Lords Sitting of 1 March 1990

Preamble
The House met at three of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Leicester.
Earl Temple of Stowe Earl Temple of Stowe—Sat first in Parliament after the death of his kinsman.

Post Office: Sunday Collections
Lord Boyd-Carpenter Lord Boyd-Carpenter asked Her Majesty's Government:
In what districts the Post Office has now introduced Sunday collections.
The Parliamentary Under-Secretary of State, Department of Employment (Lord Strathclyde): My Lords, I understand that Sunday collections have now been introduced in Edinburgh, Newcastle, Darlington, Cardiff, Belfast, Gloucester, Perth, Glasgow, Inverness, Aberdeen, Carlisle, Bolton and Nottingham postal districts.
Lord Boyd-Carpenter: My Lords, I thank my noble friend for that somewhat miscellaneous reply. Will he tell the House when it is anticipated that that service will cover the whole country?
Lord Strathclyde: My Lords, the Post Office now expects Sunday collections to be available nation-wide by the autumn.
Lord Williams of Elvel: My Lords, will the noble Lord give the House an assurance that the bringing into force of Sunday collections throughout the country will not affect the service from Monday to Saturday? Is he aware of the suspicion that Sunday collections will simply reduce the resources available for proper deliveries on Monday to Saturday? The Union of Communication Workers is worried about the matter. We look forward to an assurance from the Minister.
Lord Strathclyde: My Lords, the noble Lord is a great doubter of the Post Office's ability to provide a good service. I have no doubt that he is aware that the Post Office is committed to an average 3 per cent. peformance improvement this year. That includes Sundays and of course Mondays to Saturdays.
Lord Kinnaird: My Lords, is the Minister aware that I received a letter yesterday morning—
Noble Lords: Hear, hear!
Lord Kinnaird:—which was posted on 12th December 1989?
Lord Strathclyde: My Lords, we all have stories to tell of how bad the Post Office's service sometimes is, but generally speaking it is a good service and is continually improving.
Lord Mellish: My Lords, to put the point on the record, is the Minister aware that some of us dread the idea of letters being put through our letterbox on Sundays?
Lord Strathclyde: My Lords, I am afraid that the noble Lord has missed the point. We are talking about Sunday collections, not Sunday deliveries.

Electricity Generating Capacity: Nuclear Power
3.10 p.m.
Viscount Hanworth Viscount Hanworth asked Her Majesty's Government:
Whether having cancelled the proposed second nuclear reactor they are satisfied that under the delayed privatisation of the generating industry sufficient stations can be built in time to prevent blackouts.
Viscount Ullswater: My Lords, Her Majesty's Government do not order power stations. They have, therefore, not cancelled any order for the proposed Hinkley Point C station to which I believe the noble Viscount refers. The CEGB's proposals for that station were the subject of a public inquiry, the report of which is expected in the next few months. The Government have, however, made it clear that the non-fossil fuel obligation will be set at a level which can be satisfied without the need for new nuclear stations beyond Sizewell B. The Government intend to review the prospects for nuclear power in 1994. In the meantime, there is ample time for new generating capacity to be built to meet the expected increase in demand foreseen for the latter part of this decade.
Viscount Hanworth: My Lords, I thank the noble Viscount for that reply. However, has he seen the recent report of the CEGB which estimated that by the year 2010 our generating capacity would be reduced to half simply taking into account the expected life of our power stations? I am concerned—this is the point on which I seek assurance—that we should do something now. Will the Minister address himself to that point?
Viscount Ullswater: My Lords, obviously, if no further capacity is built, there is a rundown of existing stations. That is to be expected. The noble Viscount will understand that the next nuclear power station will be commissioned sometime during the earlier part of the next decade and that the number and type of new power stations will now be determined in the market-place by a variety of factors including projections for the future electricity supply-demand balance made by both generators and public suppliers.
Lord Jenkins of Putney: My Lords, in view of the Gardner Report, would it not be undesirable to proceed with any further nuclear power stations, given that the risks to personnel operating the stations and to those living in the surrounding area appear

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to have been seriously underestimated? In those circumstances, would not the Government be well advised to concentrate on and to reactivate their research into wind and wave power rather than to resign themselves to the inevitability of nuclear power, which seems to hold out greater risks than they have hitherto believed?
Viscount Ullswater: My Lords, I think that the completion of the first PWR reactor is important. It also keeps our nuclear option open. No doubt the noble Lord will be pleased to know that the department has received no less than 300 applications for consideration for renewable source supply. These have meant that the department requires another two months before setting the tranche of that non-fossil fuel obligation at a level which can be undertaken by some of those projections.
Lord Ezra: My Lords, does the noble Viscount agree that the time would now be opportune to put more emphasis on forms of energy which are environmentally satisfactory—for example, combined heat and power, a barrage scheme and other possible projects? It seems that these are still moving forward fairly slowly. In the circumstances does he agree that they should be stimulated?
Viscount Ullswater: My Lords, I understand that at the moment some 2 gigawatts of energy are already being produced by combined heat and power plants. There is an interest in a number of others. I have details of some which are now just up and running. The Department of Energy is keen to see renewable energy taking its place among all the other sources.
Lord Williams of Elvel: My Lords, will the noble Viscount take this opportunity of clarifying government policy on the PWRs? Is he aware that we had a Statement from the noble Lord the Leader of the House saying in effect that the Government were to continue with Sizewell B and not continue with Hinkley Point C, Wylfa B and Sizewell C? That was the Statement as we understood it. Yet is he not aware that the Hinkley Point inquiry into Hinkley Point C is still continuing at great expenditure of public money? Do, or do not, the Government intend to continue with Hinkley Point C?
Viscount Ullswater: My Lords, Nuclear Electric will not build any new stations before 1994 when the review of nuclear energy will be undertaken. Its immediate priority is to run its existing stations safely and efficiently and to complete Sizewell B. To turn to the other part of the noble Lord's question, my right honourable friend is awaiting the inspector's report on Hinkley Point C. In view of his quasi-judicial position, I cannot comment on the application.
Lord Williams of Elvel: My Lords, if Nuclear Electric is not to build any more PWRs, why does it persist in making an application under the terms of the public inquiry on Hinkley Point C?
Viscount Ullswater: My Lords, I believe I have already answered that question. My right honourable friend is awaiting the inspector's report on Hinkley Point C.
Lord Hatch of Lusby: My Lords, referring to the CEGB report to which the noble Viscount also referred, when he says that Sizewell B will be proceeded with, is he aware that the report shows that the estimated costs of decommissioning were doubled before the PWRs and nuclear energy were taken out of privatisation? Has he any idea now what the cost of completing Sizewell B will be and what will be the future costs of decommissioning Sizewell B and other nuclear stations?
Viscount Ullswater: No, my Lords. As I explained to the noble Lord on a previous occasion, a review of the costs of Sizewell B is being undertaken and is not yet complete. I gave him on a previous occasion the figure of £1·87 billion.
Viscount Hanworth: My Lords, would the noble Viscount confirm that there is now nobody who is legally responsible for ensuring that we obtain an adequate replacement for power stations of any sort?
Viscount Ullswater: My Lords, the licence conditions on all suppliers will enshrine the current standards of security. They will also ensure that suppliers provide sufficient information to the Director General of Electricity Supply to enable him to take a view on the levels of security provided. If he believes that levels of security must be increased, he can seek modifications to the licence conditions.

Housing: Mortgage Arrears and Repossessions
3.17 p.m.
Lord Dean of Beswick Lord Dean of Beswick asked Her Majesty's Government:
What are the latest available figures for mortgage arrears and repossessions in the owner-occupied housing sector.
The Parliamentary Under-Secretary of State, Department of the Environment (Lord Hesketh): My Lords, the building societies and the Abbey National had 70,480 mortgages more than six months in arrears at the end of 1989. The same lenders took 13,780 properties into possession in 1989.
Lord Dean of Beswick: My Lords, I am grateful for that reply. However, is the Minister aware that although the first half of last year probably produced the best figure since 1984, the second half showed a very serious deterioration as the increased payments started to bite? We are now at the point where repossessions in the last six months of last year increased by 17 per cent. Does he agree that there is at present a very serious situation which is deteriorating even faster?
Lord Hesketh: My Lords, it is important to remember that in the past 10 years there has been an increase in home ownership of some 3·5 million. To use the noble Lord's benchmark figure from 1984, in that year the percentage for recoveries of properties on which mortgages had not been paid was 0·171. In the six-month period to which he has just referred as being of a precipitous nature, it was 0·093.
The Earl of Selkirk: My Lords, does my noble friend agree that that factor shows how important and essential good, independent legal and financial advice is in any of these agreements?
Lord Hesketh: My Lords, I fully agree with my noble friend. I can assure him that as at 1st February on certain financial documents clear instructions are spelt out warning of the risks of home ownership.
Lord Molloy: My Lords, will the noble Lord say what percentage of the figures that he gave to the House relate to former council tenants who are trying to buy their houses and are unable now to do so?
Lord Hesketh: My Lords, the figures are collected on the basis of total home ownership and not on the breakdown for which the noble Lord has asked.
Lord Dean of Beswick: My Lords, in his reply to me the Minister seemed to draw some laughs from the noble Lords behind him. Does he consider that the other figures that are being produced by the Council of Mortgage Lenders show that 58,000 households are more than six months in arrears? That is an increase of 28 per cent. Does he consider it laughable that 12,000 home buyers are now a year or more behind with their mortgages? That is an increase of 31 per cent. Does he also think it is laughable that repossessions show an increase of 17 per cent.? When one takes into account that for those same people water and electricity payments will increase by a minimum of 13 per cent. and the poll tax is 33 per cent. higher than the Government predicted, what messages of comfort has he for them? Some of them are now going into home ownership bankruptcy. Do they just have to bite the bullet and get on with the business even if it means that to get out of debt they have to move from their houses in order for the building society to put the house back on the market?
Lord Hesketh: My Lords, it is certainly not a laughing matter. I think that certain noble Lords were surprised at the comparison in the figures when I produced them. It is a fact that those who suffer most from inflation in our society are the weak and the poor. We are determined to break inflation, and to do that we are having high interest rates.
Lord Molloy: My Lords, what is the point of spreading misery? These people are weak and poor. Why create more misery by having increases in mortgage rates, with all the worries that that is bringing to ordinary people? All the Government seem to be concentrating on is making everybody weak, poor and upset.
Lord Hesketh: My Lords, that is clearly not the case.

Social Fund: High Court Judgment
Lord Stallard Lord Stallard asked Her Majesty's Government:
What changes are proposed in the operation of the Social Fund following the High Court judgment of 21st February 1990.
The Parliamentary Under-Secretary of State, Department of Social Security (Lord Henley): My Lords, a letter was sent to all DSS offices on the day of the judgment advising Social Fund officers that the local office budget and the level of priority that might usually be met are only factors to be taken into account in reaching a decision and that the state of the local office budget is not the overriding factor. My right honourable friend the Secretary of State intends to issue revised guidance shortly which will take into account the court's decision.
Lord Stallard: My Lords, I thank the noble Lord for that constructive reply. Does he accept that it does not go anywhere near enough to solve some of the problems? He has not helped and will not be helping the 45,000 claimants whose applications were refused last December and for these desperate people the Social Fund is a last resort. Unless he can say that the Government are introducing some element of retrospection in their directives to the local fund officers, those people will not be helped. Would it not be more honest at this stage to lift the cash limit altogether and to change the directives so that they state that future applications are dealt with on the basis of needs and circumstances, not just on the discretion of a local fund officer?
Lord Henley: My Lords, the noble Lord asked about retrospection. We are seeking legal advice on this point and my right honourable friend the Secretary of State will issue guidance to Social Fund officers shortly.
Lord Carter: My Lords, is the Minister aware that essential needs payments, which were running at £400 million a year in 1987, were cut under the Social Fund to only £140 million last year? In that respect it is hard to see how the Social Fund officers were supposed to exercise the flexibility and discretion that the Government required when the total budget for essential needs had been cut by 65 per cent. and the guidance from the department was illegal. Will the Minister inform Social Fund officers that they cannot now withhold payments for essential needs on the grounds that their budget is exhausted or is likely to be exhausted? Will he also confirm that the Government are prepared to pay the compensation to all those who were wrongfully denied help as a result of the illegal guidance from the department?
Lord Henley: My Lords, I have already answered the noble Lord's second point in my second answer to the noble Lord, Lord Stallard. I said that we are seeking legal advice on the question of retrospection.

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On the first point, I refer back to my original answer. The local office budget is not the overriding factor; it is nevertheless a factor that a Social Fund officer must take into account.
Lord Mishcon: My Lords, will the noble Lord make clear to the House what he meant by "seeking legal guidance" on the retrospective action that the Minister is to take or not to take following the High Court judgment? Is the legal advice being sought on the basis of how the Minister can make it retrospective because he wants to or is it being taken on whether he has to?
Lord Henley: My Lords, my right honourable friend the Secretary of State is seeking legal advice on the question of whether there is a retrospective element. I cannot go further than that. The noble Lord might care to glance through the judgment of Lord Justice Woolf, which is some 50 pages long. He will understand that my right honourable friend cannot immediately come to his own judgment on it without taking legal advice.
Lord Mishcon: My Lords, I am afraid that the noble Lord has possibly misunderstood my question. It has nothing to do with the 50-page judgment, which was very clear in what it said. Is he saying that the Minister is seeking a legal opinion because he wants to make it retrospective in sheer justice or is he seeking the legal opinion on the basis of whether he has to?
Lord Henley: My Lords, perhaps I may make myself perfectly clear. My right honourable friend is seeking legal advice on what the judgment will mean with regard to the question of retrospection.
Lord Stallard: My Lords, perhaps I may ask the Minister a simple question. What will be the position of those people to whom payments have been refused?
Lord Henley: My Lords, I have already answered that question. It is a question of retrospection. My right honourable friend is seeking legal advice on that.

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

London Docklands Development Corporation (Vesting of Land) (London Borough of Southwark) Order 1989
The Chairman of Committees (Lord Aberdare): My Lords, I beg to move the Motion standing in my name on the Order Paper.
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Perhaps I should say a few words of explanation. The order referred to in the Motion vests in the London Docklands Development Corporation certain land currently vested in the London Borough of Southwark. The order is hybrid and a petition against it from the London Borough of Southwark was accordingly considered by the Hybrid Instruments Committee last July. The role of this committee is to report to the House whether or not there ought to be an inquiry by a Select Committee into the matters complained of in any petition.
Southwark's petition was based on the fact that it had itself applied for planning permission to develop a part of this land. Its application had been refused by the development corporation, which is the local planning authority for the area, and Southwark had appealed to the Secretary of State. The vesting order made by the Secretary of State would have pre-empted the public inquiry arising from this appeal.
That seemed to the Hybrid Instruments Committee to be a justifiable grievance. Accordingly it recommended that it should be considered by a Select Committee. The House agreed to that in November last year.
Since then, however, the public inquiry has been held and Southwark's appeal was dismissed. It would seem desirable therefore that the Hybrid Instruments Committee should now reconsider its recommendation in the light of the changed circumstances. If the House agrees to the Motion today, the parties will be invited to submit fresh representations to the committee if they so wish, and the committee will in due course make a further report to the House. I commend the Motion to the House.
Moved, That the orders of 9th and 15th November last be discharged and that the London Docklands Development Corporation (Vesting of Land) (London Borough of Southwark) Order 1989 be referred again to the Hybrid Instruments Committee.—(The Chairman of Committees.)
On Question, Motion agreed to.

Courts and Legal Services Bill [H.L.]
3.30 p.m.
The Lord Chancellor (Lord Mackay of Clashfern): My Lords, I beg to move that the Bill be now further considered on Report.
Moved, That the Bill be further considered on Report.—(The Lord Chancellor.)
On Question, Motion agreed to.
Clause 48 [Right of barrister to enter into contract for the provision of his services]:
Debate resumed on Amendment No. 181:
Page 38, line 3, leave out ("with his client").
Lord Renton: My Lords, when the Report stage of the Bill was adjourned last week we were discussing Amendment No. 181 moved by my noble and learned friend the Lord Chancellor. The amendment

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is important and it is linked with the next amendment tabled in my name which is mutually exclusive. As a result of a kind suggestion made by my noble friend the Leader of the House it was decided that further consideration of the amendment should be adjourned. I had already spoken briefly to the amendment and in the particular and unusual circumstances I seek the leave of the House to speak briefly again.
The amendment would mean that a barrister would be entitled to enter into a contract for the provision of his or her services not only with a professional or lay client but with anyone. If that means that he automatically ceases to be an independent practising barrister and becomes an employed barrister, no problem would arise. It would merely reflect the present position in which barristers sometimes give up practice and enter into contracts of employment. They cease to be independent barristers.
However, if the amendment means that a barrister who contracts with anyone can remain in practice and continue to provide a legal service, the person with whom he contracts appears to become a client, whether professional or lay. I should be grateful if my noble and learned friend could say whether that would be the effect of his amendment. If so, I suggest that it would be better to keep the word "client" in the Bill.
We must then consider whether an independent barrister should enter into any kind of contract for his services. I realise that my comments appear to relate more to a discussion on clause stand part but they are relevant to my noble and learned friend's amendment. Under the present rules of conduct and the long-standing practice of the Bar a barrister in independent practice cannot enter into any kind of contract for his services. The nearest we ever came to that was in accepting retainer fees. They were abolished some years ago because they were considered to be a restrictive practice. If we are to revert to a similar situation we should be entering into restrictive practices. One of the purposes of the Bill is to abolish any kind of restrictive practice and therefore we must not introduce a new type.
It may be better to get rid of Clause 24 even at this late stage. I do not believe that the clause was discussed in Committee owing to the lateness of the hour. However, if the clause remains I suggest that it should be limited to contracts between barristers and professional clients. That would be the result of my Amendment No. 182. As was said by my noble and learned friend the Lord Chancellor when we discussed the matter briefly last week, the two amendments are mutually exclusive.
I invite my noble and learned friend to enlighten the House and perhaps other noble Lords may wish us to consider the matter further.
Lord Hutchinson of Lullington: My Lords, the amendment worries me a great deal. Perhaps I may correct the noble Lord, Lord Renton, and point out that the matter was discussed to some extent in Committee. I asked the noble and learned Lord
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exactly what the provision meant. First, does it mean lay and professional client or only professional client? That matter has been resolved because in his amendment the noble and learned Lord makes clear that it means both.
Leaving out subsection (2), that appears to mean that in criminal courts future advocates can enter into a contract with their lay client in relation to the provision of their services in a criminal trial, no doubt providing for a 50 per cent. uplift for an acquittal, and so on. If I am wrong I am sure that the noble and learned Lord will say so.
The second question that I raised in Committee was: does it mean that the purpose of the clause is to make it easier for laymen in the criminal courts, among others, to approach advocates directly? In Committee the noble and learned Lord said:
"This clause is in no way intended to deal with the Bar's rule restricting direct access by lay people".—[Official Report, 5/2/90; col. 568.]
He went on to say that it makes it possible for barristers to sue for their fees. I understand the second part.
I looked at the Notes on Clauses, which contradict what the noble and learned Lord said. Under "Policy Objectives" the notes state:
"The aim of this clause is, subject to regulation by the profession, to facilitate direct access to barristers by persons other than solicitors and to ensure the law does not unnecessarily restrict the ways in which barristers may offer their services".
According to the notes, and as I have always suspected, the aim of the clause is to achieve exactly that. The wording makes that clear.
In those circumstances the clause makes it possible hereafter for laymen to approach any advocate direct. But in subsection (2) the Bar alone is permitted to restrict its members from doing so. I ask the noble and learned Lord: why only the Bar? That appears to create hereafter a totally unacceptable bumpy playing field.
The pressures on advocates in the Crown Courts are wholly different from those in the magistrates' courts or inferior courts. They are also totally different from those in any other professions. For example, some defendants have serious previous convictions; barristers have close contacts with the police; informers give evidence; bogus defences are put forward; tainted witnesses are produced; and excessive and dubious awards are offered to advocates. Attempts are often made to corrupt the police, witnesses and, as your Lordships know, even jurymen.
At present, advocates in the Crown Courts are largely insulated against those pressures and temptations by rules which some people call restrictive practices. Those have evolved over the years. For example, an advocate is not allowed to be directly approached by anybody but is only allowed to have communications through a third party; he cannot meet witnesses he is going to call; he cannot prepare a case and also be the advocate in it; he cannot handle cash and cannot fix his own fees. All that is not, as the noble Lord, Lord Boyd-Carpenter, said at an earlier stage of this Bill, a matter of self-righteousness on the part of advocates. It is not

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that advocates consider themselves to be of higher moral standing than anybody else. However, it is made much easier for them to maintain standards of integrity because they are insulated against those temptations and against direct contact with the persons who offer them.
As your Lordships will know, other pressures like peer pressure in chambers, Inns of Court, circuits and a judiciary which has personal knowledge and experience of a very small profession have resulted in supplying a very honest judiciary. I want to ask the noble and learned Lord whether, after this Bill becomes an Act, it will be possible—and I only say possible—for advocates to be approached directly in high street offices, seeing witnesses, preparing defences, being paid direct with friendly relations with the local police and members of the local CPS. Does he look upon that scenario with approval? That is a very familiar scenario in the United States of America and, of course, is a perfectly clear counterpart to the idea of the district attorney which was a proposition we tried to prevent earlier in this Bill but which was given every welcome from the Woolsack. Is that a possible scenario under this Bill? Is it one of which the Government approve?
If the House wishes to maintain the integrity of this new flood of advocates, why have a clause which facilitates direct access and so destroy the very delicate insulation which has so far preserved a very high degree of integrity? The protection of the clients' interests, of which we hear so much in this Bill, is exactly opposed, as has been repeatedly pointed out by the noble and learned Lord, Lord Hailsham, to the interests of justice. I hope that the noble and learned Lord will not put forward—I say this with the greatest respect—his usual alibi when matters of principle are raised by saying, "Oh well, that is all a matter for the mechanism or the committee". Is the aim here to facilitate direct access? Does he approve of that during the criminal process? Why is it only the Bar which is being restrained from such access? In general, I support the amendment of the noble Lord, Lord Renton.
Lord Renton: My Lords, before the noble Lord sits down, perhaps I may thank him for correcting me. We discussed this matter on clause stand part in Committee but the point which arises on these two amendments was not then discussed.
3.45 p.m.
Lord Mishcon: My Lords, perhaps I may cast another light on this amendment of the noble and learned Lord and indeed, by anticipation, the amendment to be moved by the noble Lord, Lord Renton.
It may well be said by the noble and learned Lord the Lord Chancellor, as was anticipated by the remarks of the noble Lord, Lord Hutchinson, that it is for the Bar Council in its wisdom to decide whether or not to take advantage of this new opportunity; namely, the direct contractual relationship between a member of the Bar and a member of the public.
That sounds as though a liberty has been permitted which did not previously exist and that is the end of
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the matter. If the Bar Council, the noble Lord, Lord Renton, the noble and learned Lord, Lord Hailsham, and the noble Lord, Lord Hutchinson, feel that there is no danger, then there surely is no danger. I have pointed this out before and I shall do so again in relation to later amendments as regards multidisciplinary practices.
However, it is not just a question of the Bar Council or the Council of the Law Society deciding in its wisdom what it may or may not do. Once you put a clause like this into an Act of Parliament the danger is that there is a gentleman—it may be a lady in the future—who heads the Office of Fair Trading. What I am scared of as regards what we are doing in this Bill by allowing this so-called liberty for the disciplinary bodies or the governing bodies of the Bar and of the solicitors' profession is that one day there will be a knock on the door of the Council of the Law Society and the Bar Council. It will be the Office of Fair Trading saying, "We think that it would be very much more competitive and in fact it may very well reduce costs if there was direct contact between barrister and member of the public. Therefore, Bar Council, I call upon you to do what an Act of Parliament clearly permitted you to do. Parliament would not have put that in if it did not believe that that was perfectly civilised. In the name of competition and fair competition I call upon you to do what you have been statutorily empowered to do by a specific provision in an Act of Parliament considered by the Lords and Commons and blessed by the noble and learned Lord the Lord Chancellor". That is what scares me about this provision and similar provisions. I know what the noble and learned Lord, with absolute honesty of purpose, is trying to do. He has a Bill dealing with the legal profession and he feels that he should give liberty in the future to do things which have been constrained in the past.
I believe that the noble and learned Lord may have forgotten about the Office of Fair Trading. If he has not forgotten, he ought to bear in mind—I say this most deferentially—what an Office of Fair Trading can do to the learned and honoured professions which have traditions which far transcend the mere bounds of competition.
Lord Simon of Glaisdale: My Lords, once again your Lordships have heard a most powerful and informative speech from the noble Lord, Lord Hutchinson, and, after that, from the noble Lord, Lord Mishcon. I have only one question to ask on this amendment. In fact, I asked it last week but it was not answered since the debate was becoming very ragged and was rightly adjourned, particularly as it was very late at night.
The debate was becoming very ragged for a number of reasons, one of which was that owing to the extreme lateness of the hour my noble and learned friend Lord Ackner quite rightly did not move what was the most important amendment on the Marshalled List; namely, that which dealt with the uplift in contingency fees which in the eyes of many of us strikes a note of clear injustice at the very heart of this Bill.

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Before I ask my question, I desire to say just this. Only three days were allowed for the Report stage of this Bill, although we had six extremely full Committe days, only one ending before 10.30 at night, two going beyond midnight and the last until nearly 3 o'clock in the morning. It was clear from the outset that three days would be inadequate for a proper discussion of this Bill on Report at any reasonable hour. Notwithstanding that, after the three days had been allotted, and after we were informed by the Whips that on the first two days the House would be expected to sit late, which means after 10.30, or very late, which means after midnight, the Government put down 120 amendments to be considered at Report stage. That was over half the number put down on the Order Paper. Some were drafting amendments, and others were the implementation of matters that the noble and learned Lord the Lord Chancellor undertook to consider at Committee stage. But there were also three new clauses and a new schedule. That is a substantial Bill in itself, certainly compared to the Education (Student Loans) Bill.
The matter has gone even further. Yesterday the Government put down a further list of 31 amendments, including four new clauses and two substantial paragraphs in a schedule. I only desire at this stage to say that it is quite unrealistic to expect your Lordships to conclude the Report stage today, particularly as it has to be concluded at an hour at which debate can reasonably be conducted.
Having said that, the question I asked last week which I desire to ask again concerns barristers being given the right to enter into contracts with clients. Is it open to them to disclaim in the contract all immunity for negligence or breach of contract? At the moment the law itself gives immunity to any advocate because an advocate owes a duty to the court which supervenes on his duty to his client. He is given no further immunity, for example in the preparation of the case or in giving a legal opinion, but would it not be open now, under this provision, for any counsel to stipulate that he shall not be liable at all in negligence or for breach of contract? If so, it seems to me to be a major inroad once again against the interests of the client, which was the point emphasised by the noble Lord, Lord Hutchinson, and no doubt would offend greatly my noble friend Lord Allen of Abbeydale who tried to abolish the immunity rule altogether.
That is my question. I am glad that the noble Lord the Leader of the House is present. He has been assiduous in attending our debate. I hope he realises that we cannot possibly, with decency, conclude consideration of this Bill on Report today.
The Lord Privy Seal (Lord Belstead): My Lords, just in case the noble and learned Lord should take silence to mean concurrence, perhaps I should say to your Lordships that we should follow what is our usual practice, which is to see how we go and endeavour to finish the business today.
The Lord Chancellor: My Lords, the purpose of this clause is to deal with the question of whether
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barristers should have a legal right to enter into a contract, which other people can do. It does not deal with advocates generally; it is restricted to barristers. I am sure I do not need to tell your Lordhips that there are cases which at least suggest, and I think go further, that it is extremely doubtful whether a barrister is in a position to contract with a client in any circumstances whatsoever.
Among other things, the Bar has recently enlarged the class of those from whom they can take instructions. That immediately raises the question of whether they can have a relationship with the persons from whom they take instructions which is binding in law. The purpose of this clause is to deal with that legal question while at the same time reserving to the General Council of the Bar (because they are the body with responsibility in respect of barristers and that is why it is restricted to them) the power to make,
"rules (howsoever described) restricting a barrister's right to enter into contracts".
Perhaps I may take Lord Mishcon's phrases and apply them to that. If the Director General of Fair Trading by any chance comes along to visit the Bar Council, the Bar Council is able to reply in words—I am sure not as elegant as the words the noble Lord used—that Parliament, the House of Lords and the House of Commons (the noble Lord was kind enough to add "with the blessing of the Lord Chancellor" as if that was a separate matter) has conferred on the General Council of the Bar the right to make rules, however described, restricting a barrister's right to enter into contracts.
In so far as the situation described by the noble Lord, Lord Hutchinson of Lullington, is thought to be undesirable (I agree with a great deal of what he said about that) the proper way to deal with that is to make rules. Of course, the Bar has rules at the moment, but rules must regulate in a much more detailed way than the general law of the land does with regard to what barristers can do. A great deal of what he indicated is not laid down by the general law, but arises from the rules of the Bar laid down in the interests of justice.
I do not require to refer to the mechanism because we are dealing with rules made by the General Council of the Bar to deal with the point at issue. With regard to what the Bar's rules should be in relation to rights of advocacy in the Crown Court, then the approval of the designated judges and the Lord Chancellor, as well as the General Council of the Bar, come into play.
In my submission, the right course for your Lordships is to give to the General Council of the Bar the right to make the rules and to leave the general law; that in so far as the General Council of the Bar does not restrict the right of a barrister to enter into contracts then that is the correct way forward. There are many developing areas into which barristers wish to enter into contracts; the overseas practice rules provide a good example of that and the extension of the right of direct access is another.
Amendment No. 181 is put forward precisely in response to the point raised on Committee in

841
discussion about whether the word "client" was restricted to the professional client or included the lay client. I felt it right to resolve that and the simplest way is to take out the phrase. That is the basis on which this amendment is put forward to deal with the matter raised in Committee. I commend the amendment to your Lordships.
4 p.m.
Lord Mishcon: My Lords, before the noble and learned Lord sits down perhaps he will be kind enough to give the House some guidance. Is he saying that because subsection (2) of this clause empowers the Bar Council to restrict the power given in subsection (1), the Office of Fair Trading will never have any right to overrule the Bar Council's decision so to restrict? If he is not saying that, my original point still stands.
The Lord Chancellor: My Lords, I do not think that I can ever say what will happen in the future. The noble Lord is asking me too great a question. I cannot forecast the future.
I believe I am still replying to the debate and if not I should be asking for leave to speak again. The theory is that having been asked this question before I sat down I am still on my feet. On that assumption, my reply is that I have applied the noble Lord's words to subsection (2) just as he sought to apply them to subsection (1). If they are applicable to subsection (1) they are at least equally applicable to subsection (2).
What I explained previously, of course, is that in so far as these rules relate to rights of audience and rights to conduct litigation—in this case it is rights of audience—and are approved, then, on the basis of the policy set out in the White Paper (of course, it is only policy set out in the White Paper) there is no question of the rules being capable of being overturned by the competition authorities.
However, the important point about the Bill is that this clause makes it the responsibility of the General Council of the Bar to make the appropriate rules. Of course, any legislation that may come in the future will have to be looked at to ascertain on what basis, if any, it would allow interference with such rules. I believe that a rule which is justified on the basis indicated by the noble Lord, Lord Hutchinson, would be appropriate to survive any proper scrutiny.
Lord Simon of Glaisdale: My Lords, I intervene as my noble and learned friend is still speaking. I am sorry to prevent him from settling down but perhaps he will be good enough to answer the question I tried to put to him; namely, whether it would be open, under the new contract that can be made between barrister and client, to absolve the barrister from any liability at all for negligence or breach of contract.
The Lord Chancellor: My Lords, I am sorry, I should have answered that question more expressly. I intended to cover it by saying that precisely what the contract might contain is a matter which would be within the scope of the rules laid down by the
842
General Council of the Bar. Of course, there is also the general law in the Unfair Contracts Terms Act to be considered.
The relationship between Clause 48 and the immunity is, of course, dealt with in Clause 49(3) which reads:
"No act or omission on the part of any person in respect of which the immunity rule … applies shall give rise to an action for breach of any contract relating to the provision by that person of the legal services in question".
In other words, that immunity is applied to make clear that an action for breach of contract in respect of a matter covered by the immunity could not arise.
Lord Hutchinson of Lullington: My Lords, before the noble and learned Lord sits down perhaps I may also, with great respect, ask him to reply to my original question; namely, whether the purpose is, as the Notes on Clauses state, to facilitate direct access to barristers by members of the public.
The Lord Chancellor: My Lords, in formulating his question earlier the noble Lord dealt with the situation in regard to clients in the Crown Court. I have sought to answer that by saying that I verily expect the situation he dealt with to be covered by the rules laid down by the General Council of the Bar.
I thought I had expressed considerable sympathy with the point of view the noble Lord expressed about the necessity, in such circumstances, to ensure that rules are sufficient to assist in the protection of the integrity of the barrister. I also explained—I thought I had done so reasonably clearly—that Clause 48(1) would enable others than those who presently have that position to have direct access to clients, subject to the rules that might be made. That is entirely in accordance with the policy described in the Notes on Clauses as I understand them.
Perhaps I may make my answer just a little more detailed. First, I believe that a provision on the lines of Clause 48(1) is desirable to give the General Council of the Bar flexibility in deciding what sort of contracts a barrister might be allowed to enter into. General law at the moment appears fairly fixed. Secondly, in so far as the noble Lord, Lord Hutchinson, is dealing with matters of justice, particularly arising in respect of criminal proceedings in the Crown Court, I would expect the General Council of the Bar to continue to wish to make rules in that area which it would regard as effective. Of course, as I said earlier—the noble Lord must accept my apology for repeating it—that would be subject to consent by the designated judges and the Lord Chancellor within the framework of principle which the earlier clauses in the Bill lay down.
4.7 p.m.
On Question, Whether the said amendment (No. 181) shall be agreed to?
Their Lordships divided: Contents, 112; Not-Contents, 63.

DIVISION NO. 1

CONTENTS

Ackner, L.

Layton, L.

Aldington, L.

Lloyd of Hampstead, L.

Alexander of Tunis, E.

Long, V.

Alexander of Weedon, L.

Lothian, M.

Alport, L.

Lucas of Chilworth, L.

Ampthill, L.

Lyell, L.

Arran, E.

Lytton, E.

Aylestone, L.

Mackay of Clashfern, L.

Bathurst, E.

Margadale, L.

Belhaven and Stenton, L.

Marsh, L.

Beloff, L.

Merrivale, L.

Belstead, L.

Mersey, V.

Bessborough, E.

Milverton, L.

Birdwood, L.

Mottistone, L.

Blatch, B.

Mountevans, L.

Blyth, L.

Mowbray and Stourton, L.

Borthwick, L.

Munster, E.

Boyd-Carpenter, L.

Murton of Lindisfarne, L.

Brabazon of Tara, L.

Nelson, E.

Broadbridge, L.

Newall, L.

Brougham and Vaux, L.

Norrie, L.

Butterworth, L.

Nugent of Guildford, L.

Caithness, E.

Onslow, E.

Campbell of Croy, L.

Oppenheim-Barnes, B.

Carnegy of Lour, B.

Pender, L.

Carnock, L.

Plummer of St. Marylebone, L.

Clitheroe, L.

Cockfield, L.

Porritt, L.

Colwyn, L.

Quinton, L.

Cottesloe, L.

Rawlinson of Ewell, L.

Cox, B.

Reay, L.

Cullen of Ashbourne, L.

Renwick, L.

Davidson, V. [Teller.

Roskill, L.

Denham, L.[Teller.

Sainsbury, L.

Donaldson of Lymington, L.

St. Davids, V.

Downshire, M.

Saltoun of Abernethy, Ly.

Eden of Winton, L.

Sanderson of Bowden, L.

Elibank, L.

Selborne, E.

Ellenborough, L.

Selkirk, E.

Elles, B.

Shannon, E.

Fraser of Kilmorack, L.

Stedman, B.

Gainford, L.

Strange, B.

Havers, L.

Strathcarron, L.

Hayter, L.

Strathmore and Kinghorne, E.

Henderson of Brompton, L.

Henley, L.

Suffield, L.

Hesketh, L.

Swinton, E.

Hives, L.

Terrington, L.

Hooper, B.

Thorneycroft, L.

Hylton-Foster, B.

Trefgarne, L.

Ilchester, E.

Trumpington, B.

Joseph, L.

Ullswater, V.

Killearn, L.

Whitelaw, V.

Kimball, L.

Wilberforce, L.

Kinnaird, L.

Winterbottom, L.

Knollys, V.

Wise, L.

Knutsford, V.

Young, B.

NOT-CONTENTS

Addington, L.

Graham of Edmonton, L.

Airedale, L.

Grantchester, L.

Ardwick, L.

Grimond, L.

Benson, L.

Hacking, L.

Birk, B.

Hanworth, V.

Blease, L.

Harris of Greenwich, L.

Boston of Faversham, L.

Hatch of Lusby, L.

Bruce of Donington, L.

Hirshfield, L.

Carmichael of Kelvingrove, L.

Houghton of Sowerby, L.

Hunt, L.

Cledwyn of Penrhos, L.

Hutchinson of Lullington, L.

Coleraine, L.

Irvine of Lairg, L.

Dean of Beswick, L.

Jeger, B.

Donaldson of Kingsbridge, L.

Jenkins of Putney, L.

Ennals, L.

John-Mackie, L.

Ewart-Biggs, B.

Leatherland, L.

Fisher of Rednal, B.

Listowel, E.

