regulations being struck down by the Lord Chancellor and the powers that are to be.
As I have said, the White Paper, by contrast, contemplated only the striking down or disapproval of later changes to now existing regulations. The Bill seems to go back on that by deeming approved only those current regulations and rules which would be

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approved by the mechanism of the Bill. It is by no means easy to understand how it will be determined for the purposes of Clause 28(2)(c) whether regulations would have been approved, if they had been submitted, under a mechanism which does not exist. There are moments when I think that I understand how the provisions work but they do not last. For those reasons, I support the amendment.
Lord Byron: Perhaps I may associate myself with what has been said by the noble Lords, Lord Renton and Lord Meston. Amendment No. 155C standing in the name of the noble Lord, Lord Hacking, is the exact corollary so far as the rights of audience of solicitors are concerned. I do not want to repeat what the noble Lord, Lord Meston, has said, but it seems that the equivalent provisions under Clause 29(2)(c) and (3) throw considerable doubt on the existing position. I therefore wish to associate myself with what has been said.
The Lord Chancellor: The regime proposed in the White Paper was that the existing regulations would stand. I shall take the Bar as an example although the same would apply to solicitors. Regarding rights of audience, the regulations would continue to apply and new regulations would require the approval of the Lord Chancellor and the designated judges.
When we came to draft the Bill, there appeared to be advantages from the point of view of the profession in having a deemed approval regarding existing rules. That is new, something that makes the whole code consistent. But if that was to be done I thought it wise to leave open the possibility that some rules might, for some reason, require alteration. If so, it would have no effect on anything that happened.
Let me take the education aspect of the regulations for the Bar as an example. If somebody were called and had obtained a right of audience already, any change in the regulations would not affect him: it would only affect people called thereafter. Conduct regulations would require to be approved by the Bar and would bind anyone then at the Bar from the time when they were approved onwards. The purpose of
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the provision is to give a deemed approval, subject to the possibility that some existing rules might require to be reconsidered. The purpose of Clause 28(3) and (4) is to provide machinery for that consideration. The purpose of subsection (5) is to preserve anything already done against any effect that might arise from the deemed approval.
In other words, this is a refinement of the White Paper policy to spread back the approval because that might well be appropriate. I hope that this explanation makes clear to my noble friend Lord Renton and to the noble Lord, Lord Meston, what we have in mind. Of course the same applies to the Law Society.
Lord Renton: I am grateful to my noble and learned friend for his explanation, so far as I have been able to understand it. Speaking for myself, I should want to consider it carefully between now and Report stage. He claims that Clause 28 is a refinement of the clear terms of the White Paper. I must confess that I regard it more as an obfuscation. Let us consider the matter in the light of his debate. Meanwhile, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 149C not moved.]
Lord Rawlinson of Ewell Lord Rawlinson of Ewell had given notice of his intention to move Amendment No. 150:
Page 22, line 40, leave out ("Lord Chancellor") and insert ("Lord Chief Justice").
The noble and learned Lord said: This amendment together with Amendments Nos. 151 to 154 and 156 to 161 inclusive, as well as Amendments Nos. 162 to 167 inclusive, are consequential upon the amendment which I moved on Thursday. I argued then that there is no place for a Minister in the guidance, education, training or conduct of an independent legal profession. I spoke to all those amendments at that time and I shall return to the subject later on Amendment No. 168.
[Amendment No. 150 not moved.]
[Amendments Nos. 151 to 154 not moved.]
Clause 28 agreed to.
9.30 p.m.
Clause 29 [The Law Society: rights of audience]:
[Amendments Nos. 154A to 155 not moved.]
Lord Hacking Lord Hacking moved Amendment No. 155A:
Page 23, line 22, at end insert —
("(aa) to have granted to solicitors rights of audience in all interlocutory proceedings in the Supreme Court;").
The noble Lord said: Amendment No. 155A concerns Clause 29 which is the deeming clause for existing rights of audience possessed by members of the Law Society. The proposal here is that there should be deemed also to solicitors a right of audience in all interlocutory proceedings in the High Court.
As the Committee will be aware, most interlocutory proceedings in the High Court are conducted in chambers. That is largely the practice except in the Chancery Division where motions are held in open court. Representations have been made to the Supreme Court Procedure Committee concerning some of these interlocutory applications suggesting that they should be heard not in chambers but in open court. I understand that representations have been made concerning for example applications for an injunction with the proposal that those applications should be heard not in chambers but in open court.
The Committee will also be aware that members on my side of the profession regularly appear in interlocutory matters in the High Court of Justice and therefore have full experience in that type of forensic work. The purpose of this amendment is to enable the rules committee, if it thinks it right to do so, without being troubled over the rights of audience issue, to change the rules so that some proceedings that are currently held in chambers in the High Court, for example injunction applications, should now be heard in open court and no longer in chambers. That is the basis upon which this amendment has been tabled. It seeks to give freedom to the Supreme Court Procedure Committee and not to delay everything upon the rather lengthy procedure which would clearly have to be gone through for solicitors to have a general right of audience in the High Court as opposed to the limited right of audience which they already exercise in chambers and which they may now require in open court. I beg to move.
Lord Ackner: I have only one comment to make on this matter. It was said yesterday and has been repeated today that the advisory committee has been set up to deal with the extensions, if any and whenever, in rights of audience. We sought in relation to the cab rank principle, which is a point of constitutional importance, to have that enacted. However, it was not passed. We have sought in relation to the Crown Prosecution Service to get that on the statute book. However, it was not passed because the advisory committee again is meant to be there to deal with those matters. This kind of small alteration does not in my respectful submission
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justify inclusion in the statute. It is very much a matter on which I respectfully think the advisory committee should grind its teeth, assuming it has any.
Lord Donaldson of Lymington: While not adopting the phraseology of my noble and learned friend Lord Ackner, I believe that the matter needs to be looked at very carefully in detail. I should have thought that the advisory committee, the Lord Chancellor and the designated judges were the people to do that. I say that for this reason. Solicitors do not have rights of audience in all interlocutory proceedings in the Supreme Court. So far as I am aware they certainly have no rights of audience in the Court of Appeal in relation to interlocutory proceedings.
Furthermore, interlocutory proceedings has a quite different meaning in the Court of Appeal from its meaning in the High Court as a result of orders made under Section 60 of the Supreme Court Act. As I mentioned earlier in the Committee proceedings, that section consists of a general rule and no fewer than 40 exceptions.
I subscribe entirely to the policy of my noble and learned friend the Lord Chancellor that no one should lose existing rights of audience. However, I fear that as worded the amendment may not have that effect. Whether it erodes existing rights or adds to them I know not. However, I do know that it requires a great deal of study to find out what the effect of the amendment would be. Therefore, I hope that it will not be pressed.
The Lord Chancellor: I have little doubt that the two amendments, if passed, would constitute an enlargement of the existing rights of audience of solicitors. The Lord Chancellor is nothing if not consistent. I firmly believe that this is a matter for the advisory committee to consider. The effect on the Crown Court could be quite considerable, even in terms of volume. Both are matters for the advisory committee to consider and for the machinery that we have set up.
I should like to comment in passing that my noble and learned friend Lord Ackner referred to a number of things that were said yesterday. The proceedings in this Bill must have given the impression that the weekend was very short.
I hope that the noble Lord, Lord Hacking, will feel able to withdraw the amendments on the understanding that these are matters to be dealt with by the machinery that we seek to set up.
Lord Ackner: I apologise for the disorientation. For 48 hours over the weekend we had no power.
Lord Coleraine: Before the noble Lord, Lord Hacking, comes to his decision about the amendment, perhaps I may speak briefly to the subsequent amendment. It has already been answered by my noble and learned friend and I have

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taken careful note of the points made by the noble and learned Lord. I am grateful that the noble and learned Lord will look at this as well as the first amendment. However, I should like to explain to the Committee what the Law Society has in mind in supporting the deemed extension of rights of audience into the Crown Court in all cases of guilty pleas and other cases not heard on indictment.
Such cases would not require special training for solicitors, who have considerable experience of all those matters arising out of their work in magistrates' courts. There would be no question but that further training would be needed for solicitors who wished to deal with matters in the Crown Court on indictment. However, it is thought that for the cases mentioned in the amendment to have to set up special training which would only apply to solicitors who already had the training would be superfluous.
In the Green Paper the Government specifically indicated that they proposed an immediate extension of solicitors' audience rights to include guilty pleas in Crown Courts. I am not at all clear why my noble and learned friend had changed his mind when it came to the White Paper and those proposals had been dropped. It may be that he felt that it was more suitable for them to be dealt with in other ways.
Solicitors conducting the vast majority of advocacy in magistrates' courts presenting guilty pleas both for the defence and the prosecution would be doing exactly the same work if allowed to do the work in the Crown Court. On the prosecution side, it can hardly be said that the presentation of facts on a guilty plea calls for great advocacy skills. There are not inconsiderable savings of public money to be made in that area if, for example, the Crown Prosecution Service, which conducts the vast majority of Crown Court cases, has the flexibility to use its solicitor or barrister prosecutors to present guilty pleas before the Crown Court.
Apart from that, if and when that facility is allowed, it will enable clients in the large bulk of Crown Court cases to select the lawyer whom they have come to know to take the case through to the finish because in the large bulk of cases there is a guilty plea. It would add to client choice and would potentially allow significant savings to the public purse, both on the defence or legal aid side and on the prosecution side.
Lord Alexander of Weedon: I had not intended to intervene on the amendment. I was however a little surprised when I heard my noble friend Lord Coleraine say that training in advocacy in the magistrates' courts was necessarily adequate for conducting a plea in mitigation in respect of some of the most serious criminal offences which might carry a period of imprisonment of up to life.
When I started at the Bar I felt content to cut my teeth on pleas of mitigation in careless driving cases. I should not have wished to do so in cases of manslaughter or serious crimes such as rape which might involve a long period of custody for my client. I respectfully suggest that this is an issue which, not
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only on grounds of consistency but on the basis of the principle of sensible evolution, should be left for the advisory committee.
9.45 p.m.
Lord Hutchinson of Lullington: I intend to say something about the matter at this stage because the words that have fallen from the lips of the noble Lord, Lord Coleraine, illustrate the extraordinary propaganda about rights of audience. The idea that a plea of guilty in a Crown Court is a matter with which anyone can deal and which does not, as the noble Lord said, require any special training, is a concept of advocacy which shows that a great deal of the debate is based on total ignorance. The idea that handling a plea of guilty and dealing with a person who may or may not plead guilty is a matter of total simplicity with which any qualified person may deal shows such ignorance of what advocacy is all about that one can hardly believe what one hears during the debates on the Bill or reads in the propaganda about advocacy. I have received more today from the Law Society.
Dealing with the possibility of a plea of guilty is one of the most onerous and important duties that an advocate may have. The question of advising a person as to whether he should concede a case or whether he should accept a situation in which he may go to prison for a long time is a matter of great importance and responsibility. So many matters arise that disinterested advice to such a person is crucial. The idea that anyone may provide that is so outrageous that it should involve the committee considering the matter. When faced with the question of a plea, what would be the likely outcome and the likely penalty? Is the plea justified in the law affecting the charge? What about the alleged confession? Should one accept the alleged confession or should one go into court and spend three or four days trying to establish that the confession was falsely obtained?
I have often seen a Guildford Four situation arise in magistrates' courts. It is sometimes unbelievable to see the way in which confessions are accepted in magistrates' courts because two or three policemen say that that is what happened. The advice given to that person is, "Oh well, it's no good disputing a confession because there are four policemen who all say it was made." Having to decide whether or not to accept that situation depends on experience, courage, thought and a whole series of questions which are of crucial importance in advocacy.
The simple and easy way is to tell the client, "Well, there is the evidence. I'm telling you that there is no answer to the case." It requires a great deal of backbone and courage to go into court and spend many hours disputing such a matter, no doubt to the disapproval of the noble Baroness, Lady Phillips.
All kinds of questions arise about the bad character of the client. If he attacks the police his bad character will be put into the case and all his convictions produced. Is that the right thing to do? Is it worth taking the risk? Those matters are of vital importance.

