§ 3.38 p.m.
§ The Lord Chancellor (Lord Irvine of Lairg)
My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
§ Moved, That the House do now again resolve itself into Committee.—(The Lord Chancellor.)
§ On Question, Motion agreed to.
§ House in Committee accordingly.
§ [The CHAIRMAN OF COMMITTEES in the Chair.]
§ Clause 31 [Rights of audience: employed advocates]:
§ Lord Archer of Sandwell moved Amendment No. 237:
§ Page 19, line 7, at end insert ("as regards his acting as an advocate on behalf of—
- (a) his employer, or
- (b) where his employer's only or main activity is providing legal services to the public, a client of his employer").
The noble and learned Lord said: In moving this amendment I shall, for the convenience of the Committee, speak also to Amendments Nos. 237A and 239A. Clause 31 deals with rights of employment for employed advocates. Subsection (1) exempts employed advocates from certain professional rules of conduct. For this purpose a person is an employed advocate if he
is employed by the Crown in any capacity which involves his appearing before courts or,
he is otherwise employed in such a capacity",
that is, otherwise than by the Crown.
§ That wording is very wide. In terms it would mean that if he is in employment in that capacity he may represent anyone, however unconnected with his employers. Presumably that is not the intention. My noble and learned friend may be pleased to hear that this amendment is intended purely to be helpful. The purpose of the amendment is simply to limit the exemption to what everyone believes was always intended. What is proposed is that the measure should be limited to situations in which the advocate represents his employer or, if his employer is in business to assist or represent clients, represents one of his employer's clients. It is a short point. I beg to move.
§ Lord Goodhart
New section 31A(1) of the Courts and Legal Services Act seems to give rights of audience to any qualified person employed as an advocate without any restriction on whom he can provide those services for. If that is the intention, we believe that it goes too far. Leaving aside the vexed question of employees of the Crown Prosecution Service, we accept that employees should have a right to appear as advocates on behalf of their employers. A qualified advocate employed by a bank should be entitled to act as an advocate on behalf of the bank in litigation to which the bank is a party. However, we do not believe that the bank should be able to offer the advocacy services of its employees to its customers for their litigation. Legal services are not services such as insurance to be marketed by a conglomerate. Efficient, honest and incorruptible legal services are of central importance in democratic societies, as indeed is recognised by Clause 36 of this Bill. Solicitors may, of course, employ someone with advocacy qualifications to provide advocacy for their clients. However, we believe that advocacy services should not be provided as a by-product of some completely different kind of service.
§ Lord Borrie
This amendment in effect forbids an employed lawyer from acting as an advocate for a client of his employer unless the employer's sole or main activity is providing legal services. In coming to a view on this matter I have been aided by the information given to me by the Bar Association for Commerce, Finance and Industry—a body of which I am not a member, but I, and no doubt other Members of the Committee, have received information from it—which has a membership of about 1,200 barristers who work in industry. It is a respectable body, as is indicated by the fact that its president is the noble and learned Lord, Lord Slynn of Hadley, and one of its vice-presidents is the noble Lord, Lord Alexander of Weedon.
Earlier this month the association sent me a letter in which it points out that the barristers who belong to the association—I shall call them in-house barristers for short—have long suffered from the restrictive rules of the Bar Council which prevent them from exercising rights of audience in the higher courts at all. The Bar Association is represented on the General Council of the 1139 Bar, but it feels that it is not really represented by that body in, for example, such discussions and debates as we are having today. The in-house lawyers were considerably gratified to note Clauses 31 to 37 of this Bill. In their view the value to industry of those measures will be significant as companies will be able to use their own in-house lawyers for litigation in so far as they choose to do so. They may choose to use an in-house barrister for interlocutory proceedings but not for main proceedings. Or, they made choose to have an in-house lawyer, acting as a junior independent barrister, as Queen's Counsel in the proceedings. But they would have the choice.
Naturally, many firms which employ barristers in-house are concerned to keep down the costs of litigation. They wish to provide legal services to their clients, as well as any services they need for themselves, in a way which suits them best. They want to have that freedom of choice. The Bar Association has provided a number of case studies to illustrate the situation. That is most useful in my view. I have selected just one of them to mention this afternoon. It concerns a company which provides consultancy services in the construction industry. As one would expect, it engages quantity surveyors, engineers, architects and lawyers. Many of its lawyers have dual professional qualifications which firms find of great value. For example, someone may be qualified both in law and one of the engineering professions.
The firm to which I refer, James R Knowles Plc, has 18 barristers on its staff. According to the Bar Council rules, they are technically non-practising barristers because they provide legal services to their employer's clients. At present they are not allowed to act as advocates in court for any of their employer's clients. In other words, at the present time they cannot provide a comprehensive, one-stop service to their clients. They can assist with arbitration and with mediation. However, the land which is marked "keep off" is the land of litigation.
The Committee will appreciate that clients of this consultancy firm may have had a long and established relationship with the firm. As and when a matter may unfortunately give rise to litigation, they do not wish to go outside, as it were, to seek a barrister to represent them in court. After all, this is a specialist area of law. If a barrister is employed by this consultancy firm who has perhaps dual qualifications, he may be—I say only may be—the best choice for the client in terms of advocating his cause in the courts.
Many Members of the Committee, and those who propose this amendment, may be concerned—as was the case when we discussed criminal cases earlier in the Committee stage—about the integrity and the independence of barristers. It is argued that unless they are part of the independent barristers' profession, they may be less independent and show less integrity in some way. Of course the Committee is aware, although we have not yet discussed it in any detail, that Clause 36, which we shall reach shortly, stipulates that any advocate has an overriding obligation to the courts rather than to anyone else.
1140 In my submission this amendment would damage the growing legitimate business of consultancy firms—of the kind I have mentioned—of firms of accountants and of well-known and respected insurance companies. The amendment would prevent them providing a service to the client which includes legal services and which includes occasionally, unfortunately, the need to go to litigation. To deprive those companies of being able to provide one of their in-house lawyers as an advocate in court would be to restrict them at such time as one or more, or in the case of insurance companies many, of their clients might need legal assistance in the courts. The rights of subrogation would be involved in such a case. Yet the in-house lawyer, who these days is often very skilled and has possibly been an independent practitioner in the past, would be prevented from assisting in a client's pursuit of his case through the courts. The Bill, unamended, would provide for the development of that service without in any way impairing or impeding the position of the independent Bar, whose members will, as always, be available if that is a client's choice.
§ Lord Archer of Sandwell
I am grateful to my noble friend for giving way. Does he agree that, as presently drafted, the Bill would permit the employed lawyer to represent anyone who simply came to him or her with any kind of case, totally unrelated to the business of the employer?
§ Lord Borrie
It may be that the wording of the clause is broader than is desirable. What I am concerned to establish is that it is ultimately very desirable that in-house lawyers should be enabled to provide services for clients—I gave the example of established clients—of the kind of firms I have mentioned. I imagine that it would be very difficult to create some rigid distinction as to, for example, whether a person had been a client for a month, a year or whatever before that was allowed to happen.
§ The Lord Chancellor
My noble and learned friend Lord Archer seeks to clarify the scope of Clause 31. He describes his point as a short one; however, it is important and has wide ramifications, as the noble Lord, Lord Borrie, demonstrated.
Amendments Nos. 237A and 239A standing in my name are intended to achieve the same purpose of clarifying the scope of Clause 31. Therefore, perhaps the Committee will forgive me if, at the outset of our deliberations, I take what I regard as a useful opportunity to set out the whole of the Government's thinking on these issues. Perhaps I may deal first with the specific amendments.
Clause 31 is designed to abolish, once and for all, the disgraceful restrictive practices which have prevented Crown Prosecutors and other employed lawyers from appearing in the higher courts, regardless of their qualifications.
Clause 30 grants all barristers and solicitors rights of audience, which may, however, only be exercised in accordance with the qualification regulations and rules of conduct of the authorised body concerned. It will 1141 remain for the Bar Council and the Law Society to regulate the rights of audience of their members. But the Government do not intend that, in regulating their members, they should be able to discriminate against employed barristers and solicitors as they currently do.
Amendment No. 237A replaces the word "circumstances" in subsection (2)(a) with the word "capacity". That subsection provides that employed advocates are not bound by professional rules which limit the courts before which, or proceedings or circumstances in which, a right of audience may be exercised by an employed advocate; this is subject to the proviso in subsection (2)(b) that such rules do not apply, only if the same limitation is not imposed on other members of the body.