Fitt, L.

Lloyd of Kilgerran, L.

Gallacher, L.

Longford, E.

844

McGregor of Durris, L.

Ritchie of Dundee, L.

Manchester, D.

Serota, B.

Mayhew, L.

Shackleton, L.

Mishcon, L.

Simon of Glaisdale, L.

Molloy, L.

Stallard, L.

Moyne, L.

Strabolgi, L.

Mulley, L.

Taylor of Blackburn, L.

Murray of Epping Forest, L.

Tordoff, L.

Northfield, L.

Underhill, L.

Phillips, B.

Wallace of Coslany, L.

Prys-Davies, L.

Wigoder, L.

Renton, L. [Teller.]

Williams of Elvel, L.

Rippon of Hexham, L. [Teller.]

Willis, L.

Resolved in the affirmative, and amendment agreed to accordingly.
4.16 p.m.
[Amendment No. 182 not moved.]
Clause 49 [Immunity of advocates from actions in negligence and for breach of contract]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 183:
Page 38, line 8, leave out from ("(1)") to end of line 20 and insert—("A person
(a) who is not a barrister; but
(b) who lawfully provides any legal services in relation to any proceedings,
shall have the same immunity from liability for negligence in respect of his acts or omissions as he would have if he were a barrister lawfully providing those services.
(2) No act or omission on the part of any barrister or other person which is accorded immunity from liability for negligence shall give rise to an action for breach of any contract relating to the provision by him of the legal services in question.").
The noble and learned Lord said: My Lords, the purpose of this amendment is to improve the clarity of the clause. The noble Lord, Lord Mishcon, and other noble Lords raised questions about the way the clause was previously drafted. In an attempt to make it better we have recast it. I took the doubts expressed to parliamentary counsel who has redrafted the clause to achieve the same policy we originally intended. I hope that the second effort commends itself to your Lordships more than the first. I appreciate the concerns that were expressed and the points that were raised. We have attempted to meet them. I beg to move.
Lord Hacking: My Lords, I was among those who spoke fairly late in the evening on this clause at Committee stage. I urged on the noble and learned Lord that though he may not have intended it, the drafting of the clause appeared to extend immunity concerning advocates appearing in court. It is therefore most heartening that the noble and learned Lord, who politely but totally and decisively demolised my arguments in his reply, has reflected on the matter and has now brought forward this amendment. Since I expect him during Report stage to totally demolish the arguments that I present, I live in some hope that all is not lost and that perhaps new ground will be reached at Third Reading.
Lord Mishcon: My Lords, I wish to express an unqualified note of gratitude to the noble and learned Lord.
On Question, amendment agreed to.
Clause 50 [Multi-disciplinary and multi-national practices]:
Lord Mishcon Lord Mishcon moved Amendment No. 184:
Page 38, line 41, at end insert ("and the Society shall not make rules permitting such association unless it is satisfied that—
(a) the protection for the public will be not less than that afforded to the clients of a solicitor's practice;
(b) the primacy of a solicitor's obligations to the court and to the interests of clients can be secured; and
(c) legal professional privilege will protect communications between clients and members of the firm".).
The noble Lord said: My Lords, I uttered those words of gratitude to the noble and learned Lord as regards the previous amendment in the hope that I might persuade him to agree to this amendment. Clause 50 deals with a very important provision which opens the gates, subject to the lock on those gates which the noble and learned Lord has mentioned, to the possibility of solicitors entering into partnership with persons who are not solicitors. That is commonly called multi-disciplinary practices.
I have nothing to say about multi-national practices where we join other lawyers in various parts of the world in ensuring that legal services of a comprehensive nature are provided, crossing frontiers in doing so and enabling people to get advice as to the laws of other countries with which we may be commercially engaged. I have nothing to say in that connection. But in protection of members of the public I ask the House to glance for a moment at the possibilities of a multi-disciplinary partnership with lawyers. That means lawyers bound, as they should be, by the strict rules of the Law Society, and members of the Bar bound equally, as they should be, by strict professional rules of ethics and etiquette in regard to their profession. We suddenly see that in partnership with them there could be, if it were permitted, surveyors, estate agents and other people carrying on a perfectly honourable business but in no way governed by the same strict professional disciplinary rules.
A member of the public may go to a firm of solicitors, as he thinks, on a conveyancing matter to find a surveyor there who is a partner in the firm offering to guide him. It would be very difficult for a member of the public to resist such an invitation without being rather offensive. There might also be an accountant who could look after the accountancy affairs, again not bound by the disciplinary rules of the Law Society, although if he happened to be a chartered accountant he would be bound by quite strict professional rules of conduct. In those circumstances the noble and learned Lord may say the same as he said on the previous amendment, that the Law Society and the Bar Council will issue their rules which will make it very easy for the strict disciplines to be applied to such a practice or that they may prevent it altogether.
One of the troubles with putting enabling powers into Acts of Parliament is that it amounts almost to an indication that these things are perfectly all right and that it is only a question possibly of putting
846
some boundaries to what is perfectly all right. But it is not all right for the public. I notice with great interest that the Confederation of British Industry expresses its qualms about this. I shall quote succinctly from the brief it has sent out:
"Industry, as the major users of legal services, is concerned that legal services of high quality with the necessary wide choice of business legal specialists remain available. Industry views with some reserve the introduction of multi-disciplinary firms as it is felt that these may lead to the formation of megafirms of accountants and solicitors as has happened with the merger of accounting firms, and that this may reduce choice and availability. There may frequently be occasions when a client company does not wish to instruct the same firm for both legal and accounting work but may feel that as both are available in one firm that firm should be instructed, and this in practice may act as a constraint on choice".
That is one aspect of the matter. The other aspect of the matter is that there should be and must be proper protection of the public and that the Office of Fair Trading should not be able to say to the Law Society or to the Bar Council that, as they have these enabling powers, they should be exercised in the name of fair competition for the benefit of the public, as the Office of Fair Trading thinks. In Committee I tried unsuccessfully to remove this provision from the Bill. I am now trying to make it perfectly clear how, if the Law Society or the Bar Council wishes to embark on making rules of this nature, they will be inhibited in protection of the public in making such rules. That will be an answer to the threat which I mentioned a moment ago.
In adding these words at line 41, I am saying not only that,
"Nothing in subsection (5) prevents the General Council of the Bar",
but also that,
"Nothing in subsection (2) prevents the Law Society".
I know that the noble and learned Lord will not hold that technical point against me but it should be mentioned for clarification. If the amendment were carried the clause would read as follows:
"Nothing in subsection (5) prevents the General Council of the Bar from making rules which prohibit barristers from entering into any such unincorporated association, or restrict the circumstances in which they may do so".
My amendment would add the words:
"and the Society shall not make rules permitting such association"—
the one mentioned in subsection (1) of Clause 50—"unless it is satisfied that—
(a) the protection for the public will be not less than that afforded to the clients of a solicitor's practice;
(b) the primacy of a solicitor's obligations to the court and to the interests of clients can be secured; and
(c) legal professional privilege will protect communications between clients and members of the firm".
I could give a detailed explanation of the reasons for each of those paragraphs but I believe that they will be obvious to the House. I am dealing with general protection of which these are important particulars.
It may be found that the amendment does not fit comfortably into the clause. But the purpose is absolutely clear and I trust that the noble and learned Lord will be able to accept it and put it in its proper place and proper form by Third Reading. I beg to move.
4.30 p.m.
Lord Donaldson of Lymington: My Lords, I support the amendment moved by the noble Lord, Lord Mishcon. However, while not wishing to be in the least bit critical, I should like to make a drafting point and perhaps go a little further as a matter of principle than he has. Clause 50 abrogates Section 39 of the Solicitors Act and that is necessary if solicitors are to be able to form multi-national partnerships with foreign lawyers. But once you have abolished Section 39 I venture to suggest that what is required is not that the Law Society shall make rules permitting multi-disciplinary partnerships, even subject to conditions. Once the section has been removed, the society would not need to make any rules because you could do so in any event; what matters is that the society shall make rules prohibiting multi-disciplinary partnerships, unless these particular conditions which are of vital importance are satisfied.
For my part, I think if I had applied my mind to the matter, as I should have done, I would have sought to amend subsection (2) to provide that,
"Nothing in subsection (I) shall prevent the Law Society making rules which prohibit solicitors from entering into any unincorporated association with persons who are not solicitors, or restrict the circumstances in which they may do so; and, further, the Society shall make such rules unless the conditions set out in (a), (b) and (c) below are satisfied".
Nevertheless, I support the principle of the amendment, and I hope that it is only the principle which will guide your Lordships in deciding what to do in the matter.
Lord Mishcon: My Lords, I am most grateful to the noble and learned Lord.
The Lord Chancellor: My Lords, the necessity for removing the general bar is accepted by those of your Lordships who have spoken. I think that the Law Society is of the view that it would be good to allow, under proper conditions which are still being worked out, multi-national partnerships. The amendment is directed in principle—and I am perfectly content to take it that the drafting may not be of the higher standard of which the noble Lord, Lord Mishcon, and his colleagues are capable—towards seeking to lay down conditions under which a prohibition would be required in respect of multi-disciplinary practices.
It is a question of considerable importance which has been discussed at the instance of more than one person over the past few years. I know that many different views are taken on the matter. I suggest to your Lordships that one of the reasons that the Law Society exists and has rule-making powers is that such rules will be made for the protection of the public and for the other matters affecting the integrity of the profession, some examples of which are dealt with in the amendment. Therefore, unless the noble Lord, Lord Mishcon, is saying that the Law Society in making prohibitions about the matter would ignore such factors, I do not see from the point of view of giving power to the Law Society what purpose the amendment serves.
848
The noble Lord referred to the Director General of Fair Trading as a kind of dangerous figure in the background. But I submit to your Lordships that the Law Society need not be afraid of the Director General of Fair Trading when it has such powerful backing as that of the Confederation of British Industry in so far as it founded its objections, or reservations, to multi-disciplinary practices on the grounds of multiplicity of choice and of freedom of competition. Surely the situation is that the Law Society can be trusted by your Lordships to make the necessary rules. We are making it absolutely plain that the society has absolute power to make these rules in the clause as drafted. Therefore, why your Lordships should put constraints on the way in which that power is operated is not immediately apparent to me. I suggest to your Lordships for consideration the fact that if you go into such detail, you may well be suggesting that it is possible to achieve the various objectives while still allowing various forms of practice. I am not certain that that would be entirely in accordance with the objective that the noble Lord, Lord Mishcon, has in mind.
I suggest that the Bill gives full free power to the Law Society in this respect. Subsection (2) reads,
"Nothing in subsection (I) prevents the Law Society making rules which prohibit"—
and that is the emphasis which my noble and learned friend the Master of the Rolls placed upon it—
"solicitors from entering into any such unincorporated association with persons who are not solicitors, or restrict the circumstances in which they may do so".
That gives the society full power to make any conditions it wishes, including prohibition of a particular type of partnership. I also suggest that to make the provision more detailed may well suggest that various types of unincorporated associations could properly function because those various matters could be effected. Although I understand the desire expressed by the noble Lord, Lord Mishcon, and by my noble and learned friend the Master of the Rolls, to ensure the freedom of the Law Society to make appropriate rules and prohibitions, I hope that your Lordships will feel that the clause as drafted achieves that aim effectively, and that what is proposed really does not add anything to the necessary powers of the Law Society.
Lord Mishcon: My Lords, I should like first to express my gratitude to the noble and learned Lord the Master of the Rolls for the soft, kind and gentle way in which he corrected the wording of the amendment. He did so most properly. As he said, and as I tried to say, it is the principle which we are really debating at this stage of the Bill's proceedings. The noble and learned Lord was also good enough to indicate that he was prepared to deal with the matter on principle.
I find myself in a difficult position in following the logic of the noble and learned Lord which is usually so clear. I thought at one time he was saying that if this was wholly undesirable, one would have expected that the power would be deliberately taken away in order to deal with multi-disciplinary practices, and that we ought so to enact if it was felt necessary. I tried to do just that in Committee and

849
I was stopped by the opposition which the noble and learned Lord then expressed to such a prohibition. In the circumstances, I find it difficult to do anything else but to return at a later stage with protective measures in order to see that rules are not made which do not deal with the situation which I have enumerated in the amendment.
The extraordinary situation is that the noble and learned Lord would have us think that he is giving something that the Law Society wants. I made it abundantly clear in Committee—and I had the authority of the society to say this—that it is a power which the Law Society does not want and that it would welcome a situation where there was no power to grant multi-disciplinary practices the right of law.
The noble and learned Lord talked about whether the Law Society can make such rules as it wishes. Of course it can. But what is Parliament doing? The Law Society exists for the protection of a very learned profession. However, I hope that it always has regard for the welfare of the public. It is Parliament which shows the correct balance and which sees to it that while professions are properly protected, so is the public. Is the noble and learned Lord really saying to Parliament, "Do not carry out your duties; those duties are carried out by the Law Society and the Bar. We do not have to worry Parliament; let them do what they want"?
I am asking Parliament to say that if there are to be multi-disciplinary practices there must be protective provisions to ensure that they are not permitted without the proposed safeguards. The noble and learned Lord told me that I have the protection of the Confederation of British Industry. I ask him for his protection and for Parliament's protection, much as I respect the Confederation of British Industry.
In those circumstances, unless the noble and learned Lord—who is capable of so much generosity—relents I must seek the opinion of the House.
The Lord Chancellor: My Lords, before the noble Lord sits down I should like to say that I am sorry if I have not made my position clear. I said that the Law Society wishes to permit multi-national practices and therefore the standing prohibition must be removed from the Act. That is achieved by this clause. That is all that I said about the Law Society.
I understand perfectly that, as presently advised, the Law Society is anxious to prohibit multidisciplinary practices. I do not believe that I said anything that suggested the contrary. If I did it was certainly not my intention. I then said that the Law Society has full power under the clause to prohibit multi-disciplinary practices altogether if it wishes and believes that to be the right thing to do.
I went on to say—I hope reasonably clearly—that to suggest that there were conditions which, if met, would enable multi-disciplinary practices to be approved might not serve the interests that the noble Lord wishes to serve.
I have put those points to the noble Lord before he sat down simply in response to his question since I seem to have left the matter unclear.
Lord Mishcon: My Lords, I am most grateful to the noble and learned Lord. However, that does not affect the position conerning the clear statement in Clause 50(1) that:
Section 39 of the Solicitors Act 1974 (which, in effect, prevents solicitors entering into partnership with persons who are not solicitors) shall cease to have effect".
That is absolutely right. Multi-national practices will be permitted and multi-disciplinary practices will also be permitted unless there is a provision in the Bill which prevents them from being established. All I say on behalf of those in this House who agree with me is that we do not want rules made by the Law Society in that context. As I said before, we should prefer a straightforward prohibition in the Bill against multi-disciplinary practices. If we cannot have that we must have something in the Bill which makes it quite clear that the Law Society, which is now enabled to make rules permitting multidisciplinary practices, must not make such rules unless they cover the points set out in the amendment. That is why I must press the amendment unless the noble and learned Lord can accept it in principle.
4.43 p.m.
On Question, whether the said amendment (No. 184) shall be agreed to?
Their Lordships divided: Contents, 68; Not-Contents, 86.

DIVISION NO. 2

CONTENTS

Ackner, L.

Hirshfield, L.

Addington, L.

Howie of Troon, L.

Airedale, L.

Hughes, L.

Alexander of Weedon, L.

Hunt, L.

Ardwick, L.

Hutchinson of Lullington, L.

Aylestone, L.

Irvine of Lairg, L.

Birk, B.

Jeger, B.

Blease, L.

Jenkins of Putney, L.

Boston of Faversham, L.

Lloyd of Hampstead, L.

Broadbridge, L.

Lloyd of Kilgerran, L.

Bruce of Donington, L.

Longford, E.

Carmichael of Kelvingrove, L.

Mayhew, L.

Mishcon, L.

Carnock, L.

Molloy, L.

Cledwyn of Penrhos, L.

Newall, L.

Coleraine, L.

Northfield, L.

Dean of Beswick, L.

Ponsonby of Shulbrede, L. [Teller.]

Donaldson of Kingsbridge, L.

Donaldson of Lymington, L.

Prys-Davies. L.

Dormand of Easington, L.

Renton, L.

Erroll, E.

Ritchie of Dundee, L.

Ewart-Biggs, B.

Roskill, L.

Fitt, L.

Sainsbury, L.

Foot, L.

Selkirk, E,

Gallacher, L.

Serota, B.

Gladwyn, L.

Simon of Glaisdale, L.

Graham of Edmonton, L. [Teller.]

Stallard, L.

Stoddart of Swindon, L.

Grantchester, L.

Strabolgi, L.

Hacking, L.

Tordoff, L.

Hailsham of Saint Marylebone, L.

Turner of Camden, B.

Underhill, L.

Hanworth, V.

Wallace of Coslany, L.

Harris of Greenwich, L.

Wigoder, L.

Hatch of Lusby, L.

Williams of Elvel, L.

Havers, L.

Willis, L.

NOT-CONTENTS

Aldington, L.

Ampthill, L.

Allen of Abbeydale, L.

Arran, E.

Allenby of Megiddo, V.

Auckland, L.

851

Belhaven and Stenton, L.

Lucas of Chilworth, L.

Belstead, L.

Lyell, L.

Bessborough, E.

Lytton, E.

Blatch, B.

Mackay of Clashfern, L.

Blyth, L.

Manchester, D.

Borthwick, L.

Margadale, L.

Boyd-Carpenter, L.

Marsh, L.

Brabazon of Tara, L.

Merrivale, L.

Brougham and Vaux, L.

Mersey, V.

Butterworth, L.

Mottistone, L.

Caithness, E.

Mountevans, L.

Campbell of Croy, L.

Mowbray and Stourton, L.

Carnegy of Lour, B.

Murton of Lindisfarne, L.

Charteris of Amisfield, L.

Nelson, E.

Clitheroe, L.

Onslow, E.

Cockfield, L.

Oppenheim-Barnes, B.

Colwyn, L.

Orkney, E.

Cottesloe, L.

Pender, L.

Cox, B.

Plummer of St. Marylebone, L.

Cullen of Ashbourne, L.

Davidson, V. [Teller.]

Quinton, L.

Denham, L. [Teller.]

Rawlinson of Ewell, L.

Derwent, L.

Reay, L.

Downshire, M.

Renwick, L.

Eden of Winton, L.

St. Davids, V.

Elibank, L.

Sanderson of Bowden, L.

Elliott of Morpeth, L.

Selborne, E.

Fraser of Kilmorack, L.

Shaughnessy, L.

Henley, L.

Slim, V.

Hesketh, L.

Strathcarron, L.

Hives, L.

Strathclyde, L.

Hooper, B.

Strathmore and Kinghorne, E.

Hylton-Foster, B.

Joseph, L.

Swinton, E.

Kimball, L.

Thorneycroft, L.

Kinnaird, L.

Trefgarne, L.

Knollys, V.

Trumpington, B.

Knutsford, V.

Ullswater, V.

Layton, L.

Whitelaw, V.

Long, V.

Wise, L.

Lothian, M.

Young, B.

Resolved in the negative, and amendment disagreed to accordingly.
4.53 p.m.
[Amendment No. 185 not moved.]
Lord Renton Lord Renton moved Amendment No. 185A:
Page 38, line 41, at end insert—
("() Alterations in the existing rules of the General Council of the Bar relating to the formation of a legal relationship by a barrister with another barrister or solicitor or with any other person for the purpose of their jointly offering professional services to the public shall have no effect unless approved under Part II of Schedule 4.").
The noble Lord said: My Lords, this amendment is an attempt to try to reconcile various provisions of the Bill which at the moment are not reconciled. However, I think that in everybody's interests they should be. Clause 50(6) provides that:
"Nothing in subsection (5) prevents the General Council of the Bar from making rules which prohibit barristers from entering into any such unincorporated association, or restrict the circumstances in which they may do so".
That refers of course, as we are discussing Clause 50, to multi-disciplinary and multi-national practices. In order to find out about the rule-making power of the Bar Council we need to turn to Clause 28. That leaves a degree of uncertainty. Clause 28(3) states:
"In the event of any question arising as to whether any provision"—
that is provisions dealing with the rules of the Bar Council
"is deemed to have been approved by virtue of subsection (2)—
(a) the Lord Chancellor shall seek the advice of the Advisory Committee and the Director;
(b) the Lord Chancellor and each of the designated judges shall consider, in the light of that advice, whether that provision is deemed to have been so approved; and
(c) that provision shall be deemed not to have been so approved unless the Lord Chancellor and each of the designated judges are satisfied that it has been".
The Bar Council will of course from time to time need to alter its rules, and in particular will need to alter its rules in order to express its views and implement its decisions with regard to multi-disciplinary and multi-national practices. At this point I should mention—this will be familiar to many of your Lordships—that multi-disciplinary practices, and especially, multi-national practices, involve questions which could affect the eligibility of members of the English Bar to act in member states of the European Community. In some of the member states a lawyer cannot act as a lawyer if he or she is a member of a firm which carries on a practice with persons who are not members of the legal profession. The matter arises also with regard to legal remedies with the United Kingdom. Surely it is right that the decisions to be made by the Bar Council under Clause 50 should be considered by the advisory committee which will be well equipped to deal with such matters, rather than having such matters dealt with in any other way, if there is an alteration to be made in the rules. As I said, that may well be the case.
That brings me to Clause 26 because we have to consider there the effect of that clause upon any authorised body. Clause 26(3) states:
"Where any authorised body alters …
(b) any of its rules of conduct,
those alterations shall not have effect, so far as they relate to any right of audience or any right to conduct litigation granted by that body, unless they have been approved under Part II of Schedule 4".
The alterations shall not have any effect in spite of the provisions of Clause 50. I hope that is not too great a stretch of the imagination when one realises that entering into multi-disciplinary and multi-national practices could affect rights of audience or, in the case of solicitors, the right to conduct litigation. Therefore we need to consider what the effect of Part II of Schedule 4 would be. That latter provision appears on pages 74 and 75 of the Bill. Paragraphs 6 and 7 lay down the steps which have to be taken to get the matter considered by the advisory committee. Paragraph 8 on page 75 refers to the submission to the noble and learned Lord the Lord Chancellor when the advisory committee's advice has been obtained. Then, in paragraph 9, we have the advice of the Director General of Fair Trading. But the culmination of the matter and the point on which we should focus our attention in relation to Clause 50 is in paragraph 11 at the bottom of page 75 which refers to approval by the noble and learned Lord the Lord Chancellor and the designated judges.
I suggest to your Lordships that with these various overlapping provisions in Clauses 26, 28, 50 and in

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Part II of Schedule 4 we should make sure that the ultimate decision is taken by the noble and learned Lord the Lord Chancellor and the designated judges. I hope the amendment that I have tabled achieves that purpose. If your Lordships will kindly glance at it you will see that it says:
"Alterations in the existing rules of the General Council of the Bar relating to the formation of a legal relationship by a barrister with another barrister or solicitor or with any other person for the purpose of their jointly offering professional services to the public shall have no effect unless under Part II of Schedule 4".
The culmination of what is written in Part II of Schedule 4 is in paragraph 11, which refers to the decision of the Lord Chancellor and the designated judges.
I have put this forward partly as a probing amendment but also in the hope that my noble and learned friend the Lord Chancellor will agree with what I have suggested; namely, that the machinery of the Bill whereby the Lord Chancellor and the designated judges have the last word should apply in particular to this matter. I beg to move.
5 p.m.
Baroness Elles: My Lords, my noble friend Lord Renton has raised an important point on the role of the advisory committee in relation to Clause 50. If we just concentrate on the multi-disciplinary practice, I understand that both the Law Society and the Bar Council are totally opposed to this, whereas multi-national practices are already in fact on the verge of happening, provided that the Law Society and the Bar Council lift their ban and agree to have them.
Earlier on during Report stage my noble and learned friend was kind enough—and I take this opportunity to thank him warmly for this because I was unable to be here—to table an amendment to add subsection (3) to Clause 17. It reads:
"In discharging its functions the Advisory Council shall—(a) where it considers it appropriate, have regard to the practices and procedures of other member States in relation to the provision of legal services".
I should be grateful if my noble and learned friend could confirm, where it relates to multi-national practices and deals with rules and regulations concerning both the Bar Council and the Law Society, that clearly this falls within the competence of the advisory committee and consequently would fall within Part II of Schedule 4.
It seems to me that this is the logical outcome of this amendment, and indeed of what my noble and learned friend said on 20th February at col. 249 of Hansard:
"The amendment requires the advisory committee, when carrying out its functions, to bear in mind the desirability of ensuring equal opportunities in the legal profession and, where appropriate, how legal services are provided in other European countries".
He went on to say:
"I would expect the advisory committee to bear such matters in mind anyway".
That seems to me to put this question of multi-national practices fairly and squarely into the hands of the advisory committee and to protect them from any outside interference, and it will be entirely
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subject to the ultimate decision of the Lord Chancellor. I should be grateful if he would comment on this question.
Lord Hacking: My Lords, in Committee I moved Amendment No. 202ZA. That amendment might be described as a parallel amendment to the amendment that the noble Lord, Lord Renton, has moved. I therefore support the noble Lord's amendment for the reasons that he has given to the House and indeed the reasons that I gave to the Committee in support of my amendment.
It seems not only sensible, but close to essential, that the rules should come under one regime, and when for example we are concerned with the rules of advocacy that they should come under the regime of Part II of Schedule 4. For that reason, and hopeful that the noble and learned Lord has not closed his mind over my Amendment No. 202ZA, I support the noble Lord, Lord Renton.
The Lord Chancellor: My Lords, the purpose of the consent provisions—that is the consent provisions relating to the designated judges and the Lord Chancellor—is to deal with matters concerned with rights of audience and the right to conduct litigation. It is in that area that the consent of the designated judges is required.
It is conceivable that the Bar Council, for example, might want to make rules that go outside that area; for example, in relation to overseas practice by members of the Bar. The relationship between the rules of the Bar and the consent machinery is that the rules of the Bar and any changes in the rules would require approval by the consent machinery of Part II in so far as they affect rights of audience in the case of the Bar and in the Law Society case generally more often the right to conduct litigation. That is the relationship between the two.
In so far as most of the rules of the Bar that I am familiar with are connected with the right of audience, of course questions about association and the like covered by this amendment would require to be submitted for approval and would become' effective only if they were approved. But if rules of the Bar had an effect outside that area, then the consent of the designated judges and the Lord Chancellor would not be appropriate. I do not think that this amendment is appropriate for that reason.
To extend the role of the designated judges and the Lord Chancellor beyond rights of audience in the case of the Bar, taking that as the paradigm case, would be to go beyond the jurisdiction that is conferred on them. It is that area that requires the judicial protection and judicial consideration, and that is the reason why the approvals relate either to right of audience or the right to conduct litigation.
Lord Renton: My Lords, I am grateful to my noble and learned friend for his reply, although I do not find it totally helpful. Naturally one will need to consider this. If it be the fact that without any reference to Part II of Schedule 4, arid without any reference in fact to Clauses 26 or 28, the Bar Council would be on firm ground in altering its rules and

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would not be challenged and would not need any special approval, well and good.
That may well be the case in the light of what my noble and learned friend has said. However, I am grateful to him for considering this matter, and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 186 not moved.]
The Lord Chancellor The Lord Chancellor moved Amendment No. 186A:
After Clause 50, insert the following new clause:
("Right of audience for solicitors in certain Crown Courts
For section 83 of the Supreme Court Act 1981 (right of audience for solicitors) there shall be substituted the following section—
("Right of audience for solicitors in certain Crown Courts.
83.—(1) The Lord Chancellor may at any time direct, as respects one or more specified places where the Crown Court sits, that solicitors, or such category of solicitors as may be specified in the direction, may have rights of audience in the Crown Court.
(2) Any such direction may be limited to apply only in relation to proceedings of a description specified in the direction.
(3) In considering whether to exercise his powers under this section the Lord Chancellor shall have regard, in particular, to the need to secure the availability of persons with rights of audience in the court or proceedings in question.
(4) Any direction under this section may be subject to such conditions and restrictions as appear to the Lord Chancellor to be necessary or expedient."").
The noble and learned Lord said: My Lords, I have proposed this amendment in response to points raised at the Committee stage by the noble Lord, Lord Hutchinson of Lullington, towards the end of that stage. The noble Lord then tabled an amendment the effect of which was to repeal Section 83 of the Supreme Court Act. Section 83 of that Act enables the Lord Chancellor to direct that solicitors may appear in, conduct, defend and address the court in any proceedings in the Crown Court, speaking generally. It also provides that a direction made under the section may have effect as respects all places where the Crown Court sits and that the Lord Chancellor shall have regard to any shortage of counsel in the area in question and to any other circumstances affecting the public interest.
The noble Lord, Lord Hutchinson, was anxious—I hope that I paraphrase accurately the point that he made—that Section 83 might be used by the Lord Chancellor to bypass the rights of audience conferred under the machinery proposed in Clause 24(1) and related clauses of the Bill. I explained then that I had looked at this some time ago in order to consider it because I had been asked to make more dramatic changes immediately under this section than I was minded to do because I felt that it was intended to have rather limited effect. I did not believe that Section 83 was passed by Parliament to enable the Lord Chancellor to allow solicitors to have complete rights of audience in all Crown Courts without further ado.
I therefore took the view that it was more restricting. The noble Lord then said, "That is your view. It may not be the view of your successors". I do not
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know whether I formally undertook to do so, but I noted the point and looked at it carefully. I have come to the conclusion that it would be right to modify Section 83 to try to make it clear that it is intended to deal only with local situations. For example, since I have been Lord Chancellor I have made a direction under Section 83 transferring the rights of solicitors in the Crown Court in Bodmin to the new Crown Court in Truro. My noble and learned friend Lord Hailsham earlier made a more general direction under the section in relation to particular types of proceedings in which solicitors had been instructed in magistrates' courts.
I intend to make it clear that Section 83 is now restricted to deal with local situations such as the one to which I have just referred. It is in that sense that the amendment is proposed. There is a related problem in respect of Section 4 of the Prosecution of Offences Act 1985 to which the noble Lord also referred. I have brought forward the amendment, and if your Lordships accept it I will consider whether it has any corresponding effect on Section 4 of the 1985 Act because the idea is that the provisions should go in parallel. I beg to move.
5.15 p.m.
Lord Hutchinson of Lullington: My Lords, perhaps I may say at once that I am grateful to the noble and learned Lord for his attempt to meet the argument which I put forward in Committee. I appreciate that attempt, but I have to say that I have reservations about the way in which the amendment is phrased. In my humble opinion it does not seem to be limited necessarily to the purposes to which the noble and learned Lord has referred.
If the amendment were to say something to the effect that where, in the opinion of the Lord Chancellor, there is a shortage of advocates in any specified court then certain powers would be available, one would of course have no objection to it. However, as drafted, it seems to me, with great respect, that the amendment drives a coach and horses through the mechanism about which we have heard so much.
Clause 24(2) says straightforwardly:
"A person shall have a right of audience before a court in relation to any proceedings only in the following cases".
That provision limits rights of audience to the mechanism. In the amendment, the Lord Chancellor is taking upon himself a power to grant rights of audience totally outside the mechanism. What is the power? The amendment says,
"The Lord Chancellor may at any time direct, as respects one or more specified places"—
so that he can direct all Crown Courts—
"where the Crown Court sits, that solicitors, or such category of solicitors as may be specified in the direction, may have rights of audience in the Crown Court. Any such direction may be limited".
So we can put that aside. But the amendment goes on,
"in considering whether to exercise his powers … the Lord Chancellor shall have regard, in particular, to the need to secure the availability of persons with rights of audience in the court or proceedings in question".
Those words give the Lord Chancellor, and Lord Chancellors in the future, power to issue a direction

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that solicitors, or other categories of persons, may have rights of audience in all Crown Courts if, in the opinion of the Lord Chancellor, he wishes to secure the availability of those persons or that category of persons in those courts. In other words, putting the matter simply, if the Lord Chancellor of the day decided that solicitors or other advocates should have rights of audience in a Crown Court in pleas of guilty only; in short cases only; in certain categories of offence only; or that they should belong to certain firms only or accord with any other category or basis which he thought right, he would have power to by-pass the whole of the mechanism and make that possible.
Further, under subsection (4) any such direction,
"may be subject to such conditions and restrictions as appear to the Lord Chancellor to be necessary or expedient".
I cannot help seeing in that subsection, although it may be physically difficult to imagine, the transformation of the noble and learned Lord into the appearance of Henry VIII. The restrictions or expediency which the Lord Chancellor might wish to impose seem unlimited.
Equally, the Lord Chancellor could say—this is important having regard to our recent debate in relation to the Crown Prosecution Service, which is a huge organisation—under the clause as drafted, "In my opinion, members of the staff of the Crown Prosecution Service should be available in all Crown Courts right across the country, either totally or in relation to specified categories of proceedings or types of offences". That gives a power which drives a coach and horses through the whole procedure of the mechanism. That is my worry about the clause as drafted.
I have sought previously to include Section 83 of the Supreme Court Act and Section 4 of the Prosecution of Offences Act in the repeal section. In order to meet the noble and learned Lord's worry about practice directions which have already been made, in Amendment No. 227A I make it clear that such repeal would not affect the continued operation of any such practice directions which have already been made. Although I appreciate that the noble and learned Lord has sought to meet my objections, why should the Lord Chancellor of the time be given those powers? Why should solicitors not go through the ordinary mechanism? If he wishes solicitors or other advocates to be available in courts, why should he not go straightforwardly through the mechanism of the committee and the designated judges?
Lord Ackner: My Lords, to understand the amendment one has to look at it in its historical context. I speak of course subject, as always, to my noble and learned friend Lord Hailsham; but I understand the historical background is that, before the Beeching Royal Commission on assizes and quarter sessions between 1966 and 1970, there were certain quarter sessions which were entirely open to solicitors because of the remoteness of the areas in which those courts took place. For instance, on my circuit there was Bodmin and there were other places in Lincolnshire.
When Lord Beeching introduced his report and it was debated in the House, there was a strong move
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to give solicitors rights of audience in the new Crown Court. It has not been recommended, but the opportunity was taken to debate it. That was some 10 years before the commission of the noble Lord, Lord Benson, gave its views. That proposal was resisted, but, in order to meet the complaint which was made in theory a clause was inserted in the courts Act which was then re-enacted in the Supreme Court Act 1981. The complaint to which I am referring was that some courts might lack a sufficient number of barristers, the more so because the numbers of the Bar were then about 2,000 as compared with their present strength of 6,000 and Lord Beeching had expressed anxiety as to whether, given its size, the Bar could cope with its monopoly. That additional measure gave the Lord Chancellor, in his discretion, power to ensure that, if courts were not sufficiently manned by the Bar, he could open them. Accordingly, Section 83(3) stated:
"In considering whether to exercise his powers under this Section as respects any one or more places where the Crown Court sits, the Lord Chancellor shall have regard to any shortage of counsel in the area in question, any rights of audience formerly exercised by solicitors at any court of quarter sessions in the locality in question, and to any other circumstances affecting the public interest".
The Bar reacted quickly and robustly to the suggestion that its members might be unable to service the monopoly that they had; ergo, the increase in the numbers which I mentioned. Local Bars were opened in various parts of the country. Again, returning to my circuit, they were opened at Exeter, Plymouth, Winchester and Portsmouth. Because of the shift of the litigation to Truro, the opening of local chambers there is already being contemplated. In consequence, the Lord Chancellor never exercised his power to open any new courts or to open up any new jurisdiction to solicitors in the Crown Court with the exception of what my noble and learned friend the Lord Chancellor has done. That is nothing new; it merely moves the Bodmin situation, which was open, down to Truro because the Crown Court has now gone to Truro.
It has therefore been proved that the section is quite unnecessary. That is why I strongly support the proposition of the noble Lord, Lord Hutchinson, that it falls to be repealed while preserving the existing rights of audience which solicitors enjoy in those special courts. Far from repealing that section which has proved that it is only of virtue for an administrative function as per the situation in Truro, my noble and learned friend the Lord Chancellor has breathed entirely new life into it.
Despite that complex machinery of advisory committees to be followed by consideration by my noble and learned friend the Lord Chancellor with his veto and by the designated judges with their veto, the amendment purports to arrogate to my noble and learned friend the Lord Chancellor powers to bypass that system entirely in relation to solicitors in the Crown Courts. It applies anywhere. It applies to solicitors or categories of solicitors and no longer is it to depend on the shortage of counsel in any area in question. The widest possible language is used, ending with the words:
"Any direction under this section may be subject to such conditions and restrictions as appear to the Lord Chancellor to be necessary or expedient".

