Law Reform (Miscellaneous Provisions) (Scotland) Bill [H.L.]

HL Deb 29 March 1990 vol 517 cc1043-94

7.47 p.m.

The Lord Advocate (Lord Fraser of Carmyllie)

My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.

Moved, That the House do now again resolve itself into Committee.— {Lord Fraser of Carmyllie.)

On Question, Motion agreed to.

House in Committee accordingly.

[The LORD GRANTCHESTER in the Chair.]

Clause 20 [Rights of audience in the Court of Session, the House of Lords, the Judicial Committee of the Privy Council and the High Court of Justiciary]:

Lord Macaulay of Bragar moved Amendment No. 223A: Page 23, line 32, at end insert ("but may not make any rule which would, by comparison with any corresponding rule applying with respect to the sheriff court, directly or indirectly inhibit the freedom of a solicitor to appear in court or to undertake all the work preparatory to his appearance in court.")

The noble Lord said: This is an amendment referring to the making of rules by the council of the Law Society in regard to practice, and it relates to page 23, line 32. The idea behind it is that the council should not be able to make any rule which directly or indirectly inhibits the freedom of a solicitor to appear in court or to undertake all the work preparatory to his appearance in court.

The noble and learned Lord the Lord Advocate drew my attention to his Amendment No. 225B. Perhaps I may leave that for the moment. I should also explain that, although my name appears to Amendment No. 225A, which proposes the abolition of Clauses 10 and 11, it was placed there inadvertently. It would be inconsistent for me to move both Amendments Nos. 223A and 225A.

The situation in Scotland is that solicitors conduct 90 per cent. of the jury work in the sheriff court. That allows them, once they become a solicitor advocate, to continue to carry out the work preparatory to their appearance in court, which they do now. I appreciate that there may be criticism of that approach, but it is important to remember that the issue will cover a very small percentage of those practising in the courts in Scotland. I beg to move.

Lord Morton of Shuna

Late on Tuesday night the noble and learned Lord the Lord Advocate accepted Amendment No. 223 in principle— that the rules should correspond as nearly as possible to those that apply to advocates. The difficulty with this amendment is to compare it with the amendment accepted in principle and I do not think that they can fit together.

However, the problem with the amendment now moved by the noble Lord, Lord Macaulay, is the concept that a solicitor in a sheriff court normally takes statements and precognitions from witnesses and sees them, and to apply that rule to the High Court and the Court of Session. The obvious difficulty is to apply it to the rule accepted in principle, because advocates have a complete prohibition against such behaviour.

The main objection in principle to this amendment, I suggest, is that what it is doing, and what perhaps Amendments Nos. 225B and 257B are doing, is to say that the sheriff court rules should prevail over the Court of Session rules. That appears, at least to me, to be totally wrong in principle. The Court of Session and the High Court are the highest courts in civil criminal business and the sheriff court is the lowest court. It is wrong that in that sense the tail should wag the dog.

It is perfectly natural that in the lower court you should have a less rigid standard and allow various procedures which are not suitable for the highest court in the country. It is proper that the highest court should control its own rules. It appears to me at any rate that one would have the lowest common denominator applying to the rules of procedure. If that is taken to its logical extent one would have the rules of procedure and conduct in the district court ruling the sheriff court, the Court of Session, the House of Lords, the Judicial Committee and the Privy Council. That would be totally wrong. It is the highest courts that should set down the rules and the lowest courts should modify them accordingly. Therefore, on principle, I oppose this amendment.

Lord McCluskey

I also rise to oppose the amendment. I concentrate on the point just mentioned, that it is designed to allow solicitors both to precognosce a case and then to conduct the case, perhaps even to see witnesses in the course of the case and to reprecognosce them.

Paragraph 3.16 of the Government's Green Paper states: A particular point of principle is the need to ensure, in High Court or Court of Session cases, that those who plead in court should not have been involved in the investigation of the evidence". That was a particular point of principle. When the White Paper was published less than six months later it stated: A particular matter most appropriately dealt with in this way by professional rules concerns the degree of separation required between the person precognoscing witnesses before the evidence comes before the court, and the person questioning them in court". The White Paper then referred to the original views which were expressed and which I quoted and then continued: After further consideration the Secretary of State has decided that this preliminary view requires to be refined". Therefore, what started off as a point of principle became in the end a preliminary view. The word used is "refined", whereas in truth it has been totally abandoned. I have seen no justification for that abandonment of the point of principle and I am opposed to it.

There is another matter. After the reference to the Secretary of State deciding that the preliminary view requires to be refined, the White Paper continues: and that the proper concern of the profession is to observe the principle that no one, including the person to present the case in court, should do or say anything which would have the effect of, or could be construed as, inducing a witness (or the client) to tailor lis or her evidence", and so on. That is a ridiculous proposition because there is no conceivable way in which that can be policed. How on earth do you enforce that principle except by banning face-to-face meetings or telephone conversations between the advocate, on the one hand, and the witness, on the other? Is there somehow to be a third party present or are all these meetings to be tape-recorded so that that principle can be given effect to?

I am opposed to this amendment principally for that reason. I should like an explanation from the Government for the departure from a point of principle to this alleged and enenforceable principle to which I have drawn attention.

Lord Eraser of Carmyllie

The idea that the Law Society should seek to achieve uniformly high standards of conduct on the part of solicitors, regardless of the court in which they are practising, is clearly one with which I agree. But I can conceive that, to relate effectively to the rather different practices of the sheriff and supreme courts, it may be necessary to have different sets of rules with slightly different provisions.

I recognise a potential risk that the Law Society might be persuaded into rules which were unnecessarily restrictive. That is why we have provided in subsection (10) that the Secretary of State should have to approve any rule which makes this differentiation. If it should be the case in some particular respect that the interests of justice properly require a differential rule then, if the Secretary of State is persuaded, the rule will be made and become effective. If he is not so persuaded— and at present he does not have any circumstance in mind which would fit this criterion— then the rule will not take effect.

While there appears to be no difference between the noble and learned Lord and myself as to objective, the formulation in the Bill is more cautious in providing for an eventuality as yet unforeseen.

I have been asked about the change that has occurred between the Green Paper and the White Paper. I recognise that there is an interrelationship between the amendment in principle which I accepted on Tuesday night, Amendment No. 223, and the present amendment. We are concerned to ensure that there should be no diminution in the responsibilities laid on those who appear before the courts and that they should properly discharge that duty to the courts. Undoubtedly we have been influenced by the fact that the Law Society of Scotland, in responding to the paper, had this to say (paragraph 3.M.2): We have endeavoured to ascertain the origins of this so-called rule or principle but without success. It appears to have emerged from the complementary professional responsibilities of the solicitor and advocate in litigation. It was the function of the solicitor to interview potential witnesses. This was, of course, perfectly natural as the solicitor was taking instructions from and advising the client… The advocate, in his role as specialist pleader brought an objective and detached view to bear upon the case. This entirely practical separation of functions of solicitor and advocate although subject to many exceptions appears now to have been elevated to the status of an irrevokable rule or principle". That principle is sometimes erroneously described as the Philips principle because it was a practice among advocates in Scotland that predated the Philips report by decades, if not centuries. We are anxious to see whether there is a way of approaching this matter that does not put it in quite that fashion but nevertheless imposes on solicitors as a code of conduct that they should to all practical purposes observe much the same approach.

Noble and learned Lords will appreciate that there are many exceptions in Scotland. One is entitled, even if one appears as a pleader in court, to interview and consult with one's client, whether or not that client is to be a witness as to fact. It would be wholly improper for any advocate interviewing or consulting with his client to fashion his client's evidence to meet the case or to influence the way in which his client gives evidence. As I understand it, there are similar provisions which will enable an advocate and a pleader in court to have a direct face-to-face interview with an expert witness who is coming before the court. Therefore, it is not an absolute rule. What we will be concerned to discover, given that inter-relationship which I accept is there between Amendments Nos. 223 and 223A, is whether the matter can be resolved. That is why I indicated that I wanted to take away Amendment No. 223A for further consideration.

8 p.m.

Lord, Emslie

The noble and learned Lord the Lord Advocate has explained the Government's thinking in this matter. I am still a little concerned about how this code of ethics can possibly be policed. One must not confuse the right of the advocate to consult his client because he does so in order to get his client's instructions and to make up his mind about his client. It is also perfectly proper for an advocate to consult an expert witness. The purpose of that exercise is to be properly instructed so that the advocate can cross-examine the expert witness for the other side.

What is not at all proper, because detachment is the key to advocacy in the Supreme Court, is to interview witnesses as to fact. If you allow the possibility of witnesses to fact being precognosced by the person who is going to hold himself out as an advocate, then you are running a very grave risk of a breach of the code of ethics which you will never be able to trap. The only safe way— I speak from a very long experience of advocacy and on the Bench— is to have a neat little rule which forbids it. It will not do any harm. If you do not have the rule, it will not do any good.

Lord Morton of Shuna

Along with the noble Lord, Lord Macaulay, I believe that I am the only person in this Committee who has been both an advocate and a solicitor. The problem is that in the sheriff court it is perfectly proper to see your client and witnesses to take statements and all the rest of it. But that refers to the lower court which is not dealing with the most serious crime. The lower court deals with crimes which, in my day, involved a maximum sentence of two years. It is now a maximum sentence of three years. One was dealing with civil cases which admittedly had no upper financial limit, but in fact there was regularly a fairly low limit compared with the average case heard in the Court of Session.

The important point is that the serious cases, such as rape and murder, had to be treated with the kind of detachment of which the noble and learned Lord, Lord Emslie, has spoken. Having experienced both systems, I am quite convinced— I shall be interested to hear the experience of the noble Lord, Lord Macaulay— that the necessity for detachment justifies the rule. It means that one gives the client in serious cases a higher standard of care and provides a higher standard when arguing his case. Those factors are to the benefit of the client. I shall be very sorry indeed to see this rule depart from the Court of Session and the High Court. In considering this matter, I hope that the noble and learned Lord the Lord Advocate will bear in mind the distinction between the two courts.

Lord McCluskey

I wish to add one point which I should have mentioned previously. It explains the origin of the phrases used in the Green Paper. The Royal Commission considered this matter, particularly in the criminal context, and that is the subject with which I am most concerned. The conclusion stated at paragraph 1553 is: We think it may well be correct that the relative detachment of the advocate from the client which exists by reason of the nature of his function could in some types of serious criminal charges form a valuable safeguard". The Royal Commission unanimously concluded that that would be a valuable safeguard. The Government will have to show some good reason for accepting a departure from a rule which maintains that safeguard.

Lord Fraser of Carmyllie

I hope that I have made my position clear. I understand very clearly what the noble and learned Lord, Lord Emslie, has said about the importance of maintaining objectivity, detachment and of ensuring that there is no risk of witnesses being influenced intentionally or otherwise. That view is correct. I have indicated that I wish to find a way of resolving this problem other than that suggested by the noble and learned Lord which is by maintaining the rule as it stands.

Lord Macaulay of Bragar

In moving the amendment on behalf of the Law Society it was foreseeable that there would be a perfectly proper reaction to it. Behind the present reform of the law there is the prospect of anyone who becomes a solicitor advocate being highly trained. He will not be given that responsibility— it has been called a privilege— unless he is seen to be a fit and proper person to deal with certain matters.

In modem times we are running into a certain amount of inconsistency. It has been implied on more than one occasion that the sheriff court is such a terrible place where inferior people practise inferior law and perhaps achieve inferior results. We have even heard the word "contamination" used as regards witnesses in connection with this argument. If that is the situation it is surprising to say the least that over the period of 25 years in which I have been associated with the courts, I can remember only two cases coming before the court in which solicitors were alleged to have acted improperly in the course of precognoscing witnesses and also of presenting a case where the consequences might be that a person may be imprisoned for a period of up to three years.

The Court of Session and the High Court are superior courts where a different type of training and technique are required. Nonetheless it is perhaps time to look at these practices and to review them as time goes on. I am grateful to the noble and learned Lord for his reply. In the light of our discussions I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Deputy Chairman of Committees (Lord Grantchester)

If Amendment No. 223B is agreed to I cannot call Amendment No. 223C.

Lord Fraser of Carmyllie moved Amendment No. 223B: Page 23, leave out lines 33 to 36 and insert: (" (7) Where a solicitor having an appropriate right of audience in any of the courts mentioned in subsection (1) is instructed to appear in that court, those instructions shall take precedence before any of his other professional obligations, and the Council shall make rules— (a) establishing the order of precedence of those courts for the purposes of this subsection; (b) securing, through such of their officers as they think appropriate, that, where possible, any person wishing to be represented before any of those courts by a solicitor holding an appropriate right of audience is so represented. (7A) Subsection (7) does not apply to an employed solicitor whose conrtact of employment prevents him from acting for persons other than his employer.").

The noble and learned Lord said: The purpose of this amendment, which replaces subsection (7) of this clause, is to give a clearer indication of the way in which the council is to be required to fulfil its obligation to secure representation by a solicitor advocate for any person wishing to employ one to act for him. It is appreciated that subsection (7) as presently drafted could put the council in a difficult position when the number of solicitor advocates was very small, as it is likely to be for at least a short time after the legislation is implemented.

This amendment therefore requires the council to make rules to establish the precedence which one set of instructions must take over another where the two are in conflict. Such rules will doubtless equate broadly with similar rules made by the Dean of the Faculty in relation to advocates. Any such rules made by the council would be subject to the approval of the Lord President. The council will remain under a duty to secure representation for any person wishing to employ a solicitor advocate although the draft now recognises that this may not be possible in every case.

In meeting the obligations imposed by this amendment, the council will be ensuring that a level playing field exists between advocates and solicitors with rights of audience in the Supreme Courts. It would clearly have been unacceptable for advocates to be subject to the cab rank rule while solicitors with such rights of audience were free to pick and choose the instructions they wish to accept. The Law Society fully accepts its responsibility in this regard and this amendment will allow it to meet that responsibility in so far as it is able, given the numbers of solicitor advocates available. The new subsection (7A) disapplies the rule that the council will make relating to precedence of instructions from solicitors who are employed.

Given this amendment, I hope that the noble Lord will be able immediately to indicate that he will not be pressing Amendment No. 223C.

The issue of precedence is covered in the Faculty of Advocates' most recent guide to professional conduct published in 1988 at paragraph 4.5.1. A precise list of the precedents of the courts is given, although in succeeding paragraphs the flexibility that is allowed in such circumstances is spelt out. One would envisage that the Council of the Law Society would be making arrangements which, if not identical, were similar to those.

