COMMONS AMENDMENT (Hansard, 18 July 1994)

Earl Ferrers
My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 86. I shall speak also to Amendment No. 126. The amendments deal with Section 102 of the Police and Criminal Evidence Act 1984 which accords to police officers the right to be legally represented when any disciplinary action is taken against them which could result in their dismissal, a requirement to resign or a reduction in rank.
As your Lordships will be aware, the Government had proposed originally the repeal of Section 102 of the Police and Criminal Evidence Act 1984. The proposed repeal was removed from the Bill by your Lordships and the Government now accept that a measure of this type should be included in statute law. Section 102 as it stood, however, would not have permitted the introduction of the new disciplinary procedures. Its wording included a reference to specific charges. Nor would it have accorded legal representation to officers at risk of being dismissed, required to resign or reduced in rank on grounds other than discipline. The redrafted Section 102, whose inclusion in the Bill is suggested by this amendment, corrects those faults while otherwise differing little from the current version, and I commend it to your Lordships.

§ Lord Renton
My Lords, I am sorry to have to say that I think a mistake has been made in the amendment. If your Lordships look at subsection (2) of the new Section 102, you will see that it says: Where an officer makes an election to which subsection (1) above refers"— that is, an election to be legally represented— he may be represented at the hearing, at his option, either by counsel or by a solicitor". The question that I must put to my noble and learned friend the Lord Chancellor, who is head of the judiciary to which both branches of the legal profession are answerable, is: bearing in mind that it is not normal for counsel to appear, even in proceedings of this kind, unless instructed by a solicitor, why is it that the subsection appears to enact that a police officer cannot be represented both by a solicitor and counsel?
Of course if I have mistaken the effect of the wording, all will be well; in other words, if the subsection means by counsel or by a solicitor or by both we should have nothing to worry about. But that is not what it says. This is the one point which, it seems to me, should be taken back to another place to be resolved. I shall go on talking for a little so that the matter can perhaps be resolved in your Lordships' House.
Perhaps I may remind your Lordships that it is still the rule and the practice, except on rare occasions, that counsel not only expect to be instructed by a solicitor but ought to be instructed by a solicitor. Many counsel, especially leading counsel and busy juniors, are too busy to draw up instructions themselves and obtain them from the lay client. They rely upon a solicitor, and sometimes a solicitor's clerk, to enable the instructions to be properly prepared. They are sometimes instructions which involve the obtaining of statements from witnesses and sometimes even affidavits. Therefore it is important, so that there is no confusion, and so that justice may be done and police officers may be properly represented, that it be made clear that counsel may be instructed by a solicitor.

§ Lord Hailsham of Saint Marylebone
My Lords, I do not know whether in order to test it I may put an idea into my noble and learned friend's mind. I have already told my noble friend Lord Renton privately that he is right to raise this matter, but might not the answer to his question be that the subsection deals with representation at the hearing, and at the hearing the client is not represented by counsel and solicitors; he is represented by counsel instructed by a solicitor. If that is right, then the clause as drafted by another place is correct.

Earl Ferrers
My Lords, I thought that my noble and learned friend Lord Hailsham made a. peculiarly helpful intervention. The whole purpose is not to alter the current practice but to provide for the way in which people are to be represented at a hearing. Representation will be either by a counsel or a solicitor. As my noble and learned friend said, if a counsel represents the 50 person he will represent him only after having been instructed by a solicitor. I assure my noble friend Lord Renton that there is nothing sinister in the issue and that the current practice will continue. I hope that he will be satisfied with that assurance.

§ Lord Renton
My Lords, with the leave of the House, I thank my noble and learned friend Lord Hailsham for his excellent suggestion. I also thank my noble friend Lord Ferrers for accepting it, no doubt having obtained the advice of my noble and learned friend the Lord Chancellor while I was talking.

§ The Lord Chancellor
My Lords, it is a little unusual, but at the invitation of my noble friend Lord Ferrers I intervene to say that I agree entirely with the interpretation of the phrase that was given by my noble and learned friend Lord Hailsham. In the event of counsel and solicitors appearing, counsel will represent the client instructed by the solicitor. If no counsel appears the solicitor himself or herself will be the representative.

Earl Ferrers
My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 87. It was spoken to with Amendment No. 13.

§ Lord McIntosh of Haringey
My Lords, I am sure the House will not object if the Minister seeks to shortcut the proceedings by moving Amendments Nos. 87 to 102 en bloc and after Amendment No. 105 moving the remaining amendments en bloc.

Earl Ferrers
My Lords, I shall do anything that I can to expedite the proceedings without bouncing your Lordships into passing something that your Lordships might wonder about. Perhaps I may take the advice of the noble Lord, Lord McIntosh, and suggest that we take Amendments Nos. 87 to 102 en bloc.