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There is the legitimate question of plea bargaining, which is the legitimate approach to the prosecution to decide whether a plea can be accepted on one or another ground. It may mean going to see the judge in chambers to discuss such matters. It may save the court weeks of trial but these matters must be handled with tremendous responsibility and care.
Finally, when sentence has been passed, that is not the end of the matter. One has then to consider whether there should be an appeal against the sentence. That requires experience of the Court of Appeal and the considerations that it will take into account. An opinion will have to be written as to whether one should proceed with the appeal to the Court of Appeal. Those are matters of tremendous responsibility. They require great care and experience.
When I hear mentioned, as I have just now, the idea that one does not require any special training for these matters, I sometimes despair about the questions which are discussed in this Committee. There are a great many people who are not versed in the law and who simply listen to the propaganda that is pushed out to the effect that anybody can do this or that. It is said that lawyers should not be allowed to do this. Qualified barristers should not be messing about in courts of criminal law. What are they doing in magistrates' courts? What are they doing spending all that time in the Crown Courts? Queen's Counsel ought to be in the Court of Appeal dealing in commercial matters and in high intellectual matters where their qualifications are justified. The whole spirit of this Bill is to clear the criminal court of barristers and qualified advocates and to let the matter be dealt with on legal aid by some advocate, quietly and briefly trained to do a job, as the Bill states, in a specific court using his specific qualifications. He can deal with pleas of guilty. He can do that in the magistrates' court. He can do a trial in the criminal court. That is a concept of justice that I shall continue to resist. I sincerely hope that this amendment will not be given the slightest consideration.
Lord Ackner: I agree that one of the greatest tests of the ordinary non-specialised advocate is the plea in mitigation. When I was a pupil my pupil master told me that what I should try to do was to indicate in the most tactful way to the judge how he should deal with my client and then make it impossible for him to do anything else. If that does not take skill, it is difficult to know what does.
In my pursuit of moderation, as requested by my noble friend Lord Mishcon, I shall refer to two quotations from my noble and learned friend the Lord Chancellor which he made in an interview in December 1977 in the barristers' magazine,Counsel.
"The client comes in off the street to seek the help of a solicitor. His whole life in the sense of his reputation and freedom may depend on the skill of the advocate. It could be a mistake to put the decision whether to do the case oneself or pass it on to a barrister into the hands of those with first access to the consumer".
The other quotation is this:
"A trained advocate hits the point very quickly. It is not easy to do. Some quite distinguished solicitors take part in committal proceedings and receive wonderful client reaction without actually achieving very much in their client's interest".
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I wonder to whom he was referring.
"The client wants the best advocacy going, and if the solicitor fancies himself as an advocate, he may not be the best person to judge his own skills against those of his colleagues. It is a crucially important decision for his client".
Another quotation reads as follows:
"The idea that a potential litigant may choose to have his case in the Superior Courts conducted by a solicitor no doubt carries a superficial and populist appeal. But, as I have said, the choice of the advocate best equipped to conduct the particular business of a litigant can only be an informed choice. Uninformed choice is no choice at all. Members of the public are in no position to know, without professional advice, which advocate should be instructed or to know whether his own solicitor, even if he is one of those who have a right of audience in a particular Court, is best equipped to act as his advocate in his particular proceedings".
That was not from my noble and learned friend the Lord Chancellor but from the memorandum submitted to my noble and learned friend by none other than the Lord President of the Court of Session and Lord Justice General, who is the equivalent of our Lord Chief Justice south of the Border. It just shows what wisdom exists up north. I hope that it will continue to pervade in this sense down south.
Lord Bridge of Harwich: I hope that the Committee will forgive me for introducing a lighter note provoked by the noble Lord, Lord Hutchinson. If the lay client wants to learn whether he has an arguable case for appeal against sentence, far and away the cheapest opinion he can obtain is by making an application in person for leave to appeal to the Court of Appeal. It will cost him infinitely more to get an opinion from leading counsel.
Lord Mishcon: If the noble and learned Lord will forgive me, from the height of the eloquence and advocacy of the noble Lord, Lord Hutchinson, and the model of moderation of the noble and learned Lord, Lord Ackner, perhaps I may try to bring the Committee down to what I believe from my experience really happens.
Everything that the noble Lord, Lord Hutchinson, and the noble and learned Lord, Lord Ackner, have said should make the Committee beg the Lord Chancellor to remove from solicitors the right of advocacy in county courts and indeed in magistrates' courts where they conduct cases in full. They cross-examine, make submissions, advise on pleas, and are responsible for the liberty of the subject when they are acting for a client. I fail to find reality in what I was told took place. Shall I be forgiven for saying this, because I have such admiration for members of the Bar? That is not said lightly, insincerely or cheaply. But if one phones chambers on behalf of a client and says, "All I have is a plea in mitigation; the facts are obvious; the client agrees; there is a plea of guilty", the clerk will immediately choose the most junior member of chambers on the basis that it is only a plea in mitigation even if it is in the Crown Court. That is the case in nine out of 10 examples.
I am not arguing that the solicitor is superior to counsel. However, one normally finds that the person who has grown up with the case and has taken instructions ought, from the point of view of benefit to the client, to ensure that the client does not have to pay too much if legal aid has not been

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granted, or that legal aid funds are made available for worthy objects. One hopes for the expansion of legal aid into those worthy objects which might be a saving. If the client wants his solicitor to conduct a plea in mitigation in the Crown Court he should be allowed to have him.
As has already been said, if the client desires to instruct counsel, counsel will be instructed. If the solicitor does not feel able to conduct the matter properly, counsel will be instructed by the solicitor. However, to bar a solicitor from making a plea in mitigation in a normal case —and I entirely accept from the noble Lord, Lord Hutchinson, that there are important abnormal cases—which would go to the Crown Court is an absurdity. To bar him from saying that his client has a completely good character; that certain circumstances should be brought before the court explaining why he committed the crime; that he is married and has two children and that his employment is whatever it is —to say that such matters cannot be advanced in any circumstances by a solicitor on a plea of guilty in a Crown Court is an absurdity.
Lord Simon of Glaisdale: Members of the Committee have heard a most important and informative speech from the noble Lord, Lord Hutchinson, seconded by my noble and learned friend Lord Ackner. The noble Lord, Lord Hutchinson, did not put forward the point which was sought to be answered by the noble Lord, Lord Mishcon. He was concerned to demonstrate the intense importance to the liberty of the subject and the enormous difficulties in what was dismissed as something of apparently no moment at all.
I do not desire to go over what they said but I venture to submit that it is a disgrace to have such an important pronouncement made to the Committee at this hour of night, in all the conditions which are unconducive to the publicising of those views and to a meagre Committee. The noble Lord the Leader of the House has been good enough to be present and I beg him to bear that in mind.
Lord Hooson: I did not intend to intervene in the debate but I believe that this is a matter which should be left to the new machinery. The noble Lord, Lord Mishcon, referred to his experience. I also have experience because before 1972 I was chairman at a quarter sessions where solicitors had an unlimited right of audience. During my time there not one of them exercised that right.
The noble Lord, Lord Thomas of Gwydir, knows the quarter sessions about which I am talking. I am also right in saying that since 1972 there has been a limited right of audience to solicitors in the Crown Court at Caernarfon, which is on the same circuit. I have no recollection of a solicitor taking advantage of that right. No doubt there are cases about which I have not known and in which such a right has been exercised. However, in almost every case, in the interests of their clients, solicitors have taken the same view that has been expressed so eloquently in the debate tonight.
10 p.m.
The Lord Chancellor: I do not wish to rise again other than to take up one very short point; namely, that I thought that the noble Lord, Lord Hutchinson, said that it was one of the purposes of this Bill to take counsel altogether out of the criminal courts. That is wrong. There is no foundation in this Bill for that allegation.
Lord Morris: As a non-lawyer, I intervene in this very polite but somewhat unseemly punch up between the two branches of the profession. I follow on from the point made by the noble Lord, Lord Hooson. I understand that solicitors have a right of audience in the county court which they very rarely take up. I ask the noble Lord, Lord Mishcon, whether my belief has any foundation in fact. That is relevant. If one is looking for an extension of rights of audience, then one should consider what is the practice as to the taking up of the rights of audience which already exist.
Lord Mishcon: I answer that very briefly by saying that my experience over the years is that the county courts are full of solicitors who exercise their rights of audience. That is true of all the metropolitan county courts; and I should have thought, from what I hear from my colleagues, that is also true of the county courts in the provinces.
Lord Morris: I ask the noble Lord to inquire as to the position in, for example, the Liverpool County Court where I understand that that is not the case at all.
Lord Hacking: Although I have been responsible for the renewed discussions during the past 30 minutes on the rights of audience issue, I suggest to the Committee that that has been thoroughly over-discussed in this Chamber and it is not reflecting much credit on either side of the profession by the continuation of the discussion because the only consequence is a polarisation of views and the taking of extreme examples. Both branches of the legal profession understand its traditions and duties. When members of my side of the legal profession make a decision as to whether to conduct advocacy themselves in courts in which they have an audience or whether they instruct counsel, that is made responsibly according to what is in the best interests of the client and what is in the best interests of justice.
There are pleas of guilty which are moderately elementary to conduct. Unlike the noble Lord, Lord Alexander of Weedon, I never found careless driving cases very easy, and I believe that I only won one such case of the many which I conducted in the magistrates' court. The noble Lord, Lord Alexander, did not say they were easy to conduct, but he reminded the Committee of his early days at the Bar and I remember mine. He said that with confidence one could accept that sort of case but would be hesitant about taking on a much more serious plea

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in mitigation in what was then the Assize Court or the Quarter Sessions. In those days, as now, all other things being equal, the advocate with the right experience and responsibility is the advocate who conducts that plea in mitigation.
I bear responsibility for the renewed debate during the past 32 minutes on the rights of audience issue because I have tabled two amendments. I thought that they were modest and did not attack any vital issues regarding rights of audience. Certainly, I thought that Amendment No. 155A was wholly modest and sensible and would facilitate the work of the Supreme Court Procedure Committee. Therefore, I found the comments of the noble and learned Lord the Master of the Rolls somewhat disappointing although he accepted the basis on which we should promote this matter; namely, that rights of audience which currently exist should not be taken away.
That is not to say that there is not a problem about definition or that this amendment could not be improved. It is a sensible amendment. In the interests of justice, if it is right that injunction proceedings should be taken in open court rather than in chambers, and solicitors already have the right to conduct those proceedings, it seems sensible in the interests of justice that they should continue to conduct matters in which they have regular experience when the forum is changed from chambers to open court.
Having been responsible for re-introducing the subject of rights of audience, I beg leave to withdraw the amendments standing in my name.
Amendment, by leave, withdrawn.
[Amendments Nos. 155B to 161A not moved.]
Clause 29 agreed to.
Clause 30 [The Law Society: rights to conduct litigation]:
[Amendments Nos. 162 to 167 not moved.]
Clause 30 agreed to.
Lord Ackner Lord Ackner moved Amendment No. 167A:
After Clause 30, insert the following new clause:
("Judges' recommendations concerning regulations and rules of authorised bodies.
.—(1) The Lord Chancellor or, acting jointly, the designated judges, may at any time make to the General Council of the Bar, the Law Society or any other authorised body such recommendations (including recommendations for additions, omissions and other changes) as they think appropriate concerning any aspect of that body's qualification regulations and rules of conduct and practice, whether or not relating to advocacy or the conduct of litigation.
(2) Any body to which a recommendation under this section is made shall have regard to it.").
The noble and learned Lord said: This is a very short and modest amendment. It proposes that the designated judges should be able actively to initiate the process of change and, where appropriate, make alterations to existing regulations and rules. I hope that this is an example of another proposal made by me which is wholly non-contentious. I beg to move.
Lord Mishcon: May I say how sensible this amendment is.
The Lord Chancellor: I shall take this amendment into account and I hope to give effect to the principle of it.
Lord Ackner: In those circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Prys-Davies Lord Prys-Davies moved Amendment No. 167ZA:
After Clause 30, insert the following new clause:
("Commencement of rights of audience and of rights to conduct litigation.
.—(1) On entry of the name of a solicitor on the roll kept by the Law Society under section 6 of the Solicitors Act 1974 or the restoration of the name of a solicitor, such a solicitor shall be deemed to have been granted by the Law Society the rights of audience and rights to conduct litigation exercisable by solicitors (in their capacity as solicitors) immediately before 7th December 1989.
(2) Upon recognition of a body corporate by the Council of the Law Society pursuant to rules made under section 9(1) of the Administration of Justice Act 1985, that body corporate shall be deemed to have been granted by the Law Society the rights to conduct litigation exercisable by solicitors (in their capacity as solicitors) immediately before 7th December 1989").
The noble Lord said: I can deal with this amendment very briefly. It would ensure that solicitors admitted after 7th December 1989 automatically acquire solicitors' existing rights of audience and rights to conduct litigation and that solicitors' incorporated practices recognised after 7th December 1989 automatically acquire solicitors' rights to conduct litigation. I understand that there is some doubt in certain quarters whether these rights are preserved by Clause 29. This amendment would put the matter beyond dispute. It is supported by the Law Society and I trust that it is acceptable to the Government. I beg to move.
The Lord Chancellor: Amendments Nos. 167ZA and 167ZB are the same. I am not sure that it is necessary for primary legislation to set down for all time the method by which solicitors acquire rights of audience and rights to conduct litigation or to make a statement of the extent of those rights. That is something that is more appropriate to the rules of the profession body concerned, in this case the Law Society.
I find subsection (2) more difficult. Although it is the name of the firm of solicitors which appears upon the writ when a solicitor from that firm is conducting litigation on behalf of a client, it is not the firm to which the right is granted but the individual solicitors. Similarly, if a solicitors' incorporated practice were conducting litigation, it would be the name of the incorporated practice which appeared on the court documents. This would not, however, imply that any right had been granted to the company but rather to its individual solicitor directors. That is the way in which I understand the matter. There may be some technical issue which has not been completely focused. At the present moment I have some difficulty with the question. I shall be happy to consider the issue further if the noble Lord has further points to put to me.
Lord Hutchinson of Lullington: As this is the last amendment dealing with solicitors requiring rights of audience, can the noble and learned Lord tell the Committee what are his intentions as regards his powers under the Supreme Court Act 1981? At the moment it does not appear that that Act is to be repealed because it does not appear in the relevant clause of the Bill. He has the power at any time to direct that solicitors may appear and have rights of audience in the Crown Court. I raised this matter in connection with a previous amendment but I did not ask the noble and learned Lord to reply to it.
The Lord Chancellor: I should have said something about it. My understanding is that it is a rather specialised provision which has been given effect, for example, in the situation to which the noble Lord, Lord Hooson, referred. When one reads the section as a whole one does not regard it as doing other than recognising that in some places the old Quarter Session rights should be recognised if there is a scarcity of counsel. I personally had to exercise that right in the very limited circumstances when the Crown Court moved from Bodmin to Truro. The old rule, so far as Bodmin was concerned, was transferred to Truro. That is the scope of the section as I understand it.
At one stage, in the course of the various applications made to me since I became Lord Chancellor, one suggestion was that that section could be used to obviate the present debate. I resisted that rather strongly. That is my view of the scope of the section. The machinery here is intended to deal with matters generally and not specific locations. I do not believe that the two are in any way inconsistent, the one with the other.
Lord Hutchinson of Lullington: I am sorry to press the noble and learned Lord. I understand and totally accept that the noble and learned Lord would not use the powers under the section to do what he has suggested, which is to give rights of audience at the Crown Court to solicitors. Will he agree that the power is there in the hands of anyone who may succeed him in his great office? The simple terms of the section are that the Lord Chancellor may at any time direct that solicitors may appear, conduct, defend and address the court in any proceedings in the Crown Court. Will the noble and learned Lord agree that, whatever his own intentions are, that section gives the power?
The Lord Chancellor: I believe that there is more to the section than just that. I have not got it in front of me at the present moment. My reading of it suggests that it can only be used in relation to special situations. That is the understanding I had of it.
Lord Donaldson of Lymington: Approximately once a month I sign a list of names, the magic of which is that they eo instante come on the roll of solicitors. What troubles me about subsection (1) of either amendment is that my successor in 10 or 20 years' time—assuming that the statute is still on the statute book —will be granting new solicitors the rights of audience enjoyed by solicitors immediately
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before 7th December 1989. That seems a total irrelevance. They probably will have much extended rights of audience in general. In some respects it may be that they would be less than the rights effective on 7th December 1989. I cannot see that it matters what the rights of solicitors were on 7th December 1989. What matters is the rights of solicitors at the moment they join the roll.
Lord Prys-Davies: I have listened carefully to the noble and learned Lords the Lord Chancellor and the Master of the Rolls. There is, no less, concern at the Law Society as to the rights of solicitors who qualify after the Bill becomes law. Clearly, the Law Society will have to consider carefully the advice that has been delivered in reply to the amendment. I therefore beg leave to withdraw it.
Amendment, by leave, withdrawn.
[Amendment No. 167ZB not moved.]
10.15 p.m.
Clause 31 [The Authorised Conveyancing Practitioners Board]:
Lord Rawlinson of Ewell Lord Rawlinson of Ewell moved Amendment No. 168:
Page 25, line 18, leave out ("Lord Chancellor") and insert ("Master of the Rolls").
The noble and learned Lord said: We now come to Clauses 31 to 38, which deal with conveyancing, a matter dear and close to the heart of the solicitors' branch of the profession. I have no doubt that from now on there will be total and utter harmony so that barristers and solicitors in both branches of the profession will be able to gambol through the clauses hand in hand. The only person who may not be able to do so is my noble and learned friend the Lord Chancellor as I seek to remove him from his control and domination of this area of legal services and substitute for him a judge.
I should like, if I may, to speak to Amendment No. 169 which with Amendment No. 168 refers to the conveyancing board; to Amendments Nos. 171, 172 and 172A in Schedule 5, which deals with the membership of the conveyancing board; to Amendments Nos. 175 and 176 in Clause 34, which deals with the provision of conveyancing services; to Amendment No. 177 in Clause 36, which deals with the revocation and suspension of conveyancing; to Amendment No. 178 in Clause 38, which deals with regulations with regard to conduct, and to Amendments Nos. 181 to 184 which deal with the Conveyancing Appeal Tribunals.
Under my amendments the Master of the Rolls would be substituted for the Lord Chancellor in regard to the exercise of the powers being taken in all these matters. Conveyancing is a purely legal matter. It is probably the most important legal transaction that a member of the public will ever enter into. It is of enormous importance. It deals with the transfer, acquisition or sale of the single greatest asset of most people. In my view it is lunacy not to use a solicitor to conduct that form of transaction. I cannot understand why anyone would

