Courts and Legal Services Bill [H.L.]

HL Deb 01 March 1990 vol 516 cc834-84

3.30 p.m.

The Lord Chancellor (Lord Mackay of Clashfern)

My Lords, I beg to move that the Bill be now further considered on Report.

Moved, That the Bill be further considered on Report.—(The Lord Chancellor.)

On Question, Motion agreed to.

Clause 48 [Right of barrister to enter into contract for the provision of his services]:

Debate resumed on Amendment No. 181: Page 38, line 3, leave out ("with his client").

Lord Renton

My Lords, when the Report stage of the Bill was adjourned last week we were discussing Amendment No. 181 moved by my noble and learned friend the Lord Chancellor. The amendment is important and it is linked with the next amendment tabled in my name which is mutually exclusive. As a result of a kind suggestion made by my noble friend the Leader of the House it was decided that further consideration of the amendment should be adjourned. I had already spoken briefly to the amendment and in the particular and unusual circumstances I seek the leave of the House to speak briefly again.

The amendment would mean that a barrister would be entitled to enter into a contract for the provision of his or her services not only with a professional or lay client but with anyone. If that means that he automatically ceases to be an independent practising barrister and becomes an employed barrister, no problem would arise. It would merely reflect the present position in which barristers sometimes give up practice and enter into contracts of employment. They cease to be independent barristers.

However, if the amendment means that a barrister who contracts with anyone can remain in practice and continue to provide a legal service, the person with whom he contracts appears to become a client, whether professional or lay. I should be grateful if my noble and learned friend could say whether that would be the effect of his amendment. If so, I suggest that it would be better to keep the word "client" in the Bill.

We must then consider whether an independent barrister should enter into any kind of contract for his services. I realise that my comments appear to relate more to a discussion on clause stand part but they are relevant to my noble and learned friend's amendment. Under the present rules of conduct and the long-standing practice of the Bar a barrister in independent practice cannot enter into any kind of contract for his services. The nearest we ever came to that was in accepting retainer fees. They were abolished some years ago because they were considered to be a restrictive practice. If we are to revert to a similar situation we should be entering into restrictive practices. One of the purposes of the Bill is to abolish any kind of restrictive practice and therefore we must not introduce a new type.

It may be better to get rid of Clause 24 even at this late stage. I do not believe that the clause was discussed in Committee owing to the lateness of the hour. However, if the clause remains I suggest that it should be limited to contracts between barristers and professional clients. That would be the result of my Amendment No. 182. As was said by my noble and learned friend the Lord Chancellor when we discussed the matter briefly last week, the two amendments are mutually exclusive.

I invite my noble and learned friend to enlighten the House and perhaps other noble Lords may wish us to consider the matter further.

Lord Hutchinson of Lullington

My Lords, the amendment worries me a great deal. Perhaps I may correct the noble Lord, Lord Renton, and point out that the matter was discussed to some extent in Committee. I asked the noble and learned Lord exactly what the provision meant. First, does it mean lay and professional client or only professional client? That matter has been resolved because in his amendment the noble and learned Lord makes clear that it means both.

Leaving out subsection (2), that appears to mean that in criminal courts future advocates can enter into a contract with their lay client in relation to the provision of their services in a criminal trial, no doubt providing for a 50 per cent. uplift for an acquittal, and so on. If I am wrong I am sure that the noble and learned Lord will say so.

The second question that I raised in Committee was: does it mean that the purpose of the clause is to make it easier for laymen in the criminal courts, among others, to approach advocates directly? In Committee the noble and learned Lord said: This clause is in no way intended to deal with the Bar's rule restricting direct access by lay people".—[Official Report, 5/2/90; col. 568.] He went on to say that it makes it possible for barristers to sue for their fees. I understand the second part.

I looked at the Notes on Clauses, which contradict what the noble and learned Lord said. Under "Policy Objectives" the notes state: The aim of this clause is, subject to regulation by the profession, to facilitate direct access to barristers by persons other than solicitors and to ensure the law does not unnecessarily restrict the ways in which barristers may offer their services". According to the notes, and as I have always suspected, the aim of the clause is to achieve exactly that. The wording makes that clear.

In those circumstances the clause makes it possible hereafter for laymen to approach any advocate direct. But in subsection (2) the Bar alone is permitted to restrict its members from doing so. I ask the noble and learned Lord: why only the Bar? That appears to create hereafter a totally unacceptable bumpy playing field.

The pressures on advocates in the Crown Courts are wholly different from those in the magistrates' courts or inferior courts. They are also totally different from those in any other professions. For example, some defendants have serious previous convictions; barristers have close contacts with the police; informers give evidence; bogus defences are put forward; tainted witnesses are produced; and excessive and dubious awards are offered to advocates. Attempts are often made to corrupt the police, witnesses and, as your Lordships know, even jurymen.

At present, advocates in the Crown Courts are largely insulated against those pressures and temptations by rules which some people call restrictive practices. Those have evolved over the years. For example, an advocate is not allowed to be directly approached by anybody but is only allowed to have communications through a third party; he cannot meet witnesses he is going to call; he cannot prepare a case and also be the advocate in it; he cannot handle cash and cannot fix his own fees. All that is not, as the noble Lord, Lord Boyd-Carpenter, said at an earlier stage of this Bill, a matter of self-righteousness on the part of advocates. It is not that advocates consider themselves to be of higher moral standing than anybody else. However, it is made much easier for them to maintain standards of integrity because they are insulated against those temptations and against direct contact with the persons who offer them.

As your Lordships will know, other pressures like peer pressure in chambers, Inns of Court, circuits and a judiciary which has personal knowledge and experience of a very small profession have resulted in supplying a very honest judiciary. I want to ask the noble and learned Lord whether, after this Bill becomes an Act, it will be possible—and I only say possible—for advocates to be approached directly in high street offices, seeing witnesses, preparing defences, being paid direct with friendly relations with the local police and members of the local CPS. Does he look upon that scenario with approval? That is a very familiar scenario in the United States of America and, of course, is a perfectly clear counterpart to the idea of the district attorney which was a proposition we tried to prevent earlier in this Bill but which was given every welcome from the Woolsack. Is that a possible scenario under this Bill? Is it one of which the Government approve?

If the House wishes to maintain the integrity of this new flood of advocates, why have a clause which facilitates direct access and so destroy the very delicate insulation which has so far preserved a very high degree of integrity? The protection of the clients' interests, of which we hear so much in this Bill, is exactly opposed, as has been repeatedly pointed out by the noble and learned Lord, Lord Hailsham, to the interests of justice. I hope that the noble and learned Lord will not put forward—I say this with the greatest respect—his usual alibi when matters of principle are raised by saying, "Oh well, that is all a matter for the mechanism or the committee". Is the aim here to facilitate direct access? Does he approve of that during the criminal process? Why is it only the Bar which is being restrained from such access? In general, I support the amendment of the noble Lord, Lord Renton.

Lord Renton

My Lords, before the noble Lord sits down, perhaps I may thank him for correcting me. We discussed this matter on clause stand part in Committee but the point which arises on these two amendments was not then discussed.

3.45 p.m.

Lord Mishcon

My Lords, perhaps I may cast another light on this amendment of the noble and learned Lord and indeed, by anticipation, the amendment to be moved by the noble Lord, Lord Renton.

It may well be said by the noble and learned Lord the Lord Chancellor, as was anticipated by the remarks of the noble Lord, Lord Hutchinson, that it is for the Bar Council in its wisdom to decide whether or not to take advantage of this new opportunity; namely, the direct contractual relationship between a member of the Bar and a member of the public.

That sounds as though a liberty has been permitted which did not previously exist and that is the end of the matter. If the Bar Council, the noble Lord, Lord Renton, the noble and learned Lord, Lord Hailsham, and the noble Lord, Lord Hutchinson, feel that there is no danger, then there surely is no danger. I have pointed this out before and I shall do so again in relation to later amendments as regards multidisciplinary practices.

However, it is not just a question of the Bar Council or the Council of the Law Society deciding in its wisdom what it may or may not do. Once you put a clause like this into an Act of Parliament the danger is that there is a gentleman—it may be a lady in the future—who heads the Office of Fair Trading. What I am scared of as regards what we are doing in this Bill by allowing this so-called liberty for the disciplinary bodies or the governing bodies of the Bar and of the solicitors' profession is that one day there will be a knock on the door of the Council of the Law Society and the Bar Council. It will be the Office of Fair Trading saying, "We think that it would be very much more competitive and in fact it may very well reduce costs if there was direct contact between barrister and member of the public. Therefore, Bar Council, I call upon you to do what an Act of Parliament clearly permitted you to do. Parliament would not have put that in if it did not believe that that was perfectly civilised. In the name of competition and fair competition I call upon you to do what you have been statutorily empowered to do by a specific provision in an Act of Parliament considered by the Lords and Commons and blessed by the noble and learned Lord the Lord Chancellor". That is what scares me about this provision and similar provisions. I know what the noble and learned Lord, with absolute honesty of purpose, is trying to do. He has a Bill dealing with the legal profession and he feels that he should give liberty in the future to do things which have been constrained in the past.

I believe that the noble and learned Lord may have forgotten about the Office of Fair Trading. If he has not forgotten, he ought to bear in mind—I say this most deferentially—what an Office of Fair Trading can do to the learned and honoured professions which have traditions which far transcend the mere bounds of competition.

Lord Simon of Glaisdale

My Lords, once again your Lordships have heard a most powerful and informative speech from the noble Lord, Lord Hutchinson, and, after that, from the noble Lord, Lord Mishcon. I have only one question to ask on this amendment. In fact, I asked it last week but it was not answered since the debate was becoming very ragged and was rightly adjourned, particularly as it was very late at night.

The debate was becoming very ragged for a number of reasons, one of which was that owing to the extreme lateness of the hour my noble and learned friend Lord Ackner quite rightly did not move what was the most important amendment on the Marshalled List; namely, that which dealt with the uplift in contingency fees which in the eyes of many of us strikes a note of clear injustice at the very heart of this Bill.

Before I ask my question, I desire to say just this. Only three days were allowed for the Report stage of this Bill, although we had six extremely full Committe days, only one ending before 10.30 at night, two going beyond midnight and the last until nearly 3 o'clock in the morning. It was clear from the outset that three days would be inadequate for a proper discussion of this Bill on Report at any reasonable hour. Notwithstanding that, after the three days had been allotted, and after we were informed by the Whips that on the first two days the House would be expected to sit late, which means after 10.30, or very late, which means after midnight, the Government put down 120 amendments to be considered at Report stage. That was over half the number put down on the Order Paper. Some were drafting amendments, and others were the implementation of matters that the noble and learned Lord the Lord Chancellor undertook to consider at Committee stage. But there were also three new clauses and a new schedule. That is a substantial Bill in itself, certainly compared to the Education (Student Loans) Bill.

The matter has gone even further. Yesterday the Government put down a further list of 31 amendments, including four new clauses and two substantial paragraphs in a schedule. I only desire at this stage to say that it is quite unrealistic to expect your Lordships to conclude the Report stage today, particularly as it has to be concluded at an hour at which debate can reasonably be conducted.

Having said that, the question I asked last week which I desire to ask again concerns barristers being given the right to enter into contracts with clients. Is it open to them to disclaim in the contract all immunity for negligence or breach of contract? At the moment the law itself gives immunity to any advocate because an advocate owes a duty to the court which supervenes on his duty to his client. He is given no further immunity, for example in the preparation of the case or in giving a legal opinion, but would it not be open now, under this provision, for any counsel to stipulate that he shall not be liable at all in negligence or for breach of contract? If so, it seems to me to be a major inroad once again against the interests of the client, which was the point emphasised by the noble Lord, Lord Hutchinson, and no doubt would offend greatly my noble friend Lord Allen of Abbeydale who tried to abolish the immunity rule altogether.

That is my question. I am glad that the noble Lord the Leader of the House is present. He has been assiduous in attending our debate. I hope he realises that we cannot possibly, with decency, conclude consideration of this Bill on Report today.

The Lord Privy Seal (Lord Belstead)

My Lords, just in case the noble and learned Lord should take silence to mean concurrence, perhaps I should say to your Lordships that we should follow what is our usual practice, which is to see how we go and endeavour to finish the business today.

The Lord Chancellor

My Lords, the purpose of this clause is to deal with the question of whether barristers should have a legal right to enter into a contract, which other people can do. It does not deal with advocates generally; it is restricted to barristers. I am sure I do not need to tell your Lordhips that there are cases which at least suggest, and I think go further, that it is extremely doubtful whether a barrister is in a position to contract with a client in any circumstances whatsoever.

Among other things, the Bar has recently enlarged the class of those from whom they can take instructions. That immediately raises the question of whether they can have a relationship with the persons from whom they take instructions which is binding in law. The purpose of this clause is to deal with that legal question while at the same time reserving to the General Council of the Bar (because they are the body with responsibility in respect of barristers and that is why it is restricted to them) the power to make, rules (howsoever described) restricting a barrister's right to enter into contracts". Perhaps I may take Lord Mishcon's phrases and apply them to that. If the Director General of Fair Trading by any chance comes along to visit the Bar Council, the Bar Council is able to reply in words—I am sure not as elegant as the words the noble Lord used—that Parliament, the House of Lords and the House of Commons (the noble Lord was kind enough to add "with the blessing of the Lord Chancellor" as if that was a separate matter) has conferred on the General Council of the Bar the right to make rules, however described, restricting a barrister's right to enter into contracts.

In so far as the situation described by the noble Lord, Lord Hutchinson of Lullington, is thought to be undesirable (I agree with a great deal of what he said about that) the proper way to deal with that is to make rules. Of course, the Bar has rules at the moment, but rules must regulate in a much more detailed way than the general law of the land does with regard to what barristers can do. A great deal of what he indicated is not laid down by the general law, but arises from the rules of the Bar laid down in the interests of justice.

I do not require to refer to the mechanism because we are dealing with rules made by the General Council of the Bar to deal with the point at issue. With regard to what the Bar's rules should be in relation to rights of advocacy in the Crown Court, then the approval of the designated judges and the Lord Chancellor, as well as the General Council of the Bar, come into play.

In my submission, the right course for your Lordships is to give to the General Council of the Bar the right to make the rules and to leave the general law; that in so far as the General Council of the Bar does not restrict the right of a barrister to enter into contracts then that is the correct way forward. There are many developing areas into which barristers wish to enter into contracts; the overseas practice rules provide a good example of that and the extension of the right of direct access is another.