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That statement follows subsection (3) which is permissive in nature and states:
"In considering whether to exercise his powers under this section the Lord Chancellor shall have regard, in particular, to the need to secure the availability of persons with rights of audience in the court or proceedings in question".
The noble Lord, Lord Hutchinson, was perfectly right. The section has now fulfilled its purpose. In lieu of having to make an order in regard to a court, there is provision in the advisory committee machinery. It is most unlikely to be used, having regard to experience while the section has been in force—a period of about 20 years. That clear power to bypass the machinery seems to be quite contrary to the spirit of the Bill.
Lord Hailsham of Saint Marylebone: My Lords, I rise only to say a very few words. When we discussed Clause 48 at some length, my noble and learned friend on the Woolsack made what seemed to me to be a powerful point. Although I was not altogether in agreement with it, it carried the day. When we discussed the rights of the Bar Council, as I think it then was, to make rules, and the provisions of the amendment suggested by the noble Lord, Lord Hutchinson of Lullington, my noble and learned friend in effect replied, "Let the mechanism prevail and let the whole thing be organised through the advisory committee which the earlier sections of the Bill provides".
I now turn my attention to Section 83 of the 1981 Act which has the history outlined by my noble and learned friend Lord Ackner. I can confirm from memory, although I have not refreshed it, that I was responsible for passing that section into the Act or its predecessor. That was done because of the difficulty in certain parts of the country where there was an established right of appearance for solicitors in certain quarter sessions and because it was rightly pressed upon us that, with the increase in the demand for advocacy in the Crown Court, other situations of shortage of advocates might easily arise elsewhere. I believe that I did right and that the provision has worked perfectly well over a period of 20 years.
However, my noble and learned friend on the Woolsack cannot have it both ways. Section 83, as passed by me and then consolidated in 1981, has become a fifth wheel to the coach. It has served its purpose and I do not repent of anything I did. However, now that we have the mechanism which my noble and learned friend on the Woolsack has insisted on applying to the sequence of sections here, it should go altogether, subject to any draftsman's point, on which the noble Lord, Lord Hutchinson, touched, as to the continuation in force of any amendment unless there is a desire to change it. If there is a desire to change it or to enlarge it, the mechanism should prevail. With great respect to my noble and learned friend, he cannot have it both ways. If his argument on Clause 48 was to let the mechanism prevail, it ought to be the rule which applies here. It seems to me that there is a basic inconsistency between what he now proposes and what he said at the last series of hearings at this Report stage.
5.30.p.m
Lord Wigoder: My Lords, perhaps I too may indicate a distinct lack of enthusiasm for the new clause proposed by the noble and learned Lord the Lord Chancellor. I fully understand his desire to re-enact in some form or another the gist of Section 83 of the Supreme Court Act 1981. But, as I am sure the noble and learned Lord will realise, we are in a very sensitive area at this particular moment. I venture to suggest that the wording of the proposed new clause might have been rather more sensitively drafted.
There is no doubt that under the clause as drafted the Lord Chancellor has complete power to give rights of audience to solicitors in all Crown Courts—full stop. He does not need to give any reason for doing so. It might have been otherwise had subsection (3) been drafted differently and had provided that the Lord Chancellor:
"shall have regard solely to the need to secure the availability of persons".
That might perhaps have been understandable. Simply to put in the words "in particular" means that that is not in any sense an exclusive test. Therefore, as I read these subsections, the Lord Chancellor undoubtedly has totally free powers to grant full rights of audience to solicitors without giving any reason of any sort.
I entirely accept that nothing would be further from the noble and learned Lord's mind than to make any such order. I accept that fully. Nevertheless, that that should be a theoretical power at this moment, when noble Lords have spent so many days and weeks debating the whole question of rights of audience, seems to me to be somewhat undesirable. I therefore support what has been said by those who have participated in this debate that the clause is unnecessary.
If the noble and learned Lord the Lord Chancellor nevertheless desires to re-enact in one form or another the gist of Section 83, might I respectfully suggest to him that the mechanism could be briefly introduced into this clause by providing that any such order made by the Lord Chancellor under a clause of this nature should be after consultation with the designated judges. That might at least remove the alarm that will be felt by many when they come to read the wording of this clause as it now stands.
Lord Donaldson of Lymington: My Lords, perhaps I may follow up that constructive suggestion. As I understand it from my noble and learned friend the Lord Chancellor, the intention of this power is to be able to fill gaps which appear on a very local scale and perhaps appear suddenly. I would not have thought that the Schedule 4 procedure was very well designed to deal with that situation because the Schedule 4 procedure is designed to approve rules by—in this case—the Law Society. It would seem hardly appropriate that the Law Society should pass a rule stating that solicitors should have a right of audience in the Bodmin-Truro Crown Court. It is not the kind of thing with which the rules of the Law Society are normally designed to deal.
In any event, it may be that the situation would pass. There would no longer be a case for that, and

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it would be quite difficult to persuade the Law Society to revoke that rule. So I very much doubt whether the Schedule 4 procedure is right.
On the other hand, so long as my noble and learned friend sits on the Woolsack, there is no problem because he has said for what purpose he wants to use that power. But I can understand that people have anxieties in the longer term future. My suggestion was not to be "after consultation with the designated judges" but "with the concurrence of the designated judges".
That produces a very quick process by which one obtains part of what is required from the Schedule 4 procedure, but it is a part which enables the matter to be arranged very quickly. I have no doubt at all that if the need were apparent and my noble and learned friend wanted to do it, the designated judges would say, "of course". But in the future, if someone were trying to get round Schedule 4 by using this power, I think that they would say, "No, we do not consent to this power. We might well consent if it came through the Schedule 4 procedure. You go through that procedure".
Lord Renton: My Lords, the practicality of this provision is that it arises rarely but unexpectedly when there is a shortage of counsel available in a court—perhaps a distant court. I remember that for a few months there was a shortage of counsel even as near to London as Rochester. The point is that when that happens the matter needs to be dealt with reasonably expeditiously.
I agree with what was said by the noble and learned Lord, Lord Donaldson. If we are to use the machinery of the Bill, which on all other occasions my noble and learned friend the Lord Chancellor has urged us to do, it should be used in a way which is fairly expeditious and does not involve the whole panoply of the advisory committee, and so on. It should enable the Lord Chancellor to obtain quite quickly the concurrence of the designated judges.
Certainly, to agree with the new clause exactly as it is, in my opinion and as has been said by others, would be inappropriate. Possibly the best suggestion—and it is intended to be a constructive one—is that we say to the Lord Chancellor, "Yes, you may have this new clause on condition that at Third Reading you will move an amendment to subsection (3) in order to make clear that the power is to be used only when there is a proved shortage of counsel and then with the concurrence of the designated judges".
The Lord Chancellor: My Lords, the history given by my noble and learned friend Lord Ackner, which my noble and learned friend Lord Hailsham supported, is my understanding of the history of Section 83. It is right to say that a practice direction was made under it of a more general kind than the one relating only to particular courts. My noble and learned friend did make a practice direction allowing solicitors who had appeared in the magistrates' court to appear in the Crown Court on appeal.
But I had to look at this section some time ago, as I explained in Committee in answer to the noble
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Lord, Lord Hutchinson. I took the view that Section 83 in its previous form did not have the effect, on a proper construction of it, of allowing the Lord Chancellor to allow solicitors generally throughout the country to have rights of audience in the Crown Court although on a superficial reading of it that might have been so, and I tried to explain that point.
In considering the points made by the noble Lords, Lord Wigoder and Lord Hutchinson, one has to compare the clause that I propose with the existing Clause 83. What I left out was as follows. In Clause 83(2) it states:
"A direction under this section may have effect as respects all places where the Crown Court sits".
The general direction that my noble and learned friend Lord Hailsham made did have that effect. I wanted to go along with the spirit of what the noble Lord, Lord Hutchinson, was asking for. That is why I took out that passage and made the provision only to specified places. It is true that one could specify every place in a very long schedule, but I think it is fairly plain that by taking out that particular portion that is not intended. I believe that it would be fair to look at it in that way. That is a point that the noble Lords did not make in their interventions.
The next point is that it is said: "Look here, you are not restricting it to places where there is a shortage". The difficulty I have about that is that I put in:
"shall have regard, in particular, to the need to secure the availability".
That is the point.
Let me just consider the position in Bodmin having arisen after the Bill goes through. Let us suppose that the Crown Court was moved from Bodmin to Truro. I do not think that I would have been too satisfied at the time that I had to deal with it that there was a great shortage in Truro. However, I consider that it was right, because of the established practice, to make the move. That is why I have put it in this way. A similar situation might arise, for all I know, where a particular court has to move from where it is presently established and it might be right to make that move.
On the point regarding allowing rights of audience to other solicitors and advocates, the clause does not allow that. It is restricted to,
"solicitors, or such category of solicitors as may be specified",
because that is now a possibility of different categories. I have no difficulty whatsoever in requiring the Lord Chancellor's direction to be with the concurrence of the four designated judges. I would contemplate this provision being used only in very exceptional circumstances.
On the point of the noble and learned Lord, Lord Hailsham, I endeavour to be consistent. I do not wish to ask for something that is not consistent with the general scheme. I believe that the general scheme is well worthwhile as a general scheme. The point about this provision is that it is for particular situations where the general scheme would not be appropriate. It might be right to allow solicitors to appear in the Crown Court at Truro while not allowing them to appear generally in the Crown

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Courts in other places. The mechanism is for that second situation, not the first.
I am content to say that I shall bring forward an amendment at Third Reading to make the directions subject to concurrence of the four heads of division if noble Lords are prepared to agree to that course. I have no difficulty about that whatsoever. I do not anticipate this clause being used very often. However, it has been in the law for some time. My noble and learned friend Lord Ackner states that there will never be a scarcity of qualified advocates. I thoroughly believe that he may be right about that. The proposal that I make in the Bill will go a good deal of the distance to make that certain. But it is possible that his prophecy might not be fulfilled in a particular area; it is therefore right that something of this kind should be retained.
I hope that the noble Lord, Lord Hutchinson—whom I was trying to meet by putting this amendment forward—will think it right to allow it to go forward if I undertake to make a prerequisite the concurrence of the four heads of division.
Lord Hutchinson of Lullington: My Lords, before the noble and learned Lord sits down—I am most grateful to him for what he has said—could I ask him to look again at subsection (3) and if possible include the words "shortage of advocates", as suggested by the noble Lord, Lord Renton, to make it perfectly clear that the phrase "secure the availability of persons", means more than pure availability and has something to do with the position of there being shortage or possible shortage.
Lord Wigoder: My Lords, before the noble and learned Lord sits down, and before he replies to my noble friend Lord Hutchinson of Lullington, will he consider whether it might be more helpful to the House if he were to withdraw the amendment at this stage upon the indication that it will come back next time in an amended form? I am sure that many of us who have been speaking in this debate would indicate that we would be prepared to accept such an amendment at that stage.
The Lord Chancellor: My Lords, I prefer to accept the suggestion of my noble friend Lord Renton. It saves repetition of printing an amendment of some size.
Perhaps I may reply to the point that my noble friend Lord Hutchinson of Lullington makes, with the leave of the House. I regard, "the need to secure the availability of persons" as a stronger provision. It would only be proper to use this power if something of the kind was required in order to secure that there were available people. The measure at present in the Act is slightly less direct than that. It states,
"shall have regard to any shortage of counsel".
The provision here refers to,
"the need to secure the availability of persons with rights of audience".
In other words, if people are already there, there is no need to secure availability of any people. That is
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why I have chosen words which are meant to be stricter than the words in the existing statute. I believe that they would be so read. That was certainly my intention in doing it this way. I cannot restrict it only to that for the reason that I mentioned—that we may have to move existing standing rights in the future. Those are the reasons for the provision.
I hope that in the light of that explanation, noble Lords will agree the amendment subject to my undertaking, as I have stated.
On Question, amendment agreed to.
5.45 p.m.
Lord Rawlinson of Ewell Lord Rawlinson of Ewell moved Amendment No. 187:
Before Clause 52, insert the following new clause:
("Judicial Office of Lord Chancellor.
The office of Lord Chancellor shall no longer be a judicial office and the right and duty of the Lord Chancellor to sit in a judicial capacity are hereby abolished.").
The noble and learned Lord said: My Lords, the House will be only too well aware, following hours of debate as we have made our weary way through the Bill, that the measure makes substantial changes in the practice of the law, the power of the Lord Chancellor to oversee a hitherto independent profession, and the qualifications required to become a senior judge in the highest court. It does not therefore seem to me inappropriate to do what we rarely have the opportunity to do—to consider the modern role of the Law Officers of the Crown.
The amendment affects only the senior of those Law Officers. However, the principle behind it affects the other two Law Officers who sit in another place. I wish to make it clear that the amendment is directed therefore to the question of the structure of government and the practical role therein of the law Ministers of the Crown.
It is always difficult to distinguish in the public and parliamentary mind between the office and the holder of the office. I was writing and speaking about this subject long before my noble and learned friend published his Green Paper or this Bill. Indeed, I was speaking about it before my noble and learned friend became Lord Chancellor. I am confident that he understands the amendment is not intended as a personal reflection on him. I have much respect for my noble and learned friend and—believe it or not, despite what he has got up to in parts of this Bill—affection. Therefore the amendment is not inspired by resentment. That is a suggestion I reject with contempt.
We must recognise that in modern times there have been important changes in the practice and duties of all three Law Officers, the Lord Chancellor, the Attorney-General and the Solicitor-General. Just as the modern Lord Chancellor rarely sits judicially, so the Law Officers, although I was taught that this was their first duty, appear less frequently for the Crown in court. Nowadays, the administration of the day wants its legal advisers at its beck and call, behind their desks or at the Cabinet table. Twenty years ago I remember how displeased Ministers were to find that the Attorney-General was in court and unable to attend a Cabinet committee. It is even

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more so now. It is no longer acceptable to Ministers and civil servants that the Crown duties of Law Officers come first. The demands of modern government require that all Law Officers give more of their time to their duties as a Minister than to their traditional duties as judge or counsel.
To some constitutional observers the dual role of the English Law Officers has always been a matter of disquiet. For them, the separation of powers between, on the one hand, the judicial or semi-judicial, and on the other, the executive power, has been a matter of principle. And no amount of pleading that the system works, and works fairly, has proved acceptable. That the system has worked whereby a person can be a judge or a Crown officer responsible for criminal prosecutions, in which role the administration of which they are members never interferes, is a tribute to office holders in governments of all colours without exception.
It is difficult to deny that the combination of roles is intellectually anomalous. Few outside the inner circle understand it. Many of the general public, especially the media, frankly disbelieve it. They often identify the government with the prosecution or the Attorney-General acting in the public interest. As the business of government has so greatly increased, so have the doubts of these observers. They would say, "The Speaker of this House, robed as is the lay Speaker of another place, yes. Cabinet Minister, yes. Ministers are responsible for, let it be noted, only the civil law of England and Wales (because the responsibility for the criminal law has always been given to a layman, the Home Secretary)—but judge, no." That is the constitutional quirk.
During the past half century the pattern of the office of Lord Chancellor has greatly altered. He used to sit judicially in the mornings and then come to preside on the Woolsack at 4.30 p.m. when the House commenced its non-judicial Sitting. Outside the Cabinet his duties were limited mainly to the appointment of High Court judges, then fewer in number, the protection of their interests and the supervision of the English law.
In modern times he rarely sits judicially. There is far too great a burden of administrative and political work. The most significant change is that due to his responsibility for legal aid the Lord Chancellor has become a Minister answerable for a substantial financial vote; millions of pounds of public money. There is no Minister in his department who sits in and speaks to the other place. After all, that is the House responsible for supply. In days when his vote was miniscule that mattered little.
The Attorney-General acted as his agent in another place and still does. However, the Attorney-General is not a junior member of the Lord Chancellor's Department. It is not easy, and not often satisfactory, to answer for acts of a department of which you are not a member. We in this House ask a great deal of Lords in Waiting, obliging them to answer for matters in which hitherto they have not been concerned, and to reply to complicated Statements made in another place. I am always filled with admiration by the way in which they carry out those difficult tasks. But your Lordships are more understanding than are Members elsewhere.
Therefore, when a government or Select Committee at last turn thoroughly to examine the structure of government—as at some time they must—it will not be long before there is a demand for a responsible Minister from this modern spending department to answer personally in another place for the large sums of public money. It may be required that the actual Minister should be a Member of the other place.
Hitherto, the Lord Chancellor has invariably been an English lawyer trained and practised in the English courts. In Scotland the law is different; it is founded on the civil law and untouched by the English common law. The roughly equivalent duties of the English Lord Chancellor in recommendation is performed by the Lord Advocate. The clans would surely start again on their march South if any government dared to appoint an English Lawyer to the Scottish post of Lord Advocate. It is a great tribute to my noble and learned friend that there is so little concern that someone who has not read the English law nor practised solely in the English courts should take on responsibility for that law and its judges. He has earned the admiration and affection of the whole profession.
But it has created a precedent. The result is that no longer must the Lord Chancellor be an English Lawyer trained in the English courts. If unamended the Bill will provide that a person appointed to a senior judicial post need not be a lawyer, including therefore the Lord Chancellor. When that condition is added to the vastly-increased administrative and political work now loaded on to the shoulders of the modern Lord Chancellor, together with the extra executive duties which we impose upon him under the Bill, it can be seen and must be recognised that the whole ethos of the post will inevitably be turned further away from the character of the judge and more towards emphasising the modern character of the executive Minister.
At some time, therefore, Parliament must pay heed to the outward manifestation of the duality of powers in modern times. It must look again at the doctrine of the separation of powers and must not shirk nor flinch from that. It must consider afresh whether, at the end of the 20th century, there should exist a system whereby one person can exercise great executive and political powers while also exercising the powers of a judge sitting in judgment.
Accordingly, the modern situation is that the Lord Chancellor has acquired heavy responsibilities for public money. He need no longer be an English trained lawyer. He is more involved in the ever increasing administrative and political duties. Furthermore, under the Bill the Lord Chancellor need no longer be a trained lawyer. It has never been necessary for the Home Secretary responsible for the criminal law to be a lawyer; nor for the Secretary of State for Defence to have military training; nor for the Minister of Health to be a trained doctor. It must be right, therefore, to consider why the Lord Chancellor should retain judicial powers.
I repeat that in making those remarks—and I made them and wrote about them long before the publication of the Bill—I am concerned not with

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personalities but with considering the role of the Lord Chancellor in the structure of today's modern government. It is a matter of not ignoring the evolution of the office and the increased emphasis on his political role. As we have been told often and said ourselves when discussing the Bill, our objective ought to be the creation of an ever-more rational legal system—and therefore governmental system—in the service of the public. It should be a system which the public can understand.
If, as its supporters suggest, the Bill is such a reforming measure, if it is designed to improve the service to the public and present a more logical and modern legal framework, we should start at the top and examine the desirablity in modern times of retaining in one office the dual role of leading executive and Cabinet Minister and the judge who sits in judgment over the citizen in the courts. On the face of it, and when expressed so, the position is hardly defensible. Perhaps because it works and we are fond of it the position is desirable and essential. However, the country ought to be told why. I beg to move.
Lord Hailsham of Saint Marylebone: My Lords, I could make two alternative speeches about the amendment; one would take an hour and the other only a few minutes—
Lord Boyd-Carpenter: Take the hour!
Lord Hailsham of Saint Marylebone: My Lords, rightly or wrongly I have selected the second of my two alternatives. I regretted to see the two amendments on the Marshalled List, but that was not for the reason which my noble and learned friend has expressed and disavowed, and which I accept without question. It was because I do not believe the Bill to be a proper vehicle for discussing the subject. It is an important question and in order to ventilate it properly I should need to speak for about an hour. I expect other noble Lords would wish to be as long—
A Noble Lord: Hear, hear!
Lord Hailsham of Saint Marylebone: My Lords, the Bill is a totally inappropriate vehicle for this kind of constitutional discussion. It goes far more to the root of our constitution than my noble and learned friend has yet appreciated. For instance, he twice said that in future under the Bill the Lord Chancellor need not be a trained lawyer. He never needed to be a trained lawyer. I have a daughter at the Bar and on occasions people have said to me, "Perhaps she will be the first lady Lord Chancellor". I have said, "She can't be because there has already been one". The wife of Henry III was Lord Chancellor. If my noble and learned friend had acquainted himself with Campbell's Lives of the Lord Chancellors—it is a primer which every Lord Chancellor should read from cover to cover—he would have known that. The Dean of Westminster was not a lawyer during the reign of Charles I. I could give examples ad infinitum. However, the
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truth of the matter is that this amendment is not only inappropriate to this Bill but is also wrong in principle.
We have an extremely subtle arrangement, as my noble and learned friend said, about the relationship between the legal profession, the administration of law and the judiciary. I shall not expound that at length; otherwise I should be inclined to take the first of my two alternatives. First, I believe it is absolutely vital that the person holding the rank of Lord Chancellor should be in this House. He has to be so long as he is the Speaker of this House, even though he could be Lord Keeper of the Great Seal and not be allowed to speak, which happened in the reign of Elizabeth I. In fact, it is vital that he should be in this House and should not be subjected to day-to-day criticism and questioning in the House of Commons.
It is also vital that he should be a lawyer of mark, although there is no legal requirement to that effect. Nobody would doubt that my noble and learned friend—although he has a Scottish rather than an English qualification—is exactly that and is a lawyer of very great distinction indeed.
The only way of ensuring that is to retain his position as a judge. If I may use a rather unseemly phrase, it is important that the Lord Chancellor should expose himself to criticism by giving judgment occasionally. This Lord Chancellor has done so, and I made a point of doing that. The late Lord Gardiner, one of my predecessors, was unwilling to do so because he did not like being a judge at all. He was a great advocate and a considerable lawyer but he had a distinct disinclination to pronounce judgment as a judge on anything. I only persuaded him to sit once after he had demitted office, and he did that with the greatest reluctance and refused to do so again.
Lord Simon of Glaisdale: My Lords, he decided wrongly.
Lord Hailsham of Saint Marylebone: My Lords, I am not sure that I go along with my noble and learned friend on that. I must say that I do not believe that this is a suitable occasion to discuss such an important matter. The amendment proposed—that the Lord Chancellor should not sit as a judge—is not only inappropriate but wrong. I hope that on reflection my noble and learned friend will withdraw his amendment now that it has been moved, without any disrespect to him, and I hope that we shall not take up a great deal of time in discussing a first-class constitutional matter in this rather unseemly way.
6 p.m.
Lord Simon of Glaisdale: My Lords, I agree entirely with what my noble and learned friend Lord Hailsham has just said. This is far too big a constitutional subject to be debated on Report. I only say that I would be very sorry to see the suggestion of the noble and learned Lord, Lord Rawlinson, adopted. In a number of respects this Bill is disruptive of our legal tradition. To adopt this

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proposal would be utterly and further disruptive of tradition.
The Law Officers were also referred to. That matter must be considered but not in the context of this Bill. There is a difference of opinion as to the role of the Law Officers. I rather think that the noble and learned Lord, Lord Rawlinson, is on one side and I am on the other.
Only the other day my noble and learned friend the Lord Chancellor said that he was voicing the opinion of the Attorney-General who was deciding in a personal capacity. That is the traditional view and I think that that is the view of the noble and learned Lord, Lord Rawlinson. I have never been able to see the answer to the point made by the late Lord Asquith of Bishopstone at the time of the Campbell case when he asked whether it was really conceivable that the Cabinet should have had no say before the 1914 war in the prosecution of the alleged rebels in Ireland when the whole future of Ireland, including the possibility of civil war, was in question. That has never been answered. I should think that the Cabinet has a clear right to take over a decision as to prosecution, making clear that it is its decision, although normally, conveniently and conventionally it is left to the Attorney-General.
Indeed, I venture to think that that may well be done in the Rushdie case, which raises very wide points of public importance. I say that merely because the situation as to the Law Officers is at least as debatable as that of the Lord Chancellor.
Finally, there is no reason at all why the Lord Chancellor should not have a junior Minister. In fact, that has been done twice. When Lord Gardiner was Lord Chancellor, the noble Lord, Lord Fletcher, was appointed Minister without Portfolio and was attached to the Lord Chancellor's office with a view to overseeing legal reform. At that time there was another junior Minister attached to the Law Officer's Department, a Mr. Davidson. Therefore the fact that there is no junior Minister in the Lord Chancellor's office is by no means a reason for the violent constitutional departure which this amendment suggests.
Lord Boyd-Carpenter: My Lords, I am not easily shocked. I have been too long in public life for that to happen easily. However, I must confess that I had a feeling of strong surprise when I saw the amendment of my noble and learned friend Lord Rawlinson on the Marshalled List. I believe that the case for the amendment has been most effectively demolished by my noble and learned friend Lord Hailsham. Therefore, I only wish to add a few words to that.
I believe that it is quite wrong to criticise, without going into a great deal of thought, the importance of the office of Lord Chancellor in its present form as the link between the Cabinet and the legal system. Of course, it is easy to suggest that there are anomalies of principle, and so on, in that. However, the system has worked effectively. I am perhaps freer to say that than my noble and learned friend Lord Hailsham, whose own conduct of office I believe all your Lordships would regard as having been quite magnificent.
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Therefore, I hope that my noble and learned friend Lord Rawlinson will not press this amendment because it will take a great deal of time and it will seem, as I think it seems to most of us, to be a quite extraordinary proposal and to be particularly extraordinary at a time when we have he advantage of a great Lord Chancellor on the Woolsack.
Lord Donaldson of Lymington: My Lords, I rise only because I should not wish it to be thought that a serving judge had any different view from that expressed by my noble and learned friends Lord Hailsham and Lord Simon of Glaisdale and by the noble Lord, Lord Boyd-Carpenter. I have been in this job for many years and for the past seven or eight years I have been Master of the Rolls. I regard it as of enormous importance that the senior judge should be the Lord Chancellor in order that he may span the gap which necessarily must exist to provide the necessary separation between the Executive and the judiciary.
With regard to the suggestion that he should not sit as a judge, if he were totally unqualified, as he could be, one would expect him to apply the ordinary constitutional conventions which apply in such situations and not sit. However, we have in the present Lord Chancellor the advantage of one who is not only qualified as a matter of opinion. After all, he was a Lord of Appeal in Ordinary. It is difficult to think of any greater and more obvious qualification to possess in order to sit as a judge. If it be said that he should not sit as a member of the Supreme Court, that is a matter for him. I am bound to point out that I sat as a judge in Glasgow and as a judge of a British court; namely, the national industrial relations court. We also welcome Scottish judges sitting in London. I do not think there could possible be any objection to that. If the noble and learned Lord the Lord Chancellor wishes to sit in the Court of Appeal, I shall personally be there to welcome him.
Lord Renton: My Lords, I agree with those who have already opposed this amendment and I wish briefly to add two points. First, the chairman of the Bar asked me to state that the Bar Council wishes to dissociate itself from the amendment. Secondly—this is simply a thought of my own which in one way has been made by others; but I should like to put it like this—it is essential that the legislative, the executive and the judicial roles of the Government and Parliament should not be separated. In order that they may effectively be performed they must impinge upon one another. I therefore regard the Lord Chancellor as a vital link man.
Lord Mishcon: My Lords, I rise from these Benches only to make it abundantly clear that those whom I have the privilege of representing have not only the utmost confidence but a very deep affection with regard to the present Lord Chancellor. Having said that, I wonder whether I happen to have caught the sense of the House. I now ask whether the noble and learned Lord, Lord Rawlinson, is prepared, with

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his usual courtesy, to ask leave to withdraw his amendment, and, if he is not, I ask that the Question be now put.
The Earl of Selkirk: My Lords, perhaps I may make one observation—
Noble Lords: Order!
The Earl of Selkirk: My Lords, we raised the question of the Lord Chancellor. The correct title is the Lord Chancellor of Great Britain.
Lord Hailsham of Saint Marylebone: My Lords, I draw the attention of the Leader of the House to the fact that I understood the noble Lord, Lord Mishcon, to move the one Motion which cannot be debated—that the Question be now put. I understood him to do that, and if so that is what must be done.
Lord Belstead: My Lords, I think the noble Lord, Lord Mishcon, looked towards my noble and learned friend Lord Rawlinson of Ewell to inquire about his intentions with regard to the amendment. I think I am right in saying that our procedures most certainly extend to my noble and learned friend now speaking on his own amendment.
The Earl of Selkirk: My Lords—
Noble Lords: Order!
The Earl of Selkirk: My Lords, I only wish to address the House for a few moments. I should like to know whether, in the name of "The Lord Chancellor", any obvious duties fall on my noble and learned friend in respect of Scotland. I do not know whether or not that is so, but I should nonetheless be interested to see whether any duties fall on him. Beyond that, I support those who expressed their views on the importance of this office for England.
Lord Rawlinson of Ewell: My Lords, as I understand it, the noble Lord, Lord Mishcon, posed the question to me. I am perfectly happy to do that which I always intended to do—withdraw the amendment. I wish to say only two things in reply. I do not seek to call upon the noble and learned Lord the Lord Chancellor. I particularly said how difficult it was in parliamentary and public life to personalise these matters. The noble and learned Lord the Master of the Rolls of course immediately did so. With regard to my noble friend Lord Boyd-Carpenter, I have surprised him so much and put him in a state of shock so often that I am surprised he is still so robustly sitting here before me. He will be bouncing up and down again, speaking often, I am sure, in our debate.
Lord Boyd-Carpenter: My Lords, I hope not on this matter.
Lord Rawlinson of Ewell: My Lords, not on this amendment because this is a final speech. I should
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like to say that we have never had a vehicle to discuss these matters. At some time we shall have to look at it and examine it. I make no apology for raising it as I raised it here at the first opportunity. We are dealing with the whole of the administration of the law. There is no need for the Bar Council to dissociate itself. I never associated with it. It is something I have written about, thought about and spoken about for many years. On this subject, like Disraeli,
"Though I sit down now, the time will come when you will hear me".
At some time the public will be heard about this matter and it will have to be decided. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
6.15 p.m.
Lord Rawlinson of Ewell Lord Rawlinson of Ewell moved Amendment No. 188:
Before Clause 52, insert the following new clause:
("Statutory Judicial Appointments Commission.
.—(1) There shall be a body to be known as The Statutory Judicial Appointments Commission (in this Act referred to as the Commission).
(2) The Commission shall consist of a Chairman and 13 other members, all of whom shall remain members of the Commission while holding the respective offices enumerated below.
(3) The Chairman shall be the Lord Chief Justice of England.
(4) The other members of the Commission shall be—
(a) the Master of the Rolls, the President of the Family Division and the Vice-Chancellor;
(b) the Senior Presiding Judges of the Northern, Western, North Eastern, Midland and Oxford, Wales and Chester, and South Eastern Circuits;
(c) the Chairman of the Circuit Judges Association;
(d) the Chairman of the Magistrates Association; and
(e) the Chairman of the General Council of the Bar and the President of the Law Society.
(5) The powers vested in the Prime Minister or the Lord Chancellor to make recommendations for appointment to the office of Lord of Appeal in Ordinary, Lord Justice of Appeal, High Court Judge, Official Referee, Circuit Judge and appointment to the rank of Queen's Counsel shall henceforward be exercised only after consultation with the Commission.
(6) On a vacancy arising for any appointment to any of the offices or rank set out in subsection 5 above, the relevant Minister shall notify the Commission who shall thereupon submit names for recommendation. In the event of the Minister selecting for recommendation a person other than one submitted by the Commission, the Minister shall publish to Parliament his reasons.
(7) The Chairman of the Commission may appoint such staff as he thinks necessary for the discharge of its functions.
(8) Appointments shall be made by the Chairman on such terms and conditions as he may with the consent of the Treasury determine,").
The noble and learned Lord said: My Lords, this is an amendment to establish a statutory judicial appointments commission. It sets out a framework which I readily accept may be quite defective and incomplete. There may be another and more workable process. I am certainly not wedded to the exact composition, provided it consists of a majority of senior judges and trained lawyers. If anyone insists on a lay participation I am very ready to accept that.
I seek to establish a statutory authority as a matter of principle, independent of the government of the

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day, whose names are publicly known and with a duty to make recommendations in respect of all the appointments to the senior judiciary. At present, as your Lordships will know, recommendations for the Court of Appeal and Lords of Appeal are made by the Prime Minister and for the High Court and the Circuit Bench by the Lord Chancellor. As we appreciate, it is improbable that any recommendations are made without the Lord Chancellor being consulted and consenting. His is the guiding hand. In the past he had few judges to recommend and now there are many. It is impossible, and in the future will be even more impossible, for a modern Lord Chancellor to know personally the persons he is appointing to the rank of Queen's Counsel or the Circuit Bench and sometimes even the High Court Bench.
I am certainly well aware that over the past years there has been (and still is) consultation before a Lord Chancellor makes a recommendation. My noble and learned friend Lord Hailsham went out of his way to make public his approach to the duty of recommendation and the consultations he had. All such consultation is, in a sense, clandestine. The feeling grows up—or did when I was practising at the Bar; I believe it still persists— that the present procedure is not wholly satisfactory. People sometimes fear that they have been overlooked or have not been appointed to silk; they feel that perhaps they have crossed some official in the Lord Chancellor's Department at some stage and that that has blighted their chances. It is because of the informal and private approach that that happens and people get that feeling.
I suggest that it is far better to have the consultation obligatory and in the open. I am quite willing that my proposal should merely set out "will consult", and to leave out the other subsections of my new clause. I suggest it is much better to have it demonstrated that the Lord Chancellor consults the heads of divisions before he makes any recommendation. It is one of the most constitutionally important duties that anyone ever has to perform.
I believe it would be healthier for public perception if people were satisfied and could see that the Lord Chancellor, before he made an appointment to the High Court Bench, consulted the persons suggested in the amendment. I believe that this would meet what is now so often demanded—open government. The institution of a publicly known procedure would give not only assistance to the Lord Chacellor and the Prime Minister but would also give confidence to the public. I beg to move.
Lord Hailsham of Saint Marylebone: My Lords, again there are two speeches I could make, one lasting an hour and one about 10 minutes at the most. Once more, I choose the second course.
I must again tell my noble and learned friend sitting behind me that I am sorry to see this amendment on the Marshalled List. I do not consider this Bill to be a suitable vehicle for fundamental constitutional change or a change of this kind. It is incorrect to say that there are no opportunities in either House for discussing the method of
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appointment of judges. Any Member can put down a substantive Motion and any Member can have it discussed in either House under the appropriate procedures. That is the way to proceed. This Bill is emphatically not the vehicle.
I have to tell my noble and learned friend that his suggestion is not only inappropriate and the occasion a bad one. A great deal of time has already been spent on matters entirely germane to the Bill's subject matter. It is also wrong. The method of appointment of judges, silks and other persons is, of course, a complex one—it is a sophisticated method which has grown up over time—but it is certainly much more satisfactory than that suggested by my noble and learned friend.
The system combines the personal accountability of a Minister rooted to the House of Lords through being screwed to the Woolsack and therefore not subject to the kind of trouble he would have in the House of Commons with a sophisticated method of consultation which must vary according to whether you are dealing with the silks (one of the most onerous and personally difficult things I ever had to do), appointing a circuit judge in a remote provincial circuit, when one has to consider the personal convenience of travel and all sorts of other aspects as well as suitability, or advising the Prime Minister as to how to exercise her prerogative of advising the Queen on the appointment of the Master of the Rolls and the Lord Chief Justice.
The methods are wholly different. They are certainly not in the least clandestine. I have more than once publicly and in writing set them all out. It would be quite wrong to think that officials in the Lord Chancellor's Department have an undue influence on these matters. The Lord Chancellor deals with these matters personally but only after consulting a wide range of persons including, of course, in senior appointments, the four designated judges, or, as we used to call them for convenience three years ago, the heads of division.
I hope that we do not now embark on a long debate on this subject. We have a considerable amount of work to do and this is not the moment to have such a debate.
Lord Hutchinson of Lullington: My Lords, I am sorry that the noble and learned Lord considers this amendment inappropriate. It is entirely different from the previous amendment. When the noble and learned Lord, Lord Hailsham, speaks one always feels so ignorant. I could not for the life of me remember when reading Lord Campbell's Lives of the Lord Chancellors whether or not any of the wives of King Henry VIII had been made Lord Chancellor.
Lord Hailsham of Saint Marylebone: My Lords, they had too precarious an existence, and two Lord Chancellors disappeared in another way.
Lord Hutchinson of Lullington: My Lords, this question arises from the Bill. Hitherto the system for the appointment of judges has justified itself by the quality of the judiciary. Henceforth, as a result of the Bill, everything will be entirely different. The reservoir of potential judges will be greatly

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expanded. A whole ragbag of advocates will be eligible, qualified in different proceedings in different courts for different periods of time. Many will be laymen, neither barristers nor solicitors. Eligible, too, will be that remarkable collection of individuals set out in Schedule 8—income tax commissioners, social security commissioners, chairmen of VAT tribunals, and the like. Of course, there is also to be the whole vast reservoir of the Crown Prosecution Service.
No longer can the noble and learned Lord the Lord Chancellor personally know potential candidates. Nor, indeed, will senior members of the small profession be in a position to advise him. I should have thought it would be very difficult to find the judicial qualities necessary in this huge hotchpotch of advocates which we will have as a result of the Bill.
Dilution of the vital qualifications for being a judge—competence, independence and integrity—will inevitably lead to a reduction in standards. As we have repeatedly seen in the Bill, the independence of the advocate, which has hitherto gone with him onto the Bench, is no longer guaranteed or, indeed, provided for in the Bill. It is not entirely clear—I ask the noble and learned Lord to advise me—what the procedures will be henceforth for the appointment of Queen's Counsel. I understand that the Bar's view on the matter, set out in its blue book, is that a strong committee of lawyers and laymen should be established after the enactment of the Bill to make recommendations for the future appointment of the judiciary. That might very well be the way forward rather than deciding on the details of this amendment.
Lord Campbell of Alloway: My Lords, I make a brief intervention only on the question of the appointment to silk. The whole regime is to change. For my part I have always accepted that we should extend the right of audience and that solicitors should have access to higher judicial appointments. However, accepting it as one does, one also has to accept that the whole basis of appointment to silk will require some reconsideration.
I accept, of course, that this is not the time, nor indeed the place or the occasion, on which to consider the machinery in detail. I do not accept—I seldom seem to agree with the Bar Council—that we want a commission of banisters (heaven forfend!) to recommend who should become judges. I should have thought that slightly unnecessary and, in any case, offside.
Appointment to silk is far more important than at first appears. The catchment area will be widened, and I believe should be widened. But it is from the silks that you get the quality for the judiciary. My noble and learned friend Lord Rawlinson has drawn attention to this aspect. Although I cannot, with respect to him, accept the spirit of the amendment as a whole, I am grateful that at least he has drawn attention to how we can best deal—not here and now, but at some time in the future—with the appointment to silk; if possible avoiding artificial appointments to artificial silks.
6.30 p.m.
Lord Ackner: My Lords, I share the regrets of my noble and learned friend Lord Hailsham that this amendment has had to surface, but I entirely agree with the noble Lord, Lord Hutchinson, that the Bill has made it inevitable. In the debate on the Green Papers which took place not quite a year ago, my noble and learned friend the Lord Chancellor said that he had gone back to first principles. Undoubtedly one of those principles is as stated by the late Lord Chancellor Lord Simonds who said:
"It remains the supreme truth that the safeguard of liberty lies in the independence of a judiciary which fears not nor favours the Executive".
In the debate on the Green Papers as reported in the Official Report on 7th April 1989, at col. 1463, the noble Lord, Lord Elton, though seeking to support the Government's case, said:
"I suppose that patronage is the most powerful influence which governments can exercise. Patronage over appointments and promotion must be a powerful weapon. An institution that is only appointed and promoted on the gift of the Executive presumably would not consider itself wholly independent".
The noble Lord is absolutely right. As a matter of principle it is clearly wrong for the judiciary to be appointed by the Executive. My noble and learned friend the Lord Chancellor is a Minister who sits in the Cabinet and is therefore part of the Executive Government and subject to all the political pressures of that position. Moreover, as regards the judges of the Court of Appeal, the Law Lords and the heads of the divisions, I understand that the Lord Chancellor's recommendation has to be approved by the Prime Minister.
Lord Hailsham of Saint Marylebone: She appoints.
Lord Ackner: She appoints. A fortiori, as the noble Lord, Lord Mishcon, would not have me say. Our system of judicial appointments is clearly wrong in principle, but by and large it has worked in practice. Certainly in recent years I believe that is very largely due to the Lord Chancellor of the day accepting the advice of my noble and learned friend the Lord Chief Justice and the other heads of the divisions, ably assisted by the Deputy Lord Chief Justice, who happens to be, and has been for some years, the senior presiding judge.
But the heads of divisions have now a new role to perform. They are to be the designated judges. The question which understandably arises for your Lordships' consideration—and I am grateful to the noble and learned Lord, Lord Rawlinson, for raising the point—is whether that which is clearly wrong in principle can nevertheless, in the light of the radical proposals contained in the Bill, continue to work in practice. There can be no doubt that the Bill seriously diminishes the power and authority of Her Majesty's judges in relation to the control of rights of audience in the High Court and the Court of Appeal and also in relation to education, training and the code of conduct of advocates.
That power will largely pass to the Executive and it will be achieved by the Lord Chancellor's Advisory Committee, appointments to which will be made entirely at the discretion of the Lord Chancellor.