Lord Emslie

I am bound to say that I am a little concerned about this amendment in so far as it deals with the matter covered in new subsection (7a) — the question of the precedence of courts inter se. As a matter of construction, in this subsection we are dealing with the order of precedence as between the Court of Session and the High Court simpliciter inter se.

With the greatest respect to the noble and learned Lord, that is not the question. There are far more important questions that are subsumed by that initial question. For example, a critical issue is: what is the order of precedence as between the First and Second Division of the Court of Session in the Inner House? What is the order of precedence as between an Inner House commitment and an Outer House commitment? What is the order of precedence as between an Inner House commitment and a High Court commitment of first instance? What indeed is the precedence of the High Court as a Court of Appeal in competition with any court of first instance and indeed in competition with either of the divisions of the Inner House? All these questions have to be addressed.

The language of this new subsection does not permit them to be addressed. For that reason I consider that it would be wise if the noble and learned Lord agreed to consider this matter again. Much more needs to be done than has been covered in the subsection as drafted.

Another matter that causes me concern is that the duty is placed on the Council of the Law Society to establish the rules of precedence among the courts— not just the Court of Session and the High Court, but the various divisions and echelons of the various courts that are encompassed within the High Court and the Court of Session.

I have always understood that among the courts for which the Lord President and the Lord Justice General are responsible— it is the same man but under two hats— the ultimate decision is a decision of the Lord President and the Lord Justice General. As in a question with the Faculty of Advocates, the matter is readily regulated in discussion between the Lord President, the Lord Justice General and the Dean. How can it be that the Council of the Law Society should be left to make rules of precedence among courts inter se without doing so on the advice of the Lord President, or the Lord Justice General, depending on what it is? What is necessary is that the magic words "with the advice of the Lord President" must be introduced in the context of the council's function of making the rules to which new subsection (7A) is directed.

There also has to be flexibility in devising the rules. A good deal turns on the relative importance of cases in different courts and perhaps at different levels. In the College of Justice the intervention of the Dean of the Faculty is a valuable asset, and in discussion with the Lord President a decision can be taken as to what the council's duty is. Even if the general rule says that he should be in one place, in discussion between the president and the dean it may be decided that his duty lies in another place.

I merely point out these matters to the noble and learned Lord in the hope that he will understand that a good deal more needs to be done if good sense is to be made of a perfectly laudable intention. I have no doubt that it is very desirable that the rules of precedence among the courts should be perfectly understood by everybody with a right to practise in them. Once cannot have one rule for the advocates and another for the solicitors. The rules must be the same; and the only persons who can determine which rules should apply and what the rules should be are the Lord President and the Lord Justice General. I am using the plural of the verb because there are two offices held by the same person.

Lord Renton

I should have thought that a part-heard case in almost any court should have very high precedence indeed. If orders of precedence are being arranged, there should be a provision to ensure that counsel and/or solicitors involved in cases which for one reason or another become part heard should have a prior obligation to attend to finish those cases.

8.15 p.m.

Lord Morton of Shuna

Perhaps I may deal with the problem that I see arising on subsection (7) (b). That gives the Council of the Law Society the duty of making rules, securing, through such of their officers as they think appropriate, that, where possible, any person wishing to be represented". That is fine so far as it goes. However— adverting to a matter that the noble and learned Lord, Lord Emslie, and the noble Lord, Lord Renton have just raised— the relationship between the advocate and the solicitor instructing him is totally different from the relationship between the solicitor and his client. The solicitor has a contractural relationship with his client. That means that if he has to break it he is in breach of contract.

How is the obligation of a solicitor who has a contractual obligation to attend a meeting of trustees which meet each year on the second Thursday of February to be placed with a duty to appear in court? Which takes precedence? What happens to the breach of contract if the court takes precedence? If the court does not take precedence, what happens to the level playing field between the advocate and the solicitor? It is a difficult problem which does not appear to have been faced by the Government in considering the matter. But it a very real problem both for solicitors and for anybody who wishes to see a level playing field between the solicitor advocate and the advocate.

Lord Macaulay of Bragar

I understand that the amendment is the result of fairly prolonged discussion between the Law Society and the department of the noble and learned Lord. The spirit behind the amendment is appreciated.

However, having heard the criticisms of it from the noble and learned Lord, Lord Emslie, and others who have spoken, I hope that it will become clear that, in the wording and the extent of the clause, the amendment is not in a satisfactory condition and that it might be proper to see whether the points that have been raised and the wording might be re-considered. I shall not rehearse the points again; we have much to do tonight. Perhaps the wording in Amendment No. 223C: so far as is reasonably practicable". could be taken into account and included.

There is one other matter which disturbs members of the solicitor branch of the profession of solicitor advocates. They perform a dual role— one day they act as solicitors and one day as solicitor advocates. If the solicitor advocate acts on instructions spelled out in Amendment No. 223B and, for example, leaves a client in a civil case in Perth to attend a criminal case in Edinburgh, he may leave the client in the lurch at the behest of the council. The client may then lose the case or run into additional costs through the proof being postponed and similar problems. In that situation who will pay the costs? At the moment, broadly speaking, an advocate who is instructed by the dean will be covered for any liability from having acted on the part of the dean.

As the noble and learned Lord, Lord Morton, has pointed out, there is a contract between the solicitor and the client. The Law Society is anxious about this and perhaps the noble and learned Lord the Lord Advocate would be willing to take the amendment away and examine it again. Perhaps he should give serious consideration— as I am sure he will— to the question of liability arising out of the operation of this section resulting in damages.

On one of the points made by the noble and learned Lord, Lord Emslie, I am advised that the rules of the Council of the Law Society always need the consent of the Lord President. That is my information.

Lord McCluskey

Perhaps I may add three points to what has been said. First, I do not understand the concept of a solicitor being instructed in the same way as counsel is instructed. When counsel receives a letter of instructions requiring him to be in a particular place at a particular time, he is instructed. I do not know what comparable concept would apply in relation to a solicitor. That must be taken on board in the reconsideration.

Secondly, for the advocate it is not just a question of which court. The noble and learned Lord, Lord Emslie, has dealt with that. If an advocate is at a planning inquiry or some other tribunal and a case in which he was instructed to appear in a criminal court in Scotland, in the court of first instance, calls in the Appeal Court, he is required to appear in the Appeal Court. His Appeal Court work will take precedence over work in the planning inquiry. That concept does not appear in the wording of the amendment.

The third point echoes one which I made in relation to solicitors' practice rules. The Faculty of Advocates includes firms which have been practising for some centuries in all the courts in Scotland. Their practice rules must be the model for this clause. I invite the noble and learned Lord the Lord Advocate to examine them. I am dismayed beyond belief to hear the noble Lord, Lord Macaulay, say that this amendment is the product of deep and serious consideration and thought. If that is the truth then the Lord help us all.

Baroness Carnegy of Lour

As a user of the services of solicitors, I hope that the fact that we have no solicitors from Scotland in the House of Lords will not mean that noble Lords forget the point of view of the customer of solicitors. I was rather dismayed to see how far the noble and learned Lord had strayed from the Bill. I am concerned at what will happen.

I heard the arguments on the English Bill and was concerned when the same arguments were deployed there. What will happen if I make an appointment with my solicitor to discuss something? He may also be a solicitor advocate doing both kinds of work. I may find that precedence has been given to his having to plead in court. This is not entirely about the way in which the court works. It affects the public who use solicitors in other ways. They are not the same as advocates; they do a different job as well.

The balancing argument must be remembered. The likes of myself cannot deal with it because I do not know enough about how the court works since I have simply been an honorary sheriff. I do not know enough but I know what it feels like to be the customer. We must remember the client. I hope that noble and learned Lords will not all leap up and answer me. I ask my noble and learned friend to bear that in mind; the night is not young and I do not wish to hold things up.

Lord Morton of Shuna

Perhaps I may answer the noble Baroness, in spite of her request that I should not do so.

A noble and learned Lord

Perhaps we should all stand up!

Lord Morton of Shuna

Perhaps I might be the one to do so, having been a solicitor. The basic difference is that the solicitor can choose whom he has as his client. As an advocate one receives a letter of instruction and whoever the client is, one appears. The solicitor can choose and make his appointment.

The noble Baroness is perfectly right. It will be extremely difficult if appointments made by a solicitor are suddenly, because of the precedence of the court, all washed away. One of the major difficulties of getting through court business, as the noble and learned Lord, the Lord Advocate will no doubt say, is the availability of court time. It is essential that court time be used as fully as possible.

Lord Fraser of Carmyllie

I do not wish to take up time but some important matters have been raised here. Yes, I have been in consultation with the Law Society on matters that have been brought up by noble and learned Lords. We dealt most particularly with what was to happen in the circumstance where a solicitor advocate had to respond to an instruction to appear in court. We discussed what happened in relation to other professional obligations that he had already taken on. It was for that reason that at the beginning of subsection (7) the amendment says about those instructed to appear in audience in any of the courts mentioned, those instructions shall take precedence before any of his other professional obligations". I am open to criticism and I shall look at the wording again if that does not properly meet the point that has been made. It is certainly meant to ensure that if the solicitor has other professional obligations and instructions to appear in court, those instructions to appear in court secure precedence.

The other point about which the Law Society was concerned referred to the early days of the introduction of solicitor advocates. There may be no solicitor advocates and a request could be made that where possible one should be provided to appear in one of the courts mentioned. That is the reason for the wording in subsection (7) (b). If there are no solicitor advocates, clearly they cannot be instructed.

I shall certainly look at the provision again. I am not anxious to establish anything that is significantly different between the provisions for advocates in Scotland and the new breed of solicitor advocates. The important point is that, as I said in my opening remarks, any rules that are made are subject to the approval of the Lord President.

I also indicated that I am aware that in the 1988 Guide of the Faculty of Advocates an order of precedence is set. It indicates, for example, that the High Court of Justiciary exercises its appellate jurisdiction before that of the inner House of the Court of Session. I assume that that is a matter that was settled with the court before the Faculty of Advocates introduced it.

Furthermore, as my noble friend Lord Renton indicated, there may be important issues as to how we deal with a partially heard case. Those provisions in the Faculty of Advocates Guide include that point and seek to cover it. Again that is what I anticipate would be provided for by the Council of the Law Society in rules that would be approved by the Lord President.

Lord Emslie

If I understand what the noble and learned Lord the Lord Advocate said, he will not take the amendment away and consider it. I fully understand what he has said. However, I do not understand what he said about the importance of establishing an order of precedence. As I understand it, he said that in any case any rules made by the Council of the Law Society are subject to the approval of the Lord President. The poor old Lord President will have a difficult job if subsection (7) (a) remains as it is.

Surely what the noble and learned Lord ought to do in this subsection is to give clear guidance to the Law Society as to what kind of content the rules must aim at. As the Lord President in Scotland for 17½ years I have been on the receiving end and have found it extremely hard. I know perfectly well that to have a series of half-baked rules based on inadequate premises makes the Lord President's job far more difficult than it need be. It is difficult enough, in all conscience.

8.30 p.m.

Lord Fraser of Carmyllie

I certainly did not want to indicate that I would not reconsider this matter. However, as I said, the Faculty of Advocates has set out an order of precedence. I suppose it would be possible to set out an order of precedence on the face of the Bill, but I think that would be wrong. The court itself should consider that matter in discussion with the Law Society. If it disapproved, it is open to the Lord President to refuse to accept that measure. However, in opening I said that the rules would doubtless equate broadly with similar rules made by the Dean of Faculty in relation to advocates. I put that in that slightly cautious way because there may be some differences, but to all intents and purposes I would expect them to be identical.

Lord Emslie

I hope I shall be forgiven for intervening again. We know perfectly well that the faculty has rules about the order of precedence and the obligations of an advocate in relation to instructions to appear in particular courts. However, there must be flexibility here. This subsection does not prescribe that the Law Society's rules shall as nearly as possible correspond with those which apply to advocates. I am making this point to be helpful and I am sure the Committee will understand that. Surely what one could do to make a much better job of this subsection is to state that the council shall make the rules to which the new section is directed on the question of precedence of courts inter se with the advice of the Lord President. At the end of the day he is the ultimate authority.

Lord Fraser of Carmyllie

If it will bring matters to a conclusion, I agree to look at that point.

Lord Grimond

I hope the noble and learned Lord the Lord Advocate can assist me on a matter which no doubt I should be able to find out for myself. I understand that an advocate such as a barrister is not liable in negligence. Will a solicitor advocate be liable? Can one sue a solicitor advocate for negligence?

Lord Fraser of Carmyllie

What is proposed is that where there is immunity from suit for advocates, that would apply equally to solicitor advocates.

Lord McCluskey

I have one other point to make in reply to what the noble Baroness has said. It is not a criticism. The noble and learned Lord, Lord Morton, has said that he was a solicitor for 12 years. The noble Lord, Lord Macaulay, was a solicitor for some years and I am also a fully qualified solicitor. However, none of us appears here to represent advocates. We are not advocates either. I used to be an advocate but I am now a judge. My concern is not the interest of the Faculty of Advocates but the public interest. I hope that I view this matter from a position of some impartiality because I am not a practising advocate. However, in so far as solicitors have a legitimate interest in this, I hope we can give a voice to it from our own experience as some of us have been solicitors.

Lord Macaulay of Bragar

In case the wrong impression is getting around, I should add that it should not be thought that advocates do not have administrative troubles also when they are called upon at the last minute and have to cancel meetings with clients at great mutual inconvenience. It should be borne in mind that the advocate solicitor is a creature of statute. Anyone who seeks that status will know precisely the difficulties in administering a practice and appearing in the High Court.

The Deputy Chairman of Committees

The Question is that Amendment No. 223C be agreed to. As many as are of that opinion say "Content". To the contrary "Not-Content". I think the Contents have it. Clear the Bar.

Tellers for the Not-Contents have not been appointed pursuant to Standing Order No. 51. A Division therefore cannot take place, and I declare that the Contents have it.

On Question, amendment agreed to.

[Amendment No. 223D not moved.]

The Deputy Chairman of Committees

"If Amendment No. 224 is agreed to, I cannot call Amendment No. 224A. I now call Amendment No. 224 standing in the name of the noble and learned Lord, Lord McCluskey.

Lord Emslie moved Amendment No. 224: Page 23, leave out lines 40 to 42.

The noble and learned Lord said: The amendment stands also in my name so, with the leave of the Committee, I hope I can speak to it. Amendment No. 224 relates to subsection (9) of new Section 25A. My difficulty is to discover what possible justification there can be for giving power to the Secretary of State, with or without the advice of the director general, to intervene in a matter which is concerned with the training regulations to be made by the Council of the Law Society with the approval of the Lord President.

