Access to Justice Bill [H.L.]

HL Deb 16 February 1999 vol 597 cc627-72

Consideration of amendments on Report resumed on Clause 29.

The Lord Chancellor moved Amendment No. 158: Page 18, line 5, at end insert— ("( ) The Lord Chancellor shall publish—

1. (a)any recommendations made to him by the Consultative Panel in performance of the duty in paragraph (a) of subsection (2); and
2. (b)any advice provided to him by the Consultative Panel in performance of the duty in paragraph (b) of that subsection.").

The noble and learned Lord said: My Lords, this amendment obliges the Lord Chancellor to publish any recommendations and advice made to him in the course of pursuing its statutory duties under subsections (2)(a) and (2)(b) of the new Section 18A which is inserted into the Courts and Legal Services Act 1990 by Clause 29 of the Bill. That is to say, any advice or recommendations made to him by the consultative panel about maintaining standards in professional conduct, and in legal education and training, made as a result of the panel's programme of work, or as a result of a specific request from the Lord Chancellor to consider an issue.

This amendment reflects a commitment made in Committee on 28th January (at col. 1212 of Hansard) to the noble Lord, Lord Kingsland, who was good enough to withdraw his amendment on this subject in order that I might bring my own. Subparagraph (a) of this amendment has the same effect as the noble Lord's amendment. Subparagraph (b) extends the requirement to publish any advice given by the panel in response to ad hoc requests by the Lord Chancellor. I said in the earlier debate, and I say again, that I believe it right in principle to accept the proposal of the noble Lord, Lord Kingsland, and indeed to go further. The wording of the amendment as a whole has been expanded, to put it beyond doubt that there is a clear and specific requirement for the Lord Chancellor to publish such advice and recommendations from the consultative panel.

This Government strongly believe in open government. It is right in principle that an independent state-funded body should publish its advice. That is especially the case where the body's views may differ from those of its sponsoring Minister—in this case the Lord Chancellor. It is right that interested parties should be able to satisfy themselves that the body is giving reasonable and independent advice. The noble Lord, Lord Kingsland, made this very point on the first day of Committee on 19th January (at col. 510 of Hansard).

In the case of the legal services consultative panel, I do not believe that there are likely to be any public interest considerations that might make publication of its advice undesirable. I therefore have no hesitation in seeking a statutory duty for the panel to publish advice and recommendations which it gives under these provisions. I beg to move.

Lord Kingsland

My Lords, I am delighted that the noble and learned Lord the Lord Chancellor has responded in this generous and refreshing way to my amendment. He has improved on it and widened its scope. As he said, he has struck another blow for open government and I thank him.

On Question, amendment agreed to.

Clause 30 [Barristers and solicitors]:

Lord Ackner moved Amendment No. 159: Leave out Clause 30.

The noble and learned Lord said: My Lords, among the many qualities that the noble and learned Lord the Lord Chancellor has and enjoys is that of a very shrewd politician. Occasionally he adds a magic touch. That is when he is at his most dangerous. His illusions then become almost credible. That is the position in regard to Clause 30.

What are the Government seeking to achieve in the long run by Clause 30? It is surely this. The Government wish to reduce substantially the cost of legal aid, and one of their main methods of achieving that is by block contracts. Solicitors tender for these contracts, many of which will oblige them to undertake cases from start to finish, including advocacy in the higher courts where that is the appropriate venue, at pre-determined costs. That will involve a considerable increase in the demand for solicitor advocates before higher courts.

What is then the problem? Since December 1993, when solicitors in private practice were granted by the Lord Chancellor and the designated judges rights of audience in the High Court, less than 1 per cent. of the profession—about 730 solicitors out of more than 78, 000 in private practice—have obtained those rights. To obtain those rights it was necessary to comply with tests or requirements laid down by the Law Society. When I moved that Clause 30 should not stand part of the Bill, the noble and learned Lord, Lord Falconer, responded to those figures by saying, with his usual understatement: In my book, that does not signal a huge appetite by solicitors to become specialist advocates".—[Official Report, 26/1/99; col. 996] The Law Society had set the standards which, again in the words of the noble and learned Lord, Lord Falconer, had weeded out those who were no good.

On the third day of Committee (Hansard, col. 993), I drew attention to the very low pass rates by solicitors. For example, in 1995 the pass rate for civil tests was 28 per cent. I also drew attention to the statement of Professor Scott in 1996, when he was the Law Society's advocacy training adviser. that in his view, the papers that the test board has produced have provided a fair test on matters that advocates going into the high courts really ought to know about … Those who failed have in my view deserved to fail. Indeed, often 1 have been astonished at the ignorance of some candidates, especially those doing poorly in the criminal test".— [OfJicial Report, 26/1/99; col. 994.]

Quite apart from the poor exam results and the fact that many of those who had achieved the necessary standard did not exercise the rights of audience which they had obtained, the Lord Chancellor's advisory committee was concerned by the slow take-up of the opportunity available to solicitors in private practice to appear in the higher courts over the past five years.

In Committee I drew attention to the research commissioned by the Lord Chancellor's advisory committee and to the important reasons which appear to have been established: first, the uncertainties of listing of cases and results and the loss of time spent hanging around in law courts; secondly, the insufficiency of the volume of advocacy work; and, thirdly, the fact that barristers were generally cheaper than solicitors for most routine work.

This is where the magic of the noble and learned Lord came into play. How can more solicitors be encouraged to take up advocacy? Indeed, how can more solicitors be encouraged to obtain the appropriate rights of audience? In order to premedicate the great British public, upon whose hostility to lawyers one can always rely, a discussion paper was produced by the noble and learned Lord the Lord Chancellor in June 1998. In his foreword the noble and learned Lord stated: We accept that entry to the legal profession needs to be controlled, in order to ensure the maintenance of high standards which protect the public. But the right to maintain properly high entry standards to a profession must not be misused to impose restrictive practices for the benefit of those already established in the profession. There is a public interest in ensuring that properly qualified lawyers can practise their profession without being subject to unnecessary restrictions. The Government believes that unnecessary and unjustified obstacles still prevent solicitors and employed barristers from obtaining and exercising rights of audience in the higher courts".

The noble and learned Lord the Lord Chancellor did not reveal to what restrictive practices he was referring, the "unnecessary restrictions" or the "unjustified obstacles". They certainly did not exist in relation to solicitors in private practice.

The foreword went on: The time has come for more radical change. Our view is that all qualified barristers and qualified solicitors should in principle have the right to appear in any court. We accept that the professional bodies, the Bar and the Law Society should be able to ensure that their members are properly trained to exercise these rights, and that they should be able to impose any rules of conduct necessary to maintain high standards. However, any such requirements should be tested against the public interest in allowing access to the courts, and ensuring that no unjustified restrictions are placed on the exercise of rights of audience". What were these "unjustified restrictions", which the noble and learned Lord the Lord Chancellor did not think it was appropriate to identify?

The foreword continued: The independence of the legal profession helps guarantee civil liberties for the public. But this independence is not a justification for immunity from public scrutiny, or for the preservation of outmoded structures or practices". Once again, there is no identification of the "outmoded structures or practices". There certainly were none in relation to solicitors in private practice. No one reading that foreword would have suspected that there were in fact no unnecessary and unjustified obstacles preventing solicitors in private practice from exercising rights of audience in the higher courts. In particular, there were no outmoded practices or structures preventing the solicitor in private practice from enjoying rights of audience.

This line of reasoning—or unreasoning—was developed in the subsequent pages of the paper: In practice, however, only 624 solicitors, out of more than 70, 000, have so far obtained the Law Society's Higher Courts Qualification. Thus, barristers in private practice have retained an effective monopoly in the higher courts, and litigants there have no effective choice other than to employ their services"— that is certainly not the fault of the barristers— As far as possible the choice of which lawyer represents a litigant in court should depend simply on the best interests of the litigant and on value for money; the choice should not be limited by out of date restrictive practices".

Again, there is no identification, the statement is unjustified and there is suppression of what was the true position on the ground; namely, that it is possible for solicitors in private practice who are competent and interested enough to obtain rights of audience in the higher courts.

I read on: The Government accepts that rights of audience should not become the subject of a 'free for all', and that these rights must generally be reserved to qualified members of the legal profession. However, the present position is over-restrictive". One asks: in what way is that the case? Why were the Government so coy in the consultative paper about identifying the true position?

I read on in paragraph 2.5: The Government does not agree that the majority of qualified lawyers should in most circumstances be debarred from appearing in the higher courts, which is currently the case [paragraph 2.5]". The debarring was self-imposed in relation to solicitors in private practice. Nowhere do the Government state the true position and explain that solicitors in private practice are either not interested in advocacy or do not have the competence to pass their own society's reasonable tests; nowhere is there any reference to the research work that the Lord Chancellor's own advisory committee has commissioned. All this material, which was suppressed, was to ensure the great illusion created by the Lord Chancellor that the Bar was operating, the worst kind of restrictive practice—designed simply to protect the work and incomes of privately practising barristers, with no shred of benefit to the public". Those were words which the noble and learned Lord, Lord Falconer, so ill-advisedly quoted from his brief when seeking to support Clause 31 which made reference to employed lawyers.

The drafting of Clause 30 masks its true intent. This was rumbled by the noble and learned Lord, Lord Mackay of Clashfern, who on the third day of Committee stage (on 26th January) referred to his correspondence with the Lord Chancellor on this matter. That is referred to in the Official Report at col. 998. This established that Section 30 was there to enable the Law Society to reduce its standards substantially in order to encourage the reluctant to qualify for right of audience. In their memorandum to the Royal Commission presided over by Lord Benson the judges submitted: That which weakens or detracts from the standards and quality of the advocates necessarily, in the long run, weakens and detracts from the quality and standard of the judges".

I turn to the statutory objective set out in Section 17 of the Courts and Legal Services Act 1990 which is: the development of legal services in England and Wales (and in particular the development of advocacy, litigation, conveyancing and probate services) by making provision for new or better ways of providing such services and a wider choice of persons providing them"— I stress the next words— while maintaining the proper and efficient administration of justice". In my submission, the Government in promoting Clause 30 are in breach of that statutory objective because they would be failing to maintain, the proper and efficient administration of justice".

I beg to move.

9 p.m.

Lord Goodhart

My Lords, I am afraid that I am unable to support the noble and learned Lord. Lord Ackner, in his amendment. I say that with a good deal of regret because he has supported a number of the amendments that I have moved. Indeed, in other respects I have supported some of his amendments. But I believe that the change in the law that results from Clause 30, while I doubt that it will do much good, is equally unlikely to do any harm and therefore it is not a matter that I feel it necessary to oppose.

In 1990 when rights of audience in the High Court were first made open to solicitors there was a fear in the Bar that solicitors would take over much of High Court advocacy and that leading firms of solicitors would pay in effect large transfer fees for successful members of the Bar to transfer to them and set up their own advocacy departments. That simply did not happen. Very few barristers have become solicitors in the past few years even though they can take with them their rights of audience if they do so. Some leading solicitors have joined the Bar.

The reason why more solicitors have not qualified as advocates—in this respect I entirely agree with the noble and learned Lord, Lord Ackner—is that basically they do not want to do advocacy. There are real advantages to solicitors' firms in employing banisters rather than setting up substantial advocacy departments of their own. I recall once asking a partner in a medium size London firm who were good clients of mine—it had perhaps 30 to 40 partners—how many different barristers the firm instructed during the course of a year. The answer was about 250. That meant that the existence of an independent Bar gave it access to a wide selection of expertise that not even the biggest firm of solicitors in the City could provide for its clients.

The experience of the past eight years has shown that the Bar is not at serious risk from the extension to solicitors of rights of advocacy. The Bar Council is not opposed in principle to Clause 30. Speaking for myself, I have always believed that the Bar can stand as an independent branch of the profession without having exclusive or preferential rights of audience. That is the case in Australia and New Zealand, and I see no reason why it should not be so here. I do not see any great advantage in the change proposed by the noble and learned Lord the Lord Chancellor. However, I do not believe that it will do any harm and I am therefore unwilling to oppose it.

Lord Mayhew of Twysden

My Lords, before making up my mind on how I shall vote on this interesting amendment, I shall be interested to hear the answer of the noble and learned Lord the Lord Chancellor, or the noble and learned Lord, Lord Falconer, if he is to reply, on what seems to me a significant assertion in the speech of my noble and learned friend Lord Ackner. He referred to correspondence that had passed between the noble and learned Lord, Lord Mackay of Clashfern, and, I think, the Lord Chancellor. The noble and learned Lord, Lord Ackner, asserted that it was conceded that attempts had been made to encourage the Law Society to lower the standards of the examinations which they apply to solicitors who wish to acquire rights of audience in the higher courts. If that is so, it is a serious development and one on which I shall be interested to hear the Lord Chancellor's reply.

