Lords Sitting of 15 March 1990

Preamble
The House met at three of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Gloucester.
Lord Balfour of Inchrye Lord Balfour of Inchrye—Sat first in Paliament after the death of his father.

Schools: Management Training
Lord Dormand of Easington Lord Dormand of Easington asked Her Majesty's Government:
What progress is being made with training for the local management of schools.
Baroness Blatch: My Lords, the Government are making available substantial support for training for this important reform. It is for each local education authority to decide on the nature and extent of training for LMS, having regard to its particular circumstances. However, my right honourable friend the Secretary of State is encouraged by the way in which local education authorities are responding to the issue of management training.
Lord Dormand of Easington: My Lords, is the Minister aware that the formula funding, which will come into operation with the local management of schools on 1st April, is causing great concern? Has the training dealt with the problem whereby the budget, calculated, as the noble Baroness will know, on the historic base, will be seriously affected when there is an increase in the number of pupils and, perhaps even more important, when there is an increase in teachers' salaries through normal increments, let alone any increase in overall salaries? What have the Government done about that?
Baroness Blatch: My Lords, the training is addressing all the issues that will be involved in managing education authorities' budgets and in particular schools' budgets. The noble Lord is venturing into whether the sum of money allocated to schools is actually enough for the transition when under the formula schools will either gain or lose. Most education authorities are finding a way of stepping those schools which lose to the point of the budget that they will receive. Those schools which gain will gain by not more than a percentage of their budget in any one year.
Lord Parry: My Lords, what further arrangements have been made for the provision of in-service education to meet the needs of the management studies that must be made available if those now being appointed to management positions in schools are to perform their task adequately?
Baroness Blatch: My Lords, the training will address that point. There is a programme of training for governors themselves, for support staff for
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governors and also for head teachers and senior teachers. To that end the sums of money in 1989–90 were: £4·9 million for training governors; £3 million for training support staff; and £10 million for training head teachers and senior teachers. In 1990–91 those sums are £5·1 million, £2 million and £8 million. There are plans that this funding should continue into next year.
Lord Parry: My Lords, is that additional money to the money that would previously have been given to education?
Baroness Blatch: My Lords, it is additional money to the normal allocation for training.
The Earl of Onslow: My Lords, when more and more schools become self-governing under the Government's Education Reform Act it will presumably mean that fewer and fewer people will need to be employed in local education authorities. Will not some of those people be retrained and reallocated as bursars and adminstrators who will run schools more efficiently and cost-effectively than overgrown bureaucracies in local education authorities?
Baroness Blatch: My Lords, my noble friend makes a very good point. It will be necessary for local education authorities to respond under the new system to the need for less bureaucracy at the centre than before. I cannot comment on whether that money will be transferred to schools. It is for each local education authority to determine allocations for each school. But it will be necessary in regard to the ancillary allowances given to each school to think very much in terms of a bursarial post.
Baroness Fisher of Rednal: My Lords, what advice do the Government give to school managers who refuse to take over responsibility for the buildings because they are either unsafe or in a state of dereliction?
Baroness Blatch: My Lords, the capital moneys for the kind of problem addressed by the noble Baroness will be retained centrally. Minor maintenance money will be allocated to individual schools.
Baroness Fisher of Rednal: My Lords, what advice will the noble Baroness give to local authorities when local managers say that they will not take responsibility as managers?
Baroness Blatch: My Lords, my answer implied that individual schools will not have to take on full responsibility for capital moneys for major maintenance. Local education authorities themselves will have to manage that issue, and many are doing it very well.
Lord Peston: My Lords, the noble Baroness will have seen the excellent report published by her own department this week on developing school management. Is she aware—I am sure she is—that it says that the function of the local authority will

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change but will not necessarily be diminished? Therefore, are not the remarks of her noble friend Lord Onslow quite mistaken in terms of any economies for the local education authority?
Is she further aware that the excellent report from her department says that many primary and secondary school head teachers who will be responsible for these budgets felt deprived of adequate support from the LEA in a consultative capacity and in the form of additional school-based administrative support? Is her right honourable friend the Secretary of State ready to respond to those statements and will he be taking an interest in appropriate action in the very near future as local management of schools starts in the very near future?
Baroness Blatch: My Lords, my right honourable friend is aware of all the issues and challenges for teachers, and for head teachers in particular, especially in the primary school sector. A school management task force has been set up specifically to advise the Secretary of State on all the management issues that are to be involved. There is a challenge for schools and there is the issue of whether the support staff is adequate at school level, but that will continue to be monitored.
The noble Lord referred to central administration. Many of us will be looking for a diminution of central bureaucracy in this area. The role for local education authorities will of course change. They will become monitors of quality and monitors of delivery of service. That will be the new role that they will have to develop.
Lord Dormand of Easington: My Lords, in relation to the Answer which the Minister gave me, perhaps I may give her a firm assurance that I was talking about the amount of money available to schools; that is largely what LMS is about. Can she be a little more specific on the matter because, with the greatest respect, she did not really answer the Question? If the historic base is to be 1988–89 or even 1989–90, more money is bound to be needed if only, as I said in a supplementary question, in relation to normal increments for teachers. Will she kindly answer the Question?
Baroness Blatch: My Lords, with respect, that is not the Question on the Order Paper. The Question asks what progress is being made on the training front. I can say that considerable progress has been made on training, and all the aspects of what teachers, governors and support staff are being trained for will be addressed. The allocation of resources is another matter.
Lord Peston: My Lords, I must press the noble Baroness on this point. It is connected with the question of training. Is not the problem that head teachers are being asked to manage budgets, which is something that they have not been asked to do before? They do not have the appropriate training. If my noble friend is right—and I believe that he is—in terms of scarcity of funds, head teachers will be asked to manage budgets which are too small to begin with. We are asking what the department will
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do if it turns out next spring—as this will take a little time to happen—that the schools run out of money.
Baroness Blatch: My Lords, the amount of money available to local education authorities has always been a finite sum. When it was controlled from the centre there was great frustration at school level about the management. It has been proved, certainly in my authority over the past nine years, that the way in which it is managed at school level brings about greater value for money and better management of resources than is the case when it is managed centrally by the local education authority.

Football Clubs and Local Communities
3.16 p.m.
Lord Graham of Edmonton Lord Graham of Edmonton asked Her Majesty's Government:
What steps they intend to take to expand the schemes which foster good relations between football clubs and local communities.
The Parliamentary Under-Secretary of State, Department of the Environment (Lord Hesketh): My Lords, the Government will continue to encourage "Football in the Community" schemes, run by the Professional Footballers Association, and other community initiatives taken by football clubs. The Training Agency provides financial support to the Professional Football Association schemes and the Sports Council provides financial assistance for clubs' community facilities.
Lord Graham of Edmonton: My Lords, I should like to advise the Minister that the Question is wholly benign and not malignant. Does he share my view that since the terrible Hillsborough disaster there has been a breath of fresh air in football in the form of those who are anxious to put right many of the aspects which people recognised were wrong? Can he tell us how his department intends to monitor the progress being made by those clubs that have in mind bringing together the local authorities, the local youth clubs, the local schools, the local police and other bodies? I ask this because, unless it is someone's job to prod and probe, it is possible that in 10 years' time very little progress will have been achieved.
Lord Hesketh: My Lords, I am most grateful to the noble Lord for stating that his Question is benign. I entirely agree with him. It is to be hoped that out of the Hillsborough tragedy will come a new flowering for the sport and a new relationship especially with the young whom we hope to encourage to appreciate the game, and that will enable us to go forward. I have certain doubts as to whether the department can actively monitor the situation over the above contributing cash resources towards the schemes. However, I shall draw the noble Lord's remarks to the attention of my honourable friend the Minister for Sport.
Lord Renton: My Lords, has it come to the notice of the Government that a great deal of trouble at football matches is caused by organised gangs of people who seem to indulge in a rival sport of fighting each other? Is my noble friend aware that so long as that situation prevails it will be very difficult to achieve the right relationship among all those concerned with football?
Lord Hesketh: My Lords, last year this House had extended discussions on the matters which my noble friend draws to our attention. The important aspect about the Question before us today is that we are trying to encourage young people to take an interest in the game. Whether we can reclaim the interest of those who engage in the activity of fighting—and a football match is purely the scenario for this—is a difficult and challenging problem.
Lord Molloy: My Lords, will it be worthwhile having discussions with the representatives of the clubs at all levels of rugby union, including the international level? They do not seem to have any problem whatsoever, and they might be able to give some guidance to professional soccer.
Lord Hesketh: My Lords, I am firmly of the belief that this is a problem for football that has to be cured by football.
Lord Lyell: My Lords, is my noble friend aware of the scheme that has worked well in Scotland for two years? It involves all the bodies mentioned by the noble Lord, Lord Graham, together with at least two major sponsors who consider aspects in the stadium as well as clean play and discipline on the field.
Lord Hesketh: My Lords, it is absolutely clear that all initiatives which have proved to be successful and which have been drawn to my attention by my noble friend should be looked at.
Lord Mellish: My Lords, is the Minister aware that the club with which I am associated—Millwall—probably had more hooligans than some others I could name? It has now introduced a scheme which brings in the local council, local schools and others with a community officer. That is important. Would the Minister care to comment and say whether such a scheme, which seems completely to obliterate hooliganism, could be extended nationally?
Lord Hesketh: My Lords, the fame of the success of the Millwall scheme is such that my own officials at the Department of the Environment produced a document about it to show the respect in which it is held.
Lord Hatch of Lusby: My Lords, is the noble Lord aware that many football clubs at all levels in the country fear desperate financial straits as a result of the new business community charge? Is it not the case that if, as is feared by some of them, they get into debt they will not have the money to develop the schemes that the noble Lord has been putting forward and about which my noble friend has asked?
Lord Hesketh: My Lords, I believe that the noble Lord, Lord Hatch, was referring to the business rate. That is, I feel, wide of the Question on the Order Paper. However, if he wishes to put down a Question on the subject I should be more than happy to answer.
Lord Graham of Edmonton: My Lords, the noble Lord, Lord Mellish, is proud to be president of the Millwall club. He rightly takes credit from the fact that the club took an initiative which has been copied by a number of other clubs. Will the Minister agree that, sad to say, over a period of time, some clubs will take positive initiatives and some will not? Surely it is not beyond the wit of the department to find a means of checking up periodically, through an agency or an association with which it works, or directly. Clubs are left untouched by initiatives and quite frankly many still live in the past.
Lord Hesketh: My Lords, I said earlier to the noble Lord, Lord Graham, that I would draw his concerns to the attention of my honourable friend the Minister for Sport. However, these schemes only work if there are willing participants on both sides.
Lord Kirkhill: My Lords, does the noble Lord agree with me that the continuing private ownership of the majority of professional football clubs makes it difficult to have true community involvement?
Lord Hesketh: My Lords, I am not sure whether the noble Lord is therefore suggesting the nationalisation of football clubs.
Lord Kirkhill: My Lords, that is a cheap and easy jibe for the noble Lord to make. It is not what I suggested; nor did I imply that.

Westminster Council: Financial Transactions
3.24 p.m.
Lord Jay Lord Jay asked Her Majesty's Government:
In view of the report of the London District Auditor that the City of Westminster Council has been responsible for unlawful and unauthorised financial transactions, what powers they have to protect the residents of Westminster from the effects of such transactions.
Lord Hesketh: My Lords, the auditor of the City of Westminster has reported his provisional conclusions to the city council on certain transactions. When he reaches his final conclusions, the action that can be taken rests with the auditor and the courts and not Her Majesty's Government.
Lord Jay: My Lords, as this Government have interfered more in local government than any other government in living memory, are they at all worried by the extremist policies of this local authority, even when the policies extend to breaches of the law?
Lord Hesketh: My Lords, I should like to think that the Answer that I gave to the noble Lord, Lord Jay, in the first instance made it quite clear that the rule of law is being followed. I cannot agree with the supposition that Westminster is an extremist authority.
Lord Boyd-Carpenter: My Lords, in view of the reference in the Question to the protection of the residents of the City of Westminster, is my noble friend aware that those of us who live in adjoining boroughs are plain jealous of them since the City of Westminster has managed to fix the community charge at a reasonable level?
Lord Hesketh: My Lords, I am grateful for my noble friend's contribution to the Question.
Lord Molloy: My Lords, can the Minister say whether or not the Government agree that the selling of cemeteries for a few pence by Westminster City Council has become a national issue? Do Her Majesty's Government give their blessing to that form of transaction which has irritated people throughout the entire nation?
Lord Hesketh: My Lords, I am sure that the Government would be accused of gross intervention if we started to interfere in the affairs of a democratically elected body. I should not wish to be the man to try to defend such a policy.
Lord McIntosh of Haringey: My Lords, in his Answer the Minister stated that the district auditor's findings were preliminary. Will he do his best to ensure that the district auditor now produces his final report in good time for the electors of Westminster to receive it before the election on 3rd May? Will he confirm the Government's view that the remedy lies with the electors of Westminster and that this is their opportunity to turn out this dishonest administration?
Lord Hesketh: My Lords, this matter has been very widely aired. I think that no one in your Lordships' House would disagree with that. I am sure that the electorate of Westminster will be able to make its decision in the way it feels appropriate.
Lord Hailsham of Saint Marylebone: My Lords, did not my noble friend make it clear in his Answer that the ultimate criterion in this matter lies with the courts?
Lord Hesketh: Yes, my Lords.
Lord Hatch of Lusby: My Lords, the fixing of the poll tax in Westminster has already been raised and answered by the Minister. Is he aware that the poll tax fixed in Westminster is subsidised through the safety net by community charges that are paid or will be paid in the East End of London?
Lord Hesketh: My Lords, I think that the noble Lord, Lord Hatch, is under a misapprehension. I went to some lengths not to refer to the community
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charge when the matter was raised earlier under this Question. The noble Lord's question is rather wide of that on the Order Paper.
Lord Campbell of Alloway: My Lords, is my noble friend aware that an unauthorised and unlawful transaction is not worthy of being stigmatised as being "dishonest", as is suggested by the Opposition Benches?
Lord Hesketh: My Lords, nothing has appeared before a court. That is important.
Lord Jay: My Lords, whatever the district auditor does, would not the happiest solution to the troubles be for the militant lady who leads the council now to resign?
Lord Hesketh: My Lords, all members of Westminster City Council will be up for re-election.

The Enterprise Initiative Scheme
3.29 p.m.
Lord Williams of Elvel Lord Williams of Elvel asked Her Majesty's Government:
Whether they propose to abandon the Enterprise Initiative.
Viscount Ullswater: My Lords, I am happy to confirm that the Enterprise Initiative scheme continues. It is an important vehicle for a wide range of DTI services for business.
Lord Williams of Elvel: My Lords, I am grateful to the noble Viscount. How many business failures have there been in the qualifying category since the launching of the initiative in 1988?
Viscount Ullswater: My Lords, I am afraid that I was not prepared for that supplementary question. I shall have to write to the noble Lord.
Lord Williams of Elvel: My Lords, I am grateful to the noble Viscount. How many business start-ups have there been in the qualifying category since the launching of the initiative in 1988?
Viscount Ullswater: My Lords, I can tell the noble Lord that the scheme has been well received. As at 16th February 1990 43,891 applications had been received, 31,581 projects had been commissioned and 13,931 projects had been completed. The terms of reference are agreed for a further 6,245 projects.
Lord Williams of Elvel: My Lords, I am most grateful for that information. How many business start-ups have there been in the qualifying category since the launch of the Enterprise Initiative in 1988?
Viscount Ullswater: My Lords, I shall have to write to the noble Lord with that figure.
Lord Williams of Elvel: My Lords, I should say that the noble Lord the Leader of the House has

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quite rightly pointed out that the object of Question Time is to elicit information. If the Government cannot provide the information that we wish to elicit, what are we supposed to do? Are we supposed to carry on this whole procedure by correspondence?
The Lord Privy Seal (Lord Belstead): My Lords, my noble friend Lord Ullswater has given the noble Lord, Lord Williams of Elvel, the number of applications that have been made. If I may say so, I think they tell a good story. As the number of businesses that have been started is presumably a continuously moving total, my noble friend could, I think, be forgiven for not being able to give a definitive figure. However, I know that my noble friend, who is always helpful to the House, will write to the noble Lord with the best figure he can get.
Lord Gisborough: My Lords, what areas of management do the consultancy initiatives address and which areas are most sought after?
Viscount Ullswater: My Lords, the consultancy initiatives form a major element of the Enterprise Initiative. The key management areas are design, marketing, manufacturing systems, quality, business planning and financial information systems. The greatest interest has been shown in quality, followed by marketing.
Lord Hatch of Lusby: My Lords, I wish to make an appeal to the noble Lord the Leader of the House. I have given him notice of it. There is on this side of the House and indeed in other parts of the House dissatisfaction when Ministers will not answer specific questions. We are told that the purpose of Question Time is to elicit information. However, there has been a practice recently of asking specific questions which involve specific dates. They have not been answered.
An instance of that occurred yesterday when the Parliamentary Under-Secretary of State at the Department of the Environment repeatedly refused to confirm that this Government had signed an agreement in 1987 to end industrial dumping by 1989. The noble Lord has written to my noble friend Lord Northfield and he has sent me a copy of that letter. There is a perfectly reasonable answer to the question because there were certain reservations in the original agreement. However, these were never mentioned. Instead, the Minister continued to insist that the date involved was 1993. This kind of refusal to answer a direct question in my submission leads to the misleading of the House.
Noble Lords: Order!
Lord Hatch of Lusby: My Lords, I hope the noble Lord the Leader of the House will say whether he is prepared to take any action.
Lord Belstead: My Lords, the Government's intention in answering questions in your Lordships' House is always to try to give information. I hope that my noble friends on the Front Bench on this side of the House genuinely try to do that. As I understand it, the noble Lord is suggesting that
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my noble friend Lord Hesketh misled the House yesterday in answering the question which the noble Lord asked about the recent North Sea Conference.
In the time that has been available to me I have read yesterday's Hansard and I am certain that the House was not misled by my noble friend as regards giving inaccurate information which would therefore need correction. As that is the case, under the rules covering personal statements it would not be right procedurally for me to tell my noble friend Lord Hesketh that he should make a personal statement. Therefore for that reason I ask the noble Lord, Lord Hatch, not to persist in asking for that.
Lord Peyton of Yeovil: My Lords, is my noble friend aware that there is considerable sympathy in all parts of the House with my noble friends on the Front Bench who fail to answer questions of detail, particularly when those questions are inordinately long?
Lord Belstead: My Lords, it is right for me to say that there was one question—that was not, to be fair, of inordinate length—to which my noble friend Lord Hesketh said he would need to reply in writing. I know that my noble friend has written to the noble Lord, Lord Northfield, who asked the question and has copied the letter to the noble Lords, Lord Hatch of Lusby and Lord Sefton of Garston.
Lord Northfield: My Lords, as the letter came to me perhaps I should say a few words. I hope that we can have some private discussion about this matter outside the Chamber when I hope we can settle it. However, if one reads the exchanges that took place yesterday one will realise that it was not so much a matter of the Minister misleading the House but rather of simply failing to give facts. We asked time and again whether Britain had signed an agreement to end industrial dumping by the end of 1989. We never received a straight answer to that question and that made the House angry. I hope therefore that we can discuss this matter outside.
Noble Lords: Order!
Lord Northfield: My Lords, I beg the pardon of the House, but I do not understand why noble Lords are calling out "Order". I am in the course of an exchange with the noble Lord the Leader of the House and as the letter that we are discussing was sent to me I am entitled to make a simple point about it. I do not know why the noble Lord the Chief Whip also howled "Order".
I shall conclude my remarks briefly. I have said that I hope we can settle the matter outside the Chamber, but I hope that will be on the basis that we have a justified complaint. If one looks at Hansard, one will find that the simple facts which were asked for, and which have now been provided by letter, were simply not given. If those facts had been given yesterday, this entire problem would not have arisen.
Lord Belstead: My Lords, it would be a mistake to extend this exchange. However, I should make one thing perfectly clear. There was a single question

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to which my noble friend Lord Hesketh was unable to give a reply. He told the noble Lord, Lord Northfield, that he would write a letter to him. That letter has been written and it provides the information which was asked for—
Noble Lords: Order!
Lord Belstead: My Lords, it is important that this point should be made quite clear. I am afraid I must make it clear. My noble friend Lord Hesketh offered to give information in reply to one question to which he was unable to reply yesterday. He wrote a full letter which makes it absolutely clear that the premise on which the question was asked by the noble Lord, Lord Hatch, in particular, was a false premise. I believe that my noble friend Lord Hesketh has acted entirely honourably and in a straightforward manner.
Lord Hatch of Lusby: My Lords, I am not in any way impugning the honour of anyone on the Front Bench, least of all the noble Lord, Lord Hesketh. However, I must correct the noble Lord the Leader of the House. A question was asked about a date. It was not the case that the noble Lord, Lord Hesketh, was unable to give an answer. He gave an answer, but it was incorrect. He gave the answer of 1993 but the correct reply was 1989. He made that plain in the letter that he sent to the noble Lord, Lord Northfield. If he gave the answer of 1993 when it should have been 1989, that is an incorrect answer. That is not, however, an inability to give an answer.
Lord Belstead: My Lords, it would be tedious if this exchange were protracted. I suggest that noble Lords would probably prefer to look at yesterday's Hansard and at today's exchange when it is printed. I hope I may suggest that the noble Lord, Lord Hatch, reads the letter.

Business
3.39 p.m.
Viscount Davidson: My Lords, at a convenient moment after 3.30 this afternoon my noble friend Lord Brabazon of Tara will, with the leave of the House, repeat a Statement that is to be made in another place on the execution of Mr. Farzad Bazoft.
It may be for the convenience of the House if I announce that, subject to the progress of business, the Third Reading of the Courts and Legal Services Bill may be adjourned at about 7 p.m. for about one hour. In that case, the Prevention of Terrorism (Temporary Provisions) Act 1989 (Continuance) Order 1990 will be taken during the adjournment.

City of London (Various Powers) Bill
Read a second time, and committed to a Select Committee.
Hasmonean High School Bill [H.L.]
Read a second time, and referred to the Examiners.

Great Yarmouth Port Authority Bill [H.L.]
3.41 p.m.
Read a third time.
Clause 2 [Interpretation]:
Lord Newall Lord Newall moved Amendment No. 1:
Page 3, line 8, leave out from ("namely") to (", any") in line 10 and insert ("a licence holder within the meaning of Part I of the Electricity Act 1989").
The noble Lord said: My Lords, the Bill was considered in detail by a Select Committee of the House last June. The amendments comprise adjustments to the definition of statutory undertakers and would help the Great Yarmouth Port Users' Association. In general terms they are very helpful amendments. I beg to move.
On Question, amendment agreed to.
Lord Newall Lord Newall moved Amendment No. 2:
Page 3, line 11, leave out from ("sewerage") to ("and") in line 12 and insert ("undertaker, a water undertaker").
On Question, amendment agreed to.
Clause 12 [General directions to vessels]:
Lord Newall Lord Newall moved Amendments Nos. 3 to 7:
Page 5, line 44, after ("Shipping") insert (", with the Great Yarmouth Port Users' Association").
Page 6, line 19, after ("which") insert ("in case of emergency").
Page 6, line 21, after ("which") insert ("in case of emergency").
Page 6, line 22, after ("which") insert ("in case of emergency").
Page 6, line 27, after ("Shipping") insert (", with the Great Yarmouth Port Users' Association").
The noble Lord said: My Lords, the amendments are of a very similar character. With the leave of the House, I beg to move Amendments Nos. 3 to 7 en bloc.
On Question, amendments agreed to.
On Question, Bill passed, and sent to the Commons.

Civil Aviation Authority (Borrowing Powers) Bill
Read a third time, and passed.

The Execution of Mr. Farzad Bazoft
3.42 p.m.
The Minister of State, Foreign and Commonwealth Office (Lord Brabazon of Tara): My Lords, with the leave of the House, I shall now repeat a Statement being made in another place by my right honourable friend the Secretary of State for Foreign and Commonwealth Affairs on the execution of Mr. Farzad Bazoft. The Statement is as follows:
"The Iraqis executed Mr. Farzad Bazoft this morning. I can recall no recent case in which such a strong and unanimous view was expressed across the world in favour of clemency. That view has been ignored. The House will wish to express its total revulsion. At a time when the international

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scene shows many signs of hope and humanity, we have been reminded that there are still regimes capable of such cynical disregard for human rights.
"I have instructed our ambassador to return home. We are suspending all planned ministerial visits. We are stopping the training of Iraqis on Ministry of Defence courses. Students on these courses will return to Iraq without completing their courses. We shall seek support from the Twelve and from our friends and allies in condemning Iraq's action.
"I am sure I speak on behalf of the whole House when I extend to Mr. Bazoft's family my deepest sympathies on this tragic outcome. We shall continue to work for the release of Mrs. Parish and Mr. Ian Richter from their harsh sentences in Iraq.
"We made a strenuous and prolonged effort by many means to save Mr. Bazoft's life. The comments we made have throughout been measured and reasonable. By their action the Iraqi authorities have blackened the name of Iraq across the world."
My Lords, that concludes the Statement.
3.44 p.m.
Lord Cledwyn of Penrhos: My Lords, we are grateful to the noble Lord for repeating the Statement. Like the noble Lord and his right honourable friends, we have been shocked and deeply dismayed by the news of Mr. Bazoft's execution this morning. We had hoped that the pleas made by Her Majesty's Government and so many other governments across the world might have persuaded the President of Iraq to commute the death sentence. President Hussein's callous reaction that he was not going to be influenced by Britain was a cruel excuse for committing a savage crime against a young man who at the very worst could only be described as over-zealous as a journalist.
We fear that that barbaric conduct confirms the Iraqi Government's appalling reputation in the field of human rights. It is sad to think that so cruel a government rule the territory that is known as the cradle of civilisation. We are conscious that Mrs. Daphne Parish and Mr. Ian Richter are serving prison sentences there and that steps will continue to be taken to secure their release. We extend our sympathies to them and their families.
We support the measures proposed by the Government as listed in the Statement and assume that export credits to Iraq will be suspended.
Lord Tordoff: My Lords, we also are grateful to the Minister for repeating the Statement. Let us just recall what has happened. A journalist travelling on British documents sought in the course of his job to find out the truth about an incident in which 700 people are alleged to have been killed in an explosion. The evil regime of Saddam Hussein did not want the truth about that to come out so it murdered the journalist and locked up his acting chauffeuse.
I suppose that we should not be surprised that the Iraqi regime has descended to that level. It is a small, mafia-like, family group led by Saddam Hussein.
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First of all it subjected its own people to a secret police state. It began a war against its neighbour in which it used chemical warfare, the results of which I have seen with my own eyes. It committed genocide against the Kurdish people and stoked up the civil war in Lebanon by supplying arms to General Aoun and others. So the ritual slaughter of one man is nothing to that regime.
It is right that today we should express our horror and fury at such uncivilised behaviour. I am glad that the Government have done so in such measured terms. The prompt action which has been taken by the British Government will, I am sure, have the support of the world community. State terrorism has to be utterly condemned.
The Statement says that we seek the support of our friends in Europe. I hope that that means that we shall seek their support in some form of economic sanctions against the Iraqi regime. The sale of weapons, however non-lethal they may be, must be stopped. I hope that there will be an embargo on the next Baghdad arms fair, whenever that takes place. There may be some economic cost to this country in carrying out such measures but it is something from which we must not shrink. Appeasement of maniacs like that has been seen in the past never to pay off. It will not do so in the case of Saddam Hussein.
Like the noble Lord the Leader of the Opposition, we have great sympathy with Mr. Bazoft's family. We are deeply worried for Mrs. Parish and Mr. Ian Richter.
We have adopted a very low-key approach to this issue so far, but it is quite clear that no matter what words we use, that regime will take no notice of them. Therefore, I do not believe that we need to mince our words today. It is a horrific affair. The Government have acted very properly and very promptly and they will have the support of the whole country.
Lord Brabazon of Tara: My Lords, I am most grateful for the remarks of the noble Lord, Lord Cledwyn, and the noble Lord, Lord Tordoff, and for their endorsement in principle of the Government's actions today. Having repeated the Statement, I should like to associate myself with much of what has been said in the House this afternoon.
The noble Lord, Lord Cledwyn, asked whether export credits to Iraq would be suspended. The noble Lord, Lord Tordoff, asked whether trade sanctions could be imposed. We do not believe that they would work. Economic reprisals cannot help Mr. Bazoft or those in prison and we do not believe that they would change the policies of the authorities in Baghdad. Furthermore, they are likely to do us more harm than good.
So far as concerns seeking support from the EC, the EC has given us support from the outset. The Twelve have put out a firm statement deploring the execution and the European Parliament has also made a firm statement condemning it. We very much hope that the United Nations Secretary-General will follow up his appeal for clemency last week with a condemnation of this horrific act.

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On the question of the sale of weapons, the guidelines on arms sales to both Iran and Iraq are still in place. No sales of lethal equipment or equipment which might enhance the capability of either side to prolong or exacerbate the conflict are allowed. All export licence applications are considered rigorously on a case-by-case basis.
The noble Lord, Lord Tordoff, mentioned the subject of trade fairs and trade missions. I am not aware that another arms fair is to take place in Baghdad in the near future, but we have withdrawn government subsidy from a trade mission which was due to take place. I believe that it had intended to leave today. I hope that that answers the questions raised by noble Lords.
3.52 p.m.
Lord Callaghan of Cardiff: My Lords, I associate myself entirely with what has been said, but I have one reservation. The noble Lord said that students would be sent back without completing their courses. How many students are there in that category? Does it include students who are due to take their examinations in a few weeks' time? What purpose will be served and what benefit will be gained from sending back those young men and women who will no doubt be the leaders in their country in some 10 or 20 years' time and might well be our friends? Is it right to visit the consequences of the crime which has been committed by the Government of Iraq upon presumably innocent young men and women who are doing nothing more than studying in our country and to whom we have been glad to offer hospitality?
Lord Brabazon of Tara: My Lords, the students to whom I referred in the Statement are the military students of whom I believe there are only four or five in this country. Those are the ones who will be sent straight back. Ordinary students, of whom there are a great many, will not be sent back for the very reasons which the noble Lord, Lord Callaghan, gave in his question.
Lord Callaghan of Cardiff: My Lords, I apologise to the Minister and to the House. I clearly misunderstood him. I thought that he was referring to all students, not just military students.
Lord Gisborough: My Lords, in view of the more enlightened attitude from behind the Iron Curtain, will my noble friend the Minister say what the reaction from the Soviet Union has been and whether it has taken the same kind of action?
Lord Brabazon of Tara: My Lords, I am afraid that we have not yet had a chance to hear reactions from many parts of the world, including the Soviet Union. We very much hope that it will condemn the action just as most of the rest of the world condemned the sentence when it was passed last weekend. Perhaps I should have said before that, as noble Lords will probably know, my right honourable friend the Secretary of State is going to Muscat tomorrow for the Gulf Co-operation Council-EC meeting. He will
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take the opportunity there to raise the matter with both his European Community partners and the Gulf states involved.
Lord Stoddart of Swindon: My Lords, is the noble Lord aware that some people will believe that the government response is not adequate? Is he further aware that some people believe that the civilised approach of this Government and this country is seen as weakness by those fascist rulers of Iraq and other countries? Will the noble Lord say whether the Iraqi ambassador is to be expelled? Over the last couple of days, he has appeared on our television as an apologist for that abhorrent regime. Will the Minister also explain why the British Government are not prepared to take trade sanctions against Iraq and to encourage other countries to do the same? They would be the most effective form of expressing this country's and the civilised world's horror and abhorrence at the vicious sentence which was passed and carried out, without any right of appeal and in spite of world opinion, against an innocent victim.
Lord Brabazon of Tara: My Lords, I believe that the Government have made a firm response to the Iraqis on this matter. We do not believe that it would do any good to break diplomatic relations with Iraq. I believe that it is important now, more than at any time, for the sake of Mrs. Parish and Mr. Richter, not to mention the other 2,000 or so Britons who live in Iraq, that we should have diplomatic relations with that country. We do not intend to expel the Iraqi ambassador. We are bringing back our ambassador to consult him about the wider implications of our relations. I feel sure that the expulsion of the Iraqi ambassador here in London would almost certainly lead to the expulsion of our ambassador from Baghdad. That is not what we want at the moment, as I have explained.
I do not believe that trade sanctions would help in this matter. They cannot help Mr. Bazoft or those in prison. They would be unlikely to change the policies of the authorities in Baghdad and they would lead to job losses in this country which we do not want to see.
Lord Stoddart of Swindon: My Lords, I must protest at that. A man's life has been forfeited and the Minister talks about job losses in this country. Have we no morals left?
Lord Brabazon of Tara: My Lords, that is not the point. The point is whether we think those sanctions would have any effect on the regime in Baghdad. That is the point that I am trying to get across.