My intention is that an employed lawyer should be able to exercise rights of audience in the higher courts if he is otherwise qualified to do so. His employed status should not in itself constitute a barrier. But I think the word "circumstances" may go too far. I do not intend to prevent the professional bodies from making rules governing the exercise of rights of audience which provide differently for the different circumstances of advocates in private practice and employed advocates.
In particular, and here I begin to touch on the issues raised by my noble and learned friend's amendment, I do not wish to prevent the professional bodies from requiring that the generality of employed advocates should not provide their services to the public at large, but should appear in court only on behalf of their employers.
There are, of course, arguments, some of which we have heard from the noble Lord, Lord Borrie, in favour of allowing commercial companies such as insurance companies or management consultants to provide advocacy services to their clients. However, I am not persuaded by those arguments. With the leave of the Committee, I shall explain the Government's position in greater detail in a moment.
So what I propose in Amendment No. 237A is to replace the word "circumstances" with the word "capacity". This is narrower, but will still ensure, for example, that professional rules cannot prevent employed advocates from appearing as the sole or leading advocate in a substantive case. I think that this narrowing achieves what my noble and learned friend Lord Archer intends by his amendment, which is to preserve those professional rules which prevent employed advocates, other than those who are employed in lawyers' offices, from offering their services to the public.
The amendment that I have proposed leaves one problem unresolved, which is the position of those advocates who are employed by lawyers of another category. Solicitors employed by firms of solicitors are treated by the Law Society's rules as solicitors in private practice. They may therefore offer their services to the public and, if they have the necessary qualifications, may exercise full rights of audience.
1142 In contrast, barristers employed in solicitors' offices, are deemed, by a fiction of the Bar Rules, to be non-practising banisters. They may offer limited legal services to members of the public but have no rights of audience of any kind under the Bar's rules, no matter how well qualified they are, and no matter how many years they may have spent as barristers in private practice.
The Government regard that as a restrictive practice which cannot be tolerated. A barrister who would have full rights of audience if he were in private practice should have full rights of audience if he works for a solicitor, and should be able to offer his services as an advocate to members of the public in the same way as solicitor advocate employed in the same firm.
My intention is, therefore, that lawyers who are employed by other lawyers, such as barristers working in solicitors' offices, should be able to offer advocacy services to members of the public. But I am not confident that Clause 31 achieves that end at present. I shall therefore bring forward an amendment at Report stage in order to make that explicit. On the basis of what I have said, I hope that my noble and learned friend will agree to withdraw his amendment.
The last amendment in this group, Amendment No. 239A, is designed simply to clarify the drafting of Clause 31 without affecting its substance. As I have already explained, the purpose of Clause 31 is to abolish, once and for all, the restrictive practices which have prevented Crown prosecutors and other employed lawyers from appearing in the higher courts, regardless of their qualifications. It does this by inserting into the Courts and Legal Services Act 1990 a new Section 31A, which provides that someone who has been granted a right of audience by an authorised body and is "employed as an advocate" is not bound by certain restrictions which might otherwise prevent him from exercising his rights of audience.
Subsection (3) of the new Section 31A defines when a lawyer with rights of audience is "employed as an advocate". It covers in subsection (3)(a) Crown prosecutors and others in Crown employment and in subsection (3)(b) advocates employed outside government. The existing wording of subsection (3)(b) refers to those who,are otherwise employed in such a capacity",which seems to me to be potentially confusing, as it is not immediately clear whether it refers to those who are employed by the Crown or those who are employed in a capacity which involves appearing before the courts. The latter is the correct interpretation, it is the invention and I hope that the amendment makes that clear.
The effect of the amendment will be that the two categories of employed advocate are: first, Crown prosecutors; and secondly, other lawyers with rights of audience who are employed in a capacity which involves appearing before the courts. The separate reference to other Crown employment will go, and other government lawyers will be covered by the second category. The definition of "Crown employment" in subsection (4) will be rendered unnecessary and will also disappear. The noble and learned Lord, Lord Simon 1143 of Glaisdale, is not in his place this afternoon, but I hope that this reduction in unnecessary verbiage would have appealed to him, had he been present.
I commend the amendments standing in my name, Amendments Nos. 237A and 239A. I have explained the amendments but it may be of assistance to the Committee at the outset of our deliberations to be in no doubt as to the state of affairs that the Government intend to bring about as a result of the changes in the law.
I summarise the matter as clearly as I can in relation to each category of lawyer. The intention of the Bill is that solicitors and barristers should, if they wish, be able to acquire and exercise full rights of audience in accordance with the rules of their profession, without any discrimination for or against either category.
The way this is to be achieved is that they will be granted full rights of audience in principle on call to the Bar or admission to the roll of solicitors. But whether they may exercise them, and the circumstances in which they may exercise them, will be governed by the training requirements and rules of conduct of each professional body, subject to the restrictions on those rules which are contained in the Bill.
A solicitor or barrister who has qualified to exercise full rights of audience will retain those rights if he moves from one branch of the profession to the other. He will also retain them if he joins the Crown Prosecution Service, or enters other Crown employment as a government lawyer, or is employed as a lawyer by local government or by the legal services commission. A barrister or solicitor who joins the public service without having previously acquired the ability to exercise full rights of audience—for example, a barrister who has not been able to find pupillage—should be capable of acquiring those rights as an employed lawyer. I look to the professional bodies to find sensible ways of achieving this, but the Bill does not deal with that point directly.
Now I turn to barristers or solicitors in other employment. Obviously a solicitor employed by a firm of solicitors is capable of acquiring full rights of audience already. A barrister employed by such a firm, however, is not able to exercise any rights of audience on behalf of its clients, even if upon joining the firm he is a barrister with many years' experience as an advocate in the higher courts with full rights of audience. He can only acquire rights of audience afresh as a solicitor. This is an obvious restrictive practice inhibiting flexibility and movement within the profession. I am not satisfied that the Bill currently deals with this problem effectively, and I shall therefore be seeking to bring forward a suitable amendment on Report.
I next turn to solicitors or barristers who are employed as lawyers in industry or commerce or with other employers. That was the focus of the attention of the noble Lord, Lord Borrie. If they have met the qualification requirements which apply to other members of their profession, then they too should be able to exercise full rights of audience in the courts on behalf of their employers. I believe that the rightness of 1144 that was accepted by the noble Lord, Lord Goodhart. This will be made possible as a consequence of the new Section 31A in the 1991 Act, inserted as a result of Clause 31 of the Bill. The new Section 31A outlaws discrimination on the grounds of employee status.
I next address the issue to which the speech of the noble Lord, Lord Borrie, was directed. I have considered the further and important question of whether fully qualified barristers and solicitors employed as advocates in commerce or industry or in other private sector employment should also be able to offer their advocacy services to the public or to the clients of their employers, as distinct from their employers themselves. Arguably the words "or circumstances" in the new Section 31A(2)(a) would outlaw the rules which currently prevent that, since they impose a limitation on those for whom employed advocates may act which does not apply to advocates in private practice.
There are arguments—and the noble Lord, Lord Borrie, canvassed them—for enabling an advocate employed by an insurance company, for example, to represent in court a party whose potential liability is covered by a policy with the company. Other private companies such as management consultants or banks might also like the opportunity to offer advocacy services to their customers when required.
While I do not rule out that option for the future—I cannot do so since it is always open to the professional bodies to propose changes to their rules—I do not think it would be appropriate for the Bill to strike down the regulations which currently prevent those developments. Advocacy services need to be properly regulated by the professional bodies, especially when they are being offered to the public at large. I do not wish to open up a gap in regulation which might enable an insurance company, bank or supermarket for that matter—or, indeed, what might be called a Virgin law shop—to provide professional legal services to the public, without having to comply with the regulations which govern firms of solicitors or barristers in Chambers or with equivalent regulations to protect the public.
The Government, therefore, do not intend that the Bill should abolish the rules which prevent the provision of advocacy services to the public or to clients by commercial organisations other than firms of lawyers. That will remain a matter for regulation by the professional bodies.
I apologise to the Committee for taking so much time at the outset, but I thought that it would be of assistance if the whole position from the Government's standpoint were made clear at this early stage in our discussions this afternoon. I beg to move.
§ Lord Woolf
I am grateful for that clear and helpful description of the general position of the Government on the series of clauses to the Bill and the proposed amendments. I, like many noble Lords present, found what the noble and learned Lord said very reassuring.