If the Law Society is not to be the most appropriate judge of the standards to be applied, who is? The same is true of the Bar. I have always held rather heretical views for someone who has held the title of Leader of the Bar and has had the honour to be Attorney-General. I felt that on the whole the Bar overestimated the degree of challenge and danger to an independent Bar if solicitors were allowed to acquire rights of audience in the higher courts. I held that view because I believe advocacy to be a profession, a skill and an art which one has to practise every day if one is to be at the top of one's form. In addition, I did not think that solicitors would find it sufficiently remunerating. I have always held that somewhat heretical view as someone who is a devoted admirer of the Bar and an upholder of the virtues and values of an independent Bar.

It is extremely important to know whether, in order to get more solicitors qualified, the Lord Chancellor has encouraged their professional body to lower standards of examination which it felt right to impose. I shall listen with great interest to that part of the Lord Chancellor's reply.

The Lord Chancellor

My Lords. the noble and learned Lord, Lord Ackner, asks your Lordships to delete Clause 30 from the Bill. He has already persuaded noble Lords to delete the former Clause 31 from the Bill. On that occasion, he succeeded, I rather think it is worth noting, because of the votes of hereditary Peers, and because the Liberal Democrat Peers were unable to decide what to do given the deep split in their ranks between those who really belong to the banisters' party, QCs' section, and the remainder who are the true heirs of Cobden and Bright. I was not quite clear as to the way the noble Lord, Lord Goodhart, veered today, but it appeared to me to be reluctantly in the direction of Cobden and Bright.

Conservative Peers seem to have voted on the basis simply that it was an opportunity to vote against the Government regardless of the merits of the argument. I wonder whether any of them experienced a pang of regret once they realised what they had voted for. They had not been long enough in the Chamber to know. 1 note that the noble Lord, Lord Tebbit, is not in his place now. I had not previously thought of him, for example, as a leading defender of the privileges of the private Bar. But there it is.

And now I have my eye firmly on the Liberal Democrat Benches. On the previous occasion, the noble Lord, Lord Goodhart, made it clear that his party had no policy on how it should vote on the rights of audience issue; and he recommended it to abstain. So there is not a party policy other than to abstain. And even the policy to abstain cannot be adhered to because of the priorities of the noble Lord, Lord Thomas of Gresford, as a member of the barristers' party, QCs' section. He drove them into the Lobbies with the noble and learned Lord, Lord Ackner. If even at this hour of the night, the noble and learned Lord seeks to test the opinion of the House, I suppose we shall see consistently the noble Lord, Lord Thomas of Gresford, dutifully following the noble and learned Lord into the Lobbies, and the noble Lord, Lord Goodhart, following the Government.

I wish to acknowledge that there was one notable exception to the conduct of the Conservative Opposition on the previous amendment. My noble and learned predecessor Lord Mackay of Clashfern voted for the Government, contrary to how his party voted—

Lord Henley

My Lords, I am grateful to the noble and learned Lord for giving way. He has confirmed my belief that the vote he is speaking about was the one which took place at the Committee stage, which the Government lost and we and some of the Liberal Democrats won. Will he remind the House that on that occasion only 75 members of his party and others voted for the Government? It was only 6.30 on a Thursday evening and the Opposition put in only about 85 Peers to vote. I do not remember seeing the noble Baronesses, Lady Scotland and Lady Kennedy of The Shaws, in the Chamber. I am sure that they had a certain interest in the matter, but perhaps they wanted to be away on that occasion.

The Lord Chancellor

My Lords, I do not quite understand the relevance of that intervention to the proposition that my noble and learned predecessor, who perhaps has some expertise in these matters—expertise which the 80-odd Conservative hereditary Peers who went into the Lobbies by definition did not have because they had not even listened to the debate—voted with the Government. I want to take this opportunity of expressing my gratitude—

Noble Lords

Order!

The Lord Chancellor

My Lords, I will give way when I choose. I want to take this opportunity of expressing my gratitude to the noble and learned Lord, Lord Mackay of Clashfern, for his consistency and his characteristic unwillingness to engage in political opportunism. I now give way.

Lord Ackner

My Lords, my noble and learned friend is spending much time and much energy—

Lord McIntosh of Haringey

How long did you speak!

Lord Ackner

I spoke with success and I did not muddle up the two clauses. I intervened to say that my noble and learned friend the Lord Chancellor is spending time and energy on a battle we have already won, which is Clause 31. I am interested in his reply to Clause 30. With all his salutations to his predecessor, he overlooks the hostility of the noble and learned Lord, Lord Mackay of Clashfern, to Clause 30. It was in relation to Clause 30 that the noble and learned Lord, Lord Mackay, went on to draw attention to the correspondence which he had with the Lord Chancellor demonstrating his anxiety that the result of Clause 30 was designed to reduce the quality of the restrictions on rights of audience. Perhaps my noble and learned friend the Lord Chancellor might consider at some stage dealing with that which relates to Clause 30 and not battles past and won.

The Lord Chancellor

My Lords, I think that this really must be a first for the noble and learned Lord, Lord Ackner. This is the first time in 12 years in this House that I have heard him praise my noble arid learned predecessor Lord Mackay of Clashfern. And it has not escaped my attention that he has done so arid prayed in aid the noble and learned Lord only in order to criticise his successor.

Before I leave the battle which the noble and learned Lord has temporarily won, I will take this opportunity to say to your Lordships that the Government will seek to reverse that defeat in another place. I await with interest to see how the Opposition parties vote there.

Perhaps the Conservative Party wishes to be seen as a friend of the Bar and will again oppose the Government. If it does so, it may well be misunderstanding the true position of the Bar. I believe that the Bar Council is realistic and accepts the inclusion of the former Clause 31 in the Bill. It is only the noble and learned Lord who wants to defend the indefensilble. The present chairman of the Bar stated in his letter to the Financial Times of 3rd December: The argument is not now about who has rights of audience but about ensuring that advocacy is provided to a consistently high standard and at a competitive cost to the client". With that, I agree. The Bar now needs to be protected from its would-be friends who want to remove essential clauses from the Bill.

I have a vision of the noble and learned Lord, Lord Ackner, emerging from the deep like some kind of latter-day LaocoÖn, declaring to the Bar, "I am still your friend", and the Bar replying timorously, "But Desmond"—and they would say "Desmond" because one is wise to be cautious with LaocoÖns—"I do not really want to be your friend on this".

Most of Clause 30 is a simple re-enactment in a different form of provisions which are already in force under the Courts and Legal Services Act 1990. The 1990 Act put rights of audience and rights to conduct litigation on a systematic statutory basis for the first time. It provided that professional or other bodies could be authorised under a statutory procedure to grant those rights to their members. Authorised bodies were also given the power to regulate the exercise of those rights by their members, subject to the requirement that their rules and regulations and any alterations to them should be approved.

At the time that the 1990 Act was passed, there were already two bodies whose members had rights of audience or rights to conduct litigation, or both—the Bar Council and the Law Society. Therefore, special provision was made for both of those bodies. The Act made both of them authorised bodies for the purpose of granting rights of audience and made the Law Society an authorised body for the purpose of granting rights to conduct litigation. Existing members of both bodies were deemed to have been granted the rights they already had and the existing rules of both bodies were deemed to have been approved. That was the effect of the legislation of our predecessors.

Clause 30 essentially continues those arrangements with one significant difference in relation to solicitors, with which I shall deal in a moment. The clause inserts a new Section 31 into the 1990 Act. Subsection (1) of the new Section 31 provides that all barristers are deemed to have been granted a right of audience before every court in relation to all proceedings. That is already the case under the existing Section 31 of the 1990 Act.

All barristers, including employed barristers, are currently deemed to have been granted full rights of audience when they are called to the Bar. But barristers can exercise those rights only in accordance with the rules of the Bar. Subsection (1) preserves that position. It provides that rights of audience are exercisable only in accordance with the qualification regulations and rules of conduct laid down by the Bar Council and approved under the 1990 Act.

Subsection (1) means, for example, that a barrister who has not undertaken pupillage may not exercise the full rights of audience that he theoretically has because he has not met the requirements of the Bar's qualification regulations. Similarly, a barrister may not exercise his full rights of audience as a barrister in private practice if he is not a member of chambers because he would not then be complying with the Bar's rules of conduct.

At present, the position of solicitors differs from that of barristers in that they are given rights of audience in the lower courts only on their admission to the Roll of Solicitors. They are granted rights of audience in the higher courts only when they have obtained the Law Society's higher courts qualification. If they obtain such a qualification, they are retrospectively deemed to have been granted full rights of audience on admission to the Roll of Solicitors. But a solicitor who has not obtained the qualification does not have theoretical rights of audience to exercise in the higher courts unlike a banister in the equivalent position.

Despite that theoretical difference, banisters and solicitors are really in the same position as regards the exercise of rights of audience in the higher court. They may exercise such rights only if they have met the requirements of the relevant qualification regulations and comply with the relevant rules of conduct of their professional bodies.

Clause 30 will not disturb that position; on the contrary, it will make it explicit. However, Clause 30 will alter the theoretical basis on which solicitors exercise rights of audience by putting them on a par with banisters.

I understand the point of the noble Lord, Lord Goodhart. He might ask, "What is the point of doing that?" The answer is simple. The current position is a relic of the time when solicitors were thought of as second class legal citizens who could not be trusted to appear in the higher courts. There is no reason whatever why solicitors should not be put on the same theoretical footing as banisters. That change of emphasis may in itself encourage more solicitors to think of themselves as potential higher court advocates. However, Clause 30 will not, in itself, lead to any solicitor exercising rights of audience in the higher courts who does not already have such rights.

Subsection (2)(a) of Clause 30, therefore. provides that all solicitors are deemed to have full rights of audience in all the courts, but they may exercise those rights only if they comply with the qualification regulations and rules of conduct imposed by the Law Society.

I have said many times that I am as opposed to professional rules in relation to rights of audience which may be too lax, as I am opposed to rights of audience in accordance with rules that may be too restrictive.

This provision is not money-driven, although I have no objection to saving public money. It is quite untrue that my rights of audience reforms are driven by a desire to save money or, as the noble and learned Lord, Lord Ackner, put it, are driven by the Treasury. That is disproved by the fact that legal aid spending will remain at about £1.6 billion for the next three years.

The noble and learned Lord, Lord Ackner, spoke at some length about the failings of solicitors as advocates, about how many of them have failed the test for becoming a higher court advocate, and so on. I gently say to the noble and learned Lord that if barristers were initially confined to appearing in the lower courts and had to take similar tests before appearing in the higher courts, it might be interesting to compare their pass rate. However, of course, they do not have to take such tests. The day on which a barrister finishes his or her pupillage, he or she is eligible to appear before the Privy Council or the House of Lords in its judicial capacity or in a murder trial or a rape trial, regardless of his or her experience.

Such arguments are, in any case, strictly speaking irrelevant to this clause, as the clause leaves all the existing solicitors' tests in place. It is open to the Law Society now to propose changes to those tests, or to propose alterations in the way in which solicitors are trained. I say to the noble and learned Lord, Lord Mayhew of Twysden, that it will remain open to them to do so after the Bill is passed. Contrary to what the noble Lord suggested, everything that I have said is in accord with my own hostility to rules which are too lax governing the acquisition of rights of audience.

Let me make it absolutely plain that I have no wish to see insufficiently qualified or incompetent advocates practising in the higher courts or anywhere else. The position under subsection (2)(a) will still be that solicitors can appear in the higher courts only if they have met the requirements which the Law Society imposes, just as at present. Solicitors will be in the same position as banisters. They will have full rights of audience in principle, but whether they can exercise them fully in practice will depend on whether they have complied with the relevant rules.

I believe that a specialist Bar will prove to be the most efficient means of providing specialist advocacy services in the courts. The experience of New Zealand and of Australia proves that. The Bar does not need to be cosseted by restrictive practices. In my view, it will go from strength to strength on its own merits. I am as proud of the profession from which I come as is the noble and learned Lord, but I have greater confidence than he in its capacity to flourish without restrictive practices. On that basis, I invite the noble and learned Lord to withdraw his amendment.

9.30 p.m.

Lord Renton

My Lords, before the noble and learned Lord sits down, perhaps I may agree with a great deal of what he has said, but there is one matter which, historically, I think that he should try to get right. My memory goes back as far as 1933, when I started practising at the Bar, and I was first elected to the Bar Council in 1938, so my knowledge of those times is not entirely inadequate. I assure the noble and learned Lord that in those days the assumption was that barristers should stick to what they were trained to do and should not usurp the functions of solicitors and that solicitors should not have a right of audience in the High Court because they were not trained to advocacy.

The Lord Chancellor

My Lords, there is much to be said for sticking to your last, but I also believe that one can learn to work new lasts.

Lord. Mayhew of Twysden

My Lords, before the noble and learned Lord sits down again, may I redirect his attention to the question of fact which both I and the noble and learned Lord, Lord Ackner, asked him? The Lord Chancellor may have been constructing his entertaining notional conversation between the General Council of the Bar and Desmond arid it may have slipped his attention, but I asked him whether it was the case that he had urged upon the Law Society, or encouraged it, to reduce its standards for the higher courts qualification, perhaps in the context of only 1 per cent. of its number having qualified. There may be very good reasons for his having done so and the noble and learned Lord dealt at some length with his views about rules of qualification being too lax or too severe, but he did not answer the question of whether he has encouraged the Law Society to reduce its qualification standards. I believe that the House would be greatly helped if he were to do so.