Courts and Legal Services Bill [H.L.]
3.57 p.m.
Read a third time.
Clause 17 [The Lord Chancellor's Advisory Committee on Legal Education and Conduct]:
Lord Ackner Lord Ackner moved Amendment No. 1:
Page 14, line 33, leave out ("14") and insert ("16").
The noble and learned Lord said: My Lords, in one of his many capacities, my noble and learned friend Lord Oliver of Aylmerton has been summoned away to Cambridge University and has left me with the privilege and the considerable responsibility of moving this important amendment.
It has been well said that the Lord Chancellor's advisory committee, with which this amendment is concerned—a lay-dominated committee—is at the very apex of the structure of the English legal profession. It is to supervise every important aspect of professional training and practice and effectively dictate not just the framework and detail of 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.
Noble Lords may not be aware that no such committee is proposed in Scotland whose Bill is to be debated next week. The Lord President, or the equivalent of our Lord Chief Justice, will consider applications made by any professional or other body for rights of audience or rights to conduct litigation. If he rejects them, that is an end to the matter. It is only if he approves a draft scheme that it comes before the Secretary of State for him to be satisfied on quite different matters. Solicitors' rules of conduct must first be approved by the Lord President and then—and only then—submitted to the Secretary of State.
It was therefore small wonder that the noble Lord, Lord Elton, speaking in the debate on the Green Paper last April—and speaking, let it be clearly recorded, in support of the Government—said he had a clear feeling that it is the advisory committee itself that is feared. He expressed surprise that there were not even at that stage—prior to the publication of even the White Paper, let alone the Bill—suggestions as to how that committee should be composed in order to consider whether its balance should be changed.
Those suggestions came thick and fast after the publication of the Bill. The first occasion was on Second Reading when a number of noble Lords suggested that a county court judge should be on the committee, bearing in mind how prominent county court litigation appeared in the legislation. That suggestion appeared to be favourably received by my noble and learned friend the Lord Chancellor when he said that he would consider it carefully.
Bearing in mind that the committee was to have as its chairman a Law Lord or a judge of the Supreme Court, it was next proposed in terms at the Committee stage that there should be added three judges: one from each of the vital courts where the new structure would impinge and where in particular rights of audience would be considered; a stipendiary magistrate, because it would be in the magistrates' courts that much of the application for rights of audience among laymen might first start; a circuit judge, in order to speak as to the county court and the circuit judges; and, as to the High Court, a High Court judge of a particular character, namely, a presiding judge. As noble Lords may know, on each of the six circuits there are two High Court judges who for a period of four years are responsible to the
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Lord Chief Justice for the effective administration of that particular circuit.
In the debate that then took place, a notable contribution was made by the noble Lord, Lord Murray of Epping Forest, who commented on the astonishingly wide terms of reference of the committee and the enormous amount of hard work in which it would be involved. He emphasised how critically important it was to get its composition right. Among other things he said:
"The people who will make the advisory committee work are those who have experience in the legal system. They know what needs to be done and how to go about doing it. No one knows better the needs of lay people than the judges before whom such people appear".
A little later he said:
"I believe that the committee would be enormously strengthened in terms of competence, ability arid sensitivity if there were added to it a presiding judge, a circuit judge and a stipendary magistrate".—(Official Report, 25/1/90; cols. 1242–43.]
During the same debate my noble and learned friend Lord Griffiths, whom I am delighted to see in his place today and who had been an important member of the Lord Chancellor's Advisory Committee on the Civil Justice Review, said in terms that it was quite ridiculous that the chairman of the advisory committee should not have the assistance of judges who were at the receiving end of advocacy. He said:
"There should surely be there available to assist him [the chairman] the presiding judge and the circuit judge suggested by my noble and learned friend Lord Oliver. It is not good enough to say, 'You can call them in and get their evidence'. One wants them there to be available to discuss matters day in, day out, and to help one frame the questions that should be asked. They are absolutely essential to the proper operation of such a committee".—[Official Report, 25/1/90; col. 1256.]
The amendment which was moved at the Committee stage failed but it is not without significance that among those who supported it were four Lords of Appeal in Ordinary, two distinguished Law Lords, now retired, the former Lord Chancellor, my noble and learned friend Lord Hailsham, and my noble and learned friend the Master of the Rolls. In that debate my noble and learned friend the Lord Chancellor said:
"I am entirely open to suggestions as to the people who should be on the body".—[Official Report, 25/1/90; col. 1260.]
We returned to the charge a third time at Report stage, when the amendment then proposed was downgraded by being limited to two additional judges. We gave up the battle about the stipendiary magistrate and restricted our proposal to adding a presiding judge and a circuit judge to the committee.
In the course of the debate I pointed out that the chairman of the committee would inevitably be out of touch with current problems in the trial courts. Any English Law Lord who would be appointed would be fast approaching or would have attained 70 years of age and would last have presided as a trial judge perhaps a decade or more earlier. My noble and learned friend the Master of the Rolls, who supported the amendment, said that it was a real weakness in the framework of the committee that there was no representative other than the chairman who had any judicial experience. He said that there was thus a missing link in the chain of

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experience available to the committee. He confirmed how desirable it was that trial judges should be represented on the advisory committee and pointed out that even after two or three years of not trying cases one forgets what it is like.
We did not press the amendment because my noble and learned friend the Lord Chancellor said that he was willing to consider further the possibility of adding one judge to the committee. He asked both me and the Master of the Rolls to elect whom we would opt for if confined to a single choice: a presiding judge or a circuit judge. Of course he kept it open; however we opted, he would accept our decision. We both opted for a presiding judge. He said that he would consult further before coming to a conclusion. It is apparent that he has come to an adverse conclusion and neither the chairman nor any of the other members of the committee, and in particular the lay members, are to have any assistance from any trial judge.
Let me emphasise that this amendment has cut our proposals to the bone. We have gone down from three judges representing the obvious three courts—the High Court, the circuit court and the magistrates' court—to one judge: a presiding judge. In this amendment we have suggested in terms that the number of the committee should go up by two. That is to accommodate the insistence of my noble and learned friend the Lord Chancellor that there should be a lay majority. This proposal preserves that which so many of us criticised; namely, the lay majority.
In the past we also asked that the Bar and the Law Society for that matter should have the right to nominate their representatives rather than have them selected by the Lord Chancellor, because a practising barrister and a practising solicitor could in fact be employed barristers and solicitors and the Bar might end up with two lawyers employed in government service. We have cut out all that. We now merely seek this one addition. I shall not move the next two amendments on the Marshalled List.
I invite noble Lords to consider again the comparison between Scotland on the one hand and England and Wales on the other. In Scotland it is the Chief Justice who is to make the vital decisions. Here it is a committee chosen entirely at the discretion of the Lord Chancellor—a committee which will be dominated by laymen and presided over by a senior judge who is long departed and remote from the all important trial scene. If my noble and learned friend the Lord Chancellor insists on adhering to this decision, I can think of no better method of ensuring that his committee, the Lord Chancellor's Advisory Committee, enjoys the minimum level of confidence both within the profession and outside it. I beg to move.
Lord Renton: My Lords, I support the powerful case that has been put by the noble and learned Lord in moving this modest but important amendment. There are two dominant features of this matter. The first is that the advisory committee in the nature of things will be London based. Secondly, court work is mostly—indeed overwhelmingly—not taken in
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London. Therefore, in order that the committee may have the benefit of being reminded from time to time of how things are going outside London in the administration of justice, surely it is desirable that there should be a presiding judge, as the noble and learned Lord suggested.
There is another factor in this matter. It is this. The chairman, who will be a judicial chairman, will no doubt feel it his duty to act impartially among the various views expressed on the committee rather than being the only representative of the judiciary trying to foist his own views on the committee. It would surely lead to much more balanced discussion, decision and advice on the part of the committee if there were a judicial representative apart from the chairman. Above all, that judicial representative should be au fait with what is happening in the courts away from London.
Lord Griffiths: My Lords, I have had the experience of sitting as the only judicial member of a law reform committee upon which we had a majority of lay members and a lay chairman. I speak of course of the Civil Justice Review, many of whose recommendations are now in the Bill. In that committee many legal procedures that I have accepted without question were challenged by my lay colleagues. I was called upon to explain and to justify them if I could. Fortunately I could not always do so, with the result that many improvements to our system of civil justice were proposed. On other occasions I was able to explain the practical necessity for a particular procedure. I believe that we all found it a thought-provoking experience and it had worthwhile results.
I wish therefore to make it plain that I have no prejudice against a lay majority. However, if I had been the chairman of that committee I should have found my role embarrassing. If I as chairman were continually seeking to justify a procedure it might appear, as my noble friend Lord Renton has pointed out, that I was seeking to lean on the committee. In any event, I do not think that a good chairman should ever talk too much.
As I understand the role of the advisory committee, it is to ensure, so far as education and a code of ethics ever can, that the right people have the rights of advocacy. Under our system the advocate has a dual role. He is there to help his client. But he is also there to help the judge dispose fairly of the case. It seems to me extraordinary to divorce from so large a committee the very person who can best advise the other members on the nature of the assistance a judge requires and whether the measure that they are proposing will achieve that end. Furthermore, as it is an ongoing situation, and as rights of audience may well be incrementally introduced, it would be right to have someone there with practical experience who could advise the other members of the committee how it is all working out on the ground.
Many questions are bound to crop up in the committee's deliberations which are best answered by a judge. Some can only be answered by a judge. I feel sure that one could trust the judge on the committee to be open minded in his approach. If he

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is not, he will carry no weight with his lay colleagues. After all, the choice of the judge is made by the Lord Chancellor. But that a trial judge will be needed as a member of the committee I have no doubt whatever, not only in its formal deliberations but in all those conversations that constantly go on in such committees, in the meal breaks, before one sits and after one sits, in which members of the committee say to the judge, "Explain this to me", "Explain that to me", and he is able to do so. One cannot have that from simply calling judges to give evidence.
One needs a trial judge. One needs the man on the ground. I know that the chairman will be a judge but he will be a very senior appellate judge, a man removed from the smoke of the battle. Noble Lords will know what they say of an appellate judge: he is a man who in the cool of the evening undoes what a better man did in the heat of the day.
I would not have much faith in a pit safety committee if it did not have a single member from the coal face. I support the amendment.
4.15 p.m.
The Earl of Onslow: My Lords, as the noble and learned Lord the Lord Chancellor wants lay members on his advisory committee, perhaps it might be mildly appropriate if a lay member of your Lordships' House, for want of a better expression, stuck his oar into the debate.
It seems to me that the advisory committee has to represent the whole of court practice and also—I say this, I hope, as a mediumly well-read human being—that there are three parts to the law and court practice. There is the judge, the person who argues (the advocate) and the person who prepares the case. All three sections should surely be represented on the Lord Chancellor's Advisory Committee: solicitors are represented from the Law Society and barristers from the Bar Council but the judges are not.
I suggest that the Lord Chancellor will not achieve balanced advice without the inclusion of at least one judicial figure upon that advisory committee. Nor, above all, will the lay people on that committee receive the advice of someone who is cognisant with judicial practice as it is being operated at the time that the committee is arguing. Will my noble and learned friend please pay attention to what the Law Lords and the judges are saying on this? The Government listen to judges when they talk about football stadia. They really ought to listen to them when they talk about the administration of justice.
Lord Roskill: My Lords, I too support the amendment for very much the same reasons as my noble and learned friend Lord Griffiths gave a few moments ago. I venture to enjoin in what he said for this reason. He mentioned a recent law reform committee of which he was a member as a Lord of Appeal in Ordinary. That committee was appointed by my noble and learned friend Lord Hailsham. He also appointed the fraud trials committee about five years ago, of which I was chairman. I am not sure whether I now answer the description of my noble and learned friend Lord Ackner of a departed Law
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Lord. But whether or not I have departed and it is now my ghost who is speaking, I was then an active Lord of Appeal in Ordinary.
When that committee was first considered, I was to have been the only judge on it. I hope that my noble and learned friend Lord Hailsham will not think me guilty of indiscretion if I recall that I asked him whether he would be good enough to appoint another judge. He appointed the then Judge Hazan, later Mr. Justice Hazan, who died tragically after he had been moved to the Queen's Bench Division.
I cannot overemphasise the contributions to our work that Judge Hazan made. It was then some 15 years since I had last tried a case. As my noble and learned friend says, one becomes hopelessly out of touch very quickly indeed when one moves from one tribunal to another.
We had a lay majority on the committee. I ventured to suggest that to my noble and learned friend Lord Hailsham and he agreed that it was right. If one has a body with a lay majority they will take established legal sacred cows and question them in a way that lawyers are not apt to do. They will sometimes question them very vigorously and successfully. That happened on our fraud trials committee. Your Lordships know that with only a single exception all its recommendations were later adopted by the Government.
That result flowed from a mixed contribution from laymen aided by a very experienced circuit judge who had been a prosecutor and defender. The advisory committee will be lacking if my noble and learned friend the Lord Chancellor leaves it without the support urged by my noble and learned friend Lord Griffiths and me. Without that further assistance it will be a great deal less effective.
Lord Campbell of Alloway: My Lords, I wish to intervene briefly to point out that the proposal contained in the amendment that the committee is appointed by the Lord Chancellor must be seen in perspective. I have no fear that there will be irrelevant or unsuitable appointments from the employed sections of the Bar or from solicitors. I am totally content that the matter should lie within the remit of my noble and learned friend the Lord Chancellor. There is a considerable advantage in that because he would be in a position to choose objectively the type of people who could work together to produce a constructive result.
I also accept the principle that there should be an inbuilt consumer majority. Many of my friends do not agree, but I believe that to be right because the Bar and all advocates must be seen as the public sees them and not as they see themselves. I accept that principle if—and only if—the committee has a presiding judge as proposed in the amendment who is in touch with current issues and who can help, assist and advise. For reasons given by the noble and learned Lords and my noble friend Lord Onslow the situation would be unsatisfactory, which is the lowest form of term that one can use.
I ask my noble and learned friend the Lord Chancellor to keep an open mind on the amendment, particularly because no derogation of principle is

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involved. There is no derogation from the principle that the committee is appointed by the Lord Chancellor nor from the concept of the consumer majority. In fact, the amendment is a reasonable implementation of the spirit and intendment of the clause. Therefore I hope that the amendment, cut down as it is to its bare essentials, will receive favourable consideration.
Lord Irvine of Lairg: My Lords, the simple purpose of the amendment is to add a presiding judge to the membership of the advisory committee while preserving the lay majority. In Committee my noble friend Lord Murray of Epping Forest correctly emphasised the necessity of getting right the overall membership of this large advisory committee with its lay majority. We accept that the knowledge of what is happening on the ground, particularly at first instance, which the presiding judge would have would be an invaluable addition to the committee's store of knowledge and experience. The amendment expressly recognises the maintenance of the lay majority which we support. Accordingly, we on these Benches support the amendment.
Lord Harmar-Nicholls: My Lords, I wish to put forward what I presume to suggest is a parliamentarian's point of view. I have listened to debates on the Bill during most of its stages. At the beginning the lawyers approached their task rather truculantly and the general atmosphere that they created mitigated against their success in obtaining certain changes. However, when earlier they put forward this proposal they received a reaction from the noble and learned Lord the Lord Chancellor which indicated that he was sympathetic to their general point.
As a parliamentarian I look upon the passage of a Bill such as this not only as a series of debates about what should be included or excluded but as a series of negotiations. Therefore, from the beginning of Committee until this moment we have had a series of negotiations as a result of which the amendment now before us appears to be eminently fair. At this stage the movers have reduced their claim for three judges to only one. They have recognised that it might have interfered with the overriding principle of a lay majority. Therefore, they now propose an additional two members—a learned judge whom they believe to be necessary (I accept their judgment on the matter) and another member in order to keep the lay majority required by the Lord Chancellor and the Government.
The noble and learned Lord will remember that throughout the stages of the Bill he has bought peace—if I may so describe it—by indicating a certain sympathy. The other side has shown reasonableness in the confines of its present appeal and therefore I believe that it would not be good for parliamentary procedures if, at this last stage, the noble and learned Lord did not recognise that. Parliament works not only as a maker and passer of Bills but as a negotiating machinery to try to arrive at the right answer by pooling knowledge. Therefore
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I believe that the noble and learned Lord should accept the amendment, particularly in view of the sympathy that he has previously shown.
Lord Hailsham of Saint Marylebone: My Lords, I do not wish to detain the House any longer than is strictly necessary. However, it may be misunderstood if I do not speak openly in support of the proposed amendment. No one can accuse me of hostility to laymen in law reform committees. I appointed the Civil Justice Review, which had a lay chairman and a lay majority. I did so against a good deal of criticism from within the profession. As my noble and learned friend Lord Roskill said, I was also responsible for his fraud committee. I wish that in pushing through all six Civil Justice Review papers and the remaining and outstanding item contained in the Roskill Committee's report on fraud my noble and learned friend had shown the same zeal as he has shown in pursuit of this Bill. To be fair, we have Part I but the remaining six papers appear not to be pursued with the same enthusiasm.
We are dealing with a different kind of creature from either the Roskill Committee or the Civil Justice Review, to which reference has been made. The committee is a standing body. Although it is advisory to the Lord Chancellor it is appointed by him and is concerned with standards in the education, training and conduct of those offering legal services.
I have never objected to the presence of numerous and, I hope, varied lay representation on the committee. However, I believe that the absence either of a circuit judge or a presiding judge is a very serious defect indeed in the composition of this committee. It is liable to result in a reduction in standards in education, training and conduct. The advice of a practising first instance judge and a presiding judge would have been an invaluable addition to this body. If we are to choose between them, then I am for the presiding judge as suggested by the second amendment.
I ask my noble and learned friend to take this seriously because this is one of the keystones of the arch. It may be that the Government—and I do not accuse my noble and learned friend of this—are acquiring a certain reputation for insensitivity to criticism when Houses of Parliament offer their sincere advice.
4.30 p.m.
Lord Peyton of Yeovil: My Lords, perhaps I may make a few points. First, I do not fancy the idea of advisory committees at all. Secondly, I dislike large ones even more. However, if there is going to be one—and it would seem that we are doomed to have one—then it seems to me odd that it should be put together entirely by the person whom it is intended to advise. The last point I make is that to put together a body of that kind and then deny it just that kind of professional guidance which this amendment seeks to give, seems to me to be falling far short of the wisdom which one would expect from my noble and learned friend.
Lord Hutchinson of Lullington: My Lords, without any truculence, I should like to support this amendment from these Benches.
Lord Hacking: My Lords, throughout these proceedings I have been greatly assisted, as have other noble Lords, by very carefully prepared and well-reasoned notes provided to me by the Law Society. I have in my hand the notes provided by the Law Society on these amendments.
While there is some sympathy for the suggestion that a circuit judge should be on the advisory committee, in these notes it is argued that there is sufficient judicial involvement in the advisory committee and it is pointed out that under Part II Schedule 4 the designated judges have the role of giving approval to the proposals emanating from the advisory committee. It is also pointed out that there is cerain power in the designated judges making suggestions to the advisory committee.
I find myself in disagreement with the argument presented in these notes for the reasons which have been cogently put to the House not only in the debate this afternoon but also on Report. It seems to me that the judicial voice cannot be heard in that committee if it is to be left to a chairman impartially conducting those proceedings.
Lord Mishcon: My Lords, perhaps the noble Lord will allow me to intervene, only to amuse him and possibly the House. I have in front of me a Law Society briefing which reads as follows:
"The society does consider that there is a case for appointing a circuit judge provided that the lay majority is preserved".
I thought that since that seems to be inconsistent with the note which the noble Lord has, it may be that I have a later note.
Lord Hacking: My Lords, we both have the same note. I said earlier in my remarks to your Lordships that there is sympathy from the Law Society for the appointment of a circuit judge. I expressly said that to your Lordships. Indeed, it is right to say that there is support from the Law Society for a former solicitor circuit judge. However, I did not wish to reveal the full details of my brief to your Lordships, but I am compelled to do so by the noble Lord, Lord Mishcon, who has the same briefing notes.
My argument was that the voice of the judiciary, with the only member of the judiciary being in the independent and impartial capacity as chairman of the advisory committee, will not be heard. Thereafter, the voice of the judiciary can only be heard under the procedures set out in Part II Schedule 4 at a very late stage. That is after the advisory committee's proposals have been considered by the Lord Chancellor and returned by him with his comments. It is only after the advisory committee's recommendations have then been considered by the Director General of Fair Trading and returned again to the advisory committee. It is only at the very last stage of this fairly lengthy process which is set out in Schedule 4 that the designated judges have a role.
I would see it as most unfortunate if the advisory committee was only truly to hear the voice of the judiciary at that stage. It would be most unfortunate if the designated judges found themselves having to represent strong views contrary to proposals advocated by the advisory committee at a very late
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stage when, if there had been a judge on the advisory committee and a proper opportunity o hear those views at a much earlier stage, that would never have arisen. For those reasons, I support the noble and learned Lord's amendment.
I have some anxiety that if the noble and learned Lord accedes to the argument of the noble and learned Lord, Lord Ackner, a legal executive will still be omitted from the advisory committee. I have already put the argument on that. I merely say that I hope that if the noble and learned Lord accedes to the submissions of the noble and learned Lord, Lord Ackner, he will not be closed to also considering the inclusion of a legal executive.
I know the problems about the size of the committee. However, as I attempted to argue in a letter which I sent to the noble and learned Lord, the reality is that the advisory committee will split up into sub-committees and in its operation will not be a great unwieldy committee of 16, 18 or 20 people but it will conduct its business in a much more organised way through sub-committees. The fear of the noble and learned Lord that the advisory committee will not therefore be a cohesive force if too many are on it can be dealt with by the chairman of the advisory committee sensibly conducting its business. I support the amendment.
Lord Alexander of Weedon: My Lords, I support this amendment. There have been a number of occasions during the passage of this Bill when I personally felt that the Government might have been wiser to take the view that judicial experience, when expressed unanimously, might call for some change to the content of the advisory committee. I do not propose to speak on the concept of the lay majority, nor do I propose to speak to the suggestions which have been made that persons other than judges might be added to the committee. I want to focus and focus alone on this amendment.
I do that as an ex-practitioner of 28 years' standing in all types of work. Throughout those 28 years I have been acutely aware that it is on the skill, experience and knowledge of the judges that the administration of our courts ultimately depends. I have no doubt that that administration can be improved procedurally in many ways. However, I suspect that not one of us doubts that by and large the system in this country compares reasonably favourably with that of others.
It is against that context that the advisory committee has to do its work. The advisory committee needs to command public and, I suggest, professional confidence. It will not command that confidence among the thinking public unless it has upon it, for the reasons given by the noble and learned Lord, Lord Griffiths, someone who is actually in touch with operating a court day to day, dealing with all kinds of work at a grass roots level. The obvious person with that knowledge is a presiding judge.
As I say, I believe that the thinking members of the public will think that. How much more will that be so to command professional confidence? My noble and learned friend will need every ounce of support and help he can get if this mechanism,

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about which so many of us have grave doubts, is to command professional confidence. I ask him even now to take a step in that direction by accepting an amendment to which voices so much more experienced than mine have given their support. That would at least be a pointer towards encouraging the profession to believe that wisdom will come from the advisory committee.
Lord Thomas of Gwydir: My Lords, I wholeheartedly support the amendment for the reasons given by the noble and learned Lords, Lord Ackner and Lord Griffiths. Their reasons are unanswerable and it does not add to the support given to the amendment for anything more to be said.
4.45 p.m.
The Lord Chancellor (Lord Mackay of Clashfern): My Lords, that looks like my signal to rise!
As my noble and learned friend Lord Ackner said, I have always been very sympathetic to the view that it would be beneficial to have judicial experience on the committee. That was the primary reason for the requirement that the chairman be a Lord of Appeal in Ordinary or a judge of the Supreme Court, but that does not necessarily mean that he be an appellate judge. As my noble and learned friends know well—and I am sure other noble Lords know also—it includes the High Court, and all presiding judges are members of the Supreme Court. The chairman of the advisory committee can be a person who himself is engaged in day to day work, at first instance, in the High Court. However, I certainly appreciate the force of the argument that another judge should be continuously available.
As I indicated, there are powers to co-opt members of both the advisory committee and its sub-committees; the day to day contact mentioned by my noble and learned friend Lord Griffiths can be attained in that way. That option is open and will be open as regards more than one level of judge.
My noble and learned friend Lord Ackner explained the history of this matter as it came through the debates. My noble friend Lord Harmar-Nicholls referred to that. The original suggestion was that there should be a High Court judge, a circuit judge and a stipendiary magistrate. The matter went to a Division at that stage. I argued that it was necessary to have a lay majority, for reasons which I sought to explain and which are not now controverted. I also felt that it was necessary to have an advisory committee of reasonable size. It is true that some of its work can be done in sub-committees, but ultimately the advice has to be co-ordinated and decided upon by the advisory committee and therefore there are reasonable constraints of size.
A new development that we are faced with is the view that there should be a single judicial figure added to the membership of the committee and that such a person should be a presiding High Court judge. Presiding judges are receiving statutory recognition as such for the first time in this Bill. As my noble and learned friend Lord Ackner explained, they are responsible, through the senior presiding
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judge, to the Lord Chief Justice for the judicial administration on the circuits. There are two judges for each circuit; one is usually in London and the other on circuit, so they are alternately in London.
Regarding the point made by my noble friend Lord Renton, the fact that it is a presiding judge does not necessarily carry the consequence that he would be from outside London. For example, there are two presiding judges with responsibilities in relation to London and the rest of the south-eastern circuit.
My noble and learned friend Lord Ackner referred to Scotland. There is no advisory committee in Scotland and the problems, particularly concerning rights of audience, are quite different there from those faced in England.
At each stage of the Bill I promised further to consider this matter. I have not reached a contrary conclusion, as suggested by my noble and learned friend Lord Ackner. I seek to appoint a judge to the committee, the precise level of which is of some importance. Your Lordships are aware that I am most anxious that the committee should carry the confidence of both branches of the profession. There is certainly some difference of opinion at the moment. However, as my noble friend Lord Harmar-Nicholls said, matters have moved on in the course of the debates and there is not now any antipathy in the profession to a judge being on the advisory committee so long as the lay majority is maintained. However, there is still some difference of opinion as to precisely the level of judge that might be appointed.
That brings me to a point mentioned by my noble and learned friend Lord Roskill. He found the advice of Judge Hazan most valuable, as one would expect. At the time of his appointment and service on my noble and learned friend's committee Judge Hazan was a circuit judge. It was one of my most pleasant duties, shortly after I was appointed Lord Chancellor, to invite that very distinguished judge to become a justice of Her Majesty's High Court of Justice. I believe it would be no breach of his confidence to say that when he came to see me he had no idea of the purpose of the invitation. As I spoke to him and revealed the purpose he said, "Oh! What a surprise". He thought that he had been invited in order to be in some way told that I did not approve of some of his activities. That is a measure of the man. He was very pleased to go to the High Court. It is with the greatest sadness that we lost him so quickly after that event. I mention Judge Hazan because he served in that committee as a very distinguished circuit judge.
There is quite a body of opinion about this matter. I hope that your Lordships will see the force of my conclusion. I entirely accept the view that one judge should be added to the advisory committee. I am not despaired of securing agreement from the profession with regard to the level of the judge, although there is a little disagreement now. One sometimes finds that these things can move on and I have not despaired of reaching agreement on this matter with both branches of the profession. I believe that that, if I can do so, would be the best way forward.

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A presiding judge of course has very heavy responsibilities during his tenure as a presiding judge. It might well be more appropriate, from the point of view of the working of the committee, that one who has had recent experience as a presiding judge should be appointed rather than a judge who presently carries the heavy responsibility of presiding at the time of appointment. There is also the point that the term of appointment of a presiding judge is normally reasonably short—three or four years is usual. I would certainly be happy for such terms to be used. On the other hand, in the case of a judge who has been experienced in the advisory committee, this being a standing body as my noble and learned friend Lord Hailsham said, it might well be of advantage that he should continue for longer than the ordinary period during which judges of the High Court carry the heavy responsibilities of presiding judges.
In that situation, therefore, I can tell your Lordships that I am prepared to undertake to add a judge to the advisory committee with the corresponding addition of one lay person as this amendment contemplates. I certainly see the argument in favour of that judge being a judge of the High Court, but your Lordships will appreciate—indeed, the arguments were put forward—that there is also a strong case for a circuit judge being appointed. As I said, I hope that it will be possible to reach agreement on this matter. If your Lordships are prepared to allow the amendment to be withdrawn, when the Bill goes to another place I will carry this process forward so that when the Bill returns to this House, as it will, your Lordships will find that we have been able to reach an agreement which commends itself to the profession as a whole.
Of course, I am not committing myself to the absolute necessity of securing agreement. If I cannot reach agreement I shall have to make a decision on the matter, but your Lordships will probably accept that it would be better to obtain agreement. If agreement is not possible I shall take a decision in the light of all the considerations that your Lordships have put forward in this debate and in the light of any other representations that may be made to me.
I hope that in the light of that explanation and undertaking my noble and learned friend will feel able not to press the amendment.
Lord Renton: My Lords, before my noble and learned friend sits down, will be be good enough in the light of what he said to make clear that he has in mind that the judge appointed to serve on the committee will be a judge who during his service is gaining experience of what happens outside London? In that connection, perhaps I may mention that the south-eastern circuit includes the whole of the eastern and south-eastern counties of England.
The Lord Chancellor: My Lords, I am only too well aware of the last point. One of the difficulties of the administration of that circuit is that it covers such a large area, but there is no natural division available to make it smaller. I know that those who have responsibility for the circuit are conscious of
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that situation. I am certainly willing to consider that someone with experience outside London or gaining experience outside London, or who has recent experience of working outside London, should be the judge involved.
The Earl of Onslow: My Lords, before my noble and learned friend sits down, perhaps I may make a suggestion which will solve his dilemma of whether it should be a circuit judge or a presiding judge. Can he not simply allow himself the choice in the Bill of appointing one or the other?
The Lord Chancellor: My Lords, I had actually thought of that possibility. However, the more choices I have when the Bill is completed the more difficult it may be to satisfy everyone, as I hope I will be able to do with the appointments I shall make. Therefore, if it is possible to bring this to a conclusion during the course of the Bill's progress I would much rather do that. As my noble friend Lord Harmar-Nicholls said, there has been a development of understanding of what this Bill aims to do and I am therefore optimistic in this respect.
There are a number of consultations that I feel I must carry out before reaching a firm conclusion. Perhaps I may add that your Lordships have assisted me greatly by gradually focusing on one. I felt that it would be extremely difficult to go for three or even two because that would make the committee very large. There is still the possibility of other judges at different levels being co-opted. Perhaps that matter has not been fully appreciated by everyone. The mere fact that we go for a particular level does not exclude from consideration others being co-opted.
Lord Donaldson of Lymington: My Lords, before the noble and learned Lord sits down perhaps he can, in order to assist me, refer me to the part of the Bill which permits co-option to the committee. There are co-option powers to committees of the committee and to sub-committees but I thought there was no power to co-opt to the committee itself.
The Lord Chancellor: My Lords, I hat is right. There is a power to co-opt to committees and sub-committees of the advisory committee. Certainly that is intended to include meetings of the advisory committee. That is a power that could be exercised in this respect. However, the main point is that I have given an undertaking in respect of the subject matter of this amendment, which is an appointment to the advisory committee itself.
Lord Ackner: My Lords, before my noble and learned friend sits down, can he tell me precisely what are the terms of the undertaking? Is it an undertaking that there will be two judges who are members of the committee? It is my understanding that there will be a chairman plus one other judge. From my mathematics, that makes two judges.
The Lord Chancellor: My Lords, as usual my noble and learned friend's mathematics are superb. I am giving an undertaking that in addition to the chairman there will be another judge on the committee. The only point on which I cannot agree

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today is the precise description of that judge. I hope that I will be able to secure agreement within the profession in that respect. Therefore, very little divides us. We have come some distance since Second Reading on this aspect of the matter.
Lord Ackner: My Lords, I am grateful to my noble and learned friend the Lord Chancellor for the assistance that he has given and I should like to make only a few comments. We have always assumed that because a Law Lord is specifically referred to in the statute itself, followed by,
"or a judge of the Supreme Court",
one or the other would inevitably involve an appellate judge. If that is to be rethought and the chairman may be a High Court judge, clearly my noble and learned friend needs an opportunity to reconsider who should be the second judge. However, I make only this observation. I proposed a presiding judge after having consulted the Lord Chief Justice, as might be expected. I would not have done so without his concurrence. My proposal has had his strong support throughout our discussions.
The other feature about a presiding judge which may not be known to the House is that the presiding judges—12 of them—meet under the chairmanship of the senior presiding judge. That has the enormous advantage that presiding judges know what is going on throughout the entire country. They are able to swap knowledge and experience. By having a presiding judge the committee would have a judge with a fund of knowledge of administration which no other judge has. For that reason I earnestly ask that a presiding judge should feature at some stage or another. However, having regard to my noble and learned friend's undertaking that there will be one other judge in addition to the chairman, I beg leave to withdraw my amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 2 to 6 not moved.]
5 p.m.
The Lord Chancellor The Lord Chancellor moved Amendment No. 7:
Page 15, line 24, leave out subsections (8) and (9).
The noble and learned Lord said: My Lords, I shall speak also to Amendments Nos. 33 and 41. In Committee my noble friend Lord Alexander of Weedon tabled an amendment providing that the designated judges should not be liable in damages in relation to the discharge of their functions under this Bill. During the debate that was contrasted with the blanket immunity provided for the advisory committee. As I hope I made clear, it had never occurred to me that the designated judges could be liable in damages for any action arising out of the discharge of their functions under this part of the Bill. I think my feeling was shared by some of my noble and learned friends. I did, however, undertake to consider the matter. I was unable to complete this consideration in time for Report when my noble and learned friend Lord Ackner tabled the same amendment. The reason it took time was that the matter did not simply concern this Bill but could affect the situation in respect of other statutory provisions.
It seemed to me sensible to consider together all the immunities conferred by the Bill in this area. The principle that I decided would be right would be to confer immunity only to the extent that was required by the functions each of the parties are to carry out under the Bill. This has permitted a rather more consistent approach. The amendments I have brought forward are designed to achieve the following: the blanket immunity currently provided for the advisory committee is removed. The committee is given instead the same protection in relation to the law of defamation as the Bill gives to the Director General of Fair Trading. In giving their reasons under the Schedule 4 mechanism, the reasons of the Lord Chancellor and designated judges are equally to be absolutely privileged for the purposes of the law of defamation.
Furthermore, I am providing that in any proceedings for judicial review or breach of statutory duty, the remedy of damages will not be available against either the Lord Chancellor or the designated judges. That provision distinguishes many other statutory provisions in which judges are involved in which no special provision is made for them. I believe this is a sensible way to deal with the problem. I beg to move.
Lord Mishcon: My Lords, I am not troubled in the slightest by the first amendment to which the noble and learned Lord referred; namely, the removal of subsections (8) and (9) which deal with the advisory committee's exemption, or that of any of its staff or members, from liability in damages for anything that they may have done. What I am troubled about is the question of giving them absolute privilege in regard to defamation. As I understood him, the noble and learned Lord mentioned the Director General of Fair Trading. As I understand it, he has to have absolute privilege because he may well mention individuals in his report and say unkind things about them in pursuance of his duty. If he had qualified privilege only, somebody could obviously allege that he was led by some improper motive to mention an individual, firm or company in his report.
When one looks at the committee's functions as set out in Schedule 2, they are limited (are they not?) to the approval or otherwise of rules submitted by existing or proposed authorised bodies and matters of that nature. Giving absolute privilege in those circumstances seems wrong. So far as I can see, there is no such immunity from libel as absolute privilege grants, as we know to be the case in connection with membership of your Lordships' House or the other place. We also know it to be true in regard to what is said or done in court.
The advisory committee does not have absolute privilege so far as I am aware. The lay observer does not have absolute privilege. Why should members of the advisory committee, bearing in mind their duties—I do not say this in any way offensively—be told, "It does not matter what you write in one of your reports about anyone when you are talking about rules because of course you have absolute privilege."? People may be misled. The committee is not a professional one. We have been reminded that there is to be, not just a lay membership, but a

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lay majority. A lay majority presumably will have responsibility for the report because of its majority. I see a case for qualified privilege. I can see no case, until the noble and learned Lord points out where my argument is wrong, for absolute privilege in this case.
Lord Renton: My Lords, the noble Lord, Lord Mishcon, may have had much more experience than I of the operation of the law relating to defamation, although I have had some experience of it. It always seemed to me that qualified privilege had the great disadvantage of uncertainty. There was often uncertainty on the facts and the various defences to it gave scope for a tremendous amount of argument. I should have thought that in the circumstances in which the advisory committee will be operating, and the duty that it has to advise the Lord Chancellor and the designated judges, that it is much better that the position should be clear and that the matter should be cut and dried.
I welcome the amendments. I support them for the reasons that I have given.
Lord Mishcon: My Lords, before the noble Lord sits down and with the leave of the House, I believe that the noble Lord is being extremely modest in indicating that his knowledge of the law of defamation is a minor one. I am sure that it is not. However, does he realise—especially since this is a matter of contemporary comment—that the inspectors appointed by the Department of Trade and Industry, when issuing a report (the noble Lord will know to what I am referring in a contemporary matter) are covered by qualified privilege only? There is no question of uncertainty about that.
Lord Renton: My Lords, with deep respect to the noble Lord, the circumstances are completely different and the two situations are not wholly analogous.
Lord Simon of Glaisdale: My Lords, I do not rise to oppose the amendments but merely to point out that this is one of 40 government amendments tabled for Third Reading. The Government have tabled 40 of the 67 amendments. Further, your Lordships did not start on this business until shortly before four o'clock. I say that because your Lordships have been required to sit very late day after day on the Bill. By "very late" I mean after 10.30 p.m. and often after midnight. According to the Order Paper the Bill will be taken today. There is no provision for the Motion, That the Bill do now pass, to be taken on a later day. But Standing Orders make it quite plain that there is perfect freedom, if the noble Lords think it right, to postpone the Motion, That the Bill do now pass. It is impossible for your Lordships to dispose of all the amendments tabled for Third Reading and still give adequate consideration to the matters for discussion on the Motion, That the Bill do now pass.
That submission is increased in force by the consideration that no fewer than 40 of the amendments—more than half—are government amendments. That was also the case at Report stage, when oddly enough more than 150 government amendments were tabled, again well over half of
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those put down for consideration. I do not oppose the amendments before us but is is quite impossible for your Lordships in one day to discuss the Bill with any parliamentary decency, taking both the Third Reading and the Motion, That the Bill do now pass.
Lord Ackner: My Lords, as I was responsible in part for this amendment, I rise as a matter of ordinary courtesy to thank my noble and learned friend the Lord Chancellor for providing Amendment No. 33. From time to time during the course of these debates I have had to indicate some mild criticism. It is therefore a profound source of satisfaction to find that I have managed to achieve for the Lord Chancellor a personal immunity which when the Bill started he had not the opportunity to enjoy.
The Lord Chancellor: My Lords, I am grateful for that by-product of my noble and learned friend's activities.
Perhaps I may deal, first, with the point raised by the noble Lord, Lord Mishcon. The advisory committee will make reports to Parliament and comment on individual applications. The question there will include whether persons are fit and proper persons to have the responsibility of advocates in, for example, the higher courts. The committee is appointed to report. In that situation is seems right that the justification for the absolute privilege in your Lordships' House and the absolute privilege in court should apply in this aspect. We want the advisory committee to give its opinion properly without fear of action of any kind.
This is a slight narrowing of the immunity conferred in the original Bill as it went through Committee stage. A close consideration of the points raised by my noble and learned friend Lord Ackner and my noble friend Lord Alexander of Weedon brought us to this view. It is eminently justified. I should point out that I am speaking to Amendment No. 7 but I mentioned with it Amendments Nos. 33 and 41 in order to explain Amendment No. 7.
On Question, amendment agreed to.
Clause 21 [Recommendations]:
5.15 p.m.
Lord Coleraine Lord Coleraine moved Amendment No. 8:
Page 19, line 12, leave out subsection (8) and insert—
("(8) The Ombudsman may, if he thinks fit, publicise the failure of any person to comply (whether wholly or in part) with a recommendation under subsection (2).").
The noble Lord said: My Lords, with this amendment we come briefly, during daylight hours, to consideration of the Legal Services Ombudsman. I have tried already in Committee and on Report, but in the late hours, to delete subsection (8) from Clause 21. I do not wish to detain the House now with a lengthy explanation of this amendment or with a repetition of what I said before except to explain how I have responded to what my noble and learned friend the Lord Chancellor said on Report. I have responded by providing in this amendment

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not just for the omission of subsection (8) but for the insertion of a new subsection which makes it clear that the ombudsman may publicise the failure of the practitioner to comply with the ombudsman's recommendations.
By way of explanation, the Bill provides that the Legal Services Ombudsman may investigate the manner in which a professional body has investigated a complaint against a legal practitioner. In effect the investigation is to review the professional body's decision that the lay complaint against the practitioner is unfounded. The ombudsman may go further and may investigate the substantive complaint against the practitioner. He may then make recommendations and the practitioner may be directed to comply with them.
The recommendations are not mandatory. Given the background to the investigation and the way in which it will be carried out it would be unreasonable if they were to be mandatory. But if the practitioner does not comply with them, under the Bill as drafted the ombudsman may direct the practitioner at his own expense to publicise the fact that he has not complied with the recommendations in such manner as the ombudsman may specify. It is to this element that the Bar Council, the Law Society and indeed Justice all take exception.
I need not go further over that ground now except to submit that, if the recommendation of the ombudsman is not to be mandatory, it is quite wrong to treat non-compliance as calling for some indirect form of punishment. At Report stage my noble and learned friend the Lord Chancellor said:
"I should be glad to know what sort of sanction my noble friends who do not care for this proposal have in mind should be attached to the ombudsman's jurisdiction if this sanction were not to apply".—[Official Report, 20/2/90; col. 265.]
I took and I take some exception to the use of the word "sanction" because one of the meanings of the word is punishment. It is possible that this is not what my noble and learned friend intended. The idea of punishment here should be altogether repugnant to your Lordships. What I and those who oppose the sanction would agree is that a recommendation by the ombudsman is to be treated very seriously indeed and that it would be right for the ombudsman to mark his disapproval of the practitioner who failed to comply with a recommendation. We consider that this can be most fairly done by the ombudsman himself having the power to publicise the failure. That is what the amendment provides. I beg to move.
Lord Renton: My Lords, I hope that the amendment will be supported and that it will be accepted by my noble and learned friend. It removes what I suggest is a serious defect in the Bill. It is almost unbelievable and quite without precedent. Subsection (8) of Clause 21 could compel a person to defame himself publicly, and to publish his own libel against himself, and would require him to pay for doing so. We really cannot legislate in a way that has that result. I would take a very serious view of the matter if the subsection as drafted remained in the Bill.
Lord Boardman: My Lords, I support the amendment. There would seem to be three courses open when a recommendation of the ombudsman is not followed. The first is for the powers to be mandatory so that they are bound to be complied with. Secondly, if they are not complied with and are left in discretionary form, it should be for the ombudsman himself to publish that the recommendations have not been complied with and for him to give his comments upon that. Thirdly, in accordance with the provision in the Bill, and one with which I disagree, the ombudsman requires the person who was defaulted to publish that fact and, as my noble friend Lord Renton said, to possibly publish a libel or something defamatory about himself and to do so at his own expense.
I am not aware of any other case where an ombudsman is given such power. However, as regards the ombudsmen of whom I am aware, they retain powers to publish if their recommendations are not accepted. The normal custom is to publish the information in the annual report stating that they made certain recommendations and that they regret that certain actions were not taken, although in most cases the powers of the ombudsman are such that the recommendations are complied with. It will be very much regrettable if this power to require someone to publish were accepted. The introduction of the sort of blackmail pressure of "If you do not do as I tell you, then you will be required to publish the fact that you have not done so in such form as I shall direct" would be most unfortunate.
Lord Donaldson of Lymington: My Lords, I was under the impression, although I have not been able to check the facts, that there was such a power in relation to the building societies' ombudsman. As I understand it, he is able to make a building society publicise reasons for non-compliance. I regard the position of a building society as being wholly different to that of an individual practitioner. I believe that there is some publicity provision in the case of a local government commissioner; but, again, that is quite different.
In the case of a building society, there are many depositers and shareholders who need to be informed of such matters because they are part of the society; it is their agent, as it were, in the form of the building society, who has by definition misbehaved. As for a local authority, it is answerable to its electors because it has acted on their behalf. If it is to be criticised, there are grounds for saying that the authority should tell its ratepayers. I respectfully suggest that an individual practitioner or even a firm of practitioners from the solicitors' branch are in quite a different category.
Lord Mishcon: My Lords, this must be right. First, we are dealing with professional people; and, secondly, this must be a considerable sanction. Perhaps I may revert to what I said when I made a submission about the protection which was given to the advisory committee in respect of defamation. As I understand it, the ombudsman is to have privilege in regard to anything which is contained in his report. Therefore your Lordships must realise that

