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

HL Deb 15 May 1990 vol 519 cc247-92

8.45 p.m.

Consideration of amendments on Report resumed.

Lord Renton

My Lords, on a point of order, have we completed our consideration of Clause 21, as amended?

Noble Lords

Yes.

Clause 22 [Rights to conduct litigation and rights of audience]:

Lord McCluskey moved Amendment No. 133: Page 28, line 41, 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: My Lords, those who attended the Committee proceedings or have read the report of them will be aware that I moved an amendment at that stage in the same terms as the amendment before us. However, it prefaced a clause which no longer exists. It was the old Clause 21, which has been replaced by what is now Clause 22. That was done at col. 1115 of the Official Report of 2nd April 1990. At that stage I quoted the most pertinent parts of Article XIX of the Treaty of Union. I did so at col. 1077 of the Committee stage proceedings on 29th March 1990. In short my submission to the House is that this Parliament has no power to alter the constitution or privileges of the Court of Session unless in the judgment of Parliament the proposed alteration would lead to the better administration of justice. I also make the point which I made in Committee that the Court of Session and the College of Justice appear to be the same thing.

In reply to certain points put forward on that occasion the noble and learned Lord the Lord Advocate said: 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. —[Official Report, 29/3/90; col. 1078.]

In reply to a further question he said that the noble and learned Lord—referring to me— 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". — [Official Report. 29/3/90; col. 1080.]

Following upon that, however, the noble and learned Lord wrote a letter on 11th May both to me and to the noble and learned Lord, Lord Emslie, in which he said: I have looked into this question by reference to the statutory authorities for the College of Justice and the Court of Session and have concluded that, while neither solicitors (except Writers to the Signet and Solicitors to the Supreme Courts) nor members of other professional bodies, would be members of the College of Justice this would not affect their right to exercise an acquired entitlement to appear in the Court of Session. I have found nothing in my researches which suggests that rights of audience flow from membership or that a right of audience may not be exercised without membership of the College [of Justice].

Your Lordships will see that in the letter he contradicted what he informed the Committee on the occasion when, to be fair, he was asked the question and was perhaps not fully prepared to consider it.

The article to which I referred on that occasion was written by Professor Oswald Dykes just before the Second World War. It said: 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.

It appears to me that what I said op that occasion about the College of Justice and the Court of Session was correct, and it appears to be clear that the Government are extremely confused about the position. It is obvious to me, and I hope now to your Lordships from the conflicting advice given to the Committee by the Lord Advocate and the conflict between that and what he said in the letter, that the Government had not thought deeply about this matter before it was raised in Committee.

Let me turn to the substance of the matter, which is that this Parliament is not entitled to alter the provisions in relation to the Court of Session or the College of Justice unless this Parliament considers that to do so will lead to the better administration of justice:. In that context, I have to ask a question that I have asked more than once before; namely, who asked for such rights, and, particularly in the criminal courts, who has sought such rights?

The Lord Advocate, replying to that on the previous occasion, said that the only group which had made a kind of tentative approach was a group of people concerned with adoption. That certainly indicates to me that no one has expressed any interest whatsoever in going into the criminal courts under the provisions of Clause 22. So how can it be said, when no one has asked for it and there has been no thought given as to who might take advantage of Clause 22, that it will be for the better administration of justice that laymen should be given these potential, unlimited rights of audience, especially in the High Court of Justiciary?

This Parliament must judge what is for the better administration of justice, because that is what Article XIX provides. It must not do so lightly. The Government must give reasons for changing the membership of the College of Justice, or the practice of the Court of Session and its privileges after some four and a half centuries. When we broke for dinner, I was reminded that 17th May will be the 458th anniversary of the foundation of the Court of Session. It appears to me chat it would be wise for the Government to take some time to think about what they are doing. It would be more honest for the Government simply to accept my amendment and acknowledge that they may well be in breach of the Act of Union and the Treaty of Union but say, "We don't care". The honest thing then would be to accept the amendment.

It could also avoid the difficulty that, when the first para-legal person is instructed to appear in the High Court, someone may argue before the Court of Session that what is now Clause 22, and will then be Section 22, is ultra vires because of the provision of the Act of Union. Then there would be what the Americans call a judicial review; namely, a court being asked to declare whether an Act of Parliament is ultra vires to the constitutional settlement.

I want to conclude by simply repeating the question that I have asked before in order to see whether there has been any progress in this matter. Are the Government now prepared to tell us which bodies the Government have in mind whose members can come to the court and plead in the criminal courts, and thus lead to the better administration of justice in Scotland? I have asked that question a number of times. I have others that relate to other parts of this clause; but, in the meantime, I am content with the questions that I have asked and hope that this time I shall get a satisfactory answer. I beg to move.

Lord Fraser of Carmylle

My Lords, I begin by attempting to clarify the relationship between the College of Justice and rights of audience in the Court of Session, as this matter has been raised on a number of occasions, particularly in Committee and again this evening. As the noble and learned Lord has been kind enough to say, I wrote to him to express what I now consider to be the best view that I can take of it.

I have concluded that while non-lawyers would not be excluded from membership of the college, they would not automatically become members by virtue of their acquisition of rights of audience to appear in the Supreme Courts. If I got it slightly wrong last time, I regret that. However, looking at it again—and looking to the case of Bruce v. Clyne—I am not entirely surprised that it has caused difficulty for some people to determine whether or not such groups as the solicitors of the Supreme Courts have, since the early part of the 19th century, been members of the College of Justice. It is far from clear from that case what the situation is.

However, those non-lawyers would not be barred from membership of the College of Justice so far as I can ascertain. Indeed that membership of the college might be acquired either by act of sederunt or indeed, from the Clyne case, by usage. I think solicitors to the Supreme Courts come into the second category, although I think that may be underlined by the fact that they are also members of the College of Justice, and by what I have been advised by the previous Lord President, the noble and learned Lord, Lord Emslie, that they are members of the College of Justice by virtue of an act of sederunt.

The principal point that I want to make to the noble and learned Lord, given his concern about the membership of the college, is that it does not appear to me that there is a direct link between such membership and the acquisition of rights of audience under statute. For example, all solicitors—not just those who might be granted extended rights of audience under the provisions of Clause 21 —have a limited right of audience before the vacation judge (and I accept that it is limited) in the Court of Session in terms of Section 48 of the Court of Session Act 1988. I would have to say that I have not heard it suggested that because they are mere solicitors rather than members of the College of Justice they should not have those limited rights of audience. Only certain solicitors—namely. Writers to the Signet and Solicitors of the Supreme Courts—are members of the College of Justice. I do not think that there can be any doubt about that.

It would confuse the issue to equate the college with rights of audience in the Court of Session. That being so, in my view it does not help a consideration of the issue to try to draw the two together. In promoting what the Government are now promoting, I have to say to the noble and learned Lord that I do not consider that there is a question of any conflict with the provisions of Article XIX of the Treaty of Union. If there is at some point in the future any attack or challenge on that, so be it. We shall have to live with it. However, from the researches that I have undertaken, I do not think that there is a direct relationship; and the position about the colleges is nothing like as crystal clear as is sometimes suggested.

The other matter that he raised was: who has asked for rights of audience, particularly in relation to criminal matters in the High Court of Justiciary in Scotland? I have said it to him before, and he has repeated it in the course of what he said, that such application has not been made, and it may well be that no application is made. But I am sure that during his time as a law officer of the Crown there were occasions on which he introduced provisions that were essentially enabling. That is all that is being provided for here.

The Government are not compelling non-laywers to come forward and put together a scheme to give them rights of audience in criminal matters. The enabling provision will be there. I emphasise this, as I have emphasised it on a number of occasions previously. Although the noble and learned Lord has used the crisp terms, the barefoot lawyers, (which articulates his thoughts on the matter) with respect, that is not wholly apposite, because if any group comes forward, the provision will be put tightly within the control of the senior judge in Scotland and the senior member of the Government in Scotland; namely, the Secretary of State.

There is a world of difference between the early American experience of the barefoot lawyer and what we propose. The provision is an enabling one. The noble and learned Lord may well challenge the Government and ask who is coming forward at the moment. There is no immediate group, but we wish the provision to be on the statute book, subject to the sternest of arrangements as to education and so forth; and in those circumstances, I invite the noble and learned Lord to withdraw the amendment.

9 p.m.

Lord McCluskey

My Lords, the noble and learned Lord the Lord Advocate has said that the questions raised in connection with the amendment are difficult, and that it is far from surprising that they have caused difficulties. They might have caused difficulties to the rest of us, but they should not have caused difficulties to the Government because the Government should have reflected upon the impact of the Bill upon Article XIX before the Committee discussed the matter and I tabled the amendment referring to it.

The noble and learned Lord the Lord Advocate has also said that all solicitors have a limited right of audience before the vacation judge. That is true. One can understand that it may well be for the better administration of justice that during the vacation a solicitor who knows the case should be entitled to deal with the essentially interlocutory matters which are dealt with there. I do not criticise solicitors. I make that plain. I have a high regard for the advocacy skills of a great many solicitors of my acquaintance. One can easily understand the judgment that there was no problem about the better administration of justice when all solicitors were given the right to appear in the vacation court.

On the final point, the noble and learned Lord the Lord Advocate has said that this is merely an enabling provision which will enable something to happen which may never happen. We have no idea who wants it to happen. We do not want it to happen. No one wants it to happen. If in the future someone wants it to happen, the provision will exist to enable it to happen. One could understand that in some looking-glass world; but how can it be said to be for the better administration of justice in the Court of Session to put into the Bill such a provision when the Government cannot point to anyone who has asked for it or who should have it? One cannot persuade Parliament that that provision is for the better administration of justice when the Government's reply is, "It is just there so that in some future that we cannot comprehend someone might, in circumstances that we do not understand, ask for something that no one wants". In substance, that is what the Government's reply comes to.

I hope that between now and a later stage in the Bill—this is going to another place where I have no doubt it will be examined critically—the Government will have reconsidered their position. The Government have already made it plain that the clause is not to be brought into force immediately. One hopes that it may not be brought into force for a long time, if ever. The honest thing to do—I am sure that the Government will make many friends and make much more sense of the Bill—would be for the Government to abandon Clause 22 unless they have some scheme in mind, in which event they should come forward with a clause that enables that scheme to be put in force.

I remind your Lordships of what I informed the Committee. When the present Lord Chancellor was Dean of Faculty he thought that lay representation, even in the lowest courts, could be a threat to the better administration of justice. That was a judgment which was carefully considered. It was put into the written documents that went to the Royal Commission and it was repeated at the Royal Commission's oral hearings. In those circumstances, the Government would be wise not to press ahead with the matter. However, in the circumstances, and so as not to delay matters tonight, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord McCluskey moved Amendment No. 134: Page 28, line 41, leave out ("or other").

The noble and learned Lord said: My Lords, Amendment No. 134 is again an echo of something that happened in Committee. Your Lordships will see that it seeks to leave out the words "or other" on page 28 at line 41. The provision contained at the beginning of Clause 22 is that, Any professional or other body may, for the purpose of enabling any of their members … to acquire —

1. (a) rights to conduct litigation … and
2. (b) rights of audience,

make application in that regard".

No one knows what bodies, apart from professional bodies, the Government have in mind in relation to this matter. I can understand, although I do not agree, the thinking behind the proposal that patent agents, accountants, architects, surveyors or other such bodies might wish in certain circumstances to exercise a right of audience. But which bodies other than professional bodies do the Government have in mind?

There is another point which is a technical one. I am sorry that the noble Earl, Lord Balfour, is not here to congratulate me on pointing it out. If "other" means "any other", as it appears to do, then why does not the Bill just say "any body may apply"? The words: Any professional or other body", mean any body at all. The noble Lord, Lord Grimond, made that point in Committee.

