AS AN AMENDMENT TO COMMONS AMENDMENT NO. 123 (Hansard, 25 October 1990)

§ Lord McCluskey
My Lords, I beg to move Amendment No. 123D. With this amendment we move to a different point to which I hope the noble and learned Lord the Lord Advocate will be able to respond. Subsection (5) of the new clause is designed to create a rule which has been called the cab rank rule. In the Courts and Legal Services Bill it has been called the non-discrimination rule, that term having been introduced by the noble and learned Lord the Lord Chancellor. It seeks to apply that rule to the barefoot pleaders, to the non-legally qualified persons who are granted rights of audience under Clause 23.
On the face of it that is an absurd provision. The first item which is dealt with in the subsection is rules: stating the order of precedence of courts for the purposes of this subsection". Does the Lord Advocate want the House to believe that any person that he has in mind or any body that
1593 he has in mind will envisage appearing in courts of such a differing variety that the order of precedence will matter? I refer to the example of Murgatroyd and Company, which has already been mentioned by the Government and to the patent agents who may want to appear in a patent court. Presumably the adoption agency may want to appear in a sheriff court dealing with adoptions and the social workers may want to appear in the small debt court or something of that kind if they are granted rights of audience. What is the point of having elaborate provisions about the order of precedence of courts for the purposes of this subsection?
The whole concept of instructions is absurd. Subsection (5) (b) refers to, general criteria to which members of the body should have regard in determining whether to accept instructions in particular circumstances". From whom do these instructions proceed? I have raised this point although in a different context. When counsel appears in court he receives instructions from a solicitor. When a solicitor appears in court he receives his instructions from his client. Is the concept of accepting instructions really meaningful in this context?
Subsection (5) (c) refers to, securing, through such of their officers as they think appropriate, that, where reasonably practicable, any person wishing to be represented before any court by one of their members holding an appropriate right of audience is so represented". What is meant by "their officers"? Some bodies, whether they be professional bodies or other bodies, might have officers, but does Murgatroyd and Company have officers? How does this provision apply to the likes of such companies? I simply do not understand it. When one seeks to apply the cab rank rule to the barefoot pleaders under Clause 23, one begins to see yet again, from a different perspective, the absurdity of the whole provision. I have sought leave to move this amendment to the Commons amendment in order to draw attention to that. It is right that I should deal with Amendments Nos. 123E and F now in order to save time. I heard what the noble and learned Lord the Lord Advocate said about rules. I do not propose to press that matter. Therefore, when the time comes I shall not seek to move Amendment No. 123E.
As regards Amendment No. 123F, I have to deal with that by asking noble Lords to look at the proposed Amendment No. 123. Subsection (5) concludes with the words, and, for the purposes of such rules, that is the rules for the order and precedence of the courts— 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 Inner House of the Court of Session is the highest appeal court in Scotland. The Outer House consists of judges sitting as judges of first instance. There is a difference between the Inner and Outer Houses. As regards the High Court of Justiciary, 1594 judges who are Members of the College of Justice sit as Lord Commissioners of Justiciary in the High Court of Justiciary conducting trials or dealing with preliminary matters. They sit as single judges with or without juries in some circumstances. The High Court of Justiciary exercising its appellate jurisdiction sits as groups of three judges.
It is obvious that one has to have some rule that differentiates between the High Court of Justiciary sitting as a court of first instance, and the High Court of Justiciary exercising its appellate jurisdiction. I do not understand the omission. Accordingly, I have tabled Amendment No. 123F which seeks to insert the words, the High Court of Justiciary sitting as a court of first instance". The only hope that I have is that the Government are finally acknowledging here that they cannot contemplate any barefoot pleaders acting in the High Court of Justiciary as a court of first instance, whether it is a trial or a preliminary stage, or exercising the nobile officium the noble office of the High Court. I wait to hear what the noble and learned Lord the Lord Advocate has to say.
Moved, That Amendment No. 123D, as an amendment to Commons Amendment No. 123, be agreed to.—(Lord McCluskey.)

§ Lord Morton of Shuna
My Lords. it seems that there is a great deal of sense in Amendment No. 123F. As the noble and learned Lord will no doubt recognise, at the moment there is continual trouble about precedence between counsel conducting trials before a single judge of the High Court and clashing with their duty in the Court of Appeal or in the appellate jurisdiction. Unless these people are not to have any rights to conduct cases before the High Court as a court of first instance, it is necessary that they should be dealt with on that basis. If they are not to have the right to conduct cases before the High Court as a court of first instance, it is difficult to see why they should conduct appeals in the appeal court.
In the new clause at subsection (5) there is a basic misconstruction. The first two lines state Where a person holding a right of audience in any court … is instructed". There is no sense there of accepting instructions or having any choice in the matter. He receives a letter which says "I instruct you to appear". Then he has something to do. In subsection (5) (b) there is the question of an element of choice as to whether he accepts those instructions. There is a grammatical or semantic divergence there. As it appears in the first two lines of subsection (5) is it meant to be that there is no choice? Instructions will be received and that is it. Alternatively, as suggested in subsection (5) (b), is there some element of choice? If there is, what is it?