Amendment No. 181 is put forward precisely in response to the point raised on Committee in discussion about whether the word "client" was restricted to the professional client or included the lay client. I felt it right to resolve that and the simplest way is to take out the phrase. That is the basis on which this amendment is put forward to deal with the matter raised in Committee. I commend the amendment to your Lordships.

4 p.m.

Lord Mishcon

My Lords, before the noble and learned Lord sits down perhaps he will be kind enough to give the House some guidance. Is he saying that because subsection (2) of this clause empowers the Bar Council to restrict the power given in subsection (1), the Office of Fair Trading will never have any right to overrule the Bar Council's decision so to restrict? If he is not saying that, my original point still stands.

The Lord Chancellor

My Lords, I do not think that I can ever say what will happen in the future. The noble Lord is asking me too great a question. I cannot forecast the future.

I believe I am still replying to the debate and if not I should be asking for leave to speak again. The theory is that having been asked this question before I sat down I am still on my feet. On that assumption, my reply is that I have applied the noble Lord's words to subsection (2) just as he sought to apply them to subsection (1). If they are applicable to subsection (1) they are at least equally applicable to subsection (2).

What I explained previously, of course, is that in so far as these rules relate to rights of audience and rights to conduct litigation—in this case it is rights of audience—and are approved, then, on the basis of the policy set out in the White Paper (of course, it is only policy set out in the White Paper) there is no question of the rules being capable of being overturned by the competition authorities.

However, the important point about the Bill is that this clause makes it the responsibility of the General Council of the Bar to make the appropriate rules. Of course, any legislation that may come in the future will have to be looked at to ascertain on what basis, if any, it would allow interference with such rules. I believe that a rule which is justified on the basis indicated by the noble Lord, Lord Hutchinson, would be appropriate to survive any proper scrutiny.

Lord Simon of Glaisdale

My Lords, I intervene as my noble and learned friend is still speaking. I am sorry to prevent him from settling down but perhaps he will be good enough to answer the question I tried to put to him; namely, whether it would be open, under the new contract that can be made between barrister and client, to absolve the barrister from any liability at all for negligence or breach of contract.

The Lord Chancellor

My Lords, I am sorry, I should have answered that question more expressly. I intended to cover it by saying that precisely what the contract might contain is a matter which would be within the scope of the rules laid down by the General Council of the Bar. Of course, there is also the general law in the Unfair Contracts Terms Act to be considered.

The relationship between Clause 48 and the immunity is, of course, dealt with in Clause 49(3) which reads: No act or omission on the part of any person in respect of which the immunity rule … applies shall give rise to an action for breach of any contract relating to the provision by that person of the legal services in question". In other words, that immunity is applied to make clear that an action for breach of contract in respect of a matter covered by the immunity could not arise.

Lord Hutchinson of Lullington

My Lords, before the noble and learned Lord sits down perhaps I may also, with great respect, ask him to reply to my original question; namely, whether the purpose is, as the Notes on Clauses state, to facilitate direct access to barristers by members of the public.

The Lord Chancellor

My Lords, in formulating his question earlier the noble Lord dealt with the situation in regard to clients in the Crown Court. I have sought to answer that by saying that I verily expect the situation he dealt with to be covered by the rules laid down by the General Council of the Bar.

I thought I had expressed considerable sympathy with the point of view the noble Lord expressed about the necessity, in such circumstances, to ensure that rules are sufficient to assist in the protection of the integrity of the barrister. I also explained—I thought I had done so reasonably clearly—that Clause 48(1) would enable others than those who presently have that position to have direct access to clients, subject to the rules that might be made. That is entirely in accordance with the policy described in the Notes on Clauses as I understand them.

Perhaps I may make my answer just a little more detailed. First, I believe that a provision on the lines of Clause 48(1) is desirable to give the General Council of the Bar flexibility in deciding what sort of contracts a barrister might be allowed to enter into. General law at the moment appears fairly fixed. Secondly, in so far as the noble Lord, Lord Hutchinson, is dealing with matters of justice, particularly arising in respect of criminal proceedings in the Crown Court, I would expect the General Council of the Bar to continue to wish to make rules in that area which it would regard as effective. Of course, as I said earlier—the noble Lord must accept my apology for repeating it—that would be subject to consent by the designated judges and the Lord Chancellor within the framework of principle which the earlier clauses in the Bill lay down.

4.7 p.m.

On Question, Whether the said amendment (No. 181) shall be agreed to?

Their Lordships divided: Contents, 112; Not-Contents, 63.

DIVISION NO. 1
CONTENTS
Ackner, L.	Layton, L.
Aldington, L.	Lloyd of Hampstead, L.
Alexander of Tunis, E.	Long, V.
Alexander of Weedon, L.	Lothian, M.
Alport, L.	Lucas of Chilworth, L.
Ampthill, L.	Lyell, L.
Arran, E.	Lytton, E.
Aylestone, L.	Mackay of Clashfern, L.
Bathurst, E.	Margadale, L.
Belhaven and Stenton, L.	Marsh, L.
Beloff, L.	Merrivale, L.
Belstead, L.	Mersey, V.
Bessborough, E.	Milverton, L.
Birdwood, L.	Mottistone, L.
Blatch, B.	Mountevans, L.
Blyth, L.	Mowbray and Stourton, L.
Borthwick, L.	Munster, E.
Boyd-Carpenter, L.	Murton of Lindisfarne, L.
Brabazon of Tara, L.	Nelson, E.
Broadbridge, L.	Newall, L.
Brougham and Vaux, L.	Norrie, L.
Butterworth, L.	Nugent of Guildford, L.
Caithness, E.	Onslow, E.
Campbell of Croy, L.	Oppenheim-Barnes, B.
Carnegy of Lour, B.	Pender, L.
Carnock, L.	Plummer of St. Marylebone, L.
Clitheroe, L.
Cockfield, L.	Porritt, L.
Colwyn, L.	Quinton, L.
Cottesloe, L.	Rawlinson of Ewell, L.
Cox, B.	Reay, L.
Cullen of Ashbourne, L.	Renwick, L.
Davidson, V. [Teller.	Roskill, L.
Denham, L.[Teller.	Sainsbury, L.
Donaldson of Lymington, L.	St. Davids, V.
Downshire, M.	Saltoun of Abernethy, Ly.
Eden of Winton, L.	Sanderson of Bowden, L.
Elibank, L.	Selborne, E.
Ellenborough, L.	Selkirk, E.
Elles, B.	Shannon, E.
Fraser of Kilmorack, L.	Stedman, B.
Gainford, L.	Strange, B.
Havers, L.	Strathcarron, L.
Hayter, L.	Strathmore and Kinghorne, E.
Henderson of Brompton, L.
Henley, L.	Suffield, L.
Hesketh, L.	Swinton, E.
Hives, L.	Terrington, L.
Hooper, B.	Thorneycroft, L.
Hylton-Foster, B.	Trefgarne, L.
Ilchester, E.	Trumpington, B.
Joseph, L.	Ullswater, V.
Killearn, L.	Whitelaw, V.
Kimball, L.	Wilberforce, L.
Kinnaird, L.	Winterbottom, L.
Knollys, V.	Wise, L.
Knutsford, V.	Young, B.

NOT-CONTENTS
Addington, L.	Graham of Edmonton, L.
Airedale, L.	Grantchester, L.
Ardwick, L.	Grimond, L.
Benson, L.	Hacking, L.
Birk, B.	Hanworth, V.
Blease, L.	Harris of Greenwich, L.
Boston of Faversham, L.	Hatch of Lusby, L.
Bruce of Donington, L.	Hirshfield, L.
Carmichael of Kelvingrove, L.	Houghton of Sowerby, L.
	Hunt, L.
Cledwyn of Penrhos, L.	Hutchinson of Lullington, L.
Coleraine, L.	Irvine of Lairg, L.
Dean of Beswick, L.	Jeger, B.
Donaldson of Kingsbridge, L.	Jenkins of Putney, L.
Ennals, L.	John-Mackie, L.
Ewart-Biggs, B.	Leatherland, L.
Fisher of Rednal, B.	Listowel, E.
Fitt, L.	Lloyd of Kilgerran, L.
Gallacher, L.	Longford, E.

McGregor of Durris, L.	Ritchie of Dundee, L.
Manchester, D.	Serota, B.
Mayhew, L.	Shackleton, L.
Mishcon, L.	Simon of Glaisdale, L.
Molloy, L.	Stallard, L.
Moyne, L.	Strabolgi, L.
Mulley, L.	Taylor of Blackburn, L.
Murray of Epping Forest, L.	Tordoff, L.
Northfield, L.	Underhill, L.
Phillips, B.	Wallace of Coslany, L.
Prys-Davies, L.	Wigoder, L.
Renton, L. [Teller.]	Williams of Elvel, L.
Rippon of Hexham, L. [Teller.]	Willis, L.

Resolved in the affirmative, and amendment agreed to accordingly.

4.16 p.m.

[Amendment No. 182 not moved.]

Clause 49 [Immunity of advocates from actions in negligence and for breach of contract]:

The Lord Chancellor moved Amendment No. 183: Page 38, line 8, leave out from ("(1)") to end of line 20 and insert—("A person (a) who is not a barrister; but (b) who lawfully provides any legal services in relation to any proceedings, shall have the same immunity from liability for negligence in respect of his acts or omissions as he would have if he were a barrister lawfully providing those services. (2) No act or omission on the part of any barrister or other person which is accorded immunity from liability for negligence shall give rise to an action for breach of any contract relating to the provision by him of the legal services in question.").

The noble and learned Lord said: My Lords, the purpose of this amendment is to improve the clarity of the clause. The noble Lord, Lord Mishcon, and other noble Lords raised questions about the way the clause was previously drafted. In an attempt to make it better we have recast it. I took the doubts expressed to parliamentary counsel who has redrafted the clause to achieve the same policy we originally intended. I hope that the second effort commends itself to your Lordships more than the first. I appreciate the concerns that were expressed and the points that were raised. We have attempted to meet them. I beg to move.

Lord Hacking

My Lords, I was among those who spoke fairly late in the evening on this clause at Committee stage. I urged on the noble and learned Lord that though he may not have intended it, the drafting of the clause appeared to extend immunity concerning advocates appearing in court. It is therefore most heartening that the noble and learned Lord, who politely but totally and decisively demolised my arguments in his reply, has reflected on the matter and has now brought forward this amendment. Since I expect him during Report stage to totally demolish the arguments that I present, I live in some hope that all is not lost and that perhaps new ground will be reached at Third Reading.

Lord Mishcon

My Lords, I wish to express an unqualified note of gratitude to the noble and learned Lord.

On Question, amendment agreed to.

Clause 50 [Multi-disciplinary and multi-national practices]:

Lord Mishcon moved Amendment No. 184: Page 38, line 41, at end insert ("and the Society shall not make rules permitting such association unless it is satisfied that— (a) the protection for the public will be not less than that afforded to the clients of a solicitor's practice; (b) the primacy of a solicitor's obligations to the court and to the interests of clients can be secured; and (c) legal professional privilege will protect communications between clients and members of the firm".).

The noble Lord said: My Lords, I uttered those words of gratitude to the noble and learned Lord as regards the previous amendment in the hope that I might persuade him to agree to this amendment. Clause 50 deals with a very important provision which opens the gates, subject to the lock on those gates which the noble and learned Lord has mentioned, to the possibility of solicitors entering into partnership with persons who are not solicitors. That is commonly called multi-disciplinary practices.

I have nothing to say about multi-national practices where we join other lawyers in various parts of the world in ensuring that legal services of a comprehensive nature are provided, crossing frontiers in doing so and enabling people to get advice as to the laws of other countries with which we may be commercially engaged. I have nothing to say in that connection. But in protection of members of the public I ask the House to glance for a moment at the possibilities of a multi-disciplinary partnership with lawyers. That means lawyers bound, as they should be, by the strict rules of the Law Society, and members of the Bar bound equally, as they should be, by strict professional rules of ethics and etiquette in regard to their profession. We suddenly see that in partnership with them there could be, if it were permitted, surveyors, estate agents and other people carrying on a perfectly honourable business but in no way governed by the same strict professional disciplinary rules.

A member of the public may go to a firm of solicitors, as he thinks, on a conveyancing matter to find a surveyor there who is a partner in the firm offering to guide him. It would be very difficult for a member of the public to resist such an invitation without being rather offensive. There might also be an accountant who could look after the accountancy affairs, again not bound by the disciplinary rules of the Law Society, although if he happened to be a chartered accountant he would be bound by quite strict professional rules of conduct. In those circumstances the noble and learned Lord may say the same as he said on the previous amendment, that the Law Society and the Bar Council will issue their rules which will make it very easy for the strict disciplines to be applied to such a practice or that they may prevent it altogether.

One of the troubles with putting enabling powers into Acts of Parliament is that it amounts almost to an indication that these things are perfectly all right and that it is only a question possibly of putting some boundaries to what is perfectly all right. But it is not all right for the public. I notice with great interest that the Confederation of British Industry expresses its qualms about this. I shall quote succinctly from the brief it has sent out: Industry, as the major users of legal services, is concerned that legal services of high quality with the necessary wide choice of business legal specialists remain available. Industry views with some reserve the introduction of multi-disciplinary firms as it is felt that these may lead to the formation of megafirms of accountants and solicitors as has happened with the merger of accounting firms, and that this may reduce choice and availability. There may frequently be occasions when a client company does not wish to instruct the same firm for both legal and accounting work but may feel that as both are available in one firm that firm should be instructed, and this in practice may act as a constraint on choice".

That is one aspect of the matter. The other aspect of the matter is that there should be and must be proper protection of the public and that the Office of Fair Trading should not be able to say to the Law Society or to the Bar Council that, as they have these enabling powers, they should be exercised in the name of fair competition for the benefit of the public, as the Office of Fair Trading thinks. In Committee I tried unsuccessfully to remove this provision from the Bill. I am now trying to make it perfectly clear how, if the Law Society or the Bar Council wishes to embark on making rules of this nature, they will be inhibited in protection of the public in making such rules. That will be an answer to the threat which I mentioned a moment ago.

In adding these words at line 41, I am saying not only that, Nothing in subsection (5) prevents the General Council of the Bar",

but also that, Nothing in subsection (2) prevents the Law Society".

I know that the noble and learned Lord will not hold that technical point against me but it should be mentioned for clarification. If the amendment were carried the clause would read as follows: Nothing in subsection (5) prevents the General Council of the Bar from making rules which prohibit barristers from entering into any such unincorporated association, or restrict the circumstances in which they may do so".

