COMMONS AMENDMENTS (Hansard, 24 October 1990)

§ The Lord Chancellor
My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 47 to 50.
The amendments deal with the question of solicitors' clerks, which was the subject of some discussion while the Bill was in your Lordships' House. I undertook to try to solve the problem. It turned out to be somewhat more intractable than I had thought but I believe that there is now a satisfactory solution. It has also been possible to make provision for the people who may provide clerks' services in London and who are not employed by solicitors in London but who act under instructions. We have tried to take account of those in a way which I believe is satisfactory.
Moved, That the House do agree with the Commons in their Amendments Nos. 47 to 50.—(The Lord Chancellor.)

§ Lord Hutchinson of Lullington
My Lords, I should like to ask the noble and learned Lord what are the implications of this amendment, because they concern me. Am I right in thinking that the result of Amendment No. 47 will be that part-time unqualified clerks of any sort or description, so long as they are acting under instructions, will have the conduct of bail applications before Crown Court judges? When that amendment is combined with Clause 88, the unqualified clerk is specifically allowed to have the conduct of bail applications for the Crown Prosecution Service. The result will be that these matters, which affect the liberty of the subject and the safety of the public, will be conducted on both sides by unqualified clerks—unqualified laymen.
I wonder whether I am right in the view that these proceedings, as the noble and learned Lord the Lord Chancellor will appreciate, often result in people who are later acquitted or not given a custodial sentence, being kept in custody, so swelling the prison population. We must bear in mind that at this very moment the Woolf Inquiry is investigating why so many people are sent to prison on bail who should not be so sent. I wonder whether the result of this amendment is merely to make the position worse than it has been hitherto.

§ Lord Renton
My Lords, before my noble and learned friend replies, I should like to endorse what the noble Lord, Lord Hutchinson, said. I am particularly concerned by the words "or in part". That could mean a very tenuous and very slight degree of employment. The idea that somebody can be brought in, perhaps ad hoc, just for getting a right of audience in a particular case seems a rather strange proposition. I wonder whether my noble and learned friend can explain and justify it.

§ Lord Mishcon
My Lords, I may be wrong, and if so I may be rapped over the knuckles, but I read these amendments as relating to civil proceedings, giving what we used to call a managing clerk—or an executive, as he is now called—in a solicitor's office, whether employed full or part time, exactly the same facilities in the county court in chambers as he has always had in the High Court. I should have thought that it is almost an a fortiori argument that if he had that in the High Court he ought to have it in the county court.
However, whether I am right or wrong perhaps I may make a further point which I promised the noble Lord, Lord Hacking, I would bring forward. When the Bill was before the House he was responsible for the amendment which sought this provision, and I had the privilege of supporting him. He wanted me to tell the noble and learned Lord the Lord Chancellor how glad he was to see this amendment. Perhaps I may add one or two sentences further. It will not be more than that. We are trying to put through a Bill which deals not only with the efficiency that the legal profession is supposed to exercise but also with the economies it ought to effect for members of the public. If we try to stop experienced executives from conducting work in county court chambers as they do in the High Court, it will be a sorry day from the point of view of trying to effect economies.
I know that some circuit judges at the moment, on a plea from some rather unkind counsel, have been moved to say that they will not hear managing clerks or executives in chambers in their county courts. If this amendment is carried, as I hope it will be, I trust that the noble and learned Lord the Lord Chancellor will see to it that the provisions are brought into effect as soon is possible.

§ The Lord Chancellor
My Lords, the amendment relate; to proceedings being heard in chambers in the High Court or a county court. Certainly I should regard that as applicable to civil proceedings. I cannot see that bail applications in the Crown Court would be covered under this heading.
It is important to remember the responsibility of the solicitor under whose instructions the person is acting. The general rule in the High Court appears not to have been completely general in the sense that there were certain family proceedings in which solicitors' clerks were not generally allowed to appear. That is why we had to make provision for the reserved family proceedings, which complicate matters slightly.
As the noble Lord, Lord Mishcon, said, we are simply extending to the county court the provision which has been recognised for a long time as a result of a decision in the High Court making it a matter of right that the solicitor's clerk should be heard. That is the point in question and that is the purpose of this amendment.

§ Lord Hutchinson of Lullington
My Lords, before the noble and learned Lord sits down, I am sorry to have to say that in Clause 25 the wording says that a person shall have, a right of audience before a court … in relation to any proceedings".

§ The Lord Chancellor
My Lords, the noble Lord must read the amendment. It is related only to situations in which the proceedings are being heard in chambers in the High Court or a county court. So the amendment is qualified in that respect. In the rest of the clause generally we are talking about other matters, but this particular passage is restricted. We are talking only about chambers proceedings in the High Court or the county court and not generally.
Your Lordships may remember that we tried to set out a section listing the rights of audience and the way in which that matter would be dealt with. There was a little clause at the very end recognising as an exception the rights of solicitors' clerks in High Court chambers to be heard on the basis of the decision of 1903, or whenever. That is what founded the discussion with the noble Lords, Lord Hacking and Lord Mishcon. The question was whether that should be extended to the county court. That is what this measure is about. It is completely restricted by subparagraph (e) (ii) to proceedings that are there referred to. The generality of the clause deals with much wider matters.