The object of training regulations is to train people to the required standard. As far as I can judge, it cannot be said that the intervention of the Secretary of State is necessary to protect the public interest unless it should be suggested that the Lord President, in exercising his function of approval or disapproval, does not have the public interest very sharply in mind whenever he has to act. No doubt we shall be told by the noble and learned Lord, Lord Fraser of Carmyllie, that these additional powers in subsection (9) are simply one instance of a place where the new power is to be found and why the new power is thought to be for the public good.

So far as I can judge, no one has ever suggested that the Lord President, in the exercise of his function of approval or disapproval, has failed to have the public interest firmly in mind. It should be borne in mind that the subject matter of the Secretary of State's suggested intervention is rules concerning training courses which solicitors must undergo in order to be equipped to perform to an acceptable standard in the courts in which they would like to have rights of audience.

The same point is made under an associated amendment of mine, Amendment No. 225A, which is concerned with subsections (10) and (11). Those subsections deal with the conduct rules which are to be made by the council of the Law Society with the Lord President's approval.

I have a preliminary question because I do not understand what subsection (10) means. I find it hard to think of any possible justification for the Secretary of State's intervention in matters which are concerned solely with rules of professional conduct owed by an advocate or solicitor under the statutory right of audience to the court and to himself in the conduct of his career. There may, however, be some long-term good which it is thought that subsections (9) and (10) will serve. If I could be persuaded that that were so I should take a certain view about the amendment standing in my name.

For the moment, however, what worries me is the degree of intervention of the Executive in the operation of the courts and those who practise in them. I hope that the noble and learned Lord the Lord Advocate will be able to allay my anxieties about those matters as he has occasionally done in the past about other matters. I beg to move.

Lord Renton

Before my noble and learned friend replies, perhaps I may say that the difficulty that I as an English laywer find is this. Subsection (10), at the bottom of page 23, raises a situation which would conflict with the situation envisaged in the Government's new amendment which has now been added to the Bill— Amendment No. 223B. In that amendment we talk of precedents in certain courts. Here we find that comparisons are to be made with the work in the sheriffs court. Here we have a reference to directly or indirectly inhibiting the freedom of a solicitor to appear in court or undertake all the work preparatory thereto. Then we find that there may be consultation with the Director General of Fair Trading, who will generally not have a clue.

Lord McCluskey

Perhaps I may intervene. Those provisions will be transformed by the amendments which stand in the name of the noble and learned Lord the Lord Advocate. It might therefore be better if we were to allow the noble and learned Lord the Lord Advocate to proceed to the next amendment. In that amendment he brings in provisions which oust the present subsections (9) and (10) and replace them with considerations which are quite different. It may be that at this time of night we should not discuss the present subsections (9) and (10) at all. I suggest that that would be a simpler way to proceed.

Lord Renton

I naturally respect and am grateful for the intervention of the noble and learned Lord, Lord McCluskey. I was merely trying to help so that, when he came to reply, the noble and learned Lord the Lord Advocate might be able to reconcile provisions which I find it difficult to reconcile. Like the noble and learned Lord, Lord Emslie, I find subsection (10) in itself very difficult. I should not go so far as to say that it is incomprehensible, but the working of it will be difficult.

8.45 p.m.

Lord Fraser of Carmyllie

The overriding objective of the reform of the legal profession has been to secure the provision of services which satisfy necessary consumer standards but are not unduly restrictive. It is for that reason that the Secretary of State and the Director General of Fair Trading, whose perspectives go much wider than the legal profession itself, have been accorded a significant role. The purpose of giving a role to the Secretary of State and the director general is so that any differences which do arise can be fully dealt with. I hope that in most if not all cases it will be possible for any differences to be resolved without recourse to the formal provisions of the clause and that those will serve largely as a reminder of the wider public interest which the Secretary of State and the director general will bring to bear.

The noble and learned Lord, Lord Emslie, asked me if there was something further behind the provision and whether there was any relationship with other provisions. If he looks at an amendment which I have put down in relation to Clause 23— Amendment No. 257B— he will see that there is a provision on comparable lines which deals with the Faculty of Advocates.

I indicated previously at Second Reading that the purpose of that amendment is to ensure that rules relating to the Supreme Court conduct of advocates are treated in exactly the same way as those made by the council of the Law Society, for the purposes of ensuring that any disparity between those rules and corresponding rules in the sheriff court gives rise to no more restrictive a regime than is necessary in the interests of justice. The DTI White Paper Opening Markets: New Policy on Restrictive Trade Practices, which sets out the Government's proposals for forthcoming legislation on restrictive trade practices, makes it clear that any professional rule which has been approved by a government Minister will not be subject to challenge by the proposed competition authority. It may be that the noble and learned Lord feels that there is undue interference by the Secretary of State, but, in the context of the reform of legislation that would have a certain—

Lord Morton of Shuna

Are we discussing Amendment No. 257B now or shall we come to it later?

Lord Fraser of Carmyllie

I was asked by the noble and learned Lord to explain whether there was anything further behind the provision. I thought that the clearest way to explain the matter— and in view of the question of the noble Lord, Lord Morton, I must have made a mistake— was to fix it in the context of what was proposed for the Faculty of Advocates.

Lord McCluskey

I am anxious that the debate should proceed in an orderly fashion. I draw the Committee's attention to the fact that Amendment No. 224, which we are currently discussing, takes out subsection (9). In the following amendment the noble and learned Lord the Lord Advocate proposes to take out the same subsection. Similarly, my Amendment No. 225 takes out subsection (10), and the noble and learned Lord the Lord Advocate's amendment. Amendment No. 225B, also takes out the same subsection. The end result is that we have to look at the new provisions which the noble and learned Lord proposes to put into the Bill. The new provisions are those to which he referred late on Tuesday night, about the consultation with the Director General of Fair Trading which precedes a decision by the Secretary of State. That is the matter that we ought to be discussing. I see no point in discussing subsections (9) and (10), which we are all agreed ought to depart from the Bill.

Lord Emslie

For my part, I think that I now understand what the Government are trying to do, which is to do good by stealth, having been told what the objective is. If I am satisfied that subsections (9) and (10) may result in the avoiding of greater danger of interference by a new or planned competition authority I shall be happy to accept the assurance that I have been given about the underlying thinking and to beg leave to withdraw Amendment No. 224. I have spoken to Amendment No. 225A, but we shall no doubt come to that in due course. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Deputy Chairman of Committees

I call Amendment No. 224B. If this amendment is agreed to, I cannot call Amendment No. 224A.

Lord Fraser of Carmyllie moved Amendment No. 224B: (" (9) The Council shall, after any rules made under subsection (5) have been approved by the Lord President, submit such rules to the Secretary of State, and no such rules shall have effect unless the Secretary of State, after consulting the Director in accordance with section 64A, has approved them.").

The noble and learned Lord said: On the first day in Committee, we dealt with this amendment and Amendments Nos. 225B and 156A which explained the involvement of the director general. I hope that I explained the position there fully. I beg to move.

Lord McCluskey

The noble and learned Lord the Lord Advocate refers to an occasion when he was kind enough to accept an invitation from me to explain in advance his thinking on new Clause 64A and 64B. The Committee will see that, under the provision that we are now discussing, the rules, after being made by the council and approved by the Lord President, are to go to the Secretary of State. He then consults the director in accordance with Clause 64A. Committee Members will find that listed under Amendment No. 275H in the Marshalled List of Amendments. Clause 64A is on page 18 of the Marshalled List. The Committee will see that it states that, before considering any rule, the Secretary of State shall send a copy of the proposed rule in question to the director. The director will consider it purely from the point of view as to whether it restricts, distorts or prevents competition to any significant extent. It then comes back to the Secretary of State. Under Clause 64B, the Secretary of State considers the advice of the director and whether the interest of justice require that there should be such a rule". He may approve or refuse to approve the rule.

My objection to that situation, which is brought into effect by the amendment that we are now discussing, is that it makes the Secretary of State the final and therefore the sole arbiter of what the interests of justice require. I do not believe that that can be right. The interests of justice in relation to the conduct of litigation and the conduct of practitioners who engage in litigation must be a matter for at least sharing with the Lord President who acts on behalf of the court and consults the other judges and then makes Acts of sederunt or, as Lord Justice General, makes Acts of adjournal along with the other judges. That is my objection to the present amendment as it stands. It brings into force Clause 64A and therefore Clause 64B.

Lord Renton

Four agencies will have to take decisions or at least be consulted before finality is reached as to the way in which a solicitor in Scotland is to exercise a right of audience. I have had to deal with many solicitors in Scotland in their ordinary advisory capacity and helping to deal with estate matters, and I find them admirable people. I should not have thought that it was fair to impose upon them this tremendous palaver. It is fair enough to involve the Council of the Law Society; that is their governing body which is democratically elected by them and is, I hope, a trusted body. Then there is the Lord President. It is right that the chief judge of Scotland should have the opportunity of approving the rules and no doubt he generally does so. But then, after that, they must go to the Secretary of State who may not be a lawyer at all. Fortunately, the present Secretary of State is a member of the Bar and understands everything. Then the Director General of Fair Trading must be consulted as well.

Are we not being a little over-zealous in trying to achieve justice for the consumer which could be achieved just as well by more simple means and at less public cost?

Baroness Seear

Perhaps I may be greatly daring— I feel that it is greatly daring in this legal society— and ask the noble and learned Lord the Lord Advocate whether he believes in the doctrine of separation of powers. All along, the Government appear to put the Executive over the judiciary. That is completely contrary to the doctrine of separation of powers. Does the noble and learned Lord believe in that doctrine?

Lord Fraser of Carmyllie

Yes, I do, but it is clearly not entirely absolute and it is a matter of allowing rights of audience. It is not a matter of trying to interfere with the constitution of the court or any such matter.

Perhaps I may say to the noble and learned Lord, Lord McCluskey, that I hope that he at least liked this point about new Clause 64B; namely, that, where the Secretary of State goes at it to approve it, first, it is only advice that he receives from the Director General of Fair Trading and, secondly, he has to apply a test of the interests of justice. Those are the circumstances in which he looks at the matter. That is an appropriate way to address the matter.

On the noble and learned Lord's point as to whether it should be a joint decision between the Lord President and the Secretary of State, I should like to look at that matter again. However, for the reasons that I have already explained, it may be important that the Secretary of State is involved in the process.

Lord McCluskey

I am obliged to the noble and learned Lord for saying that he will look at the matter again, but I must warn the noble Baroness, Lady Seear, that it is dangerous to make the point that she made. I made that point on Second Reading and was told that I was being mischievous, so I have not made it again tonight.

However, there is a deep constitutional point here which the Government seem not to appreciate; namely, that for the first time in our history a Government Minister— an elected Minister, the Secretary of State for Scotland— comes in to overrule the Lord President and the Lord Justice General in relation to the conduct of persons inside the two courts. That is unprecedented. It is, as I shall point out a little later, not permitted by the Act of Union unless for the better administration of justice, and I do not yet hear an argument which persuades me that the Secretary of State has suddenly become the guardian of the administration of justice. He is so interested in this Bill that he has not even sent along the person whose name appears on the back of it; namely, the noble Lord, Lord Sanderson of Bowden.

When the Secretary of State, whoever he may be— whether for trade and industry or foreign affairs— considers the matter, he addresses his mind to great issues of policy, but most of those matters are first processed through echelons of civil servants who are asked to consider the interests of justice. I ask the Government to think deeply about the constitutional novelty of what is proposed in a Bill entitled the Law Reform (Miscellaneous Provisions) (Scotland) Bill.

The noble and learned Lord the Lord Advocate left us in a state of considerable confusion on the previous occasion. I understood from what he said as regards the previous amendment, when we called a Division but did not appoint tellers, that he would withdraw his amendment in order to consider it. It is unfortunate that he gave us such an indication or led us to believe that. It may be entirely my fault. It is a late hour, I am an old man and I sometimes find it difficult to follow what is going on in the House at this hour of the night. However, if the noble and learned Lord the Lord Advocate intends to move the amendment, he should make it clear that that is his intention. If he intends to withdraw it, he should make his intention equally clear.

Lord Fraser of Carmyllie

With respect to the noble and learned Lord, there is a clear distinction between those matters. If I wanted to withdraw the amendment, I should say so explicitly. If I was not prepared to consider the matter and was not prepared to move on it, the Committee could decide whether it wished to call a Division. I have indicated— this is a perfectly standard process— that I have listened to a point that has been made to me. I wish the amendment that I am moving to become part of the Bill, but I am giving the noble and learned Lord an indication, because of the point that he has made, that I shall look at it. If I consider that it should be amended, I shall amend it myself If I fail to do so, it is clearly open to the noble and learned Lord to repeat his objection at a later stage.

9 p.m.

The Earl of Selkirk

When the noble and learned Lord is considering that matter, will he also consider another point which I find rather difficult? Can a man work hard at being an advocate and a solicitor at the same time or is that a quite impossible proposition? As I see it, it has grave difficulties. I do not understand how it can happen. I do not know what all this is about because one-third of the whole faculty consists of former solicitors. When I was "Boots of the Bar" I was with another man at that time who had previously been a solicitor. He afterwards became the Lord Justice Clerk.

Is there a practical way to do this or is one trying to break up a stone wall which cannot be broken? If so, we are wasting our time completely. I do not think it is practicable. I do not think that it is in the interests— and I thought that that is what we were studying— of the administration of justice. That is the main point. Apparently we are trying to put a solicitor into an advocate's hole and fit them together. That creates problems.

So far as I can see the noble and learned Lord has not worked the matter out at all. I have no clear explanation of how it is to be done. There are plenty of men with solicitors' experience in the faculty at the present time. To a large extent there always have been. What are we trying to do? Are we trying to copy an English method? Is that all that the noble and learned Lord is trying to do? If so, I think that we should be told so, quite frankly.

Lord Renton

My Lords, if the English method is to be copied, perhaps I may say that it is not a desirable precedent.

Lord Fraser of Carmyllie

My Lords, perhaps I may respond very briefly. No, we are not trying to make solicitors and advocates identical. If that were to be done, we should simply say that all solicitors were to have rights of audience in both the Court of Session and the High Court of Justiciary. We are not setting out to develop such a scheme. We say that there are those solicitors who if they have the requisite training and qualifications may secure those rights of audience while still remaining solicitors.