My amendment would add the words: and the Society shall not make rules permitting such association"— the one mentioned in subsection (1) of Clause 50—"unless it is satisfied that— (a) the protection for the public will be not less than that afforded to the clients of a solicitor's practice; (b) the primacy of a solicitor's obligations to the court and to the interests of clients can be secured; and (c) legal professional privilege will protect communications between clients and members of the firm".

I could give a detailed explanation of the reasons for each of those paragraphs but I believe that they will be obvious to the House. I am dealing with general protection of which these are important particulars.

It may be found that the amendment does not fit comfortably into the clause. But the purpose is absolutely clear and I trust that the noble and learned Lord will be able to accept it and put it in its proper place and proper form by Third Reading. I beg to move.

4.30 p.m.

Lord Donaldson of Lymington

My Lords, I support the amendment moved by the noble Lord, Lord Mishcon. However, while not wishing to be in the least bit critical, I should like to make a drafting point and perhaps go a little further as a matter of principle than he has. Clause 50 abrogates Section 39 of the Solicitors Act and that is necessary if solicitors are to be able to form multi-national partnerships with foreign lawyers. But once you have abolished Section 39 I venture to suggest that what is required is not that the Law Society shall make rules permitting multi-disciplinary partnerships, even subject to conditions. Once the section has been removed, the society would not need to make any rules because you could do so in any event; what matters is that the society shall make rules prohibiting multi-disciplinary partnerships, unless these particular conditions which are of vital importance are satisfied.

For my part, I think if I had applied my mind to the matter, as I should have done, I would have sought to amend subsection (2) to provide that, Nothing in subsection (I) shall prevent the Law Society making rules which prohibit solicitors from entering into any unincorporated association with persons who are not solicitors, or restrict the circumstances in which they may do so; and, further, the Society shall make such rules unless the conditions set out in (a), (b) and (c) below are satisfied". Nevertheless, I support the principle of the amendment, and I hope that it is only the principle which will guide your Lordships in deciding what to do in the matter.

Lord Mishcon

My Lords, I am most grateful to the noble and learned Lord.

The Lord Chancellor

My Lords, the necessity for removing the general bar is accepted by those of your Lordships who have spoken. I think that the Law Society is of the view that it would be good to allow, under proper conditions which are still being worked out, multi-national partnerships. The amendment is directed in principle—and I am perfectly content to take it that the drafting may not be of the higher standard of which the noble Lord, Lord Mishcon, and his colleagues are capable—towards seeking to lay down conditions under which a prohibition would be required in respect of multi-disciplinary practices.

It is a question of considerable importance which has been discussed at the instance of more than one person over the past few years. I know that many different views are taken on the matter. I suggest to your Lordships that one of the reasons that the Law Society exists and has rule-making powers is that such rules will be made for the protection of the public and for the other matters affecting the integrity of the profession, some examples of which are dealt with in the amendment. Therefore, unless the noble Lord, Lord Mishcon, is saying that the Law Society in making prohibitions about the matter would ignore such factors, I do not see from the point of view of giving power to the Law Society what purpose the amendment serves.

The noble Lord referred to the Director General of Fair Trading as a kind of dangerous figure in the background. But I submit to your Lordships that the Law Society need not be afraid of the Director General of Fair Trading when it has such powerful backing as that of the Confederation of British Industry in so far as it founded its objections, or reservations, to multi-disciplinary practices on the grounds of multiplicity of choice and of freedom of competition. Surely the situation is that the Law Society can be trusted by your Lordships to make the necessary rules. We are making it absolutely plain that the society has absolute power to make these rules in the clause as drafted. Therefore, why your Lordships should put constraints on the way in which that power is operated is not immediately apparent to me. I suggest to your Lordships for consideration the fact that if you go into such detail, you may well be suggesting that it is possible to achieve the various objectives while still allowing various forms of practice. I am not certain that that would be entirely in accordance with the objective that the noble Lord, Lord Mishcon, has in mind.

I suggest that the Bill gives full free power to the Law Society in this respect. Subsection (2) reads, Nothing in subsection (I) prevents the Law Society making rules which prohibit"— and that is the emphasis which my noble and learned friend the Master of the Rolls placed upon it— solicitors from entering into any such unincorporated association with persons who are not solicitors, or restrict the circumstances in which they may do so". That gives the society full power to make any conditions it wishes, including prohibition of a particular type of partnership. I also suggest that to make the provision more detailed may well suggest that various types of unincorporated associations could properly function because those various matters could be effected. Although I understand the desire expressed by the noble Lord, Lord Mishcon, and by my noble and learned friend the Master of the Rolls, to ensure the freedom of the Law Society to make appropriate rules and prohibitions, I hope that your Lordships will feel that the clause as drafted achieves that aim effectively, and that what is proposed really does not add anything to the necessary powers of the Law Society.

Lord Mishcon

My Lords, I should like first to express my gratitude to the noble and learned Lord the Master of the Rolls for the soft, kind and gentle way in which he corrected the wording of the amendment. He did so most properly. As he said, and as I tried to say, it is the principle which we are really debating at this stage of the Bill's proceedings. The noble and learned Lord was also good enough to indicate that he was prepared to deal with the matter on principle.

I find myself in a difficult position in following the logic of the noble and learned Lord which is usually so clear. I thought at one time he was saying that if this was wholly undesirable, one would have expected that the power would be deliberately taken away in order to deal with multi-disciplinary practices, and that we ought so to enact if it was felt necessary. I tried to do just that in Committee and I was stopped by the opposition which the noble and learned Lord then expressed to such a prohibition. In the circumstances, I find it difficult to do anything else but to return at a later stage with protective measures in order to see that rules are not made which do not deal with the situation which I have enumerated in the amendment.

The extraordinary situation is that the noble and learned Lord would have us think that he is giving something that the Law Society wants. I made it abundantly clear in Committee—and I had the authority of the society to say this—that it is a power which the Law Society does not want and that it would welcome a situation where there was no power to grant multi-disciplinary practices the right of law.

The noble and learned Lord talked about whether the Law Society can make such rules as it wishes. Of course it can. But what is Parliament doing? The Law Society exists for the protection of a very learned profession. However, I hope that it always has regard for the welfare of the public. It is Parliament which shows the correct balance and which sees to it that while professions are properly protected, so is the public. Is the noble and learned Lord really saying to Parliament, "Do not carry out your duties; those duties are carried out by the Law Society and the Bar. We do not have to worry Parliament; let them do what they want"?

I am asking Parliament to say that if there are to be multi-disciplinary practices there must be protective provisions to ensure that they are not permitted without the proposed safeguards. The noble and learned Lord told me that I have the protection of the Confederation of British Industry. I ask him for his protection and for Parliament's protection, much as I respect the Confederation of British Industry.

In those circumstances, unless the noble and learned Lord—who is capable of so much generosity—relents I must seek the opinion of the House.

The Lord Chancellor: My Lords, before the noble Lord sits down I should like to say that I am sorry if I have not made my position clear. I said that the Law Society wishes to permit multi-national practices and therefore the standing prohibition must be removed from the Act. That is achieved by this clause. That is all that I said about the Law Society.

I understand perfectly that, as presently advised, the Law Society is anxious to prohibit multidisciplinary practices. I do not believe that I said anything that suggested the contrary. If I did it was certainly not my intention. I then said that the Law Society has full power under the clause to prohibit multi-disciplinary practices altogether if it wishes and believes that to be the right thing to do.

I went on to say—I hope reasonably clearly—that to suggest that there were conditions which, if met, would enable multi-disciplinary practices to be approved might not serve the interests that the noble Lord wishes to serve.

I have put those points to the noble Lord before he sat down simply in response to his question since I seem to have left the matter unclear.

Lord Mishcon

My Lords, I am most grateful to the noble and learned Lord. However, that does not affect the position conerning the clear statement in Clause 50(1) that: Section 39 of the Solicitors Act 1974 (which, in effect, prevents solicitors entering into partnership with persons who are not solicitors) shall cease to have effect". That is absolutely right. Multi-national practices will be permitted and multi-disciplinary practices will also be permitted unless there is a provision in the Bill which prevents them from being established. All I say on behalf of those in this House who agree with me is that we do not want rules made by the Law Society in that context. As I said before, we should prefer a straightforward prohibition in the Bill against multi-disciplinary practices. If we cannot have that we must have something in the Bill which makes it quite clear that the Law Society, which is now enabled to make rules permitting multidisciplinary practices, must not make such rules unless they cover the points set out in the amendment. That is why I must press the amendment unless the noble and learned Lord can accept it in principle.

4.43 p.m.

On Question, whether the said amendment (No. 184) shall be agreed to?

Their Lordships divided: Contents, 68; Not-Contents, 86.

DIVISION NO. 2
CONTENTS
Ackner, L.	Hirshfield, L.
Addington, L.	Howie of Troon, L.
Airedale, L.	Hughes, L.
Alexander of Weedon, L.	Hunt, L.
Ardwick, L.	Hutchinson of Lullington, L.
Aylestone, L.	Irvine of Lairg, L.
Birk, B.	Jeger, B.
Blease, L.	Jenkins of Putney, L.
Boston of Faversham, L.	Lloyd of Hampstead, L.
Broadbridge, L.	Lloyd of Kilgerran, L.
Bruce of Donington, L.	Longford, E.
Carmichael of Kelvingrove, L.	Mayhew, L.
	Mishcon, L.
Carnock, L.	Molloy, L.
Cledwyn of Penrhos, L.	Newall, L.
Coleraine, L.	Northfield, L.
Dean of Beswick, L.	Ponsonby of Shulbrede, L. [Teller.]
Donaldson of Kingsbridge, L.
Donaldson of Lymington, L.	Prys-Davies. L.
Dormand of Easington, L.	Renton, L.
Erroll, E.	Ritchie of Dundee, L.
Ewart-Biggs, B.	Roskill, L.
Fitt, L.	Sainsbury, L.
Foot, L.	Selkirk, E,
Gallacher, L.	Serota, B.
Gladwyn, L.	Simon of Glaisdale, L.
Graham of Edmonton, L. [Teller.]	Stallard, L.
	Stoddart of Swindon, L.
Grantchester, L.	Strabolgi, L.
Hacking, L.	Tordoff, L.
Hailsham of Saint Marylebone, L.	Turner of Camden, B.
	Underhill, L.
Hanworth, V.	Wallace of Coslany, L.
Harris of Greenwich, L.	Wigoder, L.
Hatch of Lusby, L.	Williams of Elvel, L.
Havers, L.	Willis, L.

NOT-CONTENTS
Aldington, L.	Ampthill, L.
Allen of Abbeydale, L.	Arran, E.
Allenby of Megiddo, V.	Auckland, L.

Belhaven and Stenton, L.	Lucas of Chilworth, L.
Belstead, L.	Lyell, L.
Bessborough, E.	Lytton, E.
Blatch, B.	Mackay of Clashfern, L.
Blyth, L.	Manchester, D.
Borthwick, L.	Margadale, L.
Boyd-Carpenter, L.	Marsh, L.
Brabazon of Tara, L.	Merrivale, L.
Brougham and Vaux, L.	Mersey, V.
Butterworth, L.	Mottistone, L.
Caithness, E.	Mountevans, L.
Campbell of Croy, L.	Mowbray and Stourton, L.
Carnegy of Lour, B.	Murton of Lindisfarne, L.
Charteris of Amisfield, L.	Nelson, E.
Clitheroe, L.	Onslow, E.
Cockfield, L.	Oppenheim-Barnes, B.
Colwyn, L.	Orkney, E.
Cottesloe, L.	Pender, L.
Cox, B.	Plummer of St. Marylebone, L.
Cullen of Ashbourne, L.
Davidson, V. [Teller.]	Quinton, L.
Denham, L. [Teller.]	Rawlinson of Ewell, L.
Derwent, L.	Reay, L.
Downshire, M.	Renwick, L.
Eden of Winton, L.	St. Davids, V.
Elibank, L.	Sanderson of Bowden, L.
Elliott of Morpeth, L.	Selborne, E.
Fraser of Kilmorack, L.	Shaughnessy, L.
Henley, L.	Slim, V.
Hesketh, L.	Strathcarron, L.
Hives, L.	Strathclyde, L.
Hooper, B.	Strathmore and Kinghorne, E.
Hylton-Foster, B.
Joseph, L.	Swinton, E.
Kimball, L.	Thorneycroft, L.
Kinnaird, L.	Trefgarne, L.
Knollys, V.	Trumpington, B.
Knutsford, V.	Ullswater, V.
Layton, L.	Whitelaw, V.
Long, V.	Wise, L.
Lothian, M.	Young, B.

Resolved in the negative, and amendment disagreed to accordingly.

4.53 p.m.

[Amendment No. 185 not moved.]

Lord Renton moved Amendment No. 185A: Page 38, line 41, at end insert— ("() Alterations in the existing rules of the General Council of the Bar relating to the formation of a legal relationship by a barrister with another barrister or solicitor or with any other person for the purpose of their jointly offering professional services to the public shall have no effect unless approved under Part II of Schedule 4.").

The noble Lord said: My Lords, this amendment is an attempt to try to reconcile various provisions of the Bill which at the moment are not reconciled. However, I think that in everybody's interests they should be. Clause 50(6) provides that: Nothing in subsection (5) prevents the General Council of the Bar from making rules which prohibit barristers from entering into any such unincorporated association, or restrict the circumstances in which they may do so".

That refers of course, as we are discussing Clause 50, to multi-disciplinary and multi-national practices. In order to find out about the rule-making power of the Bar Council we need to turn to Clause 28. That leaves a degree of uncertainty. Clause 28(3) states: In the event of any question arising as to whether any provision"—

that is provisions dealing with the rules of the Bar Council is deemed to have been approved by virtue of subsection (2)— (a) the Lord Chancellor shall seek the advice of the Advisory Committee and the Director; (b) the Lord Chancellor and each of the designated judges shall consider, in the light of that advice, whether that provision is deemed to have been so approved; and (c) that provision shall be deemed not to have been so approved unless the Lord Chancellor and each of the designated judges are satisfied that it has been".

The Bar Council will of course from time to time need to alter its rules, and in particular will need to alter its rules in order to express its views and implement its decisions with regard to multi-disciplinary and multi-national practices. At this point I should mention—this will be familiar to many of your Lordships—that multi-disciplinary practices, and especially, multi-national practices, involve questions which could affect the eligibility of members of the English Bar to act in member states of the European Community. In some of the member states a lawyer cannot act as a lawyer if he or she is a member of a firm which carries on a practice with persons who are not members of the legal profession. The matter arises also with regard to legal remedies with the United Kingdom. Surely it is right that the decisions to be made by the Bar Council under Clause 50 should be considered by the advisory committee which will be well equipped to deal with such matters, rather than having such matters dealt with in any other way, if there is an alteration to be made in the rules. As I said, that may well be the case.