The amendment is a small one, but it takes a tiny step towards sanity by providing the potential to apply, a: least initially, to professional bodies. If it is a howling success to the astonishment of all and sundry, including myself, then one could in another Law Reform (Miscellaneous Provisions) Bill—they come along every year or so—extend the right to bodies other than professional bodies. However, in moving the amendment I ask the noble and learned Lord the Lord Advocate on behalf of the Government to give me a clear reply to the question: which body other than professional bodies do the Government have in mind? In particular, which body other than any professional body do the Government have in mind to which they will accord rights of audience in the criminal courts? I beg to move.

Lord Macaulay of Bragar

My Lords, will the noble and learned Lord the Lord Advocate, in reply, give an indication as to whether any further thought has been given to the definition of "professional"? In times past the professions were easily recognised as being the ministry, medicine, law and so on. However all kinds of people—and I say that in no disrespectful sense—various categories of workmen, call themselves professionals. A plumber is quite entitled to call himself a professional plumber, and he is indeed a professional when one is in trouble, if one's house is flooded. There are publicans in the licensed trade, which is called a profession.

Would not the absence of a definition in the clause of "professional" give considerable force to the argument advanced by the noble and learned Lord, Lord McCluskey? It might be better to have an open house rather than a half-closed one as with the present working of the laws.

Lord Cameron of Lochbroom

My Lords, I take a somewhat different view about the clause from that which was adumbrated by the noble and learned Lord, Lard McCluskey. We tend to forget that in many legal proceedings within our jurisdiction lay persons represent other lay persons successfully. They make use of their own training, which includes law. It might be said that there is a case for allowing representation, for instance, within the lowest courts—the courts, as opposed to tribunals. I instance the district courts. It may well be said that if in a court martial a defendant can be represented by his divisional commanding officer, there is no reason why, within a limited tier of courts, the same principle should not apply.

The noble and learned Lord will be well aware of what happens in industrial tribunals where it is not members of a body who necessarily represent individuals. Nevertheless, trade union officials would certainly be members of a body and they have been very successful in that regard. In social security tribunals I can think of officers employed by the administrations of local authorities who have been successful in representing cases on behalf of individual litigants.

It might be said that the clause does not go far enough. It provides that it must be a body that makes applications. In addition, the restrictions are then further and, I am bound to say, properly restricted by the terms of subsection (2). It provides for restrictions as to the nature of the courts, the nature of the proceedings and of the business and so on which the members of that body—be it professional or otherwise —can attend. Paragraph (b) of the clause provides for the necessary training requirements and paragraph (c) for indemnification. What indemnification is there, for instance, for the litigant who goes before a social security tribunal or, in one sense, a trade union member who goes before an industrial tribunal and is represented by his official?

It is proper that we should take a much broader view of the clause and what it seeks to do in a restricted way. In the law of Scotland that is the way we ought to go. I have a great deal of time for lawyers, as noble Lords will understand. I have spent over 30 years among them and recognise the expertise on both sides of the profession. However, sometimes within a profession we tend to forget that similar legal expertise is available to those who practise their jobs in ways which from time to time touch the law.

It is for the good of the courts that we should have this provision which may in time to come assist ordinary litigants in a way which at present we are in danger of losing. Therefore, for the moment, I am not persuaded by the arguments which my noble and learned friend has put forward.

Lord Morton of Shuna

My Lords, my noble and learned friend Lord Cameron of Lochbroom has expressed his views about rights of audience. I did not mean to speak on this issue; but, having been a member of various tribunals, on the whole, I disagree with him. Courts are totally different from tribunals, which tend to be very specialised. I have been involved in industrial tribunals and in the Criminal Injuries Compensation Board. Various disasters have been averted only through the expertise of the members of the tribunal rather than that of the person who is appearing. We must be very careful that in widening the rights of audience we do not water down the quality of the advice that is available to a person who is appearing in a court which is, after all, by its definition, intended to be more serious than a tribunal. The latter concerns a specialised area.

9.15 p.m.

Lord Fraser of Carmyllie

My Lords, in my view this amendment is unnecessarily restrictive. If the noble and learned Lord, Lord McCluskey, wished to open an attack upon the first line of Clause 22 he might reasonably have done so by saying that the words "professional or other" should be deleted so that the clause simply stated, "Any body may, for the purpose of enabling any of their members who is a natural person to acquire".

I should understand that argument. Nevertheless, I think it is desirable that we should give some signal that we are not talking about individuals coming forward, but rather about bodies which have members who are natural persons coming forward. The noble and learned Lord, Lord Cameron, referred to that matter.

However, as I understand it, that point did not amount to the substance of the complaint of the noble and learned Lord. He believes that, if there is to be a broadening of those who have rights of audience, the extension should be to those who are in what might be described as a profession. The noble Lord, Lord Macaulay, is quite right to say that the term "profession" is capable of the widest use. Those who patrol the streets late at night could sometimes describe themselves as being in a profession. That term is clearly difficult when it comes to giving it any precise legal containment.

However, there may well be groups of persons who are not professionals in a generally accepted sense but who may be able to offer a useful service of a requisite quality to clients with particular needs. I am thinking here in particular of persons who work in the advisory field—for example, on welfare or benefit matters. I was surprised that the noble and learned Lord, Lord Morton, was so disparaging of some representatives of trade unions who have appeared against me in industrial tribunals. Given the antecedents of the noble and learned Lord and given mine, it is surprising that I am the one who is defending those members of trade unions who have on occasions done a quite outstanding job and who have displayed a great expertise not only in practical matters coming before the tribunal but also in an enormously detailed knowledge of the law in a particular area.

I have already indicated that there has been no direct notification that there are specific groups who are straining at the leash to acquire rights of audience. However, I have mentioned in the past that such groups as those who are involved in adoption matters could offer the most invaluable rights of audience in a specialist area. Adoption should, I believe, come before the courts but I doubt whether the people who deal with adoption matters would necessarily be described as professionals although they may have great expertise in that area. However, the point ultimately is—I have made this point before—that it will be for the Lord President and the Secretary of State to judge on its own merits each application for rights to conduct litigation or rights of audience under this clause. The noble and learned Lord, Lord Cameron, referred to that matter. The provisions which enable the Secretary of State and the Lord President to do so are detailed and extensive. Indeed, if the noble and learned Lord, Lord McCluskey, were to make the criticism that they are too detailed and too extensive, I should be inclined to accept that criticism in some circumstances.

Lord McCluskey

My Lords, the noble and learned Lord the Lord Advocate, with the assistance of my noble and learned friend Lord Cameron of Lochbroom, has repeated the point which had been made before —that is, that there is a case to be made for the opening up of the lowest district courts such as the courts martial and the tribunals that were mentioned by the noble and learned Lord, Lord Cameron, and possibly the summary civil courts that deal with matters of adoption, to persons who have expertise in those matters. I can understand that proposal although, as I have already said, it goes in the teeth of what the noble and learned Lord the Lord Chancellor said when he was the Dean of the Faculty of Advocates. However, that point does not justify this clause. The noble and learned Lord the Lord Advocate obviously did not hear me suggest that the logic of the wording of Clause 22 was to delete the words "professional or other" to make it refer to any body.

I have not yet heard an answer to the deep question to which I am seeking an answer—namely, under what circumstances would some body other than a professional body have any reasonable expectation of making a successful application to the Lord President and the Secretary of State for the right to represent people in murder cases, rape cases and the like in the High Court of Justiciary before a jury? In the hope of receiving an answer to that question when I come to a later amendment, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord McCluskey moved Amendment No. 135: Page 28, line 43, leave out ("members of the public") and insert ("other members of that body").

The noble and learned Lord said: My Lords, I do not want to take a great deal of time over this amendment. It is a damage limitation exercise. It may be that members of whatever body we have in mind can properly assess the competence of the authorised pleaders who are authorised by that body in terms of a scheme. The public may see a surveyor as a good surveyor, an architect as a good architect, a plumber as a good plumber or a boy scout as a good boy scout, but they cannot judge which of them will be good at advocacy in the courts.

Again I ask in this connection whether any member of the public has ever, before or since the Bill was published, asked the Government to ask Parliament to confer rights of this kind upon non-lawyers. I should like to hear from the noble and learned Lord the Lord Advocate more explicitly what it is that some persons concerned with adoption have said. I should like to know whether representations have been made to the Government on behalf of some body which properly represents those concerned with adoption law that they should be given a right of audience. I do not know the answer to that question yet. In the hope that I shall receive one, I beg to move the amendment.

Lord Fraser of Carmyllie

My Lords, the noble and learned Lord has an optimism which at this time of night surprises me. He has asked me that question repeatedly. I can do no better than repeat again that, while I instanced an adoption matter and he has instanced patent agents, I did not suggest at Committee stage, and I do not suggest at this stage, that there is a list of professional or other bodies which are straining at the leash to acquire these rights of audience. The provisions are essentially enabling They cover all courts. It might be that only the most restricted rights of audience in the most restricted matters would be requested. I do not believe that I can expand on that point.

If the amendment were to be carried it would be very restrictive. It would allow persons acquiring rights of audience the right to conduct litigation only for other members of the same body. That would defeat the purpose of the clause, which is to enable persons of requisite qualifications, experience and competence to offer litigation and representative services to the public.

Lord McCluskey

My Lords, I have nothing to add. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 136 and 137 not moved.]

Lord McCluskey moved Amendment No. 138: Page 29, line 8, 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 paragaph (b) hereof confers any knowledge or expertise,").

The noble and learned Lord said: My Lords, noble Lords wi11 recognise the amendment. When the noble and learned Lord the Lord Advocate saw it at Committee he thought that it was defective because it did net have a question mark at the end. I trust that he has had time to reflect upon that and realise that it would have been quite improper to put a question mark at the end. Perhaps he simply misread the amendment at that time.

In Scotland, advocates who appear in any court and solicitors who appear in any court in which they currently enjoy a right of audience profess a knowledge of the whole law that might bear upon the case in which they are involved. More particularly, they profess a knowledge of all the procedure and practice in that court and a knowledge of the law of evidence as it might bear upon the case in which they are involved, in addition to surrounding areas of the law. I do not pretend that every lawyer, be he advocate or solicitor, knows everything, but all profess a knowledge of the law and are trained in the whole law in the course of their years at university and of their apprenticeship and devilling.

The lay pleader makes no such general profession of knowledge. The scheme should therefore contain provisions which the Lord President can consider about: 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".

If you empower a patent agent, an insolvency practitioner or an architect to appear in a case, and another party—whether it be the other side or a third party who has come into the case or someone else—raises a question which is not within his expertise, what on earth is to happen?

More particularly, in a criminal case, if one of those lay pleaders—the barefoot pleaders as I previously referred to them—is defending a person on a charge and the case expands in some way to embrace matters on which he is not expert affecting another person who is charged, who is to protect the interests of that other person against the incompetence of the lay pleader who has been taken outwith the field in which he has expertise?

I suspect that the Government have not thought deeply about those matters. I have tabled the amendment because it appears to me that someone should think about what happens when the lay pleader is suddenly found to be out of his depth because of a twist or turn in the case which he did not foresee. I beg to move.

Lord Morton of Shuna

My Lords, I support the amendment. The scheme should specify the category of proceedings and the nature of the business. That is all very well. You categorise that person so that he is allowed to deal with, for example, certain types of patent applications. However, as my noble and learned friend said, what happens if the case jumps from that to a matter concerning something different? At various times in practice we have all found that a totally different branch of law has suddenly appeared in the case that we are conducting. We have to deal with it. What is to happen to the person who suddenly finds that the case has moved out of the category in which he has a right of audience? The Bill is completely blank in that respect. Is he to say to his client, "I am sorry. At the moment I have to stay silent and there is nothing you can do"? That matter must be considered.

Lord Fraser of Carmyllie

My Lords, when this self-same amendment came before the House last time and I indicated that it might end with a question mark, I was as appreciative as the noble and learned Lord is of the fact that question marks do not appear on the face of a statute.