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if there is a failure to carry out the recommendation of the ombudsman there is a considerable sanction when there is a threat that a professional man may have a report published about him in regard to his failure which can be defamatory if one is dealing with a normal situation. He would have absolutely no rights whatever. Is that not enough of a sanction?
Lord Ackner: My Lords, I should have thought that the very phraseology makes the clause unworkable. If a person fails to comply with a recommendation, he doubtless has his own reasons which he thinks are satisfactory. However, he does not have the entitlement to publish those reasons because the clause says that he shall publish the reasons for it, in such manner as the ombudsman may specify. The ombudsman may say, "I am not going to accept your publishing those reasons because I do not accept them. These are the reasons which you must publish". I do not see how that is workable.
Lord Morris: My Lords, I take on board the remarks made by my noble friends Lord Boardman and Lord Renton on the matter. However, I should like to make just one point. If someone has failed to comply with a recommendation of the ombudsman, whatever the merits of the case may be, I think it is quite wrong that the taxpayer should have to pay for the cost of publication should the ombudsman see fit to publish that failure in the interests of the public generally.
The Lord Chancellor: My Lords, perhaps I may deal first with the point made by my noble and learned friend Lord Ackner. Clause 21(8) says,
"Any person who fails to comply (whether wholly or in part) with a recommendation under subsection (2) shall publicise that failure, and the reasons for it, in such manner as the Ombudsman may specify".
The ombudsman is only entitled to specify the manner of publication; he has no control over the reasons for the failure or their content. That brings me to a very important aspect which the amendment suggests. I assume that all of us believe that the recommendations of the ombudsman should generally be accepted, otherwise there is not much point in having him. I notice that my noble friend does not care for the word "sanction"; but there needs to be some consideration as a result of which those affected by the recommendation of the ombudsman should feel some degree of need to comply therewith. That must be important for the whole effectiveness of the operation.
Following lines such as those referred to by my noble and learned friend the Master of the Rolls, I have tried to provide that the person who fails to comply can be directed to publicise that failure and the reasons therefor. In other words, he is able to give his answer in his terms as part of the publication. Therefore, the view of the ombudsman is set against his view, if he has one. He would of course bear the cost of that, and your Lordships may think that he may have quite an elaborate explanation which he wanted to give. However, if the obmudsman's case is a strong one, it may be that it cannot be demolished at a stroke and that some fairly lengthy explanation is required. But the precise nature of that explanation would be a matter for him.
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The amendment of my noble friend Lord Coleraine strikes me as a good deal more fierce than what I propose in the sense that the ombudsman would have the right to publish the failure without any explanation as to what are the reasons for the failure. There is also the second point mentioned by my noble friend Lord Morris; namely, that this would be at the expense of the ombudsman.
There are powers vested in the Lord Chancellor to give directions under Schedule 3 about the extent of any obligation which might arise in regard to the matter. I do not see this as something which is likely to create a great burden on the practitioner. I believe that the ombudsman can be expected to use these powers in a reasonable and sensible way. The great advantage of them is that they include the reasons for non-compliance of the person who has declined to accept the recommendations. That is extremely important.
I think that the consumer bodies—for example, the National Consumer Council which has corresponded with my noble friend and sent me a copy of its letter to him—would be rather keen on having the recommendations binding on the practitioner. However, I have not felt it right to go that far. What I have proposed seems to me to be a reasonable, middle way in this connection. I hope therefore that your Lordships will allow this arrangement to stand.
Lord Mishcon: My Lords, before the noble and learned Lord sits down, I should like to make one point. In the course of his remarks—to which we all listened with great respect—he gave an interpretation of the clause which was different from that given by the noble and learned Lord the Lord of Appeal in Ordinary. That strikes some of us with a certain amount of fear regarding the consequences of the clause which will ultimately go into an Act of Parliament, whatever the true construction may be. I think that the noble and learned Lord the Lord Chancellor is right in his construction. However, I think that I can quote my colleague who sits beside me on the Front Bench as saying that he sides with the noble and learned Lord, Lord Ackner. Therefore, on any view we must not allow this clause to go through on the nod, so to speak, or the amendment to be dealt with very lightly.
The question I wish to ask the noble and learned Lord is this. His argument was that the amendment constituted a harsher verdict on the professional man involved by virtue of the fact that there would be publication of the recommendations of the ombudsman with which the practitioner had not complied without any reasons being given.
Obviously, the normal case with which we are dealing here is not a reasoned objection. I imagine that if the sanction is employed—and I insist on using the word—it is because the professional man is so irresponsible that by default he does not carry out the recommendations. However, there may in some cases be a reasoned objection. That objection may be unreasonable, but from the point of view of the practitioner it may be a reasoned objection. There is nothing to stop him writing a letter to the newspaper in which this is published. There is

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nothing to stop him publishing a statement as to his reasons for objecting to the ombudsman's recommendation. We ought not to deal with this clause either recklessly in regard to interpretation or wrongly in regard to the amendment which I support.
Lord Renton: My Lords, before the noble Lord sits down, can he imagine a more effective way of creating bad relations between the ombudsman and the two branches of the legal profession than the method that is put forward in subsection (8)?
5.30 p.m.
Lord Mishcon: My Lords, if I interpret the noble Lord, Lord Renton, rightly, he said that he did not like what is in the existing clause and he supports the amendment. Is that what he said?
Lord Renton: Yes, my Lords.
Lord Mishcon: My Lords, in that case I bless him for his observations.
The Lord Chancellor: My Lords, with the leave of the House, I find it difficult to obtain a form of words on which there is no possibility of disagreement. We have listened to arguments on statutory construction. The ingenuity that can be lavished on them is quite considerable. However on this occasion I regard it as reasonably plain that the last phrase deals only with the manner of the reasons. If I could have an opportunity of putting some questions in respect of the argument to the contrary, I should be glad to do so. However, I do not think that our procedures here allow room for that.
The noble Lord, Lord Mishcon, suggests that the practitioner could insert a letter in the newspaper in which the ombudsman's notice appeared. If I were the professional man I should much prefer to have my reason immediately in conjunction with or in contra-distinction to the words of the ombudsman as part of the one notice. Anyone reading one piece then reads the other. We have experience of corrections, as no doubt all of your Lordships have. It is much better if the correction or opposition is expressed at the same time and as part of the original notice. I hope that your Lordships will not accept the amendment.
Lord Coleraine: My Lords, I am grateful to my noble friend, to noble Lords and to noble and learned Lords who have supported me. I wish to speak about the point first raised by the noble and learned Lord, Lord Ackner, and answered by my noble and learned friend. I have always read Clause 21 in the way in which my noble and learned friend does. As I understand it, it is that the ombudsman will not control the matter which goes into the advertisement but only the manner of it.
My noble and learned friend suggested that his original version is in a way harsher than the amendment which I have proposed—I am sorry, it is the other way round. He suggested that I am asking for something harsher than he offers. In one sense I am. It could be said that the opportunity to give
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one's explanation is something which a petitioner might welcome. On the other hand, all those who speak for petitioners do not welcome it. There is much to be said for the argument that a professional body would be reluctant to see its members entering into long explanations in an advertisement which do not answer a case put in the advertisement but merely answer the recommendation which the ombudsman has proposed.
I have had the opportunity to discuss this with my noble and learned friend since the Report stage. I do not believe that I can persuade him that his view of the matter is wrong and mine is right. In my opinion this is a small matter but one of potential significant injustice to practitioners. Even if it were not for the support that I have received around the House, I should still feel that I could not allow the matter to leave the House without your Lordships having decided upon it. I therefore press the amendment.
5.35 p.m.
On Question, Whether the said amendment (No. 8) shall be agreed to?
Their Lordships divided: Contents, 59; Not-Contents, 93.

DIVISION NO. 1

CONTENTS

Ackner, L.

Hughes, L.

Airedale, L.

Hutchinson of Lullington, L.

Ardwick, L.

Irvine of Lairg, L.

Aylestone, L.

Jay, L.

Beloff, L.

Jenkins of Hillhead, L.

Blease, L.

Jenkins of Putney, L.

Boardman, L.

Listowel, E.

Broadbridge, L.

Lovell-Davis, L.

Bruce of Donington, L.

Macaulay of Bragar, L.

Byron, L.

Mishcon, L.

Carnock, L.

Molloy, L.

Carter, L.

Parry, L.

Cledwyn of Penrhos, L.

Pitt of Hampstead, L.

Coleraine, L. [Teller.]

Prys-Davies, L.

David, B.

Renton, L. [Teller.]

Donaldson of Lymington, L.

Roskill, L.

Dormand of Easington, L.

St. John of Bletso, L.

Ennals, L.

Seear, B.

Erroll, E.

Seebohm, L.

Ewart-Biggs, B.

Selkirk, E.

Feversham, L.

Shaughnessy, L.

Fitt, L.

Simon of Glaisdale, L.

Foot, L.

Stedman, B.

Gallacher, L.

Stoddart of Swindon, L.

Gladwyn, L.

Tordoff, L.

Graham of Edmonton, L.

Underhill, L.

Hacking, L.

Williams of Elvel, L.

Harris of Greenwich, L.

Wilson of Langside, L.

Houghton of Sowerby, L.

Winterbottom, L.

Howie of Troon, L.

NOT-CONTENTS

Abinger, L.

Brookes, L.

Allen of Abbeydale, L.

Brougham and Vaux, L.

Arran, E.

Caithness, E.

Ashbourne, L.

Caldecote, V.

Auckland, L.

Camoys, L.

Balfour, E.

Campbell of Alloway, L.

Belhaven and Stenton, L.

Carnegy of Lour, B.

Belstead, L.

Clanwilliam, E.

Bessborough, E.

Colnbrook, L.

Blatch, B.

Craigmyle, L.

Boyd-Carpenter, L.

Davidson, V. [Teller.]

Brabazon of Tara, L.

De L'Isle, V.

1677

Denham, L. [Teller.]

Mountevans, L.

Derwent, L.

Munster, E.

Eccles, V.

Murton of Lindisfarne, L.

Elton, L.

Nelson, E.

Fraser of Carmyllie, L.

Norfolk, D.

Fraser of Kilmorack, L.

Onslow, E.

Gardner of Parkes, B.

Orkney, E.

Greenway, L.

Orr-Ewing, L.

Harmar-Nicholls, L.

Pennock, L.

Havers, L.

Peyton of Yeovil, L.

Henley, L.

Pym, L.

Hesketh, L.

Quinton, L.

Hives, L.

Rankeillour, L.

Home of the Hirsel, L.

Reay, L.

Hylton-Foster, B.

Rees, L.

Jenkin of Roding, L.

Renwick, L.

Joseph, L.

Rodney, L.

Kimball, L.

Romney, E.

Knollys, V.

Saint Albans, D.

Lauderdale, E.

Saltoun of Abernethy, Ly.

Lawrence, L.

Sanderson of Bowden, L.

Leathers, V.

Skelmersdale, L.

Lloyd of Hampstead, L.

Somers, L.

Long, V.

Strathcarron, L.

Lucas of Chilworth, L.

Strathclyde, L.

Lyell, L.

Strathmore and Kinghorne, E.

McAlpine of West Green, L.

Mackay of Clashfern, L.

Sudeley, L.

Merrivale, L.

Suffield, L.

Mersey, V.

Terrington, L.

Milverton, L.

Trumpington, B.

Monteagle of Brandon, L.

Ullswater, V.

Montgomery of Alamein, V.

Vaux of Harrowden, L.

Morris, L.

Wynford, L.

Mottistone, L.

Zouche of Haryngworth, L.

Resolved in the negative, and amendment disagreed to accordingly.
5.44 p.m.
Clause 25 [Rights of audience]:
Lord Hacking Lord Hacking moved Amendment No. 9:
Page 20, line 44, at end insert ("or in the County Court").
The noble Lord said: My Lords, we have considered the matter raised in this amendment both in Committee and on Report. The noble and learned Lord kindly wrote to me on two occasions, both after the Committee stage and after the Report stage, and also arranged for me to meet some of his officials between the Committee stage and the Report stage.
I only return to the amendment again on Third Reading because the noble and learned Lord clearly indicated to the House that his mind was not closed on this matter and also because I believe that I can reassure him as regards the misgivings that he expressed. As your Lordships will recall, this amendment is directed to establishing the existing rights of audience that are possessed by solicitors' clerks in chambers in the county court. Your Lordships may recall that at the turn of the century the matter was brought before Mr. Justice Cozens-Hardy when there was a challenge by a member of the Bar against the right of a solicitor's clerk to represent his employer in chambers in matters that came before the High Court. Mr. Justice Cozens-Hardy clearly resolved the matter in complimentary terms in favour of the rights of solicitors' clerks to appear in the High Court.
I believe it was largely thought that the same right existed before county court judges and registrars in the county court. It would certainly be wholly logical
1678
if that were so, and indeed it would be anomalous if it were not so. However, when the officials of the department of the noble and learned Lord and later your Lordships considered that matter, they discovered that while there was a right for solicitors' clerks to appear in chambers in the High Court—as I have indicated, that right was established by Mr. Justice Cozens-Hardy at the turn of the century—it was only by convention that solicitors' clerks appeared in chambers in the county court.
In clearly indicating to your Lordships that his mind was not closed on this issue the noble and learned Lord made it plain in Committee and on Report that, as regards rights of audience, he wanted to keep in place all existing rights of audience and devise a system for providing new rights of audience. If I have understood the noble and learned Lord correctly, his concern was that this amendment might establish a right of audience that did not already exist. All I can say is that while the custom I have referred to did not have the voice of Mr. Justice Cozens-Hardy, it would certainly have had the consent up and down the country for the past 80 years and more of judges and registrars in the county courts. I suggest to the noble and learned Lord and to your Lordships that this custom has been well established. It is so established that the position has been reached where, to all intents and purposes, a right exists.
A further reason why I return to this amendment again on Third Reading is one that has already been advanced in Committee and on Report. However, I shall remind your Lordships of it. It is the concern that has been expressed by solicitors' clerks, and indeed by their solicitor employers, that difficulties may be put in their way and that points may be taken on a court by court basis. The noble and learned Lord rightly pointed out that it would be quite possible—he anticipated that registrars and judges would move in this way—on a case by case basis to give those rights pursuant to Clause 25(2)(c). However, I suggest to your Lordships and to the noble and learned Lord that we do not wish registrars and county court judges to take up their time in debating this matter if the point is taken, as it has been taken recently. For that reason there is concern among solicitors' clerks, as represented by the Institute of Legal Executives and by the Law Society. For all those reasons I ask the noble and learned Lord to accept this simple, straightforward amendment which turns a well-established convention into a right. I beg to move.
Lord Prys-Davies: My Lords, I wish to support this amendment which has been moved by the noble Lord, Lord Hacking, for the reasons which he has advanced and which I shall not repeat. However, I can confirm that it is the custom and practice in my part of the world for our county court judges and registrars to permit solicitors' clerks to be heard in chambers in the county court. We believe that the opportunity should now be taken in this Bill to confirm that convention and custom. I am pleased to support the amendment.
Lord Boyd-Carpenter: My Lords, if it is the established convention that in the county courts solicitors' clerks and others are entitled to be heard, it seems to me that a possible construction of the Bill as it stands may be that this procedure is being brought to an end. The Bill, after all, firmly states,
"and the proceedings are being heard in chambers in the High Court".
It is possible that that might be construed as meaning not elsewhere. That perhaps strengthens the case for the amendment.
The Lord Chancellor: My Lords, I indicated my general position with regard to the matter on an earlier occasion. I have been trying to see how to bring the matter forward. In recent times there have been difficulties in the operation of this matter in the High Court. No doubt others can elaborate. There have been some questions as to what exactly, for the purpose of the original decision, solicitors' clerk is. There is no definition of clerk in the Bill.
I propose, therefore, to put out to the circuit judges, registrars, presiding judges and the senior presiding judge, a paper asking them to confirm whether that is the practice and whether there are any questions which arise in connection with it. It is my impression that that has generally been the practice on a case-by-case basis. In other words, solicitors' clerks do not understand that they have a right to be heard, but almost invariably when they attend they will be heard if the case is suitable for that purpose. I believe that I can advance the matter in that way.
If consultation shows there to be no difficulty I intend to put such a provision into the Bill as it goes through another place. It may be that the consultation will show that some elaboration of the clause is required to clarify what exactly is meant by "solicitors' clerk" in these circumstances. Discussion of the matter in the course of your Lordships' proceedings has brought this particular aspect to my attention. I hope that the noble Lord will feel that that is an appropriate way forward. I am grateful to him and to others who have taken part for advancing the matter.
Lord Hacking: My Lords, I am very grateful to the noble and learned Lord. I did not want to raise difficulties of definition of a solicitors' clerk and the practice in the High Court. However, since the noble and learned Lord has raised the matter, it is my view that that should also be looked at. On the basis of the very helpful response from the noble and learned Lord I am delighted to beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 26 [Rights to conduct litigation]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 10:
Page 22, line 32, leave out second ("the") and insert ("any").
The noble and learned Lord said: My Lords, as drafted Clause 26(4) includes the phrase "the right to conduct litigation". thereby implying that such a right is indivisible and that any person granted a
1680
right to conduct litigation is entitled to do so before all courts and proceedings. In fact, rights to conduct litigation may be limited to particular courts and proceedings and therefore should not be referred to as a single entity but as a variety of possible rights. The amendment seeks only to clarify that point. I beg to move.
On Question, amendment agreed to.
Clause 27 [Authorised bodies: designation and approval of regulations and rules]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 11:
Page 23, line 38, at end insert—
("(5) Where the Lord Chancellor or any of the designated judges considers that it might be appropriate for an authorised body to alter—

(a) any of its qualification regulations or rules of conduct; or

(b) any right of audience, or right to conduct litigation, which it is entitled to grant,

he may advise that body accordingly.
(6) Where—

(a) the Lord Chancellor gives any advice under subsection (5), he shall inform the designated judges; and

(b) where a designated judge gives any such advice, he shall inform the Lord Chancellor and the other designated judges.

(7) Where an authorised body has been given any such advice it shall, in the light of that advice, consider whether to make the recommended alteration.").
The noble and learned Lord said: My Lords, in speaking to Amendment No. 11 I should also like to deal with Amendments Nos. 12 and 42 to 62 inclusive.
I have tabled the amendments following the undertakings that I gave the Committee on 29th January to revise Clause 27 and Schedule 4. Your Lordships may remember that my noble and learned friend Lord Ackner tabled a number of amendments. He very conveniently summarised the main points to which he wished to give effect in that clause and that schedule. By reference to those points I was able to indicate a considerable measure of agreement with him. I undertook to bring forward amendments in due course to deal with those matters. As your Lordships see, the amendments are rather detailed and there are a number of them, but the ideas behind them are fairly simple.
Schedule 4 sets out the procedure which must be followed when a professional or other body applies to become authorised to grant either rights of audience or the right to conduct litigation, or to amend the codes of conduct and training regulations on the basis of which it grants such rights, or for the designation of such a body as an authorised body to be revoked.
The major changes to the existing clause and schedule that are introduced by the amendments are as follows. In Clause 27 there is a new mechanism for the designated judges and the Lord Chancellor to initiate the process of change by advising authorised bodies of changes they think should be made to qualification regulations, rules of conduct or the rights they are authorised to grant.
Your Lordships will notice that in Amendment No. 11 the Lord Chancellor or the designated judge consider that it "might" be appropriate. It is a

1681
provisional view that is being expressed. In a moment I shall call an amendment proposed by the noble Lord, Lord Mishcon. I do not wish to anticipate the argument on that amendment at the present stage except to emphasise that this is a provisional view.
In Schedule 4 I have provided that, first, the Lord Chancellor will send a copy of the application and its supporting documentation to the designated judges at the same time as he sends it to the advisory committee. Secondly, I have provided an opportunity for the authorised body whose application is under consideration to be given an opportunity to comment upon the advice the Lord Chancellor and the designated judges have received from the advisory committee and from the Director General of Fair Trading. Thirdly, I have provided for the designated judges to be provided with any representations the applicant body has then made, and, finally, that each designated judge and the Lord Chancellor shall give their reasons whatever their decision.
Those are the main points which my noble and learned friend Lord Ackner raised. I believe that we have properly given effect to them.
There is a related but separate matter which arises in the Marshalled List. My noble and learned friend Lord Ackner and my noble friend Lord Renton have tabled Amendment No. 63 which deals with the situation in which there may be a question of revocation. In that situation a role for the designated judges is expressly provided in their amendment. It will be just as well if I say now that when we come to that matter I shall invite your Lordships to accept the amendment.
I beg to move Amendment No. 11.
6 p.m.
Lord Mishcon Lord Mishcon moved, as an amendment to Amendment No. 11, Amendment No. 12:
Line 15, at end insert:
("() Where there is disagreement between the Lord Chancellor and the designated judges or between the designated judges over alterations on the matters covered by subsection (5), the authorised body shall be informed.").
The noble Lord said: My Lords, perhaps I may assure the House that the amendment that I put down yesterday afternoon, literally a matter of minutes after I read the amendment suggested by the noble and learned Lord, who was courteous enough to write to me with a copy of his suggested amendment, is intended to be helpful. The intention is to give the initiative to any one of the designated judges or the Lord Chancellor to advise the authorised body that the designated judge concerned or the Lord Chancellor considers that it might be appropriate for the authorised body to alter any of its qualification regulations, rules of conduct, any right of audience or right to conduct litigation which it is entitled to grant. Those are matters which go to the very root of what the authorised body is supposed to do itself and to the root of a very important set of provisions in the Bill.
It is not our job as legislators to take it for granted when we put down strict regulations in an Act of
1682
Parliament that everything will always be reasonable and that everything that ought to be done by designated judges or the Lord Chancellor will necessarily take place. Obviously, I assume that in each and every case, before a designated judge or the Lord Chancellor sends such a missive, as I assume it would be, to the authorised body, there would be proper consultation which would represent a unanimous and certainly a majority view, before it reaches the authorised body.
However, under subsection (7), the authorised body is told that, when it receives such advice, it must in the light of that advice consider whether to make the recommended alteration. Dealing with this matter as a legislator, as I humbly do, I am faced with a problem. The designated judge—I choose a designated judge; I could have chosen the noble and learned Lord, but I find myself more confident when I turn to a designated judge rather than to face the Woolsack with this problem—suddenly thinks to himself one day that he would like an authorised body to make a radical alteration. With all his authority, he sends a note to the authorised body to that effect.
As soon as the other parties—the other designated judges and the Lord Chancellor—receive a copy of that note to the authorised body, they find themselves in violent disagreement with the suggestion. We set out a detailed procedure in the Bill. The poor authorised body is told under subsection (7) to consider whether to make the recommended alteration. Unless my amendment is inserted in the Bill, the authorised body will not necessarily have a note of the fact that every other designated judge and the Lord Chancellor do not think that that is a sensible alteration.
As soon as I saw the lacuna, if I may respectfully call it such, and purely in order to help, I tried to fill in the procedure in the Bill, which is a detailed procedure. Thus, if there were a case in which another designated judge—it need not be all of them—disagreed with the suggested amendment that the authorised body is called upon to make, the authorised body would be so informed. It would then know that it was also entitled to take that matter into consideration when considering whether to alter its rules in regard to those material matters in accordance with what the designated judge might have said.
I realise that I am called upon to face reality, but it is within the bounds of possibility that there might be an eccentric or difficult designated judge in the future who hates the whole idea of the authorised body being able to do what it does. My amendment merely provides a necessary procedural measure if we are to accept the procedural requirements contained in the noble and learned Lord's amendment. I beg to move.
Lord Donaldson of Lymington: My Lords, if I live long enough, I suppose that I shall be a designated judge. I might even be a designated judge of the kind that the noble Lord, Lord Mishcon, had in mind. However, I do not myself see the measure working in quite that way.

1683
I drew attention earlier to my worries that if I entered into any conversations with, for example, the president of the Law Society—as I habitually do under the Solicitors Act, not in accordance with the Act but in informal consultations before any decision is reached under that Act—the licensed ratcatchers' union, for instance, which would not have rights of audience, might think that it could judicially review me. It would say that I had departed from the strict terms of the dance laid down in the fourth schedule.
The great merit for me of Amendment No. 11 is that it makes it clear that I would be entitled formally, as would the other designated judges and the Lord Chancellor, to write to one of the professional bodies, putting forward a point of view for its consideration. If we are entitled to do that in writing, formally and under the Act, I regard myself as totally bombproof if, instead of doing that, when I meet the president of the Law Society I say to him, "Look, shouldn't we think about this?"; to which he replies, "I don't think very much of that, but I shall look into it. Come and have a drink with me tomorrow and we shall discuss it further". That is how it goes on in real life, although the drinks are not as frequent as my rather flippant comments might suggest. It is dealt with informally, pleasantly and on a well-informed basis.
Amendment No. 11 makes that all right. Amendment No. 12 begins to reintroduce the strictness of the quadrille into the informal part of the proceedings if it contemplates disagreement between the Lord Chancellor and the designated judges. Let us suppose that I have a hare-brained idea, as the solicitors' branch of the professon might think it. I have publicly advanced such an idea within the last few weeks. Surely, in practice, I would talk to the president and members of the Council of the Law Society, floating the idea. I would put it to them formally in writing for their consideration under this procedure only if I were jolly certain that I would be backed by at least the three other designated judges, and preferably by my noble and learned friend the Lord Chancellor, to the extent of saying that this matter deserved consideration. I would go no further at that stage.
I do not think that that is likely to happen. Perhaps I am being touchy about it. It is purely a cosmetic point and perhaps no weight should be attached to it. I do not like a statute which openly contemplates disagreement between the noble and learned Lord the Lord Chancellor and the designated judges. If that happens, it happens, but I certainly do not believe that it is necessary to contemplate it in this form. With the greatest respect and reluctance, in view of the identity of the mover of the amendment, I am opposed to it.
Lord Renton: My Lords, if we are to use the language of the ballroom, I should like to say that, on his amendments to Schedule 4, my noble and learned friend has been a real dashing white sergeant. I should like to thank him for the attention that he has given to the matter.
Lord Ackner: My Lords, I simply wish to add my thanks, particularly in view of the noble and learned Lord having indicated in advance that Amendment No. 62 will complete that part of the picture.
The Lord Chancellor: My Lords, I appreciate the desire of the noble Lord, Lord Mishcon, to make this measure procedurally complete, but it is important, as I have sought to explain, to notice the provisional nature of the view provided for in the clause. The difficulty which my noble and learned friend the Master of the Rolls and others, including myself, raised was that the formal procedure which would require to be gone through might be damaged by the informal consultation which preceded it. We have had no such difficulty in relation to, for example, the rules of the Law Society where informal consultation goes on a good deal. But it is at least possible that some of these procedures may be a little more contentious than those which so far have taken place in relation to the Law Society, although there have been some problems in that area.
This is an attempt to make it possible to put forward a provisional view. It is important that the ultimate decision of the Lord Chancellor and the designated judges on a matter such as this is to be taken in the light of the advisory committee's report. It would therefore be quite wrong for any one of the five to form a concluded view before the advisory committee considered the matter. That is the reason for the provisional nature of this proposal.
The question of disagreement is, apart from anything else, one which I do not wish particularly to contemplate. I certainly hope that it will not happen. But at this early stage of the matter, for my part if one of the designated judges were to feel strongly that a particular change should be made, I might well say to myself: "I am not sure. In the way I have had to deal with some of the amendments before your Lordships, I am very willing to consider it further. But I am not going to decide yet. It is too early. I can see that it has some substance—otherwise one of my brethren would not have put it forward—but it may be that on looking at it the professional body may or may not think it is a good idea. I should prefer to hear their views before I take a view of my own on it".
Therefore I think that the disagreement contemplated is too firm a situation for that stage of the proceedings. Having raised the point, the noble Lord, Lord Mishcon, will, I hope, feel able not to press the amendment on the footing that this is intended to open the way for advice to be given informally to the bodies and before a full and final decision is taken in the light of the advice of the advisory committee when it is only after receiving that advice that it would be proper to take a final decision.
6.15 p.m.
Lord Mishcon: My Lords, at the outset I said that my endeavour was to be helpful. It is still my endeavour. If the House does not see that in my reply I have put forward cogent reasons for disagreeing with what the noble and learned Lords the Lord Chancellor and the Master of the Rolls

1685
said, then I shall bow to what seems to be the atmosphere of the House and certainly not press the amendment to a vote.
However, I must confess that I am astonished at the reply. First of all, I say with the utmost deference that when provisions are put in a Bill it is not done on the basis of a chatty atmosphere in your Lordships' House about how informal proceedings might and do take place between the Master of the Rolls and the president of the Law Society now in 1990. As I understand it, when provisions are embodied in a Bill and a procedure is set out it is done on the basis that such procedure stands up according to the wording of the statute whoever the individuals might be and whatever the circumstances. That is my first point.
Secondly I am told that, "Oh no. This is just to justify an informal procedure which might and does take place. That is all that is intended and that will safeguard people who indulge in that informal procedure". If that is the atmosphere in which we are asked to consider this clause, why include subsection (7) and put a duty upon the authorised body to deal in a certain way with that informal approach? The subsection says;
"Where an authorised body has been given any such advice it shall, in the light of that advice, consider whether to make the recommended alteration".
There is no informality there. There are no preparatory suggestions and no question of waiting for the advisory committee, so do not do a thing about it. It has to consider under subsection (7) when that missive, as I call it, has been received, whether to make that recommended alteration. If all this is informal, why put in subsection (7)? From the noble and learned Lord the Master of the Rolls, who always shows great reasonableness in his dealings with any of his colleagues, I am faced with his observation: "Please do not ever envisage a situation in which any one of the designated judges is going to differ from the noble and learned Lord the Lord Chancellor". All noble Lords have been sometimes entranced, sometimes amazed, sometimes frightened, sometimes apprehensive about the very differences which have appeared between the designated judges and the noble and learned Lord the Lord Chancellor at Second Reading and at nearly every stage of this Bill. Then I am told, "Please, do not by any amendment envisage any such thing happening because it would be absolutely unheard of". I conclude my observations on that particular aspect of the matter.
The last point made against me arises from the noble and learned Lord the Lord Chancellor saying, "This is intended to cover the situation that has been outlined. What is to happen, for example, if I, the Lord Chancellor, decide that I cannot make a decision at this juncture? I should like to hear what is being said before I make a decision which can be communicated to the authorised body". How right he is. However, my amendment does not deal with someone who has not made up his mind but with someone who has made up his mind. The amendment reads:
"Where there is disagreement between the Lord Chancellor and the designated judges or between the designated judges over alterations to the matters covered by subsection (5)".
1686
It is only where there is active disagreement that the authorised body ought to know the decision before it is ordered by subsection (7) to consider that missive and decide in the light of it whether to make the recommended alteration. If I may say so with deep respect, I should have thought that the noble and learned Lord, having realised that this was a statute, would have accepted this amendment which tidies up the procedure. However I am in his hands. If he says, "No, I have heard all the arguments and I see no point at all in the alteration", because I am endeavouring to be helpful I shall not press the matter. However, in view of the courtesy with which the noble and learned Lord has listened to my reply, I invite him to consider whether this amendment is necessary.
The Lord Chancellor: My Lords, with the leave of the House, I do not think that this amendment is necessary. I have listened carefully to the noble Lord and accept what he says as a very cogent argument. But the essence of the matter is that these subsections are intended as provisions to enable the Lord Chancellor or the designated judges to convey provisional views to the authorised body.
If the matter is to be judged under the arrangements that we have made, no change will be effective unless first of all it is advised upon by the advisory committee and then the designated judges and the Lord Chancellor make up their minds at that stage. That is the ultimate decision which is important. It is a provisional view. The idea of subsection (7) is to reflect what my noble and learned friend Lord Ackner had in his amendment, which was very like the idea that applies to the advisory committee's advice. We have altered it slightly to make clear that this is a provisional view.
Accordingly, the answer would be that if the Lord Chancellor or the other designated judges felt that they agreed with the advice, they might well say so. It might be otherwise if they did not agree or had not made up their minds. I believe that it is right to leave it free.
I know that I have not persuaded the noble Lord but I believe that he kindly said he would leave it to me. He has been extremely helpful as always but on this occasion I feel that it might be even more helpful for him not to press the amendment.
Lord Mishcon: My Lords, I meant what I said. I ask leave to withdraw the amendment.
Amendment to the amendment, by leave, withdrawn.
On Question, Amendment No. 11 agreed to.
Lord Mishcon Lord Mishcon moved Amendment No. 13:
After Clause 30, insert the following new clause:
("Right of person receiving legal aid to select solicitor and counsel.
The provisions of sections 25 to 29 of this Act shall not affect the right of a person receiving legal aid in the Crown Court under Part V of the Legal Aid Act 1988 to select his solicitor (or other authorised litigator) and counsel (or other authorised advocate) to act for him, and regulations made under that Act shall not provide that representation in the Crown Court shall be by solicitor only,").
The noble Lord said: My Lords, it may be remembered that at both Committee and Report stages of the Bill many of us were anxious—and the noble and learned Lord the Lord Chancellor listened to us with great attention—that in giving rights of audience where they did not exist before the provisions in the Bill could not be used in legal aid letters so that the right of choice of the litigant in question, or the defendant in criminal proceedings, would be removed. In other words the Legal Aid Board would not be able to say, "We know of a firm of solicitors who would do this rather more reasonably. You are to go to that solicitor"; or, "We say to you that a solicitor should be your advocate on this occasion. After all, he is preparing the case. We do not think that you ought to have counsel. You have that solicitor". That issue was listened to with much understanding by the noble and learned Lord.
When I moved a rather wider amendment at Report stage the noble and learned Lord the Lord Chancellor stated in this House on 1st March, reported in Hansard at col. 948:
"However, as at present, where counsel is to be instructed in circumstances where solicitors might have rights of audience, the question of cost and the appropriateness of the case should be considered.
The precise relationships between the legal aid provisions and the provisions of the Bill need to be worked out in some detail. I am doing my best to provide a series of amendments to deal with that matter. I believe that that will be part of the consideration of the Bill in another place. The general principle that I have in mind is that the legal aid scheme should provide advice and assistance in the presentation of a case which is appropriate for that case in the light of the client's requirements, enabling the client to make full use of whatever provisions may be available to him under the Bill".
In the light of what the noble and learned Lord said, on that occasion I withdrew my wider amendment. But I believe that your Lordships will be with me—I hope the noble and learned Lord also will be with me in saying that this Bill ought not to leave this House in regard to criminal cases without such protection written in the Bill; namely, the right of a defendant in the Crown Court to decide that, instead of a solicitor who has the right of advocacy in the Crown Court, he wishes to have counsel, and his right also to go to the solicitor of his choice provided that that solicitor is prepared to undertake criminal legal aid work.
I hope that the noble and learned Lord will agree with me that whatever may be the situation in civil cases, it is important that in our House we do not allow the Bill to go to another place without our having put such provision in it. I therefore ask for the following clause to be put in the Bill:
"The provisions of Sections 25 to 29 of this Act shall not affect the right of a person receiving legal aid in the Crown Court under Part V of the Legal Aid Act 1988 to select his solicitor (or other authorised litigator) and counsel (or other authorised advocate) to act for him, and regulations made under that Act shall not provide that representation in the Crown Court shall be by solicitor only".
I beg to move.
Lord Renton: My Lords, I wish briefly to support the amendment for the reasons given by the noble Lord, Lord Mishcon.
Lord Hutchinson of Lullington: My Lords, I should like strongly to support the amendment. The noble and learned Lord may remember that on two previous occasions I expressed great fear about the powers under the Legal Aid Act in some way limiting the right of an accused person in the Crown Court to do exactly what the noble Lord, Lord Mishcon, has been referring to. The amendment sets out exactly the protection to which I have referred on two previous occasions. I therefore strongly support it.
The Lord Chancellor: My Lords, the amendment raises quite important questions about choice. The authority for legal aid with regard to the Crown Court is of course the Crown Court itself under the existing arrangements. One aspect of that has been of quite considerable concern and has resulted in regulations made after considerable consultation with the senior judiciary which affect the choice of counsel by clients. The court has a right to say what is to happen with regard to the number of counsel, and so on.
I am not quite clear whether the noble Lord, Lord Mishcon, in moving the amendment is seeking in any way to innovate upon that position. For example, where there is more than one defendant the court has power to pick the team that is to represent those defendants if there is no conflict of interest. It also has power under regulations more recently made to say, for example, that the accused may be represented by a senior and junior counsel rather than just by two counsel, thus elminating his opportunity to have two junior counsel if he wants them.
These are quite important matters. The regulations made by the Lord Chancellor arise under the Legal Aid Act 1988. The decisions of course do not affect that.
Lord Mishcon: My Lords, I rise, asking the noble and learned Lord for the courtesy of allowing me to intervene only because I wish to help. I thought that it might shorten the discussion.
The amendment specifically provides that the provisions of this Act have not to affect the rights of a person under Part V of the Legal Aid Act 1988. Therefore there can be no question of altering those rights in any way if the amendment is agreed to.
The Lord Chancellor: My Lords, the next question arises on the second part of this provision:
"regulations made under that Act shall not provide that representation in the Crown Court shall be by solicitor only".
I am not clear whether it is intended that there should be no regulation which would make that a general provision, or whether there is in mind completely excluding the court's power to say that in a particular case the appropriate representation would be by a solicitor.
6.30 p.m.
Lord Mishcon: My Lords, I thank the noble and learned Lord for giving way but my intervention is intended to save time. I do not claim the privilege