That brings me to Clause 26 because we have to consider there the effect of that clause upon any authorised body. Clause 26(3) states: Where any authorised body alters … (b) any of its rules of conduct, those alterations shall not have effect, so far as they relate to any right of audience or any right to conduct litigation granted by that body, unless they have been approved under Part II of Schedule 4".

The alterations shall not have any effect in spite of the provisions of Clause 50. I hope that is not too great a stretch of the imagination when one realises that entering into multi-disciplinary and multi-national practices could affect rights of audience or, in the case of solicitors, the right to conduct litigation. Therefore we need to consider what the effect of Part II of Schedule 4 would be. That latter provision appears on pages 74 and 75 of the Bill. Paragraphs 6 and 7 lay down the steps which have to be taken to get the matter considered by the advisory committee. Paragraph 8 on page 75 refers to the submission to the noble and learned Lord the Lord Chancellor when the advisory committee's advice has been obtained. Then, in paragraph 9, we have the advice of the Director General of Fair Trading. But the culmination of the matter and the point on which we should focus our attention in relation to Clause 50 is in paragraph 11 at the bottom of page 75 which refers to approval by the noble and learned Lord the Lord Chancellor and the designated judges.

I suggest to your Lordships that with these various overlapping provisions in Clauses 26, 28, 50 and in Part II of Schedule 4 we should make sure that the ultimate decision is taken by the noble and learned Lord the Lord Chancellor and the designated judges. I hope the amendment that I have tabled achieves that purpose. If your Lordships will kindly glance at it you will see that it says: Alterations in the existing rules of the General Council of the Bar relating to the formation of a legal relationship by a barrister with another barrister or solicitor or with any other person for the purpose of their jointly offering professional services to the public shall have no effect unless under Part II of Schedule 4".

The culmination of what is written in Part II of Schedule 4 is in paragraph 11, which refers to the decision of the Lord Chancellor and the designated judges.

I have put this forward partly as a probing amendment but also in the hope that my noble and learned friend the Lord Chancellor will agree with what I have suggested; namely, that the machinery of the Bill whereby the Lord Chancellor and the designated judges have the last word should apply in particular to this matter. I beg to move.

5 p.m.

Baroness Elles

My Lords, my noble friend Lord Renton has raised an important point on the role of the advisory committee in relation to Clause 50. If we just concentrate on the multi-disciplinary practice, I understand that both the Law Society and the Bar Council are totally opposed to this, whereas multi-national practices are already in fact on the verge of happening, provided that the Law Society and the Bar Council lift their ban and agree to have them.

Earlier on during Report stage my noble and learned friend was kind enough—and I take this opportunity to thank him warmly for this because I was unable to be here—to table an amendment to add subsection (3) to Clause 17. It reads: In discharging its functions the Advisory Council shall—(a) where it considers it appropriate, have regard to the practices and procedures of other member States in relation to the provision of legal services". I should be grateful if my noble and learned friend could confirm, where it relates to multi-national practices and deals with rules and regulations concerning both the Bar Council and the Law Society, that clearly this falls within the competence of the advisory committee and consequently would fall within Part II of Schedule 4.

It seems to me that this is the logical outcome of this amendment, and indeed of what my noble and learned friend said on 20th February at col. 249 of Hansard: The amendment requires the advisory committee, when carrying out its functions, to bear in mind the desirability of ensuring equal opportunities in the legal profession and, where appropriate, how legal services are provided in other European countries". He went on to say: I would expect the advisory committee to bear such matters in mind anyway". That seems to me to put this question of multi-national practices fairly and squarely into the hands of the advisory committee and to protect them from any outside interference, and it will be entirely subject to the ultimate decision of the Lord Chancellor. I should be grateful if he would comment on this question.

Lord Hacking

My Lords, in Committee I moved Amendment No. 202ZA. That amendment might be described as a parallel amendment to the amendment that the noble Lord, Lord Renton, has moved. I therefore support the noble Lord's amendment for the reasons that he has given to the House and indeed the reasons that I gave to the Committee in support of my amendment.

It seems not only sensible, but close to essential, that the rules should come under one regime, and when for example we are concerned with the rules of advocacy that they should come under the regime of Part II of Schedule 4. For that reason, and hopeful that the noble and learned Lord has not closed his mind over my Amendment No. 202ZA, I support the noble Lord, Lord Renton.

The Lord Chancellor

My Lords, the purpose of the consent provisions—that is the consent provisions relating to the designated judges and the Lord Chancellor—is to deal with matters concerned with rights of audience and the right to conduct litigation. It is in that area that the consent of the designated judges is required.

It is conceivable that the Bar Council, for example, might want to make rules that go outside that area; for example, in relation to overseas practice by members of the Bar. The relationship between the rules of the Bar and the consent machinery is that the rules of the Bar and any changes in the rules would require approval by the consent machinery of Part II in so far as they affect rights of audience in the case of the Bar and in the Law Society case generally more often the right to conduct litigation. That is the relationship between the two.

In so far as most of the rules of the Bar that I am familiar with are connected with the right of audience, of course questions about association and the like covered by this amendment would require to be submitted for approval and would become' effective only if they were approved. But if rules of the Bar had an effect outside that area, then the consent of the designated judges and the Lord Chancellor would not be appropriate. I do not think that this amendment is appropriate for that reason.

To extend the role of the designated judges and the Lord Chancellor beyond rights of audience in the case of the Bar, taking that as the paradigm case, would be to go beyond the jurisdiction that is conferred on them. It is that area that requires the judicial protection and judicial consideration, and that is the reason why the approvals relate either to right of audience or the right to conduct litigation.

Lord Renton

My Lords, I am grateful to my noble and learned friend for his reply, although I do not find it totally helpful. Naturally one will need to consider this. If it be the fact that without any reference to Part II of Schedule 4, arid without any reference in fact to Clauses 26 or 28, the Bar Council would be on firm ground in altering its rules and would not be challenged and would not need any special approval, well and good.

That may well be the case in the light of what my noble and learned friend has said. However, I am grateful to him for considering this matter, and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 186 not moved.]

The Lord Chancellor moved Amendment No. 186A: After Clause 50, insert the following new clause:

("Right of audience for solicitors in certain Crown Courts

For section 83 of the Supreme Court Act 1981 (right of audience for solicitors) there shall be substituted the following section—

("Right of audience for solicitors in certain Crown Courts. 83.—(1) The Lord Chancellor may at any time direct, as respects one or more specified places where the Crown Court sits, that solicitors, or such category of solicitors as may be specified in the direction, may have rights of audience in the Crown Court. (2) Any such direction may be limited to apply only in relation to proceedings of a description specified in the direction. (3) In considering whether to exercise his powers under this section the Lord Chancellor shall have regard, in particular, to the need to secure the availability of persons with rights of audience in the court or proceedings in question. (4) Any direction under this section may be subject to such conditions and restrictions as appear to the Lord Chancellor to be necessary or expedient."").

The noble and learned Lord said: My Lords, I have proposed this amendment in response to points raised at the Committee stage by the noble Lord, Lord Hutchinson of Lullington, towards the end of that stage. The noble Lord then tabled an amendment the effect of which was to repeal Section 83 of the Supreme Court Act. Section 83 of that Act enables the Lord Chancellor to direct that solicitors may appear in, conduct, defend and address the court in any proceedings in the Crown Court, speaking generally. It also provides that a direction made under the section may have effect as respects all places where the Crown Court sits and that the Lord Chancellor shall have regard to any shortage of counsel in the area in question and to any other circumstances affecting the public interest.

The noble Lord, Lord Hutchinson, was anxious—I hope that I paraphrase accurately the point that he made—that Section 83 might be used by the Lord Chancellor to bypass the rights of audience conferred under the machinery proposed in Clause 24(1) and related clauses of the Bill. I explained then that I had looked at this some time ago in order to consider it because I had been asked to make more dramatic changes immediately under this section than I was minded to do because I felt that it was intended to have rather limited effect. I did not believe that Section 83 was passed by Parliament to enable the Lord Chancellor to allow solicitors to have complete rights of audience in all Crown Courts without further ado.

I therefore took the view that it was more restricting. The noble Lord then said, "That is your view. It may not be the view of your successors". I do not know whether I formally undertook to do so, but I noted the point and looked at it carefully. I have come to the conclusion that it would be right to modify Section 83 to try to make it clear that it is intended to deal only with local situations. For example, since I have been Lord Chancellor I have made a direction under Section 83 transferring the rights of solicitors in the Crown Court in Bodmin to the new Crown Court in Truro. My noble and learned friend Lord Hailsham earlier made a more general direction under the section in relation to particular types of proceedings in which solicitors had been instructed in magistrates' courts.

I intend to make it clear that Section 83 is now restricted to deal with local situations such as the one to which I have just referred. It is in that sense that the amendment is proposed. There is a related problem in respect of Section 4 of the Prosecution of Offences Act 1985 to which the noble Lord also referred. I have brought forward the amendment, and if your Lordships accept it I will consider whether it has any corresponding effect on Section 4 of the 1985 Act because the idea is that the provisions should go in parallel. I beg to move.

5.15 p.m.

Lord Hutchinson of Lullington

My Lords, perhaps I may say at once that I am grateful to the noble and learned Lord for his attempt to meet the argument which I put forward in Committee. I appreciate that attempt, but I have to say that I have reservations about the way in which the amendment is phrased. In my humble opinion it does not seem to be limited necessarily to the purposes to which the noble and learned Lord has referred.

If the amendment were to say something to the effect that where, in the opinion of the Lord Chancellor, there is a shortage of advocates in any specified court then certain powers would be available, one would of course have no objection to it. However, as drafted, it seems to me, with great respect, that the amendment drives a coach and horses through the mechanism about which we have heard so much.

Clause 24(2) says straightforwardly: A person shall have a right of audience before a court in relation to any proceedings only in the following cases". That provision limits rights of audience to the mechanism. In the amendment, the Lord Chancellor is taking upon himself a power to grant rights of audience totally outside the mechanism. What is the power? The amendment says, The Lord Chancellor may at any time direct, as respects one or more specified places"— so that he can direct all Crown Courts— where the Crown Court sits, that solicitors, or such category of solicitors as may be specified in the direction, may have rights of audience in the Crown Court. Any such direction may be limited". So we can put that aside. But the amendment goes on, in considering whether to exercise his powers … the Lord Chancellor shall have regard, in particular, to the need to secure the availability of persons with rights of audience in the court or proceedings in question". Those words give the Lord Chancellor, and Lord Chancellors in the future, power to issue a direction that solicitors, or other categories of persons, may have rights of audience in all Crown Courts if, in the opinion of the Lord Chancellor, he wishes to secure the availability of those persons or that category of persons in those courts. In other words, putting the matter simply, if the Lord Chancellor of the day decided that solicitors or other advocates should have rights of audience in a Crown Court in pleas of guilty only; in short cases only; in certain categories of offence only; or that they should belong to certain firms only or accord with any other category or basis which he thought right, he would have power to by-pass the whole of the mechanism and make that possible.

Further, under subsection (4) any such direction, may be subject to such conditions and restrictions as appear to the Lord Chancellor to be necessary or expedient". I cannot help seeing in that subsection, although it may be physically difficult to imagine, the transformation of the noble and learned Lord into the appearance of Henry VIII. The restrictions or expediency which the Lord Chancellor might wish to impose seem unlimited.

Equally, the Lord Chancellor could say—this is important having regard to our recent debate in relation to the Crown Prosecution Service, which is a huge organisation—under the clause as drafted, "In my opinion, members of the staff of the Crown Prosecution Service should be available in all Crown Courts right across the country, either totally or in relation to specified categories of proceedings or types of offences". That gives a power which drives a coach and horses through the whole procedure of the mechanism. That is my worry about the clause as drafted.

I have sought previously to include Section 83 of the Supreme Court Act and Section 4 of the Prosecution of Offences Act in the repeal section. In order to meet the noble and learned Lord's worry about practice directions which have already been made, in Amendment No. 227A I make it clear that such repeal would not affect the continued operation of any such practice directions which have already been made. Although I appreciate that the noble and learned Lord has sought to meet my objections, why should the Lord Chancellor of the time be given those powers? Why should solicitors not go through the ordinary mechanism? If he wishes solicitors or other advocates to be available in courts, why should he not go straightforwardly through the mechanism of the committee and the designated judges?

Lord Ackner

My Lords, to understand the amendment one has to look at it in its historical context. I speak of course subject, as always, to my noble and learned friend Lord Hailsham; but I understand the historical background is that, before the Beeching Royal Commission on assizes and quarter sessions between 1966 and 1970, there were certain quarter sessions which were entirely open to solicitors because of the remoteness of the areas in which those courts took place. For instance, on my circuit there was Bodmin and there were other places in Lincolnshire.

When Lord Beeching introduced his report and it was debated in the House, there was a strong move to give solicitors rights of audience in the new Crown Court. It has not been recommended, but the opportunity was taken to debate it. That was some 10 years before the commission of the noble Lord, Lord Benson, gave its views. That proposal was resisted, but, in order to meet the complaint which was made in theory a clause was inserted in the courts Act which was then re-enacted in the Supreme Court Act 1981. The complaint to which I am referring was that some courts might lack a sufficient number of barristers, the more so because the numbers of the Bar were then about 2,000 as compared with their present strength of 6,000 and Lord Beeching had expressed anxiety as to whether, given its size, the Bar could cope with its monopoly. That additional measure gave the Lord Chancellor, in his discretion, power to ensure that, if courts were not sufficiently manned by the Bar, he could open them. Accordingly, Section 83(3) stated: "In considering whether to exercise his powers under this Section as respects any one or more places where the Crown Court sits, the Lord Chancellor shall have regard to any shortage of counsel in the area in question, any rights of audience formerly exercised by solicitors at any court of quarter sessions in the locality in question, and to any other circumstances affecting the public interest".

The Bar reacted quickly and robustly to the suggestion that its members might be unable to service the monopoly that they had; ergo, the increase in the numbers which I mentioned. Local Bars were opened in various parts of the country. Again, returning to my circuit, they were opened at Exeter, Plymouth, Winchester and Portsmouth. Because of the shift of the litigation to Truro, the opening of local chambers there is already being contemplated. In consequence, the Lord Chancellor never exercised his power to open any new courts or to open up any new jurisdiction to solicitors in the Crown Court with the exception of what my noble and learned friend the Lord Chancellor has done. That is nothing new; it merely moves the Bodmin situation, which was open, down to Truro because the Crown Court has now gone to Truro.

