§ 29A Sub-paragraph (iii), line 4, after ("support") insert ("(which shall constitute the offer of a proper fee)").
§ Lord Campbell of Alloway
My Lords, I beg to move Amendment No. 29A. At the outset I thank my noble and learned friend the Lord Chancellor for his courtesy in correspondence and discussion on this subject. It is not easily resolved by any formal amendment on the face of the Bill either in the public interest or in the interest of upholding the traditions of service and parity of treatment in both branches of the legal profession.
Notwithstanding certain observations made by Mr. Attorney at Report stage of the Bill in another place, to which I shall refer shortly, it is understood that my noble and learned friend the Lord Chancellor has always accepted as a matter of broad principle that he is anxious on rights of advocacy to ensure parity of treatment between the two branches of the profession on the obligation to undertake legally aided work. My noble and learned friend the Lord Chancellor has always accepted and recognised the importance and value of self-regulation by the authorised bodies.
My understanding from what has been said today by my noble and learned friend is that the difference between us does not lie so much on matters of principle but in the means of implementation which are proposed in Amendments Nos. 29 and 32, which as yet (lave not been considered by your Lordships. In my judgment, for what it is worth, they are neither appropriate nor acceptable. If the means of implementation are to be the machinery of self-regulation to ensure parity of treatment as regards obligations to accept legally aided work, so be it. On such an assurance there is perhaps no need for Amendment No. 29A, to which I speak; but without such assurance this amendment is apposite as a safeguard against the use of Amendment No. 32 as a resort or device to seek to refuse legally aided work on the ground that the fees offered are not acceptable.
The fees offered under legal aid lie within the province of government. The acceptability lies within the province of the authorised bodies. As a matter of the mechanics of self-regulation, if the authorised bodies accept the fees offered as proper, it must not be open to members of that body to refuse to accept legally aided work on the grounds offered by Amendment No. 32. That would be an abuse. At the moment, the position is wide open.
When the Bill left your Lordships' House it was understood that Clause 15(3) (d) made appropriate provision. However, that was removed during the 1388 Committee stage; a decision reflected in Commons Amendment No. 31. What is now paragraph (iii) in Amendment No. 29 was substituted for Clause 15(3) (d). However, again the effect of these provisions has not yet been considered by your Lordships' House.
At the Committee stage in another place Clause 15(3) (d) was removed and paragraph (iii) substituted, but on Report Mr. Attorney acknowledged that concern had been expressed as to the interpretation on whether paragraph (iii) of Amendment 29, as it now is, could allow the authorised body to have rules which permit an individual advocate to refuse to act on grounds relating to the amount of remuneration offered—what I have sought to stylise as abuse under Amendment No. 32.
Mr. Attorney put the Government's position briefly in this way. He said that there could be no statutory obligation to undertake legally aided cases no matter what level of remuneration was payable. He said that the essence of the provisions of the Legal Aid Act 1988, dealing with remuneration, was to empower the Lord Chancellor to set rates which are just enough to attract lawyers to do the work. He said that a rule framed to impose an obligation on the cab rank principle not to refuse legally aided work would not be acceptable. To that end, Amendment No. 32 was introduced which enables the advocate to refuse the legally aided case.
This approach, which applies to Clause 15 by Amendment No. 29 to the rules of all bodies whose members are or will be providing advocacy services, assuredly includes both branches of the profession. However, questions arise and, indeed, arose in another place. How does this affect the principle that if a barrister is offered a brief within his field of practice he should take it irrespective of whether or not it is legally aided? How will this approach impinge broadly on legal aid work in the public interest? Will an advocate be able to decline legal aid work simply because the legal aid rates are below and lower than his private rates? Are legal aid rates, whether fixed or settled by taxation, enough to attract lawyers to do the work? Such questions were asked in another place (at col. 596 of Hansard) but as yet do not appear to have received any satisfactory or wholly comprehensive answers.
However, since Mr. Attorney dealt with this matter and, I suggest, failed to give any comprehensive or satisfactory answers, it is known that only a small percentage of solicitors intend to exercise extended rights of advocacy. The number of solicitors willing to accept legal aid work is, I understand, on the decline. The financial constraints are such as to reduce the rates still further. Moreover, the Bar has changed its rules to ensure that the adequacy of legal aid fees is now a matter for the professional body as a measure of safeguard for our traditions.