The Lord Chancellor

My Lords, I seem to recall that I sent a letter on this to the noble and learned Lord, Lord Mackay of Clashfern. I do not have it before me and so I wish to express myself very cautiously. I seem to recall that in that letter I said that the Law Society might well want to seek to change its rules but that, for my part, I would ensure that standards were maintained. Tomorrow morning I shall look out a copy of my letter to the noble and learned Lord, Lord Mackay, and 1 shall send a copy to the noble and learned Lord, Lord Mayhew.

Lord Ackner

My Lords, I can give a little assistance on that very subject because at col. 998 of Hansard of 26th January, which was the third day in Committee, the noble and learned Lord, Lord Mackay of Clashfern, said: The point I am really anxious about is the next sentence"— that is, of the letter from my noble and learned friend the Lord Chancellor— which states, 'I also expected that the Law Society will wish to propose changes to the requirements of its higher courts qualifications, in order to encourage more solicitors to take up rights of audience in the higher courts'. What does that mean? How is one going to encourage more solicitors to take up rights of audience in the higher courts, having regard to the history which my noble and learned friend Lord Ackner has described? One way of doing it is to reduce the standard marginally or more than marginally. The noble and learned Lord the Lord Chancellor and the noble and learned Lord, Lord Falconer, say that they want to have competent people. I am not quite clear how changes in the qualification regulations will encourage more solicitors to take up rights of audience unless these changes reduce the threshold or the standard. I should say in fairness to the noble and learned Lord that his letter continues, `Having said that, neither the Law Society nor I have any desire to see badly trained or incompetent advocates let loose in the higher courts, and I will ensure that this does not happen"'.—[Official Report, 26/1/99; cols. 998–9.] By my Motion I am seeking to return to the status quo, which involves solicitors adhering to the standards which have been laid down with the approval of the Lord Chancellor's Advisory Committee. I do not believe that that committee will be relevant in the future. I do not know whether the new organisation has to give its sanction to any regulations which the Law Society makes as regards rights of audience.. I think riot. I believe that that lies within the powers of the Lord Chancellor, hence my anxiety.

In reply to the other matters raised, the noble Lord, Lord Goodhart, overlooked one very important factor in referring to the fact that the Bar survived, despite its anxieties in 1990 and thereafter. It only survived because of the recession. That prevented solicitors from embarking on what they realised was going to be a loss-making activity for two or three years. By opening an advocacy department they would not be able to employ, consistently and sufficiently, the QCs whom they engaged for some little time to come. When the recession came they had enough on their plate in coping with large rents, and by a whisker the Bar was saved.

I have listened with sadness to the fact that the Liberal Democrats will not support me. I believe that at this time of night the Loyal Opposition is likely to be otherwise engaged and, being a realist, in those circumstances, I do not propose to pursue my Motion at this stage.

Clause 30 agreed to.

Clause 31 [Employers of Legal Services Commission]:

[Amendments Nos. 160 and 161 not moved.]

[Amendment No. 162 not moved.]

Schedule 5 [Authorised bodies: designation and regulations and rules]

[Amendment No. 162A not moved.]

Lord Falconer of Thoroton moved Amendment No. 163: Page 66, leave out line I and insert ("If the Lord Chancellor has decided to refuse the application he shall also").

The noble and learned Lord said: My Lords, this group of amendments is a series of minor, and, I believe, fairly uncontroversial amendments to Schedule 5. They are all brought forward in response to points made in Committee. They are designed to refine the procedures contained in the Bill for dealing with the authorisation of bodies to grant rights of audience and rights to conduct litigation; the approval of applications by such authorised bodies to alter their qualification regulations or conduct rules; the use of the call-in power to alter the rules of authorised bodies; and the revocation of a body's authorisation to grant rights of audience or rights to conduct litigation.

I shall deal with four of these amendments, Nos. 163, 165, 171 and 173, together. They go to the same point and are all brought forward in response to a commitment which I made to the noble Lord, Lord Goodhart, to consider strengthening the Bill as regards transparency of decision-making under the schedule. The noble Lord moved a group of amendments originally which had much the same effect as these. They require me to give reasons automatically if I refuse an application for authorisation; refuse an application for alteration of conduct rules and qualification regulation; use the call-in power to order alterations to be made to the rules of an authorised body; or revoke the designation of an authorised body.

My expectation is that, generally, applications for authorisation and for rule alterations will be sensible, and that they will be approved, in accordance with the statutory objective. Similarly, my expectation is that authorised bodies will not seek to impose unduly restrictive rules regarding rights of audience and rights to conduct litigation on their members, nor that they will become unfit to retain their authorisation. So I will not, therefore, in the normal course of events, need to exercise the powers to impose rule changes or revoke authorisation. If I do so, it is right that I should be obliged to give my reasons. I agree with the noble Lord, Lord Goodhart, who made the point in Committee that such decisions may affect the relevant body, or its members, adversely, and that the reasons should be immediately available to enable affected parties to consider, for example, taking action by way of judicial review.

These amendments standing in my name are drafted slightly differently to those moved originally on this subject. The first three amendments have identical effect to their predecessors—the changes are ones of style only. The fourth amendment, which deals with the obligation to give reasons when giving notice of my intent to revoke an authorised body's authorisation, goes slightly further than its predecessor. The original would have required me to give reasons for revocation if the authorised body in question applied in writing. There is no reason, however, why the Lord Chancellor should not be required automatically to give his reasons, as he would be in the case of the first three amendments. He has therefore redrafted the amendment accordingly.

I turn now to Amendments Nos. 168 and 169. These fill a gap left by an earlier group of amendments moved by the noble Lord, Lord Goodhart, which provided that the Director General of Fair Trading and the panel would be obliged to publish the advice they gave on applications made under the new Schedule 4. I was happy to accept the amendments. However, they did not cover Part III of the new Schedule 4, and the noble Lord accepted that Part III should be amended to achieve consistency with the other parts of the schedule.

I turn now to Amendment No. 164, which provides that the Lord Chancellor may not refuse to approve an authorised body's application to change its conduct rules or qualification regulations, unless it has been referred to the panel for advice. This arises from an amendment moved originally by the noble Lord, Lord Goodhart. As I said in Committee, the purpose of bypassing the consultation procedure is to expedite the processing of an uncontroversial application. Were the application controversial—and by definition it would be so if the Lord Chancellor were minded to refuse it—it would be appropriate to refer it to the panel. It was always the intention that this would happen in practice, and I am happy that this should be put on the face of the Bill. I did not accept the amendment in Committee because we were unsure whether the drafting might not need revision. Two drafting amendments have been made to the noble Lord's original amendment, for clarity: "may" has been substituted for "shall" and "received advice" for "sought the advice". I beg to move.

Lord Goodhart

My Lords, I am most grateful to the noble and learned Lord, Lord Falconer, who at times during the course of his speech appeared to have become the noble and learned Lord the Lord Chancellor. I wondered whether that was the purpose of the rather brief discussion on the Front Bench a minute or two ago; namely, that the Lord Chancellor was handing over his duties. But be that as it may, in whatever capacity the noble and learned Lord, Lord Falconer, was speaking, I am most grateful for the amendments which have been made. I am glad that the additional transparency will be provided for.

On Question, amendment agreed to.

Lord Falconer of Thoroton moved Amendments Nos. 164 and 165:

Page 68, line 36, at end insert— ("( ) The Lord Chancellor may not refuse the application unless he has received advice from the Consultative Panel.").

Page 68, leave out line 39 and insert ("If the Lord Chancellor has decided to refuse the application he shall also").

The noble and learned Lord said: My Lords, I have already spoken to these amendments. I beg to move Amendments Nos. 164 and 165 en bloc.

On Question, amendments agreed to.

9.45 p.m.

The Lord Chancellor moved Amendment No. 166: Page 69, line 4, leave out from ("Chancellor") to ("he") in line 6 and insert ("considers—

1. (a) that any of the qualification regulations of an authorised body may unduly restrict a right of audience or right to conduct litigation or the exercise of such a right, or
2. (b) that any of the rules of conduct of an authorised body may unduly restrict the exercise of such a right, ").

The noble and learned Lord said: My Lords, the purpose of Amendment No. 166, which stands in my name, and of Amendment No. 167, which stands in the names of the noble Lords, Lord Kingsland and Lord Goodhart, is to clarify which rules of conduct and qualification regulations of the authorised bodies may be subject to the use of the call-in procedure, set out in Part 3 of Schedule 5 to the Bill.

As my the noble and learned friend Lord Falconer of Thoroton indicated in Committee, in response to a previous amendment on this point by the noble Lord, Lord Kingsland, the Government agree that the call-in procedure should only apply to qualification regulations and rules of conduct which relate to rights of audience. But my noble and learned friend Lord Falconer of Thoroton—and there is no confusion of roles here—continued: the Lord Chancellor would go further than the amendment [tabled by the noble Lord, Lord Kingsland]. He has already said that he will look further at how the call-in power may be restricted, not to rules and regulations related to rights of audience … but to those which are "unreasonably" restrictive of rights of audience and rights to conduct litigation".—[Official Report, 28/1/99; col. 1212.] He noted that this was a point raised by the Select Committee on Delegated Powers and Deregulation.

Amendment No. 166, which stands in my name, is the Government's response. It will ensure that the call-in power may only be invoked if the Lord Chancellor considers: (a) that any of the qualification regulations of an authorised body may unduly restrict a right of audience or right to conduct litigation or the exercise of such a right, or (b) that any of the rules of conduct of an authorised body may unduly restrict the exercise of such a right, ". As my noble and learned friend Lord Falconer emphasised in Committee on 28th January at col. 1213 of Hansard, provisions in the Courts and Legal Services Act 1990 restrict the definition of Rules of Conduct and Qualification regulations, for these purposes, to rules and regulations which relate to rights of audience or rights to conduct litigation.

There is one crucial difference between my Amendment No. 166 and the noble Lords' Amendment No. 167. My amendment will make it clear that the Lord Chancellor may only invoke the call-in procedure if he considers that the appropriate rules or regulations (defined, of course, in relation to rights of audience and rights to conduct litigation) "may unduly restrict" those rights. In this respect it goes much further than the noble Lords' amendment. 1 note in passing that the noble Lords are content to give the Lord Chancellor a wider power. For my part, I think that it is right that the call-in power should be limited in the manner l have indicated.

Apart from that, I think the intention behind the noble Lords' Amendment No. 167 is very much the same as mine. However, with respect, I think that my amendment, as drafted, better accords with the terminology of the 1990 Act, into which Schedule 5 will be inserted as new Schedule 4. To take one small example, the amendment refers to a requirement as to the education and training", whereas the amendment standing in my name refers to "qualification regulations". The rest of the schedule makes reference to "qualification regulations", which are defined in the 1990 Act as regulations as to the education and training which the members of the body must receive in order to be entitled to any right of audience or right to conduct litigation granted by the body. I therefore think that the first reference in the schedule should be to the generic term.

But the drafting points are small compared to my fundamental objection, which is that the noble Lords' amendment does not go far enough in restricting rne. Amendment No. 166, standing in my name, meets the commitment made by my noble and learned friend Lord Falconer of Thoroton in Committee. I therefore beg to move the amendment.

I understand that if the House accepts my Amendment No. 166, the noble Lords will not be able to move their Amendment No. 167. But I hope, for the reasons I have given, that they will be able to support the amendment standing in my name.

The Deputy Speaker (Baroness Turner of Camden)

My Lords, I have to inform your Lordships that if Amendment No. 166 is agreed to, I cannot call Amendment No. 167.

Lord Kingsland

My Lords, the noble Lord, Lord Goodhart, and I would be foolish not to take full advantage of the noble and learned Lord's enlightened generosity. In those circumstances, we shall not be pressing our amendment.

On Question, amendment agreed to.

[Amendment No. 167 not moved.]

Lord Falconer of Thoroton moved Amendments Nos. 168 and 169: Page 69, line 35, leave out ("may") and insert ("shall"). Page 69, line 44, leave out ("may") and insert ("shall").

On Question, amendments agreed to.

Lord Goodhart moved Amendment No. 170:

Page 70, line 28, at end insert— ("( ) The Lord Chancellor shall not decide to make the alterations unless at least two of the designated judges have advised him that the alterations should be made.").

The noble Lord said: My Lords, in moving Amendment No. 170, I wish to speak also to Amendment No. 172. With these amendments we come to what I believe are the last controversial amendments on the Marshalled List. They are, nevertheless, amendments of very considerable importance. Therefore, despite the lateness of the hour, I feel that I should speak to them, I hope fairly briefly.