It has therefore been proved that the section is quite unnecessary. That is why I strongly support the proposition of the noble Lord, Lord Hutchinson, that it falls to be repealed while preserving the existing rights of audience which solicitors enjoy in those special courts. Far from repealing that section which has proved that it is only of virtue for an administrative function as per the situation in Truro, my noble and learned friend the Lord Chancellor has breathed entirely new life into it.

Despite that complex machinery of advisory committees to be followed by consideration by my noble and learned friend the Lord Chancellor with his veto and by the designated judges with their veto, the amendment purports to arrogate to my noble and learned friend the Lord Chancellor powers to bypass that system entirely in relation to solicitors in the Crown Courts. It applies anywhere. It applies to solicitors or categories of solicitors and no longer is it to depend on the shortage of counsel in any area in question. The widest possible language is used, ending with the words: Any direction under this section may be subject to such conditions and restrictions as appear to the Lord Chancellor to be necessary or expedient". That statement follows subsection (3) which is permissive in nature and states: In considering whether to exercise his powers under this section the Lord Chancellor shall have regard, in particular, to the need to secure the availability of persons with rights of audience in the court or proceedings in question". The noble Lord, Lord Hutchinson, was perfectly right. The section has now fulfilled its purpose. In lieu of having to make an order in regard to a court, there is provision in the advisory committee machinery. It is most unlikely to be used, having regard to experience while the section has been in force—a period of about 20 years. That clear power to bypass the machinery seems to be quite contrary to the spirit of the Bill.

Lord Hailsham of Saint Marylebone

My Lords, I rise only to say a very few words. When we discussed Clause 48 at some length, my noble and learned friend on the Woolsack made what seemed to me to be a powerful point. Although I was not altogether in agreement with it, it carried the day. When we discussed the rights of the Bar Council, as I think it then was, to make rules, and the provisions of the amendment suggested by the noble Lord, Lord Hutchinson of Lullington, my noble and learned friend in effect replied, "Let the mechanism prevail and let the whole thing be organised through the advisory committee which the earlier sections of the Bill provides".

I now turn my attention to Section 83 of the 1981 Act which has the history outlined by my noble and learned friend Lord Ackner. I can confirm from memory, although I have not refreshed it, that I was responsible for passing that section into the Act or its predecessor. That was done because of the difficulty in certain parts of the country where there was an established right of appearance for solicitors in certain quarter sessions and because it was rightly pressed upon us that, with the increase in the demand for advocacy in the Crown Court, other situations of shortage of advocates might easily arise elsewhere. I believe that I did right and that the provision has worked perfectly well over a period of 20 years.

However, my noble and learned friend on the Woolsack cannot have it both ways. Section 83, as passed by me and then consolidated in 1981, has become a fifth wheel to the coach. It has served its purpose and I do not repent of anything I did. However, now that we have the mechanism which my noble and learned friend on the Woolsack has insisted on applying to the sequence of sections here, it should go altogether, subject to any draftsman's point, on which the noble Lord, Lord Hutchinson, touched, as to the continuation in force of any amendment unless there is a desire to change it. If there is a desire to change it or to enlarge it, the mechanism should prevail. With great respect to my noble and learned friend, he cannot have it both ways. If his argument on Clause 48 was to let the mechanism prevail, it ought to be the rule which applies here. It seems to me that there is a basic inconsistency between what he now proposes and what he said at the last series of hearings at this Report stage.

5.30.p.m

Lord Wigoder

My Lords, perhaps I too may indicate a distinct lack of enthusiasm for the new clause proposed by the noble and learned Lord the Lord Chancellor. I fully understand his desire to re-enact in some form or another the gist of Section 83 of the Supreme Court Act 1981. But, as I am sure the noble and learned Lord will realise, we are in a very sensitive area at this particular moment. I venture to suggest that the wording of the proposed new clause might have been rather more sensitively drafted.

There is no doubt that under the clause as drafted the Lord Chancellor has complete power to give rights of audience to solicitors in all Crown Courts—full stop. He does not need to give any reason for doing so. It might have been otherwise had subsection (3) been drafted differently and had provided that the Lord Chancellor: shall have regard solely to the need to secure the availability of persons". That might perhaps have been understandable. Simply to put in the words "in particular" means that that is not in any sense an exclusive test. Therefore, as I read these subsections, the Lord Chancellor undoubtedly has totally free powers to grant full rights of audience to solicitors without giving any reason of any sort.

I entirely accept that nothing would be further from the noble and learned Lord's mind than to make any such order. I accept that fully. Nevertheless, that that should be a theoretical power at this moment, when noble Lords have spent so many days and weeks debating the whole question of rights of audience, seems to me to be somewhat undesirable. I therefore support what has been said by those who have participated in this debate that the clause is unnecessary.

If the noble and learned Lord the Lord Chancellor nevertheless desires to re-enact in one form or another the gist of Section 83, might I respectfully suggest to him that the mechanism could be briefly introduced into this clause by providing that any such order made by the Lord Chancellor under a clause of this nature should be after consultation with the designated judges. That might at least remove the alarm that will be felt by many when they come to read the wording of this clause as it now stands.

Lord Donaldson of Lymington

My Lords, perhaps I may follow up that constructive suggestion. As I understand it from my noble and learned friend the Lord Chancellor, the intention of this power is to be able to fill gaps which appear on a very local scale and perhaps appear suddenly. I would not have thought that the Schedule 4 procedure was very well designed to deal with that situation because the Schedule 4 procedure is designed to approve rules by—in this case—the Law Society. It would seem hardly appropriate that the Law Society should pass a rule stating that solicitors should have a right of audience in the Bodmin-Truro Crown Court. It is not the kind of thing with which the rules of the Law Society are normally designed to deal.

In any event, it may be that the situation would pass. There would no longer be a case for that, and it would be quite difficult to persuade the Law Society to revoke that rule. So I very much doubt whether the Schedule 4 procedure is right.

On the other hand, so long as my noble and learned friend sits on the Woolsack, there is no problem because he has said for what purpose he wants to use that power. But I can understand that people have anxieties in the longer term future. My suggestion was not to be "after consultation with the designated judges" but "with the concurrence of the designated judges".

That produces a very quick process by which one obtains part of what is required from the Schedule 4 procedure, but it is a part which enables the matter to be arranged very quickly. I have no doubt at all that if the need were apparent and my noble and learned friend wanted to do it, the designated judges would say, "of course". But in the future, if someone were trying to get round Schedule 4 by using this power, I think that they would say, "No, we do not consent to this power. We might well consent if it came through the Schedule 4 procedure. You go through that procedure".

Lord Renton

My Lords, the practicality of this provision is that it arises rarely but unexpectedly when there is a shortage of counsel available in a court—perhaps a distant court. I remember that for a few months there was a shortage of counsel even as near to London as Rochester. The point is that when that happens the matter needs to be dealt with reasonably expeditiously.

I agree with what was said by the noble and learned Lord, Lord Donaldson. If we are to use the machinery of the Bill, which on all other occasions my noble and learned friend the Lord Chancellor has urged us to do, it should be used in a way which is fairly expeditious and does not involve the whole panoply of the advisory committee, and so on. It should enable the Lord Chancellor to obtain quite quickly the concurrence of the designated judges.

Certainly, to agree with the new clause exactly as it is, in my opinion and as has been said by others, would be inappropriate. Possibly the best suggestion—and it is intended to be a constructive one—is that we say to the Lord Chancellor, "Yes, you may have this new clause on condition that at Third Reading you will move an amendment to subsection (3) in order to make clear that the power is to be used only when there is a proved shortage of counsel and then with the concurrence of the designated judges".

The Lord Chancellor

My Lords, the history given by my noble and learned friend Lord Ackner, which my noble and learned friend Lord Hailsham supported, is my understanding of the history of Section 83. It is right to say that a practice direction was made under it of a more general kind than the one relating only to particular courts. My noble and learned friend did make a practice direction allowing solicitors who had appeared in the magistrates' court to appear in the Crown Court on appeal.

But I had to look at this section some time ago, as I explained in Committee in answer to the noble Lord, Lord Hutchinson. I took the view that Section 83 in its previous form did not have the effect, on a proper construction of it, of allowing the Lord Chancellor to allow solicitors generally throughout the country to have rights of audience in the Crown Court although on a superficial reading of it that might have been so, and I tried to explain that point.

In considering the points made by the noble Lords, Lord Wigoder and Lord Hutchinson, one has to compare the clause that I propose with the existing Clause 83. What I left out was as follows. In Clause 83(2) it states: A direction under this section may have effect as respects all places where the Crown Court sits". The general direction that my noble and learned friend Lord Hailsham made did have that effect. I wanted to go along with the spirit of what the noble Lord, Lord Hutchinson, was asking for. That is why I took out that passage and made the provision only to specified places. It is true that one could specify every place in a very long schedule, but I think it is fairly plain that by taking out that particular portion that is not intended. I believe that it would be fair to look at it in that way. That is a point that the noble Lords did not make in their interventions.

The next point is that it is said: "Look here, you are not restricting it to places where there is a shortage". The difficulty I have about that is that I put in: shall have regard, in particular, to the need to secure the availability". That is the point.

Let me just consider the position in Bodmin having arisen after the Bill goes through. Let us suppose that the Crown Court was moved from Bodmin to Truro. I do not think that I would have been too satisfied at the time that I had to deal with it that there was a great shortage in Truro. However, I consider that it was right, because of the established practice, to make the move. That is why I have put it in this way. A similar situation might arise, for all I know, where a particular court has to move from where it is presently established and it might be right to make that move.

On the point regarding allowing rights of audience to other solicitors and advocates, the clause does not allow that. It is restricted to, solicitors, or such category of solicitors as may be specified", because that is now a possibility of different categories. I have no difficulty whatsoever in requiring the Lord Chancellor's direction to be with the concurrence of the four designated judges. I would contemplate this provision being used only in very exceptional circumstances.

On the point of the noble and learned Lord, Lord Hailsham, I endeavour to be consistent. I do not wish to ask for something that is not consistent with the general scheme. I believe that the general scheme is well worthwhile as a general scheme. The point about this provision is that it is for particular situations where the general scheme would not be appropriate. It might be right to allow solicitors to appear in the Crown Court at Truro while not allowing them to appear generally in the Crown Courts in other places. The mechanism is for that second situation, not the first.

I am content to say that I shall bring forward an amendment at Third Reading to make the directions subject to concurrence of the four heads of division if noble Lords are prepared to agree to that course. I have no difficulty about that whatsoever. I do not anticipate this clause being used very often. However, it has been in the law for some time. My noble and learned friend Lord Ackner states that there will never be a scarcity of qualified advocates. I thoroughly believe that he may be right about that. The proposal that I make in the Bill will go a good deal of the distance to make that certain. But it is possible that his prophecy might not be fulfilled in a particular area; it is therefore right that something of this kind should be retained.

I hope that the noble Lord, Lord Hutchinson—whom I was trying to meet by putting this amendment forward—will think it right to allow it to go forward if I undertake to make a prerequisite the concurrence of the four heads of division.

Lord Hutchinson of Lullington

My Lords, before the noble and learned Lord sits down—I am most grateful to him for what he has said—could I ask him to look again at subsection (3) and if possible include the words "shortage of advocates", as suggested by the noble Lord, Lord Renton, to make it perfectly clear that the phrase "secure the availability of persons", means more than pure availability and has something to do with the position of there being shortage or possible shortage.

Lord Wigoder

My Lords, before the noble and learned Lord sits down, and before he replies to my noble friend Lord Hutchinson of Lullington, will he consider whether it might be more helpful to the House if he were to withdraw the amendment at this stage upon the indication that it will come back next time in an amended form? I am sure that many of us who have been speaking in this debate would indicate that we would be prepared to accept such an amendment at that stage.

The Lord Chancellor

My Lords, I prefer to accept the suggestion of my noble friend Lord Renton. It saves repetition of printing an amendment of some size.

Perhaps I may reply to the point that my noble friend Lord Hutchinson of Lullington makes, with the leave of the House. I regard, "the need to secure the availability of persons" as a stronger provision. It would only be proper to use this power if something of the kind was required in order to secure that there were available people. The measure at present in the Act is slightly less direct than that. It states, shall have regard to any shortage of counsel". The provision here refers to, the need to secure the availability of persons with rights of audience". In other words, if people are already there, there is no need to secure availability of any people. That is why I have chosen words which are meant to be stricter than the words in the existing statute. I believe that they would be so read. That was certainly my intention in doing it this way. I cannot restrict it only to that for the reason that I mentioned—that we may have to move existing standing rights in the future. Those are the reasons for the provision.

I hope that in the light of that explanation, noble Lords will agree the amendment subject to my undertaking, as I have stated.

On Question, amendment agreed to.

5.45 p.m.

Lord Rawlinson of Ewell moved Amendment No. 187: Before Clause 52, insert the following new clause:

("Judicial Office of Lord Chancellor. The office of Lord Chancellor shall no longer be a judicial office and the right and duty of the Lord Chancellor to sit in a judicial capacity are hereby abolished.").

The noble and learned Lord said: My Lords, the House will be only too well aware, following hours of debate as we have made our weary way through the Bill, that the measure makes substantial changes in the practice of the law, the power of the Lord Chancellor to oversee a hitherto independent profession, and the qualifications required to become a senior judge in the highest court. It does not therefore seem to me inappropriate to do what we rarely have the opportunity to do—to consider the modern role of the Law Officers of the Crown.

The amendment affects only the senior of those Law Officers. However, the principle behind it affects the other two Law Officers who sit in another place. I wish to make it clear that the amendment is directed therefore to the question of the structure of government and the practical role therein of the law Ministers of the Crown.

It is always difficult to distinguish in the public and parliamentary mind between the office and the holder of the office. I was writing and speaking about this subject long before my noble and learned friend published his Green Paper or this Bill. Indeed, I was speaking about it before my noble and learned friend became Lord Chancellor. I am confident that he understands the amendment is not intended as a personal reflection on him. I have much respect for my noble and learned friend and—believe it or not, despite what he has got up to in parts of this Bill—affection. Therefore the amendment is not inspired by resentment. That is a suggestion I reject with contempt.

We must recognise that in modern times there have been important changes in the practice and duties of all three Law Officers, the Lord Chancellor, the Attorney-General and the Solicitor-General. Just as the modern Lord Chancellor rarely sits judicially, so the Law Officers, although I was taught that this was their first duty, appear less frequently for the Crown in court. Nowadays, the administration of the day wants its legal advisers at its beck and call, behind their desks or at the Cabinet table. Twenty years ago I remember how displeased Ministers were to find that the Attorney-General was in court and unable to attend a Cabinet committee. It is even more so now. It is no longer acceptable to Ministers and civil servants that the Crown duties of Law Officers come first. The demands of modern government require that all Law Officers give more of their time to their duties as a Minister than to their traditional duties as judge or counsel.