I should envisage that the 6, 000 or so solicitors in Scotland, as the noble Earl indicates, will be perfectly content to stick to their business of soliciting. However, there will be some— a cadre of those— who I think will wish to take advantage of those rights of audience and provide a choice to clients who may wish to employ them.

On Question, amendment agreed to.

The Deputy Chairman of Committees

If Amendment No. 225 is agreed to, I cannot call Amendment No. 225B.

Lord McCluskey had given notice of his intention to move Amendment No. 225: Page 23, line 43, leave out subsection (10).

The noble and learned Lord said: I shall not take any time on this amendment. It raises exactly the same point. I think that what is required is to make it clear not just that the advice of the Director General of Fair Trading is confined to matters of competition policy but that the new Sections 64A and 64B which are now introduced into the Bill in advance, as it were, are ultimately rewritten so that the Secretary of State, having consulted the director in matters of competition policy, on that basis and on that basis alone can interfere with a rule that has passed the Lord President; but he should have no general jurisdiction to do so in the interests of justice. I shall make that point when we come to Amendment No. 275H. In the meantime I do not seek to move this amendment.

[Amendment No. 225 not moved.]

The Deputy Chairman of Committees

If Amendment No. 225A is agreed to I cannot call Amendments Nos. 225B or 225C.

[Amendment No. 225A not moved.]

Lord Fraser of Carmyllie moved Amendment No. 225B:

Page 23, line 45, leave out from ("State") to end of line 3 on page 24 and insert: (" (10A) Where the Secretary of State considers that any rule submitted to him under subsection (10) would directly or indirectly inhibit the freedom of a solicitor to appear in court or undertake all the work preparatory thereto he shall consult the Director in accordance with section 64A.").

The noble and learned Lord said: I beg to move.

Lord McCluskey

I do not propose to divide the Committee on this matter. The fact that we allow this to go into the record— I shall not oppose this provision being inserted into the Bill at this stage and thus appearing in the Report print of the Bill— does not mean that I agree with it. I need not go on repeating that point.

On Question, amendment agreed to.

Lord Fraser of Carmyllie moved Amendment No. 225C: Page 24, line 7, leave out ("that subsection") and insert ("section 64B").

On Question, amendment agreed to.

[Amendment No. 226 not moved.]

Lord Emslie moved Amendment No. 226A:

Page 24, line 19, at end insert: ("(12A) Where a complaint has been made that a solicitor has been guilty of professional misconduct in the exercise of any right of audience held by him by virtue of this section, the Council may, or if so requested by the Lord President shall, suspend him from exercising that right pending determination of that complaint under Part IV.").

The noble and learned Lord said: This amendment is designed to introduce a necessary and simple additional subsection to the new Section 25A. I understand in advance from the noble and learned Lord the Lord Advocate that he is minded to accept the amendment which I propose. If that is so, in the interests of saving time I shall not delay the Committee by explaining the purposes which lie behind it. I should have thought that the purposes were obvious but perhaps we should leave it to the noble and learned Lord to state his position on this matter. I beg to move.

Lord Morton of Shuna

Before the noble and learned Lord says anything, perhaps I may say a sentence or two. There should surely be a parallel power to this in Clause 22, if it is to be passed as a clause, and in Clause 21, because the power to suspend the non-legal advocate, if I may so describe the Clause 21 power, is just as important— or the non-Scottish advocate has the power to suspend the solicitor advocate.

Lord Macaulay of Bragar

Before the noble and learned Lord answers perhaps I may make a short point on the content of this amendment. I suggest that it is too draconian in its terms at the moment. If the noble and learned Lord will reconsider it, there should be some basis for the suspension rather than a complaint, because a solicitor could be bedevilled with complaints suggesting that he was guilty of professional misconduct when he was nothing of the kind. At the end of the day he could be suspended from practice and suffer considerable loss. I should have thought that there should be some reasonable basis for accepting the complaint before suspension; otherwise all sorts of damage could be done to perfectly honest individuals who are carrying out their practice.

Lord Fraser of Carmyllie

I am indeed content to accept the amendment in the name of the noble and learned Lord, Lord Emslie, which I believe gives the council an important power to deal promptly with instances of alleged professional misconduct on the part of solicitors exercising rights of audience in the supreme courts. It allows the council to act swiftly in the interim, while allowing the tribunal proper time to deal definitely with the complaint. It is, of course, in the public interest that the administration of justice should not be impeded by repeated inappropriate conduct on the part of a solicitor-advocate in court.

So far as the noble Lord, Lord Macaulay, is concerned, as it appears that the council may suspend someone when a complaint has been made, I envisage that it would undertake suspension only where it was a very serious complaint. However, when the complaint comes from the Lord President, when the senior judge in Scotland makes that request, I should have thought it indeed wholly appropriate that the council should be under an obligation to require that suspension. So far as concerns the point in relation to the other two clauses, I cannot immediately answer the noble Lord but I understand the force behind what he says.

Lord Emslie

May I come back, in the light of what the noble Lord, Lord Macaulay of Bragar, had to say? At the moment, the Dean of Faculty can order the suspension of any advocate against whom a complaint of professional misconduct has been made, pending resolution and disposal of that complaint. The object of this exercise is to introduce an equivalent power. It cannot be the Dean of Faculty who will exercise it. There is nothing equivalent to the Dean of Faculty in the Law Society of Scotland. The only person who can properly exercise the power is the Lord President of the Court of Session. He is in the best position to judge the necessity for instant suspension and the urgency with which that ought to be ordered. I do not know. I am attempting to explain the thinking behind this, and I am indebted to the noble and learned Lord the Lord Advocate for what he has said about the content of the amendment.

On Question, amendment agreed to.

Lord McCluskey moved Amendment No. 227: Page 24, line 20, leave out subsection (13).

The noble and learned Lord said: If noble Lords consult the Bill, they will see that on page 24, at line 20, we have the first manifestation of a particular subsection which appears in various places. It reads: Where a function is conferred on any person by this section he shall exercise that function as soon as is reasonably practicable".

This amendment is connected with a number of others which seek to bring about the demise of a similar subsection in other clauses of the Bill.

There are a number of points connected with this. One is that the Lord President is already heavily understaffed and the new duties which are imposed upon him by this and other clauses impose a real burden upon him. We shall have occasion later to refer to that. But to impose upon him a duty to act as soon as is reasonably practicable may not be a duty to act very soon, because the Lord President has not the staff or facilities to act very quickly in relation to a matter of this kind.

But this provision, and its counterpart in other clauses, raises in my mind five questions and I shall put them simply to the noble and learned Lord the Lord Advocate. The questions are: why, where, who, what and how? To elaborate to a small extent in relation to the first question, why include this provision? What is the justification for it? What is the reason for it? The second question is: where? Where did this provision come from? Where shall I find a precedent for a provision in a statute which lays upon the Lord President, the Director General of Fair Trading, the Council of the Law Society and the Secretary of State this particular duty? And who is it that Parliament is asked not to trust to act with due expedition? Is it the Lord President who cannot be trusted to act with due expedition, is it the Council, is it the director general, or is it the Secretary of State? In other words, which of them cannot be trusted? Is it not rather insulting to public servants of this kind, and to the council, to be so suspicious?

The next question, the what? question, is: what is the hurry? No solicitor has had the right to plead in the Scottish Supreme Court since 1532, yet once this provision is brought into force everyone has to rush madly about doing things as soon as is reasonably practicable.

Finally, there is the how, question: how is this to be enforced? If the council of the Law Society drags its feet, can a solicitor sue the council? If the Lord President is thought by the council to be taking an undue amount of time, can the council sue the Lord President? Or can anyone sue the Secretary of State? So is this intended to be enforced in some way, or is it just brutem fulmen as so much of the rest of the Bill is? So may I ask the noble and learned Lord the Lord Advocate please to explain why this very funny provision finds its way into this clause and other clauses? I beg to move.

Lord Eraser of Carmyllie

Certainly this provision is not meant to be insulting to any of those who are required to discharge duties and functions under this clause; when it comes to the granting of rights of audience to solicitors in the supreme courts. I have little doubt that all those mentioned will deal with the matter promptly. Nonetheless, the scheme for granting rights of audience and maintaining proper procedures in relation to how these rights are exercised is necessarily a little complicated and involves several office holders or bodies. The provisions about prompt dispatch of functions have been inserted as a reminder to all concerned of the importance of securing in practice the extended rights of audience conferred in law by these clauses. I appreciate, as the noble and learned Lord said, that the Supreme Court of Scotland has operated without solicitors for some time. Nevertheless it seems to the Government correct that there should be proper dispatch in this matter.

The noble and learned Lord raised another point which he raised for the first time during the course of his Second Reading speech. I can see why he would not like this provision imposed on the Lord President of the Court of Session at the same time as an identical provision is laid on him in Clause 21. Prompted by the vary fair point that he made at Second Reading, there has subsequently been contact with the Lord President. The point about the overload on him in relation to these matters has, I hope, been resolved in this way. The Secretary of State has undertaken that Clause 21 as a whole should not immediately be brought into play and certainly should not be brought into play at the same time as Clause 20. It is hoped that by approaching it in this way the noble and learned Lord's concern about overloading the Lord President will be met.

Lord Macaulay of Bragar

Before the noble and learned Lord sits down, is he saying that Clause 13 is nothing more than a prompter or reminder? Is that not a new concept in legislation? If that is all it is, it is surplus to requirements, and no doubt the responsible persons appointed to do these jobs will not require reminding.

9.15 p.m.

Lord Morton of Shuna

I wish to make very much the same point. Just to avoid anyone being hurt by this provision, what will happen if a solicitor feels that the director general or the Secretary of State is being slow? How is a court to judge if it is a court that is to do it? If the Secretary of State or the director general says, "I will get round to this as soon as I possibly can but I have rather a lot to do", who in the court will be able to judge whether or not he is telling the truth? It is an impossibility. Surely we do not need to clutter up legislation with pious hopes.

Lord Fraser of Carmyllie

I do not think I can expand on what I have said. The noble and learned Lord, Lord Macaulay, has picked up my wording. It is inserted as a reminder to all concerned of the importance of securing in practice the extended rights of audience which are being conferred by this clause. That is all that is intended.

The Earl of Selkirk

The rights would not disappear if they were not used for two years, would they?

Lord McCluskey

I do not know whether to laugh or cry when I hear these answers. Parliament cannot be asked to enact a provision which lays duties upon public office holders such as the Lord President, the Secretary of State and the Director General of Fair Trading— I do not include in that category the Law Society— when at the same time the Lord Advocate stands at the Dispatch Box and says, "I have no doubt that these persons and the council will act properly". If he has no doubt, why is Parliament being asked to enact a provision of this kind? This is absurd. I do not understand.

It gets worse, of course, because the same provision appears in relation to the barefoot pleaders, if I may call them that, who are to be enfranchised to plead in our courts by Clause 21. Whereas the statute says that everyone is to act as quickly as they can, the Lord Advocate is standing at the Dispatch Box saying, "But I give you this promise; the Secretary of State will not act for a long, long, time". As a matter of fact, I do not believe that he will ever act at all.

I do not know whether to laugh or cry when I hear these answers. It is a serious matter. I ask the Lord Advocate to think very carefully whether he needs to advance with his chin so fully exposed to the kind of attack which I am sure he will meet in another place where he will not be treated with the kindness to which he is accustomed to receiving in this Chamber.

Lord Fraser of Carmyllie

The noble and learned Lord will be aware that I was equally conscious that I was leading with my chin on this matter. It is the Government's view that this provision should be included in the clause. If he wants to laugh rather than cry I would be happy enough with that. But I invite him to withdraw the amendment.

Lord McCluskey

In a previous incarnation, if I may say that, I stood at the very same Dispatch Box where the noble and learned Lord now stands. When I felt utterly ashamed of the proposition which I had advanced and which had been torn apart from in front, from the side and from behind me, I used to say that I would speak to my right honourable friend. I am sure that the Lord Advocate could have said that. However, I do not require him to stand up and say that on this occasion because I hope he will say it another 10 or 20 times before the evening is out. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

On Question, Whether Clause 20, as amended, shall stand part of the Bill?

Lord Emslie

My noble and learned friend Lord McCluskey and I have given notice of our intention to object to the Question. It is no secret that I have always been deeply anxious about Clause 20. It is a poor clause for three reasons. First, the provisions introducing new Section 25A are unnecessary in Scotland. Any solicitor who believes that he can learn to become an advocate can, if he applies himself and undergoes the training of pupillage, readily become a member of faculty and be admitted to the public office of advocate.

There are no artificial obstacles whatever to a solicitor becoming an advocate in Scotland. In some areas his position is better than that of an entrant who has not been a solicitor because under the regulations of the faculty he is required to undergo pupillage for a period of only six months. There is also the associated thought that the more solicitors who become advocates the greater will be the litigants' choice of persons to represent them in the supreme courts. So much for the lack of necessity in support of Clause 20.

Secondly, the clause carries an obvious risk about which I shall speak briefly in one moment. Let it be clearly understood that I hold no brief here to speak in the interests of the Faculty of Advocates. I have never believed that if Clause 20 passed into law it would materially injure the faculty; the quality of its members will see to that. However, I believe that there is an obvious risk of impairment to the quality and efficiency of the administration of justice. On Second Reading I explained the importance of the court's performance of its responsibilities and the fact that it should be listening to advocates of quality. There should be a continuing mutual respect and trust between the Bench and the Bar and also mutual respect and confidence between advocates. Without that quality of representation and trust, time and expense tend to be wasted. There is always a risk that the end product— that is, the judgment— will never be as good as it should be.

In my experience, advocacy at supreme court level is and ought to be regarded as a specialist skill. It can be developed to the required standard only by the sound initial training which advocates receive; furthermore, by the full-time commitment to the function of advocacy under the influence of the College of Justice. That is the position as regards advocates.

Contrast that with the position of solicitors, who by definition will continue to practise as such often with the cares of partnership upon them. Even if they receive adequate initial training as good as pupillage— and I rather suspect that to be the intention of the Bill— one cannot expect them to spend their whole time in the performance of the functions of an advocate in the supreme courts because they will only be instructed by their clients and because they will have the distractions of a general practice of solicitors which, so far as one can tell, they do not intend to give up. If they do, they should join the Bar. Part-time advocacy is not good for the courts, and I suggest to the Committee that therefore it cannot be good for the litigant either.

The third criticism of Clause 20 is that the justification now presented for it is flimsy in the extreme. The explanation on Second Reading was— and this is an echo of what appears in the White Paper— that if Clause 20 passes into law, it will give to some clients of some solicitors a wider choice of representation in the Supreme Court of Scotland.