The reality of the law—not just in Scotland, but throughout the developed world—is that it has become increasingly specialised. Although particularly in Scotland we rightly lay claim to the advantage of a common core of education, few of us would claim to be truly expert or specialist in all the areas of the law that now come before the courts in our complicated society.

I understand and appreciate that, as the noble and learned Lord, Lord Morton, said, there may well be occasions on which the pleader would not claim to have any particular expertise or knowledge. That happens now and it may well happen in the future. I should have thought that in such circumstances, if there is a specialist Clause 22 pleader, he would take the steps that I envisage a junior member of the Bar would take at present. He would seek an adjournment or make some proposal for securing the services of someone who was a specialist in the field in which he would not claim to have expertise. It is a problem but it is one which arises in the medical world and with all kinds of other professions. It is not exclusively a legal problem. In such circumstances the proper response, whether one is already enjoying rights of audience of not, is to appreciate the limitations of one's expertise and take steps to secure the expertise of someone who will be able to give the advice that the client requires.

9.30 p.m.

Lord McCluskey

My Lords, I shall not dwell any longer on this matter. The position in Scotland is different from that in England. In Scotland we profess the whole law. We do not divide ourselves into chancery lawyers, common pleas lawyers and so on. Nowadays there is a tendency for some people to specialise in the criminal law and others to stay out of it. Certainly any advocate of my acquaintance would be able to profess the law in any field in which he was likely to be instructed. In one sense he would not be taken by surprise by developments in a case.

However, I do not propose to push this matter. In my experience of over 30 years I have never known counsel to ask for an adjournment of a case in order to bring in an expert to tell him what is the law. It is so laughable that it would never happen. I am surprised to hear the noble and learned Lord the Lord Advocate espousing such a curious notion. He must have found it in his notes and they must have been written by someone who has perhaps never appeared in a court of law. However, at this late hour I do not propose to press the matter. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord McCluskey moved Amendment No. 139: Page 29, line 17, leave out ("application") and insert ("application's").

The noble and learned Lord said: My Lords, I suspect that some noble Lords may imagine that I am guilty of pedantry here. However, as a matter of syntax, the words "being granted" constitute a verbal noun, the gerund. Therefore, line 17 could read, in the event of the granting of the application".

A "granting" would then be a verbal noun and the word "application" would be in the possessive form. The Bill does not put the word "application" in the possessive and it makes "being" into a gerundive.

Having said that, and at the risk of being accused of pedantry, perhaps I may explain. In a recent case involving Section 4 of the Misuse of Drugs Act the court has interpreted the section in a certain sense. It has made the mistake, in my opinion, of not distinguishing between the gerund and the gerundive. That has led to a wrong view of what the section contains. It is not a point of pure pedantry. It is desirable that when the statute is being drafted by highly expert draftsmen they should stick with the syntax with which we are all familiar. Accordingly, at the risk of being accused of pedantry, I beg to move the amendment.

Lord Fraser of Carmyllie

My Lords, in view of the nice compliment that the noble and learned Lord paid to me as regards an earlier amendment for the way in which it was constructed, with some regret I say that I cannot see what this amendment will add to the sense of the clause. The clause seems to make perfectly good sense as it is. It has been drafted with the standard practice in such matters very much in mind. I should be very reluctant to depart from that without some clear advantage. In view of the other matters that we have to consider, I invite the noble and learned Lord to withdraw the amendment.

Lord McCluskey

My Lords, I certainly shall. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord McCluskey moved Amendment No. 140: Page 29, line 26, at end insert: ("(d) prescribing that no person shall be given a right of audience in terms of this section in any Court unless the Lord President is satisfied that he is a fit and proper person to have such a right of audience.").

The noble and learned Lord said: My Lords, Amendment No. 140 covers some of the ground covered in Amendment No. 154 standing in the name of the noble and learned Lord the Lord Advocate. Amendment No. 140 requires that certain rules referred to in the clause should prescribe that: no person shall be given the right of audience in terms of this section in any Court unless the Lord President is satisfied that he is a fit and proper person to have such a right of audience".

Therefore, it is proposed that the Lord President should determine who passes the fit and proper person test. Amendment No. 154 would place that responsibility not upon the Lord President but upon the body of which the person is a member. It is obvious that the person to decide the matter is the Lord President or, wearing his criminal hat, the Lord Justice General.

It can be done. I may be told that if the Lord President must look at each individual case that is a huge responsibility. However, I read a recent lecture given by the Lord Chancellor in the SSC Library in Edinburgh. Among his many duties and responsibilities he listed that of studying personally each year the applications of several hundred people to be elevated to the rank of Queen's Counsel and become Silks in England. He said that he read each of them and made sure that each passed the fit and proper person test.

I believe that the job should be that of the Lord President. It should not be put upon the body. I take the opportunity of saying that for that reason I am opposed to Amendment No 154 and believe that the better course is Amendment No. 140. I beg to move.

Lord Fraser of Carmyllie

My Lords, while I understand the thinking behind the amendment, the noble and learned Lord will appreciate the fact that, given my amendment to which he has referred, I cannot accept it. The Lord President will under the terms of Clause 22 consider and approve a draft scheme submitted by a professional or other body wishing to accord rights to conduct litigation or rights of audience to its members. Notwithstanding what the noble and learned Lord has said, it would be inappropriate and impractical to expect him to consider whether each individual is a fit and proper person to undertake the work involved. In my view, that task is best undertaken by the body concerned and my Amendment No. 154 seeks to achieve that.

At the risk of repeating myself, I must point out that the body may wish to deal with a restricted area of work in one of the inferior courts. In such circumstances it would be a startling proposition if the Lord. President of the Court of Session, who has a heavy enough workload, had to scrutinise each application. However, it would be important for him to set up the scheme. In doing so, as we have already discussed, there are codes of practice, training requirements and so forth. I accept the fact that it is entirely appropriate for the Lord President to exercise that broader control. It appears to be sufficient without requiring of him a direct involvement with the individuals who are members of the body seeking rights of audience.

Lord McCluskey

My Lords, I had anticipated the noble and learned Lord's remarks by saying that the Lord Chancellor undertook a task not dissimilar. If it is practicable for him to do that—and he has other enormous responsibilities in relation to the appointment of judges and so forth—it must be practicable for the Lord President to scrutinise these cases. If people are to appear in the Court of Session and in the High Court of Justiciary, as the clause permits, the Lord President should determine whether they pass the test.

I do not propose to divide the House. I know that all our proceedings will be studied with care by those in another place. I hope that the Government will give further thought to the matter and change their mind, as they have been good enough to do on a number of other points. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Fraser of Carmyllie moved Amendment No. 141: Page 29, line 31, at end insert ("; and shall in particular include provision enabling the body to comply with the provisions of subsection (13A) below.").

The noble and learned Lord said: My Lords, I shall speak also to Amendments Nos. 147, 154 and 157. I believe these amendments will be welcome to the House. They reproduce for non-lawyers seeking to acquire practising rights under Clause 22 certain important obligations and duties which attach to solicitors. It is not my intention, however, simply to force any person who acquires practising rights under this clause to become, to all intents and purposes, a solicitor, an intention which would in any event be practically unachievable. As I explained in Committee, I would expect those who avail themselves of such practising rights to be very much niche practitioners. Nevertheless, it is important that the fundamental principles which ensure that standards of conduct and practice are maintained before the Scottish courts are common to all those who seek to appear before them.

The third of these amendments requires the body in question to apply a fit and proper test, which we have just discussed. The last amendment provides the body with a power of suspension in the last resort, parallelling the power available to the Council of the Law Society of Scotland in connection with solicitors with supreme court rights of audience against whom a complaint of professional misconduct is made in the supreme courts, but enables the body to exercise it in all courts and circumstances. I think this is necessary since it is impossible to foresee the circumstances which may arise in which the body sees the need to act quickly. Moreover, the body is required to exercise this power on the request of the Lord President who must remain the supreme arbiter in these matters.

With an eye to the future, the amendment also requires the code of practice to establish an order of precedence between different courts comparable to that which binds solicitors with supreme court rights of audience. This will ensure, in particular, that the legendary level playing field obtains between non-lawyer practitioners and solicitors and advocates. The level playing field is one aspect. The other is, of course, the more important; namely, ensuring that the client is, as far as possible, able to secure representation by the type of practitioner he needs and wants. I believe these amendments provide for a necessary coherence between the different categories of practitioner envisaged, in due course, by the Bill. I beg to move.

Lord McCluskey

My Lords, as the noble and learned Lord the Lord Advocate pointed out, the amendment introduces subsection (13A) which is to be found set out in Amendment No. 157.

I draw attention to certain aspects of the matter. First, in subsection (13B) the provision is to the effect that the code of practice shall include rules: stating general criteria to which members of the body should have regard in determining whether to accept instructions in particular circumstances". Again, I raise the point which did not find favour earlier with some noble Lords. I am not sure what it means to accept instructions in these circumstances and I am not sure how it is to be determined that instructions have been given.

Secondly, in relation to the rule referred to in paragraph (a) the body is to establish the order of precedence of courts for the purposes of this subsection. As my noble and learned friend Lord Morton of Shuna argued, if it is inappropriate for the Council of the Law Society to establish the order of precedence of courts, surely it is even more inappropriate for the fire brigade union or whichever body the Government have in mind to do so. Why should such a body establish the order of precedence?

Paragraph (c) states that the rules shall secure: through such of their officers as they think appropriate, that, where possible, any person wishing to be represented before any court by one of their members holding an appropriate right of audience is so represented". That is a nonsensical provision. It is there to mirror the provision which applies to solicitors in the preceding clause. However, it is absolutely absurd that a patent agent must have a rule to the effect that if somebody requires the services of a patent agent, he must have a patent agent wherever he may come from, if that is possible. That is absurd; yet it is entirely logical. Therefore, if by applying remorseless logic one ends up with a silly conclusion, you are driven to the opinion that the premises must themselves be silly. Of course, that was where we came in. The premises are silly. By their fruits ye shall know them. That is one of the fruits of this clause which is absurd. The Government should think again about that.

On Question, amendment agreed to.

9.45 p.m.

The Deputy Speaker (Lord Airedale)

My Lords, in calling Amendment No. 142 I have to say that if it were agreed to I could not call Amendment No. 143.

Lord McCluskey moved Amendment No. 142: Page 29, line 32, leave out subsection (4).

The noble and learned Lord said: My Lords, Amendment No. 142 seeks to leave out subsection (4), which is to be found on page 29 of the Bill. It is the subsection which provides that: A draft scheme submitted under this section shall also include the proposals of the body in relation to such other matters as may be prescribed by the Secretary of State in regulations made under this section".

That is all it says. That is a pure Henry VIII clause. I have no idea what the Secretary of State has in mind to put into such regulations. Perhaps the noble and learned Lord the Lord Advocate can enlighten us. Can he say whether such rules and regulations exist in draft and, if so, what they contain? When in any event are they to be published? Is anyone to be consulted before this rule and regulation is brought before this House, if it is brought before the House, under the negative procedure?

As the Deputy Speaker pointed out, Amendment No. 143 cannot be taken if Amendment No. 142 is agreed to. Amendment No. 143 provides for a weaker position; if fresh regulations have to be made about vague other matters, I should have thought it appropriate that they should be made by the court, not by the Secretary of State. That is the thinking behind that amendment and I shall not speak to it separately. I beg to move Amendment No. 142.

Lord Fraser of Carmyllie

My Lords, the list of matters to be included in a draft scheme is not exhaustive. It is important that the Secretary of State should have a long stop power to add further requirements should circumstances develop which demand that. I cannot accept that the Lord President would be an appropriate person to exercise that task since the breadth of his responsibilities cannot be compared with those of the Secretary of State. I doubt whether his perspective would fully qualify him to deal with all the matters which a draft scheme will be required to cover. I am thinking specifically of the requirements which relate to client protection and complaints. I emphasise that it is as a long stop provision that this power is sought to be given to the Secretary of State.