To some constitutional observers the dual role of the English Law Officers has always been a matter of disquiet. For them, the separation of powers between, on the one hand, the judicial or semi-judicial, and on the other, the executive power, has been a matter of principle. And no amount of pleading that the system works, and works fairly, has proved acceptable. That the system has worked whereby a person can be a judge or a Crown officer responsible for criminal prosecutions, in which role the administration of which they are members never interferes, is a tribute to office holders in governments of all colours without exception.

It is difficult to deny that the combination of roles is intellectually anomalous. Few outside the inner circle understand it. Many of the general public, especially the media, frankly disbelieve it. They often identify the government with the prosecution or the Attorney-General acting in the public interest. As the business of government has so greatly increased, so have the doubts of these observers. They would say, "The Speaker of this House, robed as is the lay Speaker of another place, yes. Cabinet Minister, yes. Ministers are responsible for, let it be noted, only the civil law of England and Wales (because the responsibility for the criminal law has always been given to a layman, the Home Secretary)—but judge, no." That is the constitutional quirk.

During the past half century the pattern of the office of Lord Chancellor has greatly altered. He used to sit judicially in the mornings and then come to preside on the Woolsack at 4.30 p.m. when the House commenced its non-judicial Sitting. Outside the Cabinet his duties were limited mainly to the appointment of High Court judges, then fewer in number, the protection of their interests and the supervision of the English law.

In modern times he rarely sits judicially. There is far too great a burden of administrative and political work. The most significant change is that due to his responsibility for legal aid the Lord Chancellor has become a Minister answerable for a substantial financial vote; millions of pounds of public money. There is no Minister in his department who sits in and speaks to the other place. After all, that is the House responsible for supply. In days when his vote was miniscule that mattered little.

The Attorney-General acted as his agent in another place and still does. However, the Attorney-General is not a junior member of the Lord Chancellor's Department. It is not easy, and not often satisfactory, to answer for acts of a department of which you are not a member. We in this House ask a great deal of Lords in Waiting, obliging them to answer for matters in which hitherto they have not been concerned, and to reply to complicated Statements made in another place. I am always filled with admiration by the way in which they carry out those difficult tasks. But your Lordships are more understanding than are Members elsewhere.

Therefore, when a government or Select Committee at last turn thoroughly to examine the structure of government—as at some time they must—it will not be long before there is a demand for a responsible Minister from this modern spending department to answer personally in another place for the large sums of public money. It may be required that the actual Minister should be a Member of the other place.

Hitherto, the Lord Chancellor has invariably been an English lawyer trained and practised in the English courts. In Scotland the law is different; it is founded on the civil law and untouched by the English common law. The roughly equivalent duties of the English Lord Chancellor in recommendation is performed by the Lord Advocate. The clans would surely start again on their march South if any government dared to appoint an English Lawyer to the Scottish post of Lord Advocate. It is a great tribute to my noble and learned friend that there is so little concern that someone who has not read the English law nor practised solely in the English courts should take on responsibility for that law and its judges. He has earned the admiration and affection of the whole profession.

But it has created a precedent. The result is that no longer must the Lord Chancellor be an English Lawyer trained in the English courts. If unamended the Bill will provide that a person appointed to a senior judicial post need not be a lawyer, including therefore the Lord Chancellor. When that condition is added to the vastly-increased administrative and political work now loaded on to the shoulders of the modern Lord Chancellor, together with the extra executive duties which we impose upon him under the Bill, it can be seen and must be recognised that the whole ethos of the post will inevitably be turned further away from the character of the judge and more towards emphasising the modern character of the executive Minister.

At some time, therefore, Parliament must pay heed to the outward manifestation of the duality of powers in modern times. It must look again at the doctrine of the separation of powers and must not shirk nor flinch from that. It must consider afresh whether, at the end of the 20th century, there should exist a system whereby one person can exercise great executive and political powers while also exercising the powers of a judge sitting in judgment.

Accordingly, the modern situation is that the Lord Chancellor has acquired heavy responsibilities for public money. He need no longer be an English trained lawyer. He is more involved in the ever increasing administrative and political duties. Furthermore, under the Bill the Lord Chancellor need no longer be a trained lawyer. It has never been necessary for the Home Secretary responsible for the criminal law to be a lawyer; nor for the Secretary of State for Defence to have military training; nor for the Minister of Health to be a trained doctor. It must be right, therefore, to consider why the Lord Chancellor should retain judicial powers.

I repeat that in making those remarks—and I made them and wrote about them long before the publication of the Bill—I am concerned not with personalities but with considering the role of the Lord Chancellor in the structure of today's modern government. It is a matter of not ignoring the evolution of the office and the increased emphasis on his political role. As we have been told often and said ourselves when discussing the Bill, our objective ought to be the creation of an ever-more rational legal system—and therefore governmental system—in the service of the public. It should be a system which the public can understand.

If, as its supporters suggest, the Bill is such a reforming measure, if it is designed to improve the service to the public and present a more logical and modern legal framework, we should start at the top and examine the desirablity in modern times of retaining in one office the dual role of leading executive and Cabinet Minister and the judge who sits in judgment over the citizen in the courts. On the face of it, and when expressed so, the position is hardly defensible. Perhaps because it works and we are fond of it the position is desirable and essential. However, the country ought to be told why. I beg to move.

Lord Hailsham of Saint Marylebone

My Lords, I could make two alternative speeches about the amendment; one would take an hour and the other only a few minutes—

Lord Boyd-Carpenter

Take the hour!

Lord Hailsham of Saint Marylebone

My Lords, rightly or wrongly I have selected the second of my two alternatives. I regretted to see the two amendments on the Marshalled List, but that was not for the reason which my noble and learned friend has expressed and disavowed, and which I accept without question. It was because I do not believe the Bill to be a proper vehicle for discussing the subject. It is an important question and in order to ventilate it properly I should need to speak for about an hour. I expect other noble Lords would wish to be as long—

A Noble Lord

Hear, hear!

Lord Hailsham of Saint Marylebone

My Lords, the Bill is a totally inappropriate vehicle for this kind of constitutional discussion. It goes far more to the root of our constitution than my noble and learned friend has yet appreciated. For instance, he twice said that in future under the Bill the Lord Chancellor need not be a trained lawyer. He never needed to be a trained lawyer. I have a daughter at the Bar and on occasions people have said to me, "Perhaps she will be the first lady Lord Chancellor". I have said, "She can't be because there has already been one". The wife of Henry III was Lord Chancellor. If my noble and learned friend had acquainted himself with Campbell's Lives of the Lord Chancellors—it is a primer which every Lord Chancellor should read from cover to cover—he would have known that. The Dean of Westminster was not a lawyer during the reign of Charles I. I could give examples ad infinitum. However, the truth of the matter is that this amendment is not only inappropriate to this Bill but is also wrong in principle.

We have an extremely subtle arrangement, as my noble and learned friend said, about the relationship between the legal profession, the administration of law and the judiciary. I shall not expound that at length; otherwise I should be inclined to take the first of my two alternatives. First, I believe it is absolutely vital that the person holding the rank of Lord Chancellor should be in this House. He has to be so long as he is the Speaker of this House, even though he could be Lord Keeper of the Great Seal and not be allowed to speak, which happened in the reign of Elizabeth I. In fact, it is vital that he should be in this House and should not be subjected to day-to-day criticism and questioning in the House of Commons.

It is also vital that he should be a lawyer of mark, although there is no legal requirement to that effect. Nobody would doubt that my noble and learned friend—although he has a Scottish rather than an English qualification—is exactly that and is a lawyer of very great distinction indeed.

The only way of ensuring that is to retain his position as a judge. If I may use a rather unseemly phrase, it is important that the Lord Chancellor should expose himself to criticism by giving judgment occasionally. This Lord Chancellor has done so, and I made a point of doing that. The late Lord Gardiner, one of my predecessors, was unwilling to do so because he did not like being a judge at all. He was a great advocate and a considerable lawyer but he had a distinct disinclination to pronounce judgment as a judge on anything. I only persuaded him to sit once after he had demitted office, and he did that with the greatest reluctance and refused to do so again.

Lord Simon of Glaisdale

My Lords, he decided wrongly.

Lord Hailsham of Saint Marylebone

My Lords, I am not sure that I go along with my noble and learned friend on that. I must say that I do not believe that this is a suitable occasion to discuss such an important matter. The amendment proposed—that the Lord Chancellor should not sit as a judge—is not only inappropriate but wrong. I hope that on reflection my noble and learned friend will withdraw his amendment now that it has been moved, without any disrespect to him, and I hope that we shall not take up a great deal of time in discussing a first-class constitutional matter in this rather unseemly way.

6 p.m.

Lord Simon of Glaisdale

My Lords, I agree entirely with what my noble and learned friend Lord Hailsham has just said. This is far too big a constitutional subject to be debated on Report. I only say that I would be very sorry to see the suggestion of the noble and learned Lord, Lord Rawlinson, adopted. In a number of respects this Bill is disruptive of our legal tradition. To adopt this proposal would be utterly and further disruptive of tradition.

The Law Officers were also referred to. That matter must be considered but not in the context of this Bill. There is a difference of opinion as to the role of the Law Officers. I rather think that the noble and learned Lord, Lord Rawlinson, is on one side and I am on the other.

Only the other day my noble and learned friend the Lord Chancellor said that he was voicing the opinion of the Attorney-General who was deciding in a personal capacity. That is the traditional view and I think that that is the view of the noble and learned Lord, Lord Rawlinson. I have never been able to see the answer to the point made by the late Lord Asquith of Bishopstone at the time of the Campbell case when he asked whether it was really conceivable that the Cabinet should have had no say before the 1914 war in the prosecution of the alleged rebels in Ireland when the whole future of Ireland, including the possibility of civil war, was in question. That has never been answered. I should think that the Cabinet has a clear right to take over a decision as to prosecution, making clear that it is its decision, although normally, conveniently and conventionally it is left to the Attorney-General.

Indeed, I venture to think that that may well be done in the Rushdie case, which raises very wide points of public importance. I say that merely because the situation as to the Law Officers is at least as debatable as that of the Lord Chancellor.

Finally, there is no reason at all why the Lord Chancellor should not have a junior Minister. In fact, that has been done twice. When Lord Gardiner was Lord Chancellor, the noble Lord, Lord Fletcher, was appointed Minister without Portfolio and was attached to the Lord Chancellor's office with a view to overseeing legal reform. At that time there was another junior Minister attached to the Law Officer's Department, a Mr. Davidson. Therefore the fact that there is no junior Minister in the Lord Chancellor's office is by no means a reason for the violent constitutional departure which this amendment suggests.

Lord Boyd-Carpenter

My Lords, I am not easily shocked. I have been too long in public life for that to happen easily. However, I must confess that I had a feeling of strong surprise when I saw the amendment of my noble and learned friend Lord Rawlinson on the Marshalled List. I believe that the case for the amendment has been most effectively demolished by my noble and learned friend Lord Hailsham. Therefore, I only wish to add a few words to that.

I believe that it is quite wrong to criticise, without going into a great deal of thought, the importance of the office of Lord Chancellor in its present form as the link between the Cabinet and the legal system. Of course, it is easy to suggest that there are anomalies of principle, and so on, in that. However, the system has worked effectively. I am perhaps freer to say that than my noble and learned friend Lord Hailsham, whose own conduct of office I believe all your Lordships would regard as having been quite magnificent.

Therefore, I hope that my noble and learned friend Lord Rawlinson will not press this amendment because it will take a great deal of time and it will seem, as I think it seems to most of us, to be a quite extraordinary proposal and to be particularly extraordinary at a time when we have he advantage of a great Lord Chancellor on the Woolsack.

Lord Donaldson of Lymington

My Lords, I rise only because I should not wish it to be thought that a serving judge had any different view from that expressed by my noble and learned friends Lord Hailsham and Lord Simon of Glaisdale and by the noble Lord, Lord Boyd-Carpenter. I have been in this job for many years and for the past seven or eight years I have been Master of the Rolls. I regard it as of enormous importance that the senior judge should be the Lord Chancellor in order that he may span the gap which necessarily must exist to provide the necessary separation between the Executive and the judiciary.

With regard to the suggestion that he should not sit as a judge, if he were totally unqualified, as he could be, one would expect him to apply the ordinary constitutional conventions which apply in such situations and not sit. However, we have in the present Lord Chancellor the advantage of one who is not only qualified as a matter of opinion. After all, he was a Lord of Appeal in Ordinary. It is difficult to think of any greater and more obvious qualification to possess in order to sit as a judge. If it be said that he should not sit as a member of the Supreme Court, that is a matter for him. I am bound to point out that I sat as a judge in Glasgow and as a judge of a British court; namely, the national industrial relations court. We also welcome Scottish judges sitting in London. I do not think there could possible be any objection to that. If the noble and learned Lord the Lord Chancellor wishes to sit in the Court of Appeal, I shall personally be there to welcome him.

Lord Renton

My Lords, I agree with those who have already opposed this amendment and I wish briefly to add two points. First, the chairman of the Bar asked me to state that the Bar Council wishes to dissociate itself from the amendment. Secondly—this is simply a thought of my own which in one way has been made by others; but I should like to put it like this—it is essential that the legislative, the executive and the judicial roles of the Government and Parliament should not be separated. In order that they may effectively be performed they must impinge upon one another. I therefore regard the Lord Chancellor as a vital link man.

Lord Mishcon

My Lords, I rise from these Benches only to make it abundantly clear that those whom I have the privilege of representing have not only the utmost confidence but a very deep affection with regard to the present Lord Chancellor. Having said that, I wonder whether I happen to have caught the sense of the House. I now ask whether the noble and learned Lord, Lord Rawlinson, is prepared, with his usual courtesy, to ask leave to withdraw his amendment, and, if he is not, I ask that the Question be now put.

The Earl of Selkirk

My Lords, perhaps I may make one observation—

Noble Lords

Order!

The Earl of Selkirk

My Lords, we raised the question of the Lord Chancellor. The correct title is the Lord Chancellor of Great Britain.

Lord Hailsham of Saint Marylebone

My Lords, I draw the attention of the Leader of the House to the fact that I understood the noble Lord, Lord Mishcon, to move the one Motion which cannot be debated—that the Question be now put. I understood him to do that, and if so that is what must be done.

