§ 3.57 p.m.
§ Read a third time.
§ Clause 17 [The Lord Chancellor's Advisory Committee on Legal Education and Conduct]:
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 1654 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 1655 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 1656 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 1657 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 1658 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 1659 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 1660 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 1662 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, 1663 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 1664 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.
1665 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 1666 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 1667 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 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.1668
§ 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 1669 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 1670 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 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 1671 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 1673 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.
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.
1674 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 1675 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?
§ 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 1676 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, 93.1677
|DIVISION NO. 1|
|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.|
|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.|
|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 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 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 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—
he may advise that body accordingly.
(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 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.
§ Amendment to the amendment, by leave, withdrawn.
§ On Question, Amendment No. 11 agreed to.
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,").1687
§ 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 1689 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 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 1690 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
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.
1692 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 1693 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 1694 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 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.1695
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 1696 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 1697 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 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)—
(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 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 1698 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 1700 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 1701 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 1702 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 1704 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.