It is in the public interest that legal aid should be sufficiently funded and that both branches of the legal profession should be obliged to undertake legal aid work within their fields of practice, subject to the approval of fees by the professional bodies, and that the adequacy of the fees should be a matter between 1389 government and the authorised body. Never in any circumstances, if fees are acceptable to the authorised body, should they be a matter upon which the individual member of the body could refuse to do the work. There must be a level playing field.
I tabled Amendment No. 31—to which I shall speak briefly as it is grouped—to afford an opportunity for further discussion on how to avoid abuse under Amendment No. 32 by opting out of legally aided work on the ground of an inadequate fee. It affords an opportunity to discuss how, as a matter of mechanics, the principle of self-regulation shall be directed generally, in broad terms of parity of treatment, to ensure that Amendment No. 32 is not so abused.
My hope is that in the light of your Lordships' contributions, my noble and learned friend the Lord Chancellor will be able to give satisfactory assurances on how, in practice, this may be achieved without the need to write it into the face of the Bill. It is a matter of public interest which also concerns the honour and traditions of the legal profession. I speak for no one but myself. I beg to move.
Moved, That Amendment No. 29A, as an amendment to Commons Amendment No. 29, be agreed to.—(Lord Campbell of Alloway. )
§ Lord Renton
My Lords, I welcome the statement made by my noble and learned friend the Lord Chancellor when moving Amendment No. 29. I broadly agree with it. As to the points made with great sincerity by my noble friend Lord Campbell of Alloway, I do not see the difficulties that he has attempted to describe arising from what was said in another place at Report stage. My right honourable and learned friend the Attorney-General answered various questions.
For the sake of the record, I shall remind your Lordships what those answers were. In doing so, I shall be grateful if the noble and learned Lord the Lord Chancellor can confirm the answers which were given. The Attorney-General said:What is claimed to be a reasonable ground can be the subject of an objective test, and it will fall to those who comprise the machinery to determine whether or not it is satisfied in a given case". [Official Report, Commons, 25/7/90; col. 595.]My noble friend referred to what was asked of the Attorney-General and the reply is quite clear. He said:It does not follow that because legal aid rates may be lower than some private rates, legal aid fees are not to be regarded as proper fees. All the circumstances must be considered. I have identified some that will be of general application, but all the circumstances of the case would have to be looked at and the objective test of reasonableness would then have to be determined. That would he for the new machinery". [col. 596.]I hope that that clarifies the matter for my noble friend Lord Campbell of Alloway, and that it assures him that, whatever else may be said about his amendment, those remarks make it unnecessary. I believe that the wording of his amendment would also 1390 cause some conflict and doubt with what appears before and after if we accept all the Commons amendments.
My noble and learned friend the Lord Chancellor has already made clear that detailed rules of conduct will deal with these issues including the way in which the objective test of reasonableness is to apply. He said that it will be for the new machinery to consider those rules of conduct. Those who operate the new machinery will be reporting to the Lord Chancellor. If they find that the rules of conduct do not comply with the test of reasonableness, and so on, then rights of audience will not be granted.
While we are considering this matter, it is right that we should assure ourselves that what is provided for the cab-rank rule in the Law Reform (Miscellaneous Provisions) (Scotland) Bill will be broadly the principle that will apply south of the Border. I am sure that all noble Lords will agree that professional standards should be as high south of the Border as it is intended that they should be north of it. I am paraphrasing the Scottish Bill accurately. It requires the Lord President, who will operate the machinery there, to have regard to the desirability of there being common principles applying to rights of audience by all practitioners before the Court of Session and the High Court of Justiciary.
I am not certain, because I have not followed the Scottish amendments right through in another place, but it appears that the provision applies to the Court of Session and the High Court of Justiciary only. However, here, thanks to the enlargement proposed by the Government and accepted in another place, that rule will apply to all solicitors, barristers and people applying for rights of audience in all courts. I ask my noble and learned friend the Lord Chancellor to give an assurance that in England and Wales common principles will be expected to apply to all those who are to have rights of audience.
I can summarise the position by saying that I feel that the Government, with the help of outside bodies and as the result of very diligent consideration since the Bill left your Lordships' House, have now got it right in regard to the cab-rank rule. Therefore, I very much hope that my noble friend Lord Campbell of Alloway will feel reassured and that Amendment No. 29 and the other Government amendments that go with it, will be acceptable to your Lordships.