However, let me draw attention to a matter which is of concern not only to myself but to many of my judicial colleagues. At Second Reading, I made it clear that I did not in general oppose the extensions of rights of 1145 audience. In common with the Lord Chief Justice, I drew attention to the deeply felt concerns to which I have already referred. Those concerns were as to the possible adverse consequences on the administration of justice which could result from the extension. Central to those concerns was a fear that the standards of advocacy and representation in courts and tribunals would deteriorate. To avoid this happening, I suggest that it is essential that there should be in place, for all who have rights of audience, a common code of conduct as to how those rights are exercised, and a common disciplinary body to enforce that code.
In saying that, I should emphasise that I am not suggesting that the common code should interfere with the rights of each professional body to regulate its members in general terms. I am concerned about the quality of the services provided in the courts and tribunals to which I have referred as a result of those rights of audience.
The Bar has already in place the type of code and disciplinary body which I would like to see commonly applied to the Bar, solicitors and legal executives. I believe that, with encouragement, there should be no difficulty in reaching agreement on a common code dealing with advocacy practice, and a common disciplinary body to enforce it.
As noble Lords will know, as Master of the Rolls I have a special relationship with the solicitor side of the profession. I am also a vice-president of the Institute of Legal Executives. I shall certainly urge those two bodies to co-operate in what I have suggested should exist. I have no reason to think that the Bar would have any problem with what is being proposed.
However, if an agreement cannot be reached, I suggest that this would be an example of a situation where the Lord Chancellor, subject to suitable consultation and safeguards, should be able to use the powers that this Bill gives him to take appropriate action. This would not involve any infringement of the independence of the three professional bodies to which I have referred. It would avoid a wholly undesirable lack of consistency in standards in relation to the rights of audience, which I apprehend will concern noble Lords. Whether it is an employed or independent barrister, solicitor or legal executive who is acting as advocate, the same standards of conduct must be observed.
The views I have just put forward were expressed forcefully by the Council of the Inns of Court in its paper in response to the consultation paper on rights of advocacy. They are supported by the Lord Chief Justice and by the Judges Council, which considered the issue last night.
Will the noble and learned Lord, the Lord Chancellor confirm, first, that he agrees that all those who practise as advocates before courts or tribunals should be subject to a common code of conduct relating to the role of the advocate while they are acting in that capacity, and that there should be a single disciplinary body, and, secondly, that if the authorised bodies fail to reach agreement, the Lord Chancellor will have under the Bill sufficient powers to ensure that a common code and a disciplinary tribunal are established?
1146 I see no objection to extending rights of audience as long as consistent standards—as high as at present—are observed. The maintenance of those standards depends on a suitable disciplinary procedure being in existence in which the judiciary must have the final word. I can see every objection to a series of different bodies having rights of audience, each with its own standards and own means of enforcement. If we are not to have those safeguards, the case that could be made by those noble Lords who are not in favour of the proposals in this part of the Bill would be that much stronger. The ability to enforce standards is the foundation on which the case for extending rights depends. If those rights are to be enforced, they must be enforced consistently. I would suggest that that can only be done by having a common disciplinary tribunal.
§ 4.15 p.m.
§ Lord Ackner
Before the noble and learned Lord sits down, can he tell us what "standards" comprise? Do they comprise competence?
§ Lord Woolf
The standards to which I specifically refer are standards in the face of the court or tribunal. Those will be dependent upon competence but, as I see it, the question of competence is one which can be safely left in the hands of the individual professions. Different considerations apply to standards in the conduct of the litigation before the court or tribunal.
§ Lord Clinton-Davis
I support what the noble and learned Lord the Master of the Rolls has said in a very interesting development in the debate. I sincerely hope, as a practising solicitor—but no longer a solicitor advocate, except maybe here—that the Law Society and Institute of Legal Executives will have no difficulty in accepting the principle of the argument. It would be interesting to see whether my noble and learned friend had to bang heads together on this. I would hope not, but as a last recourse that may be necessary.
Can I ask my noble and learned friend whether the current regulations deal with this situation? If an advocate is employed by company A, could he act for a subsidiary of that company and vice versa? I do not know the answer—it may be irrelevant—but it occurs to me that a difficulty might arise in that respect.
§ Lord Hacking
The noble and learned Lord the Lord Chancellor need not have apologised at all to the Committee for giving such clear guidance on how he sees the rights of audience progressing forward in relation to employed advocates. I am very grateful to the noble and learned Lord for that careful and forward thinking statement. It is to be welcomed that rights of audience should be extended to employed advocates, not only to those who appear in the Crown Courts but to other very well qualified lawyers in administrative bodies such as the financial services. There are some very highly qualified lawyers in the Financial Services Authority.
I also welcome the noble Lord's approach to barristers who find themselves in solicitors' employment, which is my side of the profession. 1147 Competition for the Bar is very stiff and many a bright and able young lawyer is unable to find a tenancy. We on our side of the profession are more than willing to welcome to our ranks bright and able young lawyers who have been unable to find a tenancy. For them, having become highly qualified and gone through pupillage, possibly extended pupillage, before eventually failing to find a tenancy, clearly it is wrong that they should lose their rights of audience on coming to our side of the profession. I therefore very much welcome the observations of the noble and learned Lord.
I have some concern, however, about the third matter which the noble and learned Lord explained at length: the position of employed lawyers outside such bodies as the Crown Prosecution Service, regulatory authorities and so forth; in other words, those in consultancy agencies, accountancy firms and the like. While the noble and learned Lord does not close the door in future, the difficulty lies in seeing how those lawyers can obtain rights of audience. They will certainly not get them under the umbrella of established authorised bodies. One has only to look at the history of the long debates on employed advocates and debates in the Bar Council to know of the intense opposition that is likely to arise over those lawyers being given rights of audience. I am aware of the management consultancy cited by my noble and learned friend Lord Borrie. I have seen its lawyers appearing in arbitrations where they have full rights of audience. The competence and professional ability of the lawyers in that organisation is of the highest order. The difficulty is that the authorised bodies will oppose such lawyers being given rights of audience, and their only route will be to establish themselves as an authorised body and go through that very extensive procedure before they are given rights of audience.
There is no valid argument in principle why a lawyer employed by a management consultancy should be any less able and fitted to the role of the advocate than other employed lawyers and those employed in private practice. As to that, I wholly endorse the words of the noble and learned Lord the Master of the Rolls about the need for a common code of conduct relating to the exercise of rights of audience and a common disciplinary body. That can also be incorporated into the point that I make. I ask the noble and learned Lord to give further thought to this issue. Provided every lawyer who has a right of audience is subject to a proper code of conduct and a common disciplinary body the public is properly protected and there is no injustice to the public. If there is no injustice to the public and the lawyer is in those circumstances prevented from practising his skills as an advocate it is a restrictive practice which everywhere else in the Bill my noble and learned friend is opposing.
§ Lord Hutchinson of Lullington
Perhaps I may put a very simple question to the noble and learned Lord the Master of the Rolls on the proposition that there should be a common code. For the independent criminal barrister the basic rule is that he is available under what is called the cab-rank rule to any person who requires his services, however unpleasant or unattractive the case 1148 may be, which means that the advocate must accept that brief before any other. How can that provision apply to the employed prosecuting advocate under a code?
§ Lord Woolf
In the code to which I referred I tried to draw a distinction between standards before the court and the restrictions to which the individual would be subject as to his client. The code to which I referred would not deal with the subject to which the noble Lord refers.
§ Lord Donaldson of Lymington
I welcome the suggestion of the noble and learned Lord the Master of the Rolls that there should be a common code. It is perfectly possible to incorporate into the code the key features that apply to the Bar and may not at the moment apply to solicitor advocates. But there is a very strong case for having a common code. A common disciplinary tribunal is an attractive idea but needs to be looked at a little closely for a number of reasons.
At the moment there is a right of appeal from the Bar's Disciplinary Tribunal to the Visitors who are members of the judiciary. There is a right of appeal (the technical basis for which I have now forgotten) from the Solicitors Disciplinary Tribunal to the courts either under the Solicitors Act or by way of judicial review, but it matters not which. Those are different. They would have to be radically altered by statute before one could have the kind of common tribunal suggested by the noble and learned Lord. There is no doubt that it could be done. I doubt whether it could be done under the powers in this Bill. I also doubt whether it could be done by amendment of this Bill. I do not believe that there has been sufficient time in which to consider the matter in detail.
Perhaps I may deal with one or two other matters. I probably misheard the noble and learned Lord the Lord Chancellor when I thought he said that a member of the Bar, who by definition has full rights of audience from the moment of legal birth, might have difficulty in getting a pupillage and would then be able to transfer to the solicitors' branch where he could not get a pupillage. I do not believe that he could do that. It would not solve the problem because the same rule about requiring pupillage before exercising rights of advocacy would apply to all members of the Bar. Therefore, it would not fall within this exception. However, I may have misheard the noble and learned Lord. If he said "tenancy" that would be a different matter because that would be correct.