The background will be familiar and I can outline it very shortly. Schedule 4 to the Courts and Legal Services Act 1990 conferred three powers on the Lord Chancellor; first, the power to confer rights of audience and rights to conduct litigation on members of bodies other than the Bar Council or the Law Society; secondly, to veto proposed rule changes by the authorised bodies—that is, the Bar Council, the Law Society and other bodies authorised under the previous power—and, thirdly, to revoke designation as an authorised body of any body designated under the first power. However, the first and third of those powers could be exercised only by Order in Council adopted by the affirmative resolution procedure and, as matters now stand, all three powers can be exercised only with the agreement of each of the four designated judges who are the holders of the four senior judicial offices other than that of Lord Chancellor.

The Bill adds a fourth power, the power to impose rule changes on authorised bodies, and that also requires an order approved by the affirmative resolution procedure. However, the Bill also removes the power of veto of the designated judges, giving them no more than a power to advise. It is now generally accepted that giving each of the four designated judges an independent veto was a recipe for deadlock, but removing the veto altogether is another matter.

At the Committee stage amendments were moved to retain the judicial veto where at least three of the designated judges were opposed to the Lord Chancellor's proposals. Those amendments applied to all three of the powers that now exist under the 1990 Act and to the new one introduced by this Bill. The amendment is now being brought back in relation to only two of those powers; that is, Part III of the new schedule, which contains the power to order rule changes, and Part IV, which contains the power to revoke designation. I accept that the power to designate new authorised bodies raises constitutional issues of less importance and that the Lord Chancellor's veto over the rule changes means, at worst, that the rules remain unchanged. But issues do arise over the power to impose rule changes and over the power to revoke the status of a body as an authorised body.

On the power to impose rule changes, I accept gladly that Amendment No. 166, which has just been adopted by the House, constitutes a great improvement on the original draft. The unamended Bill gives power to the Lord Chancellor to alter the rules of conduct of an authorised body wherever he thinks it appropriate to do so and in any respect. The new amendment allows those rules to be changed only to widen rights of audience or rights to conduct litigation. That, I think, is much better. But I am still concerned with the issue of principle. The separation of powers and especially the separation of powers between the Executive and the judiciary is an essential principle of our constitution—a principle we shall be debating again tomorrow. The independence of the judiciary involves its control of its own courts and the right to control who can and who cannot exercise rights of advocacy before them. That right is not absolute. As the noble and learned Lord the Lord Chancellor pointed out in Committee, rights of audience have been conferred by statute since at least 1836. But, so far as I am aware, in no case before 1990 have rights of audience been conferred by secondary legislation.

Transferring control from primary to secondary legislation involves a substantial transfer of power from Parliament to the Executive. The noble and learned Lord the Lord Chancellor well knows that. Secondary legislation cannot be amended; it is debated briefly even in the case of the affirmative procedure and by convention is not rejected by your Lordships' House. The Courts and Legal Services Act created a right to alter rights of audience and rights to conduct legislation by secondary legislation. But, in doing so, it applied a double key system. The judiciary, through designated judges, retained a right to block secondary legislation—not primary legislation, of course—which affected its control over its own courts. It is that second key which is being removed by this Bill. I do not believe that that is right, either in the case of imposed rule changes or in the case of revocation of statute.

The power to say that members of a body are to remove rights of audience is indeed draconian. I accept that the rules of the Bar Council or the Law Society would require primary legislation, but, even so, if the Lord Chancellor proposed to remove, let us say, the rights of ILEX, and three of the four designated judges thought that those rights should be retained, I would strongly suggest that primary legislation was needed and should be required. I ask the Lord Chancellor to accept that there is an important constitutional point here and that, even after Amendment No. 166, a modified right of judicial veto should be retained for Parts III and IV of Schedule 5. I beg to move.

Viscount Dilhorne

My Lords, I support the amendment of the noble Lord, Lord Goodhart. I can be very brief in this matter. The procedures contained in the Bill to implement these powers are said to be simpler than those presently in existence, which are contained in the 1990 Act. That seems superficially attractive. But the facts are, first, as the noble Lord, Lord Goodhart, said, that they contain no requirement for the designated judges to approve an application before it can succeed. Secondly, in the case of any application to become an authorised body, the Lord Chancellor has only to consult with the Legal Services Consultative Panel and the Director General of Fair Trading. Again, there is no requirement that he must follow their advice or opinion. Thirdly, in the case of an application to amend an authorised body's regulations. the Lord Chancellor will decide whether or not he needs to consult the Legal Services Consultative Panel and the Director General of Fair Trading. And again, there is no requirement that he must follow their advice or opinion.

We then come to the question of the power to revoke a body's authorisation—all of this concerns designated judges, who are the subject of this amendment—which has never been used. Under the present system, the Lord Chancellor may revoke a body's authorisation but he is required to seek the advice of his present Advisory Committee on Legal Education and Conduct, which has the power, until this Bill is passed, on its own initiative to recommend revocation under the present regime. Each of the approved designated judges must approve any proposed revocation before an order can be made. The proposals before the House remove that requirement.

Advice of the DGFT and the LSCP will be required to be obtained by the Lord Chancellor. Any revocation of a body's authorisation will continue to be subject to parliamentary approval. However, the noble and learned Lord the Lord Chancellor proposes to bestow on himself a new power to amend the qualification regulations and rules of conduct of an authorised body if he considers it desirable to do so. He is required to consult the Legal Service Consultative Panel, the DGFT and the designated judges before doing so. And his order will be subject to parliamentary approval. Accordingly, by this proposal, and entirely on his own initiative, the Lord Chancellor will be able to change any rules or regulations of any authorised professional body.

In this vital constitutional area, no proper reason or justification has been given as to why the Lord Chancellor needs these additional powers over a self-regulating profession which has been guilty of no transgression. Neither of the two legal professional bodies opposes the granting of audience rights to properly qualified and experienced persons. No proper reason or sufficient justification has been given as to why the Lord Chancellor is dissatisfied with any of the present rules of conduct or rights of audience that are presently operating. or as to why he needs such a general open-ended power as he presently proposes.

It seems strange that the Lord Chancellor—and it contradicts what he said earlier in the day—who was recently so successful and such a longstanding and reputable practitioner (he still is a reputable practitioner) should be so dissatisfied with his former profession that he has not mentioned that dissatisfaction to the Bar and given its members a chance to respond positively to the concerns that he raises.

The indisputable fact, as it seems to me, concerning Amendments Nos. 170 and 172 is that this proposed legislation will empower the Lord Chancellor, should he so choose—he may not so choose, but the power is there to be exercised by subsequent Lord Chancellors who may so choose—to reject all the advice that he may receive and to impose rule changes on the authorised bodies. All that the Bill does is to give the noble and learned Lord an option only to consult the Legal Services Consultative Panel, the DGFT and the designated judges.

It therefore seems to be the case that, in the face of the formulation of a new code, or the calling in of the rules, or of a revocation of the authority to grant rights of audience, or the enforcement of changes on a professional body, the only restraint that could be imposed in Parliament would be by affirmative resolution, and then only in respect of certain rules.

These procedures breach hallowed fundamental constitutional principles which safeguard against the concentration of power in the executive. That safeguard has been in existence since time immemorial. It separates the functions of the judiciary on the one hand and Parliament and the Government on the other. The proposed measures will cause that distinction to become blurred and will centralise power in the hands of that high office, the Lord Chancellor's office, if they become law. The concentration of power will, although not immediately, at some time be abused and misused whichever party is in power. Such power should therefore not be given solely to the Executive to be wielded by the noble and learned Lord, who will in effect be acting as a Minister and a judge, causing the role of the existing judges to be reduced to that of formal consultees whose advice may be ignored according to the whim of the executive.

I urge my noble friends and noble Lords on the Government Benches, the Cross-Benches, and the Liberal Democrat Benches to support the amendment proposed by the noble Lord, Lord Goodhart. It is important and fundamental. I believe that most of the parties here wish to see the Government's desire to reform and streamline the present system achieved; but they wish it to be done without breaching constitutional principles. Accordingly, the noble Lord, Lord Goodhart, has proposed that the four judicial heads should act as a body and that the majority, with the Lord Chancellor, should prevail. I support the amendment.

The Lord Chancellor

My Lords, I suppose that I must have been a reputable practitioner if the noble Viscount, Lord Dilhorne, says so. I am very grateful to him.

We have debated before what role the designated judges—the Lord Chief Justice, the Master of the Rolls, the President of the Family Division and the Vice-Chancellor—ought to play in the arrangements set out in the new Schedule 4 to the Courts and Legal Services Act 1990 which will be substituted by Schedule 5 to this Bill. Part I of the new Schedule 4 governs the approval of new bodies authorised to grant rights of audience or rights to conduct litigation to their members; Part II relates to the approval of alterations in the rules of authorised bodies; Part III relates to the exercise of the new power to order alterations in the rules of authorised bodies; and Part IV governs the revocation of the designation of authorised bodies in certain circumstances. The powers to authorise new bodies, to order alterations in the rules of authorised bodies and to revoke the designation of authorised bodies can only be exercised with the approval of both Houses of Parliament, given under the affirmative procedure.

At present, decisions under the 1990 Act are taken by the Lord Chancellor jointly with the designated judges, each of whom has a veto over every decision. That system is not now defended by anyone, as far as I am aware. The effect of these two amendments would be that decisions in relation to Parts III and IV of the schedule would be subject to the requirement that the Lord Chancellor could only act if at least two of the designated judges agreed with him; that is, three designated judges would have a veto.

As I have explained, the Lord Chancellor's decision in these cases is already subject to the requirement of parliamentary approval. I do not consider it necessary or appropriate that his decision should also be subject to approval by two of the designated judges. Parliament is sovereign and the Lord Chancellor is responsible to Parliament as a Minister. In my view, no issue concerning the separation of powers arises. I believe that it is appropriate that Parliament should have the final say about rights of audience in the Queen's courts.

This view is not mine alone; it is shared by the Lord Chief Justice and the Master of the Rolls, as they indicated at Second Reading. We weigh, as well as count, our supporters. The provisions in the Bill will still require the Lord Chancellor to take the advice of the designated judges in every case, and any Lord Chancellor would give great weight to that advice. I certainly shall. But the long and unsuccessful history of that cumbersome body ACLEC has persuaded me that radical change is essential. In the end, the buck must stop somewhere, and that somewhere is not with the judiciary but with the Lord Chancellor and, ultimately, with Parliament. On that basis, I hope that the noble Lord will agree to withdraw his amendment.

Lord Goodhart

My Lords, I am most grateful to the noble Viscount, Lord Dilhorne, for the support which he gave to our amendments. As the Lord Chancellor will not be surprised to hear, I am disappointed by his reply. I believe that there is an important constitutional issue here. I believe that the settlement reached in 1990 was correct in principle, even if not in detail, and that the double key procedure set up in 1990 was the price that was properly paid for giving the Lord Chancellor power to do by secondary legislation what up until then could be done only by primary legislation.

However, it is now late at night. The supporters of the opposition parties have gone to find more entertaining ways of spending their evening. I notice the Government's duty squad sitting on the Government Benches. In those circumstances, I have no intention of pressing this matter. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Falconer of Thoroton moved Amendment No. 171: Page 70, line 39, leave out from beginning to ("or) in line 40 and insert ("If the Lord Chancellor has decided to make the alterations he shall also notify the authorised body").

On Question, amendment agreed to.

[Amendment No. 172 not moved.]

Lord Falconer of Thoroton moved Amendment No. 173: Page 73, line 21, at end insert ("and of his reasons for recommending that it be made").

On Question, amendment agreed to.

Clause 35 [Overriding duties of advocates and litigators]:

Lord Falconer of Thoroton moved Amendment No. 174: Page 20, line 27, after ("act") insert ("with independence").

The noble and learned Lord said: My Lords, the Lord Chancellor promised the noble and learned Lord, Lord Lloyd, on two occasions during Committee stage to consider how Clause 35 might be strengthened to emphasise the obligation on advocates and litigators to act independently. I therefore move Amendment No. 174 and speak to the other amendment in the group which amend Clause 35 so that it now provides explicitly that those who exercise rights of audience or rights to conduct litigation must do so with independence. I am aware that the noble and learned Lord's original amendment to Schedule 5 was intended to result in a wider statement of principle being included on the face of the Bill. That provided that the Schedule 5 powers should be exercised by all involved compatibly with the principle that a strong, independent and self-regulating legal profession should be preserved.

However, I have not changed my view that an amendment in such wide terms is unnecessary and would in any event not have the hoped-for effect. As the Lord Chancellor has said often before, he is committed to an independent and self-regulating legal profession. I hope that I have demonstrated that the principle of self-regulation does not come under threat from the Bill. The powers that are given to the Lord Chancellor by this Bill to change the rules of authorised bodies are strictly circumscribed as we discussed earlier in relation to Amendments Nos. 166 and 167. They can be exercised only after an exhaustive process of consultation with the explicit agreement of Parliament through an affirmative resolution. They may be used only in accordance with the general principles set out in Section 17(3) of the 1990 Act.