§ Lord Hutchinson of Lullington
My Lords, I have misgivings about these amendments. I cannot help feeling that what the noble Lord, Lord Renton, has said is the wish being father to the thought. There are a number of questions that I wish to ask the noble and learned Lord the Lord Chancellor in order to set my misgivings apart. I agree with a great deal of what the noble Lord, Lord Campbell of Alloway, has said.
When the amendment moved by the noble Lord, Lord Alexander, was accepted by this House it was made very clear that the authorised body was to give practitioners the right of audience in the superior courts. I appreciate the Lord Chancellor's efforts to make it universally applicable. That provision must 1391 embody the principle of the cab-rank in the rules of conduct and put on the advocate a positive duty to abide by that principle so long as the requirement was reasonable, the fee proper, and the case fell within the field of practice of the advocate. Above all, the duty was covered in relation to the legally-aided client. Now, as regards advocates practising in the superior courts, that fee arrived at under the Legal Aid Act is deemed by its very nature to be a reasonable fee. It is only the professional body that can hold that the fee is unreasonable. In other words, the decision is not the decision of the individual advocate. If the fee is considered to be unreasonable, that is a matter for the professional body to take up with the authorities. It is the professional body which guarantees the independence of the advocate.
I was a little sad to hear the noble and learned Lord say today that the market will operate with regard to legal aid fees. I found that to be a long way from the amendment of the noble Lord, Lord Alexander, which was accepted by this House so long ago. That amendment has gone and Amendment No. 29 is substituted. In that amendment, no principle is referred to and no duty laid on the advocate is referred to. The amendment provides instead that the body must in its rules make satisfactory provision requiring members not to discriminate. That is a negative obligation as opposed to the positive duty at present in the Bill. There is also an escape clause based on the insufficiency of the fee.
Does this cover the obligation? An advocate who says that he will not appear for a member of the Peerage, for someone who is rich, for someone who has been to a public school, or that he will not appear for other such reasons, does not appear to fall within the words of Amendment No. 29. On the serious matter of the escape clause, Amendment No. 32 now provides:Rules of conduct which allow a member of the body in question to withhold his services if there are reasonable grounds for him to consider that, having regard to—On the face of it, that appears to drive a coach and horses through the great principle set out by the noble Lord, Lord Mishcon, in a remarkable speech, one which we shall always remember, on the amendment of the noble Lord, Lord Alexander. He said that anyone who wishes to exercise the privileges of an advocate must at the same time accept the burdens. The greatest burden an advocate has to accept—and by far the most constitutionally important burden—is the cab rank rule. It is now said that in the circumstances set out in Amendment No. 32 it is not to be considered incompatible if an advocate says that he refuses the legal aid case because there are reasonable grounds for him to say that he is not being paid a proper fee.
he is not being offered a proper fee, are not on that account to be taken as being incompatible with the general principle".
- (a) the circumstances of the case;
- (b) the nature of his practice; or
- (c) his experience and standing,
The noble and learned Lord argued that, if an advocate says on not unreasonable grounds that a fee 1392 is insufficient, the matter will be dealt with by the body itself. It seems to me in my innocence that all the body will do is lay down its rules following the language of the statute exactly. Where an advocate says, "In my firm the partners have five or six figure salaries to recognise the responsibilities which they carry. We cannot work in this firm under a charge of £500 an hour and so one of our partners cannot possibly go into court for £50 an hour under a legal aid brier, the rules will follow precisely the language of the statute and the body will uphold that attitude. If that is the position, it does not seem to me that the committee can possibly come into the matter on an individual fee. Once it has agreed the rules—it will not be possible for it to disagree the rules if that language is followed—any individual will be able to say that a fee is insufficient.
The result will be that legal aid cases will only be taken by those at the bottom of the pile of advocates. Throughout one's experience as an advocate one has fought all the way through for the principle that the poorest in society, and those involved in the most objectionable and most unpleasant case on the face of it, should have the services of high quality advocates. Such people should not be reduced to having only the lowest form of advocacy. I ask those questions of the noble and learned Lord because I have the gravest misgivings about where these amendments will take US.
§ 6.30 p.m.