The noble and learned Lord made reference to a Henry VIII type of clause. However, he will appreciate that if the Secretary of State is to make further regulations, it will be in precisely the direction that he would want the Secretary of State to go; namely, that there should be a greater restriction on those persons who might seek to acquire rights of audience under Clause 22 rather than providing for a greater enabling opportunity.

Lord McCluskey

I have nothing further to say. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 143 not moved.]

Lord Macaulay of Bragar moved Amendment No. 144: Page 29, line 35, at end insert: ("(4A) The Secretary of State shall by regulations made under this section make provision —

1. (a) requiring applications under subsection (1) above to be advertised;
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: My Lords, this amendment requires the Secretary of State, by regulation, to make provision requiring applications for this type of pleading to be advertised and a draft scheme to be published or otherwise made available for inspection by members of the public. It also provides for the making and consideration of objections and representations by members of the public or interested bodies. Amendment No. 148 is an associated amendment and will follow if Amendment No. 144 is accepted and included in the Bill.

The purpose of the amendment is self-evident and I do not need to go into it in any detail. It is basically to provide publicity of any draft scheme. It will give the public, who, after all, will be affected by the implementation of the scheme in the courts where successful applications are made, an opportunity to see who is getting, or may be likely to get, approval to practise in whatever court and to make objections to or indeed to approve of, as the case may be, the objects of the particular scheme.

It is clear that this provision covers an entirely new area of legal practice, involving public rights in this new field, and it is essential that in the public interest the public should know what is being done on their behalf in the courts. I beg to move.

Lord McCluskey

My Lords, I support this amendment. There should be some room for input by the public. For example, the police might wish to input some information about specific bodies and schemes. Members of the public who have had unsatisfactory dealings with the body or the members that it is proposed to enfranchise in this way might well have something to say. Indeed, advocates, solicitors and Members of Parliament might want to make representations on a particular scheme. Therefore, I urge the Government to consider this amendment positively.

Lord Fraser of Carmyllie

My Lords, I am grateful to noble and learned Lords for raising this matter again. As I indicated in Committee, I am sympathetic to the thinking behind this amendment. I have to say, however, that I do not think a further regulation-making power for the Secretary of State is either necessary or appropriate to achieve what is needed here. Given the recent criticism that some have made of this Bill, that it gives too many powers in secondary legislation to the Secretary of State, I am sure that that sentiment will be welcomed by some noble Lords at least.

I am conscious of the fact that I undertook to give consideration to this topic at Committee stage, but it has proved to be a less simple task than I imagined at the time. While I apologise, therefore, for not having a finished amendment to put before the House, it may be helpful if I outline the Government's intention in this area. I envisage that an amendment will be brought forward in another place to require applicant bodies to make copies of their application for practising rights under Clause 22 pubicly available and to require the Lord President and the Secretary of State to give consideration to objections for representations of the kind mentioned by the noble and learned Lord, Lord McCluskey, which are received within a specified statutory period. The amendment will meet the intentions of the noble and learned Lords but will circumvent the requirement for regulations.

I think the amendment will be valuable, particularly in enabling those bodies which already enjoy practising rights and which therefore perhaps know most about the issues involved, to contribute to the consideration and approval of an application. On that understanding, I hope that the noble and learned Lord will feel able to withdraw the amendment.

Lord Macaulay of Bragar

My Lords, I am grateful to the noble and learned Lord for that explanation and for the care and consideration he has given to what is an important aspect of the Bill. We shall await the terms put forward in another place, but in the meantime in the light of the undertaking given, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord McCluskey moved Amendment No. 145: Page 29, line 37, leave out ("subject to annulment in pursuance of a resolution of either House of Parliament") and insert ("No instrument shall be made under this section unless a draft of the instrument has been approved by both Houses of Parliament").

The noble and learned Lord said: My Lords, this amendment is a repeat of the same kind of provision contained in other parts of the Bill. I hope to hear the same positive response from the noble and learned Lord the Lord Advocate. In asking for that same response perhaps I may say that the proposals which are enshrined in Clause 22 are entirely novel. As I said earlier, the Court of Session has existed for 458 years without having lay pleaders conducting cases. Until this Bill was published no one would have dreamt of putting lay pleaders into the High Court of Justiciary. Therefore, the least we can expect is that this amendment is given proper consideration. I beg to move.

Lord Fraser of Carmyllie

My Lords, although at earlier points during Report stage I indicated a willingness to consider reversing matters to require affirmative resolution rather than negative resolution, in this area I do not experience the same concern As I remarked in answering earlier amendments, I do not envisage that regulations made under this subsection would be contentious. Indeed, I should expect them to cover additional areas of consumer protection or the prevention of a malpractice. In such circumstances it appears to me that they are not in the same category as those codes of conduct that we have previously considered. I have to indicate on this matter that I do not consider that an affirmative resolution would be an effective use of parliamentary time.

Lord McCluskey

My Lords, it is to be hoped that when the Bill finally receives Royal Assent, it will be coherent. I am sure that when the noble and learned Lord the Lord Advocate and the Secretary of State reflect on the matter they will see the wisdom of the proposal.

As I have said, it is an entirely novel matter. Parliament has a great interest in ensuring that the matter is properly regulated. Parliament should not approve such a course unless it is plainly seen to be in the interests of the better administration of justice.

I believe that, if the amendment or a proposal in its terms were accepted into the Bill, such a result would follow. I ask the Government to consider the matter again. I do not propose to pursue the matter further tonight. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord McCluskey moved Amendment No. 146: Page 29, line 41, leave out ("(a) and (b)").

The noble and learned Lord said: My Lords, Amendment No. 146 is a small but not unimportant amendment. The amendment states: Page 29, line 41, leave out ('(a) and (b)') ".

Subsection (6) provides that the Lord President has concern in relation to matters in subsection (2) (a) and (b), and the Secretary of State in relation to matters in subsection 2 (b) and (c). It is logical that the Lord President should have concern in all the matters. I believe that I am receiving positive and affirmative signals from the Government Front Bench. I shall not take up your Lordships' time by developing the argument. I beg to move.

Lord Fraser of Carmyllie

My Lords, the noble and learned Lord interpreted the signals correctly. I propose to accept his amendment. I do not even propose to take it away. It strikes me as eminently reasonable that the Lord President, who is responsible for considering the rules of the Law Society of Scotland in relation to the treatment of complaints and indemnity against client loss, should have a comparable role for these new providers of legal services. Moreover, it will give the Lord President an opportunity to consider the application in its entirety and to assess the implications of one aspect of a scheme for the application as a whole. I am grateful to the noble and learned Lord for bringing the amendment.

Lord McCluskey

My Lords, I am almost overcome by emotion. I can only sit down.

On Question, amendment agreed to.

Lord Fraser of Carmyllie moved Amendment No. 147: Page 29, line 44, at end insert: ("() In considering the code of practice included in the draft scheme by virtue of subsection (2) (b) (ii) above, the Lord President shall have regard to the desirability of there being common principles applying in relation to the exercising of rights to conduct litigation and rights of audience by all practitioners in relation to the court or, as the case may be, the courts, mentioned in the application.").

The noble and learned Lord said: My Lords, I have already spoken to the amendment in speaking to Amendment No. 141. I beg to move.

On Question, amendment agreed to.

[Amendment No. 148 not moved.]

Lord Fraser of Carmyllie moved Amendment No. 149: Page 30, line 3, at end insert: ("() In considering a draft scheme under subsection (6) or (7) above, the Lord President and the Secretary of State shall have regard to whether the provisions of the draft scheme are such as—

1. (a) to achieve; and
2. (b) to ensure the maintenance of,

appropriate standards of conduct and practice by persons who may acquire rights to conduct litigation or rights of audience in the event of the draft scheme being approved.").

The noble and learned Lord said: My Lords, the amendment is, I trust, the fruit of the consideration that I have been giving to what was said in Committee by the noble and learned Lord, Lord McCluskey, in moving his Amendment No. 239.

That amendment raised the question of what the Lord President and the Secretary of State should consider when required to decide whether or not to grant an application for rights of audience or rights to conduct litigation under this clause. Again, I am grateful to the noble and learned Lord for raising this important matter. I bring the amendment before the House in an attempt to meet the concern that he expressed.

The amendment focuses on the maintenance of standards of conduct and practice before the courts and in the conduct of litigations. The amendment does not confine the consideration of the Lord President and the Secretary of State to those matters alone, but it does provide some guidance for them in doing so. It is clearly of primary importance that any scheme under which non-lawyers are to be accorded rights to conduct litigation and rights of audience makes proper provision to secure and maintain the standards of conduct and practice which the court rightly demands. As I mentioned in Committee, I have no doubt that the Lord President will also have regard to the furtherance of the administration of justice when considering a draft scheme which is put to him under this clause, but the purpose of the amendment is to provide a focus for his consideration; namely, on the necessary standards of conduct and practice. I beg to move.

Lord McCluskey

My Lords, I am grateful to the noble and learned Lord for what he has said. There is nothing I can add to assist the House. I am happy to support the amendment.

On Question, amendment agreed to.

10 p.m.

Lord McCluskey moved Amendment No. 150: Page 30, line 18, leave out ("giving written reasons for the refusal").

The noble and learned Lord said: My Lords, this amendment is linked with Amendment No. 151. In my mind anyway, the two are linked. The matter with which I am concerned here is judicial review.

Amendment No. 150 deletes the words, giving written reasons for the refusal".

Amendment No. 151 inserts the specific provision that the decision is to be beyond review in any court of law or otherwise, a provision which is to be found when one seeks to exclude judicial review, although it is not necessarily always successful. I should like to hear from the Lord Advocate whether or not the Government intend that there should be judicial review, and, if they intend that there should be judicial review by the current wording, whether or not they think that their intention has been realised.

There is another smaller point which is not unimportant for the Lord President in the exercise of his duties. Noble Lords will see from the construction of subsection (9) that, if both officers of state are satisfied, the Lord President shall grant the application. But under paragraph (b), if they are not satisfied, the Lord President shall refuse it. It seems that, if either of them is not satisfied, the Lord President shall refuse the application. If therefore the Lord President is satisfied with the scheme but the Secretary of State is not, it is the duty of the Lord President, who disagrees with the Secretary of State, to give the Secretary of State reasons in writing for the refusal. If I am right, that seems a slightly odd position.

My main reason for putting down the amendments is to seek clarification in relation to the general matter of judicial review. In the hope that I get it tonight, I beg to move.

Lord Macaulay of Bragar

My Lords, I have some reservations about the amendments. Taking this step takes away a right that is given to people under the clause. To remove that right in the way that is being done might smack of elitism and some kind of secret court procedure. I am not happy with the amendment as it stands. I agree that the interpretation of Clause 22 (9)(b) leads to a rather absurd situation. But that is a matter for the Government to take into account when considering the amendment.

Lord Fraser of Carmyllie

My Lords, I do not think that the anxiety expressed is correct, but I shall check that. Turning to Amendments Nos. 150 and 151, I do not see what can be gained if they were to be accepted. It is only fair and reasonable that where a body has an application for rights of audience, or rights 10 conduct litigation, refused, the Lord President should give his reasons for so refusing. It is in the best interests of openness and accountability, and most particularly to allow the applicant body to reconsider its position in the light of the Lord President's reasoned refusal of an application, that he should disclose his reasons to the body in question for so refusing.

Turning to Amendment No. 151, if written grounds of refusal were there, I suppose it makes it easier for the Lord President to be subject to judicial review. But I should emphasise that the purpose of this part of the clause is not to get the Lord President of the Court of Session in the sights of his colleagues in the court and subject him to that judicial scrutiny. It is the rather more obvious point that I have already made. If we have an applicant body, and if it knows—and has those reasons set out in writing—where it has fallen short of securing the Lord President's approval, it will at least know how it might contemplate amending its draft scheme, improving its education arrangements, and improving the code of practice that it has sought to put forward. I would far rather look at this in that rather more constructive atmosphere than suggest that what we are after here is in some way to embarrass or cause difficulties for the Lord President.