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want to do anything else. But it is purely a matter of the legal profession carrying out a commercial transaction.
What on earth is the point of suddenly introducing the Government into this area? Why do we need a Minister on this board to deal with these matters? The Government are again seeking powers to dominate an independent legal profession. Is there anywhere else in the civilised world where a member of the Executive, a person who sits in the Cabinet, is given powers over the exercise of how one sells or transfers one's house? What is the purpose of this provision? What reason is there for it?
Parliament does not interfere with the decisions of judges and does not interfere with the Director of Public Prosecutions in his decisions whether or not to prosecute. It either accepts the decision of a judge or of the Director of Public Prosecutions or it removes him. Parliament does not have to approve and should not express approval or disapproval of how judges conduct their business. Moreover, it should not, through a Minister, take powers to control or supervise this perfectly ordinary legal practice.
We are storing up for ourselves much danger —I am sure that my noble friends Lord Boardman and Lord Coleraine will well appreciate this fact —if we take in a Cabinet Minister to assist us in the practice of legal services. However, it is a little more than that; it is a matter of principle. My party, the Tory Party, has always been pragmatic in matters of policy —that is, the old Tory Party used to be —but never over matters of the balance of the constitution and the sharing of the balance of power.
I beg the Committee not to allow this issue to slip through at this time of night when there are only a smattering of Members present. Here we are again glibly handing the matter over and saying, "Well, it will be perfectly all right". The Minister will say, "I will look after the matter; of course it will be dealt with by those professional bodies. I am there, and I am taking these powers just to see that it is all right".
In my submission that cannot be right. We should not slide into indifference because a particular Cabinet has made a particular decision and because a particular draftsman is now interfering with the main and most important business which a citizen has to undertake as regards the transfer of any legal rights. I know that it is more a matter for my noble friends Lord Boardman and Lord Coleraine who are in that branch of the profession. Of course they know much more about conveyancing than I do. However, I know that whatever happens it would be sensible not to go to any of these new creatures which have been created. One should go straight to a solicitor to sell or buy a house.
I know that we have said this before. Moreover, in the years to follow there may be a different Cabinet, an abolished House of Lords or a reformed House of Lords—whatever the noble Lord, Lord Mishcon, has in mind. We do not know what this Chamber will look like when it is reformed, who will be the Minister or what type of Minister will be here, or indeed what kind of people will be sitting in this place. Are we really going to accept that a Cabinet
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Minister should be involved in controlling the independent legal profession in such a matter as the sale or purchase of a house?
I think that all Members of the Committee should now join together in harmony in asking my noble and learned friend gracefully to withdraw and to let a judge have this position. I suggest that the Master of the Rolls should take over these duties, duties with which he is fully conversant and which comply with other aspects of his duties as regards the solicitors' branch of the profession. I beg to move.
Lord Rippon of Hexham: For the reasons I supported my noble and learned friend Lord Rawlinson in respect of Clause 16, I also support him on this occasion. At that time the noble and learned Lord the Lord Chancellor explained that it was difficult to substitute the Lord Chief Justice because, as he said again this afternoon, various heads of division have various responsibilities. Therefore, it is logical in respect of this clause that the Master of the Rolls should be the substitute for the Lord Chancellor.
I think it is important that the noble and learned Lord the Lord Chancellor, who has this difficult and sometimes delicate balance to keep between being the head of the judiciary and a member of the Cabinet, should stand away as far as he can from interfering with the legal profession. I refer to both sides of it in that respect because I regard them as being of equal importance.
For my part I would welcome an amendment in Dod whereby solicitors were moved up from number 194 to 192 in the order of precedence and that they should be allowed to call themselves esquire. I believe that we are now in danger in this Bill as regards some of the matters of causing a further division betweeen the Law Society and the Bar Council; that is, between barristers and solicitors. This is most unfortunate and we should not allow it to happen. We should recognise that both parts of the legal profession have their role to play. Solicitors certainly have a role to play in conveyancing. Moreover, if I am ever involved in a transfer of a house, either buying or selling, I shall go to a solicitor. However, that is my personal view.
Once again of course we have one of these nominated boards with all its members, including the chairman, to be chosen by the Lord Chancellor. The chairman may be anyone. He may be a judge, but he does not have to be. That is the pattern that runs right through one Act of Parliament after another. The Government are to nominate all the members to boards set up under the Bill —the advisory committee and this board. They did it in relation to the health service and the water authorities. It is a dangerous pattern, and one that we should not support.
Those doubts are ones that I have expressed not only in relation to this Bill but to many other measures which have come before Parliament in recent years. I recall that Lord Radcliffe in the Reith lectures on the problems of power said that of course one way to defend the rule of law, although it was not one that he recommended, was to rely upon a

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sufficient number of bald-headed men on top of a Clapham omnibus to turn up to see that everything was all right. I do not believe that that is good enough.
Clause 32 provides that one of the board's functions shall be to develop competition. The proposals are anti-competitive. That is a concern which has been expressed by many bodies, including the CBI. There is none of the protections against predatory pricing which were announced in the White Paper.
I accept that the purpose of the Bill is to do something that is for the benefit of the consumer; it is not just for the benefit of solicitors. I regard the proposal to allow conveyancing by banks, building societies and other institutions to be thoroughly objectionable. I agree with the view expressed by the noble and learned Lord, Lord Goff of Chieveley, in the debate on the Green Papers when he said that that proposal,
"would not lead to competition, but would promote a captive market for those large institutions. In addition, it could well lead to the demise of many high street solicitors, to the detriment of the ordinary citizens of this country".
The public's only protection will be the requirement that the conveyancing work would have to be carried out in compliance with a statutory code of conduct. I am not all that enamoured by a reliance upon codes of conduct. The Committee may again agree that my noble and learned friend Lord Goff of Chievely was equally right when he said in the debate on the Green Papers:
"I respectfully agree with the noble and learned Lord the Master of the Rolls that too much emphasis is placed upon codes of conduct. No one ever created high standards of conduct by writing words down on a piece of paper". —[Official Report, 7/4/89; col. 1410.]
It is the practice that matters and the training that people receive from those with whom they work when they are young pupils or young solicitors. That is what creates the code of conduct. Many people have never looked at the code of conduct. They have learned from practice what is the right thing to do and how to behave.
Generally, as I understand it, solicitors may not act for both the vendor and the purchaser; but it is now proposed that a single financial institution, as I understand it, may, first, act as agent for the vendor to sell the house; secondly, act as the vendor's solicitor; thirdly, act as the purchaser's mortgagee; fourthly, sell the purchaser a life insurance policy; and, finally, act as the purchaser's solicitor. He will no doubt charge all the fees. It will not necessarily be any cheaper. It may not be as safe as the present practice.
The proposal will involve no fewer than four actual or potential conflicts of interest. The only solicitor involved in the transaction is employed by the estate agent, the mortgagee and the life insurance salesman. Of course —this is a point made to me by a firm of solicitors and not the Bar Council —it can be said that there will be Chinese Walls. The City, as my noble friend Lord Boardman will know, is full of Chinese Walls, some of them made of rice paper. Others have grapevines growing round them, but few have any degree of solidity. I hope that this is
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not a Second Reading speech, but in a sense it is better to make one speech on the matter. As my noble and learned friend Lord Rawlinson said, conveyancing is of major importance to the consumer. It is the most important transaction most people ever carry out.
One of the difficulties of the Bill is that it tries to do so many things at once. It deserves most careful attention from us all. The Confederation of British Industry and many other organisations have expressed concern about the proposals of the noble and learned Lord the Lord Chancellor, especially their effect in the high street and upon provincial firms of solicitors whose continued existence may be threatened. I do not believe that that is in the public interest.
Of course, it is not surprising that this is happening because there is a pattern. As I said the other day, the lawyers attend proceedings on this Bill; for the most part, the City people come to the financial services Bills; the local government people come to the local government Bills. It is not always possible to observe the way in which, under Bill after Bill, it is the little man who is threatened, all in favour of the larger institution —whether it be the bank, the large firms of solicitors or in due course possibly the very large, powerful sets of barristers' chambers. The Financial Services Act has hit the small stockbroker. The new business rate is hitting the small business. We are now going to hit the small country solicitor, just as the health service legislation is directed for the moment against the small country doctor.
It seems to me that the whole basis of my noble and learned friend's case time after time in this Bill is designed to help the consumer or the client of the legal services. I do not believe that the provisions in this part of the Bill will be of any benefit to the consumer. Today I received a very interesting letter from the president of the Glasgow Bar Association asking me to support its amendments. He states:
"We totally reject the sections of the Bill relating to conveyancing … as being unnecessary. The public's interests are paramount to us".
He says that the system there, which is different from that of England, is,
"reliable, expeditious, cost effective, flexible and above all gives adequate protection to the public and separate independent advice".
That is what I think we should retain in England. Of course, until recently I should have hesitated to make any pronouncements upon the law in Scotland, but I think it is rather ossified now to believe that one cannot express a view on somebody else's law, even if one is not familiar with it.
10.30 p.m.
Lord Boardman: I shall not attempt to follow my noble friend Lord Rippon in his wider comments on the impact that some of these clauses are likely to have on competition, conflicts of interest and the like. I am heartened to believe that perhaps we shall find ourselves in agreement at a later stage in the Bill, in the same way that I happen to agree with my noble and learned friend Lord Rawlinson.