On Tuesday of this week, in the debate on employed lawyers, the noble and learned Lord said:Some Members of the Committee may be tempted by the argument that someone who is paid a salary by the state cannot be truly independent. All that is needed to refute that argument is to look at the position of the judges whose independence is not questioned. The senior professional judiciary are full-time salaried servants of the Crown".—[Official Report, 26/1/99; col. 1006.]They are not; they are office-holders, which is substantially different. Furthermore, they are virtually irremovable. Above all, on becoming judges they join a college, as it were, with a very long established view of the importance of independence not only as a body but 1149 individually. No judge, however distinguished, can give any instructions whatever to any other judge. One is considering here personal independence.
Some years ago when I was concerned with industrial relations I recall a very distinguished Member of this House who at that time was a Secretary of State, saying to me, "To whom are you responsible as President?" I understood him to be referring to the National Industrial Relations Court. He said, "I take it that you are responsible to the Lord Chief Justice". I said, "Certainly not". He said, "Then, to the Lord Chancellor". I said, "Certainly not. I am responsible solely to my conscience and to the law." That is a cultural independence that does not exist elsewhere and no parallels can be drawn with it.
§ 4.30 p.m.
§ Lord Wigoder
We seem to have moved away from the issue of principle about employed barristers to issues of standards. Issues of standards are of the greatest importance. I was proposing to make one or two comments about that in the debate on whether the Clause shall stand part, but as the question has been raised perhaps I shall be forgiven for dealing with it now.
A code of conduct, yes; a disciplinary body, yes: those matters are comparatively easy to establish. The real problem is the practical one of ensuring that breaches of the code of conduct are discovered, brought to the attention of the disciplinary body and dealt with. I have in mind the fact that at the Bar such matters are dealt with not only by the Bar Council's disciplinary bodies or by the Inns of Court disciplinary bodies, but also in an informal and effective way. Any member of the Bar who prosecutes and then breaches what might be thought to be in a code of conduct—if there were a formal code—will find, the Bar being a comparatively small profession, that his deficiencies are immediately observed by his colleagues. The matter will be brought immediately to the attention of the head of chambers, who will take action, or it will be brought to the attention of the leader of the circuit, who will take action. It is also not unknown for a wise judge to send for a young man after a case and politely and firmly explain the position.
Therefore, in due course, breaches of a code of conduct can come to the attention, if necessary, of a disciplinary body. I hope that the noble and learned Lord will be able to indicate, in some little detail, not only the nature of the code and the nature of the disciplinary body, but also the machinery for its operation.
I understand that pilot schemes are under consideration. Would the noble and learned Lord say a word about the extent of the proposal in relation to pilot schemes and how they will operate? I venture to assume that when the noble and learned Lord examines the results of the pilot schemes he will want to look not only at the forensic ability of those who have been granted new rights of audience, but also, to use a rather pompous expression, the ethical ability of those granted new rights of audience. I suspect that if and when he does 1150 that, he will find that he has to hasten rather slowly and not extend rights of audience too rapidly and too extensively.
I am sure that the noble and learned Lord will agree that it is absolutely imperative that, before doing that, he should be totally satisfied that the ethical rules of conduct of the legal profession, particularly when carrying out prosecutions, are observed by newcomers to the profession.
§ Lord Campbell of Alloway
The noble and learned Lord the Lord Chancellor will remember that I mentioned the problem of the machinery of quality control in reference to a previous amendment. The noble and learned Lord said that either he would give consideration to that or he would deal with it subsequently in Committee. The noble Lord, Lord Wigoder, referred to the same point. Perhaps it would be convenient for the noble and learned Lord to deal with it in outline at this stage.
While I am on my feet, I most respectfully say that I wholly support everything said by the noble and learned Lord the Master of the Rolls.
§ The Lord Chancellor
I shall endeavour to pick up a few threads of the arguments raised in debate. Then I shall deal with the important proposal brought to your Lordships' attention for the first time today by the Master of the Rolls, the noble and learned Lord, Lord Woolf.
The noble Lord, Lord Clinton-Davis, asked a question about the ambit of the rules of the professional bodies. I suspect that it was a question that came into his head as he was listening to the discussion and he thought that it would be good to know the answer. I shall certainly not give the noble Lord an assurance about the ambit of professional rules without having them in front of me or indeed without consulting on how they are applied in practice. I would have thought that they might be applied in practice so that an advocate employed by a company may appear for his employer, the company, and other subsidiaries within the group. However, I think that calls for investigation by reference to the rules.
The noble Lord, Lord Hutchinson of Lullington, sought to tax the noble and learned Lord the Master of the Rolls with a question on whether the "cab rank" rule would not apply to the Crown Prosecution Service. The "cab rank" rule is one of the glories of the Bar. It underscores that every member of the Bar is obliged, without fear or favour, to represent clients who offer themselves, regardless of how unpopular they may be in the community or elsewhere. However, Crown prosecutors are employed by the Crown Prosecution Service, and therefore appear on behalf of their employer only; so the "cab rank" rule has no application.
I entirely take the point of the noble and learned Lord, Lord Donaldson of Lymington. High Court judges are office holders and can be removed only by address of both Houses of Parliament. That underpins their independence. The much larger number of Crown Court 1151 judges can, by statute, be removed by the Lord Chancellor for misconduct. However, I take the noble and learned Lord's point.
I now turn to the matter brought to the Committee's attention by the noble and learned Lord, Lord Woolf. Before responding, I express my gratitude to him for ensuring that notice was given to me earlier today of his intention to raise such questions. However, I do not regard myself as being in a position to make a fully considered response. Therefore, I shall not offer the detail that I imagine the noble Lord, Lord Wigoder, would prefer as my reaction to the proposal. For some reasons that I shall give. with respect, I suggest to the noble and learned Lord that the waters are slightly deeper than the apparent straightforwardness that his question suggests. In that regard, I identify with the cautionary note struck by the noble and learned Lord, Lord Donaldson of Lymington.
The Lord Chief Justice, the noble and learned Lord, Lord Bingham of Cornhill, suggested in our debate on Second Reading,that rights of audience should be exercised only by those who possess the required knowledge, skill and integrity, and"—he added—who are subject to a common code of conduct and discipline".—[Official Report, 14/12/98; col. 1 1 26.]Advocates are not subject to a common code of conduct and discipline at present. Solicitors, barristers and legal executives—as we must now add—the three kinds of authorised advocate that currently exist, all have their own rules of conduct and their own disciplinary procedures.
Solicitors, for example, have a special code for advocacy as part of their rules. The requirement of Section 17(3) of the Courts and Legal Services Act 1990, which will not be changed by the Bill as it presently stands. is that an advocate must belong to an authorised body which has rules of conduct which are appropriate in the interests of the proper and efficient administration of justice. But the authorised body must have an effective mechanism for enforcing those rules—a matter to which the noble Lord, Lord Wigoder, referred—and that it must be likely to enforce them. All three bodies which are authorised to grant rights of audience to their members meet those criteria today.
All advocates are also subject to a requirement imposed by Section 17(3) of the Courts and Legal Services Act that they may not withhold their services on the grounds that the case is objectionable (that harks back to the cab rank rule); that the conduct, opinions or belief of the client are unacceptable (which similarly harks back to the cab rank rule); or on any ground relating to the source of any proper financial support received by the client.
Any new authorised body will be subject to the same provisions. No new body could be authorised if it did not have satisfactory rules of conduct and disciplinary mechanisms. One of the purposes of the legal services consultative panel, the Director-General of Fair Trading, and the designated judges under the new approval 1152 procedure to be created by the Bill, will be to give advice on whether satisfactory rules and procedures are in place.
Therefore, as matters stand at present, if the authorised bodies wish to pool their experience and expertise and draw up a common code, that would be for them. While I would judge any code on its merits, my instinctive reaction is that there is much to be said for such a common code; and my instinct would be to give it my blessing, basically for the reasons advanced by the noble and learned Lord, Lord Woolf. However, there are potential problems. For example, barristers in private practice do not give members of the public direct access to their services; and, as the noble Lord, Lord Hutchinson of Lullington, emphasised, they operate the cab rank rule. Other advocates need not practise in that way.
I understand, although I have not looked into the matter in any detail, that the Bar Council and the Law Society at one time considered establishing a joint code of conduct for advocates. But the problems on which I have touched were thought of at that time to be insuperable. If I overstate that, I shall be corrected, but that is as I recall the position. There may be some who would suggest that in establishing a common disciplinary code there may be an implication to enforce a common code of conduct; that it was a step on the road towards the fusion of the legal profession. Obviously that does not begin to be necessarily so, but when some think that we move into deep waters.