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of authorship because the amendment was drafted by the Law Society. It specifically provides that the general regulations shall not provide that representation shall be by solicitor only. In each individual case the provisions of the regulations and the Legal Aid Act 1988 will govern the situation.
The Lord Chancellor: My Lords, that is extremely helpful as regards intention. However, the advice I received was not so specific. The amendment specifies "regulations" but not "general regulations". As drafted it may give rise to a situation in which it is impossible to make a provision that in an appropriate case—the noble Lord shakes his head which is always a good sign. If in the last part of the amendment the noble Lord's aim is the kind of scenario attributed to me by the noble Lord, Lord Hutchinson—that I wished to drive counsel out of the Crown Court—that is not my intention. On the other hand, I do not wish to preclude the situation where it may be wise to restrict representation to a solicitor if that is the appropriate level for the particular case, That authority should be with the court.
Lord Mishcon: My Lords, the noble and learned Lord continues to be courteous and we are trying to help each other and the House. I should not have used the word "regulations" if I had meant that. It would be a ruling; it would be a decision. I am talking about regulations. If the noble and learned Lord would agree to accept the amendment subject to the addition of the words "regulations of a general nature made under that Act" I should be most happy.
The Lord Chancellor: My Lords, I am in a certain difficulty. If the intention of the amendment is that in particular cases the regulations may give authority to the court to provide that the representation is by solicitor only, that does not appear to damage what I have in mind. However, I have in mind the possibility that in particular cases the court can decide on the level of representation. I am prepared to agree providing that it is clear that the legal aid machinery can allow for particular cases to be restricted to solicitor only, if that is the appropriate level, but that further elaboration may be required to make that intention effective.
Lord Mishcon: My Lords, I agree entirely with everything that the noble and learned Lord has said. I am grateful to him for accepting the amendment on those terms.
On Question, amendment agreed to.
Clause 33 [Functions of the Board and financial provisions]:
Lord Mishcon Lord Mishcon moved Amendment No. 14:
Page 28, line 3, after ("develop") insert ("and maintain fair").
The noble Lord said: My Lords, the object of the amendment is to make clear that the competition which the Authorised Conveyancing Practitioners Board will be required to develop must be fair competition. The House will appreciate that there is a distinction between competition and fair
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competition. There are many types of competition which your Lordships would not countenance for one moment. They may exist in the market place among traders but should not exist between professional people carrying out responsible work. From time to time we have stated that an essential part of the citizen's life is often involved in the purchase or sale of a house.
In their Green Paper entitled Conveyancing by Authorised Practitioners, and in their White Paper entitled Legal Services: A Framework for the Future, the Government have recognised that it is essential to establish fair competition if authorised practitioners are to be permitted to provide conveyancing services.
I wish to emphasise two considerations in regard to the amendment. First, the interests of clients can be properly protected only if there is a genuinely free market in which the purchaser has a wholly unconstrained choice between an authorised practitioner and an independent conveyancer. Secondly, if large financial institutions which have massive resources are permitted to provide conveyancing services below their true costs—in other words, to loss lead in conveyancing—they could destroy the competition from independent conveyancers. Without doubt that will lead to a reduction in the network of solicitors' firms and thus make it more difficult for the public to obtain legal advice generally.
In the light of that I moved an amendment on Report. The amendment was designed to ensure that the Lord Chancellor's regulation-making powers under what is now Clause 38 of the Bill are sufficiently broad for the Lord Chancellor's regulations to secure that authorised practitioners do not engage in unfair competition by settling their prices for the provision of conveyancing services at a level that fails to provide a reasonable rate of return on the costs of providing those services.
In responding to that amendment the noble and learned Lord the Lord Chancellor said:
"I would not wish to restrict the unfair competition aspect to the one that the noble Lord has suggested. That is one aspect, but there could be other aspects of unfair competition which might require to be dealt with".
I omit some words which do not matter. He continued:
"There are other aspects of unfair competition, apart from this one, which I would wish to have in my sights in case they should develop. The precise way in which this aspect of unfair competition should be dealt with is a matter of some judgment".—[Official Report, 22/2/90; col. 472.]
The noble and learned Lord went on to point out that the board has a duty to promote competition. He said that he would give consideration to inserting the word "fair" before the word "competition" in Clause 33(1). It would mean that the board would be under a duty to seek to develop fair competition in the provision of conveyancing services.
The noble and learned Lord has tabled a welcome amendment to Clause 38. It will make clear that the regulations for which he will be responsible may include regulations made with a view to securing that in providing conveyancing services, and in

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particular in fixing their charges, authorised practitioners:
"act in a manner which is consistent with the maintenance of fair competition between authorised practitioners and others providing conveyancing services".
The Law Society fully supports that amendment. However, the purpose of my amendment is to produce consistency between the noble and learned Lord's proposed amendment to Clause 38 and Clause 33(1)(a).
As presently drafted, Clause 33(1)(a) requires the board to seek to develop competition in the provision of conveyancing services and does not mention the words "fair competition". The purpose of this amendment is to make it clear that the competition which is to be developed by the board is fair competition. The amendment would also make it clear that once the board had developed fair competition, it was also under a duty to maintain that competition. I beg to move.
Lord Renton: My Lords, I wish to support this amendment for the reasons given by the noble Lord. I simply add that it would be a very strange position if the Lord Chancellor, making regulations under Clause 38, were obliged to maintain "fair competition" but the board, doing its general duty under Clause 33, were merely required to maintain competition.
I do not need to remind your Lordships that when different expressions are used in the same statute, they must be given the different meanings which the context requires.
Lord Boardman: My Lords, I also support this amendment. In defining the general duty of the board, it should be made clear—and I am sure that my noble and learned friend wishes it—that it should be fair competition, and that that will not only be developed but also maintained. As the noble Lord, Lord Mishcon, said, competition can take many forms and some of those can be very unfair. Against the weight of some of the large financial institutions here, I believe that it is important that the board should have a general duty to develop and maintain fair competition. I support the amendment.
6.45 p.m.
The Lord Chancellor: My Lords, the noble Lord, Lord Mishcon, has referred to Amendment No. 21 which I am moving and which I brought forward as a result of consideration of the Amendment No. 155 of the noble Lord, Lord Mishcon, which he moved on Report.
My amendment, if accepted by this House, will make it quite clear that the Lord Chancellor is empowered to make regulations with a view to securing that authorised practitioners, when providing conveyancing services, and in particular when fixing their charges, act in a manner which is consistent with the maintenance of fair competition between themselves and others.
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I do not believe that it is necessary to put that into this clause for a reason which I shall explain. I mentioned on Report that that was a possible way of dealing with the matter but I have had a chance to consider it further. Perhaps I may explain what I mean.
It seems to me that if we accept this amendment we would be imposing a duty on the board which it could not fulfil; namely, to consider what is "fair" not only between one authorised practitioner and another, but to go further and consider what is fair as between authorised practitioners and other participants in the domestic property market. The board however has no mandate to control those others and no way of investigating their activities, such as how they fix their prices or whether they cross-subsidise any of their other activities.
The Lord Chancellor however, unlike the board, is in a position to take a global view on that matter. It is right that the Lord Chancellor should have the responsibility of judging this matter and making the necessary arrangements. When the regulations are made, the board is bound to abide by them. Therefore, the purpose of the board is to be responsible for the conduct, in effect, of the authorised practitioners. However, the terms on which they can operate is a matter which should be fixed by someone who has responsibility for the whole area of the law. Therefore, the appropriate way to achieve the balance between authorised practitioners and solicitors and licensed conveyancers is for the Lord Chancellor to make appropriate regulations on conduct and competence, including those designed to secure the maintenance of fair competition. Therefore, that is now made absolutely plain in the heading of the regulations. The board is under a specific duty to make arrangements to enforce those regulations by virtue of Clause 33(2).
Therefore, I am really saying to your Lordships that the judgment of what is to be permitted in order to ensure fair competition is a judgment which should be made by the person having responsibility for the regulations. It should not be open to the board to say, "Well, we do not think that it is necessary in the interests of fair competition. We want something else". These regulations are the framework under which they must operate. In the light of our discussions on Report, I have considered this further. My amendment to Clause 38 achieves what is required, this amendment is not necessary and might be unhelpful for the reasons which I have mentioned.
The board's duty is to enforce the regulations which the Lord Chancellor makes. The Lord Chancellor has the responsibility of making sure that those regulations properly cope with questions of unfair competition. I hope that in the light of that explanation the noble Lord will feel able to withdraw his amendment.
Lord Mishcon: My Lords, I am most grateful to the noble and learned Lord for the explanation. I know that he will bear with me for a moment if I tell him that I am left in some doubt as to whether

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the explanation is complete. It is most likely my fault if I think it is incomplete.
As I understand the noble and learned Lord, he is saying that it would be wrong to put responsibilities on to the board regarding competition other than in connection with those persons for whom the board is responsible. The persons for whom the board is responsible are authorised practitioners.
If I may say so, I do not see the point at all. If the Lord Chancellor is in charge of competition generally and whether or not it is fair, and has therefore put the word "fair" before "competition" in the other clause by virtue of Amendment No. 21, I do not see why there is any necessity in those circumstances for Clause 33(1)(a) to be there at all. However, at present and without limitation Clause 33(1)(a) provides that:
"It shall be the general duty of the Board, subject to the provisions of this Part—
(a) to seek to develop competition in the provision of conveyancing services".
There is no limitation that that is to be only among authorised practitioners. That is a general duty.
All that I have asked for—and I am sure that the board or the noble and learned Lord would not want any other duty—is to see to it that in seeking to develop competition (and I say to maintain it) it should be fair competition. Rhetorically I ask myself, the House and the noble and learned Lord, what harm there is in saying that if the board has a duty to develop competition because it is given that under the Bill, that it should be fair competition? Perhaps the noble and learned Lord would care to reconsider the matter and agree to the amendment.
The Lord Chancellor: My Lords, with the leave of the House, this is quite important because if I have understood it, the amendment of the noble Lord may not be helpful in promoting the object which he has in mind. It is the regulations which should say what is required in order to control the competition. To make sure that the competition is fair is not an open question. The decision on what is fair competition must be made under the regulations. Clause 33(2)—and we are talking about the earlier duty—states:
"In discharging the duty imposed on it by subsection (1)(b) the Board shall, in particular, make arrangements designed to enable it to ascertain whether authorised practitioners are complying with regulations made by the Lord Chancellor under section 38".
In other words, the authorised practitioner's conduct is regulated in order to get fair competition by the regulations which are made. Those regulations now make it perfectly plain that one of the aims of that regulation-making power is to achieve that object.
Lord Mishcon: My Lords, I must not continue this discussion, however interesting and illuminating it may be to the noble and learned Lord the Lord Chancellor and me. I do not wish to bore other Members of this distinguished House, but I wonder whether, in those circumstances, there is any necessity for Clause 33(1)(a) at all. Why impose upon the board the duty to seek to develop competition in the provision of conveyancing services?
I must not continue this discourse, however much I am enjoying it. In those circumstances, if the noble
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and learned Lord, on looking again at Clause 33(1)(a) and the duty imposed upon the board, still feels that it is hurtful to my cause for the word "fair" to be put in front of "competition", I accept his guidance. However, I should like to know that that is still his view.
The Lord Chancellor: My Lords, my view is that the question of who judges what is fair is best left with the Lord Chancellor under the regulations. To put another body in charge of that judgment might produce a difficult and contradictory situation.
Lord Mishcon: My Lords, I accept the guidance of the noble and learned Lord and ask leave to withdraw the amendment.
On Question, amendment, by leave, withdrawn.
Clause 34 [Provision of conveyancing services by authorised practitioners]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 15:
Page 29, line 10, at end insert—
("1A) In subsection (1)(b) and (c) "officer", "employee" and "member" mean respectively an officer, employee or member who (at the time of the act in question) satisfies, and is acting in accordance with, regulations under section 38,".
The noble and learned Lord said: My Lords, in Committee I agreed to further consider the amendment put forward by the noble Lord, Lord Evans of Claughton. I am sorry to say that he is not able to be with us. I know he has many important matters to deal with and it is perhaps more difficult for him to attend than for many others. I bring this amendment forward notwithstanding his absence.
The amendment provides that only those employees or officers of authorised practitioners who were qualified and supervised as prescribed by the regulations to be made by the Lord Chancellor under what is now Clause 38 could prepare conveyancing documents without breaching Section 22 of the Solicitors Act 1974. This amendment is the result of that consideration. It provides that employees, officers or members of authorised practitioners will be exempt from the provisions of Section 22 only while they satisfy, and act in accordance with, the regulations as to conduct and competence (which may include the requirement for supervision) which the Lord Chancellor may make. The amendment will have the effect of encouraging compliance with the relevant regulations so far as they affect employees, since not complying would put them in breach of Section 22. I beg to move.
Lord Hooson: My Lords, I am not authorised to speak for the noble Lord, Lord Evans of Claughton, but I know that he would wish me to say on his behalf that I am extremely obliged to the noble and learned Lord the Lord Chancellor for giving this matter consideration and for bringing forward this amendment.
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No. 16:
Page 29, line 11, leave out from ("rule") to ("a") in line 12 and insert ("(however described) which is imposed by a professional or other body and which would, but for this subsection, result in restricting or preventing").
The noble and learned Lord said: My Lords, if this amendment is agreed to, I cannot move Amendment No. 17. With Amendment No. 16, I should like to speak to Amendment No. 18. They raise the question of Amendment No. 17, tabled by the noble Lord, Lord Renton and also deal with an amendment tabled by my noble friend Lord Coleraine.
I promised to reconsider this clause in Committee and on Report. It is worth re-stating the aim behind subsection (2)(c). I wished on the one hand to make it clear that no professional body can make a rule which would prevent one of their members from being an agent for an authorised practitioner. I had no intention, however, that the professional body could not control the way in which those services were provided. In other words, I wish to allow rules concerned with general conduct and competence to stand and be relied upon.
The amendments moved clarify this distinction by amending subsection (2) at its beginning and end. The amendments both clarify the type of rule that it is envisaged will be affected by this clause and remove the previous absolute nullification achieved by the phrase "… shall be of no effect", by qualifying it in the new subsection (2A).
Let me explain subsection (2A). The general premise in subsection (2) is that a rule, whose main or only result is to restrict or prevent a qualified person acting as or for an authorised practitioner, will not stand. In subsection (2A)(a), if this result is not the main or only result, the rule will stand except to the extent that the rule does restrict the potential authorised practitioner or its employee or agent from acting as such. In other words, the rule will be nullified only in so far as it extends to the provision of conveyancing services by qualified persons, wishing to be, or be employed by, or by agents of, authorised practitioners.
That is the first part, to restrict it to the provision of conveyancing. To deal with the question raised by my noble friend Lord Renton, I approached it from the other point of view. In order to ensure that general conduct and practice rules are preserved, however, subsection (2A)(b) allows a rule to stand so long as its main or only effect is not to restrict or prevent the individual from acting in the capacities laid down in subsection (2) and, as the amendment states,
"… the rule is reasonably required as a rule of general application for the purpose of regulating the conduct or practice of all members of that body".
It must be for the courts to decide into which category a particular rule will fall, if the question arises. But it seems to me, for example, that the Bar's rule with regard to indirect access is of that kind. The purpose is to deal with it in relation to the amendment.
The new subsection (2B) specifically addresses the amendment put down by the noble Lords, Lord Mishcon, Lord Prys-Davies and Lord Irvine of Lairg on Report. I promised to give the principle
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favourable consideration and I hope that noble Lords believe that I have done exactly that. The new subsection should ensure that any professional body can make rules which allow independent legal or financial advice to be given by one of its members while acting as the agent of an authorised practitioner. The new subsection (2B) therefore clarifies the scope of the clause in this important respect.
At the moment I am moving only Amendment No. 16. Amendments Nos. 16 and 18 are inextricably together in their principle and I sought to explain the scope of both. I beg to move.
Lord Renton: My Lords, I thank my noble and learned friend for meeting the simple point that I made in so far as I understand that he has met it. However, I feel obliged to say that he does it by the most unbelievably complicated piece of drafting. I most earnestly hope that when the Bill reaches another place he will have the whole of subsection (2) looked at with a view to eliminating some of the double negatives and reduce some of the occasions on which the words "only" and "unless" occur. It is not the happiest way to draft legislation.
Having said that, and in the hope that simplicity will eventually prevail, I thank my noble and learned friend. I perfectly understand how it is that my Amendment No. 17 has been pre-empted by his Amendment No. 16.
Lord Mishcon: My Lords, may I at once rise and say that, subject to one matter—which I believe the noble and learned Lord will understand—these amendments are welcomed. In subsection (2B) they mirror an amendment that I was privileged to table with my colleagues at Report stage. The present amendment is one that is very much appreciated. As I say, I know the noble and learned Lord the Lord Chancellor will understand that the only proviso that I make is that professional bodies, including the Law Society, are not very happy when they find in a statute some disturbance with their rule-making powers. They make that observation in general terms and would devoutly have wished that subsection (2) had been removed from the Bill. Subject to that comment the amendments are most welcome and we are grateful to the noble and learned Lord.
7 p.m.
Lord Coleraine: My Lords, perhaps I may say at this point that I do not propose to speak to my Amendment No. 19 to Amendment No. 18 until my noble and learned friend moves that amendment. Certainly Amendments Nos. 16 and 18 go together but they are separate on the grouping list. The profusion of double negatives to which my noble friend Lord Renton referred suggests to me that it would not be convenient to debate my Amendment No. 19 at this point.
The Lord Chancellor: My Lords, I am grateful for the reception given to Amendment No. 16 and, in an advance way, Amendment No. 18. These amendments have not been put forward without a great deal of thought. The amendment of the noble

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Lord, Lord Renton, has the merit of simplicity in giving special treatment to the General Council of the Bar. However, I must seek to reach a principle which will apply generally, not just to the Bar, because it is possible that in the future another professional body could seek rights of audience and the same kind of referral rules as the Bar. Therefore, it is right that I should seek to obtain a general principle which applies without needing specific reference to the General Council of the Bar. That is the explanation. Simplicity can sometimes be obtained at too great a price.
In regard to the point made by the noble Lord, Lord Mishcon, it is necessary to make just sufficient innovation in the rule-making powers to preserve the statutory scheme and the possible statutory scheme that we have in mind. I believe that we have done so in the most modest way possible consistent with achieving that aim. I am therefore particularly delighted that we have been able to insert the amendment which mirrors so closely the amendment put forward on Report by the noble Lord and his colleagues.
On Question, amendment agreed to.
[Amendment No. 17 not moved.]
The Lord Chancellor The Lord Chancellor moved Amendment No. 18:
Page 29, line 19, at end insert ("unless it is given partial effect by subsection (2A)(a) or full effect by subsection (2A)(b).
(2A) If the result mentioned in subsection (2) is not the main or only result of the rule in question, subsection (2)—

(a) shall apply only to the extent that the rule would have that result; but

(b) shall not apply if the rule is reasonably required as a rule of general application for the purpose of regulating the conduct or practice of all members of that body.

(2B) Nothing in this section prevents a professional or other body from imposing a rule that any member of that body who is acting as mentioned in subsection (2)(c) may do so only on terms which allow him to give independent legal or financial advice to the person for whom conveyancing services are being provided by the authorised practitioner concerned.").
The noble and learned Lord said: My Lords, I have already spoken to this amendment. I beg to move.
Lord Coleraine Lord Coleraine moved, as an amendment to Amendment No. 18, Amendment No. 19:
Line 12, after ("(2)") insert ("(b) or").
The noble Lord said: My Lords, I welcome Amendment No. 18, tabled by my noble and learned friend in response to the amendment moved on Report by the noble Lord, Lord Mishcon, which I and many other noble Lords supported. The noble Lord suggested that it was through arrangements with high street solicitors that authorised practitioners would, for the most part, seek to provide their conveyancing services.
His concern was that the public, directed by authorised practitioners to go to these agency solicitors, might find that the solicitors failed to give the financial advice which may not always be required of a solicitor by the buyer or seller of a house but which on occasion, as I am sure we all know, turns out to be vital in the interests of the client in the conveyancing transaction. That failure would result, as the noble Lord pointed out, if there
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were some form of restrictive agreement between the authorised practitioner and the agency solicitor which did not allow the solicitor to give financial advice. It was to ensure that that undesirable state of affairs did not materialise that the noble Lord sought, by his amendment, to allow the Law Society to make rules which would in effect provide that agency solicitors should not act for authorised practitioners on terms which would restrict or prevent the solicitor from giving independent financial advice to his clients. My noble and learned friend accepted the sense of that amendment and we now have Amendment No. 18 before us.
My noble and learned friend said that the amendment was in accordance with his own ideas but my amendment would extend my noble and learned friend's amendment to cover also solicitors employed by authorised practitioners. The original amendment, which relates only to solicitors working for authorised practitioners on an agency basis and not to solicitors employed by authorised practitioners, will leave the client in a vulnerable position when he is dealing with a solicitor who is employed by the authorised practitioner. Not only that, the position will be extremely confusing to the client.
There are a number of ways in which solicitors now practise in close proximity to building societies, for example. An independent firm of solicitors may practise at a distance from a building society office or in a separate office within the structure of the building society's building. In either case that firm may already be doing so much work for the building society as to be practically tied to it. After the Bill becomes law the office of a solicitor employed by an authorised practitioner may equally be at a distance from the institution, physically speaking, whereas the solicitor with an agency contract with an institution may open a branch office immediately next door to the institution in order better to further its connection.
From the point of view of the customer or client the distinction between the employed solicitor and the agency solicitor will often be extremely obscure. There is no rhyme or reason for the distinction between the employed solicitor and the agency solicitor. There is no logic in saying that the Law Society may have rules which allow the agency solicitor to give financial advice but not the employed solicitor.
I also refer to the matter of fiduciary relationships which will be brought before the House again in Amendment No. 20, tabled by my noble friend Lord Boardman. On Report my noble friend put the case that the provision of conveyancing services should involve a fiduciary relationship between the authorised practitioner and his client. My noble and learned friend thought that the level at which the fiduciary relationship ought to exist was as between a qualified person, the solicitor and the client. He said on 22nd February (Hansard, col. 467):
"As I see it, the essential point is that the person who is acting as the qualified person—namely, the solicitor or licensed conveyancer—should owe the proper professional duty to the client whether he is an employee or acting as an agent of a building society … The idea must be that the conveyancing work is done by a person who owes the client the proper professional duty, and that should rest on the professional person".
My noble and learned friend also said (col. 469):
"I believe that I can favourably consider bringing forward an amendment to make it clear that where the authorised practitioner is providing these services, the person who is responsible for the transaction at the professional level shall have the responsibility to the client in carrying out the transaction that a solicitor would have in relation to the ordinary practice".
My amendments would enable the Law Society to go some way, by its rules, to provide for what my noble and learned friend said is desirable.
It seems to me vitally important that the Law Society should be able to protect both the good name of the legal profession and the public interest by being expressly permitted to make the same rules for the qualified person who is an employed solicitor as it does for the qualified person who is an agency solicitor. A contractual arrangement with an employed solicitor which prohibits the giving of financial advice by the solicitor seems to be a noxious restrictive practice, debasing the legal profession. So is such an arrangement with an agency solicitor. In my submission, there is no reason why a client seeking conveyancing services should not have the same assurance—the assurance that the employed solicitor whom he meets in the course of transacting his business will be just as unfettered by such a restrictive practice as an agency solicitor. I beg to move.
The Lord Chancellor: My Lords, the amendment extends the operation of subsection (2B) to cover employed members of a professional body as well as members acting as agents of authorised practitioners. The amendment would take that subsection too far. I wish to ensure only—this was the scope of the amendment moved by the noble Lord, Lord Mishcon—that agents providing conveyancing services were not forced into agreements with their principals which would restrict their ability to provide independent advice. If the client wanted advice in addition to the conveyancing service, there should be nothing to prevent the independent solicitor from giving that advice.
A solicitor or other qualified person employed by an authorised practitioner owes a duty to his employer by virtue of his contract of employment. On that aspect, it would be unusual for a building society to employ someone to give advice which was independent with regard to that building society's financial services. It would be like asking a shop assistant selling one type of goods to give advice about a competitor's goods. If one goes to a solicitor for a particular service—conveyancing—one should be free to ask him about other matters in addition. It would be inconsistent with the regime of the provision of financial advice for a person who is employed full time in the service of a particular building society to give independent financial advice to people who go to that building society as between the insurance, mortgage and so forth provided by his employer and those provided by others.
I do not believe that the principle that the noble Lord, Lord Mishcon, was putting forward applies properly to employed solicitors. It applies only to those who are in independent practice. It prevents them from being fettered in that independent
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practice in giving independent advice. Those solicitors might be agents for any number of building societies. They might give conveyancing services for a whole range of building societies, whereas the employed solicitor will of course not be doing that. Although I understand the purpose for which the amendment is moved, it stretches the principle of my new amendment which, as the noble Lord, Lord Mishcon, said, mirrors his, too far. I hope that my noble friend will feel able to withdraw the amendment.
Lord Coleraine: My Lords, I find my noble and learned friend's answer arid. The principle that I am trying to establish with the amendment is that the client who is buying or selling a house should be able to consult the solicitor involved with the authorised practitioner, whether on an employed or agency basis, and receive proper professional advice.
By proper professional advice I mean that if the client wants to know whether the terms of a mortgage being offered to him are proper, he should be able to ask the solicitor dealing with the matter, and that solicitor should be able to say, "I have to tell you that these are in general the terms upon which mortgages are offered"; or he may say, "There is a provision in the mortgage agreement which says that if you redeem within five years of taking out the mortgage you must pay extra interest. That is usual in this type of mortgage where you have no proper security or where we are guaranteeing you a rate of interest for the five years".
My noble and learned friend may have misunderstood the amendment when he suggested that it might be inconsistent with the regime. There is no reason why a solicitor who is employed by a building society should not give the financial advice to his client which any other solicitor would give.
On many occasions we have had it pointed out to us that for years competitive forces have led building societies to employ or engage a borrower's solicitor, who is acting for him in buying a house, to act also for the building society which is granting the mortgage. That transaction may also involve the creation of a collateral charge over a life policy which the building society has arranged for the client to take out.
In replying to the amendment moved by the noble Lord, Lord Mishcon, on Report, my noble and learned friend said that there was no doubt that independent solicitors in private practice act for the purchaser and the person who provides the mortgage. That happens in a high percentage of cases, I believe, without detriment to anyone. Why should not the same highly convenient practice be continued where the solicitor is the employee of the authorised practitioner? The practice does not and would not restrict or prevent the employed solicitor from providing conveyancing services on behalf of the authorised practitioner. I do not for a moment see why it should be said to be outside the scope of the proposed regime. Nevertheless, that is, as my noble and learned friend has stated, widening in scope in some respects the amendment moved by

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the noble Lord, Lord Mishcon. In the absence of any support in the House, I beg leave to withdraw the amendment.
Amendment to the amendment, by leave, withdrawn.
On Question, Amendment No. 18 agreed to.
7.15 p.m.
Viscount Ullswater: My Lords, this may be a convenient time to break for dinner. I beg to move that proceedings after Third Reading be now adjourned. Perhaps I may suggest that the House does not return to this business before 20 minutes past eight.
Moved, that proceedings after Third Reading be now adjourned.—(Viscount Ullswater.)
Lord Simon of Glaisdale: My Lords, perhaps I may ask what the proposals are for the rest of the evening. I have to put the question in that way because great enthusiasm has not been shown for deferring to the wishes of noble Lords and the House. That was especially marked on the final day on Report when all parts of the House expressly desired that proceedings should be adjourned. If the noble Lord the Chief Whip or the noble Earl wish to intervene to say that an extra day will be given, I shall sit down right away; otherwise I must explain why I am asking the question.
On the last day on Report, as I said, the wish was expressed from all parts of the House that the proceedings should be adjourned for the day. That was at about 11 p.m. However, that wish was not agreed to. We had always the threat that the noble Lord the Chief Whip had his majority outside ready to vote down any Motion that the House do now adjourn. We have been discussing the Bill for nearly three-and-a-half hours. After we resume there will only be about two-and-a-quarter hours before 10.30 p.m., which is generally considered late to adjourn. After that the House is regarded as sitting late or, if it sits after midnight, very late. We have often had to sit very late on the Bill.
We have reached Amendment No. 19 out of 67 amendments. I do not want to exaggerate, as some of the later amendments have been spoken to and others have been glanced at, but there is no doubt that there is a substantial amount to be discussed if noble Lords are to carry out the function of this House which is to act as a revising and scrutinising Chamber. Your Lordships are not to be regarded merely as a legislative sausage-machine in which the government business managers insert a pig of a Bill at one end, there is a squeal about midnight, and then in the early hours of the morning something processed by way of minced meat and rat is produced.
The Third Reading of this Bill is bound to be substantial. Disraeli described Hartington's speech after the Berlin Conference as a string of congratulatory regrets. The Third Reading of this Bill will not be such. Certainly there will be congratulations to noble Lords who have contributed so much to our proceedings, notably my noble and learned friend on the Woolsack, but regret would be
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a very mild word to describe the feeling of so many noble Lords about what the Bill does and the way it has done it. I hope that the noble Lord the Leader of the House will tell us that there will be no attempt to move the Motion, That the Bill do now pass; that we can finish with the Third Reading this evening; and that another day will be given to the discussion of that Motion.
Lord Boyd-Carpenter: My Lords, before my noble friend replies, I think it would be helpful to many noble Lords if he could indicate how far it is intended to proceed tonight. This is a very important and, as your Lordships know, not uncontroversial Bill. There is a good deal to be said for, at any rate, the Motion, That the Bill do now pass, being discussed at a civilised daylight hour. I should have thought that it would be to the advantage of the Government if what I regard as the very powerful case for the Bill were deployed at an hour when many noble Lords could be here and also when its chances of being adequately reported were greater.
In any event, whether my noble friend accepts that view or not, it would be helpful to many noble Lords if he could now give an indication of what his intentions are for tonight.
Lord Harris of Greenwich: My Lords, I very much agree with the noble Lord, Lord Boyd-Carpenter. Perhaps I may remind the noble Lord, Lord Denham, of a precedent. It relates to when he and his colleagues were in opposition and I was in charge of the Criminal Law Bill for the Home Office. I remember his noble and learned friend Lord Hailsham, then leading for the Opposition, saying that it was quite intolerable for the House of Lords to sit after half-past nine at night if Law Lords were expected to be present. I remember the noble Lord, Lord Denham, warmly agreeing with that proposition.
In the light of my recollection of that event I hope that the noble Lord will adopt a positive view about the entirely serious suggestion made by the noble and learned Lord, Lord Simon of Glaisdale, and the noble Lord, Lord Boyd-Carpenter. It seems entirely reasonable that the Motion to which the noble Lord referred should be moved at a reasonable hour in the House early next week. Noble Lords who wish to express a view can then do so. It is quite wrong that the Motion, That the Bill do now pass, on a Bill of this importance, should be discussed late at night in a virtually deserted House.
Lord Mishcon: My Lords, in view of the hopes engendered in my noble friends by recent opinion polls, I think I ought not to say anything from this Front Bench.
Lord Hacking: My Lords, the noble Lord the Leader of the House knows that I have also expressed concern that noble Lords are not given sufficient opportunity at a reasonable hour to examine all the clauses in this complicated and important Bill. I have nothing further to add. I wish merely to support the request of the noble and learned Lord, Lord Simon of Glaisdale.
Lord Belstead: My Lords, I must apologise to your Lordships for not being in the Chamber when the noble and learned Lord, Lord Simon of Glaisdale, began speaking about this matter. I understand noble Lords' concern that this extremely important Bill should be debated sensibly and that there should not be, as it might be felt, pressure. I should like to remind the House, going back a long time now, that after we had the famous all day debate in March of last year, we added first one day and then two days, to the Committee stage. We had quite a generous ration for the Report stage and now we are taking the Third Reading of the Bill.
I was interested in the intervention of the noble Lord, Lord Mishcon. In the back of the noble Lord's mind, I think, is the accepted convention, certainly of this House and indeed of Parliament, that at the end of the day, as concerns time, the Government should get their business; but of course in a reasonable way and without being unreasonable to the House. I have one thing to say on that point. It is very, very, very rare indeed—I thought it never happened, but it has happened certainly once in recent memory—ever to take more than a day on Third Reading. The exception which I have been advised exists was the enormous Education Reform Bill—a measure more than twice as long as the Bill before us. Therefore I have to say to the House that I think it reasonable for the Government, having agreed this through the usual channels, to wish to finish the Third Reading of this important Bill in one day. And that is what we intend to do.
Lord Boyd-Carpenter: My Lords, before my noble friend sits down, he referred to finishing the Third Reading tonight. That indeed was my suggestion. He has not dealt with the point as to what should be arranged for the Motion, That the Bill do now pass, which, as he knows, is the normal final stage in which perhaps almost ceremonial speeches are made.
Lord Belstead: Yes, my Lords. My noble friend Lord Boyd-Carpenter is a stickler for the conventions and always remains if possible to the very end, usually making remarks which are very much appreciated. However, I have to make it clear, both in my capacity as Leader of the House and also as leader of my own party in this House, that what I intend is that the Bill should be passed today.
Lord Simon of Glaisdale: My Lords, before the noble Lord sits down, does he realise that he has been quite implacable about this, just as he was on the last day of Report stage? The noble Lord has always a velvet glove which is very acceptable and pleasant. However, on both occasions, he has shown nakedly the iron fist inside it.
Lord Belstead: Yes, my Lords. It is perfectly true that from time to time I have to be firm, but I hope always in the nicest possible way.
Lord Fitt: My Lords, has the Leader of the House noticed that many noble Lords do not seem to be too anxious about going for dinner? They have already taken a quarter of an hour from the time announced by the Whip. As an important debate on
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the prevention of terrorism is about to take place, I hope that a quarter of an hour will be added to the time available for that debate.
Viscount Ullswater: My Lords, perhaps I may suggest that we do not return to this business before half-past eight.
On Question, Motion agreed to.

Strathclyde Regional Council Order Comfirmation Bill
Brought from the Commons, read a first time, and (pursuant to the Private Legislation Procedure (Scotland) Act 1936), deemed to have been read a second time and reported from the Committee.