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On the very narrow point about "Master of the Rolls" replacing "Lord Chancellor" for the purposes of this clause, I find myself sadly in disagreement with both my noble friends. I do not feel strongly on the matter. It is not as much of a constitutional point as was the replacement of "Lord Chancellor" with "Lord Chief Justice" in an earlier part of the Bill. It seems to me that with the role that is cast for the Lord Chancellor in this clause and from there on, it is appropriate that the matter should be for a member of the Executive rather than a member of the judiciary.
If we examine Clause 31 and the following clauses where this point is evoked, so many of the roles and duties cast upon the Lord Chancellor are essentially of an executive character. For instance,
"The Lord Chancellor may, with the approval of the Treasury, make grants";
"Any sums required by the Lord Chancellor for making grants … shall be paid out of money provided by Parliament",
and so on. I feel in this case that it is quite appropriate that the amendment should not be agreed to. The Master of the Rolls in his judicial capacity is one thing; the Lord Chancellor in this case, with a very heavy executive responsibility, is the right person to shoulder these responsibilities in this part of the Bill.
Lord Mishcon: I wish to add briefly to what the noble Lord, Lord Boardman, has said. I shall not repeat anything he has said, much of which I agree with. I also agree heartily with much of what the noble Lord, Lord Rippon, said. However, I wonder whether the argument that the noble Lords advanced, namely that the purchase and sale of a home are possibly the most important acts that a member of the public in many cases indulges in, is not the very reason why a Minister of an elected government, in safeguarding the public, should not make the appointment in this case rather than a judge. I say that with all due respect to judges.
The Lord Chancellor: As regards legislation on this topic, the present position is that authorised practitioners, as provided in the 1986 Act, are to be certified or authorised by the Lord Chancellor individually. I am furthering the policy that my noble and learned friend Lord Rawlinson of Ewell and my noble friend Lord Rippon of Hexham proposed by distancing myself somewhat from the approval of practitioners.
On the appointment of members of the board, I believe that constitutionally it is right that these appointments should be made by someone who has answerability to Parliament so that any appointments can be challenged as regards their suitability through the developed methods of parliamentary scrutiny. That would not be appropriate for a judge in the position of the Master of the Rolls. While from my own personal point of view I should be delighted to have responsibilities in other quarters than my own, as a matter of constitutional propriety I believe it is right that the Lord Chancellor should make these appointments. He has to have regard to the various interests that
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are described. I hope that in the light of that explanation my noble and learned friend will feel able not to press the amendment.
Lord Rawlinson of Ewell: I still fail to see why an independent legal profession has to have a Minister so closely involved not only with the rights of audience and the advisory council but also with the conveyancing board. However, I have done my best for that other branch of the profession which I admire so greatly. I was even going to move an amendment to remove the word "barrister" in Clause 33(3)(a) and leave the matter of conveyancing only to a:
"solicitor, notary or licensed conveyancer".
I do not think that that matter is the duty of a clerk or a barrister. Different skills and a different ability are involved. However, my gift horse was turned down by my noble friend Lord Boardman. So if the solicitors are satisfied with that position, then so be it.
However, with great respect to my noble and learned friend I do not understand the constitutional importance of having a Minister involved in this matter when across the length and breadth of Europe legal services are at last becoming independent. They are throwing out the authority of ministers and government and declaring that they will conduct their business with people appointed by them and in accordance with their own standards. The legal profession in such countries has become independent. In no other country in the world is a government so much involved in the legal services provided in a state. If one went to America and suggested that a secretary of a state or the whole federation should be involved in who should be allowed to practise in the American courts or how American lawyers should carry out conveyancing on a house one would be turned upon. That would also be the case anywhere else in the world. However, we say that this provision is constitutionally important. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 169 not moved.]
Lord Simon of Glaisdale: I should like to suggest that the House do now resume. At this stage I need say no more than that it is highly undesirable that an important Bill such as this, a Bill in which presumably the Government have confidence, should be discussed in a meagre Committee at this hour of night, and later.
We lost an hour of the Committee proceedings. We lost three-quarters of an hour on the Statement and another quarter of an hour because of the business during the dinner hour over-running. Therefore, with confidence, it being past the normal hour for rising, I beg to move that the House do now resume.
Moved, That the House do now resume. —(Lord Simon of Glaisdale.)
Lord Belstead: I realise that the hour is getting later. As the Committee will know from the list of amendments that we placed at the doors, we had

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intended to go a very long way tonight. However, the Government have been proposing through the usual channels to go so far as Amendment No. 177C. I hope that the noble and learned Lord, Lord Simon of Glaisdale, will feel that that is reasonable and will allow us to make some inroads into conveyancing. That is the only comment that I ought to make on the noble and learned Lord's Motion.
Lord Simon of Glaisdale: I am very grateful at least for that mercy. However, can the noble Lord the Leader of the House say how many more Committee days we shall have? At the moment we have only one more day, Thursday.
Lord Belstead: We have Thursday and also next Monday.
Lord Simon of Glaisdale: We cannot possibly deal with the remainder of the Bill properly unless we have more days in Committee. The noble Lord the Leader of the House has very properly not sought to attain the quite unrealisable and unrealistic target that was set. However, having rightly curtailed the business today, he must see that if this Chamber is to do its job within its proper scope another day is required for the Committee stage.
I remind the noble Lord, the Lord Privy Seal, that when I first raised the question of the business in this Committee he said the matter would be kept under review, and that there was no definite allotment of Committee days. I understood that in saying that the matter would be kept under review he meant that if it turned out that more days were required they would be vouchsafed. More days are required.
Lord Rawlinson of Ewell: Before my noble friend replies, perhaps I may say that this is a Bill which can only be dealt with properly by Parliament in this Chamber. It is the kind of Bill on which this Chamber has the particular expertise and the ability to deal with it properly. If I may say so from my experience of another place, that could never be done there. It can be done here. It is one of the great reasons for the existence of this Chamber—before we are reformed by the noble Lord, Lord Mishcon, as he is so determined to do—that only this Chamber can deal properly with such Bills.
Therefore I ask the business managers to be a little more gracious. I know that my noble friend the Leader of the House is trying to be as kind as he can, but I hope that he will realise that we are not making Second Reading speeches or being difficult. We are trying to turn this Bill into what we sincerely believe to be a good Bill. We believe that that is also in the interests of this Chamber.
10.45 p.m.
Lord Belstead: Perhaps I have not made myself clear, in which case that is my fault. We are today on the fourth day in Committee on the Bill which was the original number of days in Committee proposed by the Government through the usual channels. Realising that the Bill had got off to quite
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an intense and not very quick start, we then proposed an extra day. That will be Thursday of this week. When I said to the noble and learned Lord, Lord Simon of Glaisdale, that Monday of next week has now been proposed by the Government, I should point out that that is yet another day which would make six days in all.
Lord Simon of Glaisdale: It is entirely my fault. A sixth day is now proposed and, that being so, I beg leave to withdraw the Motion.
Motion, by leave, withdrawn.
The Earl of Shannon The Earl of Shannon moved Amendment No. 170:
Page 25, line 29, at end insert ("and
(c) ensuring that no member or members of the Board shall be nominated by the Law Society or the Society of Licensed Conveyancers.").
The noble Earl said: As I indicated in my speech on Second Reading, the creation of authorised practitioners with machinery and regulations to match has now brought into being two separate systems of conveyancing. The intention is expressed that competition between them is a desirable aim, although in speaking to the previous amendment the noble Lord, Lord Rippon, seemed to express his doubts on that matter.
In effect that means that the two systems will need to compete with each other on level terms. That objective cannot be sustained if influential personnel from one of the previous existing systems —in practice either the Law Society or the Society of Licensed Conveyancers —may become members of the Authorised Conveyancing Practitioners Board which effectively sets the ground rules for the new authorised system. It would be intolerable if such influential persons who overwhelmingly represent the established system were appointed to the strategic position of being able to interfere with the working rules of their principal competitor.
I appreciate that some may argue that the boards should have a knowledgeable and balanced representation and that widening the conveyancing systems and services might adversely affect the business of provincial solicitors, but that is what competition is all about, not a cosy monopoly. Is it right to include representatives of one faction to control the activities of their compeititors? Competition must both be achieved and be seen to be achieved.
As it stands, the clause must be defective in that respect. Equity demands that safeguards outlined in the amendment be put in place and that the consumer-client benefits from demonstrably fair competition. I beg to move.
Lord Prys-Davies: By virtue of Clause 31 the membership of the board will be balanced and the noble and learned Lord the Lord Chancellor must have regard to appointing persons with experience in or knowledge of the provision of conveyancing services and the financial arrangements associated with conveyancing.
It appears to me that the speech of the noble Earl, Lord Shannon, went far beyond even the wording of his amendment because his amendment seeks to

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ensure that no member shall be nominated by the Law Society or the Society of Licensed Conveyancers. That amendment is misconceived because there is no power in the Bill for the Law Society or the Society of Licensed Conveyancers to nominate any person for membership of the board. I should have thought that a wise solicitor or licensed conveyancer would be very well qualified for membership of the board.
The Bill does not provide that a member of the Law Society or a member of the Society of Licensed Conveyancers shall be appointed, but I believe that it would be inappropriate to accept this or any amendment that would prohibit any solicitor or licensed conveyancer from being appointed to the board if the Lord Chancellor considered that the appointment was appropriate.
Lord Boardman: I believe that this amendment would seriously restrict the choice of quality candidates and exclude those who have valuable experience in this field. It will be the duty of the authorised conveyancing practitioners to help develop competition in the provision of conveyancing services. Industry in particular, as expressed through the CBI, is gravely concerned that one of the effects of these proposals will be to reduce the legal advice available in the High Street to the medium and small sized businesses. It believes that it is essential that on this board there should be sufficient experienced advice to enable some of the practices that might otherwise operate to adverse effect on the local solicitors' firms—predatory pricing, tying arrangements and the like —to be avoided. It believes it essential that there should be experienced and wise advice on this board to enable some of these practices to be monitored and avoided. It would certainly oppose this amendment.
Lord Evans of Claughton: The hour is late, as we have heard a number of noble Lords say very recently. All that I need to say is that I am entirely opposed to this amendment, which I believe is mischievous. Conveyancing in this country has been done for generations by solicitors and recently by solicitors and licensed conveyancers. To exclude the nomination of people from the professional bodies dealing with those experts would be totally absurd. Quite frankly, I believe that the amendment is mischievous and unhelpful.
The Lord Chancellor: As I have already explained, one of the purposes of this measure is that the Lord Chancellor should appoint people having regard to the considerations which are mentioned in this clause of the Bill. There is no proposal that any body should nominate the members except the Lord Chancellor. I have no intention whatever of appointing people who might be thought to be or might consider themselves to be delegates of anybody else.
However, I think that it is unwise to restrict the freedom of choice of quality candidates for this board except by reference to the kind of considerations which are mentioned in the clause. I hope that on the assurance that the Bill does not contain any power for the Law Society or the Society
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of Licensed Conveyancers to nominate members of the board, the noble Earl, Lord Shannon, will feel that he should not press this amendment.
The Earl of Selkirk: Perhaps I may ask my noble and learned friend how far the word "conveyancing" goes. What is it proposed to include in that? For instance, is there an element of negotiation, is there an element of testing of prices or is this purely the writing of a document on which a complete decision has already been made? Is there a definition or is it left vague for the conveyancers to make up their minds?
The Lord Chancellor: The present law restricts the right to do conveyancing. It is on that monopoly that this provision operates.
I do not have the full facts relevant to this amendment in front of me at this moment, but my understanding is that the drawing of deeds which effect the transfer of property for reward would be the essential idea of conveyancing for this purpose. Anyway, I can assure my noble friend that these clauses will operate on the present conveyancing monopoly.
The Earl of Shannon: My proposed amendment does not seem to have attracted much support. It was not my intention to be mischievous or to try to wreck anything. I appreciate that my amendment may be incorrect in suggesting that there may be some form of nomination included by those two bodies. However, it seems a little odd that members of one faction should be allowed to monitor and write the rules for the operations of their competitors. It does not seem to me to be exactly fair; nor will it be seen to be fair by anyone else.
I agree that it would restrict the Lord Chancellor's catchment of suitable members for his board. I therefore beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Lord Chancellor The Lord Chancellor moved Amendment No. 170A:
Page 25, line 34, leave out ("employees") and insert ("staff").
The noble and learned Lord said: This is a purely drafting amendment. The word "staff' appears to be preferable to the word "employees". I beg to move.
On Question, amendment agreed to.
Clause 31, as amended, agreed to.
Schedule 5 [The Authorised Conveyancing Practitioners Board]:
Lord Rawlinson of Ewell Lord Rawlinson of Ewell had given notice of his intention to move Amendment No. 171:
Page 77, line 5, leave out ("Lord Chancellor") and insert ("Master of the Rolls").
The noble and learned Lord said: I have spoken to Amendments Nos. 171, 172 and 172A. Indeed, I have spoken generally to all the amendments up to and including Amendment No. 177. I do not seek to move the amendments.
[Amendments Nos. 171 to 172A not moved.]
Schedule 5 agreed to.
Clause 32 [Functions of the Board and financial provisions]:
The Deputy Chairman of Committees (Lord Grantchester)The Deputy Chairman of Committees (Lord Grantchester): If Amendment No. 172ZA is agreed to, I cannot call Amendment No. 172ZB.
Lord Prys-Davies Lord Prys-Davies moved Amendment No. 172ZA:
Page 25, line 44, leave out paragraph (a) and insert —
("(a) to promote high standards of integrity and fair dealing in the provision of conveyancing services;").
The noble Lord said: The amendment seeks to achieve two things: to remove the existing paragraph (a) and to replace it with the new paragraph (a) which is set out in the amendment.
Clause 32(1)(a) is a surprising clause. We find it a strange clause because the duty to develop a conveyancing service is already provided for in the statutory objective in Clause 14(1) which the Committee discussed for some hours last week.
Moreover, the proposed rules of the board and the proposed regulations of the Lord Chancellor will have to be sent to the Director General of Fair Trading, who will express his views to whether or not they restrict or prevent competition. On top of that, there is a right of appeal against a decision of the board to the appeals tribunal. We therefore ask this question. Why does the Bill not rely on the general framework of Clause 14, underpinned by the jurisdiction of the Director General of Fair Trading and the right of appeal?
The answer is to be found in the Notes on Clauses. We are told that the introduction of Clause 32(1)(a) will ensure that the board will not unnecessarily refuse authorisation or impose unreasonable conditions. There is a right of appeal to the appeals tribunal if an applicant believes that his application has been refused unnecessarily or if the board has established unreasonable conditions. Therefore, the purpose of the subsection is to introduce on the face of the Bill a slant or bias in favour of competition. We note that the reference is to competition and not to fair competition.
We believe that the clause is unnecessary and that the primary duty of the board should be to promote high standards of integrity and fair dealing in the provision of conveyancing services. I beg to move.
11 p.m.
The Lord Chancellor: Before dealing with the detail of the amendment I wish to point out that Clause 32(1)(b) imposes on the board the duty:
"to supervise the activities of authorised practitioners in connection with the provision by them of conveyancing services".
Further, subsection (2) provides that:
"In discharging the duty imposed on it by subsection (1)(b) the Board shall, in particular, make arrangements designed to enable it to ascertain whether authorised practitioners are complying with regulations made by the Lord Chancellor under section 37".
Those two duties —that referred to by the noble Lord, Lord Prys-Davies, and that referred to by me —are designed to go together.
The purpose of the clauses relating to conveyancing in this part of the Bill is to give the client the choice of a new kind of conveyancing
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service to be provided by authorised practitioners. The board must remember that one of the reasons that it exists is to help in realising that choice. When deciding what kind of rules to make and whether to authorise applicants, it should bear in mind that it is there in part to help ensure that the client gets his choice. I do not think that the Bill is improved by relieving the board of that duty.
Of course this is only one side of the coin. The client needs to have confidence in authorised practitioners and to be able to rely on them performing their tasks to an appropriate standard. That is already provided for in substance by the other side of the board's duty —that of supervising the provision of conveyancing services by authorised practitioners. That will primarily be done by the enforcement of the regulations to be made by the Lord Chancellor. That mechanism provides a place for Parliament in maintaining standards which I think is essential.
I trust that in the light of what I have said the noble Lord will feel that the regulations which the Lord Chancellor makes and in which the parliamentary process is involved will have the effect of providing the framework which the board will have to operate. Therefore, I hope that the noble Lord will feel able to withdraw his amendment.
Lord Boardman: I hope that my noble and learned friend will look at the matter further. It has the ring of seeking to develop competition and of encouraging cut-throat competition which does not necessarily go with the highest standards of integrity and fair dealing. I am mindful that in the provisions covering the Securities and Investments Board, which is similar in its intentions, it is not charged with such duty. Its main task is to make regulations which must promote high standards of integrity and fair dealing in the conduct of the investment business.
In an area where there must be a danger of introducing practices of which the Committee may not approve —and I am sure that we shall hear more about that matter later —we should write into the Bill the requirements for those high standards of integrity. I hope that my noble and learned friend will look at the matter further before the next stage of the Bill.
Lord Evans of Claughton: I should like to add my plea to that of the noble Lord, Lord Boardman. I have practised as a conveyancer for nearly 40 years, not in the City of London but in the high street where conveyancing is the life-blood of the profession. I assure Members of the Committee, particularly those who live in the rarefied atmosphere of the High Court or the City of London, that there are already unfair practices brought about by the fierce competition for work to which some solicitors and licensed conveyancers are willing to reduce themselves.
I add that unless some steps are taken to ensure that unfair competition is as far as possible removed, the practices which would ensue in order to drum up business would rebound, in the end, to the disadvantage of the person buying a house. That is the biggest transaction undertaken in most people's