At present the Bill does not give me any express powers, as I see it, to impose a common code or common disciplinary procedures on the professional bodies. My only powers will be to approve changes which the professions make in their rules; and, with—and only with—the approval of both Houses of Parliament, to alter any rules which unduly restrict rights of audience or rights to conduct litigation. I would not oppose proposals from the professional bodies to adopt a common code and disciplinary procedure if they wish but I should have thought that the initiative lay more with them than with me. However, I accept that the tenor of what came from the noble and learned Lord, Lord Woolf, was rather different. I believe that he went rather further, inviting me to consider acquiring powers to impose the outcome that he recommends in default of agreement among the professions. Again, I think that these are deep waters, but I should be happy to enter into discussions with him on the subject between now and Report.
§ 4.45 p.m.
§ Lord Woolf
I thank the noble and learned Lord the Lord Chancellor for that helpful response to the points I made. Like the noble and learned Lord, I recognise that these are deep waters. I fear that the proposals for extension of rights of audience also involve putting a substantial part of one's body into deep waters. I suggest that it is another area where serious consideration has to 1153 be given to what could be an important consequence of extension of the rights of audience to the extent envisaged by the noble and learned Lord.
§ Lord Archer of Sandwell
I am grateful to all noble Lords who participated in the debate. It is a debate, if I may say so, which will well repay reading in detail tomorrow. I was only trying to be helpful. I thought that I was suggesting a simple answer to a simple drafting problem. One cannot be right all the time! I plead only in mitigation that I set down the amendment at the instigation of the Bar Council, which obviously shared that rather simplistic view at one stage.
Clearly there are genuine problems. We seem to be wholly in agreement that employed lawyers should be capable of being accorded rights of audience. Two questions then arise. First, how should they be subjected to the standards which are applied to other applicants'? It seems to be agreed that it should be left substantially to the rules of conduct of professional bodies. If I may say so respectfully, I wish the proposal of the noble and learned Lord the Master of the Rolls well. However, like my noble and learned friend the Lord Chancellor I remember when the professions were less attracted to such suggestions. It may be that we have travelled far even in the past five years and have learned something along the way. I hope that the learned and noble Lord has begun something which may gather momentum.
The second question which arises is whether, subject to those standards, it is agreed that an employed lawyer may appear to represent anyone, however unconnected with his employer, in proceedings however unconnected with his employer's business. Clearly there may be some inroads on the general principle as was indicated by my noble friend Lord Borrie. But I suspect that we shall need to reflect on that in somewhat greater tranquillity than is possible at present.
These questions are intellectually stimulating. They are also of great importance to the public. For the moment, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ The Lord Chancellor moved Amendment No. 237A:
§ Page 19, line 11, leave out ("circumstances") and insert ("capacity").
§ On Question, amendment agreed to.
§ [Amendments Nos. 238 and 239 not moved.]
§ The Lord Chancellor moved Amendment No. 239A:
Page 19, line 19, leave out from ("or") to end of line 26 and insert—
("(b) he is otherwise employed in a capacity which involves his appearing before courts.'"').
§ On Question, amendment agreed to.1154
§ Lord Kingsland moved Amendment No. 240:
Page 19, line 26, at end insert—
("(5) A person employed as an advocate in accordance with subsection (3) shall only be permitted to prosecute a case being tried on indictment which—
§ The noble Lord said: The purpose behind the amendment is to ensure that the more important criminal cases are prosecuted by independent advocates. The noble and learned Lord will recall that late in the third day of Committee a considerable amount of time was devoted to arguments against the granting of rights to CPS advocates in the Crown Court. I shall not rehearse those arguments again today.
§ The main reason for questioning the merits of the move were well explained in the speech of the noble Lord, Lord Thomas of Gresford. He emphasised, in particular, the danger of a conflict of interests between the duties of a member of the Crown Prosecution Service to his employer and his duties to the court. I entirely share the noble Lord's concerns and wish to raise only two other issues. They go to the original motives expressed by the noble and learned Lord last year when he first suggested the changes which are now contained in the Bill. Those motives were saving money and enhancing competition.
§ I wish to ask the noble and learned Lord, first, how he believes money will be saved by a shift from using independent advocates to prosecute to using advocates in the Crown Prosecution Service. It is well known that in many respects the cost burden of employing someone on a salary, with all the related overhead expenses, can be much higher than using someone who is self-employed.
§ The second issue relates to competition. During the past 20 years, it has been accepted in the United Kingdom and in many other countries that the best way to enhance competition is by a process of privatisation. But here we must assume that implied into the change is the claim that the best way to promote competition is by increasing nationalisation; because the greater the number of cases advocated in the Crown Courts by employees of the CPS the greater will be the degree of nationalisation. How will the noble and learned Lord ensure there is competition between the CPS advocate on the one hand and the independent practitioner on the other?
§ There is a great deal of case law in the courts of the European Community about competition between private and state entities. We all know to what extent states can subtlety undermine competition in the market by giving state aid of one form or another. Therefore, apart from the important point of principle, which was well expressed by the noble Lord, Lord Thomas of Gresford, I should like to hear the noble and learned 1155 Lord's views on the issues of saving costs and competition to the extent that he feels able to express them at this juncture. I beg to move.
§ Lord Thomas of Gresford
I do not propose to rehearse again the argument which I entered into in the early hours of Wednesday to a hard core of dedicated people. I shall reserve that for a later stage of the Bill. However, perhaps I may ask two questions arising from the amendment.
I referred on Wednesday morning to the current pilot schemes whereby members of the Crown Prosecution Service are prosecuting in the Crown Court. I know of it in the Mold Crown Court in my own area and wonder whether the powers given to them have gone any further than those suggested in paragraph (a) of the amendment and whether they have been under the control of the presiding judge of a circuit as suggested in paragraph (b). I repeat my request for information as to whether there has been any assessment of the success of the experiments which are being carried out with the CPS.
§ The Lord Chancellor
First, noble Lords should bear in mind that I am not responsible for the Crown Prosecution Service. The Attorney-General is the Minister responsible. Secondly, the noble Lord, Lord Kingsland, will look in vain in Hansard for any proposition from me that the justification for extending rights of audience to CPS prosecutors was the saving of money. I have never ever said that.
First, my budget is entirely distinct from the budget of the Crown Prosecution Service and I concede that my budget will be completely unaffected by the removal of a restrictive practice affecting employees of the CPS in order to extend their rights of audience. Throughout, I have addressed the principle of the matter and the objectionable nature of the restrictive practices in principle.
I would now like to address the actual subject matter of the noble Lord's amendment. It is intended to limit the cases in which employed advocates can prosecute in the Crown Court. In practice, it would apply principally to Crown prosecutors. The amendment would limit them to the least serious category of cases which are tried in the Crown Court; Class 4 cases. These are defined in the practice direction on the classification of the business of the Crown Court as cases involving offences of wounding or causing grievous bodily harm with intent; robbery or assault with intent to rob; incitement or conspiracy to commit these offences; conspiracy at common law; conspiracy to commit any offence other than a Class 1 or a Class 2 offence; and all offences which are triable either way.
For the benefit of the Committee, perhaps I should explain that Class 1 offences are the most serious; for example, treason and murder. Class 2 offences include manslaughter and rape. Class 3 offences cover those triable only on indictment which are not in Classes 1, 2 or 4. Perjury would be an example. Class 4 offences can be tried by a High Court judge, a circuit judge, a recorder or assistant recorder, but they would normally be tried by a High Court judge and cannot be listed for trial by a High Court judge without his permission or 1156 that of a presiding judge. I believe that by a slip of the tongue I said that Class 4 offences would normally be tried by a High Court judge; I should of course have said that they would not normally be tried by a High Court judge without the special permission to which I referred.
The amendment would also ensure that if a Class 4 case were listed before a High Court judge, a Crown prosecutor could not appear before him. I cannot see any case for this amendment, even from the point of the noble Lord, Lord Kingsland. It seems to be that either Crown prosecutors and other employed lawyers are qualified to appear in the higher courts or they are not. I know that some of your Lordships oppose all rights of audience for employed lawyers in the higher courts. That seems to me to be a position which, although I do not accept it, is intellectually coherent. The proposition that Crown prosecutors should be able to appear in some Crown Court cases but not in others does not appear to me to be principled. It rather appears to me to be clearly designed to create a no-go category of a significant legal category of work in the Crown Court for everyone but the Bar. I cannot regard that as defensible.