Prevention of Terrorism (Temporary Provisions) Act 1989 (Continuance) Order 1990
7.29 p.m.
The Minister of State, Home Office (Earl Ferrers)The Minister of State, Home Office (Earl Ferrers) rose to move, That the draft order laid before the House on 19th February be approved [11th Report from the Joint Committee].
The noble Earl said: My Lords, it is a year since the Prevention of Terrorism Act 1989 was given the Royal Assent on 15th March 1989. Most of the Act's provisions came into force a week later. The Government believe that, like its predecessors, the 1989 Act is a wholly exceptional measure, justified only by the continuing threat to the people of this country of Northern Irish and international terrorism. I hope to explain to your Lordships why, in the Government's view, it is essential that the Act should continue in force for another 12 months.
There will, I believe, be no doubt in any of your Lordships' minds about the seriousness of the terrorist threat both in Great Britain and in Northern Ireland. In 1989 we saw the first anniversary of the Lockerbie disaster in which 270 people were killed. We also saw the terrible explosion at Deal in which 11 soldiers were killed, the highest number of deaths in any Irish terrorist incident on the mainland since 1974. Sixty-two people were killed in Northern Ireland, including 23 members of the security forces. In Great Britain, a soldier and his wife were injured by a car bomb in Colchester last November, and it is only good fortune that prevented deaths or serious injuries when more recently bombs exploded in Leicester and Halifax. A corporal and his baby daughter were tragically murdered in West Germany. Those were terrible incidents. Our sympathies are with all those who suffered and we mourn for those who died.
But there have also been successes. International co-operation is now an important aspect of counter-terrorist investigations. The year 1989 saw arrests in France, in West Germany and in the United States of America. At home, there was the discovery of an arms cache, including 100 pounds of plastic explosive, on the Pembrokeshire coastal

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path; and the arrest of two men at the site of the cache just before Christmas. Those two men were subsequently charged with explosives offences. Obviously, I cannot comment further other than to say that the arrests marked the end of a sustained and determined police operation over a period of seven weeks in the most atrocious conditions. I am sure that your Lordships will wish to join me in thanking all the officers concerned in this as in so many other counter-terrorist operations.
In considering the Prevention of Terrorism Act we have the benefit of the report of my noble friend Lord Colville on its operation in 1989. I am glad to see that he is in his place in the Chamber tonight. This is my noble friend's fourth annual report on the legislation, and we are all grateful for the work which he does for us. The chief innovation of the 1989 Act is the fact that money and assets which will be used for terrorist purposes can now be seized or frozen. My noble friend rightly points out that it is too soon to evaluate these powers, which came into force on 1st September. But I am glad that the powers were supported on all sides of your Lordships' House.
Under the 1989 Act there were also new powers to assist in counter-terrorist investigations. These included the ability for the police to apply to a court for a production order. Production orders enable the police to have access to, for example, bank accounts which are believed to be used for terrorist purposes. I can tell your Lordships that since 1st September the police have successfully applied for a total of 48 of these production orders.
At the heart of the Prevention of Terrorism Act—and its most difficult and controversial feature—are the executive powers of exclusion and extended detention. I am glad to say that my noble friend makes no criticism of the way in which these powers were exercised in 1989. But it is not enough for me to assure the House that the powers are properly exercised. I must also persuade your Lordships that they are still needed, and I must do so in the knowledge that my noble friend, in his review of the 1984 Act, recommended that the exclusion power should be discontinued.
The purpose of the Act is to prevent terrorism, and it is always more difficult to show that something has been prevented than to show that something has occurred. It is particularly difficult to demonstrate that an exclusion order has prevented specific acts of terrorism. My noble friend Lord Jellicoe said in his review of the legislation in 1983 that the power had been used against individuals who there was a good reason to believe had come to Great Britain in order to set up an IRA active service unit or who were being used as carriers of information or arms. My noble friend Lord Colville, who I acknowledge is not in favour of the exclusion power, nevertheless agreed with the assessment of my noble friend Lord Jellicoe that it disrupts terrorist lines of communication and the supply of arms and explosives. We believe that these results are sufficient justification for the continuation in force of the power.
There have been some notable cases in which the use of extended detention has resulted in serious
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charges which are unlikely to have been brought had the police been obliged to rely on the powers of the ordinary criminal law. My noble friend Lord Colville cites in his 1987 review and in this year's report two examples in which Loyalist arms procurement operations were disrupted in Scotland as a result of investigations involving extended detention. Sixteen men received sentences of up to 16 years' imprisonment in the two operations. We can only speculate on the number of shootings which were prevented and the number of lives which may have been saved.
We should not assume that, because the threat of terrorism continues, the Act has therefore failed in its purpose—far from it. Both the Government and the police remain convinced that the executive powers are still needed in the fight against terrorism. It is in the very nature of these powers, though, that we cannot always show the results which they achieve.
In November 1989 the Government confirmed their limited derogation from the European Convention on Human Rights arising from the case of Brogan. Your Lordships will recall that a case in which a suspect had been held for just over four days without charge was found to be in breach of the requirement to bring the suspect promptly before a judge. In his report my noble friend said:
"It cannot be felicitous for the UK to have to derogate",
from the convention. As is so often the case, he is quite right. We took the decision to derogate with great reluctance and only after the most serious consideration.
It remains the Government's view that the power to detain for up to seven days on reasonable suspicion of involvement in terrorism is essential in Northern Irish cases. In Great Britain, the decision to authorise a detention of more than 48 hours is always taken by the Secretary of State in person, and not by a junior Minister. The Government accept that these exceptional powers have to be matched by adequate safeguards for the suspect. Schedule 3 to the 1989 Act introduced a system for reviewing detentions based on the comparable system under the Police and Criminal Evidence Act 1984.
There is at present no general system for the tape recording of interviews with suspected terrorists. However, the Government announced on 1st March a two-year experiment, at Paddington Green police station and the Main Bridewell, Liverpool, involving the tape recording of summaries of interviews together with any comments by the suspect or his legal adviser.
The experiment will be monitored by the Home Office research and planning unit and evaluated by a steering committee which includes representatives of the police, the Crown Prosecution Service, the Criminal Bar Association and the Law Society. We continue to believe that tape recording the whole of the interview, as opposed to a summary of it, has to be ruled out on security grounds.
There is clearly much more that I could say. My noble friend has made many valuable points in his report, and I would like to assure him, if indeed he was in any doubt, that his reports are taken very seriously in my department. Copies will be sent to

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all chief constables in due course and we are most grateful to him for his careful and assiduous work.
If there are any points on which your Lordships wish me to enlarge I shall endeavour to do so at the conclusion of the debate.
Moved, That the draft order laid before the House on 19th February be approved [11th Report from the Joint Committee].—(Earl Ferrers.)
Lord Mishcon: My Lords, the House will as usual appreciate the manner in which the noble Earl has moved this order. I should at once like to echo from these Benches what he said in expressing appreciation to the noble Viscount, Lord Colville, for his report which we read with great care. We realise the effort, the fairness and the assiduous work that he puts into these reports which we very much value.
I wish to make the position of the Opposition in this House abundantly clear. We are completely at one—I almost feel that this does not require to be said—with the Government in wishing to defeat terrorism at the earliest possible moment. We have co-operated with the Government, as we should in legislation which deals with international co-operation to defeat terrorism. We have supported the Government in legislation which aims to confiscate funds which are meant to support terrorist activities.
It is only in regard to certain matters contained in the Act that we feel uneasy about just a general continuation order. Perhaps your Lordships will allow me to dwell upon the matters that we support. It is obvious from our previous attitude that we support the confiscation of terrorist funds. The noble Earl mentioned tape recordings. We are pleased to have received the recent announcement by the Home Secretary that those detained under the Act would have a limited tape recording made of their interviews in the police station.
However, as the noble Earl made clear, those tape recordings will merely be a summary. Perhaps I may ask for the noble Earl's reaction to this suggestion from the Front Bench. If he cannot give it immediately, I shall understand. Perhaps it would be a much better idea to give not only the impression of justice but a reassurance to everyone as to how these interviews take place and what are the justifiable actions following those interviews. Would it not be better if there were a complete tape recording and if arrangements were made that in any trial the judge should hear the whole of the tape recording? He could then excise from it those portions which he felt should be excised, either because they are not admissible for any reason, according to our law of evidence, or because they infringe security. Representations could be made to him in chambers as to what was thought about the security risks.
I emphasise this point not only because of the inherent justice which I believe lies within the point but also because some of us will have been concerned at the recent decision on extradition by a High Court judge in Eire. It would be our practice to say that
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we respect the judges' judgments in any country where we have reason to believe that the court is an independent court. I therefore show my respect in that context.
However, I believe that we do not make our lives any easier in front of foreign courts or in particular in front of courts in Eire if we do not show that our procedures are consistent with fairness, weighing it up in the balance of how we have to fight terrorism. I shall refer to our procedures in another context in a moment. We endanger the true and proper working of those courts in our favour if we do not show transparent justice where we can, certainly in the conduct of interviews where vital evidence will be given by the prosecution, based on those interviews. That is why I regard the point that I was trying to make to the noble Earl with such seriousness.
In the same context I examine the provision of detention without charge for seven days. Here again we give the excuse to certain courts, if they wish to take advantage of it when asking for co-operation, whether it be on extradition or whatever, that as I see it we are flying in the face of the judgment of the European Court of Human Rights in the case of Terence Brogan. The European Court held that detention without charge and without judicial review was in breach of the European Convention on Human Rights in regard to that case. I believe that when we have a provision which entitles us to detain without charge for seven days we are in danger of being in breach of the judgment and therefore of the convention which we have signed.
Lastly, I turn to the exclusion orders which the Minister mentioned. Again he dealt with a matter which was mentioned in the House on the previous occasion when we dealt with continuation orders. I am referring to the fact that the noble Viscount, Lord Colville of Culross, made it clear in his previous report that the Government ought to consider carefully the continuance of exclusion orders. His advice—if I may term it that—has not been followed. I regret that it should not have been followed. Again, we are literally saying that for our security someone who is not fit to live in England, Scotland or Wales can be required to live in Northern Ireland.
I could mention other points against exclusion orders and their justification, but I mention that one specifically because it seems to me to be quite inconsistent with the view that Northern Ireland is an integral part of the United Kingdom. How we can expect the people of Northern Ireland to respect our judgment—I put it no higher than judgment—in keeping these exclusion orders in our armoury against terrorism, is beyond me.
Those are our reservations. There will be no question of opposing in this House an order which has had the approval of another place.
7.48 p.m.
Lord Harris of Greenwich: My Lords, I support the order. I believe that the powers that it confers on Ministers are justified on the basis of the terrorist threat to the United Kingdom. I am well aware of the concerns about exclusion orders. The noble Lord,

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Lord Mishcon, dealt with them when he referred to the strong reservations held by the noble Viscount, Lord Colville of Culross, on this point. I am glad that the noble Viscount is in the House. He indicated that although that was his view and had been his constantly stated view, it was not the opinion of an almost unanimous police service in this country.
I concede at once that the exclusion order is a most unusual power to give to any Secretary of State. There is no difficulty at all about that. Nevertheless it is my view, based on my own direct experience, that without the operation of exclusion orders, many more of our fellow citizens in the United Kingdom would have been murdered by the IRA. Having said that, I must admit that I remain deeply uneasy about the Brogan case. The European Court of Human Rights has held, as the noble Lord, Lord Mishcon, reminded us, that seven-day detention orders should be subject to some form of judicial intervention. Since we last debated this matter, the Government have derogated. I concede at once that this is a difficult matter. The noble Viscount, Lord Colville of Culross, confirms that in paragraph 4.4 of his report. Nevertheless, as I am sure the Government recognise, the decision to derogate is an exceptionally serious matter. However, I concede that there is a precedent. All I would say to the noble Earl is that I hope the Home Office will keep this matter under review.
It is not just a question of satisfying Parliament at Westminster; our international reputation is also involved. We rely a great deal on international co-operation in our fight against terrorism. We have received substantial assistance both from the United States and from our partners in Europe. They, too, have to be persuaded that we are behaving reasonably. To take one example of that, Ministers will be well aware of the constant pressure faced by the President and his senior advisers in the United States from some members of Congress who are highly critical of our position in Northern Ireland. One does not have to be an enthusiast for their cause to remind Ministers that when they take action of this kind it can sometimes play into the hands of some of our most dedicated critics.
I should now like to turn to some other issues which were raised in the report of the noble Viscount. I agree with what the noble Earl, Lord Ferrers, and the noble Lord, Lord Mishcon, said. The reports of the noble Viscount have been remarkable pieces of work. They are clear and lucid and they are based on a substantial programme of visits to all parts of Great Britain. I know very well the deep appreciation felt by many senior police officers for the amount of effort that the noble Viscount puts into his reports. It is right to acknowledge that on a day such as this.
However, I shall deal with one or two other questions based on the judgments in the report of the noble Viscount. First, I wish to ask the noble Earl a question about the national ports scheme which, as he will know, is run by a department of the Special Branch of the Metropolitan Police. I am bound to say that I was rather disappointed to see in paragraph 2 of the report of the noble Viscount that a few police forces are still not members of that scheme. Obviously not all police forces have
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coastlines in their areas. However, as the noble Viscount has pointed out, all at the very least have a number of private airfields. I do not believe in interfering with the operational independence of chief officers of police, but I hope that the noble Earl will be able to confirm that these matters will be raised with those chief officers by the inspectorate of constabulary. I believe that is an important matter.
Secondly, I wish to discuss the issue of control facilities at ports which is dealt with in paragraph 6.4 of the report of the noble Viscount. This, as the noble Earl will be aware, is again a rather important matter. Paragraph 10 of Schedule 5 to the 1989 Act requires carriers to present passengers and crew in such a way that the police can fulfil their duties. Paragraph 9 gives the Secretaries of State the power to insist on proper control facilities for passengers. It also gives them the power to require port operators to comply with notified requirements for facilities and other matters.
The noble Viscount comments in paragraph 6.2 of his report:
"I assume that paragraph 9 is wide enough to ensure that port operators can be made to provide the facilities … which the police must have for efficient exercise of their PTA powers".
However, in paragraph 6.4 the noble Viscount indicates that significant problems appear to have arisen at Felixstowe and Cairnryan, although some small improvements have been made at the latter port. Does the noble Earl agree with the noble Viscount that his right honourable friends have power to ensure that operators can be compelled to provide the necessary facilities when they decline to do so? I have looked at the relevant part of the legislation. It seems to me fairly obvious that Secretaries of State have such a power. However, if that is so, what action do they propose to take regarding the single operator at Felixstowe and Cairnryan?
It seems to me highly unsatisfactory that a single operator is not providing the facilities which are clearly required in the national interest. I hope that the noble Earl will be able to reassure me that the operator concerned will experience some heat from his department on this matter. I do not think it is at all appropriate, particularly given the past problems that have arisen at Cairnryan, to see difficulties of this kind still being experienced.
Finally, what action do the Government propose to take regarding paragraph 7 of the report of the noble Viscount which deals with ships which do not set out from designated ports? That is, of course, a matter of high importance, not only in relation to the prevention of terrorism legislation but also in respect of the smuggling of heroin and cocaine.
The noble Viscount has referred to various initiatives taken by a number of police forces from Devon and Cornwall to Lincolnshire and Dumfries and Galloway and has suggested in the final paragraph of his report that the neighbourhood watch scheme against crime might be extended to a "boatwatch" scheme around the coast. At first sight that appears an interesting proposal. I hope that the noble Earl will be able to confirm that this matter will be discussed by the inspectorate of constabulary and the Association of Chief Police Officers.

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As I indicated at the beginning of my speech, my noble friends support this order. However, as I have also indicated, I believe we have a right to expect progress on the Brogan case before we debate the matter again.
8 p.m.
Lord Fitt: My Lords, since the passing of the original Prevention of Terrorism Act 1974 I have on a number of occasions in both Houses opposed many of the draconian provisions that were contained within that piece of legislation. I opposed particularly the powers of exclusion that my noble friend Lord Mishcon referred to. However, throughout the years that that legislation has existed, I have never found myself able to justify exclusion orders. I know that there are two sides to this story and that there are differences of opinion. However, I have desperately tried to find justification for the exclusion of certain people from England, Scotland and Wales to Northern Ireland in many cases that have been brought to my attention. I have referred to Northern Ireland as being a dumping ground. However, as the years have gone by, I have lived with and seen the effects of terrorism both in Northern Ireland and, latterly, in this country. I am now of the belief that legislation such as this is necessary. In the absence of this legislation the IRA and other paramilitary organisations would be able to move about far more freely to carry out activities which would undoubtedly increase the death toll from year to year.
The noble Earl has read out this evening a list of the number of people who have been killed since we last discussed this order. Those men, women and children, and very young babes in arms, have all been murdered by terrorists. Therefore I could not in all conscience either oppose the legislation or, even more cowardly but as some people would expect me to do, be absent when the issue was discussed.
The noble Earl has said that since we last discussed the legislation, there has been international co-operation in the fight against terrorism. He mentioned what had taken place in France, Belgium, Germany and so on. My reason for coming here tonight is to tell him that he is not receiving international co-operation where he should be obtaining it most: in the island of Ireland, from the Government of the Republic of Ireland.
I was appalled, sickened and saddened by the decision of the Irish court during this week. I say that as an Irishman and one who loves Ireland. We are only two days away from St. Patrick's Day, on which the Irish national saint will be commemorated and celebrated in Ireland. There will be great celebrations this year in the camps of the Provisional IRA. There will be great rejoicing in all paramilitary organisations because of that terrible decision which was handed down in the name of Ireland by the supreme court in the island of Ireland.
I cannot for a single second see any reason or justification for those five judges making such a disastrous decision. Let the lawyers talk as much as they like, let them go into all the legal niceties, let them emphasise the fact that it was a judicial
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decision and not a government decision: that judgment was manna from heaven for the murderers in our midst in Northern Ireland. Those judges are Irishmen. They have lived on the island of Ireland. Irrespective of the legal niceties of their decision, they must have been aware of the terrible effect that it would have in Northern Ireland.
That decision was a tribal decision. I say that with the authority of the knowledge that I have gained from living on the island of Ireland. If you oppose that decision, and I do most vehemently, then you are categorised as a Unionist, a Protestant, anti-Irish, pro-British. I am none of those. I am proud to be an Irishman; I am a Catholic; I have been an anti-Unionist all my life, and I love the island of Ireland. I certainly am not anti-British.
Let us analyse that decision. There is one thing that has not been said by any of the leader writers in all the thousands of words that have been written in the past few days. One of the reasons that the judges gave for not sending those two convicted criminals back to Northern Ireland was the fear that they might be assaulted by prison officers in the Maze. The judges said that they were protecting their constitutional rights. Their constitutional rights represent an intrusion into Northern Ireland. If the judges can give a decision based on their constitutional rights, it is in line with Articles 2 and 3 of the constitution which claims jurisdiction over the whole of the island of Ireland. Otherwise, they would not have any constitutional rights in the Republic, which would allegedly be a foreign country outside the United Kingdom. That is an admission and it is a precedent. That precedent is very far-reaching. We shall have to live with the consequences in the years that lie ahead.
The judges said that prison officers had been found guilty of assaulting other Republican prisoners in the wake of the very vicious break-out from the Maze prison in 1983. On that occasion 19 prison officers were brutally beaten, one of them was stabbed to death—he subsequently died—others were also stabbed and severely injured. I cannot stand here and say that those prison officers were justified in beating up those prisoners they were able to apprehend in the immediate aftermath of the break-out. However, one can quite understand their emotion and how they felt after being subjected to such brutality themselves by the escaping prisoners.
The very fact that the prison officers were charged with assaulting Republican prisoners and the Republican prisoners were awarded compensation last year means that those prison officers are far less likely to assault anyone who is given back into their charge. If they have been found guilty of assault and compensation has been awarded, the prison officers are going to be very careful before putting themselves in a position to be charged with assault again. The argument that the prisoners were going to be assaulted does not hold water.
We say in Northern Ireland that the IRA could not have sustained its campaign of murder for 22 years unless there was a section of the community which was willing and able to give it protection. It is like a fish; which, as Chou En-lai said, has to have room to swim around in in which it will be given

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protection. We all recognise the active service soldiers, as they are called, of the IRA, the ones who set off the bombs, who kill, who kneecap and who blow out the brains. We all know that they are there. However, there is another element in Irish society which does not do any of those things. They stand back in silence and wish those active terrorists well. There are far too many of those people in Ireland. They are not confined to one section of the community. We refer to them as the "prawn cocktail provisionals"—the people with the mohair suits who finance the IRA but do not let their names be mentioned.
Let us consider the history of the judges who made that decision. Every one of them was a political appointment. Let us go into the antecedents of the Fianna Fail Party. Fianna Fail is the party of the Republicans—that is what it says on its election material. Its present Taoiseach was charged in the courts in the 1960s with arms smuggling and gun running. He was found not guilty, but many people said that there was no smoke without fire. Some of the judges who gave the decision this week were actively involved in the defence of Mr. Haughey, who is at present Taoiseach. There is a line of communication all the way through nationalist Ireland. That is why it was a tribal decision.
Can anyone blame the Protestant majority, the Unionist majority, the people who live—terrified for their lives—along the border where most of the murders take place, for being totally and absolutely furious at that decision?
I stood in this House when the Anglo-Irish Agreement was promulgated. I expressed great reservations about it. I did so with a knowledge of Ireland, not because of what I had been told over here or read over here. The Anglo-Irish Agreement was cobbled together without any discussions with the main party—the Northern Ireland Unionist Protestant majority—which was treated disgracefully. Its opinions were not asked for. We were told that the agreement would make extradition easier and that it would involve the Irish Government in a campaign to prevent terrorism on the island of Ireland. It has not done so.
People over here are inclined to forget very easily once an issue is taken out of the leader writer columns. Let us think of what happened in the case of Father Ryan. I do not refer to that man as a priest; I call him Mr. Ryan. He was suspected of having been involved in terrorist activities. He was arrested in Belgium. The Belgian courts decided to have him extradited to this country, but the Belgian politicians overruled that decision and sent him to Ireland. No one here criticised or opened their mouths about those happenings until Mr. Ryan arrived in Ireland. The Prime Minister then went to the Dispatch Box in another place and voiced her concern that it appeared that the Irish were unwilling to extradite Mr. Ryan. She was quite right to voice that concern. I was sitting in the Gallery and felt concerned about the whole matter.
Immediately the whole Irish diaspora from America and particularly from Ireland criticised the Prime Minister for intervening and saying that she wanted to see Mr. Ryan extradited. That was refused.
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It was not a case of the Dublin court saying, "We absolve ourselves. It was a judicial decision". The Attorney-General in the Republic refused to extradite Mr. Ryan. That was a political decision because he was a Law Officer of the Government.
There are three or four more cases pending in the Republic. The precedent that was set down last week will in effect mean that, if any of those IRA terrorists on the run in the Republic are apprehended, they can say, "Please don't send me back there because the warders are liable to beat me up". The IRA does not beat up warders; it blows their brains out and has done so over many years.
Was it not possible for those five judges who were so caught up with their legal jurisprudence and their right to protect constitutional rights to say, "We can't send them back to the Maze Prison, but we could send them back to another part of the United Kingdom because they are convicted terrorists". Naturally, there would have been great dissent, from Republican sources, but that would not be true of most reasonable people.
I have been watching television programmes and saw one this morning which made me sick—the "Kilroy" programme, on which the IRA justified its actions. It takes the view that IRA political prisoners do not get justice in Britain. I say, with the full knowledge that my noble friend Lord Mishcon is on the Front Bench, that I have been deeply unhappy about the official Labour Party response to the happenings over the past two or three days, certainly not from Members of this House. However, one spokesman for the Labour Party said, "We have good co-operation from the Irish Government—900 people have been extradited over the past 20 years, many of whom were terrorists". That is untrue. Many of them were not terrorists. The vast majority were charged with other criminal offences in this country, for example, tax evasion. Only a handful of terrorists—I believe five altogether—have been extradited back to the United Kingdom.
I raise the matter deliberately so that the Government may question matters through the Anglo-Irish Agreement with which I do not agree. I do not believe that Britain has achieved anything out of that accord. In response to Ireland giving a promise that she would do everything she could to apprehend terrorists, they were given a say in the running of affairs in Northern Ireland through the Anglo-Irish Conference.
Over the past two or three days, most of the editorials have said that the Anglo-Irish Agreement must be kept, otherwise we might go back to megaphone diplomacy. I suggest that a little megaphone diplomacy in cases such as this would be all to the good because the British people and the British Government would be speaking on behalf of the Northern Ireland people. They should shout as loud as they can to those Congressmen on the Irish-American scene in America who believe every bit of propaganda that is ladled out to them by the Provisional IRA.
There are two sides to that story. America's Congressmen do not have to contend with bombings and murders in America. Those acts take place here. I read today that a member of the Kennedy family

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has again criticised Britain for not giving justice to Irishmen. If those same Irishmen were bombing his homeland in Boston or other parts of the United States, Congressman Kennedy would be peddling a different tune.
I feel strongly about the matter. I could go on for a long time. Another part of the judgment was by Mr. Justice Walsh. He said that, if terrorists fight to unite the country, it is a political offence and they should not be charged or extradited. That takes us back to the realms of uncertainty.
I have noticed that not too many Catholics in Northern Ireland have voiced their criticism at the decision of the Dublin High Court. I wonder why. Does it mean that every Catholic wants to see IRA men released so that they can return to the use of the gun, or that they are frightened? Do they think that it is not right to break away from the tribal response and say something which might be construed as helping the British or the Protestants?
I do not believe that I am helping the British or the Protestants in any way by voicing my concern at that awful decision. I believe that I am helping humanity in Northern Ireland by saying and doing whatever I can to force the Irish Government to look again at their extradition procedures and to look into their own mind and conscience to see whether they have done all they can to prevent terrorism on the island of Ireland.
Yesterday's Evening Standard contained a leader on this issue. The last sentence is appropriate to clear thinking on this week's events. It stated:
"Terrorists are enemies of all Ireland, North and South: and so are the the judges who wrongly set them at liberty".
I urge the noble Earl to make whatever strong representations he can to the Government so that they in turn may make the strongest representations to the Irish Government to live up to what they say they are doing and to take every action to prevent a further eruption of terrorism in the island of Ireland.
Earl Ferrers: My Lords, I am grateful to your Lordships for the contributions that have been made on this matter which affects us all gravely and about which we all feel acutely concerned. Perhaps I may start my remarks by referring to the noble Lord, Lord Fitt, who, if I may say so, made a speech which was full of feeling—feeling which derives from his knowledge of Northern Ireland and his concern about the judgment made last week.
I can understand why the noble Lord feels cross, angry and upset. I believe that most of us feel very concerned. My right honourable friend the Prime Minister said that the judgment was grossly offensive and totally unjustified. My right honourable friend the Secretary of State said that it was an unacceptable slur on the practices which are carried out in Northern Ireland and that he would be pursuing with the Irish Government his concern that the system should work effectively and fairly. However, the noble Lord, Lord Fitt, will recognise—as the noble Lord, Lord Mishcon, said—that it was a judicial judgment. As such it is a judgment of the courts and one which we must respect, even though we may not agree with it. I should also say that
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throughout the whole extradition process it was the Irish Government which was seeking the extraditions on our behalf. Indeed, it made strenuous efforts on our behalf all the way through to get these two men extradited. It is the judicial judgment about which the noble Lord, Lord Fitt, is so concerned.
Effective extradition arrangements between our two countries are vital to co-operation against terrorism. We shall closely study the terms of the judgment to see how similar episodes can be prevented in the future. In fact the judgment consists of seven judgments which run to 98 pages, so there will be quite a lot for the Government to consider and decide how we can best run affairs so that these unfortunate occurrences do not happen in the future. The noble Lord, Lord Fitt, was not too complimentary about the Anglo-Irish Agreement but both governments are committed, in the context of that agreement, to ensure fair and effective extradition arrangements between our two countries. That is what we wish to try to ensure happens.
Both the noble Lords, Lord Mishcon and Lord Harris, referred to the Brogan judgment. The noble Lord, Lord Harris, said that Members of the United States Congress would be critical of what we do. I have no hesitation in saying to your Lordships that derogation from the convention is not to be taken lightly. We did not undertake it lightly. But by the same token, nor is any measure to be taken lightly which would weaken the effectiveness of our response to terrorism. To put it frankly, the Government were not able to find a system that would satisfy the terms of the convention without risking the lives of individuals and valuable intelligence or affecting public trust in the independence of the judiciary. That is the reason that we had to have the derogation. In the Government's view, intelligence and the sources of intelligence might have to be revealed either to the judge, the defendant or his representatives. That would put or might put security at risk. The derogation is limited to extensions of detention under the Prevention of Terrorism (Temporary Provisions) Act connected with the affairs of Northern Ireland but of course not to international terrorism.
The noble Lord, Lord Mishcon, was concerned that a tape recording was being made only of the summary and not of the complete interview. I quite see why the noble Lord would have preferred the recording to be of the whole interview, But our view remains that the information that might be revealed to the police during an interview with a terrorist suspect could be such as to put lives at risk should it fall into the wrong hands. Tape recording the whole interview might therefore discourage the suspect from speaking freely to the police and information vital to our efforts against terrorism would therefore be lost. The police also rightly fear that tape recordings of interviews could provide terrorist organisations with an insight into police investigative matters which otherwise would not be available to them.
Lord Mishcon: My Lords, perhaps the noble Earl with his usual courtesy will give way. I rise only so that the House may be clear on what is being said.

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Is the noble Earl saying that a full recording on tape will not take place? In those circumstances, how does one prepare a summary? I did not understand that the Home Secretary's statement meant that there was not a full recording of which there was a summary. That is why I suggested that the judge should be given jurisdiction in camera to decide which part of the tape should in fact remain as evidence.
This is an important point. If the noble Earl cannot help us now, I shall understand and perhaps he will be kind enough to write to me. I am sure that equally the noble Lord, Lord Harris, and possibly the noble Lord, Lord Fitt, would also be interested. It is an important point. If there is a full recording, his point about suspects not being prepared to speak so frankly when there is a full recording obviously would not apply.
Earl Ferrers: My Lords, I shall certainly give the noble Lord details later exactly how it is proposed the arrangement will operate. I should emphasise that it is not intended to have a full and complete recording of the whole interview because by so doing it is possible either that the interviewee may not give the information which he would otherwise give (because it would be on the tape and might fall into the wrong hands) or he may well find that he would prefer to be less open. It is for that reason that a summary of the interview will be taped as opposed to the whole interview itself. I note that the noble Lord, Lord Mishcon, is concerned. If possible I shall try to placate his anxiety in more detail later.
The noble Lord, Lord Mishcon, was also concerned about the exclusion powers. He said that it was inconsistent, if Northern Ireland is to be part of the United Kingdom, that we should exclude certain members of the United Kingdom from part of that kingdom. I understand his concern. I was glad that the noble Lord, Lord Harris, was in favour of it. It is a matter of great concern if one must have such exclusion orders and of course they are highly controversial. As I said in my opening remarks, and the noble Lord, Lord Harris, agreed, one can never say when the attempt has been successful. We are concerned that there is evidence to consider—evidence which makes us believe that if we did not have those exclusion powers, unfortunate and unattractive though they may be, others would suffer as a result. If they had been removed, I believe that noble Lords would agree, given the examples that I mentioned earlier, that there might have been either more deaths or more trouble from terrorism than has been the case with the exclusion powers.
The noble Lord, Lord Harris, was concerned about Cairnryan and Felixstowe. I can tell him that discussions are taking place with the port operator about the improvements which need to be made. The local police forces are being fully consulted. I hope that significant improvements will be made shortly. We do not at present foresee any need to use the powers which are available under Schedule 5.
The noble Lord, Lord Harris, also referred to the national ports unit. The national co-ordinator of ports policing continues to encourage the remaining
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forces to join the scheme. They have no major ports but as traffic grows, or if new facilities are developed, they will need to consider joining the scheme.
With regard to small boats—this was another point made by the noble Lord, Lord Harris—I was grateful to my noble friend Lord Colville for his analysis. The Home Office is discussing the issues with police forces and other agencies including customs and immigration. The noble Lord, Lord Harris, will understand that I am not in a position to describe in detail what we have in mind but I can assure him that we take the matter very seriously and hope to make proposals before too long.
I acknowledge that in this order there are exceptional powers. They are intended to meet exceptional circumstances. We all look forward to the day when the Act will no longer be necessary. However, so long as terrorism remains a threat to the people of this country we shall have to seek to continue to keep it in force. We shall continue to provide the police with the powers they need. But we also have due regard for the rule of law. That is why there is an extensive range of safeguards associated with the Act that we are now extending by means of this tape recording of interviews on an experimental basis.
I am grateful to your Lordships for having given overall approval to the order, even with the reservations that have been expressed. I hope that noble Lords will see fit to approve the order. I commend it to your Lordships.
On Question, Motion agreed to.

Courts and Legal Services Bill [H.L.]
8.32 p.m.
Proceedings after Third Reading resumed.
Lord Boardman Lord Boardman moved Amendment No. 20:
After Clause 35, insert the following new clause:
("Conveyancing fiduciary relationships.
.—(1) A fiduciary relationship shall be deemed to exist between an authorised practitioner and any person for whom the authorised practitioner provides any conveyancing services.
(2) The extent of the fiduciary relationship imposed by subsection (1) shall be the same as would exist between a solicitor and his client for whom similar services were being provided.").
The noble Lord said: My Lords, on Report stage we had an amendment in the same terms as Amendment No. 20 which I now move. The principle was in part accepted by my noble and learned friend. The intention of the amendment was to establish a fiduciary relationship between the authorised practitioners, similar to that which would apply to a practising solicitor in the same circumstances. In response to the debate, my noble and learned friend the Lord Chancellor stated at col. 469 of the Official Report:
"I believe that I can favourably consider bringing forward an amendment to make it clear that where the authorised practitioner is providing the services, the person who is responsible for the transaction at the professional level shall have the responsibility to the client in carrying out the transaction that a solicitor would have in relation to the ordinary practice".
My noble and learned friend went on to say that there might be difficulties in drafting that. But I

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understood that the principle was accepted. Unfortunately, we have not had an amendment from my noble and learned friend covering that point. No doubt we shall hear more about whether one will be possible or what has happened to make it impossible.
The amendment covers a somewhat wider field. My amendment sought to make a fiduciary relationship apply not just to a professional person who was conducting the conveyancing part of the transaction but to the authorised practitioner covering the whole range of the services covered by that authorised practitioner which were connected with the particular conveyancing transaction. The purpose of the present amendment is to make it clear that it is the authorised practitioner who owes the fiduciary duty to any person for whom he is providing conveyancing services.
It is not enough for an employee alone, carrying out conveyancing, to have a fiduciary duty. That duty must pass to the employer. The analogy with a firm of solicitors in private practice is perhaps helpful. A principal of a firm of solicitors cannot escape his fiduciary responsibilities by arguing that it was his employee—even if the employee were a solicitor—who carried out the work. The law imposes a fiduciary duty on the firm as a whole.
Similarly, I believe it must be the authorised practitioner who is under that fiduciary duty. Indeed, on Amendment No. 19 in connection with a point raised by my noble friend Lord Coleraine, my noble and learned friend said that a solicitor employed by a building society, for example, owes a duty to that society just as an employee employed by a firm of solitors owes a duty to the firm of solicitors. It must therefore be that employer who has the fiduciary duty similar to that which is employed between a firm of solicitors and its client. That is important in the case of a lending institution. A solicitor who lends money on mortgage to his clients has very strict obligations placed upon him. A financial institution which also undertakes related conveyancing to the client should be placed under no less a fiduciary duty.
The authority on this with regard to solicitors is a book called Cordery on Solicitors. I quote an extract. It states:
"The relationship existing between a solicitor and his client is recognised in equity as a fiduciary one imposing on the solicitor special obligations. In his dealings with his client the solicitor must exercise the utmost good faith and in any financial transaction … with his client there will be a presumption that such transaction should not be upheld unless the solicitor can establish that it was effected by the free exercise of the client's will and without any influence",
and so on.
I urge and argue that the same duty applies to an authorised practitioner who has employed a solicitor in house in order to carry out conveyancing transactions which may be associated with the lending of money or with the placing of insurance. A solicitor who lends money on mortage to his client is under a very special duty. There are many authorities. Perhaps I may mention one. It is Nocton v. Lord Asburton which laid down the grounds of the duties and the responsibilities that apply when
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a solicitor lends money to his client. I ask: why should that relationship between the firm of solicitors lending money and, as part of that, also undertaking the conveyancing, be different from that of a building society lending money and also, as part of that, undertaking the conveyancing? There must be a duty on the part of those employing the solicitors to their client. It is the same duty that applies between the solicitor and his client.
My view is that where a financial institution is both providing a loan on mortage and providing related conveyancing services, it should be placed in the same position as a solicitor who is providing a loan on mortgage to his client and providing related conveyancing services. In other words, the authorised practitioner should have a fiduciary relationship with his client. If that is not so, we shall have an impossible position in the competition between the high street firm of solicitors which will be faced with special duties and obligations to its clients and the next-door building society or insurance company (or whatever it is) which is offering the same conveyancing services. Both are free to lend money to people who cross their thresholds and both are free to place insurance. The solicitor is in a position to give independent advice but the other is not. However, a fiduciary duty should be the same in both instances. There must be level playing fields in the competition which my noble and learned friend wishes to create.
It means that in a fiduciary relationship a solicitor is under a duty to disclose any secret profits which are made. The building society or bank which receives commissions from endowment policies and so forth must be in no different a position to that of solicitors who also arrange endowment policies for clients whose conveyancing work they carry out. A different set of rules would mean two standards and that would be quite unacceptable.
My noble and learned friend may say that at the end of the day it should be left to the courts to establish whether there is a fiduciary relationship in such circumstances. I hope that that will not be his reply. It is right that the relationship should be clearly established in the Bill. It should not be delayed until litigation raises the question in years to come as to the duties of the building societies and banks carrying out conveyancing, offering services and retaining commissions and so forth which are undisclosed and unaccounted for. We should not wait for the courts then to decide whether they were in a fiduciary relationship and must account for those profits in the same way as must a high street firm of solicitors discharging such duties.
I hope that, following on from what he said on Report, my noble and learned friend will go a little further and extend the relationship which he accepted for the professional element of the financial institution. I hope that he can extend the relationship to the authorised practitioner who should have the same duty as the high street solicitor with whom he competes. I beg to move.
Lord Prys-Davies: My Lords, I wish to support the principle of the amendment. It would establish a fiduciary relationship between the authorised