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That committee will in practice be a decision-making committee dictating not only the framework and detail of the education, training standards and discipline of all those who provide legal services in our courts, but the very way in which those services are to operate.
I adopt and repeat the words of my noble and learned friend Lord Oliver of Aylmerton who said at Committee stage, when speaking of the committee:
"it is the apex of the structure of the legal profession, supervising every important aspect of professional practice and training … [the Committee] is an instrument by which the executive can, in a very large measure, control a legal profession which until now has been self-regulatory and by which it can, by the creation of new classes of practitioners in the courts, secure an even greater control than it enjoys at the moment over the composition and of course, ultimately, the conduct of the judiciary at all levels".—[Official Report, 25/1/90; cols. 1245 and 1247.]
Other speakers of considerable political acumen have observed that lay domination in the regulation of all professional activities in a highly technical sphere in which laymen do not have the expertise, is the clearest indication that the committee is to be the creature of the Government. Of course it will be stressed that the designated judges have the power of veto in relation to the advisory committee. So, too, indeed has the Lord Chancellor. But this substitute for the role previously enjoyed by judges, these restricted and indirect powers, are liable to be exercised in an atmosphere of pressure. Significantly, the Government thought it appropriate, at page 29 of their White Paper Legal Services: A Framework For The Future to state:
"Any allegation that these statutory duties had not been carried out, or had been carried out in a way in which no reasonable authority would have done, could of course be tested by judicial review in the High Court or by an action for breach of statutory duty".
All may be sweetness and light and perfect harmony between the advisory committee and the designated judges and the designated judges and the Lord Chancellor. I deeply hope that it will be so. But the realist, even enjoying a high degree of optimism, having read the written responses of the judges of the Supreme Court to the Government's Green Paper published for all the world to see, would recognise the grave risk of friction, and of the judges being thus dragged into the political arena.
That certainly would be the case if they do not accept the validity of the advisory committee's recommendations; the more so if such recommendations had the support of the Executive in the person of the Lord Chancellor, a Minister and a Member of the Cabinet. Given that potential scenario, my noble and learned friend the Lord Chancellor must be consistent, as indeed he has said today he always tries to be, and again go back to first principles. There must be a fundamental change in the method of appointment at least of the senior judiciary.
It is particularly significant that under the Scottish Bill, the Lord President—the Scottish equivalent of our Lord Chief Justice—will alone in future appoint the Scottish Court of Appeal. Quite clearly, in future appointments, particularly of those who occupy the onerous position of designated judges, there is a far greater risk than exists at present of the Prime Minister of the day saying to his or her Lord
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Chancellor, "Is he one of us?" or words to the like effect.
I accordingly agree that urgent consideration be given to the creation of an independent judicial commission to recommend candidates for appointment to the senior judiciary and that provision is made restricting government support to a candidate from among those so recommended. Thus we may be able to ensure that politics play no part in the search for those who have the appropriate competence, integrity and independence of mind to qualify for the appointments.
Among the many undesirable features of the American system for the administration of justice which this proposed legislation will undoubtedly impose on the United Kingdom, political appointees as judges is the most objectionable. We need to take urgent steps now to ensure that this does not happen.
Lord Boyd-Carpenter: My Lords, it has been apparent for some sittings of the House that the noble and learned Lord, Lord Ackner, is able to restrain his enthusiasm for the Bill within the limits of decorum. I am not sure that he succeeded—to my mind he did not succeed at all—in establishing that because of that it was necessary to introduce this drastic change in the system of appointing the judiciary. Moreover, the noble and learned Lord did not touch on what seems to be essential in the present system and which would be largely destroyed if the proposals of the amendment were accepted. I refer to the accountability to the public and to Parliament of those who advise the Sovereign on the appointment of the higher judiciary; the noble and learned Lord the Lord Chancellor in respect of some appontments and my right honourable friend the Prime Minister in respect of others.
If either of those distinguished persons does what the noble and learned Lord, Lord Ackner, seems to fear and makes for political or any other reason unworthy appointments or unworthy recommendations for appointment to the Sovereign, he or she will then have to answer under the present system to your Lordships' House and to another place. That is a serious responsibility. The suggestion that an appointment to one of the great judicial offices had been made for unworthy, inappropriate or inadequate reasons would be a most damaging matter for the Ministers concerned, and, even if they felt tempted to make such an appointment, would cause them to avoid it.
If this House and another place were to adopt the proposals in the amendment, both my noble and learned friend the Lord Chancellor and my right honourable friend the Prime Minister could say, "I agree that it was not a very good appointment but it was recommended by this distinguished and rather large body by which I am bound. Therefore I am sorry. I would have made another appointment but I could not do so. You cannot hold me accountable".
Lord Rawlinson of Ewell: My Lords, the noble Lord has not read the amendment.
Lord Boyd-Carpenter: My Lords, my noble and learned friend is always anxious to jump up behind

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me. I must say that his physical agility fills me with admiration. I have in fact read the amendment with some care. I have had plenty of time to do so. That is what the position under the amendment would be whether or not the noble and learned Lord thinks it would be the position. That would be the position as I read it. I hope therefore that the House will not accept the amendment.
Moreover, it has often been said that the proof of the pudding is in the eating. It cannot be disputed that our present system works extremely well. I am perhaps freer to say this than most of those who have taken part in the debate, but the holders of high judicial office are of the highest quality and calibre. I see no reason to believe that the changes being introduced in the Bill will alter the effect. If the gloomy prognostications of the noble and learned Lord, Lord Ackner, were borne out and unworthy appointments were to be made, there would be a case for looking for a system, although I hope for a system less cumbrous and elaborate than that set out in the amendment. But as at present the system produces such admirable results, I point out to the House the sense of the old comment "Why not leave it alone?"
Lord Donaldson of Lymington: My Lords, I wish to make only one comment save to say that the present system works extremely well. In talking to people, I have heard it said that no doubt the Lord Chancellor consults the judges. Talking to them further, I have the impression that they think the Lord Chancellor may perhaps have a word with a judge in the smoking room and then have a word with another judge. It is believed that he consults the senior judges in that way. I am sure that the noble and learned Lord the Lord Chancellor would not mind me saying that that is not the position.
There is in fact a round table conference between the Lord Chancellor, the four designated judges and the senior presiding judge. In the eight years when I have been involved in those conferences I have never known the Lord Chancellor to advise Her Majesty, in the case of a High Court judge, or to advise the Prime Minister in order that the Prime Minister might advise Her Majesty, on a name that did not have the unanimous support of all five judges taking part in that consultation. That is not the limitation of the consultative process which has been set out in part in the document which the noble and learned Lord, Lord Hailsham, published as the way judicial appointments were made. It has been expanded a good deal since then in the form of gathering in further and better information.
The heart of the matter is the round table conference. I should not like it to be thought that the consultation which takes place is in any way casual although the ultimate responsibility and the only accountability must remain that of the Lord Chancellor and the Prime Minister.
Lord Campbell of Alloway: My Lords, before the noble and learned Lord sits down, does this apply to the appointments of silk?
Lord Donaldson of Lymington: My Lords, the answer which the noble and learned Lord the Lord Chancellor could also give is yes.
6.45 p.m.
The Lord Chancellor: My Lords, we have a system for appointing silks and appointing judges which I have inherited. It was described by my noble and learned friend Lord Hailsham when he was Lord Chancellor in a booklet issued during his distinguished tenure of the Woolsack. I have sought to follow the principles laid down there. There is nothing clandestine about the matter in the sense that what occurs is set out and is well known. I have ventured to broaden to some extent those consulted, for example, by formally including the chairman of the Bar in the consultation. There is always a little difficulty in relation to individuals. We have devised a system under which, as the chairman of the Bar would very often, if not universally, be a candidate himself for a vacancy in the High Court, he gives views on a variety of candidates by reference to a list.
The fundamental principle of the present system is the personal accountability of one person for the recommendation to Her Majesty. It is fair to point out that the appointments are made by Her Majesty the Queen as the head of state. That appears to be the appropriate way to appoint judges. So with regard to the senior judiciary, it is recommendation that is in question.
As my noble and learned friend the Master of the Rolls has said, these consultations are by no means casual or perfunctory. Those who have taken part in them—and the officials of the Bar Council, the leaders of the circuit and the judges who are consulted know this—recognise that these consultations are quite elaborate. I insist on seeing the results of written consultations. We also have the opportunity of full meetings of the kind described by my noble and learned friend the Master of the Rolls.
I have made it clear since I have been in office that any improvement on the present system to improve its acceptability, the extent of its cover, and so on, would receive the closest consideration from me. When I read what the General Council of the Bar said in its response I took up with it the possibility of further improvements to the system. Some practical suggestions have been made which I am considering. In fairness to the General Council of the Bar, I should say that perhaps my noble friend Lord Campbell of Alloway misunderstood what the Bar had suggested in its response to the Green Papers. It did not suggest that some distinguished members of the Bar should be advising the Lord Chancellor on the appointment of judges; it suggested that a distinguished committee, including as many former Lord Chancellors and privy councillors, who were not Lord Chancellors, as we could gather, would review the present system to see whether a better one could be devised. It is only fair to say that in case there should be any misunderstanding about the matter.
I responded to that suggestion by saying that I would be happy to consider any improvement in the

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system. I am aware that my noble and learned friends the heads of division who participate with me in these discussions would also welcome any improvement which anyone wishes to suggest. But I should like to respond to a remark made by my noble and learned friend Lord Ackner. I gained the impression that he was perhaps referring to a particular holder of the office of Prime Minister. I should say to him that certainly so far as I know—and I am sure that my noble and learned friend Lord Hailsham would confirm this—the only consideration which is entertained at that level at present is whether the person is the best person available for the appointment in question, and nothing else. I am sure that that is a principle that my noble and learned friend adopted when he was Lord Chancellor. I believe that it is a principle which all Lord Chancellors in recent times have upheld. I refer especially to Lord Elwyn-Jones who we have sadly missed during these proceedings, Lord Gardiner and many others. The best person for the job on the particular occasion is chosen. Of course, it is a matter of judgment and not everyone may agree. However, the ultimate responsibility for the judgment is with the Minister who is responsible for making the recommendation. I believe that that is a responsibility which all those who have carried it have found to be very important and very serious, and they have discharged it honestly to the best of their ability.
I think that a good amount of the basic thinking in the amendment of my noble and learned friend Lord Rawlinson is already incorporated in the machinery which we have. It is set out as publicly as one can set it out in the booklet to which I referred. By the very nature of things, when you are considering personal qualities in individuals such consultations must be private. I cannot imagine any situation in which the respective merits of individual candidates will be discussed publicly. I find that very hard to accept, unless my noble and learned friend Lord Rawlinson somewhat uncharacteristically is in this respect thinking of the American system of having credentials examined in public. I hardly think so.
However, if he does not wish to go down that road, I believe that the consultations—that is, the actual discussions about individuals—will always have to take place in private. What is public is the understanding of the method. I have always been willing to explain it in as much detail as I can to any person who has asked me to do so, in supplement to the booklet produced by my noble and learned friend Lord Hailsham.
As the matter has now been raised, I think it only right on this occasion that I should pay tribute to those who so willingly give so much of their time to help the Lord Chancellor and, where it is appropriate, the Prime Minister, in getting suitable candidates. People put a great deal of effort into that and put much thought into their comments about individuals. Nothing extra is received for that service—a service which over the years has proved to be quite onerous. Indeed, as regards silk appointments, it is certainly quite onerous. As my noble and learned friend the Master of the Rolls
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knows, when there are many candidates to be considered each one has to be commented upon. I have to study all the comments which have been made and reach a conclusion. Therefore, those who contribute to the process by giving their comments are to be acknowledged and thanked.
I believe that the success of the present system is in no small measure due to the conscientious way in which such comments are afforded by those having the responsibility. I hope, therefore, that my noble and learned friend will feel that the purpose of his amendment has been served and that he will agree to withdraw it.
Lord Ackner: My Lords, before my noble and learned friend sits down perhaps he will allow me to disabuse him of a misunderstanding. I carefully referred to a future Prime Minister of the day and, so as not to be thought in any way to anticipate events, I said, "his or her".
The Lord Chancellor: My Lords, I am greatly obliged to my noble and learned friend. However, I was thinking more of the phrase he used to describe the question that that Prime Minister might ask. That raised a possibility in my mind.
Lord Ackner: My Lords, I hope that my noble and learned friend will forgive me if I point out that I added to that phrase, "or words to the like effect" so as to make quite sure that that comment could not validly be made.
Lord Rawlinson of Ewell: My Lords, I think that we can acquit my noble and learned friend of trying to impugn any person. I am sure that he did not intend to do so. I certainly did not read his remarks in that way.
When I moved the amendment I said that I was not wedded to the wording; I said that I wanted a discussion on the general principle about a judicial apointments commission. If I may say so, I knew well that the persons listed in the amendment are usually—that is, at least most of them—those whom the Lord Chancellor of the day consults. Such persons are named in subsection (2) of the proposed new clause. The amendment then states that the powers should only be exercised after consultation with the commission.
My noble friend Lord Boyd-Carpenter seemed to think that I had put matters in such a way that a Minister would be able to go to the House of Commons or to this House and say, "Well, I am sorry, this awful person was absolutely forced upon me". I do not think that subsection (6) shows that that would be so. I see that my noble friend wishes to intervene and I am happy to allow him to do so.
Lord Boyd-Carpenter: My Lords, if my noble and learned friend looks at subsection (6) to which he has invited your Lordships' attention, he will see that if someone is appointed who has not been recommended by the commission that information has to be published. Does he really think that anyone would accept high judicial office on the basis that

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the fact that he was not the choice of the commission would be published? It amounts to a practical veto and he knows that as well as I do.
Lord Rawlinson of Ewell: Of course, my Lords; I agree. When I moved the amendment I said that I was not wedded to the wording. The idea was that a name should be recommended to the Lord Chancellor or the Prime Minister just as is done in respect of the bishops in the Church of England. That is what I had in mind. I was merely seeking to bring the matter before the House so that it could be discussed. My noble and learned friend the Master of the Rolls has told us what happens and my noble and learned friend the Lord Chancellor is content that this should be made public. However, it should be put in public form that there is this consultation. That would be much better. There should not be this kind of mystique attached to the appointment of Law Officers. In fact, going back to the days of wives of Tudor monarchs and so on, we should have some modern, up-to-date and sensible system. I believe that I am thinking of Henry III—
Lord Hailsham of Saint Marylebone: He was not a Tudor!
Lord Rawlinson of Ewell: My Lords, as it concerned a wife it could not be a he, so the issue was altogether very confusing.
Lord Hailsham of Saint Marylebone: Yes, my Lords, it was the wife of Henry III.
Lord Rawlinson of Ewell: My Lords, we must have a practical modern system. Therefore a judicial apointments commission to assist the Lord Chancellor would be appropriate. The people who sit around that table should be known to the public. That would give a much better perception than having all this hugger-mugger business which is always associated with the law. Let us move into the 21st century. Finally, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Hacking: My Lords, before the Government Front Bench spokesman puts the Motion for the proceedings on the Bill to be adjourned, perhaps I may briefly intervene. There is a point that I wish to raise. I have sent a note to the noble Lord the Leader of the House on the subject. There are 96 amendments on the Marshalled List. Thus far we have dealt with 10 of them. The time is now seven o'clock in the evening. Could we not, therefore, before we return to the Report stage after the dinner break, consider whether we shall be able to deal with all the remaining amendments this evening? If it is thought that we shall not be able to do so, perhaps we can agree to a suitable cut-off point?
Viscount Ullswater: My Lords, I shall certainly draw the remarks of the noble Lord to the attention of my noble friend the Leader of the House. In the meantime I beg to move that further consideration
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on Report be now adjourned. In moving the Motion I suggest that the Report stage resume at 8 p.m.
Moved accordingly, and, on Question, Motion agreed to.

Gaming (Amendment) Bill [H.L.]
7 p.m.
Lord Allen of Abbeydale: My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
Moved, That the House do now resolve itself into Committee.—(Lord Allen of Abbeydale.)
On Question, Motion agreed to.
House in Committee accordingly.
[THE DEPUTY CHAIRMAN OF COMMITTEES (Lord Murton of Lindisfarne.) in the Chair.]
Clauses 1 and 2 agreed to.
Lord Allen of Abbeydale Lord Allen of Abbeydale moved Amendment No. 1:
In the schedule, page 4, line 1, after ("meaning") insert ("—(a) in England and Wales,").
The noble Lord said: In moving Amendment No. 1 I should like to speak at the same time to Amendment No. 2. I gave warning at Second Reading that I should be proposing amendments to meet some Scottish matters. The amendments are all purely technical and do not affect the basic provisions of the Bill.
The first and second amendments are needed for the following reasons. Section 43 of the Gaming Act 1968 empowers the Gaming Board to appoint inspectors and gives them rights of entry and inspection in relation to casinos and bingo clubs. Those powers of inspection extend to any document which may be found on licensed premises, but the term "document" is not at present defined. Paragraph 2(7) of the schedule to the Bill seeks to rectify that omission and thereby ensure that there can be no doubt about the extent of the gaming inspectors' powers.
The Bill adopts the definition of "document" contained in the Civil Evidence Act 1968. We have now spotted that that means that the definition applies only to England and Wales. In Scottish law the definition of a "document" is to be found in the Civil Evidence (Scotland) Act 1988. Although the definition of a "document" in those two Acts is at present virtually the same, whatever might happen in the future, clearly there ought to be a reference in the Bill to the Scottish provision. The amendment and Amendment No. 2 will secure that. I beg to move.
Viscount Ullswater: We welcome these technical amendments which, as the noble Lord, Lord Allen of Abbeydale, has said, simply take account of the fact that the Scots have their own, albeit very similar, definition of a "document".
On Question, amendment agreed to.
Lord Allen of Abbeydale Lord Allen of Abbeydale moved Amendment No. 2:
In the schedule, page 4, line 3, after ("Act") insert ("; and
(b) In Scotland, as in the Civil Evidence (Scotland) Act 1988 and any reference to a copy of a document shall be construed in accordance with section 6(2) of that Act").
On Question, amendment agreed to.
Lord Allen of Abbeydale Lord Allen of Abbeydale moved Amendment No. 3:
In the Schedule, page 6, line 19 at end insert—
("8A. In paragraph 63(2), for the words "liable under section 21 of the Licensing (Scotland) Act 1959 to" shall be substituted the word "who".").
The noble Lord said: The amendment seeks to remove a reference to a repealed Scottish enactment in paragraph 63(2) of the second schedule to the Gaming Act 1986. That paragraph provides, in Scotland, for gaming licence fees received by the licensing authority to be paid over to the local authority liable under Section 21 of the Licensing (Scotland) Act 1959 to defray the expenses of the licensing authority. However, the 1959 Act was repealed by the Licensing (Scotland) Act 1976 and unfortunately that Act failed to pick up the consequential amendment to the Gaming Act. The amendment seeks simply to put right that oversight. I beg to move.
Viscount Ullswater: Again, we welcome this minor amendment which seeks simply to remove a reference in the Gaming Act 1968 to a repealed Scottish statute.
On Question, amendment agreed to.
Schedule, as amended, agreed to.
House resumed: Bill reported with amendments.
Viscount Long: My Lords, I beg to move that the House do now adjourn during pleasure until 8 p.m.
Moved accordingly, and, on Question, Motion agreed to.
[The Sitting was suspended from 7.6 to 8 p.m.]

Courts and Legal Services Bill [H.L.]
Consideration of amendments on Report resumed.
Clause 52 [Qualification for judicial and certain other appointments]:
The Lord Chancellor: My Lords, I now call Amendment No. 189 standing in the name of the noble Lord, Lord Mishcon.
Lord Hacking: My Lords, before the noble Lord, Lord Mishcon, speaks to his amendment, I should say that just before the House resumed I raised my concern about the amount of business that we still have to accomplish tonight. As I told your Lordships, we have 96 amendments to consider altogether but so far we have only considered 10 of them. There is an amendment standing in my name which particularly concerns me. It is an amendment to
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Clause 77 and I believe it to be important. It certainly affects thousands of persons. The amendment concerns the issue of writs. It was considered at 1.30 a.m. in Committee.
Although your Lordships are sitting long hours the noble and learned Lord and his officials clearly read Hansard. It has been most refreshing to find the noble and learned Lord coming back with a great number of amendments on Report. He has done so because he and his officials have carefully read Hansard and have studied the points that noble Lords have made. The problem about speaking late in your Lordships' House is not only the poor attendance but also the burden that long arguments impose on noble Lords at 1.30 or two o'clock in the morning. However, it is important for the noble and learned Lord and his officials to consider that longer argument and to consider the position on the clause before they make a decision in readiness for the next stage of the Bill. It is for that additional reason that I would find it enormously helpful for the House to reach a decision on how long it will sit tonight. I am expressly asking the noble Lord the Leader of the House to state that we should have a cut-off point and that we should have another day on Report.
Lord Belstead: My Lords, the noble Lord, Lord Hacking, has been an assiduous attender at all stages of the Bill. I must apologise that I was not present in the House just before we broke for dinner when I think the noble Lord wished to raise this same point. I have one simple point to make. Earlier on in the proceedings on this extremely important Bill I put it to the House that it is for the convenience of Members of the House if they know exactly what part of the Bill we shall reach. The reason for that is that noble Lords want to know what will happen on the next sitting day. Today is a Thursday and the next sitting day will be a Monday. It is important for noble Lords who are involved in next Monday's business to know that the business they believed was going to take place on that day will take place.
It is not for any hidebound reason therefore that the Government try to reach agreements through the usual channels as regards how far we shall proceed. I add to that a second point which is that it is usual, although not an inveterate rule, that the House takes half the period of time on Report compared with the period of time taken in Committee. As I said earlier today, that is why we hoped we would finish in three days on Report the business that lasted six days in Committee. I still hope that we shall reach the end of the Bill this evening.
Lord Simon of Glaisdale: My Lords, the noble Lord said that it is convenient to know how far we are to proceed. That is true, provided that reasonable targets are set through the usual channels. We can generally rely on the usual channels to protect the interests of Back-Benchers and Cross-Benchers. However, that procedure has not been entirely successful on this Bill. There have been repeated protests that we were being hustled through it.
My other point is that time is not really saved by overloading the business before the House. Last week for example, my noble and learned friend Lord

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Ackner rightly withdrew an important amendment which could not possibly be properly discussed in the early hours of the morning. That merely means that it will be revived on Third Reading which will obviously take much more than one day.
Further, when the noble Lord said that the business on Report should take half the time of that in Committee, that does not take sufficient note of two matters. First, we had an exceptionally heavy Committee stage on this Bill. As I pointed out earlier, on only one day did we rise before 10.30 p.m. On two days we continued past midnight. Secondly, the Report stage of this Bill is exceptionally heavy. I beg the noble Lord the Chief Whip to be patient for a moment and I shall try to bring my remarks to a close. He frightens me when he glares at me and then at the clock.
This Bill is exceptional in that the Government themselves have tabled 150 amendments on Report. Most of the amendments were tabled just before we were due to meet. There have been about six new clauses and one new schedule. That is not at all a usual Report stage. Therefore, I beg the noble Lord the Leader of the House to look at the groupings list and to realise that we are only half-way down the left-hand column. It is unreal to expect us to finish the Report stage of this Bill today. That certainly cannot be properly done. I doubt whether it can be done at all except by sitting into the early hours.
Lord Belstead: My Lords, with the leave of the House, the noble and learned Lord, Lord Simon of Glaisdale, has, with his customary courtesy, consistently brought to my attention his concern about the number of days which have been allocated to the Bill. The noble and learned Lord has always done that with his customary courtesy, usually through a letter followed by a few words. I thank the noble and learned Lord for the way in which he has conducted negotiations on the timing. However, the noble and learned Lord will forgive me when I say that the previous occasion that this occurred was last Thursday evening when we were considering the amendment which formed the first amendment that the House considered today. At 10.45 p.m. the noble and learned Lord said during his remarks:
"In view of the fact that so many amendments have not been moved and have been postponed virtually until Third Reading, I do not think that we shall have much difficulty in completing the business on the third day of Report. However, since your Lordships and not the Government's business managers are in control of your business, I submit that noble Lords should say that at a quarter to eleven enough is enough".—[Official Report, 22/2/89; col. 497.]
With those words of the noble and learned Lord I rose to my feet and said that I also thought enough was enough. I think we should now proceed.
Lord Mishcon Lord Mishcon moved Amendment No. 189:
Page 40, line 9, leave out ("has a 10 year") and insert ("is a solicitor or barrister of 10 years standing with a").
The noble Lord said: My Lords, without the same fear in looking at the noble Lord the Chief Whip as quite obviously the noble and learned Lord, Lord Simon of Glaisdale, has, I shall move the amendment standing in my name and that of my noble friend Lord Irvine of Lairg.
I hope I may remind your Lordships, if your Lordships need any reminder, that Section 10(3) of the Supreme Court Act 1981 provided, in regard to the appointment of a puisne judge, that he had to be a barrister of at least 10 years' standing. Your Lordships have heard on a previous amendment of the great care that is taken in considering such an important appointment before making a recommendation to Her Majesty. Having heard the noble and learned Lord's explanation of that procedure, which was preceded by the explanation given by the noble and learned Lord, Lord Hailsham, your Lordships can be assured that no wrong appointment is likely to get through the procedure of which we have heard.
This Bill, because of the right of audience given to a solicitor who has a High Court qualification as defined in this Bill, has amended that old provision. It has provided that a solicitor who has a 10-year High Court qualification within the meaning of Clause 52 of this Bill can also be appointed a puisne judge of the High Court. We attempted at Committee stage to say that surely that was wrong. Surely it ought to be amended by providing, in the same way as one had previously in the case of a barrister, that it should be a solicitor of 10 years' standing. The suggestion that it should be so amended was not acceptable to the noble and learned Lord, as I understood him.
I believe that the reason that the noble and learned Lord could not accept that amendment was because he had in his mind, possibly rightly, that before one could become a High Court judge it was necessary to have the High Court qualification. In other words, the permission, as a result of certain tests, to be an advocate in the High Court—even though one was not a barrister if one was a solicitor so qualified. We have now come forward with the amendment that provides that there has to be a High Court qualification, but please not for 10 years. It should be a solicitor of 10 years' standing who comes for consideration after having had a High Court qualification.
I hope that your Lordships and the noble and learned Lord will agree that, especially—and I repeat—because of the sifting process, only a solicitor of appropriate quality and professional standing will ever be appointed. I am sure that we do not want to deprive the noble and learned Lord of being able to consider for such an appointment somebody who has a High Court qualification and who had also been a solicitor for a period of 10 years. I beg to move.
Lord Hacking: My Lords, I should like to support this amendment, but on a slightly wider base. The objective for all judicial appointments—not simply High Court judicial appointments, which this amendment addresses—must be that the best qualified persons are appointed. Best qualified in terms of judicial ability, independence, integrity, sound judgment, temperament, and so forth. The rights of audience qualification is, I concede, relevant for a judge conducting trials. I wonder whether it is necessary to have a High Court advocacy qualification, and I wonder whether

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perhaps a crown court advocacy qualification would not be sufficient.
If your Lordships consider the higher parts of the Supreme Court—the Court of Appeal and the House of Lords—I would submit that it is not an essential qualification. As the noble and learned Lord the Master of the Rolls has said, they are performing a different judicial function. Of course matters of evidence and procedures are considered by appellate courts, but there is no reason why a judge of the right ability cannot decide issues concerning evidence and procedure while sitting in an appellate court as he decides other issues of law and procedure.
Therefore, I consider it a pity that the noble and learned Lord has not kept himself free to appoint directly to the Supreme Court at all levels lawyers—and I emphasise "lawyers" in support of the amendment that we are about to hear from the noble and learned Lord, Lord Ackner—of all qualities, distinguished academicians, and distinguished solicitors who do not necessarily possess a High Court qualification.
When I was at the Bar I appeared before both solicitors and barristers sitting as recorders who did not have advocacy experience, let alone any right of audience qualification, before the courts over which they were presiding. I refer to criminal trials before the Crown Courts. I am happy to tell your Lordships that, guided by helpful members of the Bar, they got on very nicely. Indeed one of those recorders later became the Attorney-General and a respected Member of your Lordships' House.
I ask the noble and learned Lord, in considering this amendment, to take a fresh view, and not to make rights of audience a qualification or a prerequisite for a judicial appointment. He should keep himself free to appoint the best candidate for the job, not on an interim but on a permanent basis. I believe that the United States Supreme Court is universally respected. Some of the candidates' appointments have been the subject of controversy, but the court itself is highly respected not only in the United States of America but outside. That court successfully appoints judges who have no advocacy experience at all.
8.15 p.m.
Lord Coleraine: My Lords, I also wish to support Lord Mishcon's amendment, for two reasons. First, it seems to be recognised under Section 10 of the Supreme Court Act that what we are talking about is a necessary, but in no sense a sufficient, condition for appointment to the High Court. Clearly no one in normal circumstances is going to appoint a barrister to the High Court who has 10 years' call only. On that ground alone, I should have thought that my noble and learned friend, who has again and again expressed his interest in the possibility of all sorts of persons being available whether it is for advocacy or for the Bench, would see the merit of this amendment.
The second point is that a barrister has the necessary qualification of the right of audience in the High Court from call. A solicitor, under the
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clause as it is drafted, has to acquire the right of audience and then wait for 10 years before he is eligible to be appointed to the High Court. It is likely to be the case that solicitor advocates will develop slowly. It will probably be the case that they are in middle life before, having been advocates of experience in the county court, they wish to obtain the necessary qualifications for the Haigh Court.
This means that you are going to get the situation where the solicitor concerned is going to be perhaps 40 or 50 before he even thinks about obtaining the High Court qualification. It is particularly in relation to that case that this amendment should be favourably considered. These are going to be solicitors of great experience of advocacy, and it would be a pity if they were then compelled to wait 10 years, and if the Lord Chancellor was compelled to wait 10 years before being able to consider them for the High Court Bench.
While I am on my feet, there is one other point that I would ask my noble and learned friend. In discussions in Committee, the particular position of transitional arrangements for very experienced solicitors at the present time was raised. It seemed to the Committee that there might be a case for such solicitors to be raised to the Bench without the need to have the formal qualifications envisaged by the Bill; the formal right of audience. My noble and learned friend said that he would take this point away and think about it, and I wonder whether he is able to tell the House his present views.
Lord Ackner: My Lords, it has been a great privilege on occasions to support amendments moved by the noble Lord, Lord Mishcon, and it has been an equally great pleasure on occasions to find that he has supported some of mine. I regret that I do not support the amendment, because I have understood it to be a theme of the Bill that experience in advocacy is the criterion for appointment to the Bench. I do not mean by that that the outstanding advocate necessarily makes the best or even the appropriate judge; but the experienced advocate is the person who, I should have suggested with respect, consistently requires the knowledge of court procedure and activity if he is to perform higher judicial functions appropriately.
My second point relates to the observation made by the noble Lord, Lord Hacking. He is wrong, in my respectful submission, to think that one can jump straight into the Appellate Court and proceed to dispense judicial qualities. It has been for many, many years the principle that no judge goes to the Court of Appeal unless he has had a period as a trial judge. He does not understand, sympathise with or appreciate the problems of a High Court judge as a trial judge in the Appeal Division unless he has first experienced them himself. That is the policy which to my knowledge has been applied consistently. The suggestion that we put into the Appellate Court solicitors of great, perhaps commercial practice or whatever it may be, is a recipe for disaster, as it would be if we put professors directly into the Appellate Court. It is essential that one understands and has experienced the problems of trial judges before one sits in judgment upon them.
The Lord Chancellor: My Lords, I undertook in Committee, as my noble friend Lord Coleraine has said, to consider the position of an experienced solicitor who obtains the High Court qualification. I have sought to deal with that in Amendment No. 224A which introduces the transitional provisions. In the second part of that amendment relating to the judicial appointment of solicitors I have provided that a solicitor who was admitted before the commencement of the Section 28 system and who is given afterwards a right of audience, will be treated as having been given that right of audience on the day of his admission so that he will qualify.
The noble Lord, Lord Mishcon, was concerned in Committee with much the same problem with which the amendment is concerned. The result would be that it would not necessarily be 10 years before a solicitor would be qualified to go to the High Court by that route. If he obtained a High Court qualification and had been admitted some time previously, that period would qualify.
So far as concerns the transitional arrangements, the point that the noble Lord puts in his amendment is met. On the more general aspect of the matter, my noble and learned friend Lord Ackner has, with respect, accurately summarised what I believe to be the position: that it is advocacy experience, with an appropriate right before the court, that should justify one criterion for eligibility for appointment. The other is, as I have said before, experience in a lower court. We shall come to an amendment on that point to be moved later by the noble Lord, Lord Mishcon.
The point that is made in the amendment is dealt with in a transitional way in the later amendment to which I have referred. My noble friend Lord Coleraine mentioned the same point. On the point made by the noble Lord, Lord Hacking, I believe that advocacy rights should be the criterion for direct appointment, as it were, to the court. I also believe that experience of a lower court is the proper criterion for appointment to a higher court. In recent years, with outstanding exceptions only, appointments have been made on that basis to the Court of Appeal and the House of Lords. I have no mind, as at present advised, to believe that it would be right to depart from that principle upon which the criteria laid down in the Bill are based. I hope that in the light of that explanation the noble Lord may feel able to withdraw the amendment.
Lord Mishcon: My Lords, I am deeply grateful to the noble and learned Lord the Lord Chancellor. I wonder whether he would help me to see that I have correctly understood the position. Those of us who are pleading the cause are all grateful to him. We are doing it in the interests of the status of the High Court Bench apart from those of the profession to which I have the honour to belong.
As I understand it, Amendment No. 224A will cover the transitional period but will still make it obligatory upon a solicitor, who does not come within those transitional provisions, to have 10 years' High Court qualifications before he becomes a High Court judge. That is the point that I am trying to make in the amendment. We have not yet come to the transitional period because we have not yet
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reached Amendment No. 224A. I was going to express my gratitude then to the noble and learned Lord for at least covering that position.
I cannot for the life of me see the logic of the point. Again, I should be grateful if, before I sit down, the noble and learned Lord will tell me whether I am wrong. We have been told before that if there is a question of the Law Society or the Bar Council being able to make rules they will make them, but at least let us give them complete flexibility in the Bill. Whether it is a question with which we dealt earlier in regard to multi-practices—whether national or otherwise—let us give them flexibility and they will come to the correct professional decision, and so all will be well; but let us have flexibility.
The fact that someone has held a High Court qualification for 10 years will not put him into the position of being a puisne judge. All one does is provide the flexibility. Where one has a brilliant solicitor (a fine lawyer) who decides to apply for the High Court qualfication and obtains it, let us say, five years before the 10 years expires (he has not held it for the 10 years) he has to be put back for consideration as a High Court judge because he has not had the necessary tenure of the High Court qualification. He will never be appointed unless the noble and learned Lord and others whom he consults feel that his advocacy is of the right quality but that his knowledge of High Court procedure is not sufficient although he may have shown two years of brilliance as possibly an F. E. Smith on my side of the profession might have shown in a matter of months let alone years, and a Marshall Hall on my side of the profession might have shown in a couple of years let alone 10 years.
The point is, let us give the flexibility for which the noble and learned Lord consistently asks. Of course that person will not be appointed if the noble and learned Lord, his successors on the Woolsack, and his advisers do not take the view that he is sufficiently qualified. Why close the door to someone who could decorate the Bench and be a worthy successor of a fine tradition on the High Court Bench? It seems so foolish to close the door when it is so easy to open it and to ensure that no one creeps through who is not worthy.
I ask the noble and learned Lord, first, whether my understanding is right; and, secondly, on the basis of what I have said, whether he will at least reconsider the position.
The Lord Chancellor: My Lords, with leave, the situation that I contemplate is that special requirements are made in the transitional situation. We shall come to that point later. On the general basis, where there is no special arrangement of a transitional kind, a necessary qualification—not necessarily sufficient, but a necessary qualification—is a certain amount of experience as an advocate in the court to which the person is qualified to be appointed. For the High Court, I thought that it was reasonable to set that at 10 years. The brilliant solicitor, of whom I hope there will be many, will therefore qualify for the High Court Bench once he has displayed his brilliance as a High