The Government's firm view is that Crown prosecution and other employed lawyers are eminently qualified to appear in the higher courts. After all, they are qualified barristers or solicitors who have met the normal requirements for exercising rights of audience in the higher courts and are members of professional bodies with effective codes of conduct and disciplinary mechanisms. I do not accept that Crown prosecutors are second-rate lawyers who should be statutorily confined to the lesser classes of criminal work.
No doubt some Crown prosecutors will prove to have a greater aptitude for higher court advocacy than others. But that is no different from barristers in private practice. Crown prosecutors are subject to the same standards as their equivalents in private practice. Furthermore, by opening up their rights of audience in the higher courts, this Bill will make a career in public service more attractive to very able advocates. I do not accept that there is any sensible reason for preventing such advocates from appearing before a High Court judge in a criminal case.
If the real motive behind the amendment is to reserve an area of work for the Bar, then I must say that it is unnecessary as well as being wrong in principle. In practice, in my view, there is no possibility of the CPS taking over the majority of the prosecution work in the Crown Court as it does not have the manpower to do that. But it is not appropriate to reserve by statute certain areas of work to the privately practising Bar.
There is another flaw in the amendment but it is technical. It is contingent upon the existence of a particular practice direction which was made by the late Lord Taylor with the concurrence of my noble and learned predecessor in 1995. That practice direction provides for the existence of Class 4 cases and defines what they are. But my noble and learned friend Lord Bingham of Cornhill, the Lord Chief Justice, could revoke or change the practice direction at any time, and with my concurrence. The amendment would 1157 then be rendered meaningless. On those grounds, I hope that the noble Lord will agree to withdraw his amendment.
I prefer to write definitively to the noble Lord, Lord Thomas of Gresford, on the subject of pilot schemes. I shall give him my present understanding of the present situation but I do not wish to be tied to it. I believe that the pilot schemes to which he refers allow solicitor advocates in the Crown Prosecution Service to exercise their current limited rights of audience in preliminary proceedings in the Crown Court. Because of the current state of the rules, to which, as the noble Lord knows, the Government fundamentally object, they are not even allowed to appear in a substantive hearing on their own. Therefore, pilot schemes cannot extend further than I have just described. However, I prefer to write more comprehensively to the noble Lord on that subject.
§ 5 p.m.
§ Lord Hacking
I agree with my noble and learned friend. Perhaps I may add one short rider of my own. There can be no better example of the saving of time and duplication of legal effort than when a plea is to be tendered by an accused before the Crown Court or the High Court. That seems to be an occasion on which it would be sensible for a member of the Crown Prosecution Service to appear directly before the court. The effect of this amendment would prevent that.
§ Lord Thomas of Gresford
I am most grateful to the noble and learned Lord for what he said in answer to my query. But perhaps I may turn to the substance of the amendment. The noble and learned Lord does not seem to recognise gradations in the experience of Crown Prosecution Service employees. His argument is that once they are entitled to appear in the Crown Court, they are entitled to appear for all purposes.
Gradations are recognised in the judiciary. There are assistant recorders, recorders, circuit judges and High Court judges, each of whom has his area of responsibility and the lesser cannot take on the role of the greater. The gradations are recognised.
When it comes to the independent Bar, a barrister who is employed to prosecute is subject to the discipline or restriction of the fact that he is instructed to do so by the Crown Prosecution Service. He is instructed because he has the necessary expertise to take on the case which the Crown Prosecution Service wishes to be prosecuted.
There is a danger that a Crown prosecutor may instruct himself to appear in a case which is way beyond his capacity. I do not welcome the use of the phrase "restrictive practices" and the criticism that we wish to defend them. That is not the case. We are concerned to ensure that prosecutions are carried out properly in those courts; that guilty people are convicted and innocent people are acquitted. It happens to be that most of us with experience in that field, from all parties, take the 1158 view that some of the provisions militate against that aim. That is the purpose of the criticisms which we make.
§ The Lord Chancellor
We can carry forward this argument in wearisome detail. I should have found that point more impressive from the noble Lord if the current position, as it affects the Bar, was not as it is. Today, the day after a barrister emerges from his pupillage with full rights of audience, he can prosecute or defend a murder at the Old Bailey or appear in your Lordships' House in its judicial capacity, if fortunate enough to be briefed at any of those levels. There is no restriction whatever on that.
§ Lord Thomas of Gresford
With the greatest respect, the noble and learned Lord has not appreciated my argument. I am sure it is my fault. No Crown prosecuting service will instruct a newly-fledged barrister to appear in a murder case or in the House of Lords. That is why there is that control. The difference with a Crown prosecuting service employee is that he instructs himself and may instruct himself to do more than he is capable of.
§ The Lord Chancellor
Perhaps I may say with respect, and without wearying the Committee, that the noble Lord makes my point for me. Just as I doubt that a solicitor, on my first day in fully-fledged practice, would instruct me in an appeal to your Lordships' House in its judicial capacity, nor would the chief Crown prosecutor sanction a prosecutor prosecuting a murder, although he had full rights of audience, if he was comparatively inexperienced. Those matters are dealt with by the sensible judgment of those who, in private practice, brief barristers with full rights of audience. The chief Crown prosecutor will determine the allocation of business according to appropriate experience. The noble Lord makes my point for me.
§ Lord Kingsland
In thanking the noble and learned Lord for his reply may I say first of all that there is no suggestion lying behind this amendment that the employees of the Crown Prosecution Service, while legally qualified, are in any way second rate. That is not something that is implied in that amendment and it is certainly not something that I believe. The basis for the objection is, I repeat, the danger of conflict of interest.
I listened with great interest to what the noble and learned Lord said about his budget, and of course I entirely accept that his budget will not be affected by this change. But somebody else's budget will be and therefore the taxpayer will be. I should have thought that one of the matters to which the noble and learned Lord ought to have addressed his attention in respect of the budgetary implications of what he is doing is other parts of public expenditure. He did not address, and I can quite understand why, the competition points I made. I therefore wish to think about those and perhaps come back at Report stage.
§ The Lord Chancellor
Before the noble Lord sits down, I wonder if, for the information of the Committee, 1159 he will clarify why he does not think that Crown Prosecution Service lawyers are in theory lawyers but is concerned with the conflict of interest. If Crown Prosecution Service lawyers are affected by conflict of interest, is his true position that none of them should have any rights of audience?
§ Lord Kingsland
As far as my amendment goes, I do not know whether they would be affected by conflict of interest because they are not yet in that position. What I am saying is that there is a danger that they would be. That is the substance of my argument. I beg leave to withdraw my amendment.
§ Amendment, by leave, withdrawn.
§ On Question, Whether Clause 31, as amended, shall stand part of the Bill?
§ Lord Ackner
Shortly before midnight on Tuesday I was unsuccessfully addressing the Committee on the desirability of removing Clause 30 which deals with rights of audience of barristers and solicitors. Although I failed in persuading your Lordships to remove Clause 30, I think I succeeded, partially with the help of the correspondence which was referred to as passing between my noble and learned friend the Lord Chancellor and his predecessor, in establishing that the consequences of what is proposed in Clause 30 would be a reduction in the quality of the advocates who emerge. This follows quite simply from the fact that only 1 per cent. have sought to do advocacy, despite their entitlement, for the last five years, and the high proportion of failures in regard to tests which their own organisation thought appropriate. Therefore, for the rights of audience by solicitors to be extensive, standards inevitably would have to come down and the courts would be the unhappy recipients of that drop in quality.
In regard to Clause 31, which deals with rights of audience of employed advocates, I should be able to demonstrate the same though by a different route. I accept that the 1990 Act was intended to allow solicitors in private practice to obtain the right to appear in any court, subject always to their being properly qualified and trained to exercise those rights.
With deep respect, the noble and learned Lord the Lord Chancellor was in error in his foreword to the Way Ahead paper in saying in the third paragraph that the 1990 Act was also intended to enable employed lawyers such as Crown prosecutors to appear in the higher courts. I say that because on 22nd February 1990, on an amendment moved by the noble Lord, Lord Hutchinson, the then Lord Chancellor, the noble and learned Lord, Lord Mackay of Clashfern, said:This Bill sets up a framework under which matters of rights of audience and the conditions under which they can be exercised are to be determined in the light of advice from an independent advisory committee appointed by the Lord Chancellor in accordance with rules to be proposed by the professional bodies, which will become effective only if they are approved by the four heads of division, the designated judges, and the Lord Chancellor. That is what we are concerned with. There is no question of my having put forward this Bill in order to bring rights of prosecution to the Crown Prosecution Service except in accordance with decisions taken under that machinery".—[Official Report, 22/2/90; col. 41.]1160 At col. 413, he added:I entirely accept the view that there are important considerations as to what extent any part of the prosecution service—that refers not just to the CPS but to all prosecuting authorities—should use salaried employees to present cases at any stage".He made it perfectly clear that this particular question was a debatable one and that the debate would have to be concluded before the prosecution authorities could establish any right of audience. It was generally accepted that the extension of rights of audience in the higher courts to employees was highly debatable.
