§ 4.24 p.m.
§ House again in Committee on Clause 24.
§ 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, 32 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 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
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".
§ 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 38 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 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 40 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 41 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 42 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 43 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.
44 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 45 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.
46 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 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 47 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 48 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.
49 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.
50 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 51 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 52 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 53 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 54 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 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.
56 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
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 57 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.
58 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, 59 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 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 61 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 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
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 63 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: 64A 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 65 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.
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 moved Amendment No. 141A:
§ 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 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.)68
§ 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.