I do not propose to develop that criticism. On Second Reading I suggested that the choice to which the noble and learned Lord the Lord Advocate addressed himself was hardly a choice worth having. A client who allows his own solicitor to conduct proceedings on his behalf in, for example, the Court of Session will inevitably be making an uninformed choice and will not have the advantage of the informed choice which is now available on the advice of a solicitor.

In the course of addressing the Committee, I have reached the conclusion that however strongly I feel about Clause 20, and its deficiencies and absence of principle to support it, I should not at this stage divide the Committee. However, it was right, it seems to me, that I should at least make it perfectly clear what are my views about this clause and the dangers which appear to me to be inherent in its survival.

Lord McCluskey

I also do not propose to divide the Committee on this matter because the clause which we are asked to approve is an entirely different animal from that which came into court. It came in as a kind of zebra and is going out like a camel or a dromedary. Eventually we shall have to discover what sort of animal we have. At present I am not quite sure.

I want to ask the question which goes to the heart of the matter. I do so at the risk of incurring the wrath of the noble Baroness, Lady Carnegy, who said that we had an extended debate on this subject on Second Reading and that she would not wish us to reiterate all the arguments. With respect, I disagree with the noble Baroness on that.

On Second Reading we debated an enormous Bill with provisions about licensing, international arbitration, judicial factors, charities, rights of audience and conveyancing. It was impossible to develop the argument fully in the 12 minutes which I understand to be allowed on Second Reading— although I believe that there is no rule in this Chamber that one cannot speak for hours.

I do not propose to take up a lot of time this evening, but I should like to make a few points. First, before the publication of the Green Paper, there had been no support for this at all as the noble Lord, Lord Hughes, the chairman of the Royal Commission, pointed out. Paragraphs 15.43 onwards consider two questions: whether there should be fusion, and if there was no fusion, whether there should be extended rights of audience. I do not propose to repeat what was said by the noble Lord, but the greater part of the evidence was in favour of retaining the present divided profession.

The arguments for and against fusion are then considered and I need not go into those. The noble Lord went on to say that the conclusion that the profession should remain divided did not deal with the question of rights of audience. However, that was considered by the Royal Commission and the proposal that there should be extended rights of audience to solicitors was rejected on the view that there was a danger that that might inevitably lead to the demise of the Faculty of Advocates and bring in fusion by the back door.

It so happens that I agree with the judgment of my noble and learned friend Lord Emslie, that the Faculty of Advocates will survive. That is one reason I emphasise the point that we are not here to defend the chicks against the storm; they will survive perfectly well. The question is in the interests of justice.

The principal advocate of this change not taking place was the present Lord Chancellor. He was Dean of the Faculty of Advocates in 1976 and onwards and presented evidence on behalf of the faculty both orally and in writing at great length against fusion and rights of audience. I felt it would be unfair some years later to repeat what he said, had it not been for the fact that at the Committee stage of the Courts and Legal Services Bill the Lord Chancellor repeatedly emphasised that he stood by what he said. I should like to remind your Lordships of what he said.

The Royal Commission put quite specific questions to the Faculty of Advocates. The first question to which I should like to draw attention is No. 56: What would be the advantages and disadvantages if solicitors had a right of audience in all courts? The Lord Chancellor, as Dean of the Faculty, replied: This question really raises, in a different form, the issue of fusion of the two branches of a profession. The Faculty considers that it would not be practicable to permit solicitors to be heard in all courts while retaining a separate Bar. The answer continues, but I shall not go into it in detail.

I come to Question 45 which concerns fusion. I can now deal with the matter of fusion, because the Lord Chancellor, as Dean of the Faculty, said that they led to the same thing. He said: While the Faculty is aware that there is pressure for fusion from some quarters… it does not believe that… the existence of a divided profession in this country is the cause of any dissatisfaction among members of the public. I make it clear that I read that short, but I hope I do not read it unfairly.

He added— again I read selectively: The Faculty … believes that it lies with those who assert that the Faculty should be abolished to demonstrate public dissatisfaction with the way that the profession is organised at present and also that fusion would provide the public with a substantially better service taken overall. Again I emphasise the point that it was he who said that extended rights of audience of the kind now proposed ultimately lead to the danger of fusion.

The Lord Chancellor then made the point that my noble and learned friend Lord Emslie has repeatedly made, that such a proposal could: in turn also lead to a general lowering of the standard of pleading and presentation both in the Supreme Court and elsewhere. In cases of a routine nature this might not matter very much, but in more difficult cases the consequences to the litigant could be very serious… The benefits of the collegiate structure of the Faculty of Advocates would be lost. The advantages of this system in a small country such as Scotland are considerable."

There are many more passages, but I do not propose to take your Lordships through them. Your Lordships will find that those passages persuaded the Royal Commission unanimously to reject both fusion and extended rights of audience. If that is what the evidence led to, what is the Government's justification for this sudden change of mind? We need to be told, because no one has ever answered the question.

We guess that because of events in England over which we in Scotland have no control— Scotland in this regard is another country— the Government have decided that they cannot make the changes in England and allow the Scots to continue a system which would be a kind of reproach to the way they developed in England; so they will do it in Scotland. Worse still, I learnt over the weekend that the Government propose to introduce the same system in Northern Ireland. Whereas we have the advantage of being able to come to the Committee and discuss the matter line by line and clause by clause, in Northern Ireland no such right is to be accorded. The whole matter will be put in an order and voted upon yea or nay. No one will be allowed to change a word of it. That is deeply distressing.

I asked the president and the secretary of the Law Society of Northern Ireland what the position was and whether there was dissatisfaction. They said there was not. They did not ask me to take their word for it. They had been invited on to a programme by the BBC to discuss the state of dissatisfaction with the position there. The BBC made its own inquiries of the Consumers' Association and others. They all said that they were perfectly happy as things stand. Therefore, these provisions are to be introduced into Northern Ireland and Scotland for no reason that I can understand. The Government have never given a reason.

I do not know, even now, who supports these proposals. The Law Society of Scotland supports the principle of extended rights of audience but states in its briefing to me, As drafted the Bill will impose obligations impossible to fulfil". The Scottish Consumer Council supports the proposals but its document contains only eight lines of bald statement in relation to training and nothing else. It is obvious that the Scottish Consumer Council has not come to grips with some of the issues now before us.

I should like to know from the Lord Advocate who, prior to the publication of the Green Paper for Scotland in the spring of 1989, made representations to the Government that the system ought to be changed either in respect of rights of audience or, indeed, the other matters that go with it. I particularly want to know— I shall certainly repeat the question until I receive an answer— who on earth suggested the whole prospect of allowing to plead in our courts the barefoot pleaders, the persons with no legal qualifications at all.

There is one other option that the noble Lord, Lord Grimond, and I discussed yesterday. I hope the noble Lord does not object to my mentioning it on the Floor of the Committee. If we are right in thinking that someone has judged that what is good for England must be good for Scotland, why do we not have a provision in the Bill to let the English get on with it for two years, five years or 50 years, and at the end of that time assess the experiment to see how it works? If it works for England then we can adopt it for Scotland. In the meantime, we should leave out Clause 20.

Lord Grimond

As my name has been mentioned, perhaps I may be allowed to add a few words to the debate. I am most grateful to the noble and learned Lord, Lord McCluskey, but I do not want to pre-empt what I hope to say on Monday, when I hope to have the noble and learned Lord's support. As regards the present situation, I speak as someone who is not averse to widening the rights of audience. However, I must repeat what I said at Second Reading: the ordinary person's view about the law is, first, that it is too expensive; secondly, that the delays are sometimes inordinately long; and thirdly, that it is uncertain.

I have to say that during these debates I have heard nothing which encourages me to believe that this Bill will tackle any of those mischiefs. I can see grave dangers to the College of Justice which we are only justified in incurring if the mischiefs to which I have referred are clearly tackled in the Bill. However, from what I have heard so far I cannot see that this Bill will necessarily make the law cheaper, quicker or more certain in Scotland.

To pre-empt what I might say on Monday, I have to say that I suspect the Bill has been introduced largely because of troubles in England. If there were not an English Bill before the House there would not be a Scottish Bill. It cannot be said too often that the sheriff court and the lower courts in Scotland are, in my experience— I have had some experience both as a Scottish Member of Parliament and, for a short time, as an English barrister, but I have no experience of the supreme courts— an efficient and relatively cheap way of dispensing justice and give widespread satisfaction compared with most of the courts in this country.

Lord Ackner

Reference has been made to England, so perhaps I may make a few comments. The reference to trouble in England is a media creation. There is a desire by the solicitors to increase their rights of audience merely because they are to lose their conveyancing monopoly. They were content with the position and content with the Royal Commission under the chairmanship of my noble and learned friend Lord Benson, which published its recommendations 10 years ago and which this Government have successively approved.

At no stage in the English Bill did my noble and learned friend the Lord Chancellor suggest for one moment that there was any basis for saying that alterations made to the rights of audience would be a basis for contemplating any reduction in expense. He was unable to say that for two very good reasons. First, the Royal Commission had said that it would prove more expensive and it had gone into the matter in detail. Secondly, he had to concede that the Government had embarked on no studies, no research and no form of consideration of the expense factor.

In the English Bill the only suggestion for dealing with expense was to hive off from the High Court a whole mass of potential litigation to the county courts. The House learnt to its surprise that the county courts were in such disarray at the moment that they were incapable of dealing with their present workload let alone any additional work. We invited my noble and learned friend the Lord Chancellor— and I imagine that Members of the Committee here will have no greater success with my noble and learned friend the Lord Advocate— to indicate why there had been this volte face, unresearched, and the result of no consultation, unless it was because of the populist clamour that something should be done about the so-called restrictive practices of the lawyers.

I add one final point. I met a circuit judge at a dinner two days ago. He had just come back from America. He had been invited there in order to visit the various places where they were opening Inns of Court in order to follow the philosophy, which is enjoyed both north and south of the Border, of a divided profession. The American former Chief Justice has always been a strong adherent of the philosophy that specialisation resulted in greater efficiency and reduced costs. The message that the circuit judge brought back was that the Americans thought we were quite mad to start going into reverse and copying their situation with all the disadvantages which will result.

Lord Fraser of Carmyllie

From where the noble and learned Lord, Lord McCluskey, sits, he may be unconcerned about incurring the wrath of my noble friend Lady Carnegy by repeating what he said at Second Reading. However, from where I stand it might be more politic of me to make a short response to this matter, otherwise I shall be repeating what I said at Second Reading.

We recognise that this is a major reform. It does not slavishly follow what is introduced in England. It starts from a materially different point. In Scotland at present something like 90 per cent. of jury trials are already conducted by solicitors. In civil matters in the sheriff court, where there are rights of audience, the jurisdiction of the court is very extensive. It is correct to say that the Royal Commission did not come down in favour—

Lord Simon of Glaisdale

I am very sorry to interrupt my noble and learned friend. Not only did the Royal Commission not come down in favour, it came down against the proposition.

Lord Fraser of Carmyllie

I was about to say just that. I am anxious to point out to noble and to noble and learned Lords that before the Royal Commission was the question of looking at extending the rights of audience essentially against a background when fusion was in the air. What is now being considered is not to give extended rights of audience to all, but only to certain solicitors of particular competence.

It is for that reason that we have spent as much time as we have on the matter. I do not quarrel with the amount of time that we have used. The purpose is to ensure that those solicitors who acquire extended rights of audience under this Bill and this particular clause, should be those who have sufficient quality and competence to make their appearances before the courts truly appropriate. There is absolutely no desire whatever to see the business of the respective courts in any way slowed up or damaged. The noble and learned Lord, Lord Emslie, with his 17 years' experience as Lord President, has had a great deal to contribute to the administration of justice. We should not like to see the advances and improvements made during his time set back. It is for that reason that I obviously have to pay particular regard to what he said.

There has been some support for this proposal in Scotland. It may be that the Scottish Consumer Council dealt with it shortly, but nevertheless it approved of it. As I understand it, all the major political parties in Scotland see in principle now that there should be an extension of rights of audience, although I accept that on all sides there are concerns that we should introduce it carefully and properly so that the administration of justice is not damaged.

The Law Society has had some concerns. One revolved around difficulties which I trust have now been resolved by an amendment that I moved earlier.

However, I suggest to the Committee that the clause should not be divided against. I readily acknowledge that there have been a number of amendments moved which have materially improved the clause as it stands and in at least one respect— which I believe has been important to the noble and learned Lords who contributed to our debates on Clause 20— I have said that I shall look to see how their proposal might be met.

With my thanks to those who have contributed to the various debates on Clause 20, I beg to move.

9.45 p.m.

Lord Morton of Shuna

Before the noble and learned Lord sits down, can he explain his figure of 90 per cent. of jury trials taking place in the sheriff court? He will be very well aware that the judges of the Court of Session, through the offices of the then Lord President of the Court of Session and the Lord Justice Clerk, made submissions on the White Paper which showed that those figures were entirely wrong. Is the noble and learned Lord saying that the figures of my noble and learned friend are wrong?

Lord Fraser of Carmyllie

If the noble and learned Lord will give way, I shall stand corrected on the figures. The fact of the matter is that in comparison with England, where I understand that what rights there are at present for solicitors to appear in jury trials are non-existent or very limited, in Scotland there is an extended right for solicitors to appear before juries. That is further extended by recent legislation which allowed me as Lord Advocate to direct that some cases which would attract a sentence of as much as three years' imprisonment ought to be heard in the sheriff court. I should have thought that many people would have considered that that was a very wide right of audience.

Lord Morton of Shuna

I am surprised that the noble and learned Lord repeated the figure of 90 per cent. when it has been specifically challenged by the Lord President and the Lord Justice Clerk. He did not inform the Committee that those figures were so challenged; nor did he suggest where the figures were wrong.

Lord McCluskey

With the leave of the Committee, perhaps I may say one or two words. The purpose of our flexible procedure at Committee stage is to allow Members to ask the Minister questions and to seek answers to those questions. I did not ask the Minister who approved this proposal. I told him that the Scottish Consumer Council approved it in a bald statement of eight lines long. I asked him: who suggested it? That is the question to which I wish an answer. Who suggested this provision before the publication in England of the three Green Papers?

Secondly, no one imagines for one moment that what is provided for in Clause 20 slavishly follows the provisions in England. Indeed, that is a matter of deep complaint from that very consumer council. It wants an advisory committee set up on the same lines as that which was set up in England.

