HL Deb 01 March 1990 vol 516 cc885-958

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 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 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 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 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 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 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 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 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 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 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 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.

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 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 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.

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 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". 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 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 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 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 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 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 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 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 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 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 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 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 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—

  1. (a) section 3 of the Superannuation (Miscellaneous Provisions) Act 1967 (miscellaneous offices);
  2. (b) section 1 of the Superannuation (Miscellaneous Provisions) Act (Northern Ireland) 1969 (miscellaneous offices in Northern Ireland);
  3. (c) section 18(3) of the Courts Act 1971 (Circuit judges);
  4. (d) section 1(2) of the Ministerial and Other Salaries Act 1975 (Lord Chancellor), the words from "but" to the end;
  5. (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);
  6. (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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 moved Amendment No. 202A: Page 55, line 19, after ("person") insert ("the supplier")"). On Question, amendment agreed to.

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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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. 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 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 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 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— 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 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 (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 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", 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 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 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 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.

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.

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.

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 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 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 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 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 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 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 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 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.

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 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 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 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 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 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 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 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 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 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, 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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.

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