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conveyancing practitioner and his customer. In plain language it would mean that in the exercise of his duties towards the customer the conveyancing practitioner must act with utmost good faith. That is the significance of the term "fiduciary relationship". It is the highest standard of conduct known to English jurisprudence. It is a high standard developed by the courts of Chancery over the centuries. The noble Lord, Lord Boardman, has indicated that it is the standard expected of a solicitor in his dealings with his client. Thus it requires that the solicitor must not exercise undue influence and that he must give disinterested advice and make full disclosure of all the relevant facts.
It is difficult to see why a financial institution which provides a loan on mortgage and a related conveyancing service should not be expected to be guided by the same high standards. Therefore, it is right that the conveyancing practitioner should observe the standards of utmost good faith and that it should be spelt out in the Bill.
Lord Byron: My Lords, I support the amendment for the reasons given by the noble Lord, Lord Boardman. It is not enough for the employees carrying out the conveyance to have a fiduciary duty to the client; the provider of the service, the employer, must also be under a fiduciary duty.
It is helpful to have the analogy of a firm of solicitors in private practice. A principal in a firm of solicitors could not escape his fiduciary responsibilities by arguing that his employee, even if he is a solicitor in a branch office, was carrying out the work. The law imposes a clear fiduciary duty on the principal in a firm of solicitors. Similarly, the authorised practitioner should be under such a fiduciary duty. I support the amendment.
8.45 p.m.
The Lord Chancellor: My Lords, we discussed a similar amendment on Report. It is not an easy area in which to operate. I understood my noble friend to suggest that the existence of the fiduciary duty determines the terms on which a solicitor may act. However, I believe that the precise terms on which a solicitor may act require to be determined with a good deal more precision than simply saying that he or she is subject to a fiduciary duty.
The passage from Cordery to which my noble friend referred states that,
"in any financial transaction with his client (save as to costs for work done) there will be a presumption that such transaction should not be upheld unless the solicitor can establish that it was effected by the free exercise of the client's will and without any influence on the part of the solicitor. Thus a solicitor is bound to give his client disinterested advice".
In relation to the conveyancing transaction that is one thing. To give disinterested advice on matters outside the conveyancing transaction is another. If the service given by the authorised practitioner is related to conveyancing the advice would be disinterested. However, it would be impractical to think of a solicitor in a building society being asked to give independent advice on whether the terms of the mortgage offered by his building society were better for the client than those of another. That
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would not be sensible because, as I made clear in earlier discussions, the solicitor or professional person in charge of the transaction must make clear to the client the service that he is offering. That would not be one of the services.
That is highlighted in an amendment which I moved earlier and which accepted an amendment tabled on Report by the noble Lord, Lord Mishcon, about indpendent advice for an independent solicitor. In addition to conveyancing services he can give independent financial advice. I have accepted an amendment that there should be no possible prohibition against him doing so. The Law Society should be able to make rules to prevent him being muzzled in respect of independent advice over and above the conveyancing service.
In the context of this situation a solicitor employed by a building society would be giving only the expertise necessary properly to complete the conveyancing transaction. His remit from the building society would be to complete the title of the building society to secure the mortgage. It would be unreasonable to expect him to do anything more.
Cordery goes on to state:
"Thus a solicitor is bound to give his client disinterested advice, and the mere fact that the solicitor, by becoming personally interested in a transaction of the client's, has put it out of his power to give that advice, will entitle the client, as against the solicitor, to have that transaction set aside unless the solicitor has disclosed his interest to his client".
If the solicitor employed to carry out the conveyancing tells the client, "I am an employee of this building society", that is immediate notice to the client that he cannot give independent advice where a conflict is concerned. Of course, he can give independent advice in respect of matters without conflict. That is why I have said that there must be an interview at the beginning in which those matters are determined. The solicitor, the building society's employee, can only act for a client if he is satisfied on his professional judgment that there is no conflict of interest between the service required by the client for himself and the service which the solicitor is to give to the building society.
When advising a client, a solicitor will be bound to make full and honest disclosure of the facts within his knowledge, and he cannot excuse the failure to discharge a duty to one client by showing that a due discharge would have constituted a breach of duty to another. A lawyer is under a duty to his client not to disclose to third parties any information confidentially revealed to him, and that duty continues.
As a consequence of those rules, transactions between a solicitor and a stranger would be unobjectionable. As made between a solicitor and his client, they are neither enforceable by the solicitor nor subject to consideration of delay in confirmation sustainable by him when impeached by the client.
On the matter of disclosure of information about commissions and the like, which I understood to be an important aspect of my noble friend's amendment, the general rule does not specify precisely what he must do in that connection. The

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Law Society in England and Wales has rules in respect of that but those are special rules. They are rules which the Law Society has made.
I think I can illustrate this best by pointing to one of the cases which is referred to in the footnote of the passage from Nocton v. Lord Ashburton to which my noble friend referred. Immediately after that is a very famous Scottish case called Brown v. The Inland Revenue Commissioners in which I had the honour of appearing in this House a considerable time ago. From that case it is quite clear that the English and Scottish law in this respect is the same.
If I take that as the foundation, there is the same sort of relationship in law between the solicitor and his client in Scotland and the solicitor and his client in England. Rule 10(1) of the 1988 practice rules of the Law Society of England and Wales provide as follows:
"A solicitor shall account to his client for any commission received of more than £10 unless, having disclosed to the client the amount of the commission or, if the amount cannot be ascertained, the basis of calculation of the commission, he has the client's agreement to retain it".
That is the English rule. The Scottish conduct of investment business practice rules 1989 make it quite clear that there is no duty on the solicitor recommending to or effecting for a client a transaction relating to a life policy or unit in a regulated collective investment scheme to account for commission although he must disclose that fact that he has received commission and, if asked by the client, the amount.
That shows that the precise relationship and obligations are matters for regulation. Therefore, I believe that the correct way to deal with this matter is to provide for them in the terms of the transactions and to do that in detail in terms of the regulation making power which the Lord Chancellor has in Clause 38(2)(e). There the Lord Chancellor has power to make regulations as to the terms and conditions on which authorised practitioners may provide conveyancing services. The right way to go about the matter to which my noble friend has referred is to make terms and conditions of that kind under the regulation-making power with precision, saying exactly what is to be done.
Perhaps I may give one more illustration of why I believe that must be right. My noble friend referred to the position of a building society and commissions which it may receive from an insurance company. For example, let us take as an example an insurance company to which the building society is a tied agent. The building society may expect to receive commission from the insurance company in respect of business made with that insurance company although it may not be in the form of discrete commission for particular transactions but it may be in more complicated form. If the building society provides the conveyancing services, one result will follow. If the insurance company provides the conveyancing service, the results will be quite different, on the way in which my noble friend looks at the matter.
If the insurance company provides the conveyancing services, it will receive no commission
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of any sort in respect of that. If the building society does it, the situation will be different. That is why I say that those two situations, as regards a very generalised fiduciary duty, may well be different. That is why I believe that the right way to cope with this matter is to deal with it very precisely in the regulations in order to ensure that what is desired is accomplished, with precision, in that way. It is only in that way that one could effectively avoid litigation on that sort of question.
Lord Boardman: My Lords, I am very disappointed with the response of my noble and learned friend. I suggest that it goes right against the trend of current legislation, and indeed of current Government philosophy on consumer protection. We spent many days in this Chamber discussing the Financial Services Bill. In that Bill we spent a great deal of time on consumer protection, on polarisation, and on Chinese walls being established in order to prevent any conflicts of interest arising.
As the Bill is now, we are playing on very unlevel playing fields as between a solicitor practising in one High Street firm and next door a building society offering the same services on very different terms and deluding the customer into believing, because the customer is being seen by a solicitor (as the Bill provides he should be), that he will be receiving the same independent advice and standards of fiduciary relationships and so on as if he went to the High Street solicitor practising next door. I find it very disappointing that that distinction is not recognised and that the Bill is not amended to place the same duty on both.
If you are having a quite different standard as between the authorised practitioner and the High Street solicitor then there should be something like a health warning put on the building society or financial institution's name plate outside saying, "You will not get independent advice here, we shall keep to ourselves any side profits we make and please do not smoke this particular packet unless you want to take a risk". I believe that it is as serious as that. A customer visiting and seeing a solicitor, although employed by a building society, will receive the firm impression that he is getting the standard of integrity and independent advice which I hope that he rightly associates with a solicitor. The fact that that solicitor is an employee of the building society should not lower that obligation any more than if he was a solicitor employed by a firm of solicitors next door. That is unfortunate.
My noble and learned friend referred to a difference between the insurance company arranging conveyancing and providing an insurance policy where there would be no direct commission and the building society doing the same thing, where there would be a commission. I suggest that if an insurance company is providing financial services, then I hope it is required to make it clear to the client for whom it is providing the conveyancing services that it is receiving side benefits from the sale of its own insurance policies to that client. There must be benefits there. If the policies were placed through a building society, the insurance company would pay the building society commission. I would hope that

1725
that would lead to a disclosure of interest. It certainly would be in the case of a practising high street solicitor who managed to make some side benefit by virtue of the office that he was carrying out as part of or as adjunct to a conveyancing transaction.
Although there is a distinction in the quantification of it—building society commission can be quantified but it is difficult to quantify what an insurance company makes by placing its own insurance policy with its captive customer—nevertheless, there must be a side benefit which should be caught up by a fiduciary duty owing by that particular authorised practitioner to the customer.
I am very sorry that my noble and learned friend has not felt able to give more encouragement to this amendment. I note that he says that it will be a matter which will be taken care of in the regulations. The right place for what is a fundamental part of our whole system of consumer protection which we have spent so many hours debating—that essential plank—should be in the Bill. It should not be left to regulation. It is one which I very much regret will not appear. However, at this time, with such a thin House which, if I should divide, will not have been persuaded by listening to arguments on both sides—perhaps that would be to my advantage—I feel I cannot press the matter any further. I express my deep regret and ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
9 p.m.
Clause 38 [Regulations about competence and conduct of authorised practitioners]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 21:
Page 32, line 9, after ("services") insert—
("(aa) that in providing such services (and in particular in fixing their charges) they act in a manner which is consistent with the maintenance of fair competition between authorised practitioners and others providing conveyancing services;").
The noble and learned Lord said: My Lords, I have to a certain extent already spoken to this amendment when discussing the earlier amendment moved by the noble Lord, Lord Mishcon. I bring this amendment forward in response to a question raised by the noble Lord, Lord Mishcon, and his colleagues at the earlier stages and to put beyond doubt the regulation-making power to enable the Lord Chancellor to make regulations with a view to securing that authorised practitioners, when providing conveyancing services and in particular when fixing their charges, act in a manner which is consistent with the maintenance of fair competition between themselves and others, such as solicitors and licensed conveyancers, who supply conveyancing services. I beg to move.
Lord Prys-Davies: My Lords, from these Benches I should like to welcome this amendment. It is more or less in line with the amendment moved by my noble friend Lord Mishcon at Report stage and so we welcome it.
On Question, amendment agreed to.
Clause 47 [Conditional fee agreements]:
Lord Ackner Lord Ackner moved Amendment No. 22:
Page 38, line 13, leave out subsection (2) and insert—
("(2A) A conditional fee agreement shall be unenforceable so far as it provides for the amount of any fees to which it applies to be increased above the amount which would be payable if it were not a conditional fee agreement.").
The noble and learned Lord said: My Lords, the subject matter of this amendment is contingency fees. I know that my noble friend Lord Mishcon, whose absence from the Chamber I note with a genuine sense of deprivation, cavils at the word "contingency". That is because, as he said, many of us recognise it as being evil. I adhere to the use of the word because it is a wholly proper description of what is proposed, the true and ordinary meaning of "contingent" being "dependent upon something else" or "liable but not certain to happen"; hence the phrase "contingency plans".
I derive further support, if I need it, from the Lord Chancellor's Green Paper headed "Contingency Fees" and in particular Chapter IV which is headed "How Contingency Fees Might Operate". In that chapter, at page 10, under the heading "Speculative Basis" is described that which, in this Bill for obvious cosmetic purposes, is given a brand new name; namely, "Conditional Fees". Even its Scottish name—"Speculative Action"—is not used since to our profession that has a distinctly disreputable flavour.
Perhaps I may make it quite clear that my proposed amendment signals no partial conversion to the Lord Chancellor's proposal on this subject, since I wholeheartedly join with my noble and learned friend Lord Hailsham in condemning it as being inherently immoral.
At Committee stage, when it was Clause 44 and the Motion was put that it should stand part of the Bill, four Lords of Appeal in Ordinary, three retired Law Lords, the former Lord Chancellor—my noble and learned friend Lord Hailsham—and the Master of the Rolls all voted against it in its entirety. My amendment merely signifies my acknowledgement of the power of what my noble and learned friend Lord Hailsham calls "the elective dictatorship".
Lord Justice Buckley, in explaining the nature of the public policy which condemns contingency fees, said in 1975 in Walersteiner v Moir as follows:
"It can, I think, be summarised in two statements. First, in litigation a professional lawyer's role is to advise his client with a clear eye, and an unbiased judgment. Secondly a solicitor retained to conduct litigation is not merely the agent and adviser to his client but also an officer of the court, with a duty to the court to ensure that his client's case, which he must of course present and conduct with the utmost care of his client's interest, is also presented and conducted with scrupulous fairness and integrity. A barrister owes similar obligations. A legal adviser who acquires a personal financial interest in the outcome of the litigation may obviously find himself in a situation in which that interest conflicts with those obligations".
That quotation may be found on page 4 in the memorandum entitled Contingency Fees, being the Law Commissioners' response to the Green Papers, the wisdom of which the Lord Chancellor has seen fit to ignore. I quote but two of the eight conclusions

1727
to be found on page 32 of that memorandum. Conclusion (vi) states:
"Any type of contingency fee agreement creates the potential conflict of interest either between the lawyer and his client or between the lawyer and the court. Protection against these conflicts requires careful consideration".
I interpolate to say that the Bill provides no such protection.
"Conclusion 7. It seems most inadvisable to repeal the existing rule of law at a time when it is proposed to change radically not only the organisation of the legal profession but to widen the scope of those who may give advice to and present cases of litigants".
During the debate my noble and learned friend the Lord Chancellor made what I describe, with deep respect, were I sitting in a judicial capacity, as a good jury point; that is, a point which appeals to the emotions rather than to the intellect. He said:
"My noble and learned friends Lord Hailsham and Lord Ackner referred to the Scottish position; namely, that these arrangements—that is to say, speculative actions as we call them, in which the lawyer takes on the client on the basis that he will be paid the taxed costs if he wins and not if he loses—have been lawful for many generations, although the percentage related to the amount of damages has not.
The question of the extent to which such an arrangement is taken up is a separate or different matter. The first question is: is it moral, or is there anything immoral about it? I cannot believe that the distinguished lawyers who have operated the Scottish system over many years regard it as in the slightest degree immoral".—[0fficial Report, 5/2/90; col. 553.]
Very well. If that is my noble and learned friend's best point—I am bound to say I can find no other—that is precisely what my amendment proposes to do; to introduce the Scottish system (no more, no less) which distinguished Scots lawyers have apparently operated over so many years, although I believe to a negligible extent.
However, that is not what my noble and learned friend the Lord Chancellor proposes. He is proposing something radically different. Towards the end of my noble and learned friend's speech at this stage in the debate, when referring to the agreement which he was proposing to permit, he said:
"If this clause goes forward, it is to be related to the work done and not related to the amount of damages".—[col. 554.]
Perhaps that was his answer to the Law Commission's paper, from which I quoted, which reads as follows:
"To require the litigant to pay any significant sum out of his damages does, of course, detract from the fundamental principle of English law that courts strive to put a wronged person back into the position he would have been in had he not been wronged".
A further extract reads:
"Any time a litigant has to pay representation expenses from his award, justice is not done".
That, of course, is precisely what will be done when the uplift—to use current jargon—of this significant addition to the taxed costs is permitted. That is the real prize if the speculation is to succeed. It is by this new and potentially corrupting process that I believe it is hoped to reduce the pressure to extend—not to take away—state legal aid.
In his final contribution to the debate, referring yet again to the Scottish system, my noble and learned friend the Lord Chancellor said:
"It is quite difficult to have such a public policy—which is the policy of the legislature of the United Kingdom—which allows them in one jurisdiction"—
that is, the Scottish jurisdiction—
"but not in another".—[col. 555].
That is, in England and Wales.
However, the amendment I now put forward is designed to achieve precisely the position for which the Lord Chancellor was then contending.
I am proposing that my noble and learned friend's understandable sympathy and affection for the Scottish system be fully satisfied, but no more. There is absolutely no warrant for substantially altering the nature of that system, thus giving the legal adviser for the plaintiff a stake, by virtue of this uplift in the taxed costs, in the very damages which justice has decreed should belong to the successful litigant and not to his lawyer. I beg to move.
Lord Renton: My Lords, I support the noble and learned Lord, Lord Ackner. It is regrettable that yet again this important and highly controversial matter of conditional fees should come before your Lordships' House at such a late hour. I find that there are fewer than 20 of us in the Chamber. The legal aid advisory committee whose report was discussed yesterday criticised the conditional fee agreements in the Bill, and did so in general. One is entitled to an answer to the questions: why was there no uplift in Scotland, although this scheme has operated in Scotland we are told for generations, and why is there no mention in the Scottish Bill of the possibility of a percentage uplift? Why should Scotland and England and Wales have different ways of applying that extremely controversial practice?
I also ask my noble and learned friend the Lord Chancellor: why should we in England and Wales have inflicted upon us at all the only questionable part—as my noble and learned friend knows well—of the Scottish system of justice which we all admire so much? Despite the denial at an earlier stage by my noble and learned friend the Lord Chancellor that that had nothing to do with legal aid, or the lack of it, we are left with the conclusion that the main reason for its insertion into the Bill is that it is intended to fill part of the gap—a gap in which so many people in this country formerly were able to have legal aid but who do not have it now and may not have it for some time to come. It looks as though we must accept that there will be conditional fee agreements in England and Wales, but for goodness sake let us have them on an even plane and not with that percentage uplift.
Lord Donaldson of Lymington: My Lords, it is important not to be bemused by the extent of the uplift which may well be a small percentage, because, as I see it, there is a fundamental difference between a conditional fee agreement without uplift and one with uplift. It is not entirely a question of the percentage. Perhaps I may illustrate that point. Barristers, and I do not doubt solicitors, have, from time immemorial, followed the same course as is followed by doctors of acting for their fellow professionals for nothing. They may receive a small present or something of that kind. However, basically they are working for nothing.
It is one thing for a lawyer to act for another lawyer in a litigious context, and work for nothing,

1729
which will be the straightforward position if that lawyer client loses. It is another thing if the lawyer client wins because the beneficiary then will not be the lawyer client but the other party, because one cannot obtain one's costs out of the other party if one is not liable to pay them in the first instance. If one is acting for the plaintiff for nothing and the plaintiff wins, the plaintiff, when he comes to claim his costs from the defendent, cannot include the costs for which he is not liable.
The conditional fee agreement without uplift meets that situation. Let me not mislead noble Lords into thinking that arises only in the context of lawyer working for lawyer. There can well be a situation in which a lawyer, be he solicitor or barrister, is impressed by the hardship of his client, and perhaps the merits of his client's claim, who thinks, "Well, as an act of charity, an act pro bono, an act in the best tradition of the profession, I am prepared to act for this man for nothing, or at a reduced fee, in the hope of assisting in seeing justice done." The same problem then arises. If justice is done and his client succeeds, it goes only to relieve the burden of costs which would otherwise fall on the by definition, rogue defendant.
Once one starts adding a percentage one is in a different league altogether. It is not a question of the percentage. The lawyer is then looking at the matter, not as a matter of professional comity, not as a matter of charity, not as a matter of pro bono, or public interest; he is making a hard-nosed calculation as to whether it is worth gambling, losing and getting nothing, against the possibility of succeeding and getting his normal costs plus x per cent.
It is not a question of the x per cent. It is a fundamental difference. I very much support the amendment. It would prevent barristers and solicitors becoming involved in a market-place approach to the basis on which they charge fees in a litigious context, which I think is wholly lamentable.
Lord Renton: My Lords, I hope I may have the leave of the House to make a correction to what I said just now. It has been pointed out to me that there is in the Scottish Bill an opportunity for percentage uplift. But it will be arranged not by the Lord Chancellor or any other member of the Government but by the court.
Lord Simon of Glaisdale: My Lords, this is the most important amendment to be considered on the Bill. This debate is even more important than the debate on what is called the cab rank rule. I echo what has been said: that it is a scandal that the most important issue of the Bill has to be debated in an empty House at this hour of night. One has only to look around to note the absence of my noble and learned friend Lord Hailsham, who made powerful speeches both at Second Reading and in Committee. He is not present, very naturally, at this hour, just as many other noble Lords are not present.
The amendment is important because not even the most cross-brained critic of the law can complain that lawyers, in objecting as they do strongly to this provision, are other than completely disinterested. Your Lordships have heard three notable speeches.
1730
I first entered the other place in 1951. The speech of my noble and learned friend Lord Ackner was one of the most powerful I have ever heard in Parliament.
A further reason why this is so important is that the main arguments at an earlier stage were never answered by my noble and learned friend. Perhaps I may summarise them briefly. The first is that the proposal involves a conflict of interest. The noble Lords, Lord Mishcon, Lord Boardman and Lord Coleraine, have referred to that matter as of great importance in other connections. I am sure they would agree that it is equally important in this connection. The second argument is that there is no provision for independent advice to the client as to whether a contingency fee agreement is in his interests generally or whether the terms are in his interest. Again, the noble Lord, Lord Mishcon, has emphasised on other occasions with great force the importance of independent advice.
The last argument is, as the noble and learned Lord the Master of the Rolls and previous speakers have shown, that the provision imports into a Bill which is intended to promote justice the very principle of injustice. Instead of the court being able to compensate for a wrong by reinstating so far as money can do the plaintiff into the position of which he has been deprived, part of that compensation is lost to the uplift. I say to my noble and learned friend with profound respect that I hope he will specifically address himself to those three points, as well as to the other points raised by my noble and learned friend and by the noble Lord.
Lord Coleraine: My Lords, I had not intended to intervene in the debates taking place at the other end of the Chamber, but the speech of the noble and learned Lord, Lord Simon of Glaisdale, in which he referred to my interests and those of my noble friend Lord Boardman and the noble Lord, Lord Mishcon, in questions of conflict of interest prompts me to say that it has never been held that such issues arose where it was a question of the lawyer fixing the fee with his client. There obviously cannot be an entire situation where there are mutually compatible interests, but certainly questions of conflict of interest do not arise in this respect.
I should like to comment on the conditional fee agreement as contained in the Bill at present. In my view there is always bound to be a point at which legal aid does not reach potential litigants who nevertheless cannot afford the costs of litigation—the fees—and the uncertainties. The Bill has the position right at present in that it gives a potential litigant the opportunity to come to an arrangement with his legal advisers whereby he will have a conditional fee agreement which will mean that he will possibly pay nothing if he loses and possibly an uplift if he wins.
Litigants in such situations would consider it most curious if they had to go to their advisers and try to push the Scottish system upon them by saying, "Look, I have quite a good case but I cannot afford to fight it. Will you take me on on the basis that you will receive your normal fee if I win but nothing if I lose?" That does not seem to me to make sense

1731
and I do not think that any member of the public would see it as such. Far from being a corrupt arrangement, I think that this is a wholesome extension of the availability of litigation and advocacy services to the general public.
The Lord Chancellor: My Lords, we debated the principle of this clause in Committee and at that time it was affirmed by a substantial majority in a fairly full Chamber. Therefore I do not propose to go back over the main arguments of principle in connection with the allowance of conditional fees in this clause. I shall deal with the amendments which have been proposed and which have the effect of removing the possibility of uplift.
The purpose of the uplift and its possibility is to make this a practical arrangement. There is no doubt that, apart from anything else, these days the lawyer conducting the litigation can expect to encounter outlays quite a while before he would be likely to be paid under these arrangements. In the ordinary case he would have to make such outlays and stand out of the money for that period. It seems to me to be right that some arrangements should be made to cover the situation.
At an earlier stage I considered whether it would be practical to distinguish between outlays and other matters. However, I think that it is extremely difficult and not very practical and therefore it is better to permit a more rounded system in which a percentage uplift is allowed. I suggest that that uplift would be of fairly modest proportions and would be fixed under the subordinate legislation powers which have been confirmed.
A good deal has been said about Scotland. Of course I am very happy to talk about it. I used the argument in relation to Scotland that was being developed because it was said that the principle of the system was immoral and that it involved a conflict of interest.
I use the Scottish position to demonstrate that it certainly had not been so regarded in that jurisdiction. If this is a matter of public policy, it seems to me that a common public policy is desirable in the United Kingdom.
The arrangement so far as I can see involves no conflict of interest in a proper sense. Where a solicitor has a wealthy client who can afford the fees that would be required for continuing a litigation, a solicitor or counsel is accustomed to considering the question of whether the case should be settled. An offer may come in near the borderline and he considers it. If the case continues, further fees will be payable to the lawyer. However, I have never heard it suggested that our profession does not apply a proper consideration to these matters. The lawyer often advises a settlement even though it is against his interest in obtaining these continued fees.
The next point I wish to make is in relation to the second point of my noble and learned friend Lord Simon of Glaisdale that justice is denied by the possibility of an uplift. That depends, first, on whether the action would get under way at all. Secondly, all your Lordships who have experience of the law will know that where a client succeeds
1732
against a defendant the costs are taxed against the defendant on a scale which is now referred to as the standard scale. On the other hand, the client has to pay his own lawyer the indemnity scale which may well be considerably higher. What is more, the lawyer has a lien over the proceeds of the action for the payment of that difference. The law has, I believe, recognised that as a proper right in the solicitor to claim his fees—so far as they are not met by the other side—out of the proceeds of the action.
The possibility of uplift could not take place without the agreement of the client. The question is whether the client thinks it worth while to allow that—which is related to the work done, not the amount of damages—in order to bring his case.
The third matter referred to is in relation to legal aid. I made it perfectly plain in answer to the noble Lord, Lord Mishcon—and there is a clause in the Bill immediately after this one based on an amendment which the noble Lord proposed—that this is not to be used as a test. The availability in a particular case of a conditional fee arrangement is not to be used as a substitute for or obstacle to legal aid.
My noble friend Lord Coleraine took up the point that, as I also explained, unless we are in the ideal world to which the noble Viscount, Lord Hanworth, referred yesterday where everybody is entitled to legal aid, there is bound to be an area not covered by legal aid. That is possibly an area where the person who wishes to raise the action does not have money ready to hand but has a good case which he would like to pursue.
My noble friend Lord Renton referred to the report of the advisory committee. I shall not read it all, but paragraph 74 states:
"This committee has always opposed, on the grounds of conflict of interest, the introduction of contingency fees whereby a lawyer is paid only if the client's case is won, with payment fixed by reference to a percentage or share of the award that is made. We are therefore pleased to note that the Government has rejected any type of fee involving a proportion of whatever damages are obtained. We remain somewhat apprehensive, however, regarding the proposal to allow conditional fees with a percentage addition to the normal costs. Although the possibility of serious conflicts of interest arising in such cases is probably remote, it should be ensured that any uplift of this type is unlikely to impair impartiality in the conduct of a case".
In other words, it should not be seen as in the nature of a prize but rather in the nature of compensation in respect of expenses incurred. That is precisely what I am proposing to do.
Lord Renton: My Lords, if the noble and learned Lord will allow me to intervene, I should say that if he reads on to paragraph 76 he will find a further elaboration of the committee's views.
The Lord Chancellor: My Lords, I was proposing to read a good deal more of the report. I was merely making the point that we are seeking power to set an uplift of the type that the committee has in mind. The next part of paragraph 74 is important. It states:
"Nonetheless, we believe that such conditional arrangements might occasionally prove helpful in cases where legal aid is not available, where the client is ineligible or where he or she would be required to make a substantial contribution. On the other hand, we doubt whether such arrangements will have any major impact on financing litigation, first because lawyers will only be

1733
prepared to undertake cases on such a basis if they are reasonably certain of success, and secondly because of the disincentive effect of the costs rule".
That is, as against the client. Paragraph 75 states:
"There are, however, two considerations specifically relevant to legal aid which we would wish the Government to address before releasing the present bar on conditional fees. The first is to ensure that conditional fees are seen as a supplement to legal aid, not as an alternative".
I dealt with that matter in the amendment that I accepted from the noble Lord, Lord Mishcon. My noble friend will be pleased to know that I shall now deal with paragraph 76. However, I have skipped a little bit of the final part of paragraph 75.
Lord Ackner: My Lords, I hope that my noble and learned friend will complete the reading of that paragraph before going on to paragraph 76.
The Lord Chancellor: Yes, my Lords, I shall do that with pleasure, but I thought that I had dealt with it. Paragraph 75 continues by stating:
"Where a client is eligible for legal aid, particularly if no contribution is required, he or she may be well advised to make use of it rather than engaging a lawyer on a conditional basis because with legal aid he or she will usually be protected from paying his or her opponent's costs. We would therefore attach a particular importance to ensuring that the availability of conditional funding in no way affects the present duty on solicitors, whether participating in the legal aid scheme or not, to consider whether a client would be best advised to apply for legal aid".
I certainly do not propose anything contrary to that. As I said, I accepted the amendment which embodies the principle of it. I now come to Paragraph 76. I apologise to my noble and learned friend for the slight delay in coming to that paragraph. Paragraph 76 states:
"We are also concerned to ensure that the availability of conditional fees is not perceived as a reason for not maintaining legal aid eligibility levels, and for not extending legal aid to those areas where it is presently unavailable but much needed. For the reasons outlined above, we do not regard the arrangements for conditional fees as a realistic alternative to legal aid".
I accept all that.
Lord Simon of Glaisdale: My Lords, I am sorry to prevent my noble and learned friend from finally settling down, but he argued that it is up to the client whether or not he enters into a conditional fee agreement. I hope my noble and learned friend will see fit to deal with the second point I made; namely, that no provision is made for independent advice for a client on the matter. Does not my noble and learned friend consider that it is inherently desirable that the client should have such independent advice?
The Lord Chancellor: My Lords, I thought that my noble friend Lord Coleraine had made that point. I certainly dealt with it in Committee in answer to my noble and learned friend the Master of the Rolls. I believe that when a client goes to his solicitor to make arrangements for taking his case on, it is not normal to require the client to take independent advice. If he did, he would have to go to another solicitor to obtain it and there would have to be an arrangement of terms on which it was obtained and so on ad infinitum. Therefore, I see no particular reason why independent advice should be required in this case.
1734
I would say, however, that the noble Lord, Lord Hacking, proposed an amendment as to the form in which the conditional fee arrangement should be couched. That gives the opportunity to standardise the arrangements in such a way as to make independent advice even less necessary. As we know from what we have heard, the lawyer has a duty to give independent advice, independent even of his own interest, in a matter of this kind.
In my submission that point has been adequately dealt with in the argument. The amendment of the noble Lord, Lord Hacking, enables one to deal with it even more fully by means of the form in which the conditional fee agreements might be couched.
Lord Ackner: My Lords, I shall make three very brief comments. My noble and learned friend the Lord Chancellor's reference to outlay at the outset of his speech seems to me to be totally irrelevant. The Scottish system, which it is sought to export with this substantial alteration, of course applied to outlay. If one got one's costs back if one was successful, part of those costs were the outlay. That was self-contained. Otherwise the scheme in Scotland, which was said to have been used over the years, would never have worked at all.
Secondly, as regards legal aid, I made it very clear that I believe that this will be used as an excuse, not for granting legal aid which is covered by an amendment which my noble friend Lord Mishcon achieved, but for extending legal aid, which was the subject of so many speeches yesterday.
Thirdly, I fully concur with what my noble and learned friend Lord Simon said with regard to the need for protection of the client. That was the very point made by the Law Commission, which has been totally disregarded by the Government. Protection against conflicts should be carefully provided for. No protecton at all is provided.
I know that it is late and I know that the House is sparse. I share my noble and learned friend Lord Simon's views about the seriousness of the matter, and I therefore wish the House to pronounce upon it.
9.42 p.m.
On Question, Whether the said amendment (No. 22) shall be agreed to?
Their Lordships divided: Contents, 10; Not-Contents, 45.

DIVISION NO. 2

CONTENTS

Ackner, L. [Teller.]

Hutchinson of Lullington, L.

Benson, L.

Renton, L. [Teller.]

Donaldson of Lymington, L.

Seear, B.

Hacking, L.

Selkirk, E.

Hooson, L.

Simon of Glaisdale, L.

NON-CONTENTS

Abinger, L.

Blatch, B.

Ampthill, L.

Boardman, L.

Arran, E.

Boston, L.

Balfour, E.

Brabazon of Tara, L.

Belstead, L.

Brougham and Vaux, L.

1735

Byron, L.

Home of the Hirsel, L.

Caithness, E.

Long, V.

Carnegy of Lour, B.

Lucas of Chilworth, L.

Carnock, L.

McColl of Dulwich, L.

Coleraine, L.

Mackay of Clashfern, L.

Colnbrook, L.

Mishcon, L.

Crickhowell, L.

Mountevans, L.

Davidson, V. [Teller.]

Prys-Davies, L.

Denham, L. [Teller.]

Reay, L.

Elton, L.

Saltoun of Abernethy, Ly.

Faithfull, B.

Sanderson of Bowden, L.

Ferrers, E.

Skelmersdale, L.

Fraser of Carmyllie, L.

Strathclyde, L.

Gray, L.

Strathmore and Kinghorne, E.

Henley, L.

Hesketh, L.

Trumpington, B.

Hives, L.

Ullswater, V.

Holderness, L.

Wynford, L.

Resolved in the negative, and amendment disagreed to accordingly.
9.49 p.m.
[Amendment No. 23 not moved.]
Lord Simon of Glaisdale Lord Simon of Glaisdale had given notice of his intention to move Amendment No. 24:
Page 38, line 19, after ("be") insert ("illegal or void or").
The noble and learned Lord said: My Lords, this amendment goes with Amendment No. 26. It concerns a rather obscure aspect of the law; namely, the difference between unenforceable, void and illegal contracts. It is rendered all the more difficult as there is great inconsistency of terminology both in judgments and among textbook writers.
I raised the point at an earlier stage and my noble and learned friend was good enough to let me enter into correspondecne with him about it. I believe that we have come much closer together as a result. When I wrote a letter to him yesterday I thought that I had convinced him. However, I received back a letter about midday today and found that my hopes were a little premature.
I left the amendment on the Marshalled List in case it should be picked up in the other place if so wished by one of the many able lawyers there. Perhaps I should indicate my areas of concern. Although I shall not move the amendment, I asked my noble and learned friend whether he would like me to do so and I think he would not want it moved at this stage. The point is that if there is a conditional fee agreement where the uplift in the agreement exceeds a specified percentage and the client makes a payment under that contract but subsequently repudiates the contract, can he get his money back? He cannot if it is unenforceable; he cannot if it is illegal; but he can if it is void. That is the whole point.
Having indicated that point in case anybody in another place wishes to take it up, I shall not move the amendment.
[Amendment No. 24 not moved.]
[Amendments Nos. 25 and 26 not moved.]
The Lord Chancellor The Lord Chancellor moved Amendment No. 27:
Page 38, line 31, after ("consult") insert ("the designated judges,").
The noble and learned Lord said: My Lords, Clause 47 already provides that the Lord Chancellor
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shall consult the General Council of the Bar, the Law Society and such other authorised bodies, if any, as he considers appropriate. I believe that the designated judges should properly be consulted. I wish therefore specifically to provide under the clause for them to be consulted. I am grateful to my noble and learned friend the Master of the Rolls for having raised this matter with me. I beg to move.
On Question, amendment agreed to. [Amendment No. 28 not moved.]
Clause 52 [Multi-disciplinary and multi-national practices]:
Lord Renton Lord Renton moved Amendment No. 29:
Page 40, line 32, 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, with a 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, at Report stage I moved this amendment as a probing amendment because it seemed that there was a good deal of confusion in the Bill through the overlapping of what were then Clauses 26, 28 and 50 and the second part of the fourth schedule in relation to multidisciplinary practices, which is a matter now covered by Clause 52. It is of course a new departure in our law and in the rules, conveyances and practices of the Bar of England and Wales.
It is important—and the noble and learned Lord the Lord Chancellor has on several occasions said so—that where feasible the new machinery introduced by the Bill should apply unless there is some better way of dealing with the matter. For that reason I suggested, as reported at col. 853 of the Official Report of 1st March, that the machinery of the Bill whereby the Lord Chancellor and the designated judges have the last word should apply in particular in this matter.
The point at issue was where the Bar Council found that as a result of the introduction of multidisciplinary practices it has to alter its rules. It is felt that when it has to do so in a way which relates to the formation of a legal relationship by a barrister with another barrister, with a solicitor or with any other person for the purpose of jointly offering professional services to the public, the matter shall in the last resort be covered by the provisions of Part II of Schedule 4. That is what the amendment provides.
I hope that my noble and learned friend the Lord Chancellor will feel that it is consistent with what he has proposed for the Bill as a whole. We have not always agreed with him. However, on this occasion we believe it is important that that is what should occur. I therefore beg to move.
Lord Mishcon: My Lords, it may be for the convenience of the House at this hour if I am permitted to speak to Amendment No. 30 after the noble Lord, Lord Renton, has just introduced his Amendment No. 29.

