COMMONS AMENDMENT (Hansard, 24 October 1990)

§ The Lord Chancellor

My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 29. I think it would be helpful to the 1384 House if I took the opportunity to explain in some detail the effect of the amendments which were moved in another place on my behalf by my right honourable friend the Attorney-General; and which, if your Lordships approve them, will replace the provisions introduced into the Bill after the debate in this House on 20th February when your Lordships carried into the Bill an amendment moved by my noble friend Lord Alexander of Weedon.

The Government reached the view in the light of your Lordships' decision that it would be right that a statement relating to the matter of the cab rank rule should be included within the general principle.

After the debate on 20th February I remained concerned that Clause 15 of the Bill should contain a general principle; that is, a principle unqualified by exceptions or derogations. As it left this House, Clause 15(3)(d) applied only to: rights of audience in any of the superior courts other than those exercisable by solicitors (in their capacity as solicitors) immediately before the 17 December 1989 and was stated, on the face of the Bill, to be subject to "any appropriate exceptions". I was keen to achieve, if possible, a formulation which could apply to all advocates in all courts—as this is a matter relating to justice—and which would be a real statement of principle not compromised by unclear and general references to appropriate exceptions without some guidance as to what they might be.

As a result of our putting a good deal of work and time, with, I should say, exceptional help from parliamentary counsel, into obtaining what seems to be a suitable formulation to achieve this, what appears in the Commons amendments to Clause 15 should be a principle of universal application which will apply in all courts and to all advocates, solicitor or barrister, employed in partnership or in independent practice. Having studied carefully the historical origins of the rule (which go back to the turn of the 14th century), I concluded that the cab rank rule is more accurately described as a principle of non-discrimination. It may be stated as requiring that an advocate holding himself out as generally available must not decline to act on the ground that the nature of the case is objectionable, or that the conduct, opinions or beliefs of the prospective client are unacceptable to him or to any section of the public. Equally, he must not decline to act on any grounds relating to the source of any financial support which may properly be given to the prospective client for the proceedings in question. That principle, which exists both to protect the client against having to prove his case to his own representative, and to protect the advocate from association with the case he is pleading, should in the Government's view henceforth apply to all those whose profession consists in the provision of advocacy services.

Any professional body seeking new advocacy rights for its members will be required to provide detailed rules which conform with the general principle including of course subsection (5). It will be for the 1385 mechanism established under the Bill to decide what those rules should be for any particular body, and then for the body to enforce the rules so decided upon.

I must say a little about the subject matter of Amendment No. 29A to this amendment, proposed by my noble friend Lord Campbell of Alloway. The substance of that matter is dealt with in subsection (5). There is no doubt in my mind that an advocate has always been able to stipulate a proper fee for his services: one need look no further for authority for that proposition than the statement of Lord Reid in the case of Rondel v. Worsley which was quoted by, among others, my noble and learned friend Lord Ackner on 20th February. There is no doubt about the position and duties of a barrister or advocate appearing in court on behalf of a client. It has long been recognised that no counsel is entitled to refuse to act in a sphere in which he practises, and on being tendered a proper fee, for any person however unpopular or even offensive he or his opinions may be, and it is essential that that duty must continue: justice cannot be done and certainly cannot be seen to be done otherwise It is the case, as we all know, that in many instances solicitors and barristers now receive their fees not from the client they represent, but rather from the Government via the Legal Aid Fund. Such clients (and this is of course why the fund exists) are typically those who would find it difficult to meet the cost of litigation themselves. Because of this, it has been suggested that advocates should be placed by the statute under an absolute duty to act for such clients, to ensure that they do not go unrepresented.

I cannot accept that view. The Government believe that the best mechanism for determining the correct level of payment for any practitioner is the way in which the market operates in the provision of those services. We all know that the legal profession competes for private clients; and there is no reason why that principle should be changed in respect of publicly-funded work. So under the approach which Parliament approved in the Legal Aid Act 1988, it must be for each individual advocate to decide whether the rates on offer under the legal aid regulations for the time being in force are appropriate for him to undertake such cases. Only by that means can we ensure that the money paid out under the scheme represents the best possible value to the taxpayer.

There is, moreover, another reason why I could not agree to impose a statutory duty upon advocates to undertake legal aid cases. To illustrate it I can do no better than to quote the comments of David Latham QC, the draftsman of the latest Bar code of conduct, who was quoted in the Independent newspaper on 12th February as saying in relation to the formulation of the code: There is a presumption that the barrister must take work. Any refusal will have to be justified". He goes on to make other comments, with which I need not trouble the House in view of the way the matter has developed.

Mr. Latham continued, 1386 The problem as we saw it was that if we departed from the principle that a barrister is entitled to refuse work if it is not properly paid, that would permit the Government to hold a pistol to our heads. I do not think that I or my successors should be handed a pistol, whether by the Bar or by anyone else for use in the periodic consultations I conduct over the rates payable under the legal aid regulations.

I also mention a point raised by my noble friend Lord Alexander of Weedon in the House when discussing the Law Reform (Miscellaneous Provisions) (Scotland) Bill on 2nd April. He referred to an encounter with a solicitor from the Midlands who was hoping to set up an advocacy department but had said in relation to it: There is no way we will do that, if it involves having to undertake legal aid work. Under the terms of these amendments, that Midland solicitor will not, of course, be able to refuse to accept clients merely because their source of financial support is the Legal Aid Fund, since a legal aid fee can be a proper fee, even if it is lower than a private one. Indeed the precise effect of the third limb of Amendment No. 29 is to require the advisory committee, the Lord Chancellor and the designated judges to ensure that no professional body whose members offer advocacy services has rules which would allow a refusal on that ground. What such rules of conduct must allow, however, is that an advocate may, if there are reasonable grounds for him so to do, decline to act where, having regard to the circumstances of the case, the nature of his practice or his experience and standing, he is not being offered a proper fee, whether by the client directly or by the Government on his behalf.

There has been some discussion of how the existence of such reasonable grounds will be tested. There is a limit to what I can say now without pre-empting the outcome of the discussions which will take place under the new framework. Detailed rules of conduct providing for the application of objective tests of this issue appropriate to particular circumstances will be required to give effect to this part of the general principle. Here, of course, we are particularly concerned with the application of this test to advocacy services supplied to legally aided clients. Such rules of conduct will be matters for the new machinery to consider together with the way in which they are enforced. The application of these rules of conduct by individual advocates in deciding whether to take on particular cases will then be a matter for individual professional bodies to enforce.

I have taken this opportunity to explain in some detail why I am asking your Lordships to agree to Commons Amendment No. 31, but I do not think that any of what I have said is any longer the subject of significant debate in the profession. The Government consulted closely with both the Law Society and the Bar Council in framing the amendments, and also with the consumer organisations who were very concerned with these matters at the time. I should like to take this opportunity of thanking them for the time they gave and their patience in trying to reach a 1387 conclusion on this important matter which has resulted in the Commons amendments. I commend the amendments to the House.

For the purpose of dealing with these matters properly I shall move only Amendment No. 29. I beg to move.

Moved, That the House do agree with the Commons in their Amendment No. 29.—(The Lord Chancellor.)