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Court advocate for the minimum period of 10 years. That strikes me as reasonable.
A period of qualification has always been part of that aspect of qualification. That appears to be a reasonable period in this case, given that it is a High Court appointment. The solicitor who holds it would be eligible for consideration after 10 years in that position. That is the kind of flexibility that I seek within the limits of the necessary experience which I regard as a qualification. I cannot go further on that aspect, and I hope that the noble Lord will feel that that is a reasonable principle to adopt.
Lord Mishcon: My Lords, I know that the noble and learned Lord will forgive me if I do not say that that is a reasonable proposition. It would be most unreasonable to try to test the opinion of the House with the numbers that we have available and at this time. It is only for that reason that I beg leave to withdraw the amendnment.
Amendment, by leave, withdrawn.
8.30 p.m.
Lord Ackner Lord Ackner moved Amendment No. 190:
Page 40, line 16, at end insert—
("() Notwithstanding anything in this or any other Act, a person shall not be qualified for appointment—
(a) as a Lord Justice of Appeal, a puisne judge of the High Court or a Circuit judge; or
(b) as a Lord of Appeal in Ordinary by virtue of a Supreme Court qualification,
unless he is or has been either a barrister or a solicitor.")
The noble and learned Lord said: My Lords, the purpose of the amendment is to excise from the Bill a fundamental aberration. In case it may be thought that I am transgressing the In Re Mishcon rule that moderation must always prevail, I hasten to add that I use the word strictly in the astrological sense; that is, an apparent displacement of a star.
Unlike his counterpart north of the Border, who has not encumbered the Scottish Bill with this grotesque clause and accompanying Schedule 8, my noble and learned friend the Lord Chancellor has wandered seriously off course. Under Clause 52 and Schedule 8, my noble and learned friend seeks to obtain approval to dilute the quality of the future judiciary by appointing laymen to their ranks from the Law Lords downwards. Since in the debate on the final day—the sixth day—of the Committee stage of the Bill, as we approached midnight, my noble and learned friend the Lord Chancellor said (at col. 634) that he was not absolutely certain that he knew what I meant by "lay", I reiterate that it refers to those who are not lawyers; in other words, those who are neither barristers nor solicitors.
It has been an inherent part of my training as a lawyer to seek to support my submissions with authority. As a judge of the final Court of Appeal of the United Kingdom seeking to submit to noble Lords that the quality of the judiciary is not only vital to the administration of justice, but that it has achieved a high standing, I happily press before noble Lords a selection of authority which I am sure will command their respect.
The former Chief Justice of the United States, Mr. Justice Warren Burger, who retired only a few years ago, in a lecture given to the Fordham University Law School in New York a little over six years ago, referring to trials in England, said:
"Another difference is that judges of trial courts of general jurisdiction are selected entirely from the ranks of the ablest barristers. Thus there is little or no on-the-job learning for trial judges as is all too often the case in the United States courts, both State and Federal. Only with the highest qualifications can a trial advocate enter into the selection of English judges. As a result, an English trial is in the hands of three highly experienced litigation specialists who have a common professional background".
Later in the lecture he said:
"Every qualified observer of the English system with whom I have discussed this subject makes the same observation I have made, drawing on 20 years of rather close contact with the British system, namely that their trials are conducted in a fraction of the time we spend in the United States for comparable litigation. This is a generalisation that has a solid basis and can be readily documented … appeals are the exception".
Although relying on that quotation, I wish to make it crystal clear that, in the course of my submissions, I am focusing wholly upon laymen. If solicitors are to have rights of audience in the higher courts, clearly they should be entitled to qualify for appointment to the judiciary in those courts, given that they have appropriate experience and have achieved the appropriate competence.
My next authority is an eminent solicitor and a distinguished Member of this House who has graced debates on the Bill with his contributions, although sadly he is not in his usual place. I refer to the noble Lord, Lord Goodman, who, some 24 years ago, in an article in The Sunday Times, albeit devoted to the alleged desirability of fusion, said:
"We have a judiciary of great wisdom, great fairness of mind and absolute probity … It is to be doubted—and this is not a narrow chauvinistic claim—whether any country in the world possess better judges viewed over the whole range of our judicial system … The method of selection from a small elite of practitioners weighs the scales enormously in favour of our bench".
In an impressive maiden speech made on 7th April last year when the Government's Green Papers were debated, the noble Lord, Lord Rees-Mogg, said:
"The respect which our judicial system deservedly enjoys depends on the remarkable character of the independence of our judges. That character has been maintained over the centuries. It is drawn from the training and the culture of the British Bar. The structure of independent law depends on this House".—[Official Report, 7/4/89; col. 1322.]
My final quotation is from my noble and learned friend Lord Hailsham and can be found in the pamphlet on judicial appointments to which I believe reference has already been made tonight and which he issued some four years ago. He said:
"The quality of justice is largely determined by the quality of the judges".
Part II of the Bill, which we have debated at such length, dealt with rights of audience in Her Majesty's Courts. By now it will be fully appreciated, if it was not before, that one of the major proposals of the Government is that laymen, provided that they meet certain requirements, shall have rights of audience—the right to appear in all courts from the lowest to the highest. We all know that the Government have produced no evidence that there

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is any shortage of lawyers properly qualified to serve the public in all the courts in the land. Their proposals to extend rights of audience of solicitors are clearly designed to provide a yet further supply of advocates.
As I have already said, Clause 52 carries those radical proposals one stage further. It seeks to enable laymen who have achieved the appropriate rights of audience—the right to act as advocates in the appropriate courts—to become judges, again from the lowest to the highest courts. I venture to suggest once more that we shall hear no evidence that there is a shortage of properly qualified lawyers to act as judges. Once again, in extending to solicitors appointments to the judiciary in the higher courts, a new supply of judges will be made available.
Once more I anticipate that we shall hear no evidence that there is the slightest demand for lay judges beyond, of course, in the magistrates' court. It will no doubt be asked by my noble and learned friend the Lord Chancellor: why this anxiety about laymen? Why should it be anticipated that they will to any real extent be appointed? To those questions I would simply say that if that is so then why make provision for them at all? Why not follow the example of the new Scottish Bill and limit this reform to widening the field so as to enable laymen to be advocates and stop there?
Noble Lords will not, I hope, overlook that, although until now we have eschewed the continental system of the career judiciary, that is to be a thing of the past. I quote from last year's White Paper at paragraph 15.2:
"For these reasons the Green Papers proposed that all those who had held the appropriate advocacy qualifications for suitable lengths of time should be eligible for judicial appointments; and that the judges in a lower court should be eligible for promotion to a higher one on the basis of their judicial experience in the lower court".
There is no doubt that this Bill, when enacted, will achieve an enormous shift of power from the judiciary and the legal profession to the Executive. Many references have been made to the lay majority on the Lord Chancellor's advisory committee being but a cover for Civil Service control. These past references to the Executive and Civil Service control are given further stimulus by the provision which your Lordships will find in Schedule 8 at page 94 between lines 5 and 15. The Permanent Secretary to the Lord Chancellor, who is the permanent head of this immensely powerful department which I understand employs close on 10,000 persons, need no longer be a barrister of not less than 10 years' standing as provided by the Supreme Court Act 1981, Section 88 and Schedule 2. He may be a layman who has been an advocate for the appropriate period solely in the magistrates' court. But far worse, under paragraph 1(2) he need never have been near a court in his life since a civil servant who has served at least five years in that department qualifies.
By this Bill the legal profession is being de-professionalised, and I ask why. If it is not in pursuance of a subtle pursuit of power, there must be some other reason which distinguishes England from Scotland. I assume that my noble and learned friend the Lord Chancellor is certainly not of the opinion that
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Scottish laymen, appropriately qualified in the art of advocacy, are less fitted for judicial office than their English counterparts. Surely it cannot be political expediency that has caused this difference between the Scottish and the English legislation. I specially ask my noble and learned friend the Lord Chancellor to explain and give reasons for that striking difference.
My noble and learned friend Lord McCluskey, in the debate on the Second Reading of the Scottish Bill, referred to a lecture given by the distinguished American scholar Dean Griswoold who had considered the history of the introduction of laymen into the courts of the United States and the harm done by it. He quoted another distinguished academician Dean Pound who said:
"The harm which this de-professionalisation of the practice of the law did to the law, to legal procedure, to the ethics of practice and to forensic conduct has outlived the era in which it took place and still presents problems to the promoters of more effective administration of justice".
The author concluded his lecture by saying:
"You are fortunate in the United Kingdom that you have been spared such excesses of democratic zeal".
He had not anticipated our new forensic radicals. But then, radicals are sometimes defined as those with both feet firmly planted in the air. I beg to move.
8.45 p.m.
Lord Renton: My Lords, I wish to support the overwhelmingly powerful case put forward by the noble and learned Lord, Lord Ackner. To my mind what is at issue on this amendment is public confidence in the higher ranges of our judiciary. If it turned out that people were reaching that part of the judiciary without being capable of doing what is required of judges, it would indeed be a very bad day for justice in this country.
Perhaps I may speak from my minor judicial experience which goes back a very long time. I first sat as a deputy chairman of quarter sessions trying an indictable case with a jury as long ago as 1954. I had just become a Queen's Counsel. Since then I have sat as a recorder in two different boroughs, as a relief judge at the Old Bailey and as commissioner of assizes. In a long and varied life, including a long and varied practice at the Bar, sitting and having to sum up with a jury, especially in a case of any length, was the most exacting task that I ever had to perform.
I remind noble Lords of something which is not generally understood by those outside the legal profession. Most cases at any level that are tried within our judicial system involve far more issues of fact than of law. So it is not enough for somebody to be trained or to have acquired experience as a lawyer, even in a fairly wide and varied approach to the law. It is essential to have people who, as advocates, became accustomed to the vital task of the courts in sifting evidence and helping the issues of fact to be decided. So one must insist that whoever become judges, especially in the higher ranges, should have not only a good knowledge of the law but experience in the handling of evidence.
As I understand it, under the Bill as it stands it would be possible, for example, for a patent agent

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or a chartered accountant, who had established a great reputation within a very limited specialised range of case, which may have involved very little sifting of evidence, to become a High Court judge and go even higher. In my experience that would be wrong. That would be evidence of what the noble and learned Lord has called the fundamental aberration in this Bill.
I feel that in order that public confidence in the judiciary may be retained we have to be extremely careful where we tread. As a broad approach, in order to appease certain pressure groups in this country or people who hold ideological views, sometimes of the extreme right, to which I am sometimes said to belong, it would be a mistake to give in to the logical outcome of their opinions. It is far better that we should base our decisions upon experience in the administration of the law. That requires not only a knowledge of the law but ability in handling the evidence which leads to the issues of fact which involve so much time in court. That occurs not only at first instance. Those of us who have experience of it know perfectly well that in the Court of Appeal a great deal of time is necessarily spent not considering issues of law but whether in the court below the evidence had been properly presented, it may be to a jury, or that the learned judge, sitting without a jury, had drawn the right conclusion on questions of fact that arose.
The noble and learned Lord, Lord Ackner, has raised in my opinion one of the most important matters on the Bill. I hope that it will receive very sympathetic consideration from my noble and learned friend the Lord Chancellor.
Lord Benson: My Lords, I support the amendment. Unhappily this Bill has disregarded most of the nine principles upon which a profession should be based. But we shall have to reap that dreadful harvest in the years that follow.
The present issue before the House is of equal importance. It seeks to appoint laymen who have not been trained as lawyers or in the disciplines of justice to the highest judicial posts in the land. Care is of course taken in choosing appointments to the Bench. But one has only to look at the media of this country and the media in the British colony of Hong Kong to see that bad appointments are unfortunately made from time to time. That disturbs the public very much, and quite properly so, because once the public lose confidence in the judiciary and confidence in the dispensation of justice, democracy itself is at risk.
I suggest that that leads to two conclusions. First, there should be a much more professional system of sifting and assessing appointments to the Bench and the system that is adopted should be exposed to the public to give them confidence. Secondly, it would be extremely imprudent to appoint to a Bench enthusiastic but half-trained amateurs. It has long been a principle in this country that certain tasks are of such a quality that the only persons to be appointed to undertake them are those who spent their careers in perfecting a particular skill, subjecting themselves to rigorous training, and being subject to disciplines appropriate to their calling.
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In my own profession, unless someone has had long experience of practical training, has been subject to professional disciplines and to constant unending post-qualification experience and training, he is not permitted to sign a balance sheet. I know from practical experience that unless he has those qualifications he is not fitted to do so. Only trained chemists may dispense drugs; laymen may not do so. Only qualified doctors may write prescriptions; laymen may not do so. Only a pilot who has had the most rigorous intitial training, and continuous subsequent training, may fly passengers in an aircraft.
If that principle is to be abandoned, there must be some good reason for it. But no good reason so far has been advanced. What we are now doing in a very important area of our social behaviour is to appoint persons who have spent their lives in another occupation but have acquired a right, through having rights of audience qualification. I do not think that that is adequate or convincing. A lifetime in another occupation with an imperfect training in the law, imperfect knowledge of the law and sporadic appearances in court on highly specialised matters is unlikely to command the respect of the public nor yet to serve its purpose. What we are doing by this Bill is by statute degrading the Bench.
On my next point I speak with humility but nevertheless conviction. I have the privilege of sitting on the Council of Legal Education. I know from my experience there—despite the tremendous enthusiasm and all the factors that we now favour—the enormous problems of training people in the process of the law. But much more importantly than that, we have not yet begun to cover the huge field of post-qualification training and experience which is necessary if people are to perfect their performance in the law.
Anybody who has ever travelled abroad knows the respect with which the law has hitherto been regarded abroad. In commercial matters, it is often usual for disputes to be settled in English courts. It gives Britiain prestige and helps our invisible earnings. We shall never convince people from abroad that laymen should be permitted to attain the highest judicial offices at the end of their lives, having spent the whole of the first part of their careers in some quite different walk of life and without the basic training.
We are coming to the end of the Bill in this Chamber. It would be fitting if on this issue common sense were allowed to prevail and the amendment approved.
Baroness Elles: My Lords, perhaps I may make three very brief points. First, we have had many debates in your Lordships' House on training and education, and skill shortage. What has been evident from every side of the House, from almost every profession, has been that people have not been trained and educated in the profession which they have wished to exercise during their lifetime. In this clause we are flying in the face of evidence that young people in this country have not been trained sufficiently for the job that they wish to undertake

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during their lifetime. If one follows a generalist approach and one has lay people undertaking jobs which require highly technically qualified training, it seems that we are going totally against all the evidence that we have had in almost every debate over the past few months.
Secondly, I very often compare aspects of our problems in the United Kingdom with the position of other countries on the Continent, in particular in the European Community. I do not know of any other member state which does not have a career structure for judges. It starts at a very young age. People follow the career through in order to achieve the highest post in the judiciary of that country. We seem to be lowering the standard straight away by opening the gates to people who may be perfectly competent in their own sphere. Yet we expect them to do a job which is becoming more difficult. We know in this House the number of laws that are passed every year. A lawyer is expected to know the law of the day; and presumably as a judge one has to have a much wider knowledge. We are encouraging more specialist knowledge and finding more difficulties. The clause opens the gates to people who are neither competent nor trained and who will not have the respect of the public.
The consumers—people who need to go to court—and particularly those from the poorer sectors of the community want to be able to respect the person before whom they appear. They will expect that person to have training in the same way as they expect people in other professions to be trained. Unless my noble and learned friend can put forward a strong case in explaining why he believes that it is equally good to have someone with no training in the law in a High Court position, I shall support the amendment.
9 p.m.
Lord Hutchinson of Lullington: My Lords, I also support the amendment. I believe that all noble Lords found the contribution of the noble Lord, Lord Benson, to be most moving.
Noble Lords: Hear, hear.
Lord Hutchinson of Lullington: My Lords, we are talking about professionalism, which is the essence of the Bill. One of the reasons the Bill has aroused so much controversy is that it puts forward the notion that people can be qualified in little areas in the administration of the law and the achievement of justice; that they can be qualified in little areas, in little courts here, in little courts there; that they can be qualified in that part, qualified here, qualified there; and that they can then be given a certificate to carry out the administration of justice. That notion is totally offensive to the idea of professionalism.
One must be professional in order to understand the administration of justice. One needs the same kind of qualities in all the areas in which one operates. The idea that you can qualify for great offices in the administration of the law by having so
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many years' experience without professional training is repugnant to the whole idea of the administration of justice. I ask the noble and learned Lord to agree with the amendment because it goes to the root of the future administration of the law. The fact that you can qualify from experience in one aspect of the law in one set of courts does not mean that you are qualified to be a judge.
Everyone who is a professional knows that it is the years when one is young, when one trains, when one qualifies, when one is a student and then enters the profession, that one learns the standards and the fundamental basis on which one will practise in the future. If one does not have that professionalism one will never learn it.
Lord Hacking: My Lords, I rise to support the amendment because I am a solicitor in the Supreme Court and I wish the noble and learned Lord to know that my side of the profession is highly supportive of the amendment. I believe that I also speak for the noble Lord, Lord Mishcon. Furthermore, I believe that the amendment is consistent with the White Paper.
In his submissions the noble and learned Lord, Lord Ackner, cited paragraph 15.2 of the White Paper, but I wish to cite paragraph 15.1. The noble and learned Lord the Lord Chancellor stated:
"The Government regards it as a matter of great importance that the highest standards of intellect and character should be maintained in the appointments to the judiciary. The prospect of appointment to the Bench should also be an encouragement for the men and women who have made the law their career to reach the highest standards of service to the public. But that encouragement should be open to all if it is to operate as an effective stimulus to excellence in all parts of our legal system".
I believe that I need go no further.
The Lord Chancellor: My Lords, I am grateful to the noble Lord, Lord Hacking, for reading out that passage from the White Paper. It represents the policy on which this part of the Bill is based.
My noble and learned friend Lord Ackner quoted me as referring to the necessity to define what he meant by the word "lay". In case anyone misunderstands, I wish to make absolutely clear that the people who are to be qualified to sit on the Bench of a particular court will be qualified either by having judicial experience in the court below, as described by my noble friend Lady Elles as being the case in some continental countries, or qualified as advocates in the court to which they are to be appointed. There is no question of my wishing to appoint someone who is not qualified.
When my noble and learned friend Lord Ackner spoke about a lay person he meant someone who happens to be neither a barrister nor a solicitor. In some sense it is possible to qualify in the law without being either a barrister or a solicitor. For our part, what is required here is that the person should be a qualified advocate. What are regarded as being suitable qualifications for advocacy in a particular court will be determined by the mechanism that we have set up. It includes the consent of the four designated judges—that is, the four heads of division—and the Lord Chancellor.

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My noble and learned friend and those who have supported him have based their arguments on the idea that we are adopting an unprofessional judiciary without the principles of a profession. I do not believe for one moment that the designated judges and the Lord Chancellor are likely to approve qualifications for court advocacy which do not involve necessary training and qualifications. The idea that one must start when one is young is good. However, a number of distinguished judges began in different professions but have had distinguished careers after becoming appropriately qualified in the law. Therefore, there is no question of people being lay in the sense of being without appropriate qualifications for the office.
The amendment of my noble and learned friend Lord Ackner requires that the person has been either a barrister or a solicitor. I say that it is perfectly appropriate in the context of this Bill to consider as qualified those who are qualified to be court advocates as a result of the appropriate training and experience. That is the point.
At present one may qualify as a barrister, go away for a long time and do other things altogether and yet remain qualified to be appointed a judge. It does not mean that anybody of that sort would be appointed. Here we are dealing with necessary and not sufficient qualifications. I wish to make it quite clear that on this aspect of the matter the people qualified are the people who have advocacy qualifications judged to be appropriate for the tribunal in question. Accordingly, I hope that your Lordships will not accept this amendment.
Lord Mishcon: My Lords, before the noble and learned Lord sits down, can he explain to the House, if only for the benefit of some of us who are trying to make up our minds, why the person whom he has just described who has been admitted as an advocate and has all that experience has not become either a solicitor or a barrister?
The Lord Chancellor: My Lords, that is a matter of his choice. If he has the necessary qualifications he may not be either a barrister or a solicitor. The noble Lord, Lord Mishcon, spent a great deal of time earlier in his parliamentary career arguing that solicitors should be eligible for the High Court Bench. It was thought at that time that only barristers should be eligible, but now, I am glad to say, his view on that point has prevailed.
I am saying that it is not axiomatic that the only people who are qualified as Supreme Court advocates, for example, should be either barristers or solicitors, because we have provided a machinery under which qualifications may be obtained. I cannot believe, and I am sure that your Lordships do not believe, that it will be acceptable to the senior judiciary or the Lord Chancellor that people should have such appointments without being suitably qualified. I do not believe that it is any longer proper to describe people who are suitably qualified as lay people. They are then qualified.
I should like to emphasise the point made by the noble Lord, Lord Benson, about post-qualification
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training. I believe that to be extremely important, and it has been developed by both sides of the profession. It may be in the sense of formal post-qualification education that the Law Society has gone further than the Bar, although the Bar also has arrangements for further training. Indeed, every day's experience is a form of training of a rather testing character, especially in certain tribunals. Therefore, the people in question are properly qualified as a result of the system which we have set in place.
Lord Ackner: My Lords, before my noble and learned friend resumes contact with the Woolsack, perhaps he will answer the question which I specifically raised. If this is such a good idea south of the Border, why does it make no appearance in the Scottish Bill? It may be that, suitably armoured, my noble and learned friend will be able to persuade me that I should move an amendment to the Scottish Bill in due course. However, I have yet to learn why there should be this difference south of the Border particularly in view of the fact that when dealing with contingency fees in Committee my noble and learned friend said that it was really quite unpalatable to have those significant differences in jurisprudence north and south of the divide.
The Lord Chancellor: My Lords, I believe that the question of which qualifications are appropriate is a matter which may well relate to the size of the jurisdiction. However, I still suggest to your Lordships that in principle it is right that those who are appropriately qualified to practise before a court should be eligible for appointment to the Bench of that court.
Lord Hutchinson of Lullington: My Lords, before the noble and learned Lord sits down, are those persons to whom he referred lawyers?
The Lord Chancellor: My Lords, I would describe a person who was appropriately qualified as a Supreme Court advocate as a lawyer.
Lord Ackner: My Lords, paragraph 10.2 of the Green Paper stated on behalf of the Government:
"A strong and independent judiciary is one of the central supports upon which our liberties are based and upon which the rule of law depends".
And yet my noble and learned friend the Lord Chancellor is unrelenting in his determination to take power to reduce that strength. The amendment which I have tabled is to protect four distinct categories of judges. The first category is members of the Circuit Bench. In his submissions to the Top Salaries Review Body the Lord Chancellor said that he regarded the Circuit Bench as a mainstay of the judiciary to which it is vital to attract enough lawyers by emphasis on the right calibre.
The Green Paper also stated:
"Sitting in the Crown Court and County Courts and on occasions as judges of the High Court, circuit judges are responsible for hearing nearly all serious criminal cases and a considerable proportion of civil cases. They have a wide ranging civil and criminal jurisdiction and a great deal of publicity can attach to some of their judgments".

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The Lord Chancellor wishes to take power to recruit laymen to that judiciary. The High Court Bench, in its streamlined form, resulting from the implementation of Part I of this Bill, will be the even thinner red line which, inter alio, protects by judicial review the man in the street from abuse of power by the Government and other powerful organisations. To their ranks too the Lord Chancellor wishes to take power and add laymen.
In relation to the Court of Appeal, which is the final court of appeal in the majority of cases in the United Kingdom, the Lord Chancellor wishes to seek like power. Even the Law Lords, whom he once graced with his presence, are not to be immune from this potential dilution.
I apply to this clause the words used by the noble Lord, Lord Rees-Mogg, when debating the Green Paper. He said,
"It … betrays the principle of professionalism and fails to understand the essential relationship of the independent professional ethic to justice itself".
I accordingly invite your Lordships to approve this amendment.
"Perseverence, dear my Lord, keeps honour bright".
9.15 p.m.
On Question, whether the said amendment (No. 190) shall be agreed to?
Their Lordships divided: Contents, 14; Not-Contents, 35.

DIVISION NO. 3

CONTENTS

Ackner, L. [Teller.]

Elles, B.

Airedale, L.

Foot, L.

Benson, L.

Hacking, L.

Brandon of Oakbrook, L. [Teller.]

Hutchinson of Lullington, L.

Pitt of Hampstead, L.

Carnock, L.

Renton, L.

Coleraine, L.

Simon of Glaisdale, L.

Darcy (de Knayth), B.

NOT-CONTENTS

Ampthill, L.

Hesketh, L.

Arran, E.

Hives, L.

Belstead, L.

Hooper, B.

Blatch, B.

Long, V.

Blease, L.

Lyell, L.

Brabazon of Tara, L.

Mackay of Clashfern, L.

Brougham and Vaux, L.

Mills, V.

Butterworth, L.

Perry of Walton, L.

Caithness, E.

Reay, L.

Clitheroe, L.

Saltoun of Abernethy, Ly.

Craigmyle, L.

Sanderson of Bowden, L.

Davidson, V. [Teller.]

Shaughnessy, L.

Denham, L. [Teller.]

Strathclyde, L.

Downshire, M.

Strathmore and Kinghorne, E.

Elliott of Morpeth, L.

Ferrers, E.

Swinton, E.

Glenarthur, L.

Trumpington, B.

Henley, L.

Ullswater, V.

Resolved in the negative, and amendment disagreed to accordingly.
9.24 p.m.
The Lord Chancellor The Lord Chancellor moved Amendment No. 190A:
Page 40, line 30, at end insert—
("(3A) References in subsection (3) to a right of audience are references to a right of audience granted by an authorised body.").
The noble and learned Lord said: My Lords, this is essentially a technical amendment. As your Lordships know, it is my intention that eligibility for judicial appointment will in future depend on possession of a specific right of audience for a specific period. There are, however, a number of people who have and will retain limited rights of audience in other ways, particularly under other enactments. In moving this amendment I therefore seek simply to ensure that the only rights of audience which should qualify for judicial appointments purposes should be those which are granted by a professional body in accordance with the arrangements set out in this Bill. I beg to move.
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No. 190B:
Page 40, line 41, at end insert—
("(6) For the purposes of subsection (4)(a), a solicitor who does not have a right of audience, by reason only of not having a practising certificate in force, shall be deemed to have such a right, unless his not having a practising certificate in force is the result of disciplinary proceedings.
(7) For the purposes of subsection (4)(b), any period during which a solicitor did not have a right of audience, by reason only of not having a practising certificate in force, shall be deemed to be a period during which he had such a right, unless his not having a practising certificate in force was the result of disciplinary proceedings.").
The noble and learned Lord said: My Lords, as noble Lords know, qualification for judicial appointment is currently based upon years' standing as a barrister or solicitor. It is immaterial for the purposes of that qualification whether or not the barrister or solicitor is in practice during that period. The arrangements in this Bill provide for the qualification to be based in future upon the possession of a specific right of audience for a specific period. It is not, however, the intention that any persons who would currently qualify for office should lose that right.
I am satisfied that the new arrangements will not have any practical effect for individual members of the Bar. Moreover, barristers remain barristers even after appointment to the Bench. Solicitors, however, technically acquire and retain their rights of audience only on the issue of an annual practising certificate. At present, solicitors continue to accumulate years' standing as a solicitor without the need to hold a practising certificate, and are in that way eligible in time for appointment to all those judicial posts currently open to solicitors.
Without this amendment, solicitors without a practising certificate would not be eligible for such appointments in future; and solicitors who, for whatever reason, did not require a practising certificate for some period would take longer to qualify for appointment. Moreover, solicitors in judicial appointments would lose the rights of

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audience they had been granted during the period of their office, and so be unable to qualify, by virtue of their rights of audience, for a higher office.
I have no intention or wish to make some persons who are now eligible for appointment ineligible in future. Though many of the solicitors who will be affected will not be suitable for appointment because of their experience, I would prefer to make the eligibility provision for judicial appointment as generous and flexible as possible. I beg to move.
Lord Mishcon: My Lords, we support the amendment.
On Question, amendment agreed to.
Schedule 8 [Judicial and other appointments]:
[Amendment No. 191 not moved.]
Lord Prys-Davies Lord Prys-Davies moved Amendment No. 192:
Page 90, line 13, at end insert—
("Coroner other than a medical practitioner.")
The noble Lord said: My Lords, this is a probing amendment which is supported by the Law Society. This amendment would add the office of the legally qualified coroner to the list in paragraph 31(2) of Schedule 8 of office holders eligible for appointment as a circuit judge if they have held the appointment for at least three years. All the offices specified in paragraph 31 would require seven years' admission and, together with a minimum of a three-year period of holding an office referred to in the paragraph, anyone promoted to the circuit through that route would have to be admitted after 10 years.
Legally qualified coroners are eligible for appointment as coroners if they are of five years' standing. Therefore, it is not surprising that they are not included in the list of office holders in paragraph 31. I wonder whether they have been excluded from that list because they would not have had the 10 years' experience on appointment. The question is this: is a legally qualified coroner who has a five-year general qualification, plus three years as a coroner, eligible to be appointed as a circuit judge? It would be very helpful if the noble and learned Lord the Lord Chancellor could explain how he envisages that this provision would apply to the holders of the office of coroner. I beg to move.
Lord Hutchinson of Lullington: My Lords, I support the amendment. The suggestion of adding the coroner would fall neatly alongside the probate registrar, the chairman of a VAT tribunal and the special commissioner of the inland revenue. In the circumstances, and in comparison, the coroner would be highly qualified.
The Lord Chancellor: My Lords, with reference to that last remark, the others are also fairly highly qualified on present requirements.
The only reason we did not include coroner as one of the offices that might be regarded as qualifying is that we took it on the basis of lower courts or tribunals where disputes between parties were being decided. The coroner's court is a little different from
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that. However, as noble Lords have raised the point, it would be reasonable for me to consider adding this to the list. I shall certainly wish to consider that without commitment to deciding necessarily in its favour.
Lord Donaldson of Lymington: My Lords, before the noble and learned Lord sits down, perhaps I may commend to his consideration the fact that a coroner can be both legally qualified and medically qualified. What is meant here is a legally qualified coroner, not a coroner who is medically qualified.
The Lord Chancellor: My Lords, I took it that what the noble Lord had in mind was a coroner other than one qualified only as a medical practitioner. That is what I would have in mind and it is that point which I should like to consider. Coroners often, although not always, regard themselves as deciding disputes between parties. In fact, often they are faced with questions of that kind. I am happy to consider the point further without commitment to deciding necessarily in its favour.
Lord Prys-Davies: My Lords, I confirm that the amendment does not include coroners who are merely medical practitioners. I am delighted with the noble and learned Lord's response. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 53 [Presiding Judges]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 193:
Page 40, line 43, after ("be") insert ("at least").
The noble and learned Lord said: My Lords, I shall speak at the same time to Amendment No. 194. This amendment takes account of the possibility that more than two presiding judges may be appointed in respect of at least some of the circuits. My noble and learned friend the Lord Chief Justice has in mind that the large circuit which occupies so much of the South-East is perhaps too big for appropriate supervision by only two presiding judges and that there at least another may be required.
Amendment No. 194 relates to the possibility of altering the circuits. My noble and learned friend Lord Ackner pointed out in Committee that it might be wise to insert a reference to the Lord Chief Justice. He proposed the words "with the agreement of the Lord Chief Justice". Having considered the matter I have decided to propose the words "after consulting the Lord Chief Justice". This seems appropriate in the circumstances. I beg to move.
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No. 194:
Page 41, line II, after second ("time") insert ("after consulting the Lord Chief Justice").
The noble and learned Lord said: My Lords, I have spoken to this amendment. I beg to move.
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No. 194A:
After Clause 53, insert the following new clause:
("Delegation of certain administative functions of Master of the Rolls.
(".—(1) Where the Master of the Rolls expects to be absent at a time when it may be appropriate for any relevant functions of his to be exercised, he may appoint a judge of the Supreme Court to exercise those functions on his behalf.
(2) Where the Master of the Rolls considers that it would be inappropriate for him to exercise any such functions in connection with a particular matter (because of a possible conflict of interests or for any other reason), he may appoint a judge of the Supreme Court to exercise those functions on his behalf in connection with that matter.
(3) Where the Master of the Rolls is incapable of exercising his relevant functions, the Lord Chancellor may appoint a judge of the Supreme Court to exercise, on behalf of the Master of the Rolls, such of those functions as the Lord Chancellor considers appropriate.
(4) Any appointment under this section shall be in writing and shall specify—
(a) the functions which may be exercised by the appointed judge; and
(b) the period for which the appointment is to have effect.
(5) In this section "relevant functions" means any functions of the Master of the Rolls under
(a) section 144A of the Law of Property Act 1922 (functions in relation to manorial documents);
(b) section 7(1) of the Public Records Act 1958 (power to determine where records of the Chancery of England are to be deposited);
(c) the Solicitors Act 1974 (which gives the Master of the Rolls various functions in relation to solicitors);
(d) section 9 of the Administration of Justice Act 1985 (which requires the concurrence of the Master of the Rolls in the making by the Law Society of rules governing incorporated practices).").
The noble and learned Lord said: My Lords, this amendment is designed to enable my noble and learned friend the Master of the Rolls to delegate certain of his administrative functions to a judge of the Supreme Court. As well as his judicial functions, and indeed the ones conferred by this Bill, neither of which would be delegable under this new clause, the Master of the Rolls has several functions of an administrative nature to perform. The most time-consuming of these are his various functions under the Solicitors Act 1974, but there are also functions in relation to manorial documents and public records and functions in relation to incorporated practices of solicitors arising under Section 9 of the Administration of Justice Act 1985. After discussion with my noble and learned friend I have proposed this amendment in order to provide a statutory basis for delegation of these functions in certain circumstances. I beg to move.
Lord Donaldson of Lymington: My Lords, I am most grateful to my noble and learned friend the Lord Chancellor for bringing forward this amendment, which, as he said, has been discussed with me. I find it to be wholly admirable.
Lord Simon of Glaisdale: My Lords, this is the second of the proposed new clauses put down by the Government, I think either yesterday or the day before, for consideration this evening. I am glad that the noble Lord the Chief Whip is present in the Chamber to enjoy the discussion. I have only one question to ask in this connection. Is it not desirable to make comparable provision for the President of
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the Family Division who, in addition to his judicial functions and general control over the family business of that division, has extensive administrative functions in relation to the Principal Probate Registry and the district probate registries? I should remember—although I am afraid I do not—the power given to him which is comparable to that imposed upon the Master of the Rolls. If my noble and learned friend cannot give me an immediate answer, I should be most grateful if he would agree to consider the matter.
The Lord Chancellor: My Lords, I am certainly happy to consider the point. The proposed new clause is the result of discussions with my noble and learned friend the Master of the Rolls. Thus far the President of the Family Division has not suggested to me that any particular provisions are required. However, in view of the experience of my noble and learned friend Lord Simon of Glaisdale in that connection, I shall certainly raise the matter with the present holder of that office to ascertain whether he wishes any comparable provision to be made. In that way I shall give further consideration to the matter.
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No. 195:
Page 41, line 36, at end insert—
("(3A) In section 55 of that Act (power of judge to impose penalty for refusal to give evidence) after subsection (4) there shall be inserted—
("(4A) A district judge, assistant district judge or deputy district judge shall have the same powers under this section as a judge.").
The noble and learned Lord said: My Lords, Clause 54 already confers upon the office which is to become that of district judge certain disciplinary powers at present reserved to circuit judge in the county courts. The purpose of this amendment is to insert another very similar power. It is a power to impose a penalty on someone summoned to appear as a witness who neglects or refuses to give evidence.
Those persons presently described as 'registrars' conduct a large variety of hearings in the county courts and will play a growing role as the recommendations of Civil Justice Review are implemented. For this reason it is important that they have at their disposal generally the same disciplinary powers as are available to circuit judges. It is intended that an appeal will continue to lie from any order of a district judge to a circuit judge. I beg to move.
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No. 196:
Page 42. leave out lines 1 to 5.
The noble and learned Lord said: My Lords, Amendment No. 196 omits the power for rules of court to provide for appeals from district judges to circuit judges following the exercise of their new disciplinary powers. This is purely a drafting change, however, since the provision has been incorporated in a revised form in paragraph 10 of Schedule 11A. I beg to move.
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No. 196ZA:
After Clause 61, insert the following new clause:
("Abolition of abatement of salary rule jor judges etc.
"The following provisions (which provide for the abatement of salaries of holders of certain judicial and related offices who are in receipt of pensions payable in respect of public offices) shall cease to have effect—

(a) section 3 of the Superannuation (Miscellaneous Provisions) Act 1967 (miscellaneous offices);

(b) section 1 of the Superannuation (Miscellaneous Provisions) Act (Northern Ireland) 1969 (miscellaneous offices in Northern Ireland);

(c) section 18(3) of the Courts Act 1971 (Circuit judges);

(d) section 1(2) of the Ministerial and Other Salaries Act 1975 (Lord Chancellor), the words from "but" to the end;

(e) Section 9(4) of the Administration of Justice Act 1973 (Lords of Appeal in Ordinary, judges of the Court of Session, judges of the Supreme Court in Northern Ireland and stipendiary magistrates);

(f) section 12(4) of the Supreme Court Act 1981 (judges of the Supreme Court other than the Lord Chancellor).").