§ Lord Alexander of Weedon
My Lords, I should like to start by paying tribute to the words expressed in support of the principle both by my noble friend Lord Campbell of Alloway and my noble friend, as I think of him for these purposes, Lord Hutchinson of Lullington. All those who have taken part in the debate on this issue share that common aspiration. Where I hope I am correct in differing slightly from them today is not as to the principle but as to the fears which they have expressed over the effect of the Commons amendments.
My noble and learned friend the Lord Chancellor obviously considered with very great care the amendment passed by this House. It was passed against the initial views of the Government but not, I suspect, against many of the sentiments which my noble and learned friend actually holds. As a result of that consideration, my noble and learned friend has said today that parliamentary draftsmen were given immensely hard work. As the author of the amendment, perhaps I may apologise for that exceptional burden placed upon them.
It was the intent of the clause—and I believe it may have been the intent of this House in passing the clause —that it should convey very simple principles. Perhaps I may repeat the principles which, as I understand it, this House intended to enact. The first was that advocates should act for all-comers, as we put it, regardless of the popularity of their cause, either generally or to the individual advocate. We call that in modern parlance the cab rank rule. My noble and learned friend today called it the non-discrimination rule. There is nothing between us on 1393 the principle. It is the principle for which Thomas Erskine, my noble and learned friend's illustrious predecessor from north of the Border, stood, and as I understand it, it is the principle which my noble and learned friend has sought to accept in the amendment he puts forward. Thus—perhaps my noble and learned friend will be kind enough to confirm this—some of the concerns of the noble Lord, Lord Hutchinson, about whether an advocate would act for a member of the Peerage or for someone who had been to a public school would, in the light of the terminology of the Act, become misconceived. As I understand it, the Commons amendment seeks to enshrine the non-discrimination provision.
The second principle that we sought to enact was that in general advocates would undertake legal aid work. We sought to enact it not as an absolute obligation but as an obligation that was to be subject to exceptions, those exceptions to be formulated by the machinery after considering draft rules of conduct and submissions from the various branches of the profession and (let us not forget them) from representatives of the public.
As I understand it, the reason my noble and learned friend has approached it in a different way is not because he has disagreed with the principle this House sought to carry but rather he has thought he ought to put that principle in the Act in somewhat more precise language. Therefore, as I understand it, my noble and learned friend does not intend to derogate at all from the view that in general there should be a responsibility upon advocates to accept legal aid work unless good cause is shown.
Having said that—because that was the intent of the original amendment which my noble and learned friend has sought to make more specific—perhaps I may say that I was very heartened to hear my noble and learned friend indicate that fears which had been expressed that whole firms would be able to opt out of legal aid advocacy work were misconceived. Those fears were expressed because it has undoubtedly been true that, in regard to that legal aid work which is currently done by solicitors, many firms of solicitors have opted out. Many of the large City firms of solicitors will not touch it. I gave an illustration on the Scottish Bill of a reputable solicitor from the Midlands who indicated that if his firm had to do legal aid work it would not touch advocacy. Therefore I was heartened to hear my noble and learned friend say that that approach would not be one which the profession would be entitled to adopt.
The noble Lord, Lord Hutchinson, expressed the fear that all the advisory machinery would have to do would be to rubber stamp the legislation, leaving it to individual advocates to decide how to apply the principle. As I understand the situation from what my noble and learned friend said this afternoon, it is intended that the test of reasonableness should be an objective one. As I also understand it—perhaps my noble and learned friend will be good enough to confirm this—the intent is that the machinery shall scrutinise the rules of conduct of the various branches 1394 of the profession or of those other bodies which apply to give advocacy services, and see whether those rules of conduct contain appropriate provisions with regard to the undertaking of legal aid work. If the rules of conduct do not and would leave this as a very leaky vessel indeed, then the machinery would be obliged to seek to enforce the principle which, in a different way, this amendment has sought to enforce.
Perhaps I may add one word to what has been said by my noble friend Lord Renton, who said that he hoped and understood that common principles would apply across the profession. That is the intent in Scotland. The noble Lord, Lord Mishcon, said as much, I think, when he took part in the debate when we first discussed this amendment at an earlier stage. I am paraphrasing him and he will correct me if I am wrong, but he said he thought that those who sought to have a privilege should adopt the burdens that went with that privilege. I note that the noble Lord assents to that and I am very grateful to him, because that is in accordance with the highest standards he has always practised.