I also think that the noble and learned Lord the Lord Advocate should have answered the points raised by the noble Lord, Lord Grimond, and echoed by the noble and learned Lord, Lord Ackner. Have the Government studied whether or not the introduction or implementation of Clause 20 will reduce the cost of litigation to anyone? If the answer is yes, with what result? If the answer is no, we should be told.

Finally, the time is 10 minutes to 10. It is unfortunate that as I came into the House tonight to attend this Committee an English Member stopped me and said, "I can assure you that an English Bill of this importance would not be treated in this fashion". I cannot comment on that; I simply narrate to the Committee what was said.

Clause 20, as amended, agreed to.

Lord Morton of Shuna moved Amendment No. 228: After Clause 20, insert the following new clause: ("Complaints to Tribunal. .At the end of section 51 (3) (b) of the 1980 Act (Complaints to Tribunal) there is inserted— (bb) the Dean of the Faculty of Advocates in respect of the conduct of a solicitor exercising a right of audience under and in terms of section 25A of this Act; ".").

The noble and learned Lord said: I understand that this amendment is acceptable to the Government. I should explain it so that at least this part of the Bill may be understood by anybody who wishes to know its purpose.

Section 51 of The Solicitors (Scotland) Act provides for a limited number of people who can complain to the discipline tribunal. They are the Council of the Law Society and various other people, including the Lord Advocate, any judge, any auditor and the lay observer who is to be transmogrified into the ombudsman.

The purpose of the amendment is to add the Dean of the Faculty of Advocates to the list. This is necessary because he has the discipline power over the Faculty of Advocates which will provide the majority of the advocacy in the higher courts. There is nobody else who can easily fulfil the function that is necessary so that a solicitor with the right of advocacy should be under somebody's discipline with somebody to make the complaint to the discipline tribunal. I beg to move.

Lord Fraser of Carmyllie

I am content to accept the principle of the new clause. As I understand it, it was suggested by the present Dean of Faculty. It is an important and worthwhile clause. However, I should like to reflect further on the precise wording and the best location in the Bill for the provision. I undertake to come back at Report stage with an amendment which has a like effect.

Lord Morton of Shuna

Certainly. I only inserted it where I was informed by the Public Bill Office I could insert it. The noble and learned Lord may insert it where it fits more suitably. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 21 [Rights to conduct litigation and rights of audience]:

Lord McCluskey moved Amendment No. 229: Page 24, line 23, at beginning insert ("Notwithstanding the terms of the Act of Union or of Article XIX of the Treaty of Union set forth therein").

The noble and learned Lord said: The amendment introduces into Clause 21 the barefoot pleader clause. The opening words are: Notwithstanding the terms of the Act of Union or of Article XIX of the Treaty of Union set forth therein".

This is not unconnected with Amendment No. 269. My noble and learned friend Lord Ackner will be interested to know that I am endeavouring to answer the question that he repeatedly asked the noble and learned Lord the Lord Chancellor when we were discussing the Courts and Legal Services Bill. Why is it that laymen are to be appointed to the Bench in England, but are not to be appointed to the Bench in Scotland?

This is what I would call a probing amendment. In England and Wales the laws of competition in the market apparently require not only that laymen be allowed to practise in the highest courts but that they should also be eligible for appointment to all the highest judicial offices. That is in Clause 50 of the Bill introduced at Committee stage in this House.

However, in Scotland, although laymen are to be allowed to practise in the highest courts, they are not to be allowed to become judges in these courts. Why should these laymen who are granted rights of audience under Clause 21 be denied the ambition to become judges? Is this some new, subtle form of discrimination?

Lord Fraser of Carmyllie

I had thought that the Lord Chairman of Committees had called Amendment No. 229 regarding the concern of the noble and learned Lord about the Act of Union.

Lord McCluskey

I am speaking to Amendment No. 229. If the noble and learned Lord had listened, he would have heard me explain that this amendment is not unconnected with Amendments Nos. 269 and 239. The same point is involved, as he will discover if he contains himself a little longer.

English lawyers and others have asked why it is that the Scots are to be denied the chance to reach the Bench. This is the position as I understand it. I hope that the noble and learned Lord the Lord Advocate will be able to confirm that this is the right answer. Since 1532 the administration of justice in Scotland has been in the hands of the College of Justice. An authoritative article by a former professor of constitutional law at Edinburgh University states: The College of Justice is the collective name given to those persons who take part in the administration of justice in the Court of Session. The membership of the College of Justice was declared by an Act of Severance passed on 23rd February 1687". That was the provision that was in force at the time that the Treaty of Union was signed and incorporated into two Acts of Parliament, one of the English Parliament and the other of the Scottish Parliament. Article XIX, which was the important enactment, states: The Court of Session or College of Justice do after the union and notwithstanding thereof remain in all time coming within Scotland as it is now constituted by the laws of that Kingdom, and with the same authority and privileges as before the union". The Court of Session and the College of Justice are seen to be the same thing. Now we come to the point upon which the noble and learned Lord the Lord Advocate no doubt seeks to found. Article XIX continues: subject nevertheless to such regulations for the better administration of justice as shall be made by the Parliament of Great Britain". Under that fundamental constitutional document, the Parliament of Great Britain has a right to alter the constitution of the College of Justice only for the better administration of justice. The same provision is made in relation to the qualifications which may be made for capacitating persons to be named ordinary Lords of Session. They also, may be altered by the Parliament of Great Britain". The treaty continues with another important point. It states: The Court of Justiciary do also after the union and notwithstanding thereof remain in all time coming within Scotland as it is now constituted by the laws of that Kingdom and with the same authority and privileges as before the union, subject revertheless to such regulations as shall be made by the Parliament of Great Britain". At the heart of this provision is the fact that changes may be made by this Parliament if they are seen to be for the better administration of justice. This Parliament, however, did not exist at the time of the treaty.

It appears to me that the Government are prepared to argue either that solicitors can become or do become members of the College of Justice, or that, if they are licensed under Clause 20, they become advocates in the sense in which that word was used in Article XIX, or that their licensing will somehow lead to the better administration of justice. I can understand those arguments although I do not agree with them. However, the Government are not prepared to argue in respect of laymen that making them judges will lead to the better administration of justice in Scotland. I believe that is the answer to the question that has been asked and has not been answered.

I want the noble and learned Lord the Lord Advocate to answer the following questions in relation to this amendment. First of all, does he agree that Article XIX has a bearing on this clause? Secondly, is he saying that lay persons who acquire rights of audience in the Court of Session are to become members of the College of Justice? Thirdly, does he maintain that this clause is, a regulation by Parliament for the better administration of justice"? If it is, why are qualified laymen to be denied promotion to the Bench? Those are the questions that this amendment raises. I hope that I shall receive an answer to them tonight. I beg to move.

10 p.m.

Lord Fraser of Carmyllie

I apologise to the noble and learned Lord. I did not hear him say that he was speaking to other amendments at the same time and they are certainly not grouped. The purpose of Amendment No. 229 is to ensure that the provision of the clause should take effect notwithstanding the terms of the Act of Union between England and Scotland in 1707 and in particular of Article XIX of the Treaty of Union.

As the noble and learned Lord rightly pointed out. Article XIX preserves the constitution, authority and privileges of the Court of Session following the Union. The clause, however, in providing for persons other than lawyers to obtain rights to conduct litigation and rights of audience in relation to court proceedings does not affect the constitution, authority or privileges as such of the Court of Session itself.

Furthermore, the noble and learned Lord has anticipated me in saying that, even if the view were taken that the provisions of the clause did so affect the Court of Session in some way, Article XIX of the Act of Union gives Parliament the power to make regulations for the better administration of justice. It may be that the noble and learned Lord and others do not agree that what is being put forward in terms of Clause 21 achieves the better administration of justice in Scotland. Nevertheless, it is clear from the terms of that article that that is a matter of judgment for Parliament itself.

Among the broad objectives of the clause are to allow members of the public a wider choice of representation in relation to proceedings in court and to allow persons other than lawyers who have an expertise in a specialised area of law to obtain rights of audience or rights to conduct litigation after satisfying the Secretary of State and the Lord President in terms of the requirements of the clause. Those objectives are in the interests of the better administration of justice, and I conclude that the provisions of the clause do not conflict with any provisions of the 1707 Act.

I understand why the noble and learned Lord is particularly concerned with the possible introduction of individuals other than solicitors or new solicitor advocates into the supreme courts of Scotland, namely the Court of Session or the High Court. I appreciate that he is aware of the point, but it may help if I emphasise the matter at this stage. In providing for the extension of rights of audience in Clause 21 we are not only looking at the extension of rights of audience into the Court of Session or High Court. It may well be that one of the professional bodies or other persons who seek rights of audience may do so in a very much more limited area, seeking rights of audience only in the sheriff court.

A question which the noble and learned Lord has also put to me in the context of this amendment relates to the appointment of anyone who might have secured rights of audience in the High Court or Court of Session under Clause 21. He asked why they are not being given the opportunity to become senators of the college and to become judges. That is a hypothetical question. We are not seeking to do that. It has been a policy decision in Scotland that that should not take place. When I do not propose that that should happen I am not sure how fruitful it is for me to discuss with the noble and learned Lord whether that would be prohibited by Article XIX.

Lord McCluskey

Before the noble and learned Lord the Lord Advocate sits back in his seat perhaps I can ask him to answer my question, which he did not answer. Is he saying that lay persons who require rights of audience in the Court of Session are to become members of the College of Justice?

While the noble and learned Lord thinks about the answer to that question perhaps I may say this to him. He said that a policy decision had been taken in Scotland. We know that a policy decision has been taken in Scotland because the Bill does not empower it. I did not ask what the decision was. We know the answer to that. The question is, why. Why is it that barefoot pleaders can sit in the House of Lords if they are Englishmen but cannot do so if they are Scotsmen? What happens if a Scottish case reaches the House of Lords and there are five barefoot Englishmen sitting as the judges? Are they to be allowed to decide Scottish cases, or have the Government not thought about that? I want to know why.

Lord Fraser of Carmyllie

With one breath, the noble and learned Lord and others indicate that we are doing this only because it is being done in England. When it comes to Scotland, my right honourable friend the Secretary of State for Scotland has taken his own policy decision.

Lord McCluskey

But why?

Lord Fraser of Carmyllie

That is a matter for the Secretary of State. As the noble and learned Lord wants me and the Secretary of State to keep such persons out of the Court of Session— he does not even wish to see them appearing as pleaders— I find it inconceivable that he wants them to be there as judges. If he were arguing that they should be there, I could see why he might press me to explain why I am not prepared to see them there. He does not want them there and, in those circumstances, the matter should rest there.

Lord Renton

Does my noble and learned friend agree that he is the Government's spokesman in this House? There is collective responsibility of the Cabinet of which my right honourable friend the Secretary of State for Scotland is a member. It goes without saying that this is a Scottish Bill which the Secretary of State, as well as my noble and learned friend the Lord Advocate, is responsible for presenting to Parliament. The Bill is in the name of the Minister of State for Scotland, who is one of the team in the Secretary of State's department. I assume that, when the Bill goes to another place, it will bear the name of the Secretary of State. We in this House are just as much entitled as the other place to know the reasons for the Government's decisions, unless there is a strong security, or rather confidential, feature about them. However, there is no such confidential or other matter involved in this. It is a fundamental and indeed constitutional matter on which we are entitled to an answer.

Lord McCluskey

Perhaps I may say in supplement of that that it is vital that we have an answer. The one thing that we cannot do is to summon the Secretary of State to the Bar of the House and say to him, "The Lord Advocate won't tell us. The noble Lord, Lord Sanderson of Bowden, hasn't been seen within the walls for some considerable time, so will you kindly tell us?" We cannot do that. The Lord Advocate is the Government when he stands at the Dispatch Box and he must answer that question.

It is vital that the noble and learned Lord should answer it for this reason: the question was put repeatedly to the noble and learned Lord the Lord Chancellor, who happens to be a member of the Cabinet as well as a member of the Government, and he declined to give the answer. He speculated for all kinds of reasons which one can follow through. It is an interesting pursuit. But the House is entitled to know the answer. If the noble and learned Lord the Lord Advocate is not prepared to give it on this amendment and if he needs time to read what is coming to him from the worried-looking officials who are sitting in the background I shall give him time because we shall return to the matter in relation to other amendments. The Committee is entitled to have an answer from him.

Lord Ackner

Perhaps my noble and learned friend will bear in mind the fact that the present situation carries with it a rather unattractive innuendo. South of the Border, the layman who has achieved rights of advocacy is apparently fit to obtain judicial office for an unexplained reason. A similar layman north of the Border, having achieved rights of advocacy, is not fit. There must be some explanation for that.

Lord Fraser of Carmyllie

I can only say yet again that, on these matters, my right honourable friend the Secretary of State for Scotland is entitled to take policy decisions that affect Scotland alone. He does not have to decide to follow what is being done in England any more than my noble and learned friend the Lord Chancellor, in introducing his legislation, had to follow what was being taken on board in Scotland.

It has been the decision of the my right honourable friend the Secretary of State for Scotland that, although he is prepared to put forward a scheme, subject to all the safeguards that we shall discuss in due course, so that such lay persons may have rights of audience, he does not consider it appropriate to permit them to take that final step and sit as Senators of the College of Justice. The noble and learned Lord may think that there is less than completeness in the driven logic of the situation. But the fact of the matter is that he has not taken that step.

If I appear slightly startled, it is because, as I understand it, that is exactly what the noble and learned Lord would consider is the position that my right honourable friend should adopt. I do not think that I can elaborate on it other than to say that the noble and learned Lord asked me one question which I do not think I have answered; namely, that about the members of the College of Justice. Yes, if they have rights of audience in the Court of Session, it would follow that they become members of the College of Justice.

Lord Macaulay of Bragar

Before the noble and learned Lord sits down, perhaps I may say that the noble and learned Lord, Lord McCluskey, has raised the spectre of what he calls, I think, five ex-bare-footed pleaders sitting in this House judging a Scottish case. It is a very interesting thought. I do not think that the question has been answered. I must say I had not thought about it until I heard the noble and learned Lord raising the point, if that is what he was raising.

If it comes as a novel proposition to the noble and learned Lord the Lord Advocate, will he go back to the noble and learned Lord the Lord Chancellor and try to exercise some influence on him about that situation? It is perhaps a pretty frightening prospect.