Lord McCluskey

My Lords, it is rather strange that the Bill should deliberately contain a provision the purpose of which includes that the decision of the Lord President on a matter of this kind, or at least the decision of the Secretary of State on a matter of this kind, should be subject to judicial review. If the decision is that of the Lord President, then it means that someone can raise proceedings for judicial review and the matter will be redetermined by a Lord Ordinary and ultimately by a division of the Inner House. That is unprecedented so far as I am aware.

In England one had the same kind of thing in relation to decisions by the Lord Chancellor; but then the Lord Chancellor was deciding in his capacity as a Minister and not in his capacity as a judge when his decision was brought under review in the High Court. However, I do not want to take the matter any further, and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 151 not moved.]

Lord McCluskey moved Amendment No. 152: Page 30, line 19, at end insert: (". In determining whether or not he is satisfied with 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 under the scheme would, in his opinion, be likely to further the administration of justice").

The noble and learned Lord said: My Lords, Amendment No. 152 is again a repeat of something moved at Committee, but I am astonished that the Lord Advocate has not adopted the words contained in this amendment. Your Lordships will recall that on 2nd April, at cols. 1104 to 1107 of Hansard, and especially near the top of col. 1106, there was considerable support for the notion that the Lord President should have regard most particularly to the question as to whether or not the acquisition, and exercise, by persons of enfranchisement under Clause 22 would be likely to further the administration of justice.

Once again it echoes the point that the responsibility of this Parliament is to ensure that it does not enact a provision of this kind unless it leads to the better administration of justice. That had powerful support from the noble and learned Lord, Lord Simon of Glaisdale, and others, and I am surprised that the Government have not simply adopted it for themselves. In the hope that they will now do so and support the amendment, I beg to move.

Lord Fraser of Carmyllie

My Lords, perhaps I may deal with the matter briefly, because while it is not precisely the same point, the amendment essentially traverses ground that I thought we had covered when I moved Amendment No. 149 which ensures that standards of conduct and practice among non-lawyer practitioners are maintained. As I said then, the Lord President will undoubtedly pay due regard to the interests of justice.

It is not because I disagree with the noble and learned Lord that I invite him to withdraw the amendment, but because it seems to me that the matter is fully covered. I want to avoid elevating the convenience and efficiency of the courts to the status of the supreme goal—the client's right to choose any competent representative who observes the appropriate duties to the court and conforms to appropriate rules of conduct which are also of fundamental importance. It is necessary to achieve a balance. I take the view that given the amendment that I moved, that balance has now been struck.

Lord McCluskey

My Lords, I am not content that the balance has been properly struck, but I recognise and acknowledge that the noble and learned Lord the Lord Advocate has moved some way in the direction of what is proposed. At this time of night, I merely content myself by asking leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord McCluskey moved Amendment No. 153: Page 30, leave out lines 23 to 25.

The noble and learned Lord said: My Lords, this is a short amendment which raises a point with which I have dealt a number of times, and which is a most important point: that the clause as presently drafted envisages that the Lord Justice General will make acts of adjournal regulating the conduct in the High Court of Justiciary of persons who are what I have been calling barefoot pleaders engaged in criminal proceedings.

Your Lordships will be aware that in the High Court we deal with cases of murder, rape, arson, culpable homicide, fraud, uttering, counterfeiting, the misuse of drugs and other similar matters. Nothing that the noble and learned Lord the Lord Advocate has said in the course of these protracted proceedings has indicated that there is any support anywhere in the country—there is none in the House—for allowing laymen to appear in criminal proceedings. I urge the Government to follow the logic of that and say to themselves, "We now realise that we cannot seek sensibly to persuade Parliament that it will be for the better administration of criminal justice that laymen should be accorded this right", accept the amendment and remove criminal proceedings from the Bill.

I am aware that technically the amendment is not correct and that other amendments will be required; but the amendment is sufficient to raise sharply that one point. I ask the Government to acknowledge that fact, accept the thinking behind the amendment and in due course introduce amendments which will put the proposal into the Bill. I beg to move.

Lord Carmichael of Keivingrove

My Lords, perhaps I may intervene in this high level discussion. Will the noble and learned Lord the Lord Advocate say whether there is equivalent legislation in England to allow Scottish barristers to practise here? Is the measure reciprocal?

Lord Fraser of Carmyllie

My Lords, on the matter of reciprocity of rights as between Scottish advocates and English barristers, we shall deal with that point more precisely under Clause 23. Provisions comparable to Clause 22 are in the process of being introduced for England and Wales.

We are dealing in the High Court of Justiciary in Scotland, as the noble and learned Lord said, with the most serious crimes in our calendar. I have no doubt that before anyone is afforded rights of audience in that court, there would be required to be not just a scheme but training and a code of practice, and it will be difficult to achieve success without a deep knowledge of the law.

It is not the barefoot pleader who will acquire these rights, as might be envisaged, but someone who, if the noble and learned Lord likes, will look to all intents and purposes like a lawyer but may not formally be so. I appreciate the anxieties of the noble and learned Lord. However, I still have difficulty in understanding this when I consider the way in which the scheme is set up, the role of the Secretary of State for Scotland and the involvement of the senior judge for Scotland in all this. I have none of the qualms or anxieties that the noble and learned Lord has that these people might be permitted to appear in our most important criminal courts, nor that they might not have the qualifications, the integrity or the expertise to discharge the duties, which are undoubtedly difficult to discharge.

10.15 p.m.

Lord McCluskey

My Lords, once again I have failed to persuade the noble and learned Lord. I shall simply leave the matter in the hope that on further reflection between now and the passage of the Bill through another place and its return here, possibly in the autumn, the noble and learned Lord the Lord Advocate and his colleague the Secretary of State will think again. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Fraser of Carmyllie moved Amendment No. 154: Page 30, line 30, after ("above") insert (", and who appears to the body to be a fit and proper person,").

The noble and learned Lord said: My Lords, in moving Amendment No. 141 I also spoke to this amendment. I beg to move Amendment No. 154.

On Question, amendment agreed to.

Lord McCluskey moved Amendment No. 155: Page 30, line 32, at end insert: ("(11A) Any right conferred by subsection (11) above has effect subject to any condition attached to its exercise in pursuance of the scheme in question and shall cease to have effect if the Secretary of State brings the scheme to an end in pursuance of subsection (11B) below. (11B) In any case where the Secretary of State is satisfied that a scheme which has been approved under this section ought no longer to have effect on the grounds that members of the body who have exercised rights of audience in any court in pursuance of the scheme have been the subject of complaints of such a nature that he considers that the scheme should be brought to an end, the Secretary of State shall by order made by statutory instrument provide for the termination of the scheme; and a statutory instrument under this subsection shall be subject to annulment in pursuance of a resolution of either House of Parliament.").

The noble and learned Lord said: My Lords, this was Amendment No. 244A at the Committee stage. The noble and learned Lord the Lord Advocate said on that occasion that he would reconsider the point. He also said in reply to matters that I raised that he would consider whether the Lord President or the Lord Justice General should have a role in relation to this provision.

The amendment proposes a means for terminating the scheme if it has proved unsuccessful. The Bill permits that, if persons who have been brought in to plead in terms of a scheme should prove to be unsuitable in some way, they can be removed or have their rights of audience taken from them. However, it must be possible also to terminate the whole scheme if it has proved unsuccessful. That power ought to be put into the legislation. Despite what the noble and learned Lord the Lord Advocate said at the Committee stage, I do not believe that he has brought in any provision at all that reflects the fruits of his consideration. I therefore wish to hear from the Government why their consideration did not lead them to propose such a change in the provision. I beg to move.

Lord Fraser of Carmyllie

My Lords, as I indicated during the Committee's discussion of an identical amendment tabled in the names of the noble Lords, Lord Macaulay and Lord Carmichael, I am sympathetic to the idea of a review power for rules which have received the approval of the Secretary of State. I accept that I undertook to consider the matter further. I regret that it has taken me longer to do so than I had envisaged since I now wish to intertwine the aim of this amendment with a more general provision to enable the Secretary of State for Scotland and the Lord President to instigate a review of certain rules where they consider that to be appropriate.

The noble and learned Lord, Lord McCluskey, will note that this amendment makes no reference to the Lord President. As he pointed out during our discussion in Committee, there is undoubtedly a role here for the Lord President and the amendment to be brought forward in another place will establish a locus for the Lord President both in instigating a review of a particular rule and in judging the outcome of that review. Both the Lord President and the Secretary of State will be able to initiate a review though a rule will be changed only where both agree with the change proposed. Neither will therefore be able to change a rule without the agreement of the other.

I believe this is an important counterbalance which will ensure that the interests of justice and the interests of promoting and maintaining client choice are fully taken into account. However, where both the Lord President and the Secretary of State agree that a rule needs to be changed there has to be some means of enforcing such a change. The Secretary of State therefore proposes to include in that amendment a power for the Secretary of State, with the agreement of the Lord President, to revoke a body's practising rights broadly along the lines proposed in this amendment.

However, I could not accept this amendment in isolation as I believe other matters need to be dealt with at the same time. It is unfortunate that I have not been able to do so, as we could possibly have avoided this brief debate. However, on the understanding that the purpose of this amendment will be met by a Government amendment in another place I hope that the noble and learned Lord will be prepared to withdraw his amendment.

Lord McCluskey

My Lords, again I am happy to accept what the noble and learned Lord the Lord Advocate has said. In the light of what he has said, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord McCluskey moved Amendment No. 156: Page 30, line 33, leave out subsection (12).

The noble and learned Lord said: My Lords, I spoke to this same point in relation to a different clause. Once again we have a subsection which imposes upon the Lord Advocate and the Secretary of State a duty to exercise their respective functions, as soon as is reasonably practicable".

The subsection imposes that duty upon no other person that I can discover in this clause. I am not sure whether that was the Government's intention or whether they planned that the provision should bite not only upon the two officers of state but also upon the various bodies which are mentioned. In my view that is not the case. I beg to move.

Lord Fraser of Carmyllie

My Lords, when I spoke to Amendment No. 132 before dinner I indicated that I thought Amendment No. 156 would be coupled with it. However, I appreciate that it is not. I have already had my tail twisted about this provision, not once, twice or three times, but now for the fourth time. I doubt whether there is any way that I can elaborate on the provision that will satisfy the noble and learned Lord. I shall have to leave my arguments where they rest.

Lord McCluskey

My Lords, if the noble and learned Lord the Lord Advocate will tell me how many times I have to twist his tail before it comes off I should be grateful. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Fraser of Carmyllie moved Amendment No. 157: Page 30, line 43, at end insert:

• ("(13A) Where a complaint has been made that a person has been guilty of professional misconduct in the exercise of any right to conduct litigation or right of audience held by him by virtue of this section, the body of which he is a member may, or if so requested by the Lord President shall, suspend that person from exercising that right pending determination of that complaint by the body.
• (13B) Where a person holding a right of audience in any court by virtue of this section is instructed to appear in that court, those instructions shall take precedence before any of his other professional or business obligations, and the code of practice mentioned in subsection (2) (b) (ii) above shall include rules —
1. (a) establishing the order of precedence of courts for the purposes of this subsection;
2. (b) stating general criteria to which members of the body should have regard in determining whether to accept instructions in particular circumstances; and
3. (c) securing, through such of their officers as they think appropriate, that, where possible, any person wishing to be represented before any court by one of their members holding an appropriate right of audience is so represented, and, for the purposes of such rules, the Inner and Outer Houses of the Court of Session, and the High Court of Justiciary exercising its appellate jurisdiction, may be treated as separate courts.").

The noble and learned Lord said: My Lords, in moving Amendment No. 141 I spoke to Amendment No. 157. I beg to move.

On Question, amendment agreed to.