The noble and learned Lord said: My Lords, in moving this amendment I should like to speak also to Amendments Nos. 218C, 231A, 231B, 231C, and 233A. These amendments are designed to deal with what has been described as "abatement". The present law requires that salaries of members of the judiciary who are in receipt of a pension in respect of employment in another branch of the public service should be abated.
The decision to remove this requirement of abatement follows the announcement made by my noble friend the Paymaster General on 21st December 1989 (at col. 404 of Hansard) that the Government have decided upon a change in their policy on abatement. The pay and pensions of retired public servants who are re-employed in a different public service will no longer be generally subject to abatement. Since their salary structure is set out in primary legislation, the provisions which apply abatement to members of the judiciary in such circumstances are also found in primary legislation and, accordingly, the amendment is necessary. Amendment No. 218C simply applies the new clause to Northern Ireland, and the other four amendments effect the necessary corresponding repeals. I beg to move.
On Question, amendment agreed to.
Lord Shaughnessy Lord Shaughnessy moved Amendment No. 196A:
After Clause 68, insert the following new clause:
("Qualifications for overseas solicitors wishing to be admitted as Solicitor of Supreme Court.
In section 4 of the Solicitors Act 1974 (admission of certain overseas solicitors) the following subsection shall be substituted for subsection (1)—
"(1) The Society, with the concurrence of the Lord Chancellor, the Lord Chief Justice and the Master of the Rolls, may make regulations about the examinations to be passed and the experience to be undergone by a solicitor of a superior court in any territory to which this subsection for the time being applies who wishes to be admitted as a Solicitor of the Supreme Court."").
The noble Lord said: My Lords, in moving the amendment, I am rushing in where fools go and angels fear to tread, as one of the few non-lawyers taking part in the debate at this stage of the Bill.
A Noble Lord: Bravo!
Lord Shaughnessy: My purpose in moving the amendment is to address and remove what appears to be an anomaly in the qualification standards and requirements for solicitors from Commonwealth countries who apply for qualification in England and Wales.
As I understand it, currently qualification standards and requirements are governed by the Solicitors Act 1974. There are some discrepancies in respect to certain jurisdictions in Commonwealth countries. For instance, a solicitor in British Columbia in Canada who has fulfilled the required period of practice and experience and has the necessary qualifications in his domestic jurisdiction might have to devote a year to requalify in order to practise as a solicitor in the courts of England and Wales. On the other hand, his counterpart in the province of Alberta or Ontario could qualify in less than a month. He has only to pass the examination laid down by the Law Society.
The amendment in my name seeks to amend the Solicitors Act 1974 to provide for regulations to be made by the Law Society to create uniformity in respect to the qualifications for Commonwealth solicitors. The provision is fairly open-ended. The amendment is not drafted in the most perfect terms, but I understand that in principle it is approved by the Law Society. I hope that the noble and learned Lord the Lord Chancellor will view the proposal as acceptable in principle. I beg to move.
9.45 p.m.
Lord Mishcon: My Lords, we would all like to congratulate the noble Lord on the way he moved his amendment. It is an absolute pleasure to hear somebody who has either been trained as a solicitor or a barrister or is about to receive the qualification of High Court advocate.
I only wish to add a few words to what the noble Lord has been good enough to say in support of the amendment. The effect of it will be that instead of relying on an old Order in Council which had to be made under the Solicitors Act—I believe the Order in Council is the 1964 order and obviously things have to be brought up to date—as the noble Lord indicated, a much easier and more flexible procedure is to ensure that this is done by regulation, as it will if the amendment is passed. I hope the amendment will be passed.
I rise for one reason which is that I believe the noble and learned Lord knows that there are some other amendments which will have to be made to Section 4 in order to complete the picture. I believe he has that matter in hand, but if he would confirm that that is the position the Law Society would be grateful.
Lord Donaldson of Lymington: My Lords, it must be my fault, but I do not understand how this provision takes us away from the Order in Council. I believe that Section 4(1) of the Solicitors Act 1974 is the section under which the Council of the Law Society admits solicitors from Commonwealth countries. Subsection (2), which concerns the Order in Council, is an essential qualifying subsection. Her

911
Majesty by Order in Council has to consider various regulations and other matters and decide whether those subsections shall be applied to the country concerned. That is picked up in the amendment when it states:
"any territory to which this subsection for the time being applies".
I am not clear what the difference is. However, that must be my fault.
Lord Hacking: My Lords, I rise in support of the amendment. It may well be that this amendment, as the mover accepts, is imperfect in its drafting. However, its principle is quite plain. It proposes to replace the rather archaic system of the Order in Council by the new regulatory system that is set out in the amendment. On the basis of the principle that is sought to be achieved in this amendment, I wholly support it. It is unfortunate that we still have in our statutes arrangements for the admission of overseas lawyers which are partly based on reciprocity. If a fair deal is being given to British solicitors in the country concerned, we shall in turn give a fair deal to overseas lawyers coming to this country. However, if our solicitors are receiving an unfair deal abroad, we shall not give overseas solicitors a fair deal here. I suggest that idea is quite out of date, and for that and other reasons I hope the noble and learned Lord will accept the amendment.
The Lord Chancellor: My Lords, I am grateful to the noble Lord, Lord Shaughnessy, for bringing forward this amendment. I am delighted to hear him participate in our debates.
I am aware of the difficulties which some solicitors from other Commonwealth jurisdictions have experienced as a result of the outdated provisions of the Orders in Council currently in force under the terms of Section 4 of the Solicitors Act. The Government intend to introduce an amendment to Section 4 at a later date in the passage of this Bill, which will grant to the Law Society the power to make regulations which are currently made by Order in Council.
I am authorised to say that the Law Society fully shares the Government's view that the time has come to review and update the provisions in Section 4 of the Solicitors Act 1974. It is the intention of the Law Society to review as a matter of urgency the education and experience requirements for applicants under the new clause with a view to introducing the new regime with effect from 4th January 1991. This is the date on which the European Community Directive on the mutual recognition of higher education diplomas comes into effect, and by looking concurrently at the requirements for EC lawyers and Commonwealth lawyers the Law Society aims to achieve a system which will be clear, coherent and fair to all applicants. Who could wish for better goals than those?
At first, the society will only be able to make new regulations relating to those territories listed in the existing orders. The Law Society and officers of my department are, however, discussing the possibility
912
of reviewing the list of territories from which solicitors should be able to benefit from the provisions of Section 4.
I would therefore ask the noble Lord, Lord Shaughnessy, to withdraw his amendment on the understanding that I have taken this matter into consideration and that the Government intend to bring forward their own amendments in conjunction with the Law Society to deal with the problem. Of course it will have to be in the progress of this Bill in the other place. These are fairly elaborate amendments and I do not think we shall be able to have them ready in time for Third Reading. I hope in the light of this explanation that the noble Lord will feel able to withdraw his amendment.
Lord Shaughnessy: My Lords, I am grateful to the noble and learned Lord the Lord Chancellor for accepting the principle involved here. I quite agree that it is complicated and requires certain redrafting and reconsideration. I am happy, on the undertaking that the noble and learned Lord has given, to beg leave to withdraw my amendment.
Amendment, by leave, withdrawn.
Clause 69 [Powers of entry etc. of local weights and measures authorities]:
[Amendment No. 197 not moved.]
Lord Coleraine Lord Coleraine moved Amendment No. 197A:
After Claue 69, insert the following new clause:
("Sanctions for inadequate professional services.
Section 44A of the Solicitors Act 1974 (which, in effect, enables the Law Society to impose quasi-compensatory sanctions on solicitors for inadequate professional services) shall cease to have effect.").
The noble Lord said: My Lords, in this probing amendment I ask the House to repeal the provisions of Section 44A of the Solicitors Act 1974 which enable the Law Society to impose sanctions on solicitors for what has been called shoddy professional work. I have tabled the amendment as a probing amendment in order to ask my noble and learned friend the Lord Chancellor whether he intends, at the request of the Law Society, to bring forward legislation during the course of this Bill to replace some of the unsatisfactory provisions of Section 44A and, if so, at what stage, and whether he will now outline the clauses he proposes to table.
At Second Reading on 19th December 1989 my noble and learned friend said that the Law Society had announced that it proposed to seek in this Bill an extension of its present powers to deal with complaints against solicitors. He went on at col. 128:
"I can only welcome that announcement in the warmest terms. Urgent discussions are proceeding as to how the society's proposals can be fitted into the existing legislation. I expect that, as a result, the society will ask me to introduce a small number of amendments to the Solicitors Act. I would very much hope to be able to do so during the Committee stage of this Bill in this House".
While the Bill was in Committee I asked my noble and learned friend to say when he expected to table the necessary clauses. He replied that he hoped to do so on Report. I raise this question, I should make it clear, only in order to discuss the background to

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what the Law Society may be proposing. I think I can say that I do so with at least the knowledge and approval of the Council of the Law Society because it would wish its proposals to have the proper consideration that this House now seems less and less likely to be able to give to them.
I would not make the claim that I have the entire blessing of the Law Society. It will know that I approach this question with a mind open to the possibility at least that it is to be found in this instance among the ranks of those whom the Gods wish to destroy. I speak therefore as a candid friend of the Law Society.
Section 44A was inserted in the Solicitors Act by Section 1 of the Administration of Justice Act 1985. Therefore, we are not looking at some well established provision but at something which, after four or five years of operation, is ripe for reconsideration and possibly review. Section 44 provides that the Council of the Law Society may impose sanctions on solicitors whose professional services to their clients are in any respect not of the quality that could reasonably be expected.
The sanctions in question enable the council first to penalise the solicitor by taking away, or reducing, his rights to costs. Secondly, they require the solicitor to put right the matter complained of, and, thirdly, take any other specified action in the interests of the client. These are all reasonable sanctions. Nevertheless there are difficulties about the section which I would outline to the House.
The first is that sanctions are hybrids between the disciplinary sanction against the solicitor and the provision of compensation to the client. It must be axiomatic that the disciplinary sanction should reflect the gravity of the wrong whereas compensation is to reflect the loss sustained. The two do not necessarily pull well together. That can be well illustrated by posing the case of where, by simple inadvertence, a letter is wrongly addressed. The shoddy nature of the work may be minimal, but the trouble and loss caused as a result could be substantial. Similarly, and in contrast, a substantial history of incompetence by the solicitor may have caused little damage to the client.
In the first case, should the sanction be severe to reflect the loss to the client or minimal to reflect the minimal shoddy work? In the second case, should it be the other way round or should the rule be that the severest sanction available should be applied at all times? I have always ascribed to the theory that the section is disciplinary, with the result that the sanction should be proportionate to the gravity of the inadequacy of the professional service.
The first question I ask my noble and learned friend is whether in his opinion the sanction is disciplinary or, if not, how is it to be interpreted? Clearly, if I am correct, the intention of the Council of the Law Society when it asked for Section 44A to be introduced was not achieved because it wanted what was impossible to achieve; that is to say, that fair compensation should be found for the wronged client by fair disciplining of the solicitor. A true aim in life maybe to attempt to have one's cake and eat it, but that seems to be doomed always to failure.
My next point deals with the compensatory element in the provisions of the section. Whether the section is properly compensatory or disciplinary is neither here nor there now, because even if the sanctions are disciplinary in concept they are in form undoubtedly compensatory. So the question seems to arise: should the Council of the Law Society be dealing at all with compensation? I ask the question only because the point is made. I have to agree that there is some force in it; but compensation as such is properly a matter to be dealt with outside the profession by the courts or by an independent arbitrator. Clients will not otherwise ultimately be satisfied.
I understand that one of the proposals to be tabled will propose a simple method of providing for awards of up to £1,000 compensation made against solicitors and paid to wronged clients. The second question I then have to a ask is: will the power to award that compensation being asked for be exercisable once again by the Council of the Law Society? If the answer is yes, as I suspect it may be. then I fear that the council may fall firmly between two stools—neither satisfying the solicitor nor the client.
I next point out that in order to administer Section 44A, the Law Society has had to create an extensive bureaucracy called the Solicitors Complaints Bureau. Section 44A has, as I see it, opened up the possibility in every disgruntled client's breast of having his costs bill reduced when his solicitor does not reply to letters by return of post., and who can blame the client? Section 44A is expressed to apply to services which were in any respect not of the required quality. It so opens the door to frivolous and mischievous applications about minimal complaints.
I do not claim that the submission that I now make is not necessarily a post hoc propter hoc argument. I do not have the data upon which to say that it is not. Nevertheless, I must admit that by asking for Section 44A the Council of the Law Society opened up a Pandora's box of petty complaints which has resulted in complaints to the Law Society from disgruntled and dissatisfied clients increasing over the past five years or so from about 6,000 to more than 20,000 a year.
All those complaints must be looked at by the Solicitors Complaints Bureau at, I understand, a cost of £5 million a year. I have only done the calculations on my fingers, so I shall not give them to the House. However, I calculate that the sum involved in running the Solicitors Complaints Bureau must account for a substantial part of the operating costs of the Law Society. I suspect that it is largely the expense of running the complaints bureau which has caused the council to ask for power to require complainants to make some form of administrative charge before their complaint is heard in order to deter frivolous complaints. The council also asks for power to direct solicitors to pay costs in addition to compensation or disciplinary sanction. Those costs would go towards the costs of the successful complainant and towards the expenses of the complaints bureau in investigating the complaint.
My third question is to ask my noble and learned friend exactly what is proposed by way of empowering the council to make such costs awards against solicitors and against the complainant. I hope that broadly the costs regime applicable in the county court to the trial of small claims will be seen as an appropriate precedent for the new clauses.
My fourth and final question concerns the right of appeal of a solicitor under the new clauses. Under Section 44A, there are no rights of appeal, notwithstanding that the investigation of the complaint by the complaints bureau is an investigation on paper without opportunity for the bureau or the solicitor to test the truth of the oral complaint of the client. Failure to comply with the direction of the complaints bureau is in itself a disciplinary offence and can be referred to the disciplinary tribunal for enforcement. The disciplinary tribunal can then direct that the complaint bureau's direction be enforced as if contained in a High Court order and therefore, ultimately, by commital for contempt.
If the scope of the powers of the Law Society is to be considerably increased, it is no longer proper to argue on pragmatic grounds, if it ever was, that the clause is designed only to provide cheap and summary relief to clients for minor items of shoddy work and that the whole process would be rendered useless were the solicitor to be able to appeal to a higher tribunal. My final question to my noble and learned friend is therefore: what, if any, provisions for a right of appeal will the clauses contain? I beg to move.
The Lord Chancellor: My Lords, I am well aware of my noble friend's interest in this area and I am grateful to him for giving me the opportunity to explain to the House the proposals for extending the Law Society's jurisdiction over inadequate professional services, or shoddy work, as it is more commonly called. I had hoped to introduce those powers at this stage of the Bill, but pressure of time has been such that that has not proved possible.
The aim of the amendments will be, first, to distinguish between the society's function of dealing with professional misconduct and its function of dealing with the quality of service provided. In other words, it is very much at the society's request to distinguish between disciplinary jurisdiction and compensatory jurisdiction. Secondly, they will clarify its powers to award compensation to complainants. The powers conferred by Section 1 of the Administration of Justice Act 1985 for dealing with quality of service are drafted in terms of disciplinary sanctions. The society believes that the stigma of discipline is not appropriate for issues involving compensation for relatively minor complaints about a solicitor.
The amendments will give the Law Society a power to require a solicitor to pay compensation up to £1,000 where it is satisfied that the services provided by the solicitor were not of the quality that could reasonably have been expected of him. The directions will be enforceable by the council by the same mechanism as the current powers. The Lord
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Chancellor is to have power to vary the maximum limit by statutory instrument after consultation with the Law Society and the intention is that it should move in broad equivalence to the small claims limit. Certain cases will be inappropriate for that procedure: where there are complex issues of law or fact; where an oral hearing may be required; and where the complainant has not exhausted the solicitor's own in-house machinery.
I think it is right that the council should have power to decline to consider such cases. In the first two categories the issues will be of a degree of complexity where it would be more appropriate for the courts to deal with the matter. In the third, it is surely not right to invoke the society's powers before any in-house machinery set up by the solicitor has been tried.
In that context I should like to say how much I welcome the society's attempts to encourage solicitors' firms to develop and publicise methods of dealing with clients' complaints. I have to say that my experience of these matters—and I have experienced them both directly and indirectly—is that many of these complaints are dealt with comparatively simply if they are dealt with quickly. If the matter is allowed to lie for some time it often happens that it becomes almost impossible to sort out the original trouble. Therefore an emphasis on an in-house complaints system operating quickly is something that I very much wish to encourage.
The council will also be able to charge fees once a complainant has decided that he wishes to use these proceedings, but it is intended that this right will generally be waived where the complainant is in receipt of legal aid or in other appropriate circumstances. The charge will be refundable if any of the powers are exercised in the applicant's favour. The society will also have a power to recover costs from the solicitor.
The provisions provide a welcome extension to the Law Society's powers to deal with complaints against solicitors about minor but nevertheless important matters. They indicate just how far the Law Society has moved in recent years in its attempts to protect the client. They fit very closely with the powers of the legal services ombudsman and represent an effective way of resolving many of the public's grievances against solicitors.
The whole essence of the new jurisdiction is that it should be simple, low value cases only. Therefore the society argues that a full appeal system other than judicial review or further consideration by the disciplinary authorities is not appropriate.
These powers are to be supplementary to those in Section 44A of the Solicitors Act 1974, which gives the society power to reduce fees, order the solicitor to take action rectifying an error at his own expense or take other action in the interests of the client. In many instances these powers will be perfectly adequate for the purposes of the society. The new powers will, however, extend to those in Section 44A to enable the society to take action which will enable a client's clearly justified small claim to be satisfied.
I believe that this amendment, if it were to be pressed—which of course it will not be—will deprive

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the society of very useful powers. I am sorry that I have not been able to bring forward these amendments but I have explained the reason. The aim of the amendments is an extremely good one and to be encouraged. I believe that it may well have the effect of reducing the overall level of complaints against solicitors for the reasons that I have mentioned.
In the light of this explanation, I hope that my noble friend will feel able to withdraw his amendment.
Lord Coleraine: My Lords, during the passage of the Administration of Justice Act we had in this House a very good opportunity to discuss the various provisions that were before us. It appears that if these clauses come up in another place, or even at Third Reading in this House, we shall be deprived of such an opportunity.
My noble and learned friend has outlined very clearly the intentions of the Law Society and I think that he has answered all the questions which I put to him. The way that he has done so leads me to think that there is a lot in the proposals which will be controversial. Nevertheless, I have asked him to explain them and at this time of night I do not think that I should take this matter any further. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 71 [Specific powers of arbitrator exercisable by High Court]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 198:
Page 54, line 25, leave out ("11 of the Act of 1950") and insert ("43 of the Supreme Court Act 1981").
The noble and learned Lord said: My Lords, my noble and learned friend the Master of the Rolls pointed out that the proper place for Clause 71 is in the Supreme Court Act 1981. I suggest that after Section 43 of that Act would be appropriate. This amendment is intended to do just that. I beg to move.
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No. 199:
Page 54, line 27, leave out ("11A") and insert ("43A").
The noble and learned Lord said: My Lords, this amendment is consequential on Amendment No. 76. I beg to move.
On Question, amendment agreed to.
Clause 72 [Want of prosecution]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 200:
Page 54, line 32, leave out ("that Act") and insert ("the Arbitration Act 1950").
The noble and learned Lord said: My Lords, this amendment also follows on from the amendments made to Clause 71. I beg to move.
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No. 201:
Page 54, line 36, leave out ("the") and insert ("any")
The noble and learned Lord said: My Lords, at Committee stage the noble Earl, Lord Lytton, moved an amendment to ensure that an arbitrator would be able to make an award dismissing a counter claim for want of prosecution. I believe that by referring to "any" claim instead of "the" claim we shall achieve this. I beg to move.
On Question, amendment agreed to.
Clause 74 [Tying-in arrangements]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 201A:
Page 55, line 16, after ("person") insert ("("the supplier')").
The noble and learned Lord said: My Lords, with the amendment I should like to speak also to Amendments Nos 201B, 202A, 20213, 203A, 204A, 206A and 206B. I shall speak separately, if I may, to Amendment No. 207 which raises a slightly different point. As I said in Committee this is a difficult area and I have been considering carefully how we might best amend Clause 74 to ensure that it does what we want it to do; namely, to make it an offence to make the offer of a mortgage subject to a condition that another service, or other services, are taken; or vice versa. These amendments, which to a certain extent mirror Amendments Nos. 202 and 203, which have been proposed by the noble Lords, Lord Mishcon and Lord Prys-Davies, do I hope fulfil that aim.
The amendments arise out of the discussion about this matter in Committee. Having heard the suggestions that the noble Lords made, I concluded that we might be able to simplify the clause and get at the real "evil" without the necessity of elaborate definitions of "associate" which was the road down which we were going until your Lordships helped to divert us to a perhaps more fruitful direction.
The clause as redrafted therefore does not try further to define "associate" but focuses on the evil which the clause is designed to prevent; namely, the fact of the conditional arrangement involving a mortgage. The policy that the clause aims to fulfil is that it should be an offence to make or offer to make the provision of a mortgage subject to a condition that another service or services be taken, or vice versa. I think that these amendments make plain that policy.
Perhaps I may refer to subsection (4). I have concluded that it should be made clearer that the obligation to give the borrower the written details specified is to be on the lender. Accordingly, the subsection has been redrafted in order to do so. In addition, I consider that the subsection might go too far in that it does not confine "any other service" to a service in some way connected with a mortgage advance. This amendment also deals with that.
Lastly, the amendment to which I am speaking make clear that subsections (2) to (5) are separate offences. I beg to move.
Lord Mishcon: My Lords, these amendments fulfil the undertakings that the noble and learned Lord

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was good enough to give me at Committee stage, and on the basis of which I was happy to withdraw the amendments. I am most grateful to him.
Lord Simon of Glaisdale: My Lords, I merely rise to point out that, assuming that the noble Lord, Lord Mishcon, does not move his amendment, we have now reached the end of the left-hand column of the grouped amendments. We still have the whole of the right-hand column to consider. Are we really going to be kept here to see out this evening or tomorrow morning?
The Lord Chancellor: My Lords, I should like to thank the noble Lord, Lord Mishcon. The discussion that we had in Committee on this clause certainly helped me personally to focus on the issues. I should like very much to acknowledge that. It has been a difficult matter and the discussions have been extremely helpful.
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No. 201B:
Page 55, line 18, leave out from ("the") to end of line and insert ("supplier or by any other person specified or otherwise determined directly or indirectly by the supplier").
On Question, amendment agreed to.
[Amendment No. 202 not moved.]
The Lord Chancellor The Lord Chancellor moved Amendment No. 202A:
Page 55, line 19, after ("person") insert ("the supplier")"). On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No. 202B:
Page 55, line 21, leave out from first ("by") to end of line and insert ("the supplier or by any other person specified or otherwise determined directly or indirectly by the supplier").
The noble and learned Lord said: My Lords, if the amendment is agreed to I cannot call Amendment No. 203. I have already spoken to this amendment and I beg to move.
On Question, amendment agreed to.
[Amendment No. 203 not moved.]
The Lord Chancellor The Lord Chancellor moved Amendment No. 203A:
Page 55, line 22, leave out subsection (4) and insert—
("4) Where—
(a) a person proposes to take out a residential property loan; and
(b) it is proposed that another service should be provided for him (whether by the supplier or by any other person) as part of an arrangement made by the supplier in connection with the provision of the loan,
the supplier shall, before the borrower agrees to its provision, give to the borrower details in writing of any consideration payable by him for that service.").
On Question, amendment agreed to.
Lord Prys-Davies Lord Prys-Davies moved Amendment No. 204:
Page 55, line 29, at end insert—
("(5A) No lender of a residential property loan nor any associate of such a lender shall advertise or otherwise publicise
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any offer to provide combined services for a specified consideration unless the offeror is willing at the request of a borrower or prospective borrower—
(a) to specify the apportionment of the consideration between the several services; and
(b) to provide any of the services for the part of the consideration apportioned to that service.
(5B) For the purposes of subsection (5A)—
"offer" includes an invitation to treat;
"services" include making or offering to make a residential property loan; and
"combined services" means any combination of services whether provided or offered by the lender or any associate of his or partly by the lender and partly by the associate.").
The noble Lord said: My Lords, we are still in the difficult area to which Clause 74 is addressed. The object of the amendment is to ensure that borrowers have the right to select and receive separate items of an advertised combined package of services. Having considered the whole field, the Law Society regards the amendment as being essential if the ban on the tying in of services is to be effective.
If suppliers are able to advertise two or more services together at a discounted price it is believed that that will be a way around the primary prohibition contained in Clause 74, particularly in subsections (4) and (5). In discussing the last amendment the noble and learned Lord and Lord Chancellor said that it is a difficult area. Indeed, experience shows that it is difficult to tackle the mischief involved in the tying-in of services.
It will be noted that the amendment is aimed at ensuring that the supplier of combined services must be prepared to break down the price of an advertised package into its components. He must offer individual services within that package at the broken-down price. For example, if an institution advertises free estate agency with its mortgage, or advertises a special low-rate mortgage with its insurance policy, the customer could insist on taking the free estate agency without the mortgage, or the special low-rate mortgage without the insurance.
The amendment is aimed at advertised packages. It will not prohibit a supplier of two or more services, if approached by a customer, agreeing with that customer a packaged price lower than the aggregate of the two separate prices.
The Government's aim is to maintain a healthy and competitive market in estate agency, mortgage provisions, independent financial advice and conveyancing. In order to achieve that end the large financial institutions must not be allowed to package their combined products in a way that will pressurise their customers into buying other services by means of a package, or in such a way that the independent, single service providers cannot compete effectively.
Finally, perhaps I may be permitted to mention the fact that the principle of the amendment already applies to solicitors. Therefore, we are not trying to introduce a novel principle into the Bill. Solicitors are required by the Law Society rules, if they advertise or publicise two or more services at a single price, to separate out the prices and to offer either service separately at that price.
Therefore, although some solicitors are now successfully operating property selling services

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combined with conveyancing, the client always has the right to choose a different estate agent and to retain the solicitor for conveyancing or, vice versa, to retain the solicitor to sell his property but to go to a different conveyancer for the conveyancing services. Therefore, we urge the Government to apply that essentially sound principle right across the board. I beg to move.
The Lord Chancellor: My Lords, this amendment is not dissimilar to that moved by the noble Lords, Lord Prys-Davies and Lord Mishcon, in Committee. So far as I can judge, the present amendment would not be in the interests of the customer. The amendment would not allow lenders to offer a package of services to a customer at a discount.
It is worth re-iterating that the clause in subsection (5) already provides for separate pricing by requiring that:
"separate details shall be given in respect of each service".
However, it is not intended and does not seek to remove the financial benefit of a package to the customer through a discount on the overall price. I mentioned in Committee that it is not unknown for solicitors to offer a reduced rate if, for example, they are acting for a number of purchasers all of whom are buying leases in the same block of flats. It would seem utterly wrong that in the case of a lender who was providing other services, the lender was unable to pass on a financial benefit to the customer in the form of a discount on the overall price, so long as there was in no way any conditionality in respect of the provision of those services.
Therefore, I suggest to the noble Lord that his amendment is not really, as put, in the interests of the customer. I hope that he may feel able to withdraw the amendment on the basis that the real safeguard for the customer and for all those in competition with the person in question is that separate prices must be quoted for each service being offered and provided.
Lord Prys-Davies: My Lords, I have listened carefully to the response of the noble and learned Lord. I am sure the fault must be mine that I did not make it sufficiently clear that the amendment was aimed at a lender or a supplier who advertises or otherwise gives publicity to his offer of a combined service.
I tried to make it clear that that would not prevent an individual customer from seeking out the lender and the lender agreeing to provide him with combined services at a discounted price which would be lower than the aggregate of the two individual prices. I thought that I was meeting the point of the noble and learned Lord the Lord Chancellor that we did not wish to prevent the supplier from passing on the advantages of a combined service provided that that was not advertised. The amendment is aimed particularly at the advertising of such services and the evil which can flow from the advertisement.
The Lord Chancellor: My Lords, I believe that I have understood that. Perhaps I may speak again very briefly. I do not think that it would be in the
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interests of the client that that sort of thing is not known. If the noble Lord agrees, as I understand he does, that it would be quite reasonable to offer a discount, then I cannot see that it would be wrong to let people know that that is on offer. Of course, any suggestion of pressure is rather different. However, I cannot see that it is objectionable to let people know by way of advertisement what is on offer. I hope that in the light of that explanation, the noble Lord will feel able to withdraw the amendment.
Lord Prys-Davies: My Lords, we shall consider carefully what the noble and learned Lord said and decide whether or not this is a matter to which we should return at a later stage. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Lord Chancellor The Lord Chancellor moved Amendment No. 204A:
Page 55, line 30, leave out from ("section") to end of line 38 and insert (" "borrower" includes a prospective borrower").
The noble and learned Lord said: I have already spoken to Amendment No. 204A with Amendment No. 201. I beg to move.
On Question, amendment agreed to.
[Amendments Nos. 205 and 206 not moved.]
The Lord Chancellor The Lord Chancellor moved Amendments Nos. 206A and 206B:
Page 55, line 39, leave out ("this section") and insert ("subsection (2), (3), (4) or (5)").
Page 55, line 41, leave out ("this section") and insert ("subsection (2), (3), (4) or (5)").
The noble and learned Lord said: My Lords, with your Lordships' leave I shall take Amendments Nos. 206A and 206B en bloc. I have already spoken to them with Amendment No. 201A. I beg to move.
On Question, amendments agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No. 207:
Page 56, line 8, leave out subsection(11).
The noble and learned Lord said: My Lords, we all seem to be in agreement on this amendment. As my name is first on the list perhaps I may explain why I have put it down. This was a point discussed in Committee and I very carefully considered what was said. I also carefully considered the reasons behind the limitations placed on the activities of insurance companies by Section 16 of the 1982 Act and the directives. Your Lordships will remember that that was the reason for this exemption.
Insurance companies will be able., without the disapplication in subsection (11), to offer conveyancing as an adjunct to a mortgage without running into any difficulties with Section 16 or automatically committing an offence under Clause 74(2). They would run into problems if they offered a conveyancing-led package of services in the way dealt with in subsection (3)—but this is a most unlikely way for them to do business. I say this because customers go to an insurance company to buy insurance services. If non-insurance services, such as conveyancing, are on offer as well, a customer might want to take advantage of these. But I doubt

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that conveyancing would be the main attraction, attractive as it might be. Indeed, it is worth mentioning that the disapplication in subsection (11) does not extend to subsidiaries of insurance companies. It was always intended that they should be treated in the same way as any other person caught by the clause. On reflection, however, it seems to me that the noble Lords, Lord Mishcon and Lord Prys-Davies, are right that subsection (11) is unnecessary and should be deleted from the clause.
I am very glad therefore that we are all together on this matter and I beg to move.
Lord Mishcon: My Lords, I must confess to your Lordships that when I found my name preceded by that of the noble and learned Lord the Lord Chancellor on an amendment I really had the feeling that I was asleep in your Lordships' Chamber and that I was dreaming. It is so pleasant to find that it is reality and I am most grateful—as I know my noble friend Lord Prys-Davies is—to the noble and learned Lord the Lord Chancellor for listening to us on the last occasion and for putting his own amendment down in this way accompanied by our names.
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendments Nos. 207A and 207B:
Page 57, line 19, leave out ("and 6") and insert (", 6 and 10").
Page 57, line 26, leave out ("and 6") and insert (", 6 and 10").
The noble and learned Lord said: My Lords, with your Lordships' leave I will move Amendments Nos. 207A and 207B en bloc.
These amendments follow from the general initiative to afford magistrates in England, Wales and Northern Ireland the same immunity from suit arising from acts performed in their judicial capacity as judges of the superior court.
Article 10 of the Magistrates' Courts (Northern Ireland) Order 1981 already empowers the Lord Chancellor to defray expenses incurred by resident magistrates and justices of the peace in Northern Ireland in connection with proceedings or claims brought against them in the execution of their judicial offices. These amendments extend the article to county court judges sitting on appeals from the magistrates' courts and members of the juvenile court lay panels in Northern Ireland. They therefore fill a minor gap in our provision which gives magistrates similar immunities to the judges in the superior courts. I beg to move.
On Question, amendments agreed to.
10.30 p.m.
The Lord Chancellor The Lord Chancellor moved Amendment No. 207C:
After Clause 76, insert the following new clause:
("Jurisdiction of the Parliamentary Commissioner for Administration.
.—(1) In section 5 of the Parliamentary Commissioner Act 1967 (matters subject to investigation), the following subsection shall be added at the end—
"(6) For the purposes of this section, administrative functions exercisable by any person appointed by the Lord
924
Chancellor as a member of the administrative staff of any court or tribunal shall be taken to be administrative functions of the Lord Chancellor's Department or, in Northern Ireland, of the Northern Ireland Court Service."
(2) In Schedule 3 to that Act (matters not subject to investigation), the following paragraph shall be inserted after paragraph 6
"6A. Action taken by any person appointed by the Lord Chancellor as a member of the administrative staff of any court or tribunal, so far as that action is taken at the direction, or on the authority (whether express or implied), of any person acting in a judicial capacity or in his capacity as a member of the tribunal."").
The noble and learned Lord said: My Lords, for some years there has been a debate between the Parliamentary Commissioner for Administration, the Select Committee which is responsible for these matters and successive Lord Chancellors about the jurisdiction of the Parliamentary Commissioner for Administration to investigate actions taken by court staff. The difference of view between us turns on the interpretation of Section 5(1) of the Parliamentary Commissioner for Administration Act 1967. This says that the commissioner may investigate any administrative action taken by or on behalf of a government department. The advice that my two predecessors and I have received is that court staff are acting on behalf of the court and not on behalf of the department.
In the light of this, I and my predecessors have taken the view that the 1967 Act prevents the PCA from investigating most of the actions of court staff. In 1966, when this measure was before Parliament, the courts were of course organised rather differently, and although I have not done a great deal of research into the question I suspect that this was the deliberate intention of Parliament. Now that the staffing of a unified administrative court service comprising staff for the Supreme Court and the county court is the responsibility of the Lord Chancellor, the position is rather different. Be that as it may, this is a difficult area, and one where we must tread with caution in extending the PCA's jurisdiction. I am sure that I also speak for my predecessors in saying that I have no wish to protect from the proper scrutiny of the PCA the actions of an administrative nature taken by court staff where these are outside the judicial process. But I regard it as being of the first importance to preserve the independence of the courts, of the judiciary and of the judicial process.
That is what this amendment is intended to achieve. It is in two parts. The first brings the administrative functions exercised by court staff within the Parliamentary Commissioner's jurisdiction by deeming them, for the purposes of Section 5 of the Parliamentary Commissioner Act 1967, to be administrative functions of the Lord Chancellor's Department or, in Northern Ireland, the Northern Ireland Court Service. The second limb prevents the Parliamentary Commissioner from investigating any action taken at the direction or on the express or implied authority of a judge.
That, I believe, gives the right balance. It will allow the PCA to investigate the administrative actions of court staff. It will prevent him from investigating actions which are taken on behalf of the judiciary. That is essential if the independence of the judicial