Lord Eraser of Carmyllie

Perhaps I may briefly respond to that. No. If there are those who become Members of this House and sit on appeals that come from Scotland, it has never been the practice to look behind their elevation to the highest court in the land to discover whether or not they have had any experience either as judges or as pleaders which would help them to decide upon the law of Scotland. The opposite also holds true. I find the prospect of five of those so-called barefooters sitting in judgment in this House a little on the fanciful side, shall I say? However, if they have, by their experience and abilities, come all the way up through the courts to sit here in the highest court, it does not seem to me as a Scots lawyer that I should look behind that experience and ability.

Lord Emslie

I should like to ask a question. Perhaps I did not hear what the noble and learned Lord said. Does he intend to tell us that there is anything in this Bill which will make any solicitor who acquires a statutory right of audience a member of the College of Justice? Is he going to suggest that there is anything in this Bill which will make what the noble and learned Lord, Lord McCluskey, calls a "barefoot lawyer" a member of the College of Justice? The two things are quite distinct. To have a statutory right of audience is one thing; to be a member of the College of Justice is quite another. If he can point out to me anything in this Bill which innovates upon the constitution of the College of Justice, I shall be glad to hear it.

Lord McCluskey

There is one matter that I want to mention. Today is the fourth birthday of my grandson. Occasionally he is a naughty little boy and when I say to him, "Don't do that", he replies, "Why not?" to which I answer, "Because I say so". That is the answer that we keep hearing from the noble and learned Lord the Lord Advocate. I keep asking, "Why is this being done?" and he says, "Because the Secretary of State decided to do it".

The Committee will note that I have asked this question time after time and have not been given an answer, That is absolutely and totally unsatisfactory. Were it not for the lateness of the hour, I should certainly divide the Committee on this amendment, but I promise that I shall be back again with this matter.

Baroness Carnegy of Lour

Before the noble and learned Lord withdraws his amendment it occurs to me that the government of the day have not included the so-called barefoot pleaders as potential judges because they think that the people of Scotland would prefer it otherwise. They do not think that it would be appropriate. I understood that and that is my feeling.

If the noble and learned Lords, who, if I may say so, have been bullying the noble and learned Lord the Lord Advocate in a most unattractive way, feel that they want barefoot pleaders as judges, they should table an amendment at Report stage and the House will vote on it. I shall probably vote against it but I do not know and I shall listen to the arguments. However, to go on like this is honestly not what the people of Scotland would want. I have a funny feeling that in this instance the Government may well have got the matter right in the view of the people of Scotland.

10.15 p.m.

Lord McCluskey

The noble Baroness intervened while I was technically still on my feet. May I just say that she has given an answer. Surely as a respected Member of this House of many years' standing she must agree with what I say, that the answer as to why the Government are acting as they are ought to come from the Government. It should not be left to Back Benchers.

Lord Fraser of Carmyllie

I have said now repeatedly in this extended debate that the Secretary of State considers that it is not appropriate. He is the policy Minister in Scotland. I do not think there is anything between what I have said and what the noble Baroness has said.

Lord Emslie

I wonder whether the noble and learned Lord would answer the question which I put with specific reference to the College of Justice and the potential membership of that college of persons who acquire in one way or the other statutory rights of audience.

Lord Fraser of Carmyllie

I stand corrected. I do not want to develop the point and I can discuss it with the noble and learned Lord later. But I understood that, for example, a solicitor is a Writer to the Signet. Is that person not a member of the College of Justice?

Lord Emslie

It is in the Act of Union.

Amendment, by leave, withdrawn.

Lord Morton of Shuna moved Amendment No. 230: Page 24, line 23, leave out ("or other").

The noble and learned Lord said: This amendment is in the names of my noble and learned friends and myself. It is apparent that whoever this barefoot lawyer may be is totally unclear. There is something perhaps to be said, though apparently we get no reason, apart from that the Secretary of State thinks it should be so without telling us why. Surely we are entitled to know what other bodies are in the mind of the Secretary of State if he thinks it is appropriate that a non-professional other body should have a right of audience. Surely we are entitled to know who they are.

My noble and learned friend at Second Reading suggested some potentials, and I do not want to cramp his style if he wishes to add to the list. But "Any professional or other body" is so imprecise that we are surely entitled to know, if the Government have anybody in mind, at least who that other body might be. I beg to move.

Lord McCluskey

My reason for putting down this amendment in association with my noble friends was to get answers to certain questions. One of them I asked on Second Reading and I did not get the answer then. But the questions are these, and I hope that it is not bullying to ask the Lord Advocate of Scotland, who holds one of the five great offices of state of Scotland, a question in the House of Lords.

First, which bodies have in Scotland expressed an interest prior to the publication of the Green Paper in having these rights of audience? Secondly, which bodies, if any, suggested these rights of audience? Thirdly, whom does the noble and learned Lord the Lord Advocate have in mind? I understand it to be suggested that possibly patent agents might be such persons.

I introduced into this House and conducted the Committee stage and other stages of the Patents Bill in the late 1970s. At that time what the patent agents wanted to do was to take all the patent work from Scotland to London where they believed it belonged, because there is very little work indeed in Scotland. So I do not know whether the patent agents are the ones that the noble and learned Lord the Lord Advocate has in mind.

It has also been suggested that it might be insolvency practitioners. It may be, but in any event I say no more than that both of these are professional bodies. We want to know who are the non-professional bodies that will be given a right to come in as barefoot pleaders. That is what I am interested to know.

But the real deep question, and the one to which I must have an answer at the risk of being accused of bullying, is this. Which body, and in particular which non-professional body, is to be accorded the right to license its members to conduct criminal jury trials in the High Court of Justiciary in Scotland? That is what the Bill permits. It may be that the Lord Advocate has in mind nothing more than that CAB people will appear in the district court or the sheriff summary courts. If that is so, that is what the Bill should say. But who on earth are the people who are to appear as non-lawyers conducting criminal jury trials in the High Court of Justiciary in Scotland?

Lord Grimond

I support the amendment. The provision is extremely widely drawn. It refers to other bodies which are not professional bodies. I do not know whether there is a definition of professional body. The provision may have been inserted because there is no such definition. But as it stands it can mean a body with no qualifications, with no standards of conduct and with no rules. If that is the case I should like to know why the provision does not say "any body". If any non-professional body can apply for audience, why cannot any person do so?

Lord Morris

I want to ask the noble and learned Lord, Lord McCluskey, a question. In the dim and distant past he was a member of a previous government. Am I right to assume that he has given my noble and learned friend the Lord Advocate notice of his questions? In the interests of good debate and order, am I right in assuming that he has done so? I sincerely hope that he has.

Lord Renton

The noble and learned Lord is not obliged to.

Lord McCluskey

Whether or not I am obliged to, the answer is, yes, I have. The noble Lord, Lord Morris, attended the Second Reading debate and took part in an earlier debate on this matter. If he reads the report of the Second Reading debate he will find that I asked the specific question; which body does the Lord Advocate have in mind to be able to license its members to conduct criminal jury trials in the High Court of Scotland? I asked that question. The other questions that I have asked are implicit in the amendments to which I have already referred relating to the better administration of justice and to the appointment of laymen to the High Court. These amendments arise later on. They are all connected and that is why I mentioned them.

I should have mentioned one other point. When the noble and learned Lord the Lord Chancellor was Dean of the Faculty of Advocates he addressed himself to this very question. Question 52 asked: is it considered that any existing monopoly should be maintained, and if so, why? On page 83 of the official note of the proceedings, the noble and learned Lord addressed himself to the particular question of whether or not there should belay pleaders. He came to the conclusion that that should not happen. He said in regard to solicitors: It is thought that the fact that some solicitors are capable of presenting cases to a high standard does not of itself justify opening the superior courts to the solicitors' profession as a whole". The conclusion was that the existing monopoly provides a reasonably satisfactory solution. He then went on to consider the specific matter of the lay pleaders and said finally: We feel that, having regard to the availability of legal aid, there is no compelling reason for opening lower courts and tribunals to lay representatives. The proper functioning of all judicial bodies does require a basic understanding of the procedure and of relevancy. However hard this might bear on occasional individuals, the overall administration of justice might be seriously imperilled by lay representation". I repeat that phrase: the overall administration of justice might be seriously imperilled by lay representation". That was the view of the Lord Chancellor when he was Dean of the Faculty of Advocates. That is the view to which he said he still adhered when answering questions in relation to the Courts and Legal Services Bill. This is a matter of great importance. I am not bullying the Lord Advocate. I am asking proper questions which go to the heart of a Bill of great importance. I hope that that will be acknowledged by the Committee.

Lord Macaulay of Bragar

The side note to Clause 21 reads: Rights to conduct litigation and rights of audience". That is commendable and I take no objection to the principles outlined. I am aware that lawyers are now being criticised for not being up to the mark in specialist fields such as social security. It is almost impossible for a lawyer to keep up-to-date with all the legislation that is being passed. It may well be that there are bodies, or persons representing them, which are better informed on a factual basis— and sometimes on a legal basis— than are lawyers.

Would it not be better to limit those initially being given the right to conduct litigation to members of a professional body— earlier the noble and learned Lord mentioned accountants— and see how the scheme works when such people obtain the extended rights of audience? If the scheme works— and only time will tell— no doubt other bodies which wish to obtain the right to conduct litigation will make their voices heard if they believe they can do the same as the professional bodies.

The Earl of Selkirk

Anyone who wishes to train can become a member of the Faculty of Advocates. It depends on one's intelligence, ability and so forth. One is putting forward a special class of people, somewhat ill-defined, and saying that they will have special entry. Can we have an explanation of that? Why should certain people at a certain age have special entry? They merely have to present themselves and they can become members of the faculty. Indeed, they can also become solicitors. What then is the advantage.

If the noble and learned Lord reads The Scottish Legal Profession: the Way Forward, a document which was published three or four months ago, he will see that the Secretary of State said that many such ideas came from England. He said that there were other consultations but we do not know with whom. They do not appear to have been with those in Parliament House, although I may be wrongly informed. From where does the inspiration come and who put forward the ideas? We are studying the administration of justice, as is the Secretary of State, and a litle connected logic would not be wholly out of place.

The Earl of Balfour

Before we go much further I wish to draw the Committee's attention to Amendment No. 245A at the top of page 7. I did not want to intervene earlier because it was clear that Amendments Nos. 229 and 230 could be easily incorporated into the new clause. However, shortly I shall become completely lost if we carry on with Amendment No. 231 and others.

The new clause, which will be introduced by my noble and learned friend, will become part of the Bill and whatever discussions we have on the old Clause 21 will not make much sense. I am not fully familiar with the proceedings of the Committee but it appears that we shall quickly become lost if we talk about new or old Clause 21.

Lord McCluskey

The noble Earl asked a proper question but I differ from him. If we go straight to Amendment No. 245A there is no way in which we can deal with the individual points as is possible if there are individual amendments. We should deal with the clause as a whole and that would be all. The only way in which we can discuss the particular matters is to do so in the way in which they are now set forth. After seeing Clause 21 I deleted those of my amendments which could be dealt with properly in relation to Amendment No. 245A. The only way in which we can deal with individual points in Committee, as distinct from on Report, is to do so in this way. I ask the noble Earl's indulgence.

10.30 p.m.

Lord Eraser of Carmyllie

I readily understand my noble friend's confusion. However, as was said by the noble and learned Lord, Lord McCluskey, if a new clause is introduced it is correct that various points which may re-emerge should be discussed at this stage.

Perhaps I may say to the noble and learned Lord that I have sat on the Front Bench while a sort of crossfire has gone over my head. I am not concerned whether or not the noble and learned Lord bullies me. What I am concerned about is that I hold high executive legal office in Scotland and the noble and learned Lord is a serving judge in Scotland and is a senator of the College of Justice. It would be utterly unbecoming of me in my capacity as Lord Advocate to be seen to be either sharp or in political disagreement with the noble and learned Lord. That holds true whether it is in this House or outwith. The proper attitude for me, in a legal context, is deference to a senator of the College of Justice. There may be times, as happened to me the other night, when I resort to silence rather than involving myself in a political battle.

If the noble and learned Lord had been at this Dispatch Box— as he once was and where he served with some distinction— and I had been on the other side, the relationship might have been rather different. Now he is a senator, I treat him with that regard.

This clause is unnecessarily restrictive. I readily accept that if there are to be any bodies coming forward to take up the opportunity provided by Clause 21, I should expect them to come within the classification of being a professional body. Patent agents were mentioned and there may be the possibility— although they have not approached the Secretary of State or myself— that accountants see that there are certain areas of law in which they can act as may be the case with insolvency practitioners, and so on.

I emphasised— and I say this to the noble Earl, Lord Selkirk— that the powers given here to acquire rights of audience are not only in relation to the Court of Session or the sheriff court or the High Court. They could also be rights of audience which do not exist at present to appear in the lower courts.

I have in mind particularly the sheriff court. The only group of persons of which I can think which might explain my standing here is that there has been a tentative approach made to the Secretary of State from those persons who have a great deal to do with the law of adoption. As the noble and learned Lord will appreciate, where adoption matters are dealt with in the sheriff court, they are not dealt with in an adversarial pleading fashion but in a rather different manner as the best interests of the child are properly considered.

It may be that such a group of persons could very satisfactorily provide a good service in the sheriff court. They may not happily fall into the description of a professional body and that is why the word "other" is allowed for.

While there is not a long list of those who wish to come forward, it is difficult to elaborate on it. However, it is for that reason that it goes wider than "professional body". Thus, I invite the noble and learned Lord to withdraw his amendment.

The noble Lord, Lord Grimond, rather strayed into discussion of his Amendment No. 231. Where the word "natural" is used, that is a term of legislative art which makes the distinction between an individual person and a body corporate which may also be described in a statute as a person. The word "proper" as proposed in his amendment does not make the same distinction and therefore would not be an appropriate replacement.

Amendment, by leave, withdrawn.

Lord Grimond had given notice of his intention to move Amendment No. 231: Page 24, line 24, leave out ("natural") and insert ("proper").

The noble Lord said: In view of what the Lord Advocate has already said, I shall not move this amendment.

[Amendment No. 231 not moved.]

Lord Morton of Shuna had given notice of his intention to move Amendment No. 232: Page 24, line 25, leave out ("members of the public") and insert ("other members of that body").

The noble and learned Lord said: I repeat that this amendment is not to be moved on the ground that we can look at this matter when we come to look at the new clause.

[Amendment No. 232 not moved.]

[Amendment No. 233 not moved.]

Lord McCluskey moved Amendment No. 234: Page 24, line 35, at end insert— (" (v) what is to happen if in the course of the proceedings there are raised matters of law in relation to which neither membership of such a body nor the training referred to in paragraph (b) hereof confers any knowledge or expertise, ").