Lord Macaulay of Bragar moved Amendment No. 158: Page 31, line 17, at end insert: ("() The provisions of this section and section 21 of this Act shall not affect the right of a person receiving legal aid in the High Court under Part IV of the Legal Aid (Scotland) Act 1986 to select his solicitor (or other authorised litigator) and counsel (or other authorised advocate) to act for him, and regulations made under that Act shall not provide that representation in the High Court shall be by solicitor only").

The noble Lord said: My Lords, I can fairly say that this is one of the most important amendments we shall consider today. It goes to the very heart of representation under the new scheme. There was an equivalent provision in the Courts and Legal Services Bill which was approved by your Lordships' House. As I understand it, the provision was taken out of the Bill in another place.

The reasoning for the amendment in its present form is that with the new form of solicitor-advocate pleader getting rights of audience in the higher court, and in particular the High Court, where different cases require different degrees of expertise and experience, it would be regrettable to say the least if the Legal Aid Board in approving or disapproving an application for legal aid in a serious case were to make it compulsory, so to speak, that because the advocate-solicitor had gained the right of representation he could not instruct a senior counsel in the appropriate case.

We do not know how the scheme will work. However, it is certain that anyone appearing in superior courts in Scotland, whether he is fee paying or under the legal aid scheme, is entitled to the best representation available. The implementtion of the Bill and the granting of these rights of audience must not be allowed to turn representation in serious criminal cases, and particularly those on legal aid, into a second-rate representation scheme in which the people who should handle a particular case are turned down.

We do not know what motivates the Legal Aid Board. We sometimes wonder. Perhaps I may refer to a recent case, but since it is continuing I shall not mention it by name. The noble and learned Lord the Lord Advocate will be familiar with it. It is a case of the rape of a four year-old child. An application was made for legal aid for representation, and the man concerned ended up with a very junior counsel who, although he did not say that he could not do the job, instantly recognised that to cross-examine a child of that age required far more expertise than he possessed. We hope that appropriate representation has now been gained for that individual.

The amendment is intended to achieve a fair system of representation and avoid a restrictive one resulting from the existence of the new pleaders. I beg to move.

Lord Fraser of Carmyllie

My Lords, this is an important opportunity to explain an important matter. I appreciate that the noble Lord wishes to ensure that the right of a person to receive legal aid in respect of proceedings in the High Court should be protected. I can assure noble Lords that there is no intention that the provisions of Clauses 21 and 22 should act in a restrictive way. Indeed, the purpose of the provisions is to extend choice. I can see, however, that there is a case for considering statutory provision to ensure that legally-aided persons will not be confined to using representatives from one professional group rather than another for what might be seen as improper reasons. We shall of course need to retain control in the area of legal aid over the sanctioning of counsel in the lower courts which has existed for a very long time or the use of silks (whether advocates or in future solicitors). By contrast, however, I do not see that the issue is confined to criminal matters. I shall take this away to reflect on what might best be done, and I hope that the noble Lord will withdraw the amendment in the light of that assurance.

Lord Macaulay of Bragar

My Lords, I am very grateful to the noble and learned Lord the Lord Advocate for his consideration of the amendment. I appreciate that it was tabled at a very late stage and understand that time will be required to consider the implications. In the meantime no doubt his words will be noted in another quarter dealing with legal aid. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Deputy Speaker

My Lords, in calling Amendment No. 159 I have to say that, were it agreed to, I could not call the next amendment.

Lord Morton of Shuna: moved Amendment No. 159: Page 31, line 18, leave out subsection (1).

The noble and learned Lord said: My Lords, in moving the amendment I realise that I shall be repeating very much what I said in Committee. Subsection (2) of this clause provides for English, Welsh and Northern Irish practitioners to qualify to practise in Scotland on terms similar to those on which practitioners from other member states may qualify to practise in Scotland. That being so, and there being no possible objection to it, subsection

(1) appears totally unnecessary. That subsection allows an apparently different approach and allows different people to practise. In subsection (1) the English, Welsh and Northern Irish are given rights which will not be given to the French, Germans, Belgians and the others. There seems no possible reason for that.

There is also a danger because the English provision which is going through Parliament contains the equivalent of Clause 22. Therefore, people having special rights in English, Northern Irish or Welsh courts may now be allowed by the Secretary of State, after consultation with the Lord President—even if the Lord President disagrees—to practise in a totally different legal system. Subsection (2) covers everything that is necessary and proper. There is no reason for subsection (1). I beg to move.

10.30 p.m.

Lord McCluskey

My Lords, I put my name to the amendment because, despite my best endeavours and having read what the Lord Advocate said at cols. 1149 to 1151 of Hansard of 2nd April, I am at a loss to understand why subsection (1) is included. I do not want to repeat what my noble and learned friend Lord Morton of Shuna said, but I ask the Lord Advocate to explain as succinctly and clearly as he can what subsection (1) seeks to give that is not given in subsection (2). We understand that subsection (2) is necessary for purposes connected with the European Community.

In my mind, Amendment No. 159 is linked with Amendment No. 161, which seeks to remove lines 10 and 11 on the next page; in other words, to remove: from the definition of "practitioner" the words, any person falling within such category as may be prescribed in regulations made by the Secretary of State". Under Clause 23 (1) given the terms of that definition, it appears that the Secretary of State, after merely consulting the Lord President, can take a step by regulation which enables him to bypass Clause 22. Under Clause 22, patent agents or the like can apply and, if a scheme is approved by the Lord President and the Secretary of State, they can gain certain rights in Scotland. However, under Clause 23, if they choose not to bother with Clause 22 procedures, they can get in by the back door if the Secretary of State prescribes circumstances such as the subsection allows.

That proposal is entirely obnoxious. The Secretary of Stats has a duty to consult the Lord President, but then goes on to make the regulations himself.

He can designate anyone to be a practitioner. The noble and learned Lord the Lord Advocate tried to assure me that the reason for doing that was that the Courts and Legal Services Bill contains a provision which allows Scots to plead in England. I do not know of any Scot who asked for that provision. No one asked me whether I was in favour of it. It did not appear in the Green Paper or in the White Paper for Scotland. The mere fact that this House has apparently accepted that proposal for England does not appear to me to take one step towards proving that it is right for Scotland.

The most obnoxious and intolerable thing is that under the clause the Secretary of State can enable practitioners as defined—that includes barefoot pleaders from England—to practise in Scotland without having to pass the tests that we have so carefully formulated in Clause 22. I should like to hear the Government's answer to that point, which I have made before.

Lord Fraser of Carmyllie

My Lords, the noble and learned Lord has made that point before.

The first point that I wish to make about the amendment is that it is incomplete as it does not make consequential provisions to subsection (3) of Clause 23, which refers to regulations made under subsection (1). In any case, it is not possible for me to accept the amendment, which would have the effect of perpetuating the illogical situation whereby lawyers from other member states in the European Community can provide certain services in Scotland which may not be so provided by lawyers from other jurisdictions in the United Kingdom.

When we dealt with the clause in Committee there was some misunderstanding about the respective purposes of subsections (1) and (2). I hope that at the second time of trying I can clarify the situation. Put simply, subsection (1) corresponds to the 1977 EC services directive and concerns the provision of services by lawyers from other UK jurisdictions. By contrast subsection (2) mirrors the provisions of the 1988 diplomas directive which is due to come into effect in 1990 or 1991. That measure will provide for lawyers from other jurisdictions to be recognised as such in the United Kingdom and will provide all the services, given that they conform with regulations shortly to be made to implement the directive, that the host state equivalent may provide.

Therefore, in this clause we are dealing with two quite different situations. It is for that reason that separate provision is necessary in discharge of the obligations that we have taken on within the European Community.

Lord McCluskey

My Lords, before the noble and learned resumes his seat I ask him to address himself to the point that I have asked. It is not fair to the House that he should not answer the point that has been put. He talked about the EC directive in relation to lawyers. I am concerned about the definition of "practitioner" including any person falling within such category as may be prescribed which means non-lawyers. Does the EC directive cover that person? That is the question I asked, and I repeat it.

Lord Fraser of Carmyllie

My Lords, I had already sat down. I really cannot go over the matter again. As I have indicated, we are acting in discharge of directive matters. I hope that the noble and learned Lord will appreciate what obligations are incumbent on us and will consider these matters.

Lord Morton of Shuna

My Lords, when one looks at Clause 23 (2) one sees no reference to any directive. The clause gives a power to the Secretary of State, after consulting the Lord President, to make provision for enabling practitioners from parts of the United Kingdom other than Scotland to practise in Scotland on terms similar to those given to other member states. It does not matter whether there is a 1990 directive, a 1970 directive or any other directive. That is what the clause enables the Secretary of State to do.

From everything that the noble and learned Lord has said it is unclear to me—no doubt it is my fault —why it is necessary to say the same thing twice and why, in subsection (1), it is necessary to bring in the non-lawyer practitioner. Nothing that the noble and learned Lord said has made matters clear. I regret the position. There is nothing I can do beyond asking the leave of the House to withdraw the amendment. I do so with regret because the noble and learned Lord has not made the matter in any sense clear. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Fraser of Carmyllie moved Amendment No. 160: Page 31, line 20, leave out ("a practitioner who is") and insert ("practitioners who are").

The noble and learned Lord said: My Lords, this is a drafting amendment, the need for which was noticed in Committee by the noble Lord, Lord Grimond, to whom I am grateful. I beg to move.

On Question, amendment agreed to.

Lord McCluskey moved Amendment No. 161: Page 32, leave out lines 10 and 11.

The noble and learned Lord said: My Lords, the amendment seeks to take out that part of the definition of "practitioner" that refers to persons who are not lawyers. The purpose of having proceedings of this character in this House is to enable the Government to explain their position to Members of your Lordships' House. The purpose of our being here at this late hour of the night is to enable us to ask such questions as we think should be answered.

I ask the noble and learned Lord the Lord Advocate this question: are the Government saying that the EC directive—and, if so, which one—requires the Government to include in a Bill such as this a provision conferring on persons who are not lawyers a right of audience in our courts? I beg to move.

Lord Cameron of Lochbroom

My Lords, I wish to add to what my noble and learned friend has said. Is it necessary to define "practitioner" in subsection (6) having regard to the definition which appears in each of subsections (1) and (2); namely, practitioners who are qualified to practise in England and Wales or Northern Ireland? The definition is the same in each subsection.

It appears to be otiose to further define, but perhaps I have missed a point. There appears to be a clear definition of a practitioner in the qualifying clause in subsections (1) and (2).

Lord Fraser of Carmyllie

My Lords, the first of these amendments seeks to delete from the Bill a provision for which there is an equivalent in the Courts and Legal Services Bill to permit those who have been accorded rights of audience in England and Wales and Northern Ireland, but who are not barristers or solicitors, to acquire rights to practise in Scotland. Although I have already indicated that these provisions are intended essentially to cover what are covered in two separate EC directives, the provision about defining a practitioner goes beyond what is required under those directives. The purpose is to acknowledge that rights gained in other jurisdictions within the United Kingdom by non-lawyers might be extended in such a way as to allow them to appear in Scotland. I should be most reluctant to delete the Scottish part of what is, in effect, a reciprocal provision.

It is not necessary for us again to traverse the ground of the likelihood of there being any extended group which might, under the equivalent of Clause 22, acquire such rights of audience. If there is to be such a provision in England, Wales and Scotland it would seem only right that there should be at least the opportunity or possibility of reciprocity.

I believe however that the amendment standing in my name, which provides a role for the Secretary of State in the making of any regulations to define a practitioner for purposes of this clause, should be sufficient to satisfy the concerns which were expressed about the provision at Committee stage. I fully appreciate that it would not be appropriate for there to be a route by which non-lawyers could acquire rights of audience in Scotland which did not involve the Lord President. That is not what the clause now provides for of course with the reference in subsections (1) and (2) to the Secretary of State consulting the Lord President about regulations relating to conditions for practising.

A further safeguard is provided for by my Amendment No. 162 which will ensure that the Lord President is consulted before the Secretary of State makes regulations prescribing what "practitioner" means; namely, who in addition to lawyers could be covered. In answer to the noble and learned Lord, Lord Cameron, that is the reason why there appears to be a duplication of the definition. It is to allow the Secretary of State the opportunity to make the regulation covering that.