Lord Belstead

My Lords, I think the noble Lord, Lord Mishcon, looked towards my noble and learned friend Lord Rawlinson of Ewell to inquire about his intentions with regard to the amendment. I think I am right in saying that our procedures most certainly extend to my noble and learned friend now speaking on his own amendment.

The Earl of Selkirk

My Lords—

Noble Lords

Order!

The Earl of Selkirk

My Lords, I only wish to address the House for a few moments. I should like to know whether, in the name of "The Lord Chancellor", any obvious duties fall on my noble and learned friend in respect of Scotland. I do not know whether or not that is so, but I should nonetheless be interested to see whether any duties fall on him. Beyond that, I support those who expressed their views on the importance of this office for England.

Lord Rawlinson of Ewell

My Lords, as I understand it, the noble Lord, Lord Mishcon, posed the question to me. I am perfectly happy to do that which I always intended to do—withdraw the amendment. I wish to say only two things in reply. I do not seek to call upon the noble and learned Lord the Lord Chancellor. I particularly said how difficult it was in parliamentary and public life to personalise these matters. The noble and learned Lord the Master of the Rolls of course immediately did so. With regard to my noble friend Lord Boyd-Carpenter, I have surprised him so much and put him in a state of shock so often that I am surprised he is still so robustly sitting here before me. He will be bouncing up and down again, speaking often, I am sure, in our debate.

Lord Boyd-Carpenter

My Lords, I hope not on this matter.

Lord Rawlinson of Ewell

My Lords, not on this amendment because this is a final speech. I should like to say that we have never had a vehicle to discuss these matters. At some time we shall have to look at it and examine it. I make no apology for raising it as I raised it here at the first opportunity. We are dealing with the whole of the administration of the law. There is no need for the Bar Council to dissociate itself. I never associated with it. It is something I have written about, thought about and spoken about for many years. On this subject, like Disraeli, Though I sit down now, the time will come when you will hear me". At some time the public will be heard about this matter and it will have to be decided. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

6.15 p.m.

Lord Rawlinson of Ewell moved Amendment No. 188: Before Clause 52, insert the following new clause:

("Statutory Judicial Appointments Commission. .—(1) There shall be a body to be known as The Statutory Judicial Appointments Commission (in this Act referred to as the Commission). (2) The Commission shall consist of a Chairman and 13 other members, all of whom shall remain members of the Commission while holding the respective offices enumerated below. (3) The Chairman shall be the Lord Chief Justice of England. (4) The other members of the Commission shall be— (a) the Master of the Rolls, the President of the Family Division and the Vice-Chancellor; (b) the Senior Presiding Judges of the Northern, Western, North Eastern, Midland and Oxford, Wales and Chester, and South Eastern Circuits; (c) the Chairman of the Circuit Judges Association; (d) the Chairman of the Magistrates Association; and (e) the Chairman of the General Council of the Bar and the President of the Law Society. (5) The powers vested in the Prime Minister or the Lord Chancellor to make recommendations for appointment to the office of Lord of Appeal in Ordinary, Lord Justice of Appeal, High Court Judge, Official Referee, Circuit Judge and appointment to the rank of Queen's Counsel shall henceforward be exercised only after consultation with the Commission. (6) On a vacancy arising for any appointment to any of the offices or rank set out in subsection 5 above, the relevant Minister shall notify the Commission who shall thereupon submit names for recommendation. In the event of the Minister selecting for recommendation a person other than one submitted by the Commission, the Minister shall publish to Parliament his reasons. (7) The Chairman of the Commission may appoint such staff as he thinks necessary for the discharge of its functions. (8) Appointments shall be made by the Chairman on such terms and conditions as he may with the consent of the Treasury determine,").

The noble and learned Lord said: My Lords, this is an amendment to establish a statutory judicial appointments commission. It sets out a framework which I readily accept may be quite defective and incomplete. There may be another and more workable process. I am certainly not wedded to the exact composition, provided it consists of a majority of senior judges and trained lawyers. If anyone insists on a lay participation I am very ready to accept that.

I seek to establish a statutory authority as a matter of principle, independent of the government of the day, whose names are publicly known and with a duty to make recommendations in respect of all the appointments to the senior judiciary. At present, as your Lordships will know, recommendations for the Court of Appeal and Lords of Appeal are made by the Prime Minister and for the High Court and the Circuit Bench by the Lord Chancellor. As we appreciate, it is improbable that any recommendations are made without the Lord Chancellor being consulted and consenting. His is the guiding hand. In the past he had few judges to recommend and now there are many. It is impossible, and in the future will be even more impossible, for a modern Lord Chancellor to know personally the persons he is appointing to the rank of Queen's Counsel or the Circuit Bench and sometimes even the High Court Bench.

I am certainly well aware that over the past years there has been (and still is) consultation before a Lord Chancellor makes a recommendation. My noble and learned friend Lord Hailsham went out of his way to make public his approach to the duty of recommendation and the consultations he had. All such consultation is, in a sense, clandestine. The feeling grows up—or did when I was practising at the Bar; I believe it still persists— that the present procedure is not wholly satisfactory. People sometimes fear that they have been overlooked or have not been appointed to silk; they feel that perhaps they have crossed some official in the Lord Chancellor's Department at some stage and that that has blighted their chances. It is because of the informal and private approach that that happens and people get that feeling.

I suggest that it is far better to have the consultation obligatory and in the open. I am quite willing that my proposal should merely set out "will consult", and to leave out the other subsections of my new clause. I suggest it is much better to have it demonstrated that the Lord Chancellor consults the heads of divisions before he makes any recommendation. It is one of the most constitutionally important duties that anyone ever has to perform.

I believe it would be healthier for public perception if people were satisfied and could see that the Lord Chancellor, before he made an appointment to the High Court Bench, consulted the persons suggested in the amendment. I believe that this would meet what is now so often demanded—open government. The institution of a publicly known procedure would give not only assistance to the Lord Chacellor and the Prime Minister but would also give confidence to the public. I beg to move.

Lord Hailsham of Saint Marylebone

My Lords, again there are two speeches I could make, one lasting an hour and one about 10 minutes at the most. Once more, I choose the second course.

I must again tell my noble and learned friend sitting behind me that I am sorry to see this amendment on the Marshalled List. I do not consider this Bill to be a suitable vehicle for fundamental constitutional change or a change of this kind. It is incorrect to say that there are no opportunities in either House for discussing the method of appointment of judges. Any Member can put down a substantive Motion and any Member can have it discussed in either House under the appropriate procedures. That is the way to proceed. This Bill is emphatically not the vehicle.

I have to tell my noble and learned friend that his suggestion is not only inappropriate and the occasion a bad one. A great deal of time has already been spent on matters entirely germane to the Bill's subject matter. It is also wrong. The method of appointment of judges, silks and other persons is, of course, a complex one—it is a sophisticated method which has grown up over time—but it is certainly much more satisfactory than that suggested by my noble and learned friend.

The system combines the personal accountability of a Minister rooted to the House of Lords through being screwed to the Woolsack and therefore not subject to the kind of trouble he would have in the House of Commons with a sophisticated method of consultation which must vary according to whether you are dealing with the silks (one of the most onerous and personally difficult things I ever had to do), appointing a circuit judge in a remote provincial circuit, when one has to consider the personal convenience of travel and all sorts of other aspects as well as suitability, or advising the Prime Minister as to how to exercise her prerogative of advising the Queen on the appointment of the Master of the Rolls and the Lord Chief Justice.

The methods are wholly different. They are certainly not in the least clandestine. I have more than once publicly and in writing set them all out. It would be quite wrong to think that officials in the Lord Chancellor's Department have an undue influence on these matters. The Lord Chancellor deals with these matters personally but only after consulting a wide range of persons including, of course, in senior appointments, the four designated judges, or, as we used to call them for convenience three years ago, the heads of division.

I hope that we do not now embark on a long debate on this subject. We have a considerable amount of work to do and this is not the moment to have such a debate.

Lord Hutchinson of Lullington

My Lords, I am sorry that the noble and learned Lord considers this amendment inappropriate. It is entirely different from the previous amendment. When the noble and learned Lord, Lord Hailsham, speaks one always feels so ignorant. I could not for the life of me remember when reading Lord Campbell's Lives of the Lord Chancellors whether or not any of the wives of King Henry VIII had been made Lord Chancellor.

Lord Hailsham of Saint Marylebone

My Lords, they had too precarious an existence, and two Lord Chancellors disappeared in another way.

Lord Hutchinson of Lullington

My Lords, this question arises from the Bill. Hitherto the system for the appointment of judges has justified itself by the quality of the judiciary. Henceforth, as a result of the Bill, everything will be entirely different. The reservoir of potential judges will be greatly expanded. A whole ragbag of advocates will be eligible, qualified in different proceedings in different courts for different periods of time. Many will be laymen, neither barristers nor solicitors. Eligible, too, will be that remarkable collection of individuals set out in Schedule 8—income tax commissioners, social security commissioners, chairmen of VAT tribunals, and the like. Of course, there is also to be the whole vast reservoir of the Crown Prosecution Service.

No longer can the noble and learned Lord the Lord Chancellor personally know potential candidates. Nor, indeed, will senior members of the small profession be in a position to advise him. I should have thought it would be very difficult to find the judicial qualities necessary in this huge hotchpotch of advocates which we will have as a result of the Bill.

Dilution of the vital qualifications for being a judge—competence, independence and integrity—will inevitably lead to a reduction in standards. As we have repeatedly seen in the Bill, the independence of the advocate, which has hitherto gone with him onto the Bench, is no longer guaranteed or, indeed, provided for in the Bill. It is not entirely clear—I ask the noble and learned Lord to advise me—what the procedures will be henceforth for the appointment of Queen's Counsel. I understand that the Bar's view on the matter, set out in its blue book, is that a strong committee of lawyers and laymen should be established after the enactment of the Bill to make recommendations for the future appointment of the judiciary. That might very well be the way forward rather than deciding on the details of this amendment.

Lord Campbell of Alloway

My Lords, I make a brief intervention only on the question of the appointment to silk. The whole regime is to change. For my part I have always accepted that we should extend the right of audience and that solicitors should have access to higher judicial appointments. However, accepting it as one does, one also has to accept that the whole basis of appointment to silk will require some reconsideration.

I accept, of course, that this is not the time, nor indeed the place or the occasion, on which to consider the machinery in detail. I do not accept—I seldom seem to agree with the Bar Council—that we want a commission of banisters (heaven forfend!) to recommend who should become judges. I should have thought that slightly unnecessary and, in any case, offside.

Appointment to silk is far more important than at first appears. The catchment area will be widened, and I believe should be widened. But it is from the silks that you get the quality for the judiciary. My noble and learned friend Lord Rawlinson has drawn attention to this aspect. Although I cannot, with respect to him, accept the spirit of the amendment as a whole, I am grateful that at least he has drawn attention to how we can best deal—not here and now, but at some time in the future—with the appointment to silk; if possible avoiding artificial appointments to artificial silks.

6.30 p.m.

Lord Ackner

My Lords, I share the regrets of my noble and learned friend Lord Hailsham that this amendment has had to surface, but I entirely agree with the noble Lord, Lord Hutchinson, that the Bill has made it inevitable. In the debate on the Green Papers which took place not quite a year ago, my noble and learned friend the Lord Chancellor said that he had gone back to first principles. Undoubtedly one of those principles is as stated by the late Lord Chancellor Lord Simonds who said: It remains the supreme truth that the safeguard of liberty lies in the independence of a judiciary which fears not nor favours the Executive". In the debate on the Green Papers as reported in the Official Report on 7th April 1989, at col. 1463, the noble Lord, Lord Elton, though seeking to support the Government's case, said: I suppose that patronage is the most powerful influence which governments can exercise. Patronage over appointments and promotion must be a powerful weapon. An institution that is only appointed and promoted on the gift of the Executive presumably would not consider itself wholly independent". The noble Lord is absolutely right. As a matter of principle it is clearly wrong for the judiciary to be appointed by the Executive. My noble and learned friend the Lord Chancellor is a Minister who sits in the Cabinet and is therefore part of the Executive Government and subject to all the political pressures of that position. Moreover, as regards the judges of the Court of Appeal, the Law Lords and the heads of the divisions, I understand that the Lord Chancellor's recommendation has to be approved by the Prime Minister.

Lord Hailsham of Saint Marylebone

She appoints.

Lord Ackner

She appoints. A fortiori, as the noble Lord, Lord Mishcon, would not have me say. Our system of judicial appointments is clearly wrong in principle, but by and large it has worked in practice. Certainly in recent years I believe that is very largely due to the Lord Chancellor of the day accepting the advice of my noble and learned friend the Lord Chief Justice and the other heads of the divisions, ably assisted by the Deputy Lord Chief Justice, who happens to be, and has been for some years, the senior presiding judge.

But the heads of divisions have now a new role to perform. They are to be the designated judges. The question which understandably arises for your Lordships' consideration—and I am grateful to the noble and learned Lord, Lord Rawlinson, for raising the point—is whether that which is clearly wrong in principle can nevertheless, in the light of the radical proposals contained in the Bill, continue to work in practice. There can be no doubt that the Bill seriously diminishes the power and authority of Her Majesty's judges in relation to the control of rights of audience in the High Court and the Court of Appeal and also in relation to education, training and the code of conduct of advocates.

That power will largely pass to the Executive and it will be achieved by the Lord Chancellor's Advisory Committee, appointments to which will be made entirely at the discretion of the Lord Chancellor.

That committee will in practice be a decision-making committee dictating not only the framework and detail of the education, training standards and discipline of all those who provide legal services in our courts, but the very way in which those services are to operate.

I adopt and repeat the words of my noble and learned friend Lord Oliver of Aylmerton who said at Committee stage, when speaking of the committee: it is the apex of the structure of the legal profession, supervising every important aspect of professional practice and training … [the Committee] is an instrument by which the executive can, in a very large measure, control a legal profession which until now has been self-regulatory and by which it can, by the creation of new classes of practitioners in the courts, secure an even greater control than it enjoys at the moment over the composition and of course, ultimately, the conduct of the judiciary at all levels".—[Official Report, 25/1/90; cols. 1245 and 1247.] Other speakers of considerable political acumen have observed that lay domination in the regulation of all professional activities in a highly technical sphere in which laymen do not have the expertise, is the clearest indication that the committee is to be the creature of the Government. Of course it will be stressed that the designated judges have the power of veto in relation to the advisory committee. So, too, indeed has the Lord Chancellor. But this substitute for the role previously enjoyed by judges, these restricted and indirect powers, are liable to be exercised in an atmosphere of pressure. Significantly, the Government thought it appropriate, at page 29 of their White Paper Legal Services: A Framework For The Future to state: Any allegation that these statutory duties had not been carried out, or had been carried out in a way in which no reasonable authority would have done, could of course be tested by judicial review in the High Court or by an action for breach of statutory duty". All may be sweetness and light and perfect harmony between the advisory committee and the designated judges and the designated judges and the Lord Chancellor. I deeply hope that it will be so. But the realist, even enjoying a high degree of optimism, having read the written responses of the judges of the Supreme Court to the Government's Green Paper published for all the world to see, would recognise the grave risk of friction, and of the judges being thus dragged into the political arena.