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lives. If they come from a humble background, £20,000 for a terrace house in the North of England is a lot of money. I deal with that sort of convenyancing. If they live in other parts of the country, £100,000 or £200,000 or more can be a lot of money. Quite frankly, I believe that the provisions in this Bill will encourage the drumming up and seeking of business by the promotion of collection of commissions and every other practice which is so reprehensible to a member of the profession, rather than to a person engaged in other occupations. That will become more and more prevalent.
I am sad, from the bottom of my heart, that we are discussing a matter which is probably more important to the ordinary citizen in this part of the Bill at this time of night when we have spent so many hours discussing much more esoteric subjects in the early part of this Bill. This is the part which affects the average man in the street. This matter is being discussed at ten minutes past eleven and it will receive scant consideration. I feel very deeply that we are in danger of doing a permanent injury to an extremely important part of a service given to the public and to the legal profession of which I have been honoured to be a member, with great feelings of loyalty, for nearly 40 years. I believe that it is terribly sad that this matter is being swept through at this time of night. I support the noble Lord's amendment.
The Lord Chancellor: I rise again because I wish to assure the noble Lord, Lord Evans of Claughton, that I do not regard this as a matter to be swept along. I regard it as very important and I listened with great care to what he said and to what my noble friend Lord Boardman and others said because I agree that this matter affects ordinary people. I started off my life in the law dealing with conveyancing transactions for people who were even more ordinary than those described by the noble Lord in his submissions, at least if the price of the houses is anything to go by.
However, I remind the Committee, because it is relevant to what I said earlier, that Clause 37 states:
"The Lord Chancellor may by regulation make such provision as he considers expedient with a view to securing —

(a) that authorised pracititioners maintain satisfactory standards of competence and conduct in connection with the provision by them of conveyancing services; and

(b) that the interests of their clients are satisfactorily protected".

I take that very broadly to mean that that does not confine the regulations in any way but requires that they secure that the interests of clients are satisfactorily protected. The noble Lord will know that in the original Green Paper I proposed some protective regulations. In the White Paper I have elaborated upon them. The matter is not yet concluded. I am willing to listen to any suggestions about what is required in the interests of satisfactory protection of the client. I believe that that is an extremely important matter. The problems that the noble Lord has referred to in connection with dealings in the high street and other places require to be carefully scrutinised. The noble Lord will know that consideration is being given to that situation in
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relation to estate agents by my right honourable friend and honourable friends in the Department of Trade and Industry and by the Director General of Fair Trading.
Lord Prys-Davies: I am extremely grateful for the support which this amendment has received. The noble Lord, Lord Evans of Claughton, in particular has expressed the deep anxiety that exists in relation to this clause. We fully support paragraph (b) to which the noble and learned Lord referred. Our amendment fits in which paragraph (b). It does not detract from it but merely establishes that priority should be given to the maintenance of standards of integrity and fair dealing between the parties.
We are concerned that the clause should give prominence to the need to develop competition. The forces of the market will ensure competition. In free competition, the conveyancing board should be in business to promote standards of integrity and fair dealing. That should be at the top of its list of priorities.
I cannot take the matter any further this evening but we may well return to it at a later stage. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. I72ZB not moved.]
The Earl of Shannon The Earl of Shannon moved Amendment No. 173:
Page 26, line 3, at end insert —
("(c) to promote and develop the efficient provision in respect of conveyancing services by authorised practitioners.")
The noble Earl said: This is only a probing amendment. It seeks to gain certain assurances about the nature of the Authorised Conveyancing Practitioners Board and its work. Very welcome to those who have read this clause is the statement in subsection (1)(a) that the board will seek to develop competition. I should like to take this point further and ensure that the board has a positive and innovating role in developing conveyancing services.
My amendment states in a direct way that the board should seek to develop new procedures in conveyancing as far as the authorised sector of house transfer is concerned. That is something that is needed more than ever. Until recently the function of breaking new ground and moving the frontier of conveyancing practices belonged to the conveyancing standing committee of the Law Commission, which I understand has now been abolished.
It may be that this amendment is quite unnecessary and that competition, as mentioned in Clause 32(1)(a), includes the innovating role which I have attempted to describe. I wish to be persuaded. Promoting competition does not necessarily mean changing time-honoured rituals. It could mean the creation of two sets of time-honoured rituals to compete with each other in the same old way. I hope that this amendment might avoid that. I remind the Committee that the conveyancing system in this country is the subject of a continual chorus of consumer complaint. Only in recent years has it tried to come to terms with modern consumer society. Even now the system tends to meander along its way like a country omnibus.
This amendment would assist in finding ways to make house transfer more expeditious, inexpensive and less of a trauma than it has been for far too long. I beg to move.
11.15 p.m.
The Lord Chancellor: This clause is in Part II of the Bill and the general objective of this part is described in Clause 14(1) which has been amended. However, in this aspect the clause remains as it was.
"The general objective of this Part is the development of legal services in England and Wales (and in particular the development of advocacy, litigation, conveyancing and probate services) by making provision for new ways of providing such services and a wider choice of persons providing them".
Then words are added.
What the noble Earl has in mind is there in the general objective of Clause 14 which applies to the whole part including this. The object of this particular provision is to make it clear that the board has the job of developing competition in the provision of conveyancing services under that general objective. As regards standards, as I say, these are to be set by regulations which will be subject to parliamentary procedure. The board will have the responsibility of making sure that the authorised practitioners obey these regulations. The Authorised Conveyancing Practitioners Board in the clauses to which I have referred, appears to give the kind of direction that the noble Earl wishes to see received. In the light of that explanation, the noble Earl may feel able to withdraw the amendment.
The Earl of Shannon: I am most grateful to the noble and learned Lord the Lord Chancellor. They were just the assurances that I was hoping for. I therefore beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Evans of Claughton Lord Evans of Claughton moved Amendment No. 173A:
Page 26, line 17, leave out ("may") and insert ("shall").
The noble Lord said: It may be for the convenience of the Committee if in moving this amendment I also speak to Amendment No. 173B. Both amendments deal with a similar matter. The first requires rather than empowers the noble and learned Lord the Lord Chancellor to publish any report made to him by the board on a matter referred to it under subsection (4). The second amendment would require the board to send to the noble and learned Lord any rules and directions that it publishes. It is in the public interest that reports of the ACPB should be made available to the general public, and that the noble and learned Lord the Lord Chancellor should have a complete picture of all the directives and rules made by the board.
As matters stand, he has to approve the rules under Clause 34(4). I believe that he will welcome with delight these amendments and have them incorporated in the Bill. In such a mood of confidence, I beg to move.
The Lord Chancellor: The noble Lord has also referred to Amendment No. 173B, and I shall try to deal with both. As regards Amendment No. 173A, the noble Lord wishes to put an obligation on the Lord Chancellor to publish what is in the board's report. That is my understanding of the first amendment. I question whether that is wise. It is right that the Lord Chancellor should have a discretion to publish what the board may say but to have an obligation to do so might not be wise. For example, the board might refer to the Lord Chancellor the result of some form of preliminary investigation or something of that kind. The result might well require further substantiation.
In some cases we have seen quite serious consequences coming from the publication of a report. I do not envisage this happening very often but the possibility of something of this kind happening and the report containing information which would require further investigation might make it difficult to accept an amendment that imposes an absolute duty on the Lord Chancellor to publish all reports made to him.
Amendment No. 173B is unnecessary. All rules made by the board apart from those dealing with fees are subject to the concurrence of the Lord Chancellor. It is therefore unnecessary to send him a copy. It is not appropriate for the board to be required to send copies of its rules on the raising of fees to the Lord Chancellor. The board is to be self-financing, and a statutory provision could be interpreted as giving rise to a presumption that the Lord Chancellor has a supervisory duty in what is entirely a matter between the board and authorised practitioners. Should it come to the Lord Chancellor's attention, by whatever means, that the board is failing it its duties in respect of these rules, it is open to him to give the board a direction under Clause 32(7). It is always open to the Lord Chancellor to obtain a copy of the board's rules —and it is open to the board to send them to him voluntarily, which is the likely course. The imposition of unnecessary duties by statute is to be avoided. I am sure that the noble Lord would not wish to have unnecessary duties enshrined in statute. Directions by the board could be effective only if their breach gave rise to disciplinary action leading to suspension or revocation. Although the board is allowed to make rules governing revocation or suspension, these are subject to the concurrence of the Lord Chancellor and he would therefore see them in any event. In the light of that explanation, I hope that the noble Lord will feel that the points raised by his amendments are adequately covered.
Lord Evans of Claughton: I moved the amendment in an attempt to be helpful and encourage openness of decision-making. I have listened carefully to what the noble and learned Lord has said, and at this stage I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 173E not moved.]
Clause 32 agreed to.
Clause 33 [Provision of conveyancing services by authorised practitioners]:
Lord Evans of Claughton Lord Evans of Claughton moved Amendment No. 173C:
Page 27, line 2, at end insert ("provided that in the cases of paragraphs (b) and (c) above any act done in connection with the provision of conveyancing services shall be done by persons with such qualifications and under such supervision as shall be prescribed by the regulations referred to in section 37 of this Act.").
The noble Lord said: The White Paper made clear the Government's intention that conveyancing work should be undertaken by properly qualified and supervised persons. A principle of this importance should appear in the Bill and should not be left to subordinate legislation to be made under Clause 37.
Section 22 of the Solicitors Act already prohibits unqualified persons from doing certain conveyancing acts. Clause 33(1) provides that Section 22 shall not apply to conveyancing acts done by the staff of an authorised practitioner. The amendment would provide that such unqualified staff were exempt from the Section 22 offence only if they were properly supervised as prescribed by regulations made under Clause 37.
I do not think that there is any need for me once again to rehearse the points I made earlier regarding how important the transaction of buying or selling a house can be in the life of the average man and woman or, indeed, in a more general way how important are conveyancing transactions of a commercial and more general kind. Therefore, this sort of limitation on those who can undertake conveyancing unsupervised should be in the interests of what the Government want in the legislation and also in accordance with the spirit of the Bill as debated in this Committee so far. I beg to move.
Lord Mishcon: I wonder whether it would again be economical as regards time if I were to speak now to Amendment No. 173D, although I shall obviously not move it at this stage. I wish to do so because it has exactly the same object as the amendment moved by the noble Lord, Lord Evans, except that it provides that this supervision necessity for unqualified staff should be in primary legislation as it is in regard to solicitors and licensed conveyancers.
With the leave of the Committee I should like to quote Section 22 of the Solicitors Act 1974 to which the noble Lord, Lord Evans, referred. It is a short section but it is quite clear and it is contained in primary legislation. Subsection (2A) provides that the unqualified staff of a solicitor may only do acts protected by Section 22 if the act is done,
"at the direction and under the supervision of another person and,

(a) that other person was at the time his employer, a partner of his employer or a fellow employee; and

(b) the act could have been done by that other person for or in expectation of any fee, gain or reward without committing an offence under this section."