There are professions whose law and practice is essentially the same throughout the UK. For such professions the provision could be potentially valuable. Scottish clients should be able to choose to avail themselves of the services of such practitioners without unnecessary difficulty. The role of the Secretary of State and the Lord President will ensure that that facility is not extended in such a way as to prejudice necessary safeguards for clients. With that fuller explanation, I hope that the amendment will be withdrawn.

Lord McCluskey

My Lords, with the leave of the House, the amendment will certainly be withdrawn. However, I am happy that at last the noble and learned Lord has acknowledged in plain terms that the provisions of the clause go beyond the requirements of the EC directives. The only justification for the provision—and it is shabby and unworthy—is that there should be reciprocity. Reciprocity with what? It is with provisions contained in the Courts and Legal Services Bill which nobody on either side of the Border wanted and about which so far as I can tell nobody was asked. I know of no one who supported it, and the Government have failed to tell us of anyone who did so.

Lastly, although the clause will be better if the Lord President has to be consulted, consultation is not enough. It is all very well for the noble and learned Lord the Lord Advocate to assure us that the Secretary of State will do this or will not do that. Once the Bill has been passed and the Secretary of State is given power, it is not within the power of this Lord Advocate or the present Secretary of State to control those who exercise the powers in the future. The noble and learned Lord's guarantees are not worth very much. Disappointed though I am, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

10.45 p.m.

Lord Eraser of Carmyllie moved Amendment No. 162: Page 32, line 11, at end insert ("after consultation with the Lord President.").

The noble and learned Lord said: My Lords, this amendment is intended to meet the anxieties expressed during the Committee's consideration of Amendment No. 255ZA tabled by the noble and learned Lord, Lord McCluskey. In particular, it reflects a suggestion made by the noble Lord, Lord Mackie, whose patience seems to have worn out, who suggested that the Lord President should be consulted by the Secretary of State in making regulations under Clause 23 (6) (b). As I indicated at the time that suggestion struck me as reasonable and I therefore bring this amendment before the House to implement it. I am indeed grateful to the noble Lord for making the original suggestion and I acknowledge the Government's indebtedness to him for doing so. I beg to move.

On Question, amendment agreed to.

Lord McCluskey had given notice of his intention to move Amendment No. 163: Page 32, line 11, at end insert ("and such regulations shall include a requirement that such person shall satisfy the Lord President that he is a fit and proper person to have such a right of audience.").

The noble and learned Lord said: My Lords, in view of the previous observations by the noble and learned Lord the Lord Advocate, I have no confidence that he will accept this amendment. At this hour I do not propose to repeat the argument. Accordingly I do not move it.

[Amendment No. 163 not moved.]

Clause 24 [Rules of Conduct etc.]:

[Amendments Nos. 164 and 165 not moved.]

Lord McCluskey moved Amendment No. 166: After Clause 24, insert the following new clause: ("Duty to act for any client

1. —(1) Except in circumstances in which it would be unreasonable to require him to do so any advocate and any solicitor or other person who has a right of audience in any Court whatsoever shall be under a duty to act for any client or person who wishes to be his client (whether legally aided or not) in any Court in relation to which he exercises a right of audience provided only that such a client offers to pay him such fee as is reasonable or, if he is legally aided, such fee as is allowed by the Scottish Legal Aid Board.
2. (2) In the event of any disagreement as to whether or not any non legal aid fee tendered is reasonable, the Auditor of the Court of Session shall determine whether or not any fee offered is reasonable in all the circumstances.").

The noble and learned Lord said: My Lords, your Lordships will recognise that this is a reformulation with additions of a matter which was discussed fully in Committee. If the Government are still opposed to this general proposal, I do not intend to divide the House. However, your Lordships will see that this amendment extends to any court whatever the rule which the original amendment sought to enshrine. It contains particular provisions as to how the reasonableness of the fee is to be assessed. Therefore it is a different amendment to that put forward on the previous occasion. The main purpose in my putting it forward with my noble and learned friend Lord Morton of Shuna is to enable the Government to tell us what their thinking is on this matter.

We hear that in another place in connection with the Courts and Legal Services Bill a version of the so-called cab rank rule is or may be acceptable to Her Majesty's Government. We also hear it said, although I do not know the truth of the matter, that in relation to the Scottish Bill the Government are thinking of advancing a suitable provision. Indeed, they may already have done so, but it has escaped my notice. In the hope that the noble and learned Lord will answer my points, I beg to move.

Lord Macaulay of Bragar

My Lords, the amendment states: such fee as is allowed by the Scottish Legal Aid Board". The problem is that when legal aid is granted, the nature of the fee is not known for a considerable time except perhaps in a very complicated fraud case where a fee may be agreed in advance for preparatory work. However, under the present scheme it is impossible to say whether the fee is reasonable because that will not be known until the case has finished. I see that as a difficulty in the implementation of the clause were it to be accepted by the Government.

The second matter is that I should put on record—not advancing it on my own behalf—that I have been asked by the Law Society of Scotland to indicate that they are satisfied with the provisions of the new Section 25A of the Solicitors (Scotland) Act 1980 contained in Clause 21 of this Bill, and they are therefore not in favour of this amendment. I merely put that on record.

Lord Coleraine

My Lords, I am sorry that the noble and learned Lord should once again move this tired old cab rank—or cab horse—rule in a more grievous form than it was moved in Committee, on which occasion the Committee rejected it resoundingly. On that occasion, as your Lordships will recall, I did speculate as to what were the views of the Law Society of Scotland on the amendment then moved.

The noble Lord, Lord Macaulay of Bragar, indicated that his information was that the Law Society approved the amendment in the form then before the Committee. However, I think possibly the noble Lord was confusing the brief he may have had from the Labour Party with the advice he received from the Law Society, because so far as I am aware the Law Society of Scotland did not approve the amendment which was debated and voted on a few weeks ago and does not support this amendment.

I should refer to the position in the English courts Bill as I understand it. An amendment is to be moved in another place to preserve some of the effects of the cab rank rule, but in a form which is likely to be acceptable to the Law Society of England. The general effect will be that it will move away from any duty to represent all and sundry towards a prohibition against not acting in two specific circumstances. One of those is where the client or the case is objectionable to the solicitors or the public; the other is where there might be objection on the grounds of the manner of funding of the advocacy.

We therefore have a situation where in England we are moving away from the rigours of the cab rank rule towards something which will be acceptable. Certainly at no time when the Courts and Legal Services Bill has been before the House or the Committee has there been any suggestion that the cab rank rule should apply to all the courts and not just to courts where extended rights of audience are given.

In those circumstances I hope the noble and learned Lord will not press the amendment.

Lord Fraser of Carmyllie

My Lords, we have yet another version of the cab rank rule and it looks very different to the one that I understand is proposed for the Courts and Legal Services Bill. From the brief interventions there were from members of the legal profession on this side of the Border when we considered this matter at Committee stage, one point came through very clearly. Although it is sometimes described as a single rule of the cab rank, we are often speaking of very different matters, certainly from the point the noble and learned, Lord, Lord McCluskey, made earlier that practitioners of the Scottish Bar are expected to be generalists. From what I understood of what was said on the English Bill, that provision is nothing like so extensive.

The real point is the point raised by the noble Lord, Lord Macaulay. If we look to the provisions of Clause 21 or new Section 25A, we have been seeking to construct within that clause arrangements whereby the new breed of solicitor advocates will to all intents and purposes be bound by something that approximates very closely to the cab rank rule to which members of the faculty are subjected. What we have dealt with in terms of the order of precedence, the criteria and the requirements in Amendment No. 131—that the Lord President shall have regard to the desirability of there being common principles—seems to me to cover just the point at issue.

What I find difficult about this version of the rule is that on the one hand it seems to be remarkably onerous in its terms. It might, as I read it, impose on a solicitor who had never, from the time he qualified, stepped outwith his conveyancing chambers a requirement to appear in a district court in a distant and remote part of the country. It is in many respects, at first blush, an extremely wide requirement. On the other hand, it would appear that the let-out provision is very wide indeed and that all those anxieties might fall away.

From the way in which this part of the Bill has been approached there is no need or, indeed, desirability to try to set out the duty in these broad general terms. We know what is imposed on the Faculty of Advocates. There seems to be little dispute about that. I hope that with what we have in Clause 21, which introduces the new Clause 25A, solicitor advocates will be under no misapprehension about the duty imposed upon them.

Lord McCluskey

My Lord, I have no doubt that Members of another place will in due course consider what has been said by the Lord Advocate and the noble Lord, Lord Coleraine, tonight and compare that with what is said in relation to the so-called cab rank rule in the Courts and Legal Services Bill.

As I have already indicated, I do not propose to take the matter further and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 25 [Complaints in relation to legal services]:

[Amendment No. 167 not moved.]

Lord Fraser of Carmyllie moved Amendment No. 168: Page 33, line 33, leave out ("Confirmation Practitioners") and insert ("Executry Services").

The noble and learned Lord said: My Lords, in speaking to Amendment No. 54 I spoke also to this amendment. I beg to move.

On Question, amendment agreed to.

Lord McCluskey moved Amendment No. 169: Page 33, line 39, leave out ("an") and insert ("a practising").

The noble and learned Lord said: My Lords, the House will recall that in connection with a different matter a distinction was drawn between an advocate and a practising advocate. It appeared logical to me to refer in this definition of a practitioner to a practising advocate rather than an advocate; the distinction being that any person who is a member of the Faculty of Advocates can, with the permission of the dean, cease to practise almost at once provided he has no outstanding obligation which the ethics of the profession will require him to complete. Accordingly, I beg to move this amendment in the hope that the Government will either accept it or provide a reasonable explanation as to why it is not acceptable.

Lord Fraser of Carmyllie

My Lords, in my view this amendment is unnecessary as there is a definition of an advocate to be found in Clause 35 which slates that an advocate is, a member of the Faculty of Advocates practicising as such". The noble and learned Lord will appreciate that with that definition in the Bill his amendment is unnecessary.

Lord Macaulay of Bragar

My Lords —

Lord McCluskey

My Lords, I do not think that it is in the rules of the House for anyone other than the mover of the amendment to speak after the Minister has spoken.

In order to find out the answer to the question one must therefore study the definition in Clause 25 (5) and bear in mind the further definition in Clause 35. That seems to be an awfully convoluted way to do it. However, I accept that it works and accordingly I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 170 not moved.]

Lord Fraser of Carmyllie moved Amendment No. 171: Page 33, line 41, leave out ("Confirmation Practitioners") and insert ("Executry Services").

On Question, amendment agreed to.

11 p. m.

Clause 26 [Scottish legal services ombudsman]:

Lord Fraser of Carmyllie moved Amendment No. 172: Page 34, line 31, at end insert: ("(5A) The Secretary of State may by regulations extend the jurisdiction of the ombudsman by providing for this section to apply, with such modifications (if any) as he thinks fit, in relation to the investigation by the ombudsman of such categories of handling complaints as may be specified in the regulations with respect to the provision of executry services by persons other than executry practitioners within the meaning of section 20 of this Act. (5B) Without prejudice to the generality of subsection (5A) above, regulations under that subsection may make provision for the investigation of handling complaints with respect to particular persons or categories of person. (5C) Regulations under subsection (5A) above shall be made by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.").

The noble and learned Lord said: My Lords, I have spoken to this amendment in relation to Amendment No. 54. I beg to move.

On Question, amendment agreed to.

Lord McCluskey moved Amendment No. 173: Page 34, line 37, leave out ("or").

The noble and learned Lord said: My Lords, noble Lords will see that under subsection (6) of Clause 26 certain persons are disqualified from being appointed as ombudsman. We have already dealt on a previous occasion with advocates, solicitors and qualified conveyancers. However, the last group are people mentioned under paragraph (d): any member or employee of a professional or other body any of whose members has acquired any right to conduct litigation or right of audience by virtue of section 22".