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As I pointed out at previous stages of the Bill, the Law Society is very concerned indeed, not in regard to multi-national practices (where discussions of the usual friendly and warm nature are taking place with the noble and learned Lord the Lord Chancellor) but in regard to multi-disciplinary practices where the public in its view would not be safeguarded by the same professional rigidity of discipline as the Law Society imposes very properly on its members and where many conflicts could arise between solicitors and members of other callings, professions or trades. The noble and learned Lord said that my anxiety on behalf of the Law Society need not be as great as I thought it was because the Law Society would still be in charge of its rules. It can continue to say that its rules prohibit such (if I may use the phrase) improper partnerships.
I then said, "Please, Lord Chancellor, be aware that there is a Director of Fair Trading. There are competition laws". I do not know what the competition law will be in the future. For all one knows the Law Society may literally be made to alter its rules if one leaves the provision at that.
Amendment No. 30 provides two factors. First, it brings under one umbrella rules relating to multi-national and multi-disciplinary partnerships in the sense that the rule alteration on both cases comes through one procedure instead of a mixed procedure. They go through the procedure in Part II at Schedule 4. It means that before the Law Society can alter its rules in regard to such matters the alteration must go through that procedure and obtain the sanction of the designated judges and the Lord Chancellor.
I and the Law Society have sufficient faith in the designated judges and the Lord Chancellor to realise that they would not give their permission in improper cases. Therefore, if Amendment No. 30 is agreed to the Law Society has its way, as does the noble and learned Lord the Lord Chancellor, and everyone ought to be happy. On that note, and in order to make everyone happy, I shall move my Amendment No. 30 when we come to it.
10 p.m.
Lord Donaldson of Lymington: My Lords, I hate to disturb a happy note. However, I have a nasty feeling that my noble and learned friend the Lord Chancellor will say that this is already governed by Part II, Schedule 4, in relation to rights of audience and the provision of litigation services. I shall not have a right to reply so I shall point out now what I believe to be the fundamental fallacy of my noble and learned friend's reply when he makes it.
The amendment deals with partnership. It is not possible to have a rule which states that it is all right to have, for example, a multi-disciplinary partnership in relation to non-litigious matters but not in relation to litigious matters. Whatever the technicalities, if two people are in partnership to provide legal services they will be in partership for all purposes. In reality one cannot have Messrs. Bloggins, Bloggins, Bloggins and Company in a litigation partnership and the same partners in a
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non-litigation partnership. There will be the same staff, the same premises, the same loyalties and effectively there will be a single partnership.
Therefore, I support both amendments. They face the reality that if people are in partnership in the giving of legal services, unless they are confined to non-litigious services, which is a rare bird, everything must go through the same channel.
Lord Hacking: My Lords, the noble and learned Lord leads me well into the point that I wish to make. In Committee I moved an amendment and argued the advantages and importance of the one regime. I again adopted that argument when the noble Lord, Lord Renton, moved his amendment on Report.
Your Lordships will know that Clauses 25 and 26 and Schedule 4 are restricted to regulation of rights of audience and rights to conduct litigation. The mandate of the advisory committee is much wider and is set out in Clause 18. It states:
"The Advisory Committee shall have the general duty of assisting in the maintenance and development of standards in the education, training and conduct of those offering legal services".
If noble Lords are in any doubt about the width of that mandate, at Schedule 2, paragraph 5(3), they will see:
"The Advisory Committee may from time to time give advice to the General Council of the Bar, the Law Society and other authorised bodies on all aspects of their qualification regulations and rules of conduct, whether or not relating to advocacy or the conduct of litigation".
Therefore, it is quite clear that the advisory committee has a full mandate to deal with that. I suggest that the reality is that when matters concerning the rules of either the Bar or the Law Society come before the advisory committee, very prudently and wisely the advisory committee will look at it with the wider mandate and not simply the limited mandate of rights of audience and rights to conduct litigation.
If I recall correctly—and I do—another function of the advisory committee is to be found at Clause 18(3) relating to the practices and procedures of other member states. It reads as follows:
"In discharging its functions, the advisory committee shall … where it considers it appropriate, have regard to the practices and procedures of other member States in relation to the provision of legal services".
Again, your Lordships will note the width of the mandate which is proposed to be given in this Bill to the advisory committee. That all leads logically, in my submission, to the conclusion that there should be one regime and that that regime should be protected from further investigation by competition authorities or otherwise.
The Lord Chancellor: My Lords, the mandate to give advice, as the noble Lord, Lord Hacking, has pointed out, is extremely wide. I believe that that is advantageous. However, when it comes to requiring approval from the Lord Chancellor and the designated judges, the terms of reference for that approval, as laid out in Clause 27(3) in relation to alterations, are that,
"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".

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That is the only approval function which the judges have because they are concerned with the courts. It is in relation to the courts—rights of audience and right to conduct litigation—that this approval is required. Otherwise there would be an unwarranted interference, perhaps by the Lord Chancellor, in arrangements of this sort if his approval was required, if it did not relate to those two matters.
My noble and learned friend the Master of the Rolls said that it would be very difficult to separate out those matters. In a sense, that makes the amendment less necessary. If, in reality, anyone who wishes to practise fully as a solicitor wants to have a right to conduct litigation, then he must conform to the rules as approved by the designated judges and the Lord Chancellor. However, for example, if a solicitor did not want to do any litigation but wanted purely to give advice, there is no reason why the Lord Chancellor and the designated judges should be concerned. Of course, as your Lordships know, barristers are already in partnership in relation to work in Europe, although when they appear and practise in the court in The Strand, they cannot be so.
It is very important that the judges and the Lord Chancellor in this connection should be dealing with matters which concern the court and only matters which concern the court. Therefore, the provision is for approval in so far as it relates to any right of audience or any right to conduct litigation granted by that body.
I agree with my noble and learned friend the Master of the Rolls that the question of partnership or not in that connection may well settle the matter for the particular individuals altogether. If they do not want to do something which is only outside the court, they will have to conform with the rules approved by the judges. If they are prepared to confine their activities to other matters altogether, then they would be entitled to do that, as illustrated by what I have already said.
This is an important matter in that the jurisdiction of the judges and of the Lord Chancellor is properly confined to matters relating to rights of audience and right to conduct litigation. The phrase:
"relate to any right of audience or any right to conduct litigation"
is fairly wide. It casts the net, or protection of approval, depending on how one looks at it. I think the movers of the amendment at this stage look upon this approval as a protection; if so, that casts protection of approval as widely as it seems to me appropriate. In the light of that explanation, I hope that my noble and learned friend will feel able to withdraw his amendment.
Lord Renton: My Lords, I am grateful to my noble and learned friend for that explanation. In the light of it I certainly do not wish to press this amendment. I take some comfort from the terms of subsection (3) of Clause 27, to which he referred, which is somewhat wider in its terms than I was given to understand and wider than I understood from what he has just said.
"Where an authorised body alters any of its qualification regulations"—
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I am sure that my noble and learned friend would say that "qualification" is the operative word—
"or"—
and this is much wider—
"any of its rules of conduct, those alterations shall not have effect … unless they have been approved under Part II of Schedule 4".
I hope and believe—and I wonder whether the noble Lord, Lord Mishcon, agrees—that if we accept the broad interpretation of subsection (3) it carries us a long way towards what we are seeking in our amendments. I put my amendment first because it appears first on the Marshalled List. However, in the circumstances I feel obliged to beg leave to withdraw my amendment.
Amendment, by leave, withdrawn.
Lord Mishcon Lord Mishcon moved Amendment No. 30:
Page 40, line 32, at end insert—
("() Alterations to the existing rules of the Law Society relating to the formation of a legal relationship by a solicitor with any person who is not a solicitor for the purposes of their jointly offering professional services to the public shall have no effect unless approved under Part 11 of Schedule 4.").
The noble Lord said: My Lords, I wish that I could share with the noble Lord, Lord Renton, the joy that I wanted to share with the noble and learned Lord the Lord Chancellor. However, I believe the remarks which fell from the noble and learned Lord the Master of the Rolls were all too relevant, even though he sought to agree with the spirit of the amendment and the practical way in which it might work out. He forecast absolutely accurately the answer that might be given by the noble and learned Lord the Lord Chancellor.
The reason I cannot share the joy of the noble Lord, Lord Renton, is that he omitted to read aloud—I am sure that he read them to himself—the limiting words to the qualification regulation alteration and the rules of conduct; namely:
"So far as they relate to any right of audience or any right to conduct litigation".
There is therefore a very severe limitation on the ambit of Clause 27.
Lord Renton: My Lords, perhaps the noble Lord will allow me to intervene to say, yes, that is so, but the Bar Council and the Law Society are entitled to limit respectively, in relation to their own numbers, the right of audience or the right to conduct litigation if they are linked with multi-disciplinary practices. It is true that I did not read out the whole of that subsection, but it is necessarily part of the scenario which will be before them on each occasion.
Lord Mishcon: My Lords, I am quite sure that the Bar may take a degree of comfort from what the noble Lord, Lord Renton, has just said and from the ambit of Clause 27. However, the fear that my side of the profession has is in regard to those who conduct conveyancing practices, and conveyancing practices and probate only, and trust work only, and merging in partnership with those whom it would not be seemly, as some of us think, to be in partnership, both in protection of the public and in regard to the way in which a disciplinary body can exercise

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proper control over its members. Possibly the ambit is wider on my side of the profession than it would be with the Bar. I beg to move.
Lord Donaldson of Lymington: My Lords, I hope that this is a convenient moment to endeavour to increase the happiness—notably absent at the moment—of the noble Lord, Lord Mishcon. Unless I have misunderstood the situation greatly, where four designated judges and the Lord Chancellor stop work under the fourth schedule there is a residual designated judge who remains under the Solicitors Act doing his best to support the noble Lord's branch of the profession. Approval is required for any changes in the rules.
Lord Mishcon: My Lords, my happiness with the present designated judge is complete, whatever the hour of the day at which I say that. I was about to go on to refer to the fact that obviously any alteration in the rules would need to have the approval of the Master of the Rolls. That is the one comfort that I am left with. It is a substantial comfort but it would have been very good if we could have written into the Bill a safeguard against, as I put it, the inroads that competition law may make into the jurisdiction, whether it be of the Law Society itself or indeed of the Master of the Rolls in certain circumstances.
However, bearing in mind the fortitude and strength of the present Master of the Rolls, which I hope future holders of the office will inherit from him, I must repose my faith in whoever those persons may be in the future. I have no doubt about reposing my faith in the present holder of the office. In the circumstances, I must ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 53 [Rights of audience for solicitors in certain Crown Courts]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 31:
Page 40, line 45, at end insert—
("(3A) Any direction under this section may be revoked by direction of the Lord Chancellor.")
The noble and learned Lord said: My Lords, I tabled these grouped amendments, Amendments Nos. 31, 32 and 66, as a result of discussion on the third day of Report concerning the provision I then brought forward to replace the existing Section 83 of the Supreme Court Act 1981, in response to a problem raised in Committee by the noble Lord, Lord Hutchinson. Your Lordships agreed to the amendment which now forms Clause 53 of the Bill, subject to my undertaking that I would bring forward an amendment at Third Reading to make directions under the new clause subject to the concurrence of the four heads of division. The second of these grouped amendments represents the fulfilment of that undertaking, by inserting the requirement for that concurrence into Clause 53.
The first of these grouped amendments provides that any direction under the new Section 83 may be revoked by direction of the Lord Chancellor. As I understand the old Section 83 the simple revocation of a direction was not possible. It is clear, however,
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that if, for example, a temporary shortage of counsel at a particular court ceased, or a court changed its location, then revocation of such a direction might well be appropriate. That emerged in our discussions and it is right to provide for it.
The third amendment of this grouping is a saving provision for the existing directions that have been made under the existing Section 83. I have made clear throughout the discussions we have had on Section 83 that my firm view is that the existing directions must be preserved. I understood your Lordships agreed with that. Indeed, the noble Lord, Lord Hutchinson, proposed an amendment to do just that. Amendment No. 31 achieves that aim. I beg to move.
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No. 32:
Page 41, line 3, at end insert—
("(5) Any exercise by the Lord Chancellor of his power to give a direction under this section shall be with the concurrence of the Lord Chief Justice, the Master of the Rolls, the President of the Family Division and the Vice-Chancellor." ").
The noble and learned Lord said: My Lords, I have already spoken to this amendment. I beg to move.
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No. 33:
After Clause 53, insert the following new clause:
("Exemption from liability for damages etc.
.—(1) Neither the Lord Chancellor nor any of the designated judges shall be liable in damages for anything done or omitted in the discharge or purported discharge of any of their functions under this Part.
(2) For the purposes of the law of defamation, the publication by the Lord Chancellor, or by a designated judge, of any advice or reasons given by him in the exercise of functions under this Part shall be absolutely privileged.").
The noble and learned Lord said: My Lords, I spoke to this amendment with Amendment No. 7. I beg to move.
On Question, amendment agreed to.
Clause 79 [Tying-in arrangements]:
Lord Prys-Davies Lord Prys-Davies moved Amendment No. 34:
Page 58, line 43, at end insert—
("(5A) No supplier nor any associate shall offer to provide combined services for a specified consideration for those combined services or separate considerations for each of them unless the offeror—

(a) specifies the apportionment of the consideration between the several services, and

(b) offers to provide any of the services separately for the part of the consideration apportioned to that service.

(5B) For the purpose of subsection (5A)—

"offer" includes an invitation to treat;

"combined services" means any combination of services whether provided or offered by the supplier or any associate of his or partly by the supplier and partly by the associate; and

"associate' includes any partner and any associated company within the meaning of section 416 of the Income and Corporation Taxes Act 1988.

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(5C) No offence shall be committed under subsection (5A) where it can be proved—

(a) that the offer was in writing and included clear notice of—

(i) those considerations which did not apply unless combined services were provided; and

(ii) the combined services which were to be provided; and

(b) that where the consideration for each separate service was greater than it would have been if that service had been provided as part of combined services, the difference was justified because of the greater cost to the supplier or associate of providing services separately.

(5D) The Director General of Fair Trading shall investigate any complaint that an offence under this section may have been committed and take such further action as he considers appropriate.
(5E) Subsection (5D) shall not apply where the Director General of Fair Trading is satisfied that the complaint is being or has been investigated by any other public authority with power to prosecute for the offence.").
The noble Lord said: My Lords, subsections (5A) and (5B) of the amendment reproduce the precise wording of an amendment which was discussed on Report and which was aimed at tightening the prohibition on tying-in arrangements contained in Clause 79; but in the course of discussing that amendment it was felt that it went too far, and that a supplier offering a combination of services should have the opportunity to offer to the consumer a rebate of a proportion of the profit. The amendment seeks to remedy the defect in the amendment which was discussed on Report.
The remedy is to be found in subsection (5C). That subsection accepts that it may be in the purchaser's interest to allow the supplier to offer a package of services where the conditions contained in subsection (5C) arc complied with. That subsection requires that the offer should be in writing; that it should make clear the linked nature of the transaction; that it should specify the costs related to the combined services and those related to each of the separate services, provided, however, that the rebate offered for a combined service is justified because of the greater true costs of providing the services separately.
Without the safeguard of subsection (5C)(b) of the amendment it would be open to the supplier to embark upon a price cut which did not cover the costs of the service to the purchaser.
Finally, the amendment also requires the Director General of Fair Trading to oversee the enforcement of the provision. I hope and trust that the amendment, containing as it does new material in subsection (5C), will be acceptable to the House. The amendment is supported by the Law Society and the National Consumer Council. I beg to move.
The Lord Chancellor: My Lords, we have discussed the amendment in different forms during the various stages of the Bill. I am bound to say that the addition of subsection (5C) makes it a little nearer what I believe might be right. However it is unfortunate that the provision should be expressed in the way in which it is.
The clause does not appear to me to be necessarily in the consumer's interest. I am not sure in whose
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interest it is proposed, but I understand from the noble Lord that it is supported by the NCC. I find it a little hard to see how it is in the consumer's interests. It may be so. In which case I have not completely understood it.
The clause sets out a more complex regime for offering packages than is strictly necessary. That creates extra work for the supplier of the services, which means that the terms of the package may not be as generous as they may have been without that additional work. I do not see how that can be in the consumer's interest.
The clause as drafted already provides much of what this amendment seeks. For example, it makes for transparency of pricing. Subsection (5) already provides for separate pricing by requiring that separate details shall be given in writing in respect of each service. Where a consumer is being offered a package of services which includes a mortgage, he will of necessity be told of the cost or terms of that package and, as I have explained, by virtue of subsection (5) he will be given separate details in respect of each additional service. This will enable him to determine whether he is being given a fair deal.
Another similarity between the clause and the amendment is that the present clause already by implication provides that the supplier will have to be prepared to offer any of the services separately in that he cannot make the taking of one conditional on the taking of another. I accept that the clause does not require an apportionment of the consideration. This requirement that the service be offered on these terms, while superficially appearing to be in the interests of the customer, overlooks the way that business pricing works.
What we are trying to do is to prevent the consumer being forced to take services he does not want. Forcing businesses to change their pricing system plays no part in this. It may be said that the mere offering of a package of services at a reduced price is of itself an inducement to take unwanted services. As I read the amendment, this is one of the ills it seeks to cure. If that is the effect of offering a package, and I am not sure that it is, we should perhaps ask ourselves whether we should deny to the consumer the benefit of that financial package. Does it not make the cure worse than the illness? Any matter that is in the consumer's interest as well as perhaps being a matter of fair competition could appropriately be dealt with in the regulations under the earlier clause which specifies the conditions on which the authorised practitioners would be allowed to offer their services.
Perhaps I may turn to the last two subsections in the amendment which provide that the Director General of Fair Trading shall investigate offences under this section unless he is satisfied that some other public authority was investigating them. I accept that there needs to be some specific provision as to enforcement of this clause. It may be, however, that enforcement should not be the responsibility of the Director General of Fair Trading but should be perhaps for local trading standards officers. I am seeking to obtain views on this. It is important to get an effective mechanism. The local trading

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standards officers seem to provide the most likely one. I had hoped to be able to bring forward proposals in this connection but I shall not be able to do so. However, the matter will be for consideration in another place. In the light of these explanations, I hope that the noble Lord will not press the amendment.
Lord Prys-Davies: My Lords, I am grateful to the noble and learned Lord for his sympathetic response to the principle of the amendment. He has gone a long way to meeting the concern of the National Consumer Council and of the Law Society. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 80 [Liability of magistrates for damages and costs]:
Lord Renton Lord Renton moved Amendment No. 35:
Page 59, line 40, at end insert:
("(3A) For the purposes of sections 44 and 45 the term "justice of the peace" includes Stipendiary Magistrate, Metropolitan Stipendiary Magistrate, acting Stipendiary Magistrate and acting Metropolitan Stipendiary Magistrate.").
The noble Lord said: My Lords, I raised this purely technical matter in Committee and my noble and learned friend agreed to deal with it. He has kindly written to me saying that he will consider it. Perhaps I may move the amendment in the hope that my noble and learned friend will accept it.
The Lord Chancellor: My Lords, I have had the matter looked into with a view to bringing forward an amendment. There has never been a policy difference between us on this point. The amendment is acceptable in principle. My noble friend is right as regards metropolitan and acting metropolitan stipendiary magistrates. I believe, however, that provincial and acting provincial stipendiary magistrates are already covered by the terms of the Justices of the Peace Act 1979. I had a little difficulty in accepting that that was the position but it appears to be so. I therefore suspect that a slightly different form of words from that proposed by my noble friend may be preferable. If he will allow me I shall have the matter dealt with in another place. We are now in a position to do so but I was not able to put down an amendment in good time for Third Reading. Therefore, if my noble friend will allow me to do so, we shall put forward an amendment which exactly covers the area of difficulty.
Lord Renton: My Lords, I am much obliged to my noble and learned friend. The matter is quite important in practice because it affects the immunity of acting magistrates and those acting outside their immediately authorised jurisdiction. In view of what my noble and learned friend has undertaken to do, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
10.30 p.m.
Clause 85 [Administration of oaths and taking of affidavits]:
Lord Byron Lord Byron moved Amendment No. 36:
Page 63, line 14, at end insert:
("(10) Every—

(a) solicitor who holds a practising certificate which is in force;

(b) authorised person;

(c) general notary; and

(d) member of the Incorporated Company of Scriveners ("the Company") who has been admitted to practise as a public notary within the jurisdiction of the Company,

shall have the right to use the title "Commissioner for Oaths".")
The noble Lord said: My Lords, this amendment arises out of another amendment introduced by the noble and learned Lord the Lord Chancellor on the last day of the Report stage of the Bill. That amendment, which is now Clause 85, repeals the powers of the Lord Chancellor to appoint commissioners for oaths. They will therefore in the fullness of time become an extinct species.
Under the Solicitors Act 1974, every solicitor with a practising certificate has the powers of a commissioner for oaths. For some time there has been an important distinction between an ordinary practising solicitor and one who has been given the title of commissioner for oaths. The only difference between me and the noble Lord, Lord Mishcon—and I hope he will forgive me for using him as an example—in administering an oath is that he would be entitled to describe himself as a commissioner for oaths and I would describe myself as a solicitor empowered to administer oaths.
Clause 85 confers on a wider group of people the powers of a commissioner for oaths—that is, a new category of authorised persons. The intention is no doubt very sensible in view of the other changes in the Bill. However, I venture to disagree with the noble and learned Lord the Lord Chancellor when, in introducing the original amendment, he said:
"It will certainly be less confusing to the public."—[Official Report, 1/3/90; col. 936.]
To have solicitors, notaries, authorised litigators and authorised advocates all exercising the powers of a species which in due course will become extinct, cannot in my submission be anything but confusing to the public.
The purpose of the amendment—which I should point out is supported by the Law Society—is to confer on all these various bodies the title of commissioner for oaths. It is not simply a matter of nomenclature or title; there is some practical importance in what is proposed. Many documents have to be sworn before commissioners for oaths for proceedings in this country and abroad. It is somewhat confusing, even at the present time, if a document has to be sworn before a commissioner to say, "Well, this person is not actually a commissioner, but he has all the powers of a commissioner".
In my view it will become doubly confusing in the future when commissioners will have disappeared altogether but a whole body of people continue to

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exercise their powers. It would be very much easier for those who exercise this power to do so using the simple title of commissioner for oaths rather than a more elaborate title such as authorised person empowered to administer oaths pursuant to Section 85 of the Courts and Legal Services Act. It is a small but practical amendment. I beg to move.
Lord Hacking: My Lords, I rise to express my support for the amendment. There are an increasing number of documents which have to be authenticated for overseas jurisdictions. Sometimes the machinery is extremely complicated. Therefore it greatly assists people to have a clearly identifiable person in the other jurisdiction—and for these purposes our jurisdiction—who is a named person like a commissioner for oaths, because that person is identifiable. It helps to avoid the complications which can arise in satisfactorily authenticating documents of other jurisdictions.
Lord Mishcon: My Lords, I am proud to share the dignified title which I hold and to which the noble Lord was kind enough to refer, with anybody who is empowered to take oaths. However, perhaps I may point out one possible difficulty, even though I may be wrong about it. Internationally, a notary is required to attest documents. The word "notary" is known abroad as a requirement. If this means, as it seems to do, that in future notaries describe themselves as commissioners for oaths, I am afraid that quite a lot of international difficulty might arise, with the document being sent back with the requirement that it must be signed before a notary, not before a commissioner for oaths. Provided the notary was intelligent enough when taking oaths within the jurisdiction of the United Kingdom to sign, "Commissioner for Oaths" and when he attested documents which had to go abroad as "notary", all would be well. I thought I ought to raise the point in case it had any relevance.
The Lord Chancellor: My Lords, as I said when I moved the amendment on Report, I have no desire to remove from the noble Lord, Lord Mishcon, the noble title of "Commissioner for Oaths". I think it is a title dignified by antiquity as well as by nobility; therefore I can well understand people having a desire to use it. I think the point made by the noble Lord, Lord Mishcon, may have to be addressed. The amendment says:
"shall have the right to use the title 'Commissioner for Oaths'".
As the noble Lord has said, an intelligent notary should be able to use the correct title for this situation and one would hope that that would be a qualification for being a notary—that one had the necessary level of intelligence.
The noble Baroness suggests that she does not accept that as necessarily true without further evidence. I do not think I should go further into that point at this juncture.
I should be content to accept the amendment—it seems a fairly small point—so long as the noble Lord, Lord Byron, will not think that I am defeating him if I were to come along with some emendation of the amendment in the course of proceedings
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through another place. I have no reason to believe that I would require to do that, but we have not had a chance to examine it in the light of the point made by the noble Lord, Lord Mishcon, for example. I should just like to be sure that it is all right. Subject to that, I am content that this amendment should be accepted.
Lord Byron: My Lords, I am grateful for what the noble and learned Lord has said. I do not claim authorship of the amendment, and if it can be improved, so be it; I shall be content.
On Question, amendment agreed to.
Clause 86 [Bail applications]:
Lord Hacking Lord Hacking moved Amendment No. 37:
Leave out Clause 86.
The noble Lord said: My Lords, it appears that the torch has passed from the noble Lord, Lord Hutchinson, to me. This amendment relates to bail applications, and your Lordships may recall—and it is only the faithful among your Lordships who are still here now—that we debated this matter at 2.15 a.m. on 5th February. We again debated the matter very late at night at Report stage, at something like 20 minutes before midnight.
The reason why I bring the matter again before your Lordships—and I was hoping to do so at an earlier hour of the evening, but that has already been defeated—is not in any way to criticise the Crown Prosecution Service. It is right that the noble Lord, Lord Hutchinson, has not in any of his submissions relating to the amendment or elsewhere suggested that he was making any criticism of the Crown Prosecution Service. I hope I may briefly remind your Lordships of what I said on the last day of Report, at col. 941 of Hansard for 1st March:
"Bail applications must not be seen as a mere formality which can be presented by an unqualified person. The outcome determines, on the one hand, whether an unconvicted person nevertheless spends time in custody before trial; on the other hand, whether somebody who may be a danger to the public is to be allowed to remain free prior to trial. It is an extremely sensitive balance between the rights of the individual and the right to protect the public at large. It lies at the very heart of all contested bail applications."
My wife is a qualified doctor. In the medical profession, that judgment is always used when matching the qualifications of the doctor against the task that is to be performed. To transfer that to the legal profession, for the reasons I advanced on Report and which I read out again to your Lordships just now, is a matter which is in the higher rather than in the lower realms of skill and judgment of a lawyer. Therefore it follows that this is not a matter that should be handled by unqualified people. That is the simple point that I seek to make. I beg to move.
Lord Hutchinson of Lullington: My Lords, I moved a similar amendment on two previous occasions. The noble and learned Lord showed no signs whatever of accepting the principle on which I moved those amendments. In those circumstances, I took the view that it would not be appropriate to put the same amendment down on Third Reading as this is a

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non-elected House. Those are the circumstances in which I do not add my name to the amendment. Nevertheless, I am sympathetic to it.
The Lord Chancellor: My Lords, the eloquence of the noble Lord, Lord Hutchinson, drew out of me everything I had to say on this amendment on the two previous occasions that we discussed it. I do not have anything to add. My understanding is that this practice was widespread until the decision of the Divisional Court in R v. DPP ex parte FDA. That case was primarily concerned with the rather different question of who should screen prosecutions and advise on whether they should continue. That is the vital decision that has to be taken by the Crown Prosecution Service. A side effect of the decision on that was to make illegal the use of law clerks in bail applications. That was the cause of the definition of the vital phrase in the Act. All that I have seen suggests to me that this practice is perfectly acceptable. The decision ultimately is one for the judge who has the proper qualifications for the situation that he has to deal with. I said earlier, and I believe it to be the case, that the senior presiding judge gives his support to this proposal. The practice has also been found acceptable to a good number of circuit judges. The matter is one of judgment. I have nothing to add to what was said before. I think it right to allow this to be restored as a side effect of the judgment which does not need in practice to be continued.
Lord Hacking: My Lords, we have debated this amendment late at night. I moved my amendment briefly, and I shall now briefly withdraw it.
Amendment, by leave, withdrawn.
Clause 90 [Interpretation]:
Page 65, line 37, at end insert ("or in respect of whom the body makes rules or regulations").
Lord Hacking: My Lords, I shall move Amendment No. 38. I had a private agreement with the noble Lord, Lord Mishcon, that I would take over this banner from him.
The amendment is a technical amendment but it also affects the Institute of Legal Executives.
Your Lordships will know from Clause 25(2) of the Bill that the structure for rights of audience is based upon rights of audience granted by the appropriate authorised body. In Clause 25(9) your Lordships will find the definition of an appropriate authorised body, which is as follows:
"'appropriate authorised body', in relation to any person claiming to be entitled to any right of audience by virtue of subsection (2)(a), means the authorised body—

(a) granting that right; and

(b) of which that person is a member"

In the case of the Law Society—and I believe also of the Bar Council although I have had only a short time to consider the matter in relation to the Bar Council—the solicitors' disciplinary tribunal, which is the body responsible for discipline over solicitors, applies to both paid-up members of the Law Society and those who are not members of the Law Society. I think that the position is the same with the Bar and that it is possible to practise at the Bar without
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paying subscriptions to the Bar Council and being a member of that body. Nonetheless, I am quite sure that, under Part 8 of the new disciplinary proceedings under the code of conduct which the Bar adopted on 27th January to take effect at 31st March this year, whether or not a member of the Bar has paid his subscription and is therefore a member of an authorised body within the meaning of Clause 25 he will be subject to discipline.
It therefore follows that persons who are not members of either the Law Society or the Bar Council will not fall into the category that I have identified under Clause 25. It is for that technical reason that I ask the noble and learned Lord to consider favourably the thrust of the amendment.
We have already debated at some length the position of legal executives and solicitors' clerks and the mechanism under which they can be granted, under this Bill, extensions to their current rights of audience. The noble and learned Lord has taken the rather firm position that in future any persons who wish to achieve extensions or new rights of audience can only do so under the operation of the Bill, and if they are members of either the Bar Council or the Law Society they must be members of a body which has been authorised under the provisions of the Bill. The effect of that position would be that if legal executives are to achieve further rights of audience they can only do so as a result of the Institute of Legal Executives, for example, becoming an authorised body and granting those rights.
I should like to say to the noble and learned Lord that that creates an anomalous position because of the relationship of the legal executive to the member of the Law Society. That is the relationship of employee and employer—an employer, incidentally, who has considerable disciplinary powers, which every employer is entitled to have, over his employees. If a legal executive or solicitor's clerk should misbehave, the Law Society can visit its discipline on the solicitor who employs that clerk or legal executive who has for one reason or another misbehaved himself.
I merely mention all that to noble Lords because the amendment would also have the desirable result of enabling the Law Society to grant rights of extension to solicitors' clerks as it is thought right, both by the Law Society and the institute, to serve the best interests of the profession and, more significantly, the public at large. The central purpose of moving the amendment is the technical one that I have just addressed. I beg to move.
The Lord Chancellor: My Lords, on the first part of the noble Lord's submission in support of the amendment, I shall be happy to consider whether we should look at the definitions to ensure that all those that we wish to cover are covered. On the noble Lord's second point, I should not be content to accept the principle of that suggestion because I believe it right that, if the Institute of Legal Executives is to have rights of audience, it should do so directly. With that explanation, perhaps the noble Lord will feel able to withdraw his amendment.
Lord Hacking: My Lords, indeed I do. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 94 [Extent]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 39:
Page 67, line 12, leave out ("and").
The noble and learned Lord said: My Lords, this amendment together with Amendment No. 40 extends to Scotland the provision contained in Schedule 13 (the schedule of minor amendments) removing the prohibition on a solicitor being able to act as a ship's agent or sub-agent. I beg to move.
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No. 40:
Page 67, line 14, at end insert ("; and
(h) paragraph I of Schedule 13.").
The noble and learned Lord said: My Lords, I have already spoken to this amendment. I beg to move.
On Question, amendment agreed to.
Schedule 1 [The Advisory Committee]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 41:
Page 71, line 25, at end insert—
("Immunity for advice and reports
11A. For the purposes of the law of defamation, the publication of any advice or report by the Advisory Committee in the exercise of any of its functions shall be absolutely privileged.").
The noble and learned Lord said: My Lords, I have already spoken to this amendment with Amendment No. 7.
On Question, amendment agreed to.
Schedule 4 [Authorisation and Approval]:
The Lord Chancellor The Lord Chancellor moved Amendments Nos. 42 to 62:
Page 76, line 32, leave out from ("shall") to ("ask") in line 33 and insert—
("(a) send a copy of the application and of any documents provided under sub-paragraph (2)(c) or (3) to the Advisory Committee and to each of the designated judges; and
(b) ").
Page 76, line 37, leave out from second ("the") to ("to") in line 38 and insert ("documents mentioned in paragraph (2)(4)(a)").
Page 77, line 1, leave out ("of any advice or report") and insert ("by the Lord Chancellor or the Director of any advice given").
Page 77, line 8, leave out from ("shall") to the end and insert ("send a copy of the advice to the applicant.
(1A) The applicant shall be allowed a period of 28 days, beginning with the day on which the copy is sent to him, to make representations about the advice—

(a) to the Lord Chancellor; or

(b) where the Lord Chancellor appoints a person for the purposes of this sub-paragraph, to that person.

(1B) When the period of 28 days has expired the Lord Chancellor shall consider, in the light of the advice and of any representations duly made by the applicant under sub-paragraph (1A)—").
Page 77, line 12, leave out ("(1)") and insert ("(1B").
Page 77, line 14, leave out from ("judge") to end of line 20 and insert ("a copy of—
(i) the advice; and
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(ii) any representations duly made by the applicant under sub-paragraph (1A); and").
Page 77, line 22, leave out ("(1)") and insert ("(1B)").
Page 77, line 26, leave out ("(1)") and insert ("(1B)").
Page 77, line 29, leave out paragraph (5).
Page 77, line 35, after ("principle") insert ("(whether because of any provision of the regulations or rules, or for any other reason)").
Page 77, line 37, leave out from ("Chancellor") to end of line 40 and insert ("in writing both of his decision and of his reasons for reaching it.").
Page 77, line 42, leave out ("sub-paragraph (1)") and insert ("this paragraph").
Page 78, leave out lines 2 to 9 and insert ("refused to approve the application it shall fail.
(10) The Lord Chancellor shall, if the applicant applies to him in writing, notify the applicant of—

(a) his reasons for reaching his decision; and

(b) the reasons given by each designated judge for reaching his decision.").

Page 79, line 16, leave out from ("shall") to end of line 17 and insert—
("(a) send a copy of the application and of any documents provided under sub-paragraph (2)(c) or (3) to the Advisory Committee and to each of the designated judges; and
(b) refer the application to the Committee for advice.").
Page 79, line 19, leave out from second ("the") to ("to") in line 21 and insert ("documents mentioned in paragraph (8)(4)(a)".).
Page 79, line 32, leave out ("of any advice or report") and insert ("by the Lord Chancellor or the Director of any advice given".).
Page 79, line 39, leave out from ("shall") to the end and insert ("send a copy of the advice to the applicant.
(1A) The applicant shall be allowed a period of 28 days, beginning with the day on which the copy is sent to him, to make representations about the advice—

(a) to the Lord Chancellor; or

(b) where the Lord Chancellor appoints a person for the purposes of this sub-paragraph, to that person.

(1B) When the period of 28 days has expired the Lord Chancellor shall consider, in the light of the advice and of any representations duly made by the applicant under sub-paragraph (1A)").
Page 79, line 41, leave out ("(1)") and insert ("(1B)").
Page 79, line 43, leave out from ("judge") to end of line 4 on page 80 and insert ("a copy of—

(i) the advice; and

(ii) any representations duly made by the applicant under sub-paragaph (1A);").

Page 80, line 18, leave out from ("Chancellor") to end of line 19 and insert ("in writing both of his decision and of his reasons for reaching it.
(6A) When—

(a) the Lord Chancellor has discharged his duties under this paragraph; and

(b) the dsignated judges have notified him of their decisions, the Lord Chancellor shall notify the applicant of the result of its application.").

Page 80, line 22, leave out sub-paragraph (8) and insert—
("(8) The Lord Chancellor shall, if the applicant applies to him in writing, notify the applicant of—

(a) his reasons for reaching his decision; and

(b) the reasons given by each designated judge for reaching his decision.").

The noble and learned Lord said: My Lords, I have already spoken to Amendment Nos. 42 to 62 inclusive with Amendment No. 11. I beg to move.
On Question, amendments agreed to.
Lord Ackner Lord Ackner moved Amendment No. 63:
Page 80, line 30, after ("28(2)(c)") insert ("or is advised by one or more of the designated judges that there are grounds for making such a recommendation").
The noble and learned Lord said: My Lords, my noble and learned friend the Lord Chancellor was kind enough much earlier in the evening to indicate that the amendment was acceptable to him. It completes the batch of amendments that we sought to Schedule 4. It brings the designated judges into the issue of revocation of an order, thereby enabling them, if they wish, to take that step to have their representations considered at the same time as my noble and learned friend considers whether he will exercise his powers under Clause 28(2)(c) which will be found on page 23 of the Bill. I beg to move.
The Lord Chancellor: As my noble and learned friend said, I have already indicated that I commend the amendment to the House for acceptance.
On Question, amendment agreed to.
Schedule 7 [Probate]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 64:
Page 86, line 7, after ("case,") insert ("they").
The noble and learned Lord said: My Lords, this is a minor drafting amendment to improve the grammar of subparagraph 4(b). I beg to move.
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No. 65:
Transpose Schedule 7 to after Schedule 8.
The noble and learned Lord said: My Lords, this amendment puts the schedules in a slightly better order than they were in at the end of the Report stage. I hope that noble Lords will agree to the amendment.
On Question, amendment agreed to.
Schedule 15 [Transitionals and Savings]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 66:
Page 124, line 19, at end insert—
("Directions under section 83 of the Supreme Court Act 1981 (c.54)
2A.—(1) Any direction given under section 83 of the Supreme Court Act 1981 (right of audience for solicitors in Crown Courts) and in force immediately before the commencement of section 53 shall have effect as if validly made under section 83 as substituted by section 53.
(2) This paragraph is without prejudice to section 17(2)(b) of the Interpretation Act 1978.").
The noble and learned Lord said: My Lords, I have spoken to this amendment with Amendment No. 31. I beg to move.
On Question, amendment agreed to.
Schedule 16 [Repeals]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 67:
Page 127, line 34, at end insert—

(1975 c.27.

The Ministerial and other Salaries Act 1975.

In section 1(2), the words from "but" to the end.")

The noble and learned Lord said: My Lords, this indicates that the Lord Chancellor thinks of himself last. This amendment adds to the list of statutory provisions providing for the abatement of judicial salaries which was repealed by Schedule 16 so that the Lord Chancellor's salary will not be subject to abatement any more than the other judges'. I beg to move.
On Question, amendment agreed to.
An amendment (privilege) made.
The Lord Chancellor: My Lords, I beg to move that this Bill do now pass.
Moved, That the Bill do now pass.—(The Lord Chancellor.)
Lord Mishcon: My Lords, if anyone at this stage were to make a speech incorporating all that he felt had been done by the House to improve the Bill and the defects which he felt were still left, he would be the most unpopular Member of your Lordships' House. I therefore do not intend to do any such thing.
I merely say that this is a Bill in which I know the noble and learned Lord has a great deal of confidence. His aim was always to get a better and more economical system of justice for our citizens. Many of us have approved of the aim but disagreed with the means.
However, by and large we know that there are many provisions in the Bill which bode well for the future. We can only hope that some of our forebodings are not fulfilled in the future as facts.
I want to say one thing more. I am deeply indebted to my colleagues, and to the noble Lord, Lord Prys-Davies, in particular, who have helped me in regard to this important Bill. I want to close with a very sincere expression of admiration, which I believe is shared throughout the House, for the patience, courtesy and physical and mental endurance of someone who will go clown in history as a great but extremely obstinate Lord Chancellor.
Lord Renton: My Lords, I, too, would not wish to turn this session into an all-night sitting. But there are a few words that I should like to say. First, I should like to endorse the praise so felicitously expressed by the noble Lord, Lord Mishcon, about the way in which my noble and learned friend the Lord Chancellor has handled the Bill. On numerous matters of detail and drafting in this excessively complex and detailed Bill he has enabled us to help him to improve it.
On some matters of principle he has made some useful concessions. Alas, he has refused to accept our proposal that only barristers and solicitors should be judges of the Supreme Court, a decision that was made late at night with few Peers present. Members of the public will not understand that. It is very hard to understand the Government's altitude on it. I hope that my noble and learned friend is capable of changing his mind on some important matters, including this one, and that in another place there may be further thoughts on the matter.