We remain of the view that those principles are well founded and comprehensive. We are committed to the principle that all advocates and litigators should be independent in the exercise of their professional duties. That is why Clause 35 has been included in the Bill. Clause 35 already places on a statutory basis the duty which all authorised advocates and litigators have to the court before which they are engaged to act in the interests of justice and the duty to comply with the rules of conduct of their professional body. However, I accept that the feeling of many of your Lordships is that there should be a signpost, as the noble and learned Lord the Master of the Rolls described it, to demonstrate that this statute is framed with the maintenance of independence in mind. I accept it is right that the Bill should include on its face an explicit commitment to the principle of independence, and I beg to move this amendment accordingly.

On Question, amendment agreed to.

Lord Hacking moved Amendment No. 175:

Page 20, line 32, at end insert— ("(2B) Where any person who exercises before any court a right of audience granted by an authorised body is employed as an advocate and is dismissed from his employment, then he shall be regarded for the purposes of Part X of the Employment Rights Act 1996 as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that he acted in a manner which was not consistent with the best interests of the employer, or otherwise failed in his duty to his employer, when such action or failure to act occurred by reason of his compliance with either or both of the duties described in subsection (2A)."").

The noble Lord said: My Lords, noble Lords will recall that particularly in relation to an amendment moved by my noble friend Lord Borrie the House considered the position of employed lawyers and their right to represent their clients in court. I do not want to repeat the argument advanced then. But noble Lords may remember that the noble and learned Lord has some hesitation about giving rights of audience to employed lawyers in consultancy companies, accountants companies and the like. I still hope that I shall be able to persuade my noble and learned friend to extend the rights of audience also to those employed lawyers.

We have had the temporary demise of Clause 31 of the Bill. Therefore we have somewhat of a lacuna at present. Noble Lords opposite nod their heads. That is why the amendments have been attached to Clause 35; they marry naturally to the temporarily demised Clause 31.

In the amendments we seek to give further independence to employed lawyers in an interesting way: by making it a ground for unfair dismissal if those lawyers have been acting not in the best interests of their employers but, following their primary duty, to the court. Under amendments to the employment rights legislation, there are serious consequences for dismissing an employee unfairly. I can read at some length the penalties for unfair dismissal but perhaps noble Lords will accept them from me. I am glad to see the noble Lord, Lord Phillips, nods his head vigorously.

The purpose of the amendments is to assist my noble and learned friend the Lord Chancellor to uphold the rights of employed lawyers. The noble and learned Lord, Lord Ackner, is not in his place; I am not inviting him to come back. I feel strongly that lawyers, in whatever capacity, have total integrity towards the ethics of the profession. Any lawyer has a prime duty to the court; and he should serve that duty.

The amendment gives some fortification to that purpose. If an employed lawyer exercised his ethical duty primarily to the court to the disadvantage of his employers, the employer would be sanctioned seriously if he dismissed the advocate. I beg to move.

Lord Borrie

My Lords, I support the amendment which stands also in my name. A key argument opposing the granting of rights of audience to employed lawyers is that they owe their first duty to their employer, and that only a freelance practitioner can be truly independent and give his or her first allegiance to the court and to justice. If that were true, the cause of justice would be seriously undermined by the daily appearance of employed lawyers as advocates in the magistrates' courts and county courts and on tribunals and arbitrations.

It is said, "Ah, that may be so. Their appearance in those courts or tribunals may be for reasons of expediency. The pass has been sold. But it is essential that for the higher courts the purity of independent advocacy, free from the deleterious effects and influences of an employer, must be retained". I have not seen or heard in this House any empirical evidence to the effect that employed lawyers are somehow incapable of giving independent advice or observing professional integrity in their proper duty to the courts and tribunals before which they currently appear. In the public and private sectors, both of which I have experience of in terms of working with employed or in-house lawyers, I know and they know that they are paid to give the best of their professional advice and assistance, irrespective of whether or not that is the advice the employer wants to hear.

Clause 35 is intended to underline the fact that everyone who has a right of audience, or a right to conduct litigation, has an overriding duty to the court to act—and the Lord Chancellor has added "independently"--in the interests of justice. The amendment in the name of my noble friend Lord Hacking is designed to strengthen the natural professional instinct of the employed lawyer to do just that by giving him greater security of employment. The employer would know that if he were unwise enough to put pressure on a lawyer in his employment to do otherwise than act in accordance with his duty to the court and his integrity and to dismiss him for ignoring the employer's instructions, that would, ipso facto, be unfair dismissal under our general employment law.

We all know that the independence of the senior judiciary is protected, and has been for centuries. by the well-known rule and that it needs a vote of both Houses to dismiss them. Our atnendment has a similar purpose—to protect the independence of the employed lawyer. I shall not, certainly at this time of night, spend time expounding the many advantages to an employer in being enabled to choose either to use his employed in-house lawyer or an independent practitioner to conduct litigation and to engage in advocacy. But sometimes he will want to do that. He may want an in-house lawyer to conduct only interlocutory proceedings. He may want his in-house lawyer to be only the junior and the Queen's Counsel to be an independent practitioner. But I suggest that it is desirable to enable the employer to have freedom of choice, instead of being burdened by the present costly restrictions imposed by the Bar Council.

During Committee, I gave an example of a construction consultancy company which may want to use its employed banisters, who often have qualifications as engineers or surveyors, to act as advocates not just for itself but for its clients. My noble and learned friend the Lord Chancellor courteously said that he was not inclined to go so far as that. Now is not the occasion to pursue the matter further. However, my noble and learned friend added that he did not rule that out for the future, particularly if one of the existing professional bodies changed its rules to allow such a development. If it is not impolite, discourteous or contemptuous to say of my noble and learned friend that he may have had his tongue in cheek at that point, I tried to imagine the Law Society and the Bar Council changing their rules to that effect. I support the amendment in the name of my noble friend Lord Hacking.

Lord Kingsland

My Lords, I rise to support Amendment No. 176, which, as I recall, was treated with a degree of scepticism by the noble and learned Lord, Lord Falconer, in Committee. This amendment would provide that where employers induced advocates to breach their overriding duties set out in Clause 35, it would be punishable as a contempt of the court concerned.

The amendment is complementary to Amendment No. 175 tabled by the noble Lord, Lord Hacking. It is important to ensure both that any employees who are dismissed for faithfully discharging the overriding duties set out in Clause 35 are entitled to compensation and also that adequate direct penalties apply to the employer concerned. The penalties would need to apply whether or not the attempt to induce advocates to breach their overriding duties succeeded and whether or not the advocate concerned was dismissed.

Lord Clinton-Davis

My Lords, I should have thought that it would follow almost as certainly as night follows day that, particularly in the light of the amendments which have just been adopted, an industrial tribunal would find in favour of the advocate if he were put under such pressure.

I do not believe that it is right simply to talk about compensation in the light of the current law. Nothing is said in the proposed amendments about compensation other than by way of an implicit acceptance that the existing law in that respect is satisfactory as regards both amendments. I believe that it is necessary to offer rather more compensation. However, that is another issue. It is difficult to imagine a situation where an industrial tribunal could fail to support the advocate in such circumstances.

Lord Meston

My Lords, I support Amendment No. 176 in the name of the noble Lord, Lord Kingsland, which is grouped with Amendment No. 175. It should be apparent on the face of the Bill that those who employ people to exercise rights of audience or rights to conduct litigation are themselves answerable to the court if they exert improper pressures on those whom they employ.

I am glad that the noble Lord, Lord Kingsland, has pursued his amendment. I regret that the arguments against its predecessor in Committee were frankly unconvincing. Of course, the lawyer who is an officer of the court and a member of a professional body should normally have primary responsibility for a breach of the overriding duties set out in Clause 35 as it now is. But the enlargement of rights and the use of employed advocates and litigators is bound to bring the risk that unscrupulous employers and their corporate alter egos or single issue pressure groups who are not subject to professional rules or ethics will, from time to time, apply improper pressures on those who represent them. The lawyer cannot escape his responsibilities by blaming the client but the employed lawyer will not always be operating within the conventional relationship which exists at present between lawyer and client, as the Bill itself recognises.

However, I suggest that Clause 35, looks lame without any real sanctions. It should be made clear that employers and others are not immune simply because they do not have duties imposed upon them by Clause 35. I hope that the Government will look again at that problem.

Lord Falconer of Thoroton

My Lords, these two sets of amendments are intended to strengthen the position of lawyers under Clause 35. They are directed particularly at the protection of employed lawyers, although the two amendments in the name of the noble Lord, Lord Kingsland. are not limited to employed lawyers.

Those amendments seek to provide protection to employed lawyers from pressure, primarily from their employer, in two ways: first, by making a new provision in relation to contempt, which is the route of the noble Lord, Lord Kingsland; and, secondly, by making certain dismissals automatically unfair, which is the route of the noble Lord, Lord Hacking.

I shall deal with them in reverse order; namely, with contempt first. As the noble Lord, Lord Kingsland, will be aware, these amendments are not unlike amendments that he tabled in Committee. As I indicated at the time, with the greatest respect to the noble Lord, I thought the amendments that he tabled then were bad amendments. I explained in some detail why I thought they were bad amendments. I am afraid that, to the extent to which these amendments are different, I think they are worse than those tabled before.

What would first strike any reasonable person about Amendments Nos. 176 and 179 on the Marshalled List—I say this advisedly, knowing that these amendments have been drafted by no less a body than the Bar Council—is that they would create a new category of contempt which could be committed only by non-lawyers. The amendments apply only to persons who are not subject to the rules of conduct of an authorised body. So one could have the somewhat anomalous situation that the noble Lords urge upon us, that if a lawyer and a lay person behaved in exactly the same way, in the same case, by attempting to bring about a breach of another lawyer's duty to the court, the lay person is automatically guilty of contempt but under these provisions the lawyer is not. It may have nothing to do with the fact that it is drafted by the Bar Council. I realise, as I say, that the amendments were drafted by the Bar Council, but, even so, that seems to me to be an extraordinary proposition.

The revised amendments also seem to me to be confused about the requisite state of mind, or mens rea, on the part of the guilty lay person. They start off by saying that he is guilty if he intends to bring about a breach of a lawyer's duty to the court, or if he ought reasonably to appreciate that his actions would be likely to bring about a breach of that duty, which suggests some degree of mens rea. The amendments go on to say that the lay person is guilty whether or not he knew, or ought to have known, that the conduct likely to be brought about constituted a breach of the lawyer's duty to the court. So I am left unsure what precisely a lay person has to think or know or intend before he can be found guilty of contempt under this provision. I suspect that this is an attempt to impose strict liability for contempt. If so, I do not think for one moment that that would be appropriate.

As I explained in Committee, one of the objections to these amendments is that they impose a liability for contempt on a lay person—presumably a client or employer—which would not necessarily attach to a lawyer even if he did breach his duty to the court. In other words, these amendments propose that you are guilty of a contempt if you urge the lawyer to do something which may not be a contempt by him. That is a very odd conclusion to reach. I made this point laboriously in Committee and it is a point that the noble Lords, Lord Kingsland and Lord Meston, have perhaps sensibly not chosen to deal with at all in their speeches supporting the amendment. As both noble Lords know, the courts are rightly slow to penalise people for contempt, and it is far from certain that a lawyer who breached his duty to the court would be found to be in contempt of court. Both noble Lords know that that would depend entirely on the circumstances of the case.

I do not think it can be right, as a matter of principle, to say that a lay person is guilty of contempt if he acts in a way likely to bring about an act by a lawyer which may or may not be a contempt.

As I explained in Committee, there is no reason why lay members of the public, be they employers, clients, witnesses or anyone else, should know what a lawyer's duty to the court entails. It is for the lawyer to know that, and, if necessary, to explain why he cannot act in certain ways. If the lawyer betrays his duty to the court, it is he, and not his client or employer, who should be punished. That seems right to me. The lay person could quite understandably urge a lawyer not to tell the court something, unaware that suppressing a fact could just as much be a breach of his duty as telling a direct fib. I realise that lying behind these amendments is a concern that employed lawyers—

10.30 p.m.

Lord Meston

My Lords, but if the lay person, who is not answerable to a professional body, knows perfectly well that he is asking something improper of the lawyer, and the lawyer is subjected to such pressure that he gives way and does as he is asked, should not the lay person be answerable to the court?

Lord Falconer of Thoroton

My Lords, two points arise from that. First, the lawyer is there to resist. Secondly, the amendments make it clear that it does not matter whether or not he knows that it is a breach of duty.

As I have said, I realise that lying behind these amendments is a concern that employed lawyers may be pressurised by unscrupulous employers to act in ways which are unethical. I think those fears are exaggerated. But in cases where an unscrupulous employer did attempt to interfere in the course of justice, he could, of course, be dealt with under the existing law, either for contempt—that is, for contempt of the existing law—or, in the most serious cases, for perverting the course of justice or for conspiring or attempting to do so. In the light of what I have said, I hope that the noble Lord, Lord Kingsland, will be sufficiently reassured to withdraw his amendment.

I now turn to the amendments proposed by my noble friends Lord Hacking and Lord Borrie. These are designed to ensure that if an employed advocate or litigator is dismissed from his employment because of a conflict between his duty to his employer and his compliance with the duties imposed by Clause 35—that is, his duty to the court—he shall be regarded as having been unfairly dismissed.