In the judges' response to the Green Paper in 1989, paragraph 91, it was stated that any such extension of rights of audience would have the following disadvantages:(a) An advocate who is an employed lawyer would have a personal interest in the success of the case he was presenting since he might believe that his chances of promotion depended on his success. In consequence he would be subject to conflict between his duties to the court and his interest in furthering his case. The Government recognise the problem but believe it should be possible for appropriate codes of conduct to guard against the conflict of duty and interest. The judges are not so optimistic.(b) At present one of the protections for those charged with serious criminal offences is that the advocate having the conduct of the prosecution is independent of the prosecuting authority. An employed prosecutor, whether in the Crown Prosecution Service or another department, may be tempted to press for a conviction in a way which is foreign to the English criminal trial system.(c) An adversarial system of trial makes it desirable that advocates in the criminal court should have experience both of prosecuting and defending. Such experience helps the advocate to be open minded and to present his client's case in a way which at all times reflects his duty to the court".That was said in 1989.
Professor Zander has not been known for his affection for the Bar or for his desire that the status quo remains but he wrote a powerful letter to The Times on 18th December. Among his observations are these:In the Crown Court study I conducted for the Runciman Royal Commission on Criminal Justice during 1993, we asked respondents to bring to the attention of the commission any matter of concern. The main general concern identified by prosecuting barristers was disagreements with and undue pressure from the CPS on individual cases. At present, such disagreements and pressure are dealt with by discussion between the barrister and the CPS representative. If the CPS has and exercises full rights of audience, that created tension between differing views would be lost. The decision as to how to handle the case, whether to accept a plea in itself on what charges, etc. would be handled by the CPS alone. In my view that will result in a regrettable deterioration of decision making in serious criminal cases. The loss will be in the quality of that elusive concept, justice".When I made my submission on Clause 30, the noble and learned Lord, Lord Falconer, moved over from commenting on Section 30 to Section 31. I want to criticise strongly one specific comment and, in doing so, I recognise the great ability of the noble and learned Lord but also that, like many others at the Bar—both past and present—one is sometimes given a case with which one wholly disagrees, but which it is one's obligation to put forward.
1161 In moving over to Section 31, the noble and learned Lord said this:Those restrictions on employed barristers and solicitors are unjustified. They are 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".—[Official Report, 26/1/99; col. 997.]I appreciate that the noble and learned Lord was obliged to carry out his instructions and I sympathise with him. But that was a wholly unjustified observation redolent of one of the unfortunate features of excessive power; namely, arrogance. It overlooked what I had already said in relation to the judge's comments on the Green Paper, but it also overlooks a great deal of back history and, briefly, I shall draw attention to part of that.
When the Crown Courts were created in 1971 the Courts Act empowered the Lord Chancellor to give directions on the respective rights of audience of barristers and solicitors in the Crown Court. In giving his first direction under the Act, the Lord Chancellor of the day—the noble and learned Lord, Lord Hailsham—said in the House of Lords on 9th February 1972,I find no sufficient reason for altering the present balance between the Bar and the solicitors' profession in the conduct of prosecutions, whether by public authorities or private individuals. I must also emphasise that I regard the presentation of a prosecution case in the higher courts by counsel, properly instructed by a solicitor, as an added safeguard of individual freedom since it involves that a second opinion is always brought to bear".—[Official Report, 9/2/72; col. 1139.]The matter was considered by Lord Benson in the Benson Commission. At paragraphs 18.43 to 18.45 of his report he said this:In one significant aspect the arrangements serve what many of us regard as an important public purpose by ensuring that in the Crown Court the case for the prosecution is put by an advocate who is independent both of the police and the prosecuting authority. Whatever the outcome of the Royal Commission on criminal procedure [the Phillips Commission] we think that the effect of the present arrangements on prosecuting work should not be disturbed. It provides in every case an advocate from the available range of private practising barristers who is seen by the court, the accused and the public at large, to be independent of the police and the prosecuting authorities; one who, by the nature of his training and daily practice, is more likely to be able to bring the essential quality of detachment and balance to bear on the problem in the individual case. These are considerations that we regard as crucial, not only to the actual conduct of a jury trial, but also the proper administration of justice in general, including the institution or continuance of criminal proceedings, the acceptance of proposed pleas of guilty and the proper handling of evidential problems".Is that an example of the worst kind of restrictive practice? Is that a restrictive practice designed simply to protect the work and income of private practitioners? Can it be said that that practice contains no shred of benefit to the public?
I wish to make a few other short points. The Phillips Commission was split, but the majority came out in favour of retaining the status quo. The Government's response to the Benson Royal Commission report was presented to Parliament by the Lord Chancellor in a White Paper which agreed with the observations of the Benson Commission; that is, that there should be no general extension of rights of audience for solicitors. The White Paper also accepted the recommendation of 1162 the Royal Commission which was published by the Government in regard to rights of audience. As a consequence of the report of the Royal Commission on Criminal Procedure, the Government introduced a draft Bill—the Prosecution of Offences Bill—into the House of Lords in the autumn of 1984. On 29th November 1984, when introducing the Second Reading, the Minister of State (then the noble Lord, Lord Elton) said,I should emphasise that the Government hold strongly to the view that rights of audience in Crown Court trials should continue to be confined to an independent Bar which both prosecutes and defends".—[Official Report, 29/11/84; col. 1017.]He wrote a letter to the noble Lord, Lord Wigoder, on 12th December 1984 saying,There is no intention to extend these rights of audience any further; for example, to include the conduct of criminal trials before the Crown Court. In this connection the Government have recently reaffirmed their acceptance of the Benson Commission's recommendation that, in general, rights of audience in the Crown Court should be the preserve of the independent Bar".It is interesting to note that the right honourable John Morris, as he then was, in a debate on the Bill in the House of Commons when he was shadow Attorney-General, said:Despite the Government's assurances, I fear the long-term future, perhaps not so long of the criminal Bar. What will happen when the Treasury gets its hands on that? Who can put his hand on his heart and say that in five or 10 years' time there will not be a Rayner Report, or something of that ilk, which advocates more and more inhouse work? I fear that that will be the Treasury approach as sure as night follows day and that it would strike at the heart of an independent profession which I believe to be one of the bastions of liberty".He had considerable foresight because I believe that there has been considerable Treasury input into what is proposed. The Lord Chancellor's advisory committee was expected to produce a recommendation that the employed lawyer should have a right of audience and it was a matter of deep sadness to the Government when it was discovered that the independent advisory committee was a great deal more independent than they had anticipated.
The report of the advisory committee, by a majority, proposed no rights of audience for the Crown Prosecution Service. It is a lengthy and closely-reasoned document. Nowhere has it been referred to, even by way of a cut-down description. I respectfully suggest to the Committee that the words of my noble and learned friend Lord Falconer, which I have emphasised, show the shallowness of the Government's approach to the consequences of what they propose. I oppose the Question that the clause stand part of the Bill.
§ 5.30 p.m.
§ Lord Hacking
The central point identified by the noble and learned Lord in his opposition to the use of employed lawyers is the vested interest point. He quoted from the paper that the judges issued in reply to the Green Papers on access to justice published last summer. Here they put the argument, as precisely submitted to Members of the Committee by the noble and learned Lord, that a lawyer in the Crown Prosecution Service would have a vested interest in success because it would affect and benefit his chances of promotion.
1163 I have argued this before with the noble and learned Lord. In every case, whether you are a barrister or a solicitor, you have a vested interest in success. Success brings you more cases and a greater income. Crown prosecutors at the Old Bailey have a vested interest in success because they get bigger and better cases, and more well paid cases. Every barrister in private practice has a vested interest in success because his practice will improve. Indeed, the noble and learned Lord had an illustrious career at the Bar. I remember him well as a senior member of the Bar after I had been admitted. His practice went far because he was successful and had the good habit of winning cases. That is always a factor in the practice of law. But what every barrister and solicitor does when appearing before the court is to put the interest of justice first. He lays aside that vested interest in success because he has an overriding duty to the court.