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The main purpose of the Bill is to give solicitors and some members of other professions the right of audience as advocates in all our courts of law and to enable them to become judges even in the higher courts. The barristers and judges who have taken part and those who have advised us from the outside have not opposed the main purpose of the Bill.
In order to achieve it, however, the Bill creates an unnecessarily elaborate, complicated, cumbersome and expensive administrative system. I suggest that it would have been much better to have a short Bill which said in effect: "Solicitors and certain members of other professions shall have the right to appear as advocates in any court of law subject to the cab rank rule and to certain simple safeguards to ensure their competence, and they shall be eligible for appointment as judges in any part of the judiciary." That is simple enough, capable—with the usual British good sense and understanding—of being implemented without the great palaver that is introduced by the Bill.
Under the Bill the advisory committee, the legal services ombudsman, the Director of Fair Trading and others, are given functions which I suggest are quite unsuited to the administration of justice. But the Government say, "But all of that is necessary to ensure competition." But will it? The Bar is extremely competitive as it is, and the number of solicitors seeking rights of audience in the higher courts in the first few years will make scarcely any difference to competitors.
In the long term, however, the Bill will lead to there being less competition because most of the larger solicitors' firms, especially in London and the large cities, will establish their own advocacy departments and will expect them to keep their advocacy work in the firm instead of going outside it by briefing barristers. That will be a big step in the long run towards fusion of the two branches of the legal professions and that will be a denial of competition. They have fusion in the United States and elsewhere and they find it impossible to break it up.
There will have to be great vigilance on the part of those people who are given responsibility under the Bill to see that it does not lead to the kind of unacceptable situations to which it could lead.
Lord Boardman: My Lords, I join with the noble Lords who have spoken in congratulating my noble and learned friend on the ability, courtesy and stamina—the pure staying power—that he has shown during the long days that the Bill has been before the House. I have found in almost all cases that the lucidity of his answers to points raised has been convincing. As he knows, I have certain reservations on a couple of matters which I shall not detain the House by raising again except to say that I hope that they will be looked at in another place and considered again.
I think it right that I pay tribute to the noble Lord, Lord Mishcon, who has also shown great stamina, displayed great clarity, and has done a great deal for the Law Society in the presentation of his case. I
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hope that the Bill achieves all that my noble and learned friend desires. I believe that in view of his diligence and patience it deserves the outcome that I am sure he expects and I hope that that will be so.
Lord Hutchinson of Lullington: My Lords, the greatest asset of an advocate is courage. I am afraid that I shall show courage and be extremely unpopular in the view of my noble friend Lord Mishcon, because there are a number of matters that I wish to raise despite it being five minutes past eleven, on the last day of our deliberations on this Bill.
I also should like to pay tribute to the stamina, patience and unfailing courtesy of the noble and learned Lord. His Lone Ranger performance, if I may put it in that way, has certainly been remarkable in conducting our deliberations on this Bill.
Despite that asset, I must admit that I have found our debates somewhat depressing. I end by expressing the gravest doubts as to the eventual impact of the Bill on the provision of legal services in England and Wales. It is to those doubts that I should like to turn.
As a lawyer, I can think of no finer purpose than to make justice more accessible, cheaper, quicker, comprehensible and rigorously honest. I fear that the Bill will achieve none of those things. My greatest sadness is the narrowness, the small-mindedness, of Part II.
When the concept of justice is under discussion great matters of principle inevitably arise because justice is the basis of our civilisation. I am proud that lawyers in this House raised such matters during our debates and insisted on them being discussed, even though it was not a course which found favour with those noble Lords whose only interest was the next business of the House.
In general, the noble and learned Lord avoided discussion of those great issues. The Royal Commission of the noble Lord, Lord Benson, wrestled with such matters for four years. Yet the Government have resolutely refused to refer to, criticise, reject or accept the conclusions of that enormously conscientious commission. Such matters have been consigned by the noble and learned Lord the Lord Chancellor to be discussed hereafter by his advisory committee of appointees with its lay majority, operating what hitherto has been known as "the administration of justice" but what will now be known as "the mechanism".
Ironically, the Bill replaces the relatively simple restrictions which have controlled the conduct and practice of advocates with bureaucratic machinery of a complexity and density which could have been devised only in the darkest caverns of the Civil Service, with codes of conduct to be policed by an unknown number of authorised bodies from whose ranks will spring a new race of para-legals, none of whom needs to be a professional lawyer.
At an early stage I expressed the view which has been referred to this evening by the noble and learned Lord; that one of the central but unadmitted aims of the Bill was to cut the cost of legal aid by gradually removing the independent barrister from

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the Crown Courts, restricting representation there through the Legal Aid Bill 1988. Although a dozen or so of the more ridiculous ideas in the Green Paper find no place in the Bill—something for which we can all be thankful—our deliberations on Part II have served only to confirm my original suspicions.
It is quite clear that the Government accept the situation in which all prosecutions will ultimately be conducted by salaried state employees of the Crown Prosecution Service. They accept the situation in which defences will be conducted by para-legals certified as competent to handle limited types of cases in appropriately designated courts and that legal-aided cases will be prepared, investigated and conducted by part-time advocates clustered round the Crown Courts, directly approached by uninformed members of the public, and strictly controlled under the provisions of the new Legal Aid Act.
Therefore, in my opinion, the Bill will produce polarisation to the detriment of the public and of justice. The independent, full-time sole practitioner advocate, free from conflicts of interest, engaged through informed professionals with no interest in the outcome of the case, will no longer have a role. That too will be to the detriment of the public and of justice. The efficient, delicately adjusted relationship of high street solicitor and universally available barrister—in my opinion the best and cheapest legal service which has yet been devised—will also have no place.
As regards the mechanism, the only independent voice in the new executive bureaucracy will come from the now appropriately named designated judges, of whom, pre-eminently, will be the judge we prefer at present to know as the Lord Chief Justice of England. On Second Reading the noble and learned Lord said:
"the … 'designated judges' among whom, to my surprise, I find myself".—[Official Report, 19/12/89; col. 146.]
That is a remarkable comment on the manner in which this Bill has been prepared. The Lord Chief Justice has been conspicuous by his absence from our debates, as the Master of the Rolls has been conspicuous by his presence in them.
The office of Lord Chief Justice is overwhelmingly arduous and time-consuming and, speaking for myself, I can only pray that somehow the noble and learned Lord, Lord Lane, will find time to play his major part in oiling the dry works of the executively controlled mechanism. He alone, of the five members of the judiciary involved, has first-hand experience of the criminal courts, knows of the pressures upon the advocate, the vital role of the independent prosecutor, the need for responsible professionalism whenever the liberty of the subject is in issue and the disasters which come from polarisation.
Uncharacteristically, I am pessimistic about this Bill, the publication of which I looked forward to with such expectations. I fear that it will restrict access, increase costs, lower standards, create confusion among the uninformed public and do nothing to simplify legal procedures. It will deprofessionalise the role of the advocate and bring
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what will now be but a trade or an occupation under executive control. The tradition of the legal profession has always been to serve the public and I know that when the Bill becomes an Act professional lawyers will strive to make it work to that end. However, I fear that that will be an immensely difficult task.
11.15 p.m.
Lord Ackner: My Lords, "An event has happened upon which it is difficult to speak and impossible to be silent". Part I of this Bill was to herald a bright new dawn. Delay and cost, the two great bugbears of our legal system, would be alleviated by the transfer down of civil work from the High Court to the county court. But Part I, which alone in this convoluted Bill was to achieve this end arrived, as the noble and learned Lord the Lord Chief Justice said:
"unfinished, sent before its time into this breathing work, scarce half made up … It is fantasy and misleading fantasy to suggest that Part I of this Bill can be implemented when the infrastructure of the county court is already crumbling".—[Official Report, 19/12/89; col. 149.]
"… if Part I … were put into effect tomorrow the result would be a total shambles. I think it will be a matter of years rather than months before it is in place."—[col. 151.]
So said my noble and learned friend Lord Hailsham in the same debate.
At Report stage there was produced the usual run of statistics to muddy our understanding of the situation. The awful truth, as was so eloquently established by the judge's letter which was read out by the noble and learned Lord the Lord Chief Justice during Second Reading, is that during the past two years, when the Lord Chancellor's Department should have been earnestly preparing for this very transfer, matters have gone from bad to worse. Cash limits have become more and more unrealistic, with the result that the legitimate demands of a vital service—the administration of justice—have been and are being seriously neglected.
As regards Part II of this Bill, I entirely share the view of my noble and learned friend Lord Hailsham that almost every principle of methodology which law reform ought to attract has been disregarded by the Government. Recommendations of a Royal Commission, which reported a decade ago and which consistently thereafter were accepted by this Government, have been overturned without prior consultation, research or explanation.
This Bill has given the lie to the proposition that this Government "are not for turning". So far from improving access to justice for all who require it and making the system more cost effective, precisely the opposite will be the consequences.
I am firmly of the opinion that the long-term—and not all that long term—collective effects of this litigation will be to inflict serious damage on the quality of justice in this country. The small firms of solicitors, the so-called "high street" solicitors, who, with fewer than four partners, form 80 per cent. of the solicitors' profession, will be crippled by the twin effects of the loss of conveyancing work to the money lenders and the money lending institutions and the lack of access to the specialist independent Bar.

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As I previously stated, the ever-increasing mega-firms of solicitors, with their growing litigation departments—growing both in size and costs—with full rights of audience in all courts, will cause the Bar, whose continued vigorous existence the Government have accepted as being of great importance to the public interest, to whither away.
The much vaunted free-play of market forces will be of no use to a continually rising proportion of the public who will be unable to afford to enter the so-called "market place" for legal services and who will be denied state legal aid. The very dogma upon which so much of the justification of this Bill has been based will prove self-destructive to the very great prejudice of the so-called "Consumer" of legal services.
In addition to this, the American district attorney system will take over criminal prosecutions previously conducted by a strong and independent Bar. The corrupt philosophy of the contingency fee will pervade the whole system. The existing strong and independent judiciary, acknowledged by the Government to be one of the central supports upon which our liberties are based and upon which the rule of law depends, will be weakened by the diminishing quality of available recruits; by the use of laymen instead of lawyers, and by the growing political influence in their appointments.
In the limited time available I take but two crucial points, the Lord Chancellor's advisory committee and the appointment of laymen as judges to all courts from the House of Lords downwards. I invite your Lordships very briefly to consider the quality of my noble and learned friend the Lord Chancellor's defence of these two radical proposals, bearing in mind the outstanding powers of advocacy at his command, to which I paid special tribute in the course of this debate.
I refer now to the Lord Chancellor's advisory committee.
"The idea that an independent profession should effectively be governed by such a ludicrous body, of which we have seen only too many examples in the past 25 years of my experience of Parliament, is one too terrifying to imagine".
So said my noble and learned friend Lord Hailsham in the debate on 25th January at col. 1251. It was stressed again and again during the debates that the insistence on the domination of this committee by laymen is but a process by which the Civil Service will exercise control over what has hitherto been an independent and separate part of our national life. Such laymen, it was observed, may simply be the political appointees of the day. Such a committee, in the words of my noble and learned friend Lord Oliver of Aylmerton, at col. 1247 of the debate of 25th January, 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".
I turn now to the reply of my noble and learned friend the Lord Chancellor to these criticisms. It is to be found in the debate of 25th January at col. 1259. His defence of the lay majority appears to be
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based solely upon our system of criminal trial by jury. He said:
"They are the ultimate consumers of legal services. If the judge receives legal services those people have the responsibility of judging in criminal trials. They are lay people who above all are said to be concerned in relation to the provision of advocacy services by the Royal Commission on Legal Services. Jury trials are particularly inappropriate for solicitors. The lay element in our system of justice in this country is extremely strong and it is not the same as the navigation of a ship to which my noble friend referred".
That is the sum total of the defence. The nautical reference was, as your Lordships will remember, to the observation, at col. 1252, by the much travelled noble Lord, Lord Beloff, who said:
"Passengers in a liner have an enormous interest in the safe navigation of the vessel. Yet when I have travelled in a liner, I have always found a notice saying, 'Access to the bridge is not permitted to passengers'".
With the deepest respect to my noble and learned friend, I found his reply so unsatisfactory as to be almost unintelligible. And in making that observation I am not alone.
Finally, and briefly, I come to laymen as judges and the proposals to be found in Clause 55 and Schedule 9 to appoint laymen to all judicial positions from the House of Lords downwards. In Committee the Lord Chancellor was asked three times to answer the simple question: why, if this is such a desirable proposal, no such provisions are to be found in the Scottish Bill? I had to ask the same question twice on the final day of the Report stage before I had his answer. This, at col. 902, was apparently the best that he could do:
"I believe that the question of which qualifications are appropriate is a matter which may well relate to the size of the jursidiction".
I believe that to be a most revealing answer. What this Government are seeking to achieve by this Bill is increased control—increased control of the independent legal profession and, ultimately, the judiciary. In Scotland, because of its size, there was not enough at stake to justify the inevitable further serious loss of popularity that this would achieve.
"Time bath, my Lords, a wallet at his back, wherein he puts alms for oblivion",
but, I fear, not alms enough. The proponents of the Bill, or some of them, will live to see the integrity of our system of justice, which has been developed over the centuries, heavily undermined, and its quality seriously diminished. The fruits of that folly will be most bitter.
Lord Donaldson of Lymington: My Lords, I shall not detain the House for more than a minute or two. I mean that. I am driven to stand up by the sense of doom and gloom in which we are being enveloped.
There is a clear need for Part I of the Bill which deals with the Civil Justice Review. I express no view as to whether there was such a crisis of confidence in the legal profession as to call for Part II. That is a matter of political judgment; and, whatever political judgment I may or may not have, it is part of my professional approach never to express a view. But assuming that there was such a requirement, I believe in all sincerity that the machinery will work. I believe that most of the arguments that my noble and learned

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friend Lord Ackner has deployed, and all the arguments that the noble Lords, Lord Hutchinson of Lullington and Lord Renton, have deployed, will be redeployed before the Schedule 4 tribunal—if I may call it that—together with other arguments for other interests and other views of the public interest, in an atmosphere which will be much more conducive to arriving at the true answer in the interests of the administration of justice. So I do not fear the future. I am convinced that it will work out all right in the end. I believe that the end in that sense will come quickly. It will be an end which is neither filled with gloom nor with doom.
I conclude on a personal note. I have been a maiden participant in the life of the Bill in terms of speaking in the House. I should like to thank all noble Lords who have borne with me as I found and lost my way through the procedures of the House. I should like to thank my noble and learned friend the Lord Chancellor for his receptiveness to some of my less inspired contributions and to others of my contributions. If he was not as receptive as I should have liked, that merely illustrates my greed. I have found the whole experience highly addictive: it is a great regret to me that I must now return to The Strand for a prolonged period of detoxification.
11.30 p.m.
Lord Simon of Glaisdale: My Lords, earlier this evening I quoted the observation of Disraeli on Lord Hartington's speech after the Berlin treaty:
"A string of congratulatory regrets".
I indicated that that was the normal tone of a debate on the Motion, That the Bill do now pass.
I hope to be allowed to pay tribute to the various noble Lords to whom we are so indebted as regards the Bill and most of all to my noble and learned friend the Lord Chancellor. It would be idle to stifle the regrets. Indeed, that term is inadequate to express my feeling of foreboding at what the Bill portends. I entirely agree with what the noble Lord, Lord Hutchinson, and my noble and learned friend Lord Ackner said. I hope that even though their speeches were delivered late at night they may nevertheless have the publicity which it has been sought to deny them, and I hope that they will endure as a message for the future. I shall endeavour not to cover the same ground as they have covered so well.
I should like to say a brief word about the way in which this Bill has been flogged through the House and also about its general style and tone which are indicative of its conduct and of the ideology that lies behind it. I shall leave aside the effect of the Bill almost entirely because that has been dealt with already. I merely say that the Legal Aid Advisory Committee, whose report we debated last night thanks to the noble Lord, Lord Mishcon, expressed the same misgivings as to the effect of the Bill on the junior Bar and therefore on the availability of independent advice, particularly legal aid advice, and as to its effect on the high street solicitor. I cannot do better than surrender to the committee the judgment on these matters.
I should like to say a word on the conduct of the Bill in being driven through the House. It is
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extraordinary that such has been the breathless haste of the Government's business managers that time and again they have overtaken my noble and learned friend the Lord Chancellor. He fully intended to make his amendments to Schedule 4 at Report stage but he did not have time. Instead, they came up again this evening. That was the case with one amendment after another. My noble and learned friend said several times this evening that he had wished to make certain amendments but that they would now have to be reserved to the decision of another place.
This important debate on the Motion, That the Bill do now pass, did not start until eleven o'clock tonight. I regard that as a constitutional outrage. But it is really more serious than that. One aspect should be mentioned. I refer to the effect on your Lordships' House. The House rightly purports to be a revising Chamber which closely scrutinises legislation. That has been denied over this Bill. Instead, the Bill has been hustled through, with comment being stifled or muffled. Time and again noble Lords have curtailed their speeches.
I have already indicated the nature of the debate on the Green Papers. The same happened at Second Reading. More than 40 noble Lords wished to speak and others removed their names from the speakers' list as a result. But only one day was given for Second Reading. The noble Lord the Leader of the House sought to derive credit from the fact that two extra days were given for the Committee stage. We had the ludicrous decision to allow only four days for Committee when little more than Clause 1, raising very serious issues, took the whole of the first day. On all but one of those six days your]Lordships were kept sitting after 10.30 p.m., and on two occasions after midnight. The same happened at Report stage, and the same has happened tonight. If I can manage to see so far, it is now twenty-five minutes to midnight. So much then for the way in which the Bill has been driven through.
I now turn to the style of the Bill which is so indicative. Clause 1(1) begins with the words,
"The Lord Chancellor may by order make provision".
Those words are repeated well over a hundred times in the Bill. Then, time and again, we had the Henry VIII clauses which were all the more extraordinary because of my noble and learned friend's very close knowledge of the Bill, supervision of all its details and the fact that he had responsibility for the conduct last Session of the Children Bill where such clauses ran into serious trouble, where the Donoughmore Committee reports were cited at length and where the Government hastened to make concessions. Yet, here again, in this Session, we have this Bill which is full of Henry VIII clauses together with the Education (Student Loans) Bill which also incorporates one such clause. It is indicative of the authoritarian character of the Bill and, I fear I must say, the authoritarian character of this Government.
That is all I have to say about the style of the Bill. The ideology is easy to identify: it is the consumer competition, free market and free enterprise ideology. In other words, the market will decide. My noble friend Lord Benson made a notable speech indicating how inappropriate that was to a

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profession and that was echoed in the report of the Legal Aid Advisory Committee. However, what is odd is not only the fact it is alien to a profession such as is regulated by the Bill; it is also utterly alien to all that I have understood in the way of Tory and Conservative philosophy. Indeed that laissez-faire, free contract ideology was the ideology of Bright and Cobden in opposing the proposals of Ostler, Sadler, Shaftesbury and Disraeli on the 12-hour Bill seeking to limit children under the age of nine from working in factories and those over nine working more than 12 hours. They were Tory wets, every one of them. That is the ideology—and a wholly alien one—which has been applied to the Bill.
I turn more agreeably to pay the tributes which I feel are due. First and foremost there is my noble and learned friend. He started under very great difficulties. In the first place, as has been pointed out, the Bill is in contradistinction—indeed, in contradiction—of the report of the Royal Commission which took evidence over three or four years, reported only a decade ago and much less time ago had its recommendations accepted by the Government.
My noble and learned friend also had the views already quoted this evening of the senior members of the judiciary disapproving almost entirely of what he was doing. However, he had two advantages: one was unusual and one was carried to an unusual degree. The unusual advantage was that the noble Lord, Lord Mishcon, with his formidable debating powers was fundamentally in favour of the Bill. The advantage to an unusual degree was the way in which the government business managers put their shoulders behind the Bill in such a way as to stifle and muffle debate. Even discounting those two advantages, my noble and learned friend faced formidable disadvantages. It is a great tribute to his skill in debate, his power to think quickly on his feet, his versatility and his astonishing physical and mental stamina that he has seen the Bill through to this stage.
I mentioned the noble Lord, Lord Mishcon, last night, and I shall not embarrass him by repeating what I said by way of encomium. I wish, however, to mention the contribution that has been made by my noble and learned friend Lord Ackner, who has worked fantastically hard. He had no research organisation behind him, no great department of state. Yet he has come with his cogently argued and well-documented speeches to remind your Lordships of what is at stake, culminating in his notable speech this evening.
It would be invidious to mention every noble Lord who has made so good a contribution to the Bill. I hope that I can mention the noble Lord, Lord Renton, because he has been party leader and chief whip of the frondeurs. We owe a great deal to him.
I confess that I feel almost unrelieved gloom and foreboding at what the Bill portends. If there is any relief from it, it lies in a speech made by the noble Lord, Lord Mishcon, on the cab rank rule in which he said, I thought with great nobility and departing from the Law Society brief, that if solicitors are
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to accept the privileges that the Bar has enjoyed heretofore they must also accept the burdens. If I may say so, I thought that was a noble pronouncement which gives some gleam of hope for the future.
The other gleam of hope is what has been done by my noble and learned friend Lord Ackner, fighting to the last. We cannot really say that Admiral Duncan's fleet going under the waterline with all its guns firing was suffering a total defeat. From those two matters I sustain a gleam of hope, though I cannot see at the moment where it will work out. On the whole, realism makes me think that we are in for a bad time in our system of justice.
11.45 p.m.
Lord Benson: My Lords, as we see the Bill leave the Chamber, I watch it with great distress because I believe that it will do great damage to a great profession. But even worse than that, I am afraid that it will set a standard for the other professions and will destroy a proud privilege we have had in this country for so many years—the high quality of all our professions.
The proponents of the Bill have claimed that it will develop new ways of providing legal services. That is not a true and fair description of the Bill. A fair description of the Bill would be to say that it enables persons who have not been trained as lawyers to carry out legal services for reward. We must remember that those persons are virtually self-elected. Those para-legals will elect themselves through the medium of their para-legal societies.
Some of your Lordships may feel that this Bill is a great achievement. I do not share that view. If the same lack of principle is to be applied to other professionals such as surgeons, physicians, veterinary surgeons, chemists, accountants, airline pilots and others, the quality of the professions in this country will inevitably fall into the standards of a third world country.
One would expect in reforming a profession that the first thing to do would be to define the principles on which a profession should be governed and administered. They are well known and have been well documented for some years. However, noble Lords will notice that the Government have never, neither in the green papers nor in the White Paper, nor in anything said in this Chamber, at one single point referred to the principles which should govern the administration of a profession and on which one would expect them to base legislation.
All the professions in this country are committed to improving quality. They seek to serve the public to the best advantage. That process is well established. It involves higher and higher thresholds for the admission of students in education and training and longer periods of theoretical and practical training and research. It also involves greater post-qualification experience, training and education and higher and higher standards of discipline. However, those aims are not the theme of this Bill.

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The Bill moves in the opposite direction. It seeks to establish para-legals who can carry out legal services for reward and who are not subjected to that process. As they are para-legals and are not practising the law generally they are not capable of being subject to that same process. I cannot imagine a system better designed to damage the cause of justice.
The principle of good administration is simplicity and a clear channel of authority. Both have been abandoned. The Bill sets up a ponderous and disjointed machinery which will be slow in operation and extremely costly. One could go on indefinitely putting forward the deficiencies of the Bill. However, I do not wish to weary the House any longer. The matter comes down to this: we shall now have to wait and watch the deficiencies in the Bill become manifest in practice. When they have established themselves, I can only hope that the legal profession will be replanned on principle instead of the Government seeking to placate a populous clamour for reform.
Lord Hacking: My Lords, I feel as if I am a rather junior member of the school at the end of a rather long term. It is certainly a term which has had plenty of "banco". Those noble and learned Lords who may recall what "banco" was, unlike the noble and learned Lord, Lord Donaldson—will know that I am referring to long evening preps.
Despite the length and tiring nature of this term, I certainly go away from it with enormous admiration for, and memories of, the intellectual and physical stamina of the noble and learned Lord the Lord Chancellor. I include in my admiration of that intellectual and physical stamina the noble Lords, Lord Mishcon and Lord Renton, who, from their respective positions, have borne the brunt of the work on behalf of the Law Society and the Bar respectively.

I shall also remember the contributions made by the noble and learned Lord, Lord Simon of Glaisdale. I shall remember not only the contributions but also the presence of the noble and learned Lord who, despite his heavy responsibilities in The Strand, as he refers to it, has been with your Lordships for every minute of our debate.
I shall certainly also remember at the end of term those of the pupils who are still in the school—the noble Lords, Lord Boardman, Lord Coleraine, Lord Hutchinson and Lord Byron. I shall also remember those members of the school who have not spoken during the debate. The noble Lord, Lord Carnock, for example, who is still in your Lordships' House, has faithfully attended every one of your Lordships' debates on the Bill and listened to the argument. So, indeed, until a few moments ago has the noble Viscount, Lord Ullswater, also listened for so long to your Lordships.
The headmaster, who is still here and has kept us in school so long—and I refer to the noble Lord the Leader of the House—has also been kind enough not only to keep us in school but to listen to us in debate throughout.
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Perhaps my memories will be—as will the memories of the noble and learned Lord, Lord Simon—of the contributions of the noble and learned Lord, Lord Ackner. As I reminded the noble and learned Lord at dinner this evening, when I was first called to the Bar he was a leading member of the Bar and a leading advocate. I had little opportunity then to hear the noble and learned Lord as an advocate in court. It is quite clear to me that all the years that he has spent on the bench have not diminished the vigour of his argument or the cogency of his reasoning. Unlike the nob le Lord, Lord Mishcon, I have never had an opportunity to instruct the noble and learned Lord, Lord Ackner. I hope therefore that he will make early arrangements to free himself from what other difficulties may be in the way and be available again to be instructed by my side of the profession.
As the Bill goes from your Lordships' House there is still much to be done. It is one of my regrets that your Lordships have not been able to complete the work on the Bill while it has been in your Lordships' House. Indeed, the noble and learned Lord the Lord Chancellor in one of the many letters that he was kind enough to send me—and I know that he sent many other letters to other noble Lords—mentioned many further measures that he proposes to have introduced in another place concerning, for example, multinational practices. I have promised him a letter concerning limitations of actions for his consideration so that the matter can continue to be under review in another place.
As the Bill passes to another place I should particularly like to mention the rights of audience debate. I hope that in the other place this great debate will not continue. Although I much admire the advocacy of the noble and learned Lord, Lord Ackner, I do not agree with his pessimistic view of the prospective greed of the mega-firms of solicitors and of the Bar fading away. Throughout the debate I have supported the extension of rights of audience to all lawyers, and particularly to lawyers on my side of the profession. At no time in the debates—and I go back to the Green Paper debate of last April—have I been an advocate of fusion. On the contrary, I have always advocated that there should be a separate, independent, discipline of advocates. I should like to see that in the Bar in its reformed existence under the structure of this Bill.
Therefore I hope that the opportunities will now be seized by both sides of the profession. I hope that they will desist—and indeed that is one of the central thrusts of the Bill—from further debates and disputes on rights of audience and come together on such matters as common education and training. I hope that one of the of the products of the Bill will be that young law students will move into the legal profession without having to decide prior to entry into it whether they wish to be a barrister or solicitor.
Furthermore, I hope that as part of the common training young solicitor articled clerks will be permitted to have six months pupillage in chambers. Equally, I hope that young members of the Bar will be offered the same facility of spending some of their pupillage time in solicitors' firms.
Lord Renton: My Lords, I did so before being called to the Bar.
Lord Hacking: My Lords, I am interested to hear that, but I am anxious to see the structure for that common training. I believe that there will be so many advantages with it, but first and foremost would be the advantage of opening up to all lawyers the higher skills of advocacy whether they are motivated to my side of the profession or the barristers' side of the profession. I hope that out of that will come a process in which both the young lawyer will be able to test his skills better as an advocate and the advocates who supervise the young aspirants to the Bar or advocacy will have a better opportunity to judge those skills.
The Bill should not leave noble Lords, certainly on my side of the profession, without a considerable word of praise for the leading members of the Bar and the Chairman of the Bar Council who is listening to the debate as he has our debates throughout all the proceedings on the Bill.
In the debate on the Green Paper, I was critical of the Bar holding on to practices long after they could reasonably be defended. There have been tremendous changes at the Bar during the past 10 years and during the last few years, nay few months. Only recently, under the chairmanship of David Latham, Queen's Counsel, the whole new conduct has been adopted by the Bar Council, effective, as I said, from 31st March this year. Rumbling matters such as pupillages and tenancies have all received a tremendous amount of attention. There is now far greater access to members of the Bar and removal of all those restrictive practices which not only worked against the public interest but impeded the Bar in its own growth.
We have had long sessions and we are just about to complete the Third Reading after yet another long session. Two views could be held about the cause of those long sessions. The first is that lawyers and judges talk too much. The other view is the one that I put forward; namely, that the Bill is not only of great interest and importance to noble Lords, but it is a Bill in which noble Lords have great expertise and a great opportunity to make a real contribution. If there has been a down side on the long hours, it is that we have not made as great a contribution as I feel we are capable of doing, and that is a pity.
With that, the upper side should also be examined. It should be recognised that noble Lords have made a considerable contribution. It is therefore upon that note that I end my comments to noble Lords. One of the refreshing aspects of the passage of the Bill through the House, particularly during this final stage of Third Reading, is how the noble and learned Lord the Lord Chancellor has increasingly responded to noble Lords' submissions. He responded for example, to a major matter of concern—the composition of the advisory committee—and gave a most favourable response earlier today on that issue. That is one of many examples of the way in which he has responded. I like to think that if we had not had these long sessions but had had a few extra days, the noble and learned Lord would have been able to respond further to our pleasure.
12 Midnight.
The Lord Chancellor: My Lords, I think it would be inappropriate for me to speak long on the Motion that this Bill do now pass. However, I should like to say one or two words.
First, I believe that this Bill will make a considerable contribution to the improvement of legal services and to the structure of the courts in this country. Part I of the Bill is a set of provisions which I think contains almost all the primary legislation necessary to give effect to the Civil Justice Review set up by my noble and learned friend Lord Hailsham when he was Lord Chancellor. I believe that that arrangement under Part I will be extremely effective. Perhaps the best testimony to it is the fact that the judges of the High Court are already sending down to the county court considerable numbers of cases and have continued to do so right up to the present time.
So far as concerns Part II, in that area we have been in more controversy. But I thoroughly believe that Part II of the Bill contains an arrangement under which the legal profession can develop and continue to prosper. The suggestion that the market philosophy underlies this Bill is true only to the extent that it is a philosophy which it is appropriate to apply only within proper limits when one is dealing with professional matters. That is why it is necessary, in allowing for any development in legal services, to have a proper safeguard for the competence and conduct of the profession, which after all is a central part of professional discipline.
I cannot accept the suggestion made by the noble Lord, Lord Benson, that this Bill does not properly take account of the fact that rights of audience and the right to conduct litigation are matters which require proper qualification and proper conduct.
I believe that the arrangements in the Bill are designed very aptly to secure those standards for the future. The control is in the hands of the professional bodies, the General Council of the Bar and the Law Society, with the approval of the judges and also that of the Lord Chancellor being necessary for any change. The advisory committee is there in order to give advice on these matters. I believe that this is a well-balanced arrangement which will have extremely beneficial effects.
This afternoon my noble and learned friend Lord Griffiths spoke of his experience in a lay-dominated or lay-majority committee; so did my noble and learned friend Lord Roskill. The matter of conveyancing by institutions such as building societies, banks and insurance companies has been on the statute book since 1986. We have sought to modify the arrangements for that and introduce more detailed arrangements for proper protection of the persons who use the service and also to ensure fair competition in that area. I have every confidence in that, as had the previous president of the Law Society who I think said that he believed that in fair competition the solicitors would have a very good chance.
There are other detailed provisions in the Bill to which I do not need to devote particular attention. This Bill is designed to improve access to justice. It is intended to assist the development of the whole

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legal profession, the Bar and the Law Society. It provides a mechanism for resolving matters of long-standing dispute between the Bar and the Law Society which cannot but be in the interests of the profession.
I hope that these arrangements will work very well. I have said before, and I say again, that I believe this Bill will do nothing in any way to damage the Bar. On the contrary, I believe that it will help to stimulate and open for the Bar even further opportunities.
I should like to pay tribute to all your Lordships who have taken part in these debates and proceedings. There are a great number of noble Lords who have done so and I do not wish to leave anyone out. On the other hand, I cannot be sure that I shall include everyone. Therefore, I should like generally to thank everyone who has taken part.
I should like to begin with my noble and learned friends the Law Lords and in particular my noble and learned friend Lord Ackner, because I appreciate as much as anyone here the great work that he has done in bringing before your Lordships the point of view that he desires to advocate. It will not have escaped your Lordships entirely that I have not been able to agree with him completely in all the points that he has made. However, I always appreciate the force of his advocacy and do my best to accommodate him so far as I can. I have endeavoured to do so in a number of the amendments, for example, that were passed today.
Others of our colleagues, my noble and learned friends, have participated and I am grateful to them. I should like to mention my noble and learned friend Lord Simon of Glaisdale who has been a regular contributor and attender throughout these proceedings and who has been very courteous in bringing his concerns to my notice in private so that we were able often to save your Lordships' time by resolving differences between us by such consultation.
I should also like to thank my noble and learned friend the Lord Chief Justice for his participation. As your Lordships know, he has many heavy responsibilities and it is the wish of all of us that lie will have every possible success in the heavy responsibilities that he carries.
I should also like to thank my noble and learned friend the Master of the Rolls who has been with us so helpfully during nearly all our discussions. I am extremely grateful to him.
The noble Lord, Lord Benson, has taken a great interest in our proceedings. Again, although I have not been able to agree with him in everything, I appreciate the fact that he has given us the benefit of his great experience. The noble Lords, Lord Hacking, Lord Byron and Lord Allen of Abbeydale, have all contributed to our debates from the Cross-Benches, as has the noble Lord, Lord Shaughnessy. I should like to thank all of them for their participation which I am sure has been extremely useful to us.
I should in particular like to pay tribute to the noble Lords, Lord Mishcon, Lord Prys-Davies and Lord Irvine of Lairg, who have shared the burden of the Opposition Front-Bench during these debates.
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Perhaps it is not a burden. I have no doubt it is a great pleasure. It is a pleasure to work with them and I should like to thank all of them for their part in these debates.
Noble Lords on the Benches immediately on my left have contributed a great number of speakers and have made a number of contributions. The noble Lord, Lord Hutchinson of Lullington, has made his usual very lucid and (if I may say without any feeling of being patronising) well-delivered salvoes at the Bill. Again, I cannot say that I have always fully agreed with him, but I believe that there is more between us of agreement than perhaps he would recognise because I share many of the values that he has expressed. The only difference between us is that he does not see them enshrined in the Bill quite so clearly as I do.
The noble Lord, Lord Hooson, gave us the benefit of his experience for which we are grateful. The noble Lord, Lord Meston, was with us for a good part of the time. The noble Lord, Lord Lloyd of Kilgerran, brought to our notice the interest of intellectual property, patent agents and trademark agents. We always appreciate his help in these important but recondite areas.
The noble Lord, Lord Evans of Claughton, spoke from the point of the high street solicitor and we appreciated what he said. He has not been present because of other commitments but he made extremely useful contributions. I was happy to respond to some of his concerns.
My noble friend the Leader of the House has already been mentioned for keeping us going. I thank him for the arrangements that he made. My noble friend Lord Renton has been described as the leader, chief whip and so forth in the debates. He carried out those duties in a most friendly and constructive manner, and I thank him.
My noble friend Lord Ullswater has been with me almost continuously trying to keep me on the right track. In so far as I have been able to do so, he must take a great deal of the credit. My noble friend Lord Alexander of Weedon played a leading part in many of the debates. I thank him for his participation. My noble friend Lord Peyton of Yeovil told us of his conversion. My noble friend Lord Harmar-Nicholls was extremely helpful in bringing into the discussions the lay point of view. One can illustrate the way in which a lay involvement can resolve difficulties between lawyers by turning to the good example he gave this afternoon. My noble friend Lady Faithfull also participated with her usual knowledge and experience of the background to the legal system and that is always valued.
My noble friends Lord Boardman and Lord Coleraine were notable in bringing to our attention problems associated with the detail of the conveyancing arrangements. I am grateful to them because I am most concerned that these matters are dealt with properly. One result of our discussions on the Green Paper and the Bill has been to direct more attention to concerns in the area of house buying and the possible difficulties for people operating in it than has previously been the case. One result of the stimulation was the recent activity of the Director

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General of Fair Trading in respect of estate agents, as was announced. That is all to the good of those whom we seek to serve; that is, those who are buying and selling their property.
I should also like to mention the noble Baroness, Lady Phillips, who made some fairly vigorous comments at an early stage in our debates. She helped to ensure that the matter was not left to the lawyers.
I express my gratitude to all noble Lords. As the Bill goes to another place for consideration I hope that ultimately it will prove to be what I claim for it and that the gloomy prognostications which some noble Lords have expressed will be disproved by the result. I commend the Bill to the House.
On Question, Bill passed, and sent to the Commons.

Midland Metro (Penalty Fares) Bill [H.L.]
Reported from the Unopposed Bill Committee with amendments.
House adjourned at a quarter past midnight.