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process is to be preserved. It does not mean, of course, that the courts are free to act in relation to individuals in a haphazard or random way. The normal course for anyone aggrieved by a decision of the court is and will continue to be to appeal or to seek some other judicial remedy such as, for example, judicial review. These are the appropriate courses of action for reviewing decisions which are properly those of the court.
This is not an easy area. The amendment I bring forward is intended to achieve the twin objectives of allowing the PCA to invesigate purely administrative acts of officials in the courts while preserving the independence of the judiciary and of the judicial process. I commend the amendment to the House. I beg to move.
Lord Mishcon Lord Mishcon moved, as an amendment to Amendment No. 207C, Amendment No. 207D:
Line 16, at end insert ("and provided that the action is carried out competently and in accordance with the direction.").
The noble Lord said: My Lords, this is intended to be a probing amendment. We are grateful to the noble and learned Lord for having gone as far as he has done in order to see that compensation can be claimed and complaints made to the ombudsman in regard to administrative matters which are not judicial matters.
The reason for this probing amendment is to ascertain what is judicial and what is administrative. The boundaries between the two are often difficult to detect. One hopes that the probe may cause the noble and learned Lord the Lord Chancellor to give some indication and also to consider—I say this with deep respect—whether or not clearer, definitive wording could not be used so that we know where we stand on those two items of administration and the authority of the judiciary.
The House will recollect that previously a number of cases were given where solicitors complained of the treatment they had received at various courts in the form of negligence which had, in their view, seriously inconvenienced them and their clients. It is obvious to me that on a question of listing that must be a judicial matter. But what happens if the directive of the judge in regard to listing is messed up by an official of the court? Examples were given on a previous occasion and I do not want to read out all of them. However, there were examples of a mislaid file, a court being closed, no judge or registrar being available, the defendant not served and a third party notice issued in error. Those were actual examples.
It would help if the noble and learned Lord would indicate where the boundary line really lies. If he feels, as I do, that it is not sufficiently clear in the present wording of his amendment, would he consider making the distinction clear by further wording which could be produced by Third Reading or, if that is not possible because of a lack of time, then in another place? I beg to move.
Lord Simon of Glaisdale: My Lords, this is another new clause tabled by the Government between the
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second and third days of the Report stage. As my noble and learned friend said in moving the amendment, it is an area which has been controversial in the past. It is of considerable constitutional significance. I believe that the amendment has the right balance, but it is the kind of matter which deserves proper consideration at a reasonable hour before a full House. As matters have fallen out or have been arranged to fall out, that is the last benefit that it will have.
The Lord Chancellor: My Lords, this new clause has been brought forward in response to the amendment proposed at Committee stage by the noble Lords, Lord Mishcon and Lord Hacking. I have considered very carefully how to deal with the matter and, after a good deal of care and consultation, the result is what we have produced. It is a matter of jurisdiction. The action which is protected from investigation is that:
"taken at the direction, or on the authority (whether express or implied), of any person acting in a judicial capacity or in his capacity as a member of the tribunal".
I have found it hard to improve on the clarity of that wording. It is a question of circumstances in order to apply it to any particular case. If a judge's authority is behind the act then it is right that the Parliamentary Commissioner should not be able to investigate it. If one came to a place and found nobody there—which is one of the examples which the noble Lord gave—I would find it hard to believe that situation was created at the direction or on the authority, whether express or implied, of a judge or a judicial officer. It is possible that that might happen because judges, notwithstanding the excellence of their qualifications which have been and will remain necessary after the passage of the Bill, are human and they can make mistakes.
It is not the purpose of this clause to enable the Parliamentary Commissioner for Administration to look into that matter because he has his own responsibilities. The matter depends on the precise way in which the event occurred. If it occurred as a result of a judicial order then it would be immune from investigation. If it occurred because a member of the staff had not done what the judge had asked him to do, then it would be covered. That is the best test that we can devise in this area. Your Lordships may take it that we have not reached the wording of this clause without a good deal of deliberation. At the moment I do not feel that the amendment tabled by the noble Lord, Lord Mishcon, carefully prepared as it also is, would bring the matter forward.
If it is a jurisdictional matter we want, if possible, to have it decided without a full investigation of the case because that would defeat the object of limiting the investigation. But there may be some cases where a degree of investigation is required to determine on which side of the line it falls.
I have certainly had some experience of looking at individual cases to try test them out against these various lines. This seems as good a line as we can hit upon. I hope that the noble Lord will feel that his own amendment, while a well aimed probe, does not itself provide a better boundary than we already have.
Lord Mishcon: My Lords, there is no doubt that the noble and learned Lord has brought about an almost revolutionary amendment in this Bill. My gratitude must be complete and in no way diminished by the amendment I have put down. I make that quite clear. I have taken from the noble and learned Lord's words an example which I should have given before. I believe that I am right in saying now, having heard him, that if the judge or the registrar of a court had said that he wanted the date fixed for trial to be 28th February and an official issued a notice which gave the date as 27th February thereby causing everyone loss, that would not be deemed to be a direction of the judge; it would be deemed to be an inefficient way of dealing with the matter and not in fact carrying out the direction of the judge. One gets the amendment in true perspective when one talks about an example of that kind. I shall not have my gratitude diminished in any way. I am most grateful to the noble and learned Lord. I beg leave to withdraw my amendment.
Amendment No. 207D, as an amendment to Amendment No. 207C, by leave, withdrawn.
On Question, Amendment No. 207C agreed to.
Clause 77 [Time when action brought for purposes of limitation enactments]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 208:
Page 57, line 33, leave out from ("1980") to end of line 34.
The noble and learned Lord said: My Lords, I mentioned in Committee that I was considering whether to restrict the effect of what is now Clause 77 to the Limitation Act 1980, since the Civil Justice Review, on whose Recommendation No. 17 this clause is based, was solely concerned with actions for which the limitation period is set out in that Act. Originally we thought it might be right to make this a more general rule, but having regard to what has been said in Committee and to other representations made to me, I have concluded that it is best to leave this matter relating only to the Limitation Act 1980. I beg to move.
Lord Hacking: My Lords, as can be seen from Amendment No. 210, I am still unhappy about Clause 77 appearing in the Bill. I shall address the House in more detail about my concern when I move Amendment No. 210. In dealing with Amendments Nos. 209 and 210, I should like to express gratitude to the noble and learned Lord. Not only has he kindly written a letter to the noble Lord, Lord Mishcon, and given me a copy, in which he said that he would deal with the problems of the short time limits, but he also said in that letter that he had in mind to deal with problems arising out of actions in rem and problems arising when there is a foreign element in that action.
It is quite plain that the noble and learned Lord has fully dealt with the short time limits because those are time limits created not under the Limitation Act 1980 but under other Acts. I am worried whether the drafting of Amendment No. 209 will achieve his purpose in actions with a foreign element. I can see that writs in rem which are used
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in admiralty matters can be in a class of cases which could be specified by the court rules as proposed in Amendment No. 209, but I have some difficulty about a case where out of several defendants there is one overseas defendant. It seems to me that that is not a class of case. After all, it can arise in contract, tort or whatever with some defendants being within the jurisdiction and others outside it.
I am therefore somewhat troubled and I hope that the noble and learned Lord will be able to help me in the matter. In the situation which I have just described to the House, I am concerned to know whether that would fall within the description of a class of case; or would it simply be a different class of defendant? I should be most grateful for the noble and learned Lord's assistance on that point.
10.45 p.m.
The Lord Chancellor: My Lords, I must say that I should think that a case in which a particular defendant is abroad may well be a class of case; that is to say that it is distinguished from other cases in which there is no defendant abroad. I believe that the phrase we have inserted is broad enough to deal with the various situations which the noble Lord suggested. So far as concerns the first part, we have limited it to the Limitation Act.
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No. 209:
Page 57, line 38 leave out from ("(2)") to ("subsection") and insert ("Rules of court may prescribe classes of case to which").
The noble and learned Lord said: My Lords, I spoke to this amendment while answering the noble Lord, Lord Hacking, on a previous amendment. I beg to move.
On Question, amendment agreed to.
Lord Hacking Lord Hacking moved Amendment No. 210:
"Leave out Clause 77".
The noble Lord said: My Lords, I regret the fact that I must address your Lordships on this matter rather late in the evening, but I shall try not to speak at too much length. However, this is an important amendment for reasons which I shall try to explain.
In putting this clause before the House, the noble and learned Lord said that he is seeking to implement the recommendations of the Civil Justice Review. Therefore, the starting point is to examine the basis of those recommendations. This requires us to look at paragraphs 197 to 204, which are those that immediately precede the recommendation that the end date for the period of limitation should be moved from the current position—that is, the date of the issue of the writ—to the date of the service of the writ or the other proceedings.
If your Lordships were to examine the Civil Justice Review it will be seen that there was great concern, set out in some detail in Chapter 3, over delays in personal injury cases. It is with that background that the reader of the review comes to Chapter 4 and to the paragraphs to which I have just drawn your Lordships' attention.
In paragraphs 201, 202 and 203 the Civil Justice Review considers another element which has caused delay. This brought about the first recommendations to which I shall refer later. The problem here is the length of time that a writ remains valid under the rules of the Supreme Court. The present position is that it is valid for 12 months. The recommendation, which I understand has now been implemented by the Supreme Court Procedure Committee and which will be effective from June this year, is to reduce the period of the validity from 12 months to four months. The other recommendation here is that the plaintiff's statement of claim should be served not later than the end of the period permitted for service.
Those recommendations of the Civil Justice Review—the reduction of the period of the validity of the writ from 12 months to four months and the requirement that the plaintiff's statement of claim should be served not later than the end of the period for service—were reached after detailed consideration by those who worked on the Civil Justice Review and followed extensive consultation. The same does not apply to the recommendation which forms the basis for this clause. The best that the Civil Justice Review does is to note a different procedure in Scotland where the end date of the period of limitation is the date of the service of the proceedings and not the issue. The Civil Justice Review
"It is difficult to see the justification in principle for this effective extension of the limitation period for personal injury or other types of case".
It then moves on to the recommendation that is now incorporated in Clause
When reading that part of the Civil Justice Review I was anxious to ascertain whether those involved in its preparation took evidence from other quarters and considered other testimony. I was anxious to ascertain whether they considered the problems that arise out of, for example, the issue of protective writs, overseas service, and so forth. I spoke to a member of the committee who said that so far as he could recall those other matters had not been considered and that the recommendation of the Civil Justice Review arose from concern about the delay in domestic personal injury cases. In that sense, while this clause does not go further than the recommendation of the Civil Justice Review it goes further than its considerations of the problem.
I believe that we should consider the practical problems. Perhaps I may begin by drawing your Lordships' attention to the current use of the protective writ. When instructions are received it is not always plain who are the defendants who should be the subject of proceedings or in which jurisdiction proceedings should be started. The present convenience of being able to issue a protective writ, which is issued in the High Court but is not served, enables the plaintiff to be protected regarding limitation periods within that jurisdiction, and if writs are issued in other jurisdictions, also in other jurisdictions without the need to go through costly procedures of activating the proceedings.
Your Lordships may say that plaintiffs should not leave their action until towards the end of the limitation period but go about it al a much earlier stage. I see that the noble and learned Lord nods at that proposition. However, it is not always possible for even the diligent plaintiff to appreciate that he is under time bars and to take that action.
For example, when damage is latent damage and is not ascertained for some time, it is a very complicated matter—I do not want to take your Lordships through the Latent Damage Act 1986—for a plaintiff to ascertain the starting time of his period of limitation. Furthermore, if the plaintiff is a company, it may be that the management of the company has changed several times. There is therefore great difficulty in finding persons who had knowledge of the building at various stages of its construction and therefore knowledge which it is vital to establish from the point of view of identifying the beginning of the period of limitation under, as I have cited, the Latent Damage Act 1986. There are a number of possible defendants—for example the architect, the constructional engineer, the main contractor—and for example, in the case of a defective roof there is the sub-contractor who lays the roof and there are then the manufacturer or manufacturers who made the products that were used in the construction; and there may be a number of those.
It is exceedingly difficult, particularly if records have been lost and witnesses cannot be traced, to establish who is the correct defendant. In those circumstances under the present system it is very simple, if one does the best one can in working with one's client, to identify the architect, the structural engineer, the main contractor, the sub-contractor and others. Writs are then issued in the High Court, but not served. The great advantage of that is that plaintiff and defendants are not all involved in multiple actions which may prove to be wholly unnecessary.
Then during the period of the validity of the writ the inquiries can be completed and in addition one or two of the writs can be served and proceedings can be started. A much clearer picture then emerges of who is the correct defendant and who the actions should be proceeded against. That means a saving of cost because instead of the plaintiff having five, six, seven, eight or nine actions on his hands, with all the legal costs mounting on that, he has only one or two and can abandon the other actions.
It is important to say too that there is not a lax system at present about the service of the writ. I accept, with one or two exceptions, that the advantages as recommended in the Civil Justice Review are the shortening of the period of the validity of the writ. The White Book, which is the procedure book that the practitioner uses in the High Court, is quite clear about the duty to serve a writ promptly. Under Order 6, Rule 8, the notes state the position. There have been two recent cases before your Lordships' House that have considered when it is right for the period of the validity of the writ to end and whether it is right for there to be extensions of that period. The two cases were Kleinwort Benson Ltd. v. Barbrak Ltd. and Waddon v.

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Whitecroft-Scovill Ltd. Both those cases are very recent and came before your Lordships' Judicial Committee in 1987 and 1988 respectively.
The White Book summarises the situation simply by stating:
"It is the duty of the plaintiff to serve the writ promptly. He should not dally for the 12 months of its validity; if he does so and gets into difficulties as a result, he will get scant sympathy".
The present system is not lax. It works sensibly in the circumstances that I have described and enables costs to be kept down and proceedings only to be taken against those and proceeded against those where there is a good claim.
On any view the proposal of the noble and learned Lord will cause a great deal of change in procedure. It will cause changes in the procedures for service because under the present procedures—for example, by post—while one may eventually establish and satisfy the court that a document has been served, the date of that service is somewhat difficult to establish. Indeed, it is a fiction because I believe the date of the service by post is fixed under the rules for the next working day. That is by no means necessarily the day upon which the defendant received the documents.
Therefore, on any view, the noble and learned Lord's clause will cause a considerable change in the procedures for service. As a result there will be a much greater need to have total certainty about the date of that service. Whereas now if the writ is issued within the limitation period, whether it was served on Monday or Tuesday of this week or Thursday or Friday of the following week, does not matter, it will matter under the new procedure.
What I respectfully ask the noble and learned Lord is, in all the difficulties that I have described, including the difficulties of overseas service (although the noble and learned Lord seems satisfied that he can cover that) is it worth the gain? The gain is a gain of some four months, because if the period of validity of the writ is now to be reduced to four months the gain of this clause is a four-month gain. Is it worth having that gain when, at the same time, all the difficulties that I have described will have been created? I could describe many more difficulties but the hour is late and I am not going to do so. If we come back to the matter on Third Reading, I hope that we can hear this at a more reasonable time. I beg to move.
11 p.m.
The Lord Chancellor: My Lords, as the noble Lord says, the clause implements the recommendation of the Civil Justice Review, which contained quite distinguished practitioners as well as of course others. I do not know that I can do better than say what is the purpose of the Limitation Act. The purpose of the Limitation Act must have some relation to the defendant. The issue of a writ which is not served does not appear to have any particular effect on the defendant at all.
The recommendation of the Civil Justice Review is, I think, based on sound principle; namely, that the idea of the Limitation Act is to protect defendants
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against being attacked after more than a certain time, whatever the start may be. I agree that a latent damage action has a more complicated starting time than some other situations. However one goes at it, the purpose of a limitation period is to lay down a period within which a defendant is supposed to be apprised of a claim. The idea of issue without service does not apprise the defendant of anything. Therefore, in principle there is a good deal to be said for this recommendation.
I think that the exception clause we inserted allowing rules of court to make exceptions and special provisions, and so on, can deal, so far as it is necessary, with all the difficulties that the noble Lord suggested. If he has more to suggest—which is what I understood towards the end of his submission—the clause we have will be capable of dealing with those too. I believe that this is a principled recommendation by the Civil Justice Review, and so far as practical difficulties are concerned they can be minimised by the use of subsection (2). The whole purpose of the clause is to make more effective the underlying principle of the Limitation Act itself.
I hope that the noble Lord will feel able to withdraw the amendment. Of course I shall read in detail what he said in support of this amendment, and if he likes to give me details in correspondence of the other particulars that he has difficulty with I shall be glad to include them in my consideration.
Lord Hacking: My Lords, the noble and learned Lord has, as usual, given a courteous and helpful reply. I continue to have considerable misgivings about this change. I do not believe that the benefits of the change in a wide range of cases justify the change. First, the noble and learned Lord has said that he will kindly read my submissions to your Lordships, and, secondly, that he will consider any further submission that I care to make to him in writing. With that courteous and helpful response, I willingly withdraw my amendment.
Amendment, by leave, withdrawn.
11.5 p.m.
Lord Simon of Glaisdale: My Lords, I beg to move that further consideration on Report be now adjourned. It is five minutes past 11 and we are only a quarter of the way down the right hand column of the list of grouped amendments. This is the last type of Bill which should be discussed in an empty House at this hour of night. I hope that the noble Lord the Leader of the House will not quote again what I said last Thursday: that I thought that we should easily finish today. Since then 31 Government amendments, including four new clauses and a new schedule, have been tabled. They supervene upon about the same number tabled just before the Report stage began. It must be a record when Government amendments on Report exceed the number of new clauses moved elsewhere. There is an important matter still to come. There is the amendment tabled by the noble Lord, Lord Hutchinson of Lullington, to leave out Clause 79. I do not imagine that the new clause and the new schedule tabled by my noble and learned friend will take long, but the amendment

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tabled by the noble Lord, Lord Hutchinson, is bound, if it is to be properly considered, to take a long time. I therefore beg to move.
Moved, That further consideration on Report be now adjourned. (Lord Simon of Glaisdale.)
Lord Belstead: My Lords—
Lord Renton: My Lords, before my noble friend the Leader of the House replies, perhaps I may say that I support the Motion moved by the noble and learned Lord, Lord Simon. In doing so, I should just say, in order to remove any misunderstanding, that those of us who have tabled amendments have done so selectively. We have not tabled amendments to cover every point that we might have raised; we have dealt only with those points which we considered relevant and worth discussing, and worth discussing at a reasonable hour when there are a reasonable number of Members of your Lordships' House present. It so happens that we have not gone far enough tonight. The Motion deserves sympathetic consideration from the Government.
Lord Hutchinson of Lullington: My Lords, I confirm that when Amendment No. 213 was raised in Committee, it received support from all parts of the House, and it is bound to take a little time when we refer to it again.
Lord Hacking: My Lords, I too support the Motion placed before us by the noble and learned Lord, Lord Simon of Glaisdale. Everyone has been affected by the tightness of the timetable, not least the noble and learned Lord who sits on the Woolsack and his officials. While it is correct that a large number of amendments have been tabled recently by him, that has arisen out of no lack of diligence by him or his officers. This is an immensely difficult Bill. The noble and learned Lord is being most receptive to many, if not all, of our amendments. He is considering them and after considering them he is tabling amendments for your Lordships' consideration.
The matter is now becoming pressing because the noble and learned Lord is saying to us that he will be unable to table further amendments that he has agreed to consider because there is no available time left in our timetable. Those further amendments will now have to be tabled in another place which means that the House will not have completed its business.
For that reason, perhaps the Leader of the House will listen to us again when we say that the timetable of the Bill has not been correctly calculated and that more time is needed. Another day on Report is needed and a proper gap between Report and Third Reading so that the noble and learned Lord and his officials may have a proper opportunity to table further amendments and we may have a proper opportunity to look at them.
Lord Belstead: My Lords, there are two points that should make to the House. First, I understand the point made by the noble and learned Lord, Lord Simon of Glaisdale, when he says that large numbers of amendments were tabled by the Government. He
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mentioned the number of 31 as having been tabled fairly recently. As I understand it, between 15 and 20 of those were tabled in order to meet points which had been made by noble Lords at the previous stage of the Bill and that—
Lord Simon of Glaisdale: My Lords, the noble Lord is quite right, but the remaining were substantial amendments, including new clauses.
Lord Belstead: Fair enough, my Lords. Nonetheless, as I said, between 15 and 20 amendments were tabled in order to meet points that had been made previously by noble Lords.
Secondly, the noble and learned Lord said that I should not quote what was said at the previous sitting of the Bill. Obviously, we all had to forecast and we were not entirely sure, but on that occasion the noble and learned Lord gave it as his view that three days would be ample. It was on that basis that I agreed that enough was enough and that we should adjourn. On a rough estimate we adjourned for about an hour and a quarter or an hour and a half before we would have done if we had completed our list, so the time would have been about a quarter to ten in the evening instead of ten past eleven.
I am sorry, but it is not possible for noble Lords who ask for more time to have their bread buttered on every conceivable side. We cannot keep on stopping at the moment that noble Lords ask to do so and then stopping early again. I am afraid that, if the noble and learned Lord wishes to stop now, he must put it to the vote.
Lord Simon of Glaisdale: My Lords, the noble Lord the Leader of the House is always responsive to feeling in the House; indeed, he is its interpreter. The feeling in the House, as manifested from all parts of the House, is that we have gone far enough today and that the Government should find another day. They are not doing the Bill justice, they are not doing themselves justice and, above all, they are not doing justice to the reputation of this House as a revising Chamber. If the Bill is rushed through its remaining stages, as it has been rushed through so far, the message will have to go to another place that noble Lords have not been able to discuss it thoroughly and that, even with those advantages and sacrifices—in spite of amendments not being moved, particularly those not moved so that they can be discussed informally with my noble and learned friend—the Government have been extremely harsh in driving the Bill through with a tired majority waiting outside in case there is a Division and pie-eyed junior Ministers at the behest of the noble Lord the Chief Whip kept here in case there should now be a Division. As I have no doubt that the noble Lord the Chief Whip has that majority—what I called before a silent and dead majority—outside, I see no point in my pressing the matter to a Division.
However, I want to put on record the sense of outrage that is now felt at the way that the Bill is being driven through. Some day not far off, the tale will have to be told in full, going back to the debate on the Green Paper with, for one day only—

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Friday—the House sitting at 9.30 in the morning for more than a 12-hour debate and even then with names being taken off the list. So it has gone on ever since that time. It will not do the Bill any good when that fact is appreciated. It will not do the Government any good and it will not do the House any good.
11.15 p.m.
Lord Belstead: My Lords, hearing "Hear, hear" from around the House, perhaps I may remind noble Lords that a Friday was chosen for the debate on the Green Paper so that noble and learned Lords who would otherwise be engaged on their judicial duties could attend the House. Every attempt which could possibly be made has been made to accommodate the House to try to—
Lord Simon of Glaisdale: My Lords, if the noble Lord will give way—
Lord Belstead: No, my Lords, I shall not give way.
Lord Simon of Glaisdale: If the noble Lord will allow me—
Lord Belstead: I am sorry, my Lords, but the noble and learned Lord will perhaps just hear me out. Every possible attempt which could be made has been made to accommodate your Lordships' House to try to see that this very important Bill is debated fully. I say to the noble and learned Lord, Lord Simon, that instead of speaking to those who are outside the House in an attempt to try to suggest that this Bill is being rushed, we should now either vote that the Bill continues or else we should actually continue with it.
Lord Simon of Glaisdale: My Lords, if your Lordships would allow me, I should like to speak again in view of what the noble Lord the Leader of the House said about the debate on the Green Paper. It was put in on a Friday. That undoubtedly allowed the Lords of Appeal in Ordinary to attend because they do not sit judicially that day, although they do work that day on the cases that they have heard and are about to hear. In any case, that excuse gets absolutely nowhere because the debate could perfectly well have been held on two days, one of them a Friday. If excuses of that sort are put forward, your Lordships are bound to look at the Government's case on the conduct of this business with considerable suspicion. I ask leave to withdraw the Motion.
Motion, by leave, withdrawn.
The Lord Chancellor The Lord Chancellor moved Amendment No. 211:
After Clause 78, insert the following new clause:
(" Administration of oaths and taking of affidavits.
—(1) In this section—
"authorised person" means—
(a) any authorised advocate or authorised litigator, other than one who is a solicitor (in relation to whom provision similar to that made by this section is made by section 81 of the Solicitors Act 1974); or
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(b) any person who is a member of a professional or other body prescribed by the Lord Chancellor for the purposes of this section; and
"general notary" means any public notary other than—
(a) an ecclesiastical or district notary; or
(b) one who is a member of the Incorporated Company of Scriveners (in relation to whom provision similar to that made by this section is made by section 65 of the Administration of Justice Act 1985).
(2) Section 1(1) of the Commissioners for Oaths Act 1889 (appointment of commissioners by Lord Chancellor) shall cease to have effect.
(3) Subject to the provisions of this section, every authorised person shall have the powers conferred on a commissioner for oaths by the Commissioners for Oaths Acts 1889 and 1891 and section 24 of the Stamp Duties Management Act 1891; and any reference to such a commissioner in an enactment or instrument (including an enactment passed or instrument made after the commencement of this Act) shall include a reference to an authorised person unless the context otherwise requires.
(4) Subject to the provisions of this section, every general notary shall have the powers conferred on a commissioner for oaths by the Commissioners for Oaths Acts 1889 and 1891; and any reference to such a commissioner in an enactment or instrument (including an enactment passed or instrument made after the commencement of this Act) shall include a reference to a general notary unless the context otherwise requires.
(5) No person shall exercise the powers conferred by this section in any proceedings in which he is interested.
(6) A person exercising such powers and before whom any oath or affidavit is taken or made shall state in the jurat or attestation at which place and on what date the oath or affidavit is taken or made.
(7) A document containing such a statement and purporting to be sealed or signed by an authorised person or general notary shall be admitted in evidence without proof of the seal or signature, and without proof that he is an authorised person or general notary.
(8) The Lord Chancellor may, with the concurrence of the Lord Chief Justice and the Master of the Rolls, by order prescribe the fees to be charged by authorised persons exercising the powers of commissioners for oaths by virtue of this section in respect of the administration of an oath or the taking of an affidavit.
(9) In this section "affidavit" has the same meaning as in the Commissioner for Oaths Act 1889,").
The noble and learned Lord said: My Lords, the purpose of this amendment is to extend to authorised litigators and advocates the same powers to administer oaths as are currently enjoyed by solicitors and scriveners; notaries. The existing arrangements enable the Lord Chancellor to extend these powers to others whom he considers "fit and proper" to exercise the right to administer oaths. It is more sensible if this somewhat piecemeal arrangement is discontinued. It will certainly be less confusing to the public. At the same time this amendment will safeguard the public by maintaining standards.
As noble Lords know, the Bill provides a framework for ensuring that those who provide legal services to the public are properly qualified and subject to rules of professional discipline. I therefore commend this amendment to your Lordships. I beg to move.
Lord Mishcon: My Lords, my comment will take precisely one minute. Does this mean that the age-old title of commissioner of oaths is now to be abolished? I declare an interest. I have been one for 35 years and it will be difficult for me not to sign "Commissioner for Oaths" myself.
Lord Renton: My Lords, I also will occupy the time of your Lordships' House for only one minute. Perhaps I may say that when I saw this amendment on the Marshalled List I found it rather surprising that it came into this Bill at all. It seems to me a new departure and one which normally would require very considerable and detailed thought and consultation with outside bodies. Frankly, speaking for myself, I have not had the chance of that consultation. But there it is. At 20 minutes past 11 at night we have this new departure of some importance bringing about quite a considerable change. I suppose that we have to accept it.
The Lord Chancellor: My Lords, I think there is nothing in this amendment that would prevent the noble Lord, Lord Mishcon, from continuing to call himself a commissioner for oaths if he wishes to do so.
Lord Mishcon: My Lords, I am most grateful.
On Question, amendment agreed to.
Clause 79 [Bail applications]:
Lord Hacking Lord Hacking moved Amendment No. 212:
Page 59, leave out lines 11 and 12.
The noble Lord said: My lords, I believe that this is an important amendment. It seeks to do the best with Clause 79, if that clause is to stay in the Bill. I should therefore say that I intend to give full support to the noble Lord, Lord Hutchinson, when he addresses your Lordships—as he will in a moment—to leave out Clause 79 altogether.
If Clause 79 is to remain in the Bill, it is important to ensure that it cannot be abused. If lay presenters were to be given general instructions such instructions might cover such matters as always opposing bail if the police had objections to it, or never opposing bail in defined categories of cases, and so on. That would be wholly contrary to the important principle that in each case the question of bail should be decided on its merits.
The Crown prosecutor should put forward the prosecution's view of the matter having carefully considered all the circumstances of the case. It may be that lay presenters are not able to do that, but the solution to that problem is not to use lay presenters or to give them directions for each case rather than requiring them to follow general instructions. There may be some matters on which general instructions may be appropriate. However, since the clause as drafted would permit general instructions to be given in inappropriate circumstances, I believe that the provision should be removed. If a narrower, clearer provision is needed then the noble and learned Lord the Lord Chancellor should come forward with it. I beg to move.
Lord Renton: My Lords, I wish very briefly to support the amendment partly because I do not understand exactly what it would imply.
"Any such instructions may be given so as to apply generally",
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are vague words of unlimited application. It is worth considering whether they should be omitted altogether.
The Lord Chancellor: My Lords, the effect of the amendment, as has been stated, is that instructions given by the Director of Public Prosecutions to staff who are not Crown prosecutors in relation to bail applications may now be given so as to apply generally. I must say that I do not find it difficult to understand those words. "Generally" means without reference to a particular case but reference to cases generally.
The amendment would make it considerably more difficult to manage this work in a uniform way and would involve a complete waste of resources. For example, there are occasions when a series of applications has to be made in relation to one particular set of circumstances. The issuing of a fresh set of instructions in each of such cases would lead to a wholly unnecessary duplication of work without any compensatory benefit of better scrutiny.
It is a perfectly reasonable provision to allow the management of these matters to operate properly. The instruction would not be general unless it applied generally. I therefore hope that the noble Lord will feel that taking this subsection out does not advance matters in the slightest.
Lord Mishcon: My Lords, before the noble and learned Lord sits down, could he consider whether or not there should be clearer wording? Some people have interpreted the provision—they may be quite wrong; and they obviously are wrong from what the noble and learned Lord has said—as general instructions. For example, "Please oppose bail if ever the police oppose bail." That has been construed from the words referring to general instructions.
If I may so most respectfully, I realised that the meaning of the words was precisely as the noble and learned Lord has given to the House. Unfortunately, it is capable of being misconstrued. Would the noble and learned Lord care at least to take that point on board?
The Lord Chancellor: My Lords, with the leave of the House, I shall certainly take that point on board. However, the objection which is being voiced is that it is possible to give a bad general instruction. One can also give a bad special instruction. The quality of the instruction cannot be determined by the drafting of the power to give instructions. We are dealing here with a power to give instructions and are saying, "You need not give an instruction that applies only to particular cases; you can give a general instruction. For example, have a good look at the evidence and look particularly for these features in it". I do not suggest that that is anything more than an example of my own.
I have had experience of giving general instructions which I hoped were good and could be applied by the individual in question to particular cases. Destroying the power to give general instructions is not necessary or desirable in the interests of ensuring that the general instructions given are good. If I could devise a form of words

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that would ensure that the instructions given were always good, I should be happy to do so. However, that is a fairly challenging task. Nevertheless, I am happy to consider what the noble Lord has said.
Lord Hacking: My Lords, it is important that the instructions should be given to the lay person who is making the representations on a case-by-case basis so that each case is handled on its own merits and does not fall into any general format. I shall not press the amendment further. I hope that the noble Lord, Lord Hutchinson, will press his amendment a great deal further. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Hutchinson of Lullington Lord Hutchinson of Lullington moved Amendment No. 213:
Leave out Clause 79.
The noble Lord said: My Lords, I apologise for raising the matter at this time of night. Principally, I apologise to the noble and learned Lord on the Woolsack. His fortitude is quite remarkable and his good nature goes on hour after hour. To ask anyone to sit as he has throughout the whole of this day and into the night at half past eleven, and then to listen to yet another submission, appears to be trying him, if no one else, too far.
I raise the matter again because of the wide support that I received in Committee from all parts of the Chamber. I was further encouraged because on that occasion the noble and learned Lord said that he would have a further opportunity of considering it.
The clause is a further attempt in the Bill to introduce a right of audience outside the mechanism and to have an exception in the Bill. I suggest that the clause is in the Bill for one reason only; it is in order to help the Director of Public Prosecutions to overcome the chronic shortage of staff from which the Crown Prosecution Service is suffering. It appears from evidence given to the Home Affairs Committee that one quarter of all the CPS appearances are now being farmed out to agents at a substantial cost to the Exchequer.
The clause enables the DPP to use unqualified staff to carry out one of the most important duties of a prosecuting advocate—that is, representing the Crown when a defendant seeks release on bail before a judge. That is not a good basis on which to solve a recruitment problem or to save money.
Using unqualified staff in that way, of course, will release qualified staff to appear in other courts and to reduce that huge expenditure of using agents.
Those are the reasons for the clause to be there. The reason for it being necessary are threefold. In 1988 the Divisional Court held that the Director was acting unlawfully in using unqualified staff to do jobs which the Prosecution of Offences Act, when it set up the CPS, stated in terms should only be done by qualified lawyers. Therefore, that hurdle had to be overcome. That is why the clause is necessary.
Secondly, as all your Lordships well know, Clause 24 states that from now on the right of audience
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can only be obtained in accordance with the new mechanism. Therefore that obstacle had to be overcome by this clause. That is why it is here; to make an exception.
Bail applications raise crucial questions of personal liberty on the one hand and of the public interest on the other. Judges are overwhelmingly dependent on skilled and experienced presentation of both the facts and the law relevant in the case. After all, these are cases of serious, and often very serious, crime. Uniquely, that information at that stage of the proceedings is in the possession of the prosecution. A mistaken decision made perhaps on lack of information or wrong information may mean months of imprisonment for an innocent or untried citizen or it may on the other hand mean that a member of the public is subjected to further criminal acts.
In their evidence to the Home Affairs Committee, the Magistrates' Association, the Metropolitan Police and Justice all complained of the inadequacy of the attention paid to bail applications by the Crown Prosecution Service. As I pointed out in Committee, in 1988 no fewer than 19,000 accused persons—that is, 40 per cent. of all those remanded in custody in this country during that year—were either acquitted or given a non-custodial sentence at the outcome of their trial.
That statistic is disgraceful. It shows in itself that something is wrong somewhere with our bail procedures. I do not suggest that it is all due to Crown Prosecution representation—of course not. However, the Crown Prosecution Service must take the major responsibility for providing the correct information for judges and magistrates in these matters.
The representative of the Crown must be ready to deal with submissions made by the applicant's advocate. Those representations are sometimes made by very experienced and skilled advocates for the defence. The proceedings are in private. No transcript is made. Therefore, scrupulous professionalism is necessary. I suggest to your Lordships that it is simply unacceptable for a matter of such serious import to the liberty of the subject to be decided on the basis of recruitment of one agency in the criminal process and simply to save costs or, to use the expression in the White Paper, as an efficient use of resources.
The noble and learned Lord was kind enough to enter into some correspondence with me over this matter, and I have been assured that the senior judiciary approve of this clause. I can only say to your Lordships that the criminal advocates and the Criminal Law Bar Association certainly do not do so. I beg to move.
Lord Renton: My Lords, we discussed this matter in Committee after 2 o'clock in the early morning. We are now discussing it at 25 minutes to midnight. Liberty of the subject is involved. I must say that I did not know the statistics produced by the noble Lord, Lord Hutchinson, but I think that we should take them very seriously.

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The Bail Act is not one of the simplest measures on the statute book. It needs understanding and it needs conscientious application on the part of those who are prosecuting. Those of us who, in the rough and tumble of the common law, were brought up to appear for the prosecution from time to time as well as for the defence, always had it impressed upon us by those who preceded us in the profession that we should never be persecutors; that as prosecutors we should always lean over backwards in favour of the subject, although we had a duty to present the case for the Crown and to do so firmly.
One must not be mealy-mouthed, but it would be idle for us to assume that all those in a relatively minor position in the Crown Prosecution Service without the kind of training that I mentioned, necessarily follow that wise precept. Indeed, as has been said on other occasions, it has been found—not very often but from time to time—that members of the Crown Prosecution Service consider it their duty to oppose bail, if they possibly can, by any means on practically every occasion and that their success within the service will depend upon their so doing. That is a wrong attitude for us to allow to develop.
The noble Lord, Lord Hutchinson, put forward a case which should ensure, perhaps only in a minority of the cases concerned, that the worst does not happen. However, as the liberty of the subject is concerned, we must look at the minority of cases. Bad cases make bad law. We must do all that we can to find a means of preventing people from being kept in custody. God knows! the prisons are overcrowded enough. I gladly support the Motion of the noble Lord.
Lord Hacking: My Lords, I should also like to support the Motion of the noble Lord. The point of establishing a CPS was not simply to ensure that a service independent of the police made prosecution decisions; it was to ensure that decisions were made by qualified lawyers. That was the principle, for example, underlying a judicial review case in which the Association of First Division Civil Servants successfully challenged the practice of the CPS to allow unqualified staff to screen cases for prosecution.
Bail applications must not be seen as a mere formality which can be presented by an unqualified person. The outcome determines, on the one hand, whether an unconvicted person nevertheless spends time in custody before trial; on the other hand, whether somebody who may be a danger to the public is to be allowed to remain free prior to trial. It is an extremely sensitive balance between the rights of the individual and the right to protect the public at large. It lies at the very heart of all contested bail applications.
Lord Mishcon: My Lords, I rise only to make a brief point. I have every sympathy with anyone trying to see that bail is granted on every conceivable occasion when it should be, and I also obviously appreciate the reference to the liberty of the subject. But one would have thought from hearing this debate that the decision on whether or not bail is to be granted was made by the Crown Prosecution Service.
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The decision is in the hands of the magistrate or the judge. We are assuming from this debate that the judge or the magistrate does not know the provisions of the Bail Act, that he has no clerk to guide him and that what the Crown Prosecution Service says, whether the member is qualified or unqualified, will determine the outcome. I do not accept that situation in regard to our courts. If I did I would have something to say about the judges and the magistrates, not the Crown Prosecution Service.
Lord Hutchinson of Lullington: My Lords, before the noble Lord sits down, that was not what was said. If the noble Lord had heard correctly, it was said that the judge or magistrate depended almost entirely on the Crown Prosecution Service for the information, both on law and fact, on which to make a proper judgment.
Lord Mishcon: My Lords, I accept that everybody appearing before a judge or magistrate has a duty to get hold of the facts and to tell the truth. It is the judge who ought to know the Bail Act provisions and what he ought to do. I do not accept the proposition that a qualified person tells the truth and an unqualified person does not.
The Lord Chancellor: My Lords, I understood my noble friend Lord Renton to say that he knew of situations where members of the Crown Prosecution Service had been instructed to oppose bail on every occasion and that their promotion in the service depended on their success in that regard. I may have misunderstood my noble friend but, if he said that, I should certainly like to have the details because I should like to bring the matter to the attention of my right honourable friend the Attorney-General whose responsibility it is to supervise the service.
Lord Renton: My Lords, perhaps my noble and learned friend will allow me. I am not conscious of having described the situation in that way. I certainly did not intend to do so. I intended to suggest that there were some members of the Crown Prosecution Service who might feel that their future success within the service depended upon their success in opposing bail. That is a different matter, and I think that that is how I put it.
The Lord Chancellor: My Lords, I am obliged to my noble friend. If he can tell me of someone in the Crown Prosecution Service who has that understanding I should certainly like to know. If I misunderstood I am happy to accept my noble friend's assurance that he did not put the matter in the way I suggested. I am sure it is my fault.
The history of this matter, as has been said, is that the decision of the Crown Prosecution Service to use unqualified people to screen certain types of action was challenged successfully in the Divisional Court. The decision-making then in question was whether or not a prosecution should continue. It was decided in the Divisional Court that that had to be done, in terms of the Prosecution of Offences Act, by qualified people. There is no intention whatever to depart from that decision.