If that approach is adopted—namely, that in general there is the obligation to do legal aid work and that we take a standpoint of common principles for advocates as a whole—I believe that the fears expressed by my noble friend Lord Campbell of Alloway and the noble Lord, Lord Hutchinson of Lullington, are misconceived. We felt the original amendment would have had this effect, but on the basis that it is the intention of the Government to secure the principle of the original amendment but to put it in more precise and better language, I would be content to accept the amendment.
§ Lord Hacking
My Lords, I had not anticipated, when your Lordships were considering this matter at an earlier stage, that I should be standing in your Lordships' House, as I am now, to tell your Lordships that I am as a solicitor in the City of London currently conducting a case under a legal aid certificate. Such is my generosity towards the Legal Aid Fund that I may not even claim the legal aid fees in this case.
This has been a vexed and difficult matter for both sides of the legal profession. The noble and learned Lord, in producing this amendment, has produced an amendment which I believe is widely welcomed by both sides of the profession. It is very heartening to hear the views of the noble Lords, Lord Alexander and Lord Renton, speaking in support of the noble and learned Lord's amendment. Therefore I am very happy to do so personally and also to express the view of the Law Society, because I believe that the noble and learned Lord has truly found something that is fair to both sides of the profession and above all is fair to the litigant. For that reason, I support the amendment.
The only other matter I must mention is in the nature of a personal apology because I may not be able to stay with your Lordships until the end of the debate. However, if your Lordships are still sitting very late in the evening I shall return to try to be of some assistance.
§ Lord Simon of Glaisdale
My Lords, the classic statement of the so-called cab rank rule was made by Erskine in the Tom Paine trial. It was quoted in earlier proceedings on this Bill. I think my noble and learned friend performed a felicitous service in giving that a new soubriquet: the non-discrimination rule. The cab rank rule is perhaps too banal a term for a principle of such high constitutional importance. That high constitutional importance was emphasised by my noble and learned friend in his evidence to the Royal Commission on Scottish Legal Services.
It was rationalised in a number of notable speeches in your Lordships' House, and I hope it is not invidious for me to mention particularly that of my noble and learned friend Lord Oliver, who put it on the bas s that the Bar had been exercising privileges in having a monopoly of access in orders to the High Court. It was because of that that the emphasis earlier was on High Court proceedings. What the noble and learned Lord, Lord Oliver, said was that such a privilege imports a duty; and it was the duty to carry out the non-discrimination principle that ran through all the discussion on the so-called cab rank or non-discrimination rule.
Again, I hope it will not be invidious if I mention that the noble Lord, Lord Hutchinson, by his practice has exemplified how that principle should be accomplished in the courts, in a way that carried the admiration of anybody who was concerned with justice in the courts. The other person I mention has already been adverted to; namely, the noble Lord, Lord Mishcon. He departed slightly, if not considerably, from the apprehension of where the Law Society and solicitors might find themselves if the non-discrimination rule or the cab rank rule was applied to them. The noble Lord said roundly, "We shall have new privileges. We must accept the concomitant responsibilities". That struck your Lordships as a most noble pronouncement and a most hopeful one for the future of the scheme.
Legal aid has brought a most significant new dimension to the cab rank rule. The Bar—indeed, the legal profession generally—has always felt it its duty to see that poor people are represented. Until 1948 that was done by the proceedings in forma pauperis. It is now of immense importance that the legal aid scheme should succeed. It should be the duty of all who enter into the process of justice to see that it does succeed. It seems to me that what the Bar Council has done is of great value in that respect and I hope that all other professional bodies will follow suit. I personally much prefer what is in Clause 22 —the equivalent clause—of the Scottish Bill. However, it seems to me that, provided that the Law Society and other professional bodies follow the spirit of what the noble Lord, Lord Mishcon, pronounced, the legal aid scheme is safe in the new dispensation. It is the duty of anyone who has anything to do with the law to ensure that the cab rank rule —the non-discrimination rule —is firmly and comprehensively extended to cover all legal aid proceedings.
My Lords, I shall confine my remarks to one amendment which is grouped with this series of 1396 amendments; namely, Commons Amendment No. 31. I shall speak also to the Motion of my noble friend Lord Campbell of Alloway that the House do disagree with the Commons in their Amendment No. 31.