When this Bill was being drafted, my noble and learned friend considered whether it ought to include a provision of this kind, but concluded that it was unnecessary. The question of whether a dismissal is fair or unfair is one of fact for an employment tribunal. I have no doubt that an employed lawyer would succeed in an unfair dismissal claim, if he could show to the satisfaction of the tribunal that he had been dismissed because, for example, he had refused to obey an instruction from an employer as to how he should handle a case in court, when to obey that instruction would have put him in breach of the statutory duties imposed by Clause 35. Clause 35 already makes it clear that the duties it imposes on advocates and litigators override any other duty they might owe in civil law, including, for example, any contractual obligation to an employer.

The law on unfair dismissal was consolidated in the Employment Rights Act 1996. One of the banes of lawyers everywhere is that no sooner does one statute regularise and consolidate the law than other statutes start to provide exceptions and special cases. I am reluctant to do so in this case, in respect of employed lawyers, because I think it may prove confusing and unhelpful to provide in this Bill what purports to be a special rule for lawyers who are unfairly dismissed, when in fact all that rule will do is to restate what would have been the position in any case.

Having said that, I should make it clear that my noble and learned friend is willing to look again at this. One of the proper functions of the law is deterrence, and it may be that, on this occasion, there would be advantage in making it explicit on the face of the Bill that employed lawyers may not be penalised for adhering to their statutory duties, and that if they are penalised, they will have redress. My noble and learned friend will therefore consider this matter further, in discussion with his colleagues in the Department of Trade and Industry. If it is decided that such an amendment would be helpful, it be moved in another place. On that basis, I hope that my noble friend Lord Hacking will agree to withdraw his amendment.

Lord Hacking

My Lords, I am grateful to my noble and leaned friend for that reply, and particularly for the last passage in which he told us—this is most welcome—that my noble and learned friend the Lord Chancellor will give further consideration to this matter. It is important to put the stake in the ground here. We should remember that on a Motion moved by the noble and learned Lord, Lord Ackner, your Lordships removed from the Bill the right of employed lawyers to have audience in the courts. Your Lordships have therefore shown some unease about employed lawyers having rights of audience before the courts. If we can illustrate the fact that an employed lawyer has to fulfil his absolute duty to the court, I think and hope that those worries will be assuaged.

I am not so hopeful that the fears of the noble and learned Lord, Lord Ackner, will be assuaged, even at Third Reading or when the Bill returns from another place. But I would be more hopeful that the House as a whole would feel that there is sufficient protection to the system of justice and that the role that employed lawyers, in exercising rights of audience, play in the sanctity of justice would be sufficient to make us feel comfortable with the willingness to restore to this Bill Clause 31, which disappeared at Committee stage. On that basis I am happy to withdraw my amendment.

Amendment, by leave, withdrawn.

[Amendment No. 176 not moved.]

Lord Falconer of Thoroton moved Amendment No. 177: Page 20, line 37, after ("act") insert ("with independence").

On Question, amendment agreed to.

[Amendments Nos. 178 and 179 not moved.]

The Lord Chancellor moved Amendment No. 180:

After Clause 36, insert the following new clause—

PUBLIC NOTARIES: ABOLITION OF SCRIVENERS' MONOPOLY

(". A public notary may practise as a notary in, or within three miles of, the City of London whether or not he is a member of the Incorporated Company of Scriveners of London (even if he is admitted to practise only outside that area).").

The noble and learned Lord said: My Lords, my amendments and the amendments of the noble Lord, Lord Goodhart, go to the same purpose; namely, to end the statutory monopoly held by the Incorporated Company of Scriveners of London over notarial work in the central London area.

Amendment No. 180 will insert a new clause after Clause 36, providing that a notary may practise in the City of London or within three miles of its boundaries, whether or not he is a member of the Scriveners' company. The subsequent Amendments Nos. 192 to 195 standing in my name will amend Schedule 11 so as to repeal references to the monopoly in statute accordingly.

I shall explain some of the background to this, as it may be that not all of us are completely familiar with the intricacies of the notarial profession. Notaries authenticate certain legal documents, mainly for use abroad, by signing and sealing them. They may also prepare legal documents for use abroad, undertake conveyancing and probate work, translate foreign legal documents, administer oaths and take affidavits. However, all notaries who wish to offer notarial services in the City of London or within three miles of its boundaries, must, under the current legislation, belong to the incorporated company, with is a livery company of the City of London. Members of the Scriveners' Company are subject to more specialised training requirements than general notaries, who are mostly solicitors. I understand that there are currently 28 scrivener notaries practising in the City who are the beneficiaries of this monopoly. There are roughly 1, 000 non-scrivener general notaries who are only permitted to practise outside the specified area.

This monopoly was placed on a statutory basis by Section 13 of the Public Notaries Act 1801, and confirmed by Section 6 of the Public Notaries Act 1843 and Section 57 of the Courts and Legal Services Act 1990. During the passage through Parliament of the Competition Act 1998, there was pressure to abolish the monopoly, which is understandable, and an amendment to that end was tabled. The amendment was ultimately rejected as being outside the scope of that Act. However, I undertook to review the arguments for and against the monopoly, in order to form a view on the desirability or otherwise of its abolition.

I have now received views from the various notarial associations, the Law Society, the Office of Fair Trading, and the Faculty Office of the Archbishop of Canterbury, which, for historical reasons, regulates the notarial profession. I have come to the clear view that there is no justification for preserving this monopoly. As the Government's policy is generally hostile to the preservation of commercial monopolies, the existence of the Company's monopoly is anomalous. The Office of Fair Trading has advised me that the monopoly is anti-competitive and should be abolished. Concerns have been raised by those who oppose the monopoly that in a large area of central London, ordinary notarial facilities are not sufficiently accessible to members of the public who might need them.

I have considered the arguments from the Incorporated Company of Scriveners—namely, that it offers a specialist service and that standards will be lowered by competition—but I do not find them convincing. There will be nothing to stop notaries from continuing to belong to the Scriveners' company if they wish, and if they offer a higher level of service than other notaries they should have nothing to fear from competition.

I have detailed reasons for marginally preferring the terms of this amendment, which I have brought forward, to that of the noble Lord, Lord Goodhart, but I imagine he would agree that it is unnecessary to go into that kind of detail. I hope that your Lordships and the noble Lord, Lord Goodhart, will be happy to accept my amendment. I beg to move.

10.45 p.m.

Lord Goodhart

My Lords, I welcome Amendment No. 180. When I tabled Amendment No. 181 I was not certain that the noble and learned Lord the Lord Chancellor was going to table Amendment No. 180. Had I known that he was going to do so, I would not have tabled my own amendment. I certainly shall not move it on this occasion.

Notaries are a minor branch of the legal profession in England and Wales. They are of course much more important in other legal systems, particularly in mainland Europe. Many of your Lordships will be familiar with the important role of the notaire in the French legal system. The profession is an ancient one and many of your Lordships will be familiar with the important role which notaries, real or bogus, played in the historical events recorded in the "Marriage of Figaro", "Cosi fan tutte" and "The Barber of Seville".

The Deputy Speaker (Lord Ampthill)

Sing!

Lord Goodhart

My Lords, I reject the invitation from my noble friend to sing. Our own legal system could get on perfectly well without notaries but they are, of course, essential where documents which are executed in England and Wales need to be authenticated by a notary for use in other legal systems. I was frankly astonished when a few weeks ago I was told that notaries qualified to practise anywhere else in England and Wales were not allowed to practise in the City of London or within three miles of it, and that in that area the right to practise was reserved to freemen of the Incorporated Company of Scriveners who had passed the company's own examinations and served formal apprenticeships. It is plainly the last remnant of mediaeval guild monopolies. The scriveners say that those who have qualified as freemen of their company offer higher standards of service than other notaries. That may well be true but there is no obvious reason why higher standards are needed in Southwark than in Southampton.

There are a number of professional organisations such as the Chartered Institute of Taxation whose membership is not necessarily a qualification for practice in that profession but is an indication that the members are specialists who have attained high standards in their fields. There is no reason why the scriveners should not enjoy a successful future as an organisation of that kind, but I believe the monopoly must go.

On Question, amendment agreed to.

[Amendment No. 181 not moved.]

Clause 37 [Permission to appeal]:

Lord Falconer of Thoroton moved Amendment No. 181A: Page 21, line 30. leave out subsection (6).

The noble and learned Lord said: My Lords, Amendments Nos. 181A to 181G are drafting amendments, which remove from the Bill definitions which are unnecessary. I should also like to take this opportunity to give notice of our intention to table at Third Reading some further drafting amendments. Our aim in doing so will be to ensure that that part of Section 58(2) of the Supreme Court Act 1981, which provides for the finality of certain decisions of a single Lord Justice, will be replicated in the legislation before your Lordships.

The effect of Section 54(6) (which generally prevents the decision of a single Lord Justice on a leave application from being appealed) will also need to be reinstated and, indeed, extended to cover similar decisions of lower courts acting in an appellate capacity. In the meantime, I urge your Lordships to accept the drafting amendments which are currently before you.

I beg to move.

Lord Meston

My Lords, although the noble and learned Lord describes these as drafting amendments I suggest that they are perhaps a little more than that and that we ought to spend a moment looking at them. I welcome the change of language proposed which goes some way towards reducing the stringent restrictions on second appeals within the Bill. However, I know I am not alone in retaining misgivings about the whole concept of additional restrictions on second appeals, particularly now that almost all appeals will require leave or permission in any event. It is doubtful that those who will he responsible for granting permission to appeal will need the extra restraints stipulated in the Bill in respect of second appeals. I remain of the view that there may at least be an argument for distinguishing between cases where the first appeal has been successful and where it has been unsuccessful. That is a distinction recognised in a recent practice direction.

At Committee stage, the noble and learned Lord, Lord Falconer, said that he did not believe that a justice system should be predicated on the assumption that decisions of the lower court are wrong. That is quite correct. But, equally, it must he questionable whether an access to justice Bill should impose these restrictions on second appeals, particularly when permission to appeal is now to be required in almost all categories of case.

Lord Falconer of Thoroton

My Lords, I think that the noble Lord's points are more pertinent to Amendments Nos. 181B, 181 C and 181D, which deal with the circumstances for a second appeal. I will reserve my reply until I move those amendments.

On Question, amendment agreed to.

Clause 38 [Second appeals]:

Lord Falconer of Thoroton moved Amendment No. 181B: Page 21, line 38, after ("made") insert ("to the Court of Appeal").

The noble and learned Lord said: My Lords, you will recall from the discussions in Committee, to which the noble Lord, Lord Meston, has just referred, that Clause 38 will introduce into legislation the principle that, in normal circumstances, there should be only one appeal to the courts in the same proceedings. The clause contains a safeguard to ensure that those cases which merit the consideration of the Court of Appeal on appeal are able to reach it.

In Committee, the noble Lords, Lord Kingsland and Lord Philips of Sudbury, sought an amendment, the effect of which would be to enshrine in primary legislation the right of an appellant to invite the Court of Appeal to consider whether a second appeal should proceed. As I have said, it has always been the Lord Chancellor's policy that second appeal applications shoula be considered by the Court of Appeal. although the noble and learned Lord the Lord Chancellor had intended to make the specific provision for this in secondary legislation. I therefore undertook on his behalf that he would consider an amendment of this nature and return to your Lordships' House on the point today. I hope that noble Lords will agree that Amendments Nos. 181B and 181C meet the concerns about who will hear not only the applications for second appeals hut the second appeals themselves.

Amendment No. 181 B makes clear the destination of any substantive second appeal which is permitted by specifying that such appeals will be made to the Court of Appeal.

Amendment No. 181C directly answers the concerns about whether applications for a second appeal will reach the Court of Appeal. I should draw attention here to a slight, hut important. distinction between the current amendment and the amendment tabled in Committee by the noble Lords, Lord Kingsland and Lord Phillips of Sudbury. While it may not have been the intention of those noble Lords, prior to any Court of Appeal consideration of the merits, the Committee amendment as drafted would have allowed the lower court to make the initial decision as to whether a second appeal should proceed to the Court of Appeal. Such a situation would open the door to inconsistency in the cases which proceed to second appeals, and see cases before the Court of Appeal which it would not itself have considered appropriate for a second appeal. Amendment No. 181C, in naming the Court of Appeal as the body which will consider all applications for a second appeal, avoids these potential pitfalls.

As to Amendment No. 181D, in Committee a number of your Lordships were supportive of the concern raised by the noble Lord, Lord Meston, about the use of the word "special" in Clause 38(1)(6). This subsection, together with subsection (1)(a), establishes the criteria which must be satisfied in order for a second appeal to proceed.

The noble and learned Lord the Lord Chancellor has given careful consideration to the points which were made on this issue in Committee. On his behalf I now recommend to your Lordships the use of the word "compelling" in place of the word "special". This not only accords with his own earlier inclinations hut, as your Lordships would expect, pays due regard to the views of the Court of Appeal judges, so effectively given voice in Committee by the noble and learned Lord, Lord Woolf. We are satisfied that the phrase "compelling reason" provides an appropriate indication of the circumstances in which there should be a further appeal to the Court of Appeal.