Again the noble Lord, Lord Evans, quite rightly quoted from the White Paper. However, paragraph 3.7 of the Green Paper Conveyancing by Authorised Practitioners states that authorised practitioners would be required to employ,
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"a sufficient number of solicitors or licensed conveyancers … to provide or supervise the provision of the conveyancing services".
The Green Paper had such a provision in mind. It is a statutory obligation on solicitors and licensed conveyancers and it should therefore be in primary legislation so as to cover this situation.
The Lord Chancellor: Perhaps I may deal with these two amendments at the same time. My intention is that the regulations should deal with this matter by specifying the nature of the supervision that should be required. I believe that that is the wisest course to take in this situation. The Green Paper referred to this provision and the White Paper developed it in quite considerable detail. I believe that the White Paper proposal is an effective method of securing supervision by a properly qualified person.
I can well understand that the situation is one of importance and therefore I have provided that these regulations —that is, those proposed under Clause 37 —should be supervised under Clause 32(2)(b). However, I can see that if by chance there was a failure to comply with these there may well be a problem. Therefore, I shall consider further the proposal put forward by the noble Lord, Lord Evans of Claughton. That may be the best way forward as it would have the effect of ensuring that the authorised practitioner who disobeyed or neglected these two branches—namely, paragraphs (b) and (c) —would expose himself to the criminal sanctions under Section 22 of the Solicitors Act 1974.
If the noble Lords, Lord Evans and Lord Mishcon, are prepared to leave the matter with me, I am prepared to consider further whether an added incentive, as it were, to the authorised practitioners to ensure that they obey the regulations with regard to supervision would be appropriate.
I believe that the regulation-making system is the better one to ensure the standard of supervision. Supervision is, as we know, something that can vary in standard. It is important to be able to specify the standard to some extent. As I said, I developed that proposal between the Green Papers and the White Paper. It may be possible to develop it still further. It is an important matter and it would be wise to have power to specify it closely. I shall consider adding the sanction suggested in the amendment.
11.30 p.m
Lord Evans of Claughton: In the light of what the noble and learned Lord has said, it gives me considerable pleasure to withdraw the amendment to enable him to reconsider the matter. It shows that it is worth staying up late occasionally. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Mishcon Lord Mishcon had given notice of his intention to move Amendment No. 173D:
Page 27, line 2, at end insert —
("( ) Subsection (I) shall only apply

(a) in the case of an act done by an officer or employee of a body corporate, where the act was done at the direction and under the supervision of another person who was at the time an officer or employee of that body; or

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(b) in the case of an act done by a member or employee of an unincorporated association, where the act was done at the direction and under the supervision of another person who was at the time his partner, his employer, a partner or his employer or a fellow employee; and

(c) apart from this section, the act could have been done by the other person for or in expectation of fee, gain or reward without committing an offence under the said section 22.").

The noble Lord said: I have already sopoken to the amendment and I shall not inflict a further speech on the Committee. I hope that the noble and learned Lord can consider whether, as the primary legislation deals with the two other branches involved with conveyancing, it would be consistent to deal with this matter by primary legislation. He said that he will consider the whole question, and in the light of the speeches made I am prepared to leave it at that and I shall not move the amendment.
[Amendment No. 173 not moved.]
The Deputy Chairman of Committees: If Amendment No. 173E is agreed to I cannot call Amendments Nos. 173F to 174 inclusive.
Lord Mishcon Lord Mishcon moved Amendment No. 173E:
Page 27, line 3, leave out subsections (2) and (3).
The noble Lord said: I wonder whether the Committee is prepared to smile at this time of night. I can only remind the Committee of what happened in court one day when, after a long submission by one counsel, the learned judge turned to the other counsel and said. "Now, what do you think of Mr. Brown's submission?"; to which the reply was, "I thought it was dreadful"; and the counsel sat down. In the same way, I wish to be brief and say that subsections (2) and (3), which I ask to be deleted as a result of the amendment, are in the view of the Law Society and the practitioners dreadful, which is why we want to omit them.
Having used those strong words, I should explain why that is so. The amendment would allow the professions to continue to regulate their members' employment by conveyancing institutions and would allow professional rules to govern those who act as their agents. Unless the amendment is made the professions will lose that right. The subsections strike at the ability of the Law Society, the Bar and the Council for Licensed Conveyancers to regulate the affairs of their members who are employed or retained by authorised practitioners. I feel that I need say no more at this stage and at this time of night to show how objectionable —if I may use that term —the Law Society and the practitioners (I imagine I speak for the Bar Council too) regard those subsections.
Lord Renton: I understood that we were going no further than this tonight. I should have thought that we had achieved a great deal today. I know that one or two of the debates have been unexpectedly long; but nevertheless we have covered a great deal of ground and dealt with many amendments. I should have thought that we would do much better to come back to this important matter fresher and at a more reasonable hour on some other day.
The Lord Chancellor: I am not sure whether there is some misunderstanding about this amendment. I rely upon the standard of competence and conduct of the professions —that is to say, the solicitor branch, the barrister branch and the licensed conveyancer branch —to ensure proper standards in the performance of these conveyancing services. There is no intention whatsoever of depriving the Law Society, the Bar Council or the Society of Licensed Conveyancers of making rules about the standard of professional conduct. All that the provisions do that the amendment seeks to delete is to ensure that the scheme can operate, making use of solicitors, for example, either as employees or as agents of the building societies to provide the services.
I do not think that the provisions can reasonably be construed as having any other effect. I, with my advisers, will certainly look further to see whether that is so and whether we can make it clear that far from abolishing the right of the Law Society to make effective rules of conduct and competence, I wish to rely on them. I shall seek advice on whether there is any chance that what we have drafted unnecessarily damages that.
On the other hand, I wish it to be made clear that none of the professional bodies can make a rule which would prevent their members from giving these services to authorised practitioners. That is the very heart of the scheme. I do not believe that it would be right to allow the heart to be torn out of the scheme. However, it is right that the professional bodies should continue to regulate the standards of conduct. That is what I rely on. There may be some misunderstanding between us, but my intention is as I have said. I believe that the clause as drafted gives effect to that. If it does not, after taking advice I shall seek to improve it further.
Lord Templeman: While I accept all that my noble and learned friend the Lord Chancellor says, perhaps I may ask him to consider this point. As a result of the debate on the Green Paper, the noble and learned Lord the Lord Chancellor has introduced a number of safeguards. They will prevent the evil arising of an estate agent acting on behalf of vendor and purchaser and will prevent multidisciplinary partnerships being exploited so that building societies and insurance companies collect commission from all kinds of operations, to the detriment of the purchaser.
I ask the noble and learned Lord to consider, in the context of this subsection, the possibility of a cosy arrangement between an estate agent and a building society or insurance company. In a fairly large town they might employ just one firm of solicitors as agents. They will obey the law but not until it is passed. All the building societies and insurance companies will go on with all the practices which we attack so strongly in the Green Paper and which the noble and learned Lord the Lord Chancellor announced his intention of curbing. They will continue to do so until the law is passed restraining them.

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I have had to wait four days to make this speech, so perhaps I may implore the noble and learned Lord to ensure that in all the safeguards which he is introducing in the Bill, proper safeguards will prevent the kind of abuse to which reference was made on all sides of the House with regard to conveyancing in the debate on the Green Paper. Will the noble and learned Lord assume that people will do their best to get out of it? The cosy arrangement between any of these institutions and one firm of solicitors could destroy the whole element of competition. It would mean that the high street solicitor would not be able to compete in the locality because all the work would go to one firm of solicitors.
The Law Society should have power to say that it will not tolerate that practice, and that if it finds that happening it should be able to tell the firm of solicitors concerned that it must not act for a particular building society, insurance company or estate agent in a town unless they agree that their conveyancing work shall not be limited only to that firm of solicitors but shall be spread out. It may be difficult to ensure that that happens, but I wish to impress on the noble and learned Lord the Lord Chancellor, even at this late hour, that there may be some potential evil here. One does not wish to inhibit the Law Society from saying whether its own members are operating fairly between the rules.
Lord Donaldson of Lymington: Before the noble and learned Lord the Lord Chancellor replies to that point, I wish to refer to another issue as the noble and learned Lord may wish to reply to them together. I understood the noble and learned Lord to say that the purpose of subsection (2) was to make sure that no branch of the legal profession, or I suppose licensed conveyancers, made a rule preventing a barrister, for example, from acting as an employee of an authorised practitioner or acting on his behalf; in other words, facilitating the provision of conveyancing services by an authorised practitioner. I have just been having a word with the chairman of the Bar on this matter and I understand that what is troubling the Bar is something quite different. The Bar wishes to be maintained as a referral profession; that is a profession which does not accept instructions other than through another professional, whereas it would appear that subsection (2)(a) as drafted would prevent it prohibiting a member of the Bar, perhaps in private practice, from carrying out conveyancing direct for members of the public with all kinds of complications in relation to the insurance cover provided by the Bar and in relation to accounts. Perhaps I only speak for myself but I believe most members of the Bar are quite incapable of keeping accounts which would satisfy the client account rules of the Law Society. Indeed it would be necessary to have client accounts and other horrors with which the Bar is wholly unfamiliar.
Lord Renton: The noble and learned Lord the Master of the Rolls referred to a point which arises in my Amendment No. 173F. It might save time if I were to refer to that now. I shall do so very briefly,
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as I always do. I have never spoken for longer than two minutes on any amendment to this Bill. If the Chief Whip has his watch he can time me now. The point is that, as the noble and learned Lord has said, unless we have Amendment No. 173F, or something to like effect, it will mean that members of the Bar who carry out conveyancing —among my friends in Lincoln's Inn there are quite a number —could be approached direct by members of the public instead of in accordance with the practice which has always prevailed; namely, being approached by a solicitor. I hope that my noble and learned friend the Lord Chancellor will agree that this matter should be put right. The best way of putting it right is by accepting Amendment No. 173F.
Lord Mishcon: I wish to give some examples of how misleading this subsection is at the moment. It speaks clearly about there being no ability of the Law Society or the Bar Council to prevent their members from being employed by authorised conveyancers. With that object the Law Society and, I am sure, the Bar Council, would have no quarrel, if it were clearly pointed out that this is the limit of what is desired. However, the language is not so clear.
I should like to draw to the attention of the noble and learned Lord that the Law Society, for example, needs to ensure that its members are subject to its general regulatory powers such as those which ensure that undertakings given by solicitors can be relied on absolutely. It also needs to be able to regulate the extent to which authorised practitioners can provide services through private practitioners. In particular, it needs to ensure that no confusion can arise between the wholly independent service now available from private practitioners and the more limited service to be provided by authorised practitioners.
I cite those two examples so that the noble and learned Lord, in his courtesy, can consider them as well as the other speeches that have been made regarding the amendment. As I understand it, the noble and learned Lord has as a specific object keeping the clause in clear language so that we may know exactly what it means.
11.45 p.m.
The Lord Chancellor: The intention of the clause is to make it possible for a solicitor in private practice to provide conveyancing services for the clients of a building society. That is the purpose of paragraph (c). Paragraph (b) makes it possible for a member of the Law Society, for example, to be an employee of an authorised practititioner. I believe that the two paragraphs are necessary if the scheme is to be fully effective.
I agree entirely that the Law Society, for example, should have power to control completely the way in which those services are given, in the sense of providing the proper standard of professional service under those arrangements. I should think that, for example, a solicitor in private practice who provided conveyancing services for the clients of a building society should be capable of explaining fully to the client at the personal interview which I have