§ Lord Macaulay of Bragar
My Lords, I support what has been said about the omission of the High Court of Justiciary sitting as a court of first instance. Is it an error which has made deliberately to see if we can spot it? As the noble and learned Lord, Lord 1595 Morton, said, there is little point in giving a person the right tc appeal to the appeal court because by the time a person has reached that stage the damage has usually been done in the court of first instance. The appeal court is there to rectify wrongs which might have been done. If these rights of audience are to be given at all, they should be given throughout the legal hierarchy, if I may call it that, from the bottom to the top, if that is what the Government wish.

§ Lord Fraser of Carmyllie
My Lords, I can only repeat the point that I have already made. If one looks at Clause 23(17) as it existed in the Bill when it left your Lordships' House, with only one exception it is identical to the provision that is now to be found in subsection (5). The only amendment is one that was insistec on by the noble and learned Lord, Lord McCluskey. It has been accepted by the Government as being appropriate; namely, that it is not for this body to establish the order but to state it.
The situation appears to be the same whatever the noble and learned Lord says. I repeat my point that essentially there has been no change other than on the issue of stating instead of establishing. I am slightly puzzled by what he said concerning the High Court of Justiciary and that court exercising its appellate jurisdiction. If that is a point that needed to be made —I may say that I have some difficulty in seeing that any order of precedence needs to be set because I thought the position was clear enough—we have agreed that such an order should be established, and here it is.
Clause 22 deals with the rights of audience and order c f precedence that is to be set for solicitors who might have rights of audience. There, too, it is for the council of the Law Society to set out what are the rights of audience and the precedence. The provision in the last four lines of Clause 22(6) is identical to that established in subsection (5). If the noble and learned Lord's point was of great importance logically he should have been driven to saying that a similar amendment should have been made at an earlier stage.
There is no difficulty here as to how the Inner and Outer Houses of the Court of Session are treated as separate courts, with the High Court of Justiciary exercising its appellate jurisdiction. That is to be treated as a separate court. It is separate in that capacity from its capacity as a court of first instance. I do not see that there is any great difficulty.

§ Lord McCluskey
My Lords, the noble and learned Lord may be right and Clause 22 is wrong as well, though we have missed that. I missed many things that I would have wished to change when I went through the Bill. The point is a very straightforward one. If a distinction is drawn between the Inner and Outer Houses of the Court of Session—in other words, the court of first instance and the court of appeal—and precedence given to one over the other, then logically one must do the same in relation to the High Court of Justiciary. Furthermore, by omitting to differentiate between the High Court of Justiciary in its first instance role and its appellate role, one also commits the error of omitting it in its first instance role.
1596 Therefore, one cannot get a precedence between the court in its first instance role and the Inner or Outer House of the Court of Session.
The noble and learned Lord the Lord Advocate should recognise that this is a mistake which, unfortunately, was missed in Clause 22. Because of the way in which this matter came before the House I do not think it was possible to recognise and pick up that mistake. However, the mistake has been picked up in relation to the new clause before Clause 24. The noble and learned Lord the Lord Advocate and his draftsmen have simply got this matter wrong. The present provision is not going to work. He should respond to that. That is an intervention. I shall avoid speaking again in any formal sense.

§ Lord Fraser of Carmyllie
My Lords, I am grateful to the noble and learned Lord for his intervention. I was about to conclude my remarks by pointing out that this matter first arose in relation to Clause 22(6). If my recollection is accurate, he made the point in Committee that we ought to set out on the face of the Bill what was the order of precedence. It was in direct response to that request that this order of precedence was set out. As I understand it, when it left the House there was no concern or disagreement about it and no indication was given at that time that we had in any way set out the provision so that the drafting was defective. I am bound to say that I do not accept even now that there is anything defective in the drafting.

§ Lord McCluskey
My Lords, as I stand on my feet now I am looking at the original Clause 20 which is the forerunner to the present clause. I do not see the defect there. It must have crept in along with a great mass of other amendments either on Report or in Committee, and because of the way those stages were dealt with —we have made many complaints about that —we appear to have missed it. I believe that the noble and learned Lord the Lord Advocate is not prepared to accept this amendment to the Commons amendment. I wish only to draw attention to the error, and in the circumstances I beg leave to withdraw the amendment.