Commons Amendment No. 31 seeks to delete a clause in the Bill. My noble friend seeks to maintain that clause in the Bill. The clause in question reads:whether, as regards rights of audience in any of the superior courts other than those exercisable by solicitors (in their capacity as solicitors) immediately before the 7th December 1989, that body's rules of conduct include provisions embodying in appropriate terms, and with any appropriate exceptions, the principle that, except in circumstances in which it would be unreasonable to require him to do so, an advocate practising in any of those courts is under a duty to act for any client (whether legally aided or not) in cases within his field of practice".I think that the Commons have got it right and that my noble friend has got it wrong.
§ 6.45 p.m.
§ The Lord Chancellor
My Lords, I am grateful for the discussion that has taken place on this amendment of my noble friend Lord Campbell of Alloway because it has enabled us to look at the matter covered by the group of amendments that I introduced with Amendment No. 29.
I should like to address myself first to the way in which the point was put by the noble Lord, Lord Hutchinson of Lullington. This amendment is not the whole story. It relates to a provision which requires that qualifications should include the person beinga member of a professional or other body which—(i) has rules of conduct (however described) governing the conduct of its members"—those are the rules with which we shall be concerned in the later amendment—(ii) has an effective mechanism for enforcing those rules of conduct; and(iii) is likely to enforce them".In other words, it will not be open to the Lord Chancellor and the other designated judges to approve rights of audience, for example, with regard to a professional body, unless there is evidence that the body has an effective means of enforcing the rules and that it is likely to enforce them. Where a rule of conduct is applicable, it will not ultimately be for the member to decide whether he obeys the rule of conduct. The rule of conduct will be enforced.
The amendment with which we are concerned, like the amendment that my noble friend Lord Alexander of Weedon moved when the Bill was before the House on Report, relates to the content of the rules of conduct. Perhaps I may follow my noble friend Lord Alexander in saying that, once the House had determined that his amendment should be agreed, I felt that, if at all possible, I wished to give effect to it. I wished to give effect to it more generally for reasons that I have explained; namely, that, if it is a principle of justice, it should apply in all courts, not just in the superior courts. I believe that that point is generally accepted. The noble Lord, Lord Hutchinson of Lullington, certainly accepted that. That was the first change that I was anxious to make.
1397 Because it was a matter of general principle, the second change that I was anxious to make was to have it stated as a general principle; that is to say, without exceptions of any kind. The difficulty is that one must examine closely what the principle is because, in a sense, it is easier to get away with allowing exceptions —leaving it to the machinery—than it is to state what the essence of the rule is. We have tried here to state what the essence of the rule is. With regard to the legal aid point, I should like to draw the attention of the noble Lord, Lord Hutchinson, to the fact that we are trying to describe matters in respect of requiring a member not to withhold those services. That is the duty. The rule must place a duty on the member not to withhold his services on any of those grounds. We have tried to encompass in general terms the various grounds that were likely to occur in practice. We did not think particularly about a person attending a public school, but it would be covered by the phrase:the conduct, opinions or beliefs of the prospective client".The whole appearance, as it were, of a client is intended to be included in that.
The second matter to which I want to draw attention is the third heading which states:on any ground relating to the source of any financial support which may properly be given to the prospective client for the proceedings in question (for example, on the ground that such support will be available under the Legal Aid Act 1988)".It is the existence of that provision which led me to say what my noble friend asked me to say when I referred to the solicitor in the Midlands to whom he referred in his speech on the Scottish Bill. That is the general provision.
On the question of fees, we have sought to provide a basis on which the rules of conduct can be examined to see whether they are compatible with the general principle. That is quite a difficult question. The principle as stated in the passages to which I referred is stated on the premise that a proper fee will be tendered. There must therefore be something in the statement of principle that deals with that point.
New subsection (5) refers to:Rules of conduct which allow a member of the body in question to withhold his services if there are reasonable grounds for him to consider".That is why I say that it is an objective test. It is not just a matter of what his opinion is. He must be able to show that there are reasonable grounds for his opinion regarding those three aspects of the matter.
Before the advisory committee and the designated judges approve any rules, they will have to consider carefully whether the rules of conduct conform to that test; in other words, that the rules of conduct are consistent with the test set out throughout the amendment. It will be for the designated judges ultimately to consider whether the approved rules of conduct make proper provision for testing whether an individual has reasonable grounds for considering that those are circumstances that apply in his case, and then, if and when the rules of conduct are approved, it will be for the professional body with the 1398 responsibility for enforcing the rules to see that those rules, as approved, are enforced. That is what the Attorney-General said in answer to questions on that matter put to him in the other place. That is fairly plain. What we have done is to analyse the substance of the principle which underlay my noble friend's amendment and put it into the Bill as an unqualified principle alongside the other principle.