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stipulated should be offered what services he was prepared to offer and the conditions under which those services were offered.
I entirely see the point that was made by my noble and learned friend Lord Templeman. That is one of the objectives of having the board seek to develop competition in the provision of conveyancing services. I believe that the board is the best body to have such responsibilities. Those responsibilities would operate on the building society in the example that my noble and learned friend quoted. The last thing I want to do is to limit or inhibit competition or to allow authorised practitioners to develop systems under which they would be able improperly to limit competition.
My noble and learned friend the Master of the Rolls also made a point which I should like further to consider. It is not clear to me what problem arises so far as concerns the Bar. I can see that there may be a difficulty in some circumstances if a practitioner gives services only on referral and is a member of the practising Bar in that sense. I can see no reason why a member of the Bar should not be employed by an authorised practititoner if he wants to take up such employment.
Lord Donaldson of Lymington: I explained that paragraph (a) was the problem.
The Lord Chancellor: I see that. That is an aspect of the matter which I would want to consider further but the regulations could cope with that. I do not believe that it is necessary to take paragraph (a) out, but I shall certainly look further at the matter. That also deals with the point made by my noble friend Lord Renton.
Lord Renton: The comments of my noble and learned friend the Lord Chancellor deal partly with that point, but if noble Lords look at the place at which I propose that the words,
"except the General Council of the Bar",
should be inserted, they will see that the proposal covers each of the three circumstances mentioned in subsection (2).
In view of what my noble and learned friend the Lord Chancellor said about wanting to consider the question of the employee of an authorised practitioner and in view of the possibility, which I must confess that I had not contemplated, that an independent barrister could give up being such and become an employee of an authorised practitioner who is not a barrister, perhaps I should take my amendment away and we should consider that proposal.
However, I should have to come back on Report and point out that in order to cover the circumstances of the independent practitioner some words must be inserted which would ensure that the present rules with regard to independent practitioners are not altered. There should not be direct access to the lay clerk. Barristers are neither trained nor organised to work directly with lay clerks, handling money, for example. They have always
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acted through solicitors and that should remain the position. I shall not move my amendment tonight, but I ask my noble and learned friend to consider the matter further. It must be dealt with somehow.
The Lord Chancellor: I intended to say that I would consider that point. I believe that it is capable of being dealt with.
Lord Mishcon: In the circumstances I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 173F to 174 not moved.]
Clause 33 agreed to.
Clause 34 [Authorisation of practitioners]:
[Amendment No. 174ZA not moved.]
Lord Evans of Claughton Lord Evans of Claughton moved Amendment No. 174A:
Page 27, line 29, after ("date") insert ("and be for such period").
The noble Lord said: This simple amendment seeks to concentrate the minds of practitioners since, as the Bill stands at present, authorisation would be indefinite. I seek to substitute a limited period. The amendment should be supported because, clearly, authorised practitioners, like other human beings, are likely to improve their services if they have to apply for a fresh authorisation periodically and are not allowed an indeterminate period without any interruption. I beg to move.
The Lord Chancellor: I find it difficult to accept the principle of the amendment. The board is to be given a full range of powers to deal with any authorised practitioner whose performance does not come up the mark. We are to discuss the powers that it would have to look at what practitioners have been up to. Against that background I see no reason why the board and practitioners should be put to inconvenience and expense where there is no reason to doubt their competence. Where there is, a power to impose conditions to my mind is a more direct and effective way of dealing with any problems.
I hope that the noble Lord will feel that this is a very effective system for making sure that if anything is wrong the authorised practitioner's standing can be immediately affected. But a periodical renewal, as it were, of his authority seems to be unnecessarily bureaucratic in effect. Such effect, I am sure, is one of the last things that the noble Lord would wish to introduce into the system.
Lord Evans of Claughton: I am very willing to accept the advice so robustly put to me by the noble and learned Lord. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 175 not moved.]
The Earl of Lytton The Earl of Lytton moved Amendment No. 175A:
Page 27, line 37, leave out ("may") and insert ("shall")
The noble Earl said: In moving this amendment I should also like to speak to Amendments Nos. 178A

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and 178B. I shall explain the position very quickly. Under subsection (6) of Clause 34 there is the indication that the Authorised Conveyancing Practitioners Board may make, but does not have to make, rules prescribing the form in which applications from those wishing to become authorised practitioners may be made. In my view that is too permissive a power. My amendment seeks to make it mandatory.
I believe that there is a public interest point here which demands that the rules be very clearly set out and that the board receive all the information that it needs to judge whether an applicant is a fit person for authorisation purposes. That is the purpose behind Amendment No. 175A.
I turn briefly to Amendments Nos. 178A and 178B which concern a related principle. Clause 37 deals with the regulations that will be required to regulate the competence and conduct of practitioners. I believe that a strong regulatory framework is required, particularly in view of the expanded categories of people who will be involved.
I am sure that the noble and learned Lord will give me a very plausible explanation. But as a layman, treading I suspect on rather thin legal ice, it seems to me that the word "may" is not strong enough. I declare such interest as I have as a chartered surveyor and therefore someone who to some extent is involved, at any rate by professional label, with the conveyancing process, although I myself do not become directly involved with it. I beg to move.
The Lord Chancellor: This amendment seeks to amend subsection (6) of Clause 34, which provides that the board, when making rules in respect of an application for authorisation under subsection (4), may in particular make provision as to the form in which any application must be made and for the furnishing by applicants of information required by the board in connection with their application. The amendment makes it mandatory rather than discretionary for the board to make such particular rules.
The aim of the subsection is to give guidance as to the matters which the board should consider when making rules. The form of the application and required supporting information are inevitably matters that the board will wish to consider; but given the possible variation in the classes of applicant, it is not appropriate for the board to be under a duty to make rules covering specific items.
Apart from anything else, an obligation which states "shall" instead of "may" would not be complete without some time limit. I believe that the noble Lord should have in mind that the board will require to have the concurrence of the Lord Chancellor to the rules that it would make.
I believe that if one were to make some part of the obligation mandatory, it would be right to do so for the whole lot. If one does so, the whole arrangement is inflexible and unwise. I believe that the board might wish to make new rules from time to time in the light of practice as matters develop. A mandatory system does not properly take account of that. The idea of "may" is to give the board power
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and one expects the board to use these powers in the furtherance of the duties placed upon it in the opening words of Clause 32 which we looked at.
I hope in the light of that explanation the noble Earl may feel as a layman that I have given not just a plausible explanation but one that satisfies him.
The Earl of Lytton: I should like to thank the noble and learned Lord for that explanation and apologise for the incompleteness of the amendments that I have moved. My power of parliamentary drafting is not as good as perhaps it should be. However, I should like to consider the explanation that the noble and learned Lord has given. It seems entirely plausible and proper. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
12 midnight
Lord Mishcon Lord Mishcon moved Amendment No. 175ZA:
Page 28, line 4, after ("arising") insert ("and in particular complies with any indemnity rules made under section (Rules concerning indemnity), so far as applicable.")
The noble Lord said: My only consolation in moving this important amendment at this hour would be to hear the noble and learned Lord say either that he accepts the amendment, or that he accepts the spirit of it, or that he will favourably consider it.
With the leave of the Committee I speak also to Amendments Nos. 175ZB and 180D.
As noble Lords will see, this is the important amendment dealing with rules concerning indemnity which the lord Chancellor should make in respect of civil liability incurred by authorised practitioners in the course of their providing conveyancing services. It is therefore a very necessary protection for the public.
I have referred to the Green Paper. In paragraph 3.10 it was stated that an authorised practitioner will be required to have adequate professional indemnity insurance or other appropriate arrangements to meet claims arising out of conveyancing services. But Clause 34(7)(b) does not refer to insurance. It simply requires an applicant to ensure that,
"satisfactory arrangements are at all times in force for covering adequately the risk of any claim made against the applicant in connection with the provision of conveyancing services provided by the applicant, however arising".
One has only to look at the indemnity requirements contained in other statutes to see that that is very wibbly-wobbly. Section 21 of the Administration of Justice Act 1985 had detailed provisions in regard to licensed conveyancers and requiring them to be insured. Section 53 of the Financial Services Act 1986 has similar insurance requirements in respect of persons authorised to carry out investment business. As everyone knows, Section 37 of the Solicitors Act 1974 is specific in containing insurance requirements in respect of solicitors.
This amendment is based very much on all those provisions. The proposed amendment enables the Lord Chancellor to exempt certain authorised practitioners from the indemnity rules. It may very well be that the Lord Chancellor will take the view