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Until that decision was reached it had been the practice of the Crown Prosecution Service to use unqualified people, selected for that purpose by the director, to deal with bail applications. As the noble Lord, Lord Mishcon, said, the bail applications are before a tribunal and the judge or the magistrate can ask questions and be satisfied on these matters. My understanding is that that practice was entirely acceptable. I do not know of any specific complaint relating to it when that practice occurred. The purpose of the provision of this clause is to enable that practice to recommence. The reason that we have dealt with it separately is in order that it might receive separate consideration.
It is analogous to the situation where solicitors' clerks are allowed to appear before a judge in chambers. That is to allow applications on bail matters to be made in private by people authorised to do so by the Director of Public Prosecutions and subject to his instructions. We can have confidence that his instructions will be appropriate in relation to a case whether in general or with reference to its particular circumstances.
That is a way of giving service to the judge who is deciding the case and it is perfectly appropriate. The responsibility for the service will be on the Crown prosecutor who is responsible for the decision-making in the case in accordance with the decision in the R v. DPP ex parte FDA case. I humbly suggest to your Lordships that this is an entirely appropriate provision to make and a proper use of resources. I believe that a legal qualification is not necessary for the purpose of informing a judge or magistrate with experience of the facts relating to a case.
As regards the statistics, I do not consider them relevant to this question. The period to which they refer includes a good part after the decision of the Divisional Court in the case stated. The statistics apply to part of the period when this practice was not being followed. It may be that more people close to the case and able to speak on bail applications will make the decision-making better because there may be more detailed facts available.
Therefore, I do not consider that any good reason in principle has been advanced for deleting this clause. I hope that your Lordships will allow it to stand as part of the Bill.
Lord Hutchinson of Lullington: My Lords, the point of the statistics was not to show that the unqualified clerks had not been doing their jobs properly, but that in the matter of granting or refusing bail there was something wrong in the system which therefore required persons with the very highest qualifications to improve it.
In view of the procedures of this House it would be simply a farce to divide because there is no House to divide. That of itself is a comment on our procedures. I can only hope that in another place this matter will be raised again and perhaps dealt with on a more satisfactory basis.
As far as I am concerned, it is incredible that unqualified personnel are to be given rights of
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audience where the liberty of the subject is in issue. To hear the noble and learned Lord say that in such situations unqualified clerks are appropriate seems to stand the administration of justice on its head. I find this clause to be the very first fruits of the dilution being set in motion in this Bill. It is a sad moment. Nevertheless, there is nothing I can do but to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 80 [Law reports]:
Lord Mishcon Lord Mishcon moved Amendment No. 214:
Page 59, line 16, at end insert ("is a solicitor or").
The noble Lord said: My Lords, this is an important amendment. Noble Lords may be amazed to learn that if in arguments on law one wishes to cite a law report in the High Court one has to satisfy the court strictly—I say "strictly" for a reason I shall give in a moment—that it is a report prepared by a barrister. The barrister can be of very new call, but that is the position. If one tells the learned judge that the report was prepared by a solicitor, strictly it is not admissible as a report to be recognised.
One of the main series of law reports in this country is the often cited All England Law Reports. I hold in my hand a letter from the editor of the All England Law Reports. He sent it to me on purpose so that I could receive it in time to read it to the House. It contains some amusing passages which at this time of night, provided I keep them short, may be acceptable to the House in order to keep noble Lords awake. The letter says:
"In my view the present system is outmoded, restrictive, wasteful and adds unnecessary expense to the cost of law reports. Moreover, in my experience the rules are being disregarded more and more and are now falling into disrepute. I have never heard of a judge refusing to accept the citation of a report because it was not vouched for by a barrister. Quite apart from anything else, there are now not enough barristers interested in being law reporters to enable the many new specialist series of reports to abide by the rules and I think this is now tacitly recognised by the judges. In the case of specialist reports the tendency now is for them to be produced and edited by experts in the field regardless of whether they are barristers or not. To give an example, a new series of aviation reports to be launched shortly will be edited by a solicitor who is the leading UK expert in the field".
He goes on to say:
"I accept that some form of monitoring of cases is necessary to determine which are reportable and which are not … I would welcome any widening of the field from which law reporters might be recruited. I do not believe that the quality of law reporting would suffer in any way—in fact it would probably be improved".
I come now to the part which ought to amuse your Lordships:
"Finally, to give an indication of how absurd the present situation is, there is no rule which says that the editor of a series of law reports must be a barrister and therefore, although I am not an English barrister, there is nothing which says that I cannot be the editor of the All England Law Reports and yet I am not permitted to be a reporter for the series of reports I edit".
I am most grateful to noble Lords for being amused. The purpose of the amendment is to see to it that a law report prepared by a solicitor, even if he does not hold full rights of audience, ought to be admitted. It is only sensible that it should be. I beg to move.
Lord Hutchinson of Lullington: My Lords, it is quite clear that there is here an absolutely disgraceful restrictive practice. I rise to my feet as a member of the Bar to say that I was not aware of this restrictive practice. It most certainly should be struck down even at five minutes to midnight.
Lord Donaldson of Lymington: My Lords, I can only add that we should have struck it down years ago. I have never inquired whether a report was prepared by a barrister, a solicitor or anyone else. However, I know which are the good reports and which are not; but that is a quite different matter.
The Lord Chancellor: My Lords, this clause is rather carefully phrased and simply equates the report given by someone with a Supreme Court qualification with the authority it would have had if it had been made by a barrister. Therefore, it is not perhaps such a restrictive practice as contemplated by the amendment. However, it would not be right for me to turn the proposition down out of hand at this time of night, especially having regard to the pleasant way in which it was moved. In the circumstances, I am happy to accept the amendment.
Lord Mishcon: My Lords, I am most grateful to the noble and learned Lord.
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No. 215:
After Schedule 11, insert the following new schedule:
("SCHEDULE
MINOR AMENDMENTS
The Naval Agency and Distribution Act 1864 (c. 24)
1. In section 7 of the Naval Agency and Distribution Act 1864 (certain persons incapable of being ship's agents) the words "or a proctor, attorney or solicitor" shall cease to have effect.")
The Attachment of Earnings Act 1971 (c. 32)
2. In section 6 of the Attachment of Earnings Act 1971 (effect of attachment of earnings order), the following subsections shall be added at the end—
"(9) The Lord Chancellor may by order make such provision as he considers expedient (including transitional provision) with a view to providing for the payment of amounts deducted under attachment of earnings orders to be made to such officers as may be designated by the order rather than to collecting officers of the court.
(10) Any such order may make such amendments in this Act, in relation to functions exercised by or in relation to collection officers of the court as he considers expedient in consequence of the provision made by virtue of subsection (9) above.
(11) The power to make such an order shall be exercisable by statutory instrument.
(12) Any such statutory instrument shall be subject to annulment in pursuance of a resolution of either House of Parliament."
3. In section 23 of that Act (powers of judge in relation to failure by debtor to comply with order etc.) the following subsection shall be inserted at the end—
"(11) A district judge, assistant district judge or deputy district judge shall have the same powers under this section as a county court judge."
The Solicitors Act 1974 (c. 47)
4. In section 2 of the Solicitors Act 1974 (training regulations), the following subsections shall be added at the end—
"(4) Where, under Schedule 4 to the Courts and Legal Services Act 1990 (approval of certain regulations in connection with the grant of rights of audience or rights to conduct litigation), the Lord Chancellor, the Lord Chief Justice or the Master of the Rolls approves any regulation made under this section he shall be taken, for the purposes of this section, to have concurred in the making of that regulation.
(5) Subsection (4) shall have effect whether or not the regulation required to be approved under Schedule 4 to the Act of 1990."
5. In section 31 of that Act (rules as to professional practice, conduct and discipline), the following subsections shall be added at the end—
"(3) Where, under Schedule 4 to the Courts and Legal Services Act 1990 (approval of certain rules in connection with the grant of rights of audience or rights to conduct litigation), the Master of the Rolls approves any rule made under this section he shall be taken, for the purposes of this section, to have concurred in the making of that rule.
(4) Subsection (3) shall have effect whether or not the rule required to be approved under Schedule 4 to the Act of 1990."
The Magistrates' Courts Act 1980 (c.43)
6. In section 125(2) of the Magistrates' Courts Act 1980 (provision for certain warrants relating to enforcement of fines to be executed by persons other than constables) for the words "a fine" there shall be substituted "any sum adjudged to be paid".
The Supreme Court Act 1981 (c.54)
7. In section 5(3) of the Supreme Court Act 1981 (judges to sit in other divisions of the High Court at the request of the Lord Chancellor) for the words "Lord Chancellor" to the end there shall be substituted "Lord Chief Justice made with the concurrence of the President of the Family Division or the Vice-Chancellor, or both, as appropriate".
The County Courts Act 1984 (c.28)
8. For section 73(1) of the County Courts Act 1984 (register to be kept of judgments exceeding the relevant amount), there shall be substituted—
"(1) A register of every judgment entered in a county court shall be kept in such manner and in such place as may be prescribed."
9. In section 77 of that Act (appeals: general provisions) after subsection (1) the following subsection shall be inserted
"(1A) Without prejudice to the generality of the power to make county court rules under section 75, such rules may make provision for any appeal from the exercise by a district judge, assistant district judge or deputy district judge of any power given to him by virtue of any enactment to be to a judge of a county court."
10. In section 103 of that Act (execution out of the jurisdiction of the court), the following subsection shall be added at the end—
"(6) County court rules may make provision for the suspension of any judgment or order, on terms, in connection with any warrant issued with respect to any instalment payable under the judgment or order."
11. In section 138 of that Act (forfeiture for non-payment of rent), in subsections (2), (3), (5), (7), (8) and (9) (which relate to relief from forfeiture on payment into court of rent and costs), after the words "into court", in each place where they occur, there shall be inserted "or to the lessor".
12. In Schedule 1 to that Act, paragraphs 2(3) and 3 (restrictions on hearing of replevin actions in the High Court) shall cease to have effect.").
The noble and learned Lord said: My Lords, in moving this amendment I should like to speak also to Amendments Nos. 219A, 221, 230 and 235. These

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amendments would make a number of minor changes to existing statutes to bring them into line with the Bill's provisions; to facilitate implementation of the Bill; or simply to effect minor improvements.
The amendments are primarily concerned with business in the civil courts. Those items deal with more flexible arrangements for the courts' judicial and administrative work in connection with attachments of earnings payments; simpler arrangements for the transfer of High Court judges between the different High Court divisions, by vesting the relevant authority in the Lord Chief Justice and not the Lord Chancellor; a requirement to register all county court money judgments; the powers of district judges and the right of appeal against their decisions; confirmation of the power of one county court to suspend a judgment of another county court where a warrant for its execution has been issued by the first court; a new right for tenants facing proceedings to obtain automatic relief by paying arrears to the landlord instead of the court; and provision for replevin actions to be brought in either the High Court or county courts.
This series of minor amendments has been brought together in a new schedule in preference to its insertion in the body of the Bill. I believe that the amendments are worth while. Many of them will clearly pave the way for worthwhile improvements in the handling of court business and I commend them to your Lordships. I beg to move.
On Question, amendment agreed to.
Lord Mishcon Lord Mishcon moved Amendment No. 215A:
After Clause 82, insert the following new clause:
("Legal Aid.
—(1) Notwithstanding any regulations made under section 8 of this Act, no application for legal aid under the Legal Aid Act 1988 shall be refused on the grounds that lay persons have rights of audience in the court of proceedings concerned.
(2) Notwithstanding the provisions of Part 11, legal aid under Part IV and Part V of the Legal Aid Act 1988 shall, except for proceedings in the magistrates court, consist of representation by solicitor and where the assisted person so wishes by counsel.").
The noble Lord said: My Lords, I shall try to make my speech even shorter than the last one. The noble and learned Lord accepted with very good grace and understanding the fact that nothing in the Bill was intended to interfere with the rights of the citizen to legal aid. This amendment, which I hope he will find acceptable, states that when the question arises under the Bill of lay persons having the right of audience it does not mean that the legal aid people can turn to an applicant and say, "Well, you know, you could have a lay person to deal with the matter and I think that you should do so".
Obviously, the applicant for legal aid must be entitled to the normal provisions which would enable a solicitor or counsel to represent him or her. The noble and learned Lord was good enough to accept the principle in connection with another amendment which was moved earlier and, therefore, I hope that he will accept it now. I beg to move.
The Lord Chancellor: My Lords, the amendment proposes a new clause with two subsections, each dealing with a different proposition. So far as concerns the first proposition, the situation is that it may be necessary to consider precisely where legal aid is required. I do not believe that the question of whether legal aid is required depends upon lay persons having rights of audience. On the other hand, there may well be situations in which it would be right for some form of assistance to be provided to enable people to receive lay assistance as well as the more general legal aid type of professional assistance by solicitors, counsel or other qualified advocates.
The second part of the amendment is a rather different proposition. It appears to reserve legal aid work to solicitors and counsel only. If there are qualified advocates who are neither solicitors nor counsel it may be appropriate that they should also be instructed. Obviously that is a matter which lies primarily with the client. However, as at present, where counsel is to be instructed in circumstances where solicitors might have rights of audience, the question of cost and the appropriateness of the case should be considered.
The precise relationships between the legal aid provisions and the provisions of the Bill need to be worked out in some detail. I am doing my best to provide a series of amendments to deal with that matter. I believe that that will be part of the consideration of the Bill in another place. The general principle that I have in mind is that the legal aid scheme should provide advice and assistance in the presentation of a case which is appropriate for that case in the light of the client's requirements, enabling the client to make full use of whatever provisions may be available to him under the Bill.
I hope that in the light of that explanation the noble Lord will feel able to withdraw the amendment.
12 midnight
Lord Mishcon: My Lords, as I understand it the noble and learned Lord said that he adheres to the principle that the applicant for legal aid would be entitled to the best possible assistance that legal aid authorities could give him. In addition, the legal aid authorities would not be able to hit upon a more economical way of giving assistance merely because it was more economical. They would have to be satisfied that it was satisfactory legal aid. As I understand it, that is the principle.
The Lord Chancellor: My Lords, that is a reasonable statement of what I have in mind. They would have to be satisfied that it was appropriate that legal aid of that standard should be supplied. Subject to the means tests, and so on, they would have the obligation to supply it.
The noble Lord understands that there are classes of proceedings, such as small claims, in which legal aid might not be appropriate. I am sure that he does not intend to deal with that particular situation. Therefore, I believe that the understanding between us is fairly clear.
Lord Mishcon: My Lords, I find that it normally is, and that is very pleasant. I further understand that the noble and learned Lord is considering amendments generally which will not come before this House but will be considered in another place because they have to be thought out carefully and are very comprehensive. I also understand that he will bear that principle in mind when dealing with the matters covered by the amendment. If that is the understanding I am very pleased to beg leave to withdraw the amendment.
The Lord Chancellor: My Lords, before the noble Lord sits down I should like to make it clear that I wish to have flexibility to consider how best legal aid could be provided. For example, the Legal Aid Board is considering the possibility of its being able to fund legal advice centres or the like. That may well be the best way of helping people in certain types of cases, such as housing cases. I hope that the noble Lord understands that I am considering that as a possible way of giving assistance in some kinds of case.
I do not wish in any way to give the noble Lord the impression that the only kind of legal aid that one is considering for the future is legal aid under what one might call the traditional arrangement of solicitor and counsel. I also wish to consider other methods of giving help to people which may be considered more appropriate as circumstances develop.
Lord Mishcon: My Lords, I quite understand that position. I still ask for leave to withdraw the amendment on the basis of the understanding which I think I have with the noble and learned Lord. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 83 [Interpretation]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 216:
Page 61, line 9, at end inser—
(""duly certificated notary public" has the same meaning as it has in the Solicitors Act 1974 by virtue of section 87(1) of that Act;").
The noble and learned Lord said: My Lords, I have already spoken to this amendment. I beg to move.
On Question, amendment agreed to.
[Amendments Nos. 217 and 218 not moved.]
The Lord Chancellor The Lord Chancellor moved Amendment No. 218A:
Page 61, line 37, leave out ("on behalf of a client").
The noble and learned Lord said: My Lords, this amendment corrects a discrepancy between the definition of "rights to conduct litigation" in Clause 83 and the categories of person entitled to possess a right to conduct litigation listed in Clause 25. This is a drafting amendment. I beg to move.
On Question, amendment agreed to.
Clause 84 [Regulations and orders]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 218B:
Page 62, line 10, leave out ("or 34(9)") and insert ("34(9), 37(1), 45, 47 or paragraph 4 to 6 of Schedule (Probate)").
The noble and learned Lord said: My Lords, the question whether the regulation and order-making powers contained in various parts of the Bill should be subject to affirmative or negative resolution procedure is an old friend from the Committee stage. I indicated then in the light of the arguments put forward so persuasively by my noble and learned friend Lord Simon of Glaisdale, my noble friend Lord Rippon of Hexham and others that I would ensure, where I had not already done so, that where they conferred powers to amend primary legislation, even in a limited sense, such regulations would be subject to the affirmative resolution procedure. This amendment achieves that aim subject to one point about rule-making in which I have gone along with the present system for rule-making. I beg to move.
Lord Simon of Glaisdale: My Lords, this amendment arises out of an amendment that was moved with support throughout the Chamber. It relates primarily, and I think suitably, to Henry VIII clauses. My co-signatories kindly authorised me to negotiate the details of the concession that was made in broad terms by my noble and learned friend in Committee. We have corresponded, but owing to the Report stage following so quickly on the Committee stage, I have not been able to report back to my co-signatories. For myself I am content with what my noble and learned friend has done. If my co-signatories are not content, we can always return to the matter on Third Reading.
Broadly speaking, my noble and learned friend has removed altogether two of the most objectionable of the Henry VIII clauses. Of the rest he has, broadly speaking, provided that they should be subject to the affirmative resolution procedure. There are two exceptions to that. One occurs on Clause I where my noble and learned friend has amended the clause so that in effect what was a Henry VIII provision is now subject to affirmative resolution procedure. The other is on Clause 23 where, speaking for myself, I was convinced that my noble and learned friend was right and that the two parts of the clause hung together. Therefore I was content that they were both subject to affirmative resolution.
The third matter is the one to which my noble and learned friend has just referred; namely, he made one exception which I think is acceptable. It relates purely to matters of practice and procedure. There are many precedents for treating it in the way he wishes to treat it. However, I think that of the co-signatories only the noble Lord, Lord Mishcon, is present this evening. I shall report to them as soon as the Report stage is over.
For myself I am content with what my noble and learned friend has done, and I thank him for it. That does not mean that we think that Henry VIII clauses, certainly not on the scale in which they were introduced in to this Bill, are other than objectionable save in very limited circumstances.

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Certainly the Donoughmore recommendation that they should be carefully explained and justified has now been accepted. Why it was not accepted before after the matter was so fully ventilated on the Children Bill last Session I do not know. I do not wish to derogate from my expression of gratitude for what my noble and learned friend has done, so I say no more than "thank you".
On Question, amendment agreed to.
Clause 87 [Extent]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 218C:
Page 63, line 2, leave out ("61") and insert ("(Abolition of abatement of salary rule for judges etc.)").
The noble and learned Lord said: My Lords, I have already spoken to this amendment with Amendment No. 196ZA. I beg to move.
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendments Nos. 218D and 218E:
Page 63, line 3, leave out paragraph (b) and insert—
("(b) sections 76, (Jurisdiction of the Parliamentary Commissioner for Administration), 81, 82 and 85 to 89;").
Page 63, line 10, leave out ("Part II of Schedule 11 and Schedule 12") and insert ("Schedules 11, (Minor Amendments), 12 and 13").
The noble and learned Lord said: My Lords, with Amendment No. 218D I take No. 218E. With your Lordships' permission I shall move them en bloc. These two amendments revise and update the clause governing the application of this Bill in Northern Ireland to include the jurisdiction of the Parliamentary Commissioner for Administration regarding staff of the Northern Ireland court service; the whole of Schedule 11 containing amendments to the Children Act 1989 and other enactments affected, and further consequential amendments; the schedule of minor amendments; and Schedule 13 setting out transitional provisions and savings. The amendment was corrected yesterday, which is why Amendment No. 218D has been starred. I beg to move.
On Question, amendments agreed to.
Clause 88 [Commencement]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 219:
Page 63, line 13, leave out ("and (3)").
The noble and learned Lord said: My Lords, Clause 88(1) of the Bill currently provides that Schedule 13 shall come into force on the passing of the Act. All the transitional provisions and savings set out in Schedule 13 are related to provisions contained elsewhere in the Bill and which need to come into effect at different times. The purpose of the amendment is simply to enable these transitional provisions and savings to be brought into force at the same time as the relevant parent provision. I beg to move.
On Question, amendment agreed to.
The Lord The Lord Chancellor moved Amendment No. 219A:
Page 63, line 14, at end insert—
("(1A) Paragraph 1 of Schedule (Minor amendments) comes into force at the end of the period of two months beginning on the day on which this Act is passed.").
The noble and learned Lord said: My Lords, I spoke to this amendment with Amendment No. 215. I beg to move.
On Question, amendment agreed to.
[Amendment No. 220 not moved.]
Clause 89 [Short title, consequential amendments, transitionals and repeals]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 221:
Page 63, line 21, at end insert—
("(1A) The minor amendments set out in Schedule (Minor amendments) shall have effect.").
The noble and learned Lord said: My Lords, I spoke to this amendment with Amendment No. 215. I beg to move.
On Question, amendment agreed to.
Schedule 12 [Consequential Amendments]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 222:
Page 111, line 8 at end insert—
("The Public Records Act 1958 (c.51)
1.—(1) In the First Schedule to the Public Records Act 1958 (definition of public records) the following entries shall be inserted in the appropriate places in Part II of the Table in paragraph 3—
"The Authorised Conveyancing Practitioners Board"
"The Conveyancing Ombudsman"
"The Legal Services Ombudsman"
"The Lord Chancellor's Advisory Committee on Legal Education and Conduct".
(2) After paragraph 4(1)(k) of that Schedule there shall be inserted—
"(kk) records of any Conveyancing Appeal Tribunal;".").
The noble and learned Lord said: My Lords, the bodies to be created under this Bill will be public bodies. It is therefore appropriate to ensure, by amendment to the Public Records Act 1958, that their records will be public records dealt with in accordance with that Act. I beg to move.
On Question, amendment agreed to.
12.15 a.m.
The Lord Chancellor The Lord Chancellor moved Amendment No. 223:
Page 113, line 40, at end insert—
("21A. In section 151(1) of that Act (interpretation), the following shall be inserted after the definition of "appeal"—
""arbitration agreement" has the same meaning as it has in the Arbitration Act 1950 by virtue of section 32 of that Act;" ").
The noble and learned Lord said: My Lords, now that the Supreme Court Act 1981, in its new Clause 43A, is to refer to arbitration agreements, I believe that that phrase should be defined, and that this should be done by reference to the definition in the Arbitration Act 1950. I beg to move.
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No. 224:
Page 114, line 23, at end insert—
("28. In section 69 of that Act (power to award interest on debts and damages), the following shall be substituted for subsection (8)—
"(8) In determining whether the amount of any debt or damages exceeds that prescribed by or under any enactment, no account shall be taken of any interest payable by virtue of this section except where express provision to the contrary is made by or under that or any other enactment."").
The noble and learned Lord said: My Lords, the amendment changes Section 69(8) of the County Courts Act 1984. That subsection presently refers to the county court limit. Since it is proposed to abolish that limit in accordance with the recommendations of the Civil Justice Review in an order under Clause 1, this subsection requires amendment.
Although most such consequential amendments will be made under the powers conferred on orders under Clause 1 by subsection (4) of that Clause, I consider that it is appropriate to make this amendment in the Bill, since it widens slightly the existing subsection (8) in a way which is not strictly consequential upon the abolition of the county court limit. The purpose of that is to correct an anomaly whereby interest is only presently disregarded for the purposes of provisions of the County Courts Act 1984 itself, and not for provisions made under it. In order to allow certainty in, for example, the County Court Appeals Order 1981 this subsection is here widened so as to provide that interest under it shall be disregarded in calculating amounts for the purposes of any enactment.
On Question, amendment agreed to.
Schedule 13 [Transitionals and Savings]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 224A:
Page 114, line 25, at end insert—
("Judicial appointments: barristers
1.—(1) This paragraph applies—
(a) to barristers who were called to the Bar on a date (the "call date") before the commencement of section 28; and
(b) for the purpose of determining for how many years such a barrister has had one of the qualifications listed in section 52(3).
(2) The General Council of the Bar shall be deemed to have granted such a barrister on his call date the rights of audience mentioned in section 28(1)(a).
(3) The period beginning with his call date and ending with the commencement of section 28 (apart from any part of that period during which he was disbarred) shall, in the case of such a barrister, count towards the period mentioned in section 52(4)(b), whether or not he was entitled to exercise the right of audience in question during that time.
Judicial appointments: solicitors
2.—(1) This paragraph applies—
(a) to solicitors who were admitted on a date (the "admission date") before the commencement of section 29; and
(b) for the purpose of determining for how many years such a solicitor has had one of the qualifications listed in section 52(3).
(2) The Law Society shall be deemed to have granted such a solicitor on his admission date the rights of audience mentioned in section 29(1)(a).
(3) The period beginning with his admission date and ending with the commencement of section 29 (apart from any part of that period during which he was struck off, or removed from,
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the roll) shall, in the case of such a solicitor, count towards the period mentioned in section 52(4)(b). whether or not he was entitled to exercise the right of audience in question during that time.
(4) Such a solicitor who has a right of audience in all proceedings in the Supreme Court shall be deemed to have had a Supreme Court qualification since his admission date.
(5) Such a solicitor who has a right of audience in all proceedings in the High Court shall be deemed to have had a High Court qualification since his admission date.").
The noble and learned Lord said: My Lords, I referred to the amendment when I was answering an amendment tabled earlier by the noble Lord, Lord Mishcon. I explained then the purpose and scope of the amendment. I beg to move.
Lord Renton: My Lords, we should acknowledge what my noble and learned friend has done with the amendment, which is obviously wise and necessary, but on page 114, to which the amendment refers, there is a strange little misprint. It refers in the left-hand column to Section 89(3). In fact there is no subsection (3) to Clause 89.
The Lord Chancellor: I have not found that.
Lord Renton: It is on page 114.
Lord Donaldson of Lymington: It was left out in the printing. I have an erratum note.
The Lord Chancellor: There is an erratum note on that point.
Lord Renton: My Lords, I am obliged. I had not seen the correction. I thank my noble and learned friend. That puts the matter right.
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No. 225:
Page 114, leave out lines 28 to 35 and insert ("to an office which is, or includes, one to which section 54 applies shall be construed as a reference to, or (as the case may be) as including a reference to, that office by its new name.").
The noble and learned Lord said: My Lords, the amendment is a drafting change to paragraph 1 of Schedule 13. That paragraph construes references to registrars as references to district judges, and the purpose of this drafting change is to include indirect references. I beg to move.
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No. 226:
Page 114, line 37, after ("registrar") insert (", a registrar of the principal registry of the Family Division,").
The noble and learned Lord said: My Lords, the amendment remedies an omission by extending the transitional provision of paragraph 2 of Schedule 13 to registrars of the Family Division in the same way as it applies to county court and district registrars. The purpose of that paragraph is to allow existing appointees a period of six months within which to take the judicial oath once that becomes a requirement of their office. I beg to move.
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No. 226A:
Page 114, line 42, at end insert—
("2A. For the purposes of section 16(3)(c) of the Courts Act 1971 (certain office-holders eligible, after 32 years, for appointment as Circuit judges) a person who holds an office (the "former office") which, on the coming into force of section 54, becomes the office of district judge shall be deemed to have held that office since his appointment to the former office.").
The noble and learned Lord said: My Lords, the Government's clear intention expressed in the White Paper was that registrars with suitable experience as such should be eligible for promotion to the circuit bench. As a result of the proposed change in title from registrar to district judge, the Bill now provides for district judges who have held post for at least three years to be eligible. Registrars will automatically become district judges when the appropriate provision comes into force. The amendment simply provides that, for the purpose of eligibility for promotion to the circuit bench, any such district judge shall be deemed to have been appointed from the date of his appointment as registrar. I beg to move.
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No. 226B:
Page 115, line 30, at end insert—
("5A.—(1) The repeal by this Act of subsection (3) of section 3 of the Superannuation (Miscellaneous Provisions) Act 1967 shall not affect its application in relation to any abatement made under that section.
(2) The repeal by this Act of subsection (3) of section 1 of the Superannuation (Miscellaneous Provisions) Act (Northern Ireland) 1969 shall not affect its application in relation to any abatement made under that section.
(3) The repeal by this Act of section 19(5) of the Courts Act 1971 shall not affect its application in relation to any abatement made under section 18(3) of that Act.
(4) The repeal by this Act of subsection (4) of section 9 of the Administration of Justice Act 1973 shall not affect its application so far as it provides for any abatement which has been made under that subsection to be disregarded.
(5) The repeal by this Act of subsection (4) of section 12 of the Supreme Court Act 1981 shall not affect its application so far as it provides for any abatement which has been made under that subsection to be disregarded.").
The noble and learned Lord said: My Lords, the purpose of this amendment is to save a power which would otherwise be abolished by Clause 61A. This power provides that the judicial pension of a judicial officer whose salary is abated shall be calculated on the full notional salary and not the abated one. The saving ensures that those whose salaries were subject to abatement under the provisions abolished by Clause 61A will continue to have their pensions calculated on the full salary. The amendment is simply consequential upon the new clause after Clause 61 inserted by Amendment No. 196ZA. I beg to move.
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No. 227:
Page 115, line 44, at end insert—
("Commissioners for Oaths
8. The repeal by this Act of section 1(1) of the Commissioners for Oaths Act 1889 shall not affect the power of the Lord
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Chancellor to revoke any appointment made by him under that provision.").
The noble and learned Lord said: My Lords, I have already spoken to this amendment with Amendment No. 211. I beg to move.
On Question, amendment agreed to.
Lord Hutchinson of Lullington Lord Hutchinson of Lullington had given notice of his intention to move Amendment No. 227A:
Page 115, line 44, at end insert—
("Solicitors' rights of audience
The repeal by this Act of section 83 of the Supreme Court Act 1981 (rights of audience for solicitors in the Crown Court) shall not affect the continued operation of any direction in force under that section immediately before that repeal takes effect.").
The noble Lord said: My Lords, this amendment is grouped with Amendments Nos. 233A and 235A. Having regard to what the noble and learned Lord said in regard to his Amendment No. 186A, when he gave certain undertakings, I do not intend to move either this amendment or the other two.
[Amendment No. 227A not moved.]
Schedule 14 [Repeals]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 228:
Page 116, line 4, column 3, at end insert—
("In section 14, the words from "Provided always" to the end.").
The noble and learned Lord said: My Lords, this amendment is consequential on the repeal of Section 10 of the Public Notaries Act 1801, which immediately precedes it in Schedule
Section 10 is to be repealed to remove any statutory bar on the formation of partnerships by notaries with persons who are not notaries. Under Clause 50 of the Bill, the Master of the Notaries Faculty is still to be able, if he so wishes, to make rules prohibiting notaries from forming such unincorporated associations.
The amendment repeals the second part of Section 14 of the 1801 Act, which subjects a solicitor who is also a Public Notary to the same penalties as any other public notary who forms any sort of professional association with someone who is not a public notary. With the repeal of Section 10, such a provision becomes meaningless and therefore its repeal is consequential on the repeal of Section 14. I beg to move.
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No. 229:
Page 116, line 5, at end insert—

("8 & 9 Vict. c127.

The Small Debts Act 1945.

Section 8.) c. 127.

The noble and learned Lord said: My Lords, the amendment makes a repeal which is purely consequential upon the updating of the list of goods exempt from seizure upon execution in the High Court achieved by the amendment to that effect to which I spoke earlier. I beg to move.
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendments Nos. 230 to 231C:
Page 116, line 8, at end insert—

("27 & 28 Vict. c. 24

The Naval Agency and Distribution Act 1864

In section 7. the words "or a proctor, attorney or solicitor" and "or becomes a proctor. attorney or solicitor".

Section 23(1).").

Page 116, line 8, at end insert—

("52 & 53 Vict. c. 10

The Commissioners for Oaths Act 1889

IKn section 1, subsection (1) and in subsection (2) the words "by virtue of his commission".").

Page 116, line 24, at end insert—

("1967 c. 28.

The Superannuation (Miscellaneous Provisions) Act 1967.

Section 3.

1969 c. 7 (N.I.).

The Superannuation (Miscellaneous Provisions) Act (Northern Ireland) 1969.

Section 1.").

Page 116, line 28, at end insert—

("1971 c. 23.

The Courts Act 1971.

Section 18(3) and (4)

Section 19(5).")

Page 116, line 31, at end insert—

("1973 c. 13.

The Administration of Justice Act 1973

Section 9(4).").

The noble and learned Lord said: My Lords, I have already spoken to these amendments. I beg to move.
On Question, amendments agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No. 232:
Page 116, line 36, column 3, at end insert—
("In section 20(2), paragraph (c) and the word "and" immediately preceding it.").
The noble and learned Lord said: My Lords, the purpose of this amendment is to remove a superfluous anachronism in the Solicitors Act 1974. Under the provisions of Section 20(2)(c) of that Act—which this amendment repeals -an unqualified person who purports to be a solicitor may be subject to a penalty of £50 to be forfeit and applied to the use of Her Majesty. Under the provisions of Sections 20(2)(a) and (b), however, such a person is also liable to a term of imprisonment of not more than two years, or to a fine, or to both, together with being guilty of contempt of the court in which the action, suit, cause, matter or proceedings in relation to which he has purported so to act was brought and may be punished accordingly.
It is these sanctions which we have used in framing Clause 51 of this Bill, which deals with the analogous criminal offences of purporting to be an authorised advocate, authorised litigator or authorised practitioner. The sanction of the additional penalty of £50 seems no longer to serve any useful purpose, and it is for this reason that I urge your Lordships to delete it from the statute book. I beg to move.
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendments Nos. 233 and 233ZA:
Page 116, line 45, column 3, at end insert—
("("Section 81(5).").
Page 117, line 29, column 3, at beginning insert—
("Section 12(4).").
The noble and learned Lord said: My Lords, I have already spoken to these amendments. With your Lordships' leave I propose to move them en bloc. I beg to move.
On Question, amendments agreed to.
[Amendment No. 233A not moved.]
The Lord Chancellor The Lord Chancellor moved Amendments Nos. 234 and 235:
Page 117, line 34, column 3, at end insert—
("Section 29.").
Page 117, line 49, column 3, at end insert—
("In Schedule 1. paragraph 2(3) and paragraph 3 and the word "and" immediately preceding it.").
The noble and learned Lord said: My Lords, I have spoken to these amendments. I propose to move them en bloc.
On Question, amendments agreed to.
[Amendment No. 235A not moved.]
The Lord Chancellor The Lord Chancellor moved Amendments Nos. 236 to 238:
Page 117, line 53, column 3, at end insert—
("Section 65(5).").
Page 118, line 7, at end insert—

("1985 c. 70.

The Landlord and Tenant Act 1985.

Section 19(5).").

Page 118, line 10, column 3, at end insert—
("In Schedule 2, paragraph 2(b)").
The noble and learned Lord said: My Lords, I have already spoken to these amendments. With your Lordships' leave I should like to move them en bloc. I beg to move.
On Question, amendments agreed to.

In the Title:
The Lord Chancellor The Lord Chancellor moved Amendment No. 238A:
Line 16, after ("property") insert ("to make provision with respect to the jurisdiction of the Parliamentary Commissioner for Administration in connection with the functions of court staff").
The noble and learned Lord said: My Lords, I have already spoken to this amendment. I should like to express my gratitude to those of your Lordships who have so diligently stayed with us to the end of the Report stage of this important Bill, which we have now, I think, accomplished. I beg to move.
On Question, amendment agreed to.
House adjourned at twenty-six minutes past midnight.