That certainly would be the case if they do not accept the validity of the advisory committee's recommendations; the more so if such recommendations had the support of the Executive in the person of the Lord Chancellor, a Minister and a Member of the Cabinet. Given that potential scenario, my noble and learned friend the Lord Chancellor must be consistent, as indeed he has said today he always tries to be, and again go back to first principles. There must be a fundamental change in the method of appointment at least of the senior judiciary.

It is particularly significant that under the Scottish Bill, the Lord President—the Scottish equivalent of our Lord Chief Justice—will alone in future appoint the Scottish Court of Appeal. Quite clearly, in future appointments, particularly of those who occupy the onerous position of designated judges, there is a far greater risk than exists at present of the Prime Minister of the day saying to his or her Lord Chancellor, "Is he one of us?" or words to the like effect.

I accordingly agree that urgent consideration be given to the creation of an independent judicial commission to recommend candidates for appointment to the senior judiciary and that provision is made restricting government support to a candidate from among those so recommended. Thus we may be able to ensure that politics play no part in the search for those who have the appropriate competence, integrity and independence of mind to qualify for the appointments.

Among the many undesirable features of the American system for the administration of justice which this proposed legislation will undoubtedly impose on the United Kingdom, political appointees as judges is the most objectionable. We need to take urgent steps now to ensure that this does not happen.

Lord Boyd-Carpenter

My Lords, it has been apparent for some sittings of the House that the noble and learned Lord, Lord Ackner, is able to restrain his enthusiasm for the Bill within the limits of decorum. I am not sure that he succeeded—to my mind he did not succeed at all—in establishing that because of that it was necessary to introduce this drastic change in the system of appointing the judiciary. Moreover, the noble and learned Lord did not touch on what seems to be essential in the present system and which would be largely destroyed if the proposals of the amendment were accepted. I refer to the accountability to the public and to Parliament of those who advise the Sovereign on the appointment of the higher judiciary; the noble and learned Lord the Lord Chancellor in respect of some appontments and my right honourable friend the Prime Minister in respect of others.

If either of those distinguished persons does what the noble and learned Lord, Lord Ackner, seems to fear and makes for political or any other reason unworthy appointments or unworthy recommendations for appointment to the Sovereign, he or she will then have to answer under the present system to your Lordships' House and to another place. That is a serious responsibility. The suggestion that an appointment to one of the great judicial offices had been made for unworthy, inappropriate or inadequate reasons would be a most damaging matter for the Ministers concerned, and, even if they felt tempted to make such an appointment, would cause them to avoid it.

If this House and another place were to adopt the proposals in the amendment, both my noble and learned friend the Lord Chancellor and my right honourable friend the Prime Minister could say, "I agree that it was not a very good appointment but it was recommended by this distinguished and rather large body by which I am bound. Therefore I am sorry. I would have made another appointment but I could not do so. You cannot hold me accountable".

Lord Rawlinson of Ewell

My Lords, the noble Lord has not read the amendment.

Lord Boyd-Carpenter

My Lords, my noble and learned friend is always anxious to jump up behind me. I must say that his physical agility fills me with admiration. I have in fact read the amendment with some care. I have had plenty of time to do so. That is what the position under the amendment would be whether or not the noble and learned Lord thinks it would be the position. That would be the position as I read it. I hope therefore that the House will not accept the amendment.

Moreover, it has often been said that the proof of the pudding is in the eating. It cannot be disputed that our present system works extremely well. I am perhaps freer to say this than most of those who have taken part in the debate, but the holders of high judicial office are of the highest quality and calibre. I see no reason to believe that the changes being introduced in the Bill will alter the effect. If the gloomy prognostications of the noble and learned Lord, Lord Ackner, were borne out and unworthy appointments were to be made, there would be a case for looking for a system, although I hope for a system less cumbrous and elaborate than that set out in the amendment. But as at present the system produces such admirable results, I point out to the House the sense of the old comment "Why not leave it alone?"

Lord Donaldson of Lymington

My Lords, I wish to make only one comment save to say that the present system works extremely well. In talking to people, I have heard it said that no doubt the Lord Chancellor consults the judges. Talking to them further, I have the impression that they think the Lord Chancellor may perhaps have a word with a judge in the smoking room and then have a word with another judge. It is believed that he consults the senior judges in that way. I am sure that the noble and learned Lord the Lord Chancellor would not mind me saying that that is not the position.

There is in fact a round table conference between the Lord Chancellor, the four designated judges and the senior presiding judge. In the eight years when I have been involved in those conferences I have never known the Lord Chancellor to advise Her Majesty, in the case of a High Court judge, or to advise the Prime Minister in order that the Prime Minister might advise Her Majesty, on a name that did not have the unanimous support of all five judges taking part in that consultation. That is not the limitation of the consultative process which has been set out in part in the document which the noble and learned Lord, Lord Hailsham, published as the way judicial appointments were made. It has been expanded a good deal since then in the form of gathering in further and better information.

The heart of the matter is the round table conference. I should not like it to be thought that the consultation which takes place is in any way casual although the ultimate responsibility and the only accountability must remain that of the Lord Chancellor and the Prime Minister.

Lord Campbell of Alloway

My Lords, before the noble and learned Lord sits down, does this apply to the appointments of silk?

Lord Donaldson of Lymington

My Lords, the answer which the noble and learned Lord the Lord Chancellor could also give is yes.

6.45 p.m.

The Lord Chancellor

My Lords, we have a system for appointing silks and appointing judges which I have inherited. It was described by my noble and learned friend Lord Hailsham when he was Lord Chancellor in a booklet issued during his distinguished tenure of the Woolsack. I have sought to follow the principles laid down there. There is nothing clandestine about the matter in the sense that what occurs is set out and is well known. I have ventured to broaden to some extent those consulted, for example, by formally including the chairman of the Bar in the consultation. There is always a little difficulty in relation to individuals. We have devised a system under which, as the chairman of the Bar would very often, if not universally, be a candidate himself for a vacancy in the High Court, he gives views on a variety of candidates by reference to a list.

The fundamental principle of the present system is the personal accountability of one person for the recommendation to Her Majesty. It is fair to point out that the appointments are made by Her Majesty the Queen as the head of state. That appears to be the appropriate way to appoint judges. So with regard to the senior judiciary, it is recommendation that is in question.

As my noble and learned friend the Master of the Rolls has said, these consultations are by no means casual or perfunctory. Those who have taken part in them—and the officials of the Bar Council, the leaders of the circuit and the judges who are consulted know this—recognise that these consultations are quite elaborate. I insist on seeing the results of written consultations. We also have the opportunity of full meetings of the kind described by my noble and learned friend the Master of the Rolls.

I have made it clear since I have been in office that any improvement on the present system to improve its acceptability, the extent of its cover, and so on, would receive the closest consideration from me. When I read what the General Council of the Bar said in its response I took up with it the possibility of further improvements to the system. Some practical suggestions have been made which I am considering. In fairness to the General Council of the Bar, I should say that perhaps my noble friend Lord Campbell of Alloway misunderstood what the Bar had suggested in its response to the Green Papers. It did not suggest that some distinguished members of the Bar should be advising the Lord Chancellor on the appointment of judges; it suggested that a distinguished committee, including as many former Lord Chancellors and privy councillors, who were not Lord Chancellors, as we could gather, would review the present system to see whether a better one could be devised. It is only fair to say that in case there should be any misunderstanding about the matter.

I responded to that suggestion by saying that I would be happy to consider any improvement in the system. I am aware that my noble and learned friends the heads of division who participate with me in these discussions would also welcome any improvement which anyone wishes to suggest. But I should like to respond to a remark made by my noble and learned friend Lord Ackner. I gained the impression that he was perhaps referring to a particular holder of the office of Prime Minister. I should say to him that certainly so far as I know—and I am sure that my noble and learned friend Lord Hailsham would confirm this—the only consideration which is entertained at that level at present is whether the person is the best person available for the appointment in question, and nothing else. I am sure that that is a principle that my noble and learned friend adopted when he was Lord Chancellor. I believe that it is a principle which all Lord Chancellors in recent times have upheld. I refer especially to Lord Elwyn-Jones who we have sadly missed during these proceedings, Lord Gardiner and many others. The best person for the job on the particular occasion is chosen. Of course, it is a matter of judgment and not everyone may agree. However, the ultimate responsibility for the judgment is with the Minister who is responsible for making the recommendation. I believe that that is a responsibility which all those who have carried it have found to be very important and very serious, and they have discharged it honestly to the best of their ability.

I think that a good amount of the basic thinking in the amendment of my noble and learned friend Lord Rawlinson is already incorporated in the machinery which we have. It is set out as publicly as one can set it out in the booklet to which I referred. By the very nature of things, when you are considering personal qualities in individuals such consultations must be private. I cannot imagine any situation in which the respective merits of individual candidates will be discussed publicly. I find that very hard to accept, unless my noble and learned friend Lord Rawlinson somewhat uncharacteristically is in this respect thinking of the American system of having credentials examined in public. I hardly think so.

However, if he does not wish to go down that road, I believe that the consultations—that is, the actual discussions about individuals—will always have to take place in private. What is public is the understanding of the method. I have always been willing to explain it in as much detail as I can to any person who has asked me to do so, in supplement to the booklet produced by my noble and learned friend Lord Hailsham.

As the matter has now been raised, I think it only right on this occasion that I should pay tribute to those who so willingly give so much of their time to help the Lord Chancellor and, where it is appropriate, the Prime Minister, in getting suitable candidates. People put a great deal of effort into that and put much thought into their comments about individuals. Nothing extra is received for that service—a service which over the years has proved to be quite onerous. Indeed, as regards silk appointments, it is certainly quite onerous. As my noble and learned friend the Master of the Rolls knows, when there are many candidates to be considered each one has to be commented upon. I have to study all the comments which have been made and reach a conclusion. Therefore, those who contribute to the process by giving their comments are to be acknowledged and thanked.

I believe that the success of the present system is in no small measure due to the conscientious way in which such comments are afforded by those having the responsibility. I hope, therefore, that my noble and learned friend will feel that the purpose of his amendment has been served and that he will agree to withdraw it.

Lord Ackner

My Lords, before my noble and learned friend sits down perhaps he will allow me to disabuse him of a misunderstanding. I carefully referred to a future Prime Minister of the day and, so as not to be thought in any way to anticipate events, I said, "his or her".

The Lord Chancellor

My Lords, I am greatly obliged to my noble and learned friend. However, I was thinking more of the phrase he used to describe the question that that Prime Minister might ask. That raised a possibility in my mind.

Lord Ackner

My Lords, I hope that my noble and learned friend will forgive me if I point out that I added to that phrase, "or words to the like effect" so as to make quite sure that that comment could not validly be made.

Lord Rawlinson of Ewell

My Lords, I think that we can acquit my noble and learned friend of trying to impugn any person. I am sure that he did not intend to do so. I certainly did not read his remarks in that way.

When I moved the amendment I said that I was not wedded to the wording; I said that I wanted a discussion on the general principle about a judicial apointments commission. If I may say so, I knew well that the persons listed in the amendment are usually—that is, at least most of them—those whom the Lord Chancellor of the day consults. Such persons are named in subsection (2) of the proposed new clause. The amendment then states that the powers should only be exercised after consultation with the commission.

My noble friend Lord Boyd-Carpenter seemed to think that I had put matters in such a way that a Minister would be able to go to the House of Commons or to this House and say, "Well, I am sorry, this awful person was absolutely forced upon me". I do not think that subsection (6) shows that that would be so. I see that my noble friend wishes to intervene and I am happy to allow him to do so.

Lord Boyd-Carpenter

My Lords, if my noble and learned friend looks at subsection (6) to which he has invited your Lordships' attention, he will see that if someone is appointed who has not been recommended by the commission that information has to be published. Does he really think that anyone would accept high judicial office on the basis that the fact that he was not the choice of the commission would be published? It amounts to a practical veto and he knows that as well as I do.

Lord Rawlinson of Ewell

Of course, my Lords; I agree. When I moved the amendment I said that I was not wedded to the wording. The idea was that a name should be recommended to the Lord Chancellor or the Prime Minister just as is done in respect of the bishops in the Church of England. That is what I had in mind. I was merely seeking to bring the matter before the House so that it could be discussed. My noble and learned friend the Master of the Rolls has told us what happens and my noble and learned friend the Lord Chancellor is content that this should be made public. However, it should be put in public form that there is this consultation. That would be much better. There should not be this kind of mystique attached to the appointment of Law Officers. In fact, going back to the days of wives of Tudor monarchs and so on, we should have some modern, up-to-date and sensible system. I believe that I am thinking of Henry III—

Lord Hailsham of Saint Marylebone

He was not a Tudor!

Lord Rawlinson of Ewell

My Lords, as it concerned a wife it could not be a he, so the issue was altogether very confusing.

Lord Hailsham of Saint Marylebone

Yes, my Lords, it was the wife of Henry III.

Lord Rawlinson of Ewell

My Lords, we must have a practical modern system. Therefore a judicial apointments commission to assist the Lord Chancellor would be appropriate. The people who sit around that table should be known to the public. That would give a much better perception than having all this hugger-mugger business which is always associated with the law. Let us move into the 21st century. Finally, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Hacking

My Lords, before the Government Front Bench spokesman puts the Motion for the proceedings on the Bill to be adjourned, perhaps I may briefly intervene. There is a point that I wish to raise. I have sent a note to the noble Lord the Leader of the House on the subject. There are 96 amendments on the Marshalled List. Thus far we have dealt with 10 of them. The time is now seven o'clock in the evening. Could we not, therefore, before we return to the Report stage after the dinner break, consider whether we shall be able to deal with all the remaining amendments this evening? If it is thought that we shall not be able to do so, perhaps we can agree to a suitable cut-off point?

Viscount Ullswater

My Lords, I shall certainly draw the remarks of the noble Lord to the attention of my noble friend the Leader of the House. In the meantime I beg to move that further consideration on Report be now adjourned. In moving the Motion I suggest that the Report stage resume at 8 p.m.

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