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that very big banks, building societies and insurance companies have such large financial resources from which to meet claims for liability that it would not be necessary or appropriate for him to require them to be insured. The Lord Chancellor can take that matter into account when making his rules. However, there will be many other authorised practitioners who will be individuals, partnerships or smaller companies. In those cases members of the public must be properly protected by rules requiring authorised practitioners to be insured. I beg to move.
The Lord Chancellor: As I have already said, I fully support the idea that by one means or another clients must be protected. That, I believe, is achieved in two ways. First, under Clause 34(7)(b), to which the noble Lord, Lord Mishcon, has referred, it is a prerequisite for authorisation that an authorised practitioner must have satisfactory arrangements in force for covering adequately the risk of any claim. The board shall authorise a person to provide those services if it is of the opinion that the applicant will comply with the requirements mentioned in subsection (7). In other words, it must see that satisfactory arrangements are in place for a particular practitioner to be authorised. That means that, generally speaking, the practitioner must be insured.
For those acts that cannot properly be covered by insurance —namely, dishonesty —the Government have tabled amendments enabling the board to establish a compensation fund. It is unnecessary and over-regulatory to require it to set up an indemnity fund in addition. The noble Lord recognised that there may be exceptions to what he has in mind. It is right that what is to be insured is set out together with the manner in which it is secured, provided that sufficient powers exist to enable that properly to be done in all cases and that that is the best way forward. Therefore, I believe that our suggestions deal effectively with the problem raised by the noble Lord and with the minimum of unnecessary detail.
Lord Mishcon: I have heard what the noble and learned Lord said, as have other Members of the Committee. He has recognised the fact that it is an important matter. I believe that in protecting the public it will be of great help to him if the matter is made clear in the primary legislation. That was the reason for my detailed amendment containing the clause which I proposed should be inserted if it was agreed.
In view of the importance of the matter, I am sure that the noble and learned Lord will consider it most carefully. Upon that understanding, which I believe I have, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 175ZB not moved.]
Lord Evans of Claughton Lord Evans of Claughton moved Amendment No. 175ZC:
Page 28, line 12, at end insert—
("(f) submits reports at regular intervals from an independent accountant in a form to be prescribed by the Board that the accounts of the authorised practitioner are being kept in a proper manner and in accordance with the regulations laid down under subsection (1)(f) of section 37.").
The noble Lord said: The purpose of the amendment is to provide protection for the consumer similar to that which already exists for solicitors and licensed conveyancers. It would require authorised practitioners to submit a regular accountant's form certifying that the practitioner's accounts are being properly kept.
Rather cruelly, the Law Society has said that it prefers Amendment No. 180E tabled by the noble Lords, Lord Mishcon and Lord Prys-Davies. However, undaunted by my professional body's preference, I put forward my amendment on the grounds that we shall deal with it this evening and God knows when we shall reach Amendment No. 180E.
The principle enunciated is plain: that the consumer deserves at least equal protection to that which he now receives in relation to his transactions with solicitors and licensed conveyancers and that accountant's certificates must be produced at regular intervals. I beg to move.
The Lord Chancellor: I understand the aim of the noble Lord. The amendment, if accepted, would compel continuing financial surveillance by the board of authorised practitioner accounts and the handling of their clients' money in a way similar to that in which the Law Society requires annual certificates from auditors that solicitors have complied with its clients' accounts rules. To the extent that this kind of surveillance is needed, the existing powers already set out in the Bill are adequate to allow regulations to impose the necessary requirements.
In general, however, the board will receive information from the conveyancing ombudsman and may also obtain it in certain circumstances from other regulatory bodies (for example, the Building Societies Commission or the Office of Fair Trading) which will enable them to fulfil their regulatory role. I believe that this will provide adequate protection for the client while not imposing an unnecessary burden on authorised practitioners. Requiring authorised practitioners to produce their accounts in such a way as to enable financial monitoring by the board could entail expenditure of considerable time and expense which would have to be passed on to the client. It should not therefore be imposed unless it can be fully justified.
I believe that the general regulations to which I have referred are sufficient to ensure what is required without imposing unnecessary burdens. I hope that the noble Lord will feel that that is the best way to meet his very understandable concern.
Lord Evans of Claughton: I am not completely happy with the assurance given to me by the noble and learned Lord. However, I should obviously like time to consider this matter between now and the later stages of the Bill. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Earl of Lytton The Earl of Lytton moved Amendment No. 175B:
Page 28, line 18, leave out ("or").
The noble Earl said: In speaking to this amendment I also speak to Amendment No. 175C which relates to this. This is a probing amendment to seek an assurance regarding the categories of persons who may be considered appropriate for authorisation by the board.
In this instance, reference is made at subsection (8) to a bank, a building society and an insurance company in particular. It seems to me that there are other professions which could also be considered appropriate and which perhaps should stand to be judged for their appropriateness in exactly the same way as those named groups of bodies by virtue of the fact that they are professional bodies.
I believe that my professional body, the Royal Institution of Chartered Surveyors, might be among those which should be considered appropriate, although I would not in any way wish to prejudge the matter. I do not believe that the institution has expressed a particular preference one way or the other. Therefore, it may well be that the noble and learned Lord will advise that this matter is already dealt with and that it is subservient to the general principles outlined in the Bill. The purpose behind the amendment is to seek clarification as to those which are likely to be considered appropriate for the provision of conveyancing services.
I believe that that very much follows on the principles enunciated in the White Paper and in particular the concept of recognising professional bodies and other organisations for that purpose. I beg to move.
The Lord Chancellor: I take also Amendment No. 175C to which the noble Earl has spoken. I regret that I cannot accept these amendments. If one looks at Clause 34 one sees that the board is to consider whether the applicant's business is being, and is likely to continue to be, carried on by fit and proper persons, or, in the case of an individual, whether he is a fit and proper person. The board can therefore recognise people who are fit and proper persons without any further ado.
On the other hand, we have directed attention to the fact that some possible applicants are already subject to prudential regulations under other statutory provisions. Where that situation applies, in paragraphs (a), (b) and (c), the board can have regard to the fact that it is so authorised in determining whether the board is satisfied, as mentioned in subsection 1(a). It is not bound by that. In other words, if one finds a bank authorised by the Bank of England to operate deposit-taking business, it may be safe to conclude that those involved are fit and proper persons to provide conveyancing, subject to the other safeguards. To add the words,
"a member of a professional body recognised for this purpose by the Secretary of State"
would be to introduce unnecessarily another Minister into the arrangement. We try to leave this to the board. The board would make up its own mind whether the particular business was carried on by fit and proper persons. If they were members of a recognised professional body, that would be a
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factor to be taken into account by the board in considering their application. Accordingly, I do not believe that this amendment would advance matters beyond the limits provided for in the clause.
I hope that the noble Earl finds that response satisfactory.
12.15 a.m.
The Earl of Lytton: I fully appreciate what the noble and learned Lord has said. His knowledge of the matter is incomparably greater than mine in regard to the correct way in which these things should be dealt with. He answered my question in the sense that he accepts that a member of a professional body will not necessarily be excluded from being considered a fit and proper person. That was the point behind the amendment. I thank the noble and learned Lord for his reply and beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 175C to 176A not moved.]
Lord Prys-Davies Lord Prys-Davies moved Amendment No. 176ZA:
Page 28, line 26, at end insert—
("(10) The Board shall establish and maintain a register of authorised practitioners, which shall be available for inspection by any person without charge.
(11) The Board shall enter the name of any person authorised to provide conveyancing services and any conditions to which his authorisation is subject in the register of authorised practitioners.
(12) Where the Board suspends or revokes a person's authorisation it shall amend the register accordingly.")
The noble Lord said: This amendment would require the conveyancing board to keep a register of authorised practitioners which could be inspected by members of the public free of charge. There is no duty under the Bill for the board to establish such a register. We believe, and the Law Society believes, that this omission should be put right. It is important that members of the public should be able to check whether or not a particular person or body is an authorised practitioner and whether the authorisation is subject to any conditions.
There are similar provisions concerning a register being available for inspection by the public in the Solicitors Act 1974 in relation to solicitors and in the Administration of Justice Act 1985 in relation to licensed conveyancers. The noble and learned Lord will know that there are similar provisions in regard to conveyancing practitioners in Scotland in the Law Reform (Miscellaneous Provisions) (Scotland) Bill. I trust that the amendment will be acceptable to the Government. I beg to move.
The Lord Chancellor: Schedule 2, paragraph 5, gives the board the general power to regulate its own arrangements. It will be open to the board to establish such a register. It may well consider that in order to function effectively it will need to establish a register of those bodies or individuals that it has authorised. However, the noble Lord has drawn my attention to a number of similar situations in which a statutory duty is imposed to keep such a register. I am therefore happy to consider favourably I believe in this case this particular amendment.
Lord Prys-Davies: I am very grateful for that response. I therefore beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 34 agreed to.
Clause 35 agreed to.
Clause 36 [Revocation and suspension of authorisation]:
[Amendment No. 177 not moved.]
Lord Mishcon Lord Mishcon moved Amendment No. 177A:
Page 29, line 37, at end insert—
("(5) The powers conferred by Part II of Schedule (Intervention in Authorised Practitioner's Practice) below shall be exercisable by the Board in the circumstances specified in Part I of that Schedule, whether or not the Board has suspended or revoked the practitioner's authorisation.").
The noble Lord said: The attitude of the noble and learned Lord has encouraged me with hope as regards this amendment. It is part of a series of amendments which are there to protect the public. Therefore, I know that that will have the very ardent consideration of the noble and learned Lord if there be merit in the amendment. I shall also speak to Amendment No. 184A.
The purpose of the amendments is to enable the board to intervene in an authorised practitioner's practice where that intervention is necessary in order to safeguard a client's money or interests. At the moment the only provision that comes anywhere near that is Clause 34(7)(d), which provides that an applicant must have,
"in force satisfactory arrangements to protect the applicant's clients in the event of the applicant ceasing to provide conveyancing services".
The matter is left there.
That is not what the Green Paper said. At paragraph 3.14 the Green Paper states:
"An authorised practitioner may cease, or go out of business for any number of reasons including death, illness, disciplinary action or bankruptcy. In the case of solicitors and licensed conveyancers who cease practice, there are statutory provisions whereby clients' money is protected, and professional colleagues"—
I underline those words —
"may intervene in the practice in order to return papers to the clients. Very often the intervening colleague is willing to take over the file of any client prepared to instruct him. Similar arrangements will be required in the case of authorised practitioners so that clients are properly protected".
Exactly as the Green Paper states, as regards solicitors there is the provision in Section 35 of and Schedule 1 to the Solicitors Act 1974 where the Law Society is specifically given powers to intervene in a solicitor's practice in certain cricumstances where client's money and affairs have to be safeguarded.
The Council for Licensed Conveyancers is covered by Section 31 of and Schedule 5 to the Administration of Justice Act 1985 which gives similar powers to the Council for Licensed Conveyancers. My noble friend quoted the Financial Services Act 1986. The noble and learned Lord said that he had noted that there were similar statutory provisions. He said that it may be a good idea to
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look at them and give favourable consideration to including a similar statutory provision.
Even in the Financial Services Act 1986, Sections 64 to 71 give powers by way of detailed provisions concerning powers of intervention. This is a necessary safeguard for the public and I trust that the noble and learned Lord will feel able to accept this amendment. I beg to move.
The Lord Chancellor: The powers the Bill confers on the board are aimed to enable it to perform its duties of authorising and supervising practitioners in a way that is light and flexible as well as effective. Under Clause 32(1)(b) the board has a general duty to supervise the activities of authorised practitioners, and by Clause 32(2) the board will make arrangements designed to enable it to ascertain whether authorised practitioners are complying with the regulations which the Lord Chancellor will make if Parliament so decides. Further, under Clause 36(3)(d) the board may make rules concerning transitional arrangements for dealing with any work in hand should an authorised practitioner's authorisation be revoked or suspended. Those would vary according to the circumstances.
I consider these clauses and the other relevant clauses in the Bill give sufficient control to the board without attempting to give it the full panoply of intervention powers of a professional body, a role that is unnecessary and unsuitable for this body. I remind the Committee that the board will be regulating a wide range of practitioners, from large financial institutions to small firms. We must design its duties and its powers to reflect that and the fact that it will be supervising only one, and perhaps a comparatively small, aspect of many practitioners' businesses. Those are likely to be subject to detailed regulation in those other areas. We must provide adequate safeguards and avoid overlapping and conflicting sets of rules or regulatory overkill that will deter the large business and overburden the small one.
I have certainly heard it said, whether correctly or not, that some aspects of the Financial Services Act may sometimes do something of that kind. I cannot comment on that but I have heard it said. We must be careful to achieve the correct safeguard without unnecessary overburden. I hope the noble Lord may feel that that is a reasonable position for me to take in relation to the point on which his amendments focus.
Lord Mishcon: I must confess to be unhappy with the noble and learned Lord's reply, but obviously at this hour of the night it would be foolish to continue the debate. In the circumstances, I ask leave to withdraw the amendment, reserving the right to return to it at a later stage.
Amendment, by leave, withdrawn.
Clause 36 agreed to.
Lord Mishcon Lord Mishcon moved Amendment No. 177B:
After Clause 36, insert the following new clause:
("Authorised Conveyancing Practitioners Board to be able to require provision of redress in respect of inadequate professional services.
—(1) Where the Board are satisfied that the services provided by an authorised practitioner were in any respect not of the quality that could reasonably have been expected of it or him the Board may, if it thinks fit, do one or more of the following things, namely,—

(a) determine that the costs to which the authorised practitioner shall be entitled in respect of those services shall be limited to such amount as may be specified in their determination and direct the authorised practitioner to comply or secure compliance, with such of the requirements set out in subsection (2) below as appear to it to be necessary to give effect to its determination;

(b) direct the authorised practitioner to secure the rectification, at the expense of the practitioner of any such error, omission or other deficiency arising in connection with the services as the Board may specify;

(c) direct the authorised practitioner to take, at the expense of the practitioner, such other action in the interests of the client as the Board may specify;

(d) direct the authorised practitioner to pay compensation of up to £1,000.

(2) The requirements referred to in subsection (1)(a) are —

(a) to refund, whether in whole or to any specified extent, any amount already paid by or on behalf of the client in respect of the costs of the authorised practitioner in connection with the services; and

(b) to waive, whether wholly or to any specified extent, the right to recover those costs.")

The noble Lord said: I hope to be more fortunate with this amendment, which again seeks to protect the public. Its effect would be to enable the board to require an authorised practitioner to provide redress to a client in respect of inadequate professional services. I shall, if I may, cite what happens elsewhere. All other legislation affecting providers of conveyancing services enables the appropriate regulatory body to deal with complaints of inadequate professional services, to which we have referred in past debates as shoddy work.
In each case the regulatory body may, where it is satisfied that the conveyancing practitioner has provided inadequate professional services, direct the practitioner to reduce his bill, even to nothing, or to take rectifying action. Such powers are given to the Law Society by the Solicitors Act 1974 and to the Council for Licensed Conveyancers by Section 26 of the Administration of Justice Act 1985. And even in the noble and learned Lord's native Scotland, the Law Reform (Miscellaneous Provisions) (Scotland) Bill, which is being considered by the House at the moment, gives similar powers to the Scottish Conveyancing and Confirmation Practitioners Board. It would be a little odd if a client could secure redress for shoddy work if he had instructed a solicitor or licensed conveyancer but could not do so if he had instructed an authorised practitioner. I beg to move.
The Lord Chancellor: It is appropriate in this arrangement for the ombudsman to have the kind of powers that are here in question. We have endeavoured to provide in the new Schedule 6A an amendment to deal with this matter. My Amendment No. 186YA provides the opening to it. There is then a schedule of detailed powers for the ombudsman.
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I believe that this is the proper way of dealing with the matter in this case. I know that the noble Lord may not have had much opportunity as yet to consider my amendment as it has not been moved, but I believe that what is proposed there is appropriate and will deal with the same point he raised.
Lord Mishcon: I cannot help thinking that the ombudsman could in fact deal with all manner of complaints, including those against solicitors and licensed conveyancers. However, it is deemed necessary to have a statutory provision specially providing for such a situation. If I may say so with the greatest respect, I am somewhat surprised that the noble and learned Lord has not sought to introduce this clear power for the board which would have precisely the same effect and ensure an analogous and tidy situation.
However, the noble and learned Lord has given his reply and I must therefore consider it. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Prys-Davies Lord Prys-Davies moved Amendment No. 177C:
After Clause 36, insert the following new clause:
("Authorised Conveyancing Practitioners Board to be able to call for practitioners' files to aid investigation
. —(1) Where the Board are satisfied that it is necessary to do so for the purpose of investigating:

(a) any allegation that an authorised practitioner has failed to comply with any condition to which his authorisation was subject; or

(b) has failed to comply with any rules or regulations made under this Part; or

(c) any complaint made to the Board about an authorised practitioner; or

(d) any allegation that an authorised practitioner has provided inadequate professional services, the Board may give notice to the authorised practitioner to whom the allegation or complaint relates, or to his firm, requiring the production or delivery to any person appointed by the Board, at a time and place to be fixed by the board, of all documents in the possession of the authorised practitioner or his firm in connection with the matters to which the allegation or complaint relates (whether or not they relate also to other matters).

(2) Sub-paragraphs (2) and (12) of paragraph 9 of Schedule (Intervention in authorised practitioner's practice), together with paragraphs 11 and 12 of that Schedule, shall apply in relation to the powers conferred on the Board by subsection (1) as they apply in relation to the powers conferred on the Board by sub-paragraph (1) of paragraph 9, and accordingly in those provisions —

(a) any reference to a person appointed, or to a requirement, under that sub-paragraph shall be construed as including a reference to a person appointed, or to a requirement, under subsection (1); and

(b) any reference to any such documents as are mentioned in that sub-paragraph shall be construed as including a reference to any such documents as are mentioned in subsection (1)").

The noble Lord said: The purpose of this amendment is to give the conveyancing board the power to call for an authorised practitioner's files for the purpose of investigating allegations or complaints in respect of that authorised practitioner. The powers are similar to those given to the Law Society by Section 44B of the Solicitors Act 1974 and to the Council for Licensed Conveyancers by

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Section 31(2) of the Administration of Justice Act 1985. It seems to me that the conveyancing board should not be denied that power especially in the circumstances—namely, those mentioned in paragraphs (a), (b), (c) and (d) —referred to in the amendment. I trust, therefore, that the noble and learned Lord can see his way clear to accept the amendment. I beg to move.
The Lord Chancellor: This board is not intended to be a mirror of the Law Society with its detailed powers; it is under a statutory duty to make rules providing for the circumstances in which it may suspend or revoke authorisation. It may well be —and, this is a point of the amendment which I should like to consider further—that the board should have specific statutory powers to call for an authorised practitioner's documents in order properly to carry out its supervisory and disciplinary functions. With the noble Lord's agreement, I intend to look into the matter and return to it at a later stage.
However, I should point out that because of the particular circumstances with which we are dealing I am really aiming at something a good deal less than the full panoply of powers which, for example, the Law Society has. I hope in the light of that explanation, and upon the understanding that I shall look further at the question of specific powers to call for an authorised practitioner's documents, that the noble Lord will feel able to withdraw his amendment.
I also hope that the noble Lord will feel that it was well worth waiting until this time of night to hear that response. I think that we are nearing the end of today's proceedings.
Lord Prys-Davies: My patience has indeed been rewarded. I am especially grateful for the noble and learned Lord's response. Accordingly, I beg leave to withdraw the amendment.
Viscount Ullswater: I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.
House adjourned at twenty-five minutes before one o'clock.