These three amendments provide an assurance to litigants that their application for a second appeal will be considered and, if, successful, heard substantively by the Court of Appeal, regardless of how far down the court structure the original appeal was decided. This will also enable the Court of Appeal to determine itself the cases which are most appropriate for it to hear. It therefore provides, overall, a structure by which there are second appeals in appropriate cases and by which in all appropriate cases the Court of Appeal will hear such an appeal; and, further, that there is someone other than the judge of first instance or tribunal of first instance that made the decision who will have some say in whether leave to appeal should be given. I hope that that lays to rest the legitimate concerns of the noble Lord, Lord Meston. I beg to move.

On Question, amendment agreed to.

Lord Falconer of Thoroton moved Amendments Nos. 181C to 181E: Page 21, line 38, at end insert ("the Court of Appeal considers that"). Page 22, line 1, leave out ("special reason for the appeal to be made") and insert ("compelling reason for the Court of Appeal to hear it"). Page 22, line 4, leave out subsection (3).

On Question, amendments agreed to.

Clause 39 [Power to prescribe alternative destination]:

Lord Falconer of Thoroton moved Amendment No. 181F: Page 22, line 33, leave out subsection (8).

On Question, amendment agreed to.

Clause 40 M[Assignment of appeals to Court of Appeal]:

Lord Falconer of Thoroton moved Amendment No. 18IG: Page 23, line 6, leave out subsection (3).

On Question, amendment agreed to.

Lord Falconer of Thoroton moved Amendment No. 182:

After Clause 46, insert the following new clause—

VICE-PRESIDENT OF THE QUEEN'S BENCH DIVISION

(".—(1) The Lord Chancellor may appoint one of the ordinary judges of the Court of Appeal as vice-president of the Queen's Bench Division and any person so appointed shall hold that office in accordance with the terms of his appointment. (2) In section 4 of the Supreme Court Act 1981 (composition of High Court)—

1. (a)in subsection (1) (membership), after the words "the Senior Presiding Judge:" insert— "(ddd) the vice-president of the Queen's Bench Division;", and.
2. (b)in subsection (6) (vacancy in offices not to affect constitution), at the end insert "and whether or not an appointment has been made to the office of vice-president of the Queen's Bench Division."

(3) In section 5 of that Act (divisions of High Court), in subsection (1)(b) (Queen's Bench Division), after 'thereof, "insert "the vice-president of the Queen's Bench Division".").

The noble and learned Lord said: My Lords, it has been the practice for some time for the Lord Chief Justice to appoint a senior member of the Court of Appeal to assist him in his administrative duties as President of the Queen's Bench Division of the High Court. The Lord Chancellor's predecessor decided, after consultation with the Lord Chief Justice, that this appointment should be formalised as Vice-President of the Queen's Bench Division.

It was always the former Lord Chancellor's intention that the appointment should be put on a statutory footing when the opportunity arose to do so, an intention which the present Lord Chancellor has fully supported. The present Lord Chancellor is grateful to his predecessor for pointing out to him that this Bill afforded him precisely that opportunity.

The amendment as drafted echoes the provisions made in the Courts and Legal Services Act to put the appointment of the senior presiding judge on a statutory footing and also reflects the provisions in the Supreme Court Act for Vice-Presidents of the divisions of the Court of Appeal. I commend it to your Lordships, and I beg to move.

On Question, amendment agreed to.

Lord Phillips of Sudbury moved Amendment No. 183:

After Clause 47, insert the following new clause—

PROHIBITION AGAINST CHILDREN BEING PRESENT IN COURT DURING THE TRIAL OF OTHER PERSONS

(". In section 36 of the Children and Young Persons Act 1933 (prohibition against children being present in court) after "shall", where it first appears, insert "without the consent of the court (which may be withdrawn at any time)".").

The noble Lord said: My Lords, this amendment is addressed to the fact that Section 36 of the Children and Young Persons Act 1933 prevents children under the age of 14 from going into a court other than as witnesses or in one or two other specific capacities. If the amendment is passed, it will permit any court to allow anyone of any age into the court with the consent of the court, that consent to be withdrawn at any time.

The origin of this proposal is very simple. The charity of which I am chair, the Citizenship Foundation, in conjunction with the Magistrates' Association, has for some years now run an extremely successful mock trial competition for young people in magistrates' courts. The Lord Chancellor will recollect, I am sure, his appearing last year to judge the final of this remarkable competition which engages more than 2, 500 young people every year in going into magistrates' courts and conducting cases, taking all the roles in the conduct of those cases, including those of magistrates themselves, with only one genuine person, if I may use that expression, being present on those occasions; namely, the chair of the Bench for each case.

As the law stands, although the typical age of the participants is 12 and 13, they are not allowed into local magistrates' courts prior to their day in court in order to get the feel of the real court in action and to get some idea of how cross-examinations are undertaken and how indeed the whole court process works. This amendment has the innocent intent of allowing these 12 and 13 year-olds to sample the reality before they do their hit and try their own efforts at taking the Farts in the court process.

The amendment is simply drawn. It gives complete discretion to each and every court as to whether to admit children under the age of 14 and explicitly gives any of those courts which do allow young people in, the right at any time to ask them to withdraw. I therefore commend to your Lordships the proposal contained in this amendment. I should also add that the Justices' Clerks' Society, which is such a strong supporter of the "mock trial" competition, is also happy at the thought that this amendment may pass your Lordships' House. I beg to move.

11 p.m.

The Lord Chancellor

My Lords, I am grateful to the noble Lord, Lord Phillips of Sudbury, for bringing this issue to your Lordships' attention. This is an area of legislation that has remained unchanged, for one reason or another, for over 65 years. To some, that might signal that there are no real problems with this section; no real mischief to address. To my mind, that is certainly not necessarily so. The fact that there has been no change for a long time should not preclude useful alterations now. I therefore wish to explore for a moment or two the exact intention behind the amendment.

As the law stands, children are prohibited from attending criminal trials unless they are a defendant, a witness, an infant in arms or their presence is required for the purposes of justice. The intention of this section was almost undoubtedly to protect children from the sometimes harsh, perhaps troubling environment, of an adult trial. But we recognise that time has moved on. We have already made changes to youth court procedure to achieve a greater openness in proceedings, and a move to greater openness could be welcome. Also, we recognise, as the noble Lord, Lord Phillips, emphasised, the importance of our children being educated in the process of justice as well as in the other institutions of an open society. So I am not unsympathetic to the spirit of the proposed new clause.

The effect of the amendment would appear to be to create a greater openness while maintaining the court's control over its own proceedings. Of course the new clause will affect not only the magistrates' courts but also the higher criminal courts. It is important that the court be left to regulate its own proceedings in this area because the court's decisions will vary on a case-to-case basis.

While I can see the argument that the court should have a discretion to exclude children from the outset, let us say because of the nature of the case, or in the course of the case because of the nature of the evidence being given at the time, I am unhappy with an open-ended discretion to exclude or admit by reference to no statutory criteria. One court could exclude children as a matter of course whereas another could follow a quite different approach.

My basc reaction—though I confess I have not thought the through thoroughly—is that, if there were to be a change of this nature, there should be statutory criteria ay reference to which children should be excluded or admitted. I readily confess that I have not given my mind sufficiently to what those criteria might be or bow meaningful or useful they might be. It is for consideration whether there should be a rebuttable presumption in favour of admission subject to exclusion based on statutory criteria.

I have said enough to indicate to the noble Lord that I am sympathetic to the spirit of his amendment, but invite him to give further thought to an amendment along the lines I indicated. Meanwhile, I will have my officials do likewise. I undertake to write to the noble Lord; I invite him to write to me. On that basis, which is an expression of sympathy for the spirit of his amendment, I hope he will withdraw his amendment this evening.

Lord Phillips of Sudbury

My Lords, I am most grateful to the noble and learned Lord for that response. I am very happy to withdraw the amendment on the basis indicated.

Amendment, by leave, withdrawn.

Clause 54 [Areas outside Greater London]:

Lord Kingsland moved Amendment No. 184: Page 32, line 19, at end insert— ("( ) a unitary county council;").

The noble Lord said: My Lords, I rise to speak briefly to Amendment No. 184 in the absence of the noble Lord, Lord Mottistone.

The amendment applies to subsection (10) of Clause 54. The clause deals with magistrates' courts committees. Subsection (10) defines what is a relevant authority. There are three categories of relevant authority stipulated in the Bill: a county council; a county borough council; and the council of a unitary district. The amendment seeks to add a fourth category: a unitary county council.

Under the Local Government and Rating Act 1997 a unitary county council is defined as a council in a county in which there are no district councils. Apparently, the Isle of Wight is the only geographical entity which falls into that category. Were this amendment not passed, therefore, the Isle of Wight would be excluded from the scope of Clause 54. I beg to move.

Lord McIntosh of Haringey

My Lords, I am happy to assure the noble Lord that this amendment is unnecessary. The definition of "relevant authority", as set out in Section 32(10) of the Justices of the Peace Act 1997, is unchanged by Clause 54, barring the omission of references to councils for London. This reflects the position since the Police and Magistrates' Courts Act 1994. Clause 56 establishes a separate magistrates' courts authority for Greater London.

A unitary council such as the Isle of Wight, of which the noble Lord, Lord Mottistone, was such a distinguished Lord Lieutenant, falls into category (a) of Clause 54(10) as it is a county council. All other unitary authorities are captured within the ambit of subparagraph (c) of the clause. As the primary purpose of this subsection is explanatory only, I invite the noble Lord to withdraw the amendment.

Lord Kingsland

My Lords, I shall convey the noble Lord's reassuring words to the former Lord Lieutenant and Governor of the island. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 58 [Qualification for appointment]:

Lord Jenkin of Roding moved Amendment No. 185: Leave out Clause 58.

The noble Lord said: My Lords, I have hesitated at some length as to whether I ought to intervene at this stage, having taken no part in these proceedings but having listened with some admiration to the immensely learned preceding debates. I assure noble Lords on the Government Front Bench that I am not the vanguard of the nightshift and I shall try to be brief.

I have some sympathy with the anxieties that have been expressed about Clause 58 by the Association of Justices' Chief Executives. Members of the association believe that their posts should by law continue to require a legal qualification and that Clause 58 is misconceived and ought to be removed from the Bill.

I have studied the Committee stage debates on this and the following clause that took place on 28th January, and I have read carefully the speeches of the noble Lord, Lord McIntosh of Haringey, (at col. 1265 of Hansard) and the remarks of those who took part in that debate, and also the second speech of the Minister (at col. 1268) in response to a point raised by the noble Viscount, Lord Tenby. I have also seen the government amendments on the following clause, which may go some way to meet the anxieties of the association.

But to my inexpert mind, those debates and the amendment that has been tabled to the new clause have been primarily aimed to protect the independence of the individual justices' clerk from improper influence so as to underline the importance of his role in giving legal advice to magistrates' courts. It was also desired to clarify the distinction between the justices' clerks' legal role and their administrative functions.

The amendments that were debated and those that will be before this House were not primarily aimed at retaining the existing law about chief executives' legal qualifications. I do not think that this is a case that has yet been argued on the Bill. I think it should be argued so that Ministers can explain why they are removing this required qualification.

What is now Clause 59(6) of the Bill seeks to give authority to justices' chief executives to direct the advice to be given by justices' clerks and other staff, other than advice that is protected by Section 48 of the 1997 Act. I am advised that this would include legal advice given to justices outside the court room. It seems to the association wrong to allow a chief executive who does not himself have a legal qualification such as is required to be held by the justices' clerk to exercise such powers.

During the passage of the Police and Magistrates' Courts Act 1994, Parliament was very careful in its consideration of this matter. It took the view then—and the association believes that Parliament was right—that there were substantial grounds for retaining the requirement for justices' chief executives to be legally qualified.

The Magistrates' Court Service is essentially a legal service, operating within what I believe everyone recognises as a highly complex statutory framework. It is essential that a magistrates' courts committee's chief officer—for that is what we are talking about—is competent in the law so as to be in a position to ensure that the courts committees function within the law. He must himself understand that fine line, which I think was debated at some length in Committee, between legal advice and the administrative functions in order to maintain the independence of the judicial process, which we all regard as of the utmost importance.

Magistrates' courts committees are increasingly expected to have a clear understanding of complex areas of law in relation to such matters as employment, finance and other issues and they must therefore have as their chief executive officer a man or woman who is fully able to understand such issues and assist them in applying the law to the decisions that are made.

A professional legal qualification facilitates and strengthens the responsibilities attached to the justices' chief executives because they are responsible for the line management of the justices' clerks. They take the view that it is not satisfactory that the legally qualified clerks should have as their next-in-line manager someone who does not need to be legally qualified. This is important not only in the management of the courts but in the operation of the magistrates' courts committee's area legal forum.