It is a fatuous argument. It is most surprising that it is produced again and again and has apparently been produced in the judges' paper.
§ Lord Hutchinson of Lullington
I have given notice of my intention to oppose the clause. I should like to support all that the noble and learned Lord, Lord Ackner, has said. I remind the noble and learned Lord the Lord Chancellor that at Second Reading he said that he had not come upon any rational argument that could be advanced against salaried prosecutors. I do not know whether he takes the view that the Benson Report, the other Royal Commission, and the whole of the noble and learned Lord's speech today are all irrational. It is true that throughout the debate on this matter the noble and learned Lord has not dealt with the arguments put forward at length in the reports of the two Royal Commissions and, indeed, in other places.
The amendments to the clause dealing with salaried prosecutors, which were tabled by the noble Lord, Lord Thomas, were dealt with after midnight yesterday. That was thought proper by the Government despite the knowledge that the issue of the rights of audience of salaried prosecutors was highly controversial and the opposite side of the coin to the issue of salaried defenders which took up two hours of the time of the Committee and attracted no fewer than 15 speakers.
The noble and learned Lord, Lord Simon of Glaisdale, has inveighed repeatedly against this ploy of taking controversial clauses in a Bill at a time when it is known perfectly well to the Government that almost no noble Lords will be present—in fact, there were only three or four. I regret to say that that ploy will not save any time at all. The arguments which could not be put on that occasion by me, because I could not possibly have been here, will be put now.
One of the remarks which the noble and learned Lord made to an almost empty Chamber in the early hours of the morning, echoing what the noble and learned Lord, Lord Ackner, has just said, was that these amendments can be recognised as a set of special pleadings by the Bar. That, I suggest, is simply to lower the level of debate and to mislead Members of the Committee who have the advantage of not being lawyers. At my age, and 15 years after retirement, I do not come to this House to 1164 peddle trade union trivialities, nor do either of my noble friends on our Front Bench, nor the noble Lord, Lord Wigoder. I would add that neither do the two most distinguished Members of the criminal Bar on the other side of the Chamber. I refer to the noble Baronesses, Lady Mallalieu and Lady Kennedy.
I deprecate the constant disparagement coming from the Government Front Bench and, indeed, the proximate Back Bench, of the criminal advocate and the constant harping on about restrictive practices and money. There is a pejorative use of the words "restrictive practices" which we all understand. Many restrictive practices are absolutely essential in any profession to ensure suitable and appropriate expertise.
The clause is wrong as a matter of principle; one which, as we have heard from the noble and learned Lord, Lord Ackner, has been debated and considered over many years. The Lord Chancellor knows perfectly well that the overwhelming majority of all those who are involved in the actual practice and study of the criminal law—that is, barristers, solicitors and academics—are against the aims of the clause and are deeply concerned about its implications. The Bar has not objected to the clause giving rights of audience to solicitors. We are all involved in this matter together: all lawyers and advocates on the criminal side. What we are considering is the question of the independence and the whole-time commitment of the prosecuting advocate, whoever he or she may be. It is simply ridiculous to describe this debate as a trade union debate in relation to the Bar.
Today, in the higher courts with judge and jury, where the citizen is in jeopardy of losing his liberty and reputation for a very long period of time, prosecutions are placed in the hands of responsible, whole-time advocates who are wholly independent of state, police and government departments. The advocates are the mirror image of the judges who try the cases and who must depend on the advocate to make it possible for them to carry out their duties. These advocates seek, with varying degrees of success, to display the same essential qualities which are to be found on the Bench; namely, independence and integrity. As we have recently seen, for a judge independence means having no special interest which might appear to dilute his independence or his impartiality.
Exactly the same principle applies to the prosecutor in the higher courts. He must act throughout as a minister of justice, presenting the facts fairly and without passion before the jury. His only motive must be the interests of justice; he is not parti pris and he must be detached. That is the tradition in England and Wales in the criminal courts. If I may say so, it is that which keeps the criminal process uncorrupt and fair. This may be denigrated by the noble Lord, Lord Bach, with his tales of tittle-tattle in his robing room in Leicestershire—wholly unrecognisable to such a dinosaur as myself. However, whatever may be rightly said about delays and imperfections in the criminal process, a criminal trial in this country remains the most uncorrupt and the most fair in the civilised world and is recognised as such.
1165 Prosecutors here are perceived by defendants and the public for what they are and for what they are not. They are not civil servants and they are not subject to the pressure of preferment. They do not have conflicts of interest between duty to employer and duty to the court. They have no direct access, and they are available to appear for the defence. That is the situation today. They do not claim, as the noble Lord, Lord Bach, (who, we all appreciate, is part of the Lord Chancellor's team) seems to think, some spiritual calling or some mystical relationship with each other. Similarly, they do not consider themselves, as the noble Lord seems to think—although, for all I know, this may apply in Leicester—superior to teachers or doctors. On the contrary, teachers and doctors are the colleagues of prosecuting and defending barristers and solicitors in the criminal court. They, too, have a vocational approach to their work: namely, that there is more in the work than just money.
Of course the independent prosecutor must act on instructions and must consult before making crucial decisions; but, finally, the decision and responsibility is his and his alone. Even if he is Treasury counsel, his place of work—all "Treasury counsel" means is that he in fact holds himself open to give the Director of Public Prosecutions priority in his work—is in a group of other sole practitioners at arm's length from the police, from the witnesses, from politicians, from civil servants and from all those who may apply pressure or seek to influence. He must be available at all times to those who require his services.
Once that advocate is employed and salaried, working daily and solely in a department with its own culture and preparing cases from start to finish in the closest proximity and co-operation with the police (and their culture), or with government departments, local authorities, or indeed in corporations, carrying out their instructions, he cannot possibly be anything other than partisan. When the question of a code was suggested in our earlier discussions with the noble and learned Lord, it very quickly became a matter of our getting into "deep waters"—that is, deep waters because of everything that I have just said. There is no possibility of having a code which can cover those two forms of advocacy in conducting prosecutions. Every criminal advocate knows that in-house lawyers—that is lawyers from the DTI, from the Inland Revenue and from Customs & Excise—are clearly and fiercely partisan. Indeed, it is the whole of one's experience. Of course that is so; they are there in order to further the perceived interests of their own departments.
With the greatest respect, it seems to me that the noble and learned Lord the Lord Chancellor will simply not face up to these points. If I may say so, some of his justifications in his midnight argument for the salaried prosecutor almost descended into farce. The noble and learned Lord, Lord Donaldson, has already dealt with the first argument that judges are paid by the state and they are independent; therefore, why are prosecutors in the office of the DPP not equally independent? The noble and learned Lord shot down that argument.
1166 The noble and learned Lord's second argument was that salaried lawyers prosecute in the magistrates' court, so why on earth should they not do so before judge and jury? Members of the Committee will appreciate that police officers conducted their own cases in the magistrates' courts only a short time ago. No one that I know of has suggested that they should conduct cases in the Central Criminal Court.
The noble and learned Lord's final argument really proves the point that I am seeking to make. He said how bizarre it was to suggest that Dame Barbara Mills should forfeit her right to appear in the higher courts on her appointment as Director of Public Prosecutions. There it is. It is the job; it is not the personality that we are talking about. Will it really be suggested by the noble and learned Lord that Dame Barbara Mills is eminently suited to go down to the Central Criminal Court and conduct her own murder cases in front of the High Court judge? Further, will it be suggested that, when he was Home Secretary. Mr. Kenneth Clark, QC should have gone down to the Old Bailey and conducted official secrets cases? Is it the suggestion that once you are a barrister you are a barrister and you should have full rights of audience? I suggest that it is not the personality and the qualifications; it is the job that you are doing which makes it wholly inappropriate.
Finally, I should like to return to a particular point because it illustrates what I am saying to the hilt. I ask the noble and learned Lord to read the Scott Report if he has not already done so. The Scott Report is a monument to the crucial role of the independent prosecutor. The Matrix Churchill case in a nutshell concerned the suggestion by the Government that this company and its managing director, Mr Henderson, were deceiving the Government by putting forward licences which were in themselves deceitful in sending military goods to Iraq. The Attorney-General instructed Ministers that they were to sign certificates to say that the internal documents in each department could not be disclosed to the defence because that would be against the interests of the state and, as regards MI6, would put innocent persons' lives at risk. The gentleman's defence was that Ministers knew perfectly well what was implied in the licences, that they tipped the wink as regards the form of the licences, and that far from being deceitful he was going to Iraq and giving information to MI6 which was of the greatest possible value to the Government.
The prosecuting counsel was instructed to urge the judge to maintain