AS AN AMENDMENT TO COMMONS AMENDMENT NO. 122 (Hansard, 25 October 1990)

§ Lord McCluskey
My Lords, I beg to move Amendment No. 122C. Your Lordships will see that this amendment seeks to impose upon the Secretary of State and the Lord President an obligation, when considering the provisions of any scheme which a body has drafted which allows its members to exercise its rights of audience in the courts of Scotland, to have regard to the interests of justice. In fact, the words in the amendment are: to promote the proper and efficient administration of justice". I was astonished—and I put it no higher—to hear the noble and learned Lord say. when he sought to deal with these matters all together, that those words 1584 were in some way inappropriate. If the noble and learned Lord asked from where I had obtained the words, it was from the Courts and Legal Services Bill which was considered yesterday in this House.
The appropriate clause of that Bill is Clause 15(3) which states: As a general principle the question whether a person should be granted a right of audience, or be granted a right to conduct litigation in relation to any court or proceedings, should be determined only by reference to"— and paragraph (c) states: whether that body's rules of conduct are, in relation to the court or proceedings, appropriate in the interests of the proper and efficient administration of justice". Having found those words in that Bill, I thought that it was sensible and proper that they should be inserted also into the Scottish Bill where they are dealing with exactly the same situation; namely, what is appropriate in relation to the scheme of a body whose members are to be granted rights of audience.
In the light of that explanation, although the noble and learned Lord the Lord Advocate has already spoken to this, I ask him to explain why these words lifted straight from the English Bill and appropriate in that Bill and approved by this House yesterday should be omitted from the Scottish Bill.
Moved, That Amendment No. 122C, as an amendment to Commons Amendment No. 122, be agreed to—(Lord McCluskey.)

§ Lord Cameron of Lochbroom
My Lords, my noble and learned friend seems to have a point here. Certainly, the spirit of the amendment is sensible as regards any consideration which the Lord President and the Secretary of State should look to when considering a draft scheme because it must fit into the functions of the court or courts. In that, as in other matters, I should have thought that the promotion of the proper and efficient administration of justice is a first and foremost principle.

§ Lord Fraser of Carmyllie
My Lords, when dealing with this previously I made reference to the criteria to be found set out in subsection (4); namely, in considering the draft scheme the Lord President and the Secretary of State shall have regard as to whether the provisions of the draft scheme are such as—(a) to achieve; and (b) to ensure the maintainance of, appropriate standards of conduct and practice by persons who may acquire rights to conduct litigation or rights of audience". Set in the context of a duty to ensure that there is a maintenance of standards of conduct and efficient practice in the courts, I should have thought that we were in such circumstances dealing with the proper and efficient administration of justice as things stand at present. In the circumstances, whatever may be contained in the English Bill, subsection (4) is sufficient for the purposes of any scheme which comes before the Lord President and the Secretary of State.

Lord McCloskey
My Lords, the noble and learned Lord the Lord Advocate has not addressed himself to my point. In the English Bill, in Clause 15, the provisions include the matters which are currently in the new Clause 24; namely, appropriate standards of conduct and practice and so on. There are other matters, but the provisions certainly deal with qualifications, rules governing conduct, effective mechanisms for enforcing those rules of conduct, the likelihood of their being enforced and various other matters of that kind.
The general principle which I quoted from subsection (3) is a principle which applies throughout the Bill. I take the point made by my noble and learned friend Lord Cameron of Lochbroom, which I did not want to repeat, that the whole purpose of the courts, and I hope those who practise in them, is to serve the public interest and the interests of justice. If that is seen as a general principle which this House approved for the exact equivalent provision in the English Bill, it should be approved for this Bill.
I am sure that the Government can accept that position. I know it is an embarrassment to accept any amendment to a Commons amendment, but there is still one week to go. I should have thought that this was one amendment the Government would be able to accept. For that reason I intend to press the amendment.

§ Lord Campbell of Alloway
My Lords, I took an active part in seeking to have this clause inserted in the English Bill, and there is no need to repeat the arguments. They are on record. It is a crucial matter of consideration. It is in accordance with the general intendment of the Bill. I respectfully support the amendment.

§ Lord Fraser of Carmyllie
My Lords, perhaps I may make one further point. While the intervention of colleagues from this side of the Border is always welcome, it will be appreciated that the structure of the Courts and Legal Services Bill is in many respects very different in the way some principles are set out and expressed. I still have some difficulties understanding the point. While I accept that the Secretary of State, and possibly even more importantly the Lord President of the Court of Session, will want to promote the proper and efficient administration of justice—if he does not I do not know why he is in the chair—I should have thought that that was such an underlying part of his role that what we provided for in Clause 4, in saying that he should put together a scheme which will achieve and ensure maintenance of appropriate standards of conduct and practice by persons, was sufficient to meet the ends. I regret to have to say to the noble and learned Lord that if he presses the amendment I cannot accept it.