A professional legal qualification facilitates successful inter-agency discussions with other chief officers within the justice system who themselves possess legal qualifications. One thinks immediately of the Crown Prosecution Service, the local law society and other services which have to have a substantial knowledge of the law, such as the police, the Probation Service, and so on.

As was mentioned in Committee, the justices' chief executive is responsible for overseeing many legal or quasi-legal statutory functions, such as enforcement and legal aid. While the Bill seeks to define a clearer separation on the one hand of legal roles delivered by the justices' clerk and his roles in administration on the other, the fact of the matter is that the whole service finds its focus through the post and position of the justices' chief executive. He it is who must be capable of understanding and bringing together the two sides, legal and administrative, to ensure effective delivery of the important legal and judicial service. If he himself does not have the legal qualification, there is a real danger that he will not be able to perform that function as effectively as hitherto. Ministers have not explained why they believe it is right to remove that requirement. I believe that the association has adduced some powerful arguments that need a reply. I beg to move.

11.15 p.m.

Lord McIntosh of Haringey

My Lords. I am grateful to the noble Lord for expanding on what is a relatively simple issue; namely, the proposal to remove Clause 58, which itself removes the requirement that a person may not be appointed as a justices' chief executive without the specified legal qualifications of a justices' clerk. The noble Lord, Lord Jenkin, referred to the fairly extended debate in Committee, part of which was about the qualifications of the justices' chief executive but much more of which was about the need, as a number of noble Lords saw it, to define and protect the legal responsibilities of justices' clerks.

A number of noble Lords, in particular the noble Lord, Lord Gisborough, and the noble Viscount, Lord Tenby, felt that the proposals in the Bill to rely on Clause 48 of the Justices of the Peace Act 1997 were not adequate to protect the legal responsibilities of justices' clerks because they referred only to protection in giving advice in an individual case. They felt that it was important to have that more widely drawn.

In response to those objections I undertook to go back and consider what further amendments would be necessary. As the noble Lord has generously acknowledged, that is what is contained in Amendments Nos. 186 to 189. I hope that when we come to those amendments I shall be able to show that we have achieved that certainly to the satisfaction of the Justices' Clerks Society and, I hope, to the satisfaction of the Association of Justices' Chief Executives.

Having said that, we return to what I may be so bold as to describe as the secondary issue of whether the justices' chief executive should have legal qualifications. The post of the justices' chief executive was established by the Police and Magistrates' Courts Act 1994. Each of the then 105 magistrates' courts committees, with three exceptions, was duty bound to appoint a lawyer qualified as a justices' clerk. This gave a near monopoly to justices' clerks to be promoted to chief executive. The Government do not believe that that monopoly should continue. We are fortified in that view by having, I hope to the satisfaction of all concerned, properly distinguished between the legal and the administrative roles of justices' clerks.

The noble Lord, Lord Jenkin, said that essentially this was a legal service. It is not. Essentially, it is a legal service contained within an administrative service of very considerable extent involving a vast amount of public expenditure. That is not to say that the experience of justices' clerks, the service's professional legal advisers—who until now have comprised the overwhelming majority of justices' chief executives—will be wasted. There will be no pressure on committees to appoint non-lawyers. Committees will retain the right to choose and appoint lawyers if they wish. This clause provides committees with the opportunity to appoint individuals without legal qualifications but with relevant skills in management and administration of what is, I repeat, a very considerable business. Justices' clerks will not Ix prevented from applying for posts but the competition will be wider.

We believe that the current legislation limits the potential of committees to attract the best possible applicants for the post of justices' chief executive. I do not denigrate the skills of those individuals who have been appointed as justices' chief executive, but the skills of managers in other organisations, whether in the public or private sector, are pertinent to the management of the magistrates' courts. With his own business experience, I hope that the noble Lord, Lord Jenkin, will recognise the importance of transferability of skills. It is essential that a justices' clerk is legally qualified of course. The lay magistracy rely on him for advice in court and on matters of law including practice and procedure.

The justices' chief executive is the statutory head of service locally. Subject to any directions given by the committee, the chief executive is responsible for the day-to-day running of the area.

Since 1994, it has become clearer that the chief executive has a different role and needs to be a dedicated administrator and not dilute the emphasis of this pivotal post with the added daily responsibilities of a lawyer. The removal of the requirement for legal qualifications is particularly important, as Clause 60 of the Bill transfers the responsibility for administrative functions from the justices' clerk to the justices' chief executive. That is to ensure that neither the administrative nor the legal functions are diminished in any way.

It is true that anything dealing with the magistrates' courts requires an understanding of the law. The noble Lord, Lord Jenkin, makes a valid point. But that can be achieved through good training. It can be business training which is transferable. The magistrates' courts committee will, I am sure, recruit competent chief executives; and a legal qualification need not be required because the magistrates' courts will make that decision.

In the light of our undertaking, which I believe we have fulfilled, to make the proper distinction between legal functions and administrative functions I hope that the noble Lord and the Association of Justices' Chief Executives will feel that we have come to the right conclusion. I invite the noble Lord to withdraw the amendment.

Lord Jenkin of Roding

My Lords, I am immensely grateful to the noble Lord for the careful way in which he has responded to the amendment I moved. I think that the association will regard the matter as now having been properly aired.

The noble Lord laid some emphasis on the concepts of competition and monopoly. No doubt the association will take note of that. As I said in my opening remarks, I think that the amendments tabled which will be discussed in a moment may go some way to reassure the association that its concerns are recognised. The association points out, however, that in a number of other services where one has specialists who need to be managed by non-specialists the experience has not always been a happy one. My experience of that in the health service is perhaps one example. One can think of the Crown Prosecution Service, the Police Service and so on. I hope that the noble Lord and the Government are right and that there will not be the difficulties which the association fears. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 59 [Role]:

Lord McIntosh of Haringey moved Amendment No. 186: Page 36, line 30, leave out from ("to") to end of line 31 and insert ("matters of law (including procedure and practice) among the justices' clerks appointed by the committee, in particular with a view to securing consistency in the advice given by them to justices about such matters.").

The noble Lord said: My Lords, in moving Amendment No. 186, I speak also to Amendments Nos. 187 to 189. The principal amendment is Amendment No. 188.

I shall try to avoid repetition because it was necessary for me to introduce some of the argument in response to the noble Lord, Lord Jenkin, on the previous amendment. These amendments are brought forward as a result of our debate in Committee on the respective roles of the justices' chief executive and the justices' clerk and the transfer of administrative functions of justices' clerks. A number of amendments were proposed which I might summarise as having the intention of providing confirmation of the independence of justices' clerks in the exercise of their legal and judicial functions.

In response to the representations, I agreed to consider further the concerns of those who laid amendments to what are now Clauses 59 and 60. I also agreed to bring forward further government amendments, if that proved to be appropriate. We have given further consideration to the concerns expressed about the role and independence of the justices' clerk and we have had useful meetings and correspondence with those in the magistrates' courts service. We were concerned to find a proper balance between the need to maintain independence in the provision of legal advice and the clear need for justices' clerks to be properly under the direction of the justices' chief executives in matters of administration.

We have accepted that some advice-giving on matters of law stretch beyond that of an individual case. We have also identified some further judicial functions of justices' clerks which are not covered by the existing provisions in Section 48 of the Justices of the Peace Act, 1997; that is, some judicial functions conferred upon justices' clerks directly by statute rather than by rules made in accordance with Section 144 of the Magistrates' Court Act 1980.

For both of those reasons, we accept that the description in Section 48 of the Justices of the Peace Act is no longer sufficient to describe the range of functions in respect of which the justices' clerk should be independent of direction. Consequently, new Clause 59A introduces a revised Section 48. The reference to advice-giving in individual cases is dropped. In new Section 48(2)(a), the judicial function is more widely expressed to encompass any function which is exercisable by one or more justices of the peace. New Section 48(2)(b) describes the giving of legal advice by reference to Section 45(4) and (5).

The definitions in Section 45(4) and (5) are amended to make it clear that the functions and powers referred to concern advice on matters of law, which includes matters of legal procedure and practice. We believe that the clear link between this provision and Section 48 removes any doubt about the independence of clerks when giving legal advice, which goes beyond that given in individual cases.

Amendment No. 187 has the effect of removing subsection (3) from Clause 59. This is no longer required in the light of the amendment to Section 48 of the Justices of the Peace Act 1997. Amendment No. 186 amends Clause 59 by making an alteration to the wording of new Section 41(4) of the Justices of the Peace Act 1997. The amendment makes it clear that one of the purposes of the meetings, arranged by justices' chief executives for justices' clerks to discuss matters of law, is to promote the consistency of legal advice given by justices' clerks throughout a magistrates' court committee area.

Our debate on amendments considered at the Committee stage included amendments laid on Clause 59(6). In the light of the government amendment to Section 48, there is no need to make any change to this provision.

Finally, Amendment No. 189 makes a consequential amendment to Clause 60(5). It might be helpful if I were briefly to remind your Lordships that the purpose of the clause was to bring about the transfer of responsibility for administrative functions to the justices' chief executive. Subsection (5) of the clause attempted to provide reassurance that there was no intention to transfer responsibility for legal matters to the chief executive. The amended subsection (5) confirms, in light of the new Section 48, that for the purposes of this section. the administrative functions of justices' clerks are all those apart from those which are legal functions within the meaning of the new Section 48(2).

I apologise for the length of this speech, but the issue is important and complex. I believe it is important for your Lordships to consider this package of amendments as a whole. I hope that you are reassured that the concerns expressed by some noble Lords during Committee stage have now been comprehensively, and satisfactorily, addressed. The independence of legal advice generally, free from direction by the justices' chief executive or magistrates' courts committee, is secured. There is more clarity as to which functions are legal and a proper line is drawn between the responsibilities of chief executives and justices' clerks. I beg to move.

Lord Gisborough

My Lords, I thank the noble Lord for the great trouble he has taken to allay the concerns of the justices' clerks. They greatly appreciated the fact that they had an opportunity to speak to the Minister and his officials so that they could express their worries. They are completely satisfied with the amendments, which I support.

On Question, amendment agreed to.

Lord McIntosh of Haringey moved Amendment No. 187: Page 37, line 3, leave out subsection (3).

On Question, amendment agreed to.

Lord McIntosh of Haringey moved Amendment No. 188:

After Clause 59, insert the following new clause—

INDEPENDENCE OF CLERKS AND STAFF EXERCISING LEGAL FUNCTIONS

(".—(1) For section 48 of the Justices of the Peace Act 1997 substitute—

"Independence of justices' clerks and staff exercising legal functions.

48.—(1) When exercising any legal function—

1. (a) a justices' clerk shall not be subject to the direction of the justices' chief executive or any other person or body; and
2. (b) a member of the staff of a magistrates' courts committee shall not be subject to the direction of any person or body other than a justices' clerk.

(2) In subsection (1) "legal function" means—

1. (a)any function exercisable by one or more justices of the peace; or
2. (b)a function specified in section 45(4) or (5) above."

(2) In section 45 of that Act (functions of justices' clerks)—

1. (a)in subsection (4) (advice on law, practice or procedure to justices at their request), for "law, practice or procedure" substitute "matters of law (including procedure and practice)", and
2. (b)in subsection (5) (power to bring point of law, practice or procedure to attention of justices), for "law, practice or procedure" substitute "law (including procedure and practice)".").

On Question, amendment agreed to.

Clause 60 [Transfer of administrative functions of justices' clerks]:

Lord McIntosh of Haringey moved Amendment No. 189: Page 37, leave out lines 26 to 31 and insert ("those which are legal functions within the meaning given by section 48(2) of the Justices of the Peace Act 1997.").

On Question, amendment agreed to.

Schedule 10 [Transitional provisions and savings]:

Lord Falconer of Thoroton moved Amendments Nos. 190 to 191: Page 99, line 44, leave out ("directs") and insert ("specifies"). Page 100, line 12, leave out ("14(2)(a)") and insert ("14(1)"). Page 100, line 14, leave out ("direct") and insert ("specify").

On Question, amendments agreed to.

Schedule 11 [Repeals and revocations]:

Lord Falconer of Thoroton moved Amendmets Nos. 192 to 195:

page 106, line 22, at end insert—
("41 Geo. 3 c.79.	The Pubilc NotariesAct 1801.	Section 13.
6 & 7 Vict. C. 90.	The Public Notaries Act 143.	Section 6.")
page 106, line 36, at end insert—
("1985 c. 36.	The Administration of Justice Act 1985.	Section 65.")
page 107, line 8, column, 3 at end insert—
		("Section 57(11)")
Page 107, line 10, column3, at end insert—
		(In section 113, in subsection (1), in the definition of "general

notary", paragraph (b) and the preceding "or" and, in subsection (10) paragraph (d) and the preceding "and ".")

On Qusetion, amendments agreed to.

In the Title:

Lord Falconer of Thoroton moved Amendment No. 196: Line 5, leave out second ("and") and insert (" to appoint a vice-president of the Queen's Bench Division and to make provision about").

On Question, amendment agreed to.

House adjourned at twenty-nine minutes before midnight