Something has been said about the Scottish Bill and its provisions. I am always of course highly appreciative of the standards north of the Border. I should not like to see any difference in professional standards on either side of the Tweed. The principles to be followed are not stated in the Scottish Bill, whereas, in this Bill, in response, it would be fair to say, to observations made in the debate on the Green Paper, I felt it wise, if possible, to state general principles. Those general principles will apply the conduct of litigation, to everyone who is to conduct litigation and to everyone who is to have advocacy rights under the Bill. They are the principles. I do not have to rely upon a statement that the principles shall be common principles. Here are the statements of principle set down in detail. It is an amount of detail, thanks to my noble friend's amendment, to be applied in settling what the rules of conduct are to be which governs those two aspects of the provision of legal services. I believe that that is the correct balance.
One of the factors to be taken into account is that, in setting the level of legal aid remuneration, the Lord Chancellor is required to have regard to the number of people properly qualified to do the work at the proper level. That involves a degree of freedom for the profession to decide whether what is offered is acceptable in the way that has been developed. In the Bar's most recent code of conduct we have seen how that has been done.
It will be essential for any professional body which wishes to secure rights of audience for its members in any of the courts to produce rules of conduct which conform with those principles and to make satisfactory provision in the eyes of the designated judges to achieve those provisions. It will then be for the professional body to enforce them, remembering that the designated judges will not grant rights of audience to any professional or other body unless they are satisfied that the provisions will be enforced.
For those reasons, we have carried out fully and in detail the principle contained in my noble friend's amendment. There is no need for him to apologise. I just wanted to place on record the work done by parliamentary counsel. It was important and highly difficult work, as the amount of time various people had to spend on it showed; but I hope that in the end it has proved to be valuable work, and that it will be valued as a clear statement of principle. After all, to many people the meaning of the phrase "cab rank rule" is not immediately apparent. We have tried to analyse it in such a way as to make it apparent to all through the clear, unequivocal and unqualified provisions, as I believe they will be, of the amended clause, if your Lordships approve the Commons amendment.
§ Lord Campbell of Alloway
My Lords, I am grateful to my noble and learned friend the Lord Chancellor for the care and trouble he has taken in dealing with the amendment. I am grateful also to all noble Lords who have contributed to this interesting debate which I hope your Lordships will feel has served a useful purpose. There is a considerable degree of justified apprehension about abuse of Amendment No. 32; but having listened with care to the closing speech of my noble and learned friend the Lord Chancellor, which will serve as formal guidance on record not merely for the rule-makers but for the advisory body, I hope that your Lordships will think that it would not be appropriate to take the opinion of your Lordships' House I beg leave to withdraw the amendment.
Amendment, No. 29A, as an amendment to Amendment No. 29, by leave, withdrawn.
§ Lord Mishcon
My Lords, I have only one small point to raise. It is only for clarification on Amendment No. 29. I hope that the noble and learned Lord will, in his usual lucid way, make easier the task of those bodies which will draw up rules applicable to Amendment No. 29. A person is not to withhold his services, according to paragraph (ii),on the ground that the conduct"—conduct" is the word that I wish to emphasise… of the prospective client [is] unacceptable to him or to any section of the public".A commonsense interpretation of the word "conduct" would mean conduct in relation to the particular case in respect of which the person concerned is a prospective client. I envisage a gentleman in the waiting room who is a prospective client until I see him and whose conduct is such that he destroys my waiting room and makes a great noise in my firm. I am then expected to see him as a prospective client. He tells me that he has studied the wording of the Bill and I am not allowed to refuse him as a prospective client by virtue of his conduct. That shatters me.
I am aware, as I said, that the commonsense interpretation of the word should be that it is conduct in relation to the case with which I should be required to deal for him, but I hope that the noble and learned Lord will make that position abundantly clear so that there is no misunderstanding.
§ Lord Alexander of Weedon
My Lords, I understand the point that the noble Lord, Lord Mishcon, makes; I sincerely hope that it is not based upon experience. I wonder whether the point that he raises might narrow too much the definition contained in the clause. The clause, as I understand it, refers to alleged conduct in relation to the case and not merely to actual conduct and is intended to cover broad aspects of a person's behaviour or characteristics such as those raised by my noble friend Lord Hutchinson.