As I understand it, it means this. If a body—it might be a very substantial body—decides to apply for these rights, all its employees and other members, whether they want the rights or not, are to be disqualified.

I believe that the noble and learned Lord the Lord Advocate might be persuaded to accept my amendment. I do not propose therefore to labour the point. I beg to move.

Lord Fraser of Carmyllie

My Lords, I am not prepared to accept the amendment as it stands. I agree in principle with the noble and learned Lord in the greater part of the amendment except as it relates to employees of conveyancing and executry practitioners. I believe it is right that members and officers of the board together with principals, partners and directors or senior staff of conveyancing and executry practitioners should not be eligible for appointment as the Scottish Legal Services Ombudsman. However, I do not think it is necessary to extend the restriction to all employees of practitioners. This approach would be consistent with existing requirements with respect to the lay observer. Solicitors and advocates may not be appointed as lay observers, but the restriction does not extend to the employees of a solicitor, however unlikely it might be that such an employee might be appointed to that post.

With that undertaking, I hope that the noble and learned Lord will withdraw his amendment. There will be a government amendment.

Lord McCluskey

My Lords, I am certainly happy to hear what the noble and learned Lord the Lord Advocate said. Nonetheless, I did not quite understand it. My amendment relates to page 34, line 37. I leave out the word "or". As the noble and learned Lord the Lord Advocate has rightly divined, the amendment is not very good. However, I am happy to accept what he says. I have no doubt that the Government will consider it in the light of what is obviously common sense, as the noble and learned Lord the Lord Advocate accepts. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 174 not moved.]

Clause 27 [Judicial appointments]:

Lord McCluskey moved Amendment No. 175: Page 34, line 45, after second ("sheriffs") insert (", advocates").

The noble and learned Lord said: My Lords, the amendment to Clause 27 relates to the period to be served by persons before they become eligible to be appointed as judges of the Court of Session and the High Court of Justiciary. It is a paving amendment. A later amendment provides that the period of qualification should be 15 years in the case of advocates and solicitors who are otherwise qualified to be appointed to the High Court. It is a paving amendment to allow that provision.

We are conscious that that involves a change from the provision of the Act of Union. However, everyone is agreed that one would not wish to appoint a person as a judge of the High Court or of the Court of Session, even from the ranks of the most distinguished advocates or solicitors, unless he had undertaken this period of service. It is our tradition that one undertakes a period of service as a practitioner. The measure enables one to become qualified to serve as a judge of the higher courts. It is in effect a paving amendment for what is to come later. I beg to move.

Lord Fraser of Carmyllie

My Lords, I have listened to the noble and learned Lord on this occasion as I listened to him when we dealt with precisely the same matter on an earlier occasion. I recognise that, at least in recent years, those advocates nominated for appointment as Court of Session judges have practised for 20 years or more at the Bar. In view of that, it might appear that the present statutory provision for a period of five years, is indeed unrealistically low. Given what I acknowledge is the practice, I can see the logic of the argument.

However, there are other considerations. It is the Government's policy that in respect of each judicial vacancy the best fitted candidate should be appointed. If, as has happened in the past, the only real candidates for appointment to the Court of Session Bench have been men—regrettably, not as yet men and women—who have spent their entire career at the Bar, then no harm would result if the minimum eligibility period was to be increased to 10, 15 or even 20 years. While no doubt that path to the Court of Session Bench will continue to be the main one for many years to come, I do not think it would be in any way correct to make provision such as it must in effect be the only one. To do so would be inconsistent with the policy that on each occasion the best fitted candidate should be appointed.

It is not difficult to construct an elaborate curriculum vitae of someone who might be appointed to the Court of Session Bench. It might be someone who has spent time in the academic world in Edinburgh and has also spent some time to develop his experience and abilities in a European context. I conclude that, as it has worked satisfactorily in the past, I do not see that there would be any point in altering it now.

Lord McCluskey

My Lords, we shall no doubt return to the matter if so advised when we come to deal with the schedule and the connected amendments. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord McCluskey had given notice of his intention to move Amendment No. 176: Page 35, line 1, leave out subsection (2).

The noble and learned Lord said: My Lords, this is an important amendment which has a constitutional dimension. It is almost 11.10 p.m. For important reasons I do not intend to develop my argument tonight. Fortunately, the argument and submission can also be raised in relation to Amendment No. 244. I propose not to develop the matter tonight for that reason. It is a matter of some importance and one on which I have consulted all the judges of the Outer House of the Court of Session. It is a matter with which I shall deal with some sadness when we come to Amendment No. 244. In the meantime, in the absence of my noble and learned friends Lord Morton of Shuna and Lord Cameron of Lochbroom, who have departed, I do not intend to raise the matter at this late hour. I shall raise it again when we reach Amendment No. 244.

[Amendment No. 176 not moved.]

Lord McCluskey moved Amendment No. 177: Page 35, line 1, leave out ("the appointment of").

The noble and learned Lord said: My Lords, this is a highly technical amendment. Paragraph 4 of Schedule 3 relates among other things to the fact that the senior judge is no longer to preside as a matter of right. The person to preside in the Inner House or in an extra Division shall be the person who is directed by the Lord President to preside. From my reading of the statute that has nothing to do with the appointment of members of the Inner House or the appointment of a Lord Ordinary to be the Lord Ordinary in exchequer causes. Accordingly, it appears to me that the words "the appointment of" do not embrace that provision in the schedule. Therefore, for technical reasons they ought to be deleted from the statute. I beg to move.

Lord Fraser of Carmyllie

My Lords, we have had the opportunity in our debate to discuss an amendment to leave out subsection (2) of Clause 27 and to consider the appointment of Outer House judges to the Inner House. It may be of assistance for me to explain the reasoning with regard to Clause 27(2)(b), to which the present amendment would refer.

Section 3 of the 1988 Act provides that one of the judges of the court who usually sits as a Lord Ordinary shall be appointed by the court, by Act of Sederunt, to act as Lord Ordinary in exchequer causes. Appointment by the court by Act of Sederunt is a cumbersome way to make such an appointment. Paragraph 4 (3) of Schedule 3 therefore amends Section 3 of the 1988 Act to provide that instead of appointment being by way of the court by Act of Sederunt the appointment of the Lord Ordinary in exchequer causes will be made by the Lord President. As such, it is a minor but useful change to the existing procedures, and it is essentially procedural. With that slightly complicated explanation, I hope that the noble and learned Lord will be able to withdraw his amendment.

Lord McCluskey

My Lords, I think that the Lord Advocate perhaps had his mind and indeed his head elsewhere when I addressed myself to this amendment and missed the point I was making. However, I am sure that he will read it, and if it is technically sound he will consider introducing an appropriate amendment. I do not propose to repeat it because it is rather technical, and it has nothing to do with the exchequer causes at all. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord McCluskey had given notice of his intention to move Amendment No. 178: Page 35, line 6, leave out subsection (3).

The noble and learned Lord said: My Lords, I put down this amendment because I needed to consult the noble and learned Lord, Lord Emslie, about it. Your Lordships may recall that at Committee stage it was argued that the appointment should be made by the Lord President, and the Lord Advocate said that there was a constitutional reason for the provision as it is. I do not propose to differ from the Lord Advocate on that, and accordingly I do not propose to move this amendment.

[Amendment No. 178 not moved.]

The Deputy Speaker (Lord Cocks of Hartcliffe)

My Lords, before Clause 29, and not numbered on the Marshalled List, Amendment No. 178A.

Lord Macaulay of Bragar moved Amendment No. 178A: Before Clause 29, insert the following new clause: ("Review of legal services The Secretary of State shall keep under review the extent, if any, to which needs for legal services are not being met and where any such deficiencies are found shall make appropriate provision.")

The noble Lord said: My Lords, this is a fairly short amendment but an important one. It reads: The Secretary of State shall keep under review the extent, if any, to which needs for legal services are not being met and where any such deficiencies are found shall make appropriate provision.

The purpose of the amendment is to place a duty on the Secretary of State to act where citizens have inadequate access to legal services. The citizen can only get access to the courts through representation and advice, and it is important that that should be kept under review.

There are important areas of legal advice and activities that are not covered by legal aid. Industrial tribunals are a classic example. Employees often go unrepresented while employers can engage expert solicitors. The provisions of Part V of the Legal Aid (Scotland) Act in relation to the power of the Scottish Legal Aid Board to employ solicitors to advise agencies in their work, and give other advice to clients of those agencies and promote contacts between advice agencies and local solicitors in private practice, and other provisions in that section, have not been implemented. It would be of great assistance to the voluntary organisations if such power could be brought into play.

The objective behind the amendment is to have a review, and a regular review, and not simply to sit back once the Bill becomes an Act and say, "Let us see how it works out in years to come. " This is really meant to imply a constant review to see that citizens get proper access to the courts through the present legislation. I beg to move.

Lord Fraser of Carmyllie

My Lords, I must ask the House to resist this amendment, which would put my right honourable friend the Secretary of State under a statutory duty which, on one interpretation, appears very onerous and yet on closer inspection might appear to be so general as to be meaningless. My right honourable friend is already very active in securing the broad availability of legal services in Scotland.

Legal aid annual expenditure in Scotland is over £60 million, which is 100 per cent. more than 10 years ago. Almost 300,000 accounts for legal aid and legal aid advice and assistance were paid in the last year. There is also in hand a review of eligibility for legal aid which will, it is hoped, lead to better targeting of the scheme on those who need help or advice when involved in legal proceedings. That comprehensive review of the way that legal services are provided which was conducted between 1987 and 1989 and of which this part of the Bill is the outcome is further demonstration of his responsibilities. I have already indicated to the House the steps that we propose to take to monitor the impact of the legislation on the availability and accessibility of legal services, especially in rural areas. Those are specific and practical steps which we have taken or will take. The amendment is, however, asking the impossible.

I do not know what is meant by "needs for legal services". I am sure that the noble Lord appreciates that it is an imprecise term which has a strong subjective slant. As there is no possibility of making a precise assessment of the need in that context, it would be inappropriate to put the Secretary of State under the type of statutory duty described in the amendment. There are many better ways of furthering the administration of justice. The Bill takes many positive steps in that direction.

Lord Macaulay of Bragar

My Lords, I am grateful to the Minister for that reasoned reply. I am pleased to hear—I am sure that it will be noted in the quarters affected by those activities—that the eligibility review will be of assistance. We look forward to hearing in due course the outcome of the inquiries. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 30 [Availability of legal aid in relation to services provided under this Act]:

Lord Fraser of Carmyllie moved Amendment No. 179: Page 37, line 9, leave out from ("of") to ("conveyancing") in line 10 and insert ("executry services by executry practitioners and recognised financial institutions and convevancing services by").

The noble and learned Lord said: My Lords, I spoke to this amendment when speaking to Amendment No. 54. I beg to move.

On Question, amendment agreed to.

Lord Fraser of Carmyllie moved Amendment No. 180: Page 37, line 12, leave out ("18") and insert ("19").

The noble and learned Lord said: My Lords, I spoke to this amendment when speaking to Amendment No. 117. I beg to move.

On Question, amendment agreed to.

Clause 32 [Advisory and supervisory functions of the Director]:

Lord Fraser of Carmyllie moved Amendments Nos. 181 and 182: Page 37, line 38, after ("(11)") insert ("or 17 (10)") Page 37, line 40, leave out ("or 17 (10)")

The noble and learned Lord said: My Lords, I spoke to Amendments Nos. 181 and 182 with Amendment No. 54. I beg to move.

On Question, amendments agreed to.

Lord Fraser of Carmyllie moved Amendment No. 183: Page 37, line 41, leave out ("or (2)")

The noble and learned Lord said: My Lords, this is a minor consequential amendment. I beg to move.

On Question, amendment agreed to.

The Earl of Strathmore and Kinghorne

My Lords, I beg to move that further consideration on Report be now adjourned.

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