The noble and learned Lord said: This amendment raises a point of which I gave notice to the Lord Advocate at Second Reading. I trust that he has had plenty of time to produce an appropriate answer. The point is a fairly straightforward one which any lawyer can understand, but it is also not difficult for anyone else to understand.

The point is that one might have a situation in which a person is very well skilled, for example in relation to an insolvency or patent case, and so becomes qualified to act in relation to proceedings of that particular type. He comes into court and finds that the defence which is raised is nothing to do with that branch of the law in which he has special skills; it is in relation to fraud or something of that kind. I have a number of examples from the insolvency and bankruptcy Acts, but at this time of night I will not go into them in detail.

I do not suggest that this amendment is technically sound— it is no doubt technically highly deficient— but my point is that there has to be some way of dealing with the situation which arises when a person, having been allowed to practise in a limited class of proceedings, comes forward and finds himself faced with legal questions which his training does not qualify him to deal with. That is my point, and I should be interested in the answer.

Lord Fraser of Carmyllie

The noble and learned Lord's amendment is defective in that it does not have a question mark at the end of it. I appreciate that there are groups of specialists who wish to have rights of audience and that surrounding that area of specialisation other legal issues may arise.

There are two answers to the question asked by the noble and learned Lord. First, if a body came forward with its eye on a specific narrow range of legal work, when the Lord President looked at the scheme proposed I envisage he would expect it to show an expertise in the surrounding areas of law, not only in the one at the core of its interest.

Secondly, there are clearly difficulties from time to time. However, it would be vain and foolish to pretend, particularly in the present day, that lawyers are competent and confident in every area of law. There may be times when they encounter difficulties and need to get out of appearing in a particular case.

That is all I can say. If for example, I go back to my adoption law proposal, it is unlikely in such circumstances that those who appear would need expertise in patent law. From what the noble and learned Lord said, however, I am sure that there are areas where one needs to know a bit more than the core subject. That matter can be properly dealt with in any scheme prepared.

Lord McCluskey

It is a pity that I did not go into the details of the insolvency and bankrupty Acts in order to illustrate my point. Those Acts contain provisions which make certain things a criminal offence. In this Bill an insolvency practitioner may perhaps appear as an advocate in a criminal court dealing with insolvency matters. I could give example after example of circumstances in which he may appear for the defence in a case of alleged breach of one of the sections of those Acts and find that he was simply unable to deal with the matters, which fall totally outwith his training and experience.

It is an astonishing answer that the Lord Advocate gives, that the only body which has expressed an interest— I take it that is since the publication of the Green Paper— is a body connected with adoption in the sheriff court. If that is the position, why on earth are we conferring these rights in civil and criminal courts, right up to the highest courts in the land, on all kinds of people none of whom has expressed an interest? I am disappointed but I do not propose to pursue the matter at this stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Macaulay of Bragar moved Amendment No. 234A: Page 24, line 38, after ("training") insert ("and educational").

The noble Lord said: This is a short amendment and I should have thought that its purpose was obvious. Unless a person is properly educated he cannot be trained. It would perhaps partly answer the question posed by the noble and learned Lord, Lord McCluskey, on his previous amendment as to how the professional body, or member of it, can be gauged as having the requisite educational requirements. This would, of course, cover training in the law relating to his particular expertise. At least it will go some way towards meeting the problem posed by the noble and learned Lord. I beg to move.

Lord Renton

While I have some sympathy with the amendment— I hope this is not too small a point to take— with great respect I think education should come before training.

Lord Fraser of Carmyllie

Subsection (2) (b) (i) already makes clear that any application submitted under this clause would require details of the training requirements which the body would impose upon its members if it were to be successful. I therefore suggest that the first two of these amendments are unnecessary. The word "training" here is not confined to "practical training" and is therefore wide enough to encompass the acquisition of knowledge as well as skills.

In this respect we have a difference from the Solicitors (Scotland) Act 1980, Section 5 of which refers both to "practical training" and to "education". Because of the unqualified reference to "training" there is no need to refer here to "education". Amendments Nos. 234C and 234D would likewise add little.

Lord Macaulay of Bragar

I am grateful to the noble and learned Lord for that answer. To reply to the observation of the noble Lord, Lord Renton, I made the point that a person has to be educated before he can be trained. If the amendment were to be taken on board, that could be corrected.

I am not happy with the answer given by the noble and learned Lord but I do not propose to press the amendment. I should also have discussed Amendment No. 234B, to which the noble and learned Lord also replied, but in view of the lateness of the hour I do not intend to take up the time of the Committee on that matter. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 234B to 234D not moved.]

The Chairman of Committees

I call Amendment No. 235. If this amendment is agreed to, I cannot call Amendment No. 236.

Lord McCluskey moved Amendment No. 235: Page 25, line 13, leave out subsection (3).

The noble and learned Lord said: I can be brief on this amendment. The Committee will see that subsection (3) empowers the Secretary of State to regulate, such other matters as may be prescribed by [him] ".

I believe that to be a classic example of what was frequently referred to in the Courts and Legal Services Bill as a Henry VIII clause. We are giving the Secretary of State power to do we know not what.

I do not know why that power is there. I do not believe it is the practice of this Chamber to accord such powers to the Secretary of State unless he tells us what they are for. I am anxious to hear from the Lord Advocate what powers are covered by those words. I beg to move.

Lord Fraser of Carmyllie

The purpose of the amendment is either to remove entirely the power given to the Secretary of State under subsection (3) to prescribe in regulations further matters to be included in any draft scheme submitted by an applicant body under this clause, or to pass the responsibility for so prescribing to the Lord President. The Committee will readily appreciate that to remove this power entirely would be a potentially dangerous step.

The list of matters to be included in any draft scheme is not exhaustive and it is important that the Secretary of State should have a long stop power to add further requirements should circumstances develop in such a fashion as to demand this. I cannot accept that the court would be an appropriate body to exercise this task, since the breadth of the court's responsibilities cannot be compared with those of the Secretary of State. For instance, I return to the amendment moved by the noble Lord, Lord Macaulay. If there were problems about training and if questions of education arose, it might be appropriate for the Secretary of State, by way of regulation, to include such matters.

Lord McCluskey

I shall study that answer in due course. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 235A had been withdrawn from the Marshalled List.]

10.45 p.m.

Lord McCluskey moved Amendment No. 236: Page 25, line 15, leave out from ("the") to end of line 16 and insert ("the Court by Act of Sederunt or by Act of Adjournal").

The noble and learned Lord said: Members of the Committee will see that what is proposed here is that the draft scheme submitted under this clause is to include proposals in relation to such other matters as may be prescribed by the Secretary of State".

My noble and learned friend Lord Emslie and I have put our names to this amendment. The prescription should be by the Court of Session, that is to say, the judges, by Act of Sederunt or, as the case may be, by Act of Adjournal. If these matters are to be of importance they should certainly be regulated, along with the Secretary of State, by the Lord President and the other judges. I beg to move.

Lord Fraser of Carmyllie

I thought that we were addressing this matter when speaking to the last amendment.

Lord McCluskey

Perhaps I have not made myself plain. I did beg to move Amendment No. 236 which stands in my name and that of my noble and learned friend Lord Emslie. That is the amendment that I have spoken to; it is also the amendment that I moved.

Lord Macaulay of Bragar

In answering Amendment No. 235 moved by the noble and learned Lord, Lord McCluskey, I believe that the noble and learned Lord the Lord Advocate made reference to subsequent amendments which have not been moved at the moment.

Lord Fraser of Carmyllie

The noble and learned Lord said that he would read what I had said in relation to the last amendment. I had covered what I thought we were dealing with in a coupled fashion; namely, his Amendment No. 236.

Lord McCluskey

Perhaps one of the reasons why matters are becoming somewhat unsatisfactory is that we had understood that proceedings were to end at 10.45 p.m. A number of other Members of the Committee have retired in that belief. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord McCluskey moved Amendment No. 237: Page 25, line 16, at end insert: (( ) "The Lord President shall have power to engage such additional staff as he considers necessary for the performance of his duties under this section.").

The noble and learned Lord said: I understood that the noble and learned Lord the Lord Advocate would deal with this matter and we spoke about it earlier. The point is a general one. The wording of the clause is perhaps unsatisfactory, but the meaning is plain. Clauses 20 to 22 place additional responsibilities on the Lord President. My noble and learned friend Lord Emslie was going to deal with this matter because, having been Lord President for 17½ years, he could speak with some feeling on the fact that his staff consists of one typist. He has the assistance of two part-time counsel who assist in the drawing up of rules, the regulation of fees and other matters of that kind. He is to be given a great many additional responsibilities as regards all these matters. It is very important that the Government should recognise that. We should get some undertaking from the Government.

The other point is that, in giving that undertaking, I ask the Lord Advocate to indicate to what extent he believes that there will be additional work involved. In other words, does he think that there will be such a demand from professional and other bodies for schemes of this kind and for rights of audience under this clause that extra staff will be required by the Lord President? If the noble and learned Lord does not think that, then what is it all about?

Lord Grimond

While I agree with the purpose of the amendment, is it customary to embody such provision in legislation? I never remember seeing anything like it before in an Act. Does the Secretary of State not have power to authorise the Lord President to have the staff and expenses necessary for carrying out an Act of Parliament?

Lord Macaulay of Bragar

I rise briefly to support the amendment. In so doing I draw attention to the fact that in Schedule 1, paragraph 8, in setting up the Scottish Conveyancing and Confirmation Practitioners Board, it is said that, The Board may employ such officers and servants as they think fit, on such terms as to remuneration and conditions of service as the Board may determine". We find a similar provision in relation to the ombudsman in Schedule 2, paragraph 10, although it is the Secretary of State who appoints the staff there. It seems to me that the Lord President is being put in the position notionally— it may not work out that way— of setting up another department equivalent to the board or the ombudsman. It would be only fair in order to take the burden off the shoulders of an individual that he should be allowed to consider whether extra staff are necessary to carry out the legislation imposed.

Lord Renton

On a financial matter of this kind one would expect to find some reference in the Explanatory and Financial Memorandum under the heading "Financial and manpower effects of the Bill". Although the extra cost expected under various other clauses is mentioned, there is no mention of the extra cost to the Secretary of State, the Director General of Fair Trading or indeed the Lord President as a result of the two clauses which the noble and learned Lord mentioned, namely, Clauses 20 and 21, which will establish a very considerable administration.

Lord Fraser of Carmyllie

The amendment seeks to provide the Lord President with a power that he simply does not need. I accept that the duties imposed on the Lord President by this Bill may give rise to further work for his office. He does not, however, need a power in primary statute to engage additional staff, presumably at some cost. That may be, as the noble Lord, Lord Grimond, appreciates, a rather startling idea. If, however, the Lord President feels that it is necessary, he can approach the Secretary of State, who is responsible under the Administration of Justice (Scotland) Act 1933 for the appointment of staff of the Lord President's private office, and that has to come from general taxation. However, I think that it would be an undesirable precedent to give the Lord President a power in this way.

Perhaps I may also repeat that, with regard to Clause 21, in view of what has been said to the Lord President about commencement, I hope that any extra work that is imposed upon him will at least be levelled out.

Lord McCluskey

That is a satisfactory answer. I am happy to accept it. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Macaulay of Bragar moved Amendment No. 237A:

Page 25, line 16, at end insert:

(" (3A) The Secretary of State shall by regulations made under this section make provision

1. (a) requiring applications under subsection (1) above to be adverlised;
2. (b) for draft schemes to be published or otherwise made available for inspection by members of the public; and
3. (c) for the making and consideration of objections or representations by members of the public or interested bodies.").

The noble Lord said: This is an amendment to ensure that the Secretary of State shall, by regulations, make provision for applications under this section to be properly advertised and published so that the members of the public can give the Secretary of State their views on the nature of the application. It may be that some members of the public might have more knowledge about the matter and about the individuals involved than the Secretary of State or anyone else. It is an amendment made in the interests of the public and public involvement and indeed to promote a public interest in the clause.

This amendment is grouped with Amendment No. 242B, the purpose of which is to ensure that having advertised and received representations in accordance with the regulations proposed under the new clause, the Secretary of State will take the public response, if any, into account in making a decision.

Lord Fraser of Carmyllie

I understand the point that the noble Lord is making. There is some risk that in the way it is approached it might appear that a scheme is being approved in a somewhat clandestine manner. Obviously it is not our intention to do that. Nor would it be our intention to set up a too elaborate arrangement or set of complicated duties with regard to intimation, advertisement and the like. We certainly would not want a measure such as one finds frequently under such legislation as the town and country planning provisions. However, I understand why there might be a desirability to have some intimation, perhaps to such bodies as the Faculty of Advocates and the Law Society. I should be grateful if the noble Lord will withdraw the amendment and let me take it away for further consideration.

Lord McCluskey

Before the noble Lord withdraws the amendment, perhaps I may say that we shall shortly come to some amendments which will take me a considerable time to develop if we deal with them tonight. Accordingly I am happy to say that I support the principle of this amendment.

Lord Macaulay of Bragar

In putting the amendment forward I was not suggesting that there was anything clandestine in the actions of the Government. I am happy with the answer that has been given by the noble and learned Lord and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 237B not moved.]

Lord Emslie had given notice of his intention to move Amendment No. 237C:

Page 25, line 43, at end insert: (" (c) in determining whether or not to approve any such scheme the paramount consideration to which the Lord President shall have regard is whether or not the acquisition and exercise by such persons of such rights would, in his opinion, be likely to further the administration of justice".).

Lord McCluskey

Perhaps the Lord Chairman of Committees could assist me. The noble and learned Lord, Lord Emslie, has left the Chamber because he wished to catch the train back to Edinburgh tonight. He understood that this matter would probably not be reached because the Committee was likely to rise. That does not matter because he intimated to me that he was quite content that the amendment should not be proceeded with since the same matter is covered by Amendment No. 239. We can deal with Amendments Nos. 237C and 238 quite quickly but certainly not Amendment No. 239.

[Amendment No. 237C not moved.]

Lord McCluskey had given notice of his intention to move Amendment No. 238: Page 25, leave out lines 45 and 46.

The noble and learned Lord said: I do not propose to move this amendment because it does not appear in the new clause. Therefore there is no point in discussing it.

[Amendment No. 238 not moved.]

Lord McCluskey

I intend to move Amendment No. 239 if the Committee continues to sit.

The Earl of Strathmore and Kinghorne

I beg to move that the House do now resume.

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

House resumed.