§ Lord Hutchinson of Lullington
My Lords, it concerns me as to how the words "conduct, opinions or beliefs" will cover the advocate who says, "I will not act for someone who is poor". He may say that he will not act for someone who does not live in his city, and other such things. Those situations do not seem to be 1400 covered by this provision at all. Seriously speaking, those are the kind of remarks that lawyers may make. For example, they may say that they will not act for people under the age of 21.
§ 7 p.m.
§ Lord Irvine of Lairg
My Lords, I wonder whether we should have added to this provision words referring to a client's status or condition as well as to the,conduct, opinions or beliefs of the prospective client".
§ The Lord Chancellor
My Lords, we spent a large amount of time on this matter on a previous occasion. It is extremely difficult to make an absolutely watertight statement on it. However, if we consider the matter as it is recorded in reported cases and in the classical statements of it, the principal heads are those mentioned in this provision.
Your Lordships will recall that the rules of conduct are to be approved by the designated judges. The hands of the designated judges are not tied except that they must ensure that the rules of conduct make satisfactory provision that these grounds for withholding services are not lawful under the machinery. We discussed this a long time ago. When I spoke about the rules in February, I said that the considerable detail in them is for the machinery to consider. I was not against the rules, but I appreciated that they were very detailed. The more we have discussed this matter, the more satisfied I feel that that was at least a stateable ground for the position that. I took up.
However, this measure prevents the mechanism from approving a rule in which a prospective client's conduct could be regarded as a basis for not accepting a brief. It would not prevent the mechanism from outlawing other conduct. Therefore if there was any apprehension in a particular professional body to object to particular classes of person independent of their "conduct, opinions or beliefs", it would be possible for the mechanism of the designated judges to take account of that.
The noble Lord, Lord Mishcon, kindly gave me notice some time ago of the point that he wished to make this evening. I have had the opportunity of consulting parliamentary counsel on that matter. It appears to me that the conduct in question is the conduct in respect of the client at the stage when he is still a prospective client. It is not a matter of his conduct during the case. If a client were to refuse to accept a solicitor's advice, that might be a ground for not continuing with the brief in some circumstances. However, generally speaking, a client's conduct should not be a ground for refusing to take a brief. It is his conduct as a prospective client that the lawyer who is offered the brief considers at the time when the client is still a prospective client. Therefore I do not see why a person who has broken up a lawyer's waiting-room should necessarily be refused advocacy services for all time. If such an event were to occur in the premises of the noble Lord, Lord Mishcon, the person concerned might be greatly in need of a good advocate and should be entitled to seek such services.
1401 Although I understand the point that is being made here, I must say with great respect that I do not think it is a sound one. The word "conduct" refers to the client's conduct at a stage when he is still a prospective client.
§ Lord Mishcon
My Lords, I hope that the noble and learned Lord would not expect me to defend a man who had destroyed my waiting-room.
§ The Lord Chancellor
My Lords, I know how strongly the noble Lord is bound to the cab rank rule. There may be some good ground of defence available to a person who broke up the waiting-room. The man may have been unduly provoked or he may, for example, have had some mental or physical defect which caused the trouble. The mechanism is entitled to consider whether satisfactory provision has been made in relation to these matters. I believe that the experience of the designated judges taken together will be sufficient to cope with problems of the kind that the noble Lord has mentioned.
§ Lord Simon of Glaisdale
My Lords, before my noble and learned friend finally sits down, I hope I may ask him about a case which I have seen reported. It concerned a firm of solicitors with strong feminist affiliations. Among the clients of that firm was the oddly named Women Against Rape organisation. By reason of the existing clientele of that firm, it was reported that the firm had declared it would not accept instructions from people accused of rape. Would such a situation be covered by the provision?
§ The Lord Chancellor
My Lords, we knew of that case when we formulated these grounds. My noble friend Lord Alexander of Weedon was, of course, correct to point out that we are talking about alleged conduct and not necessarily conduct that is proven. The firm of solicitors in the case referred to was basically saying that the alleged conduct was unacceptable to a section of the public. That kind of objection would be covered in relation to advocacy services which is what this provision deals with.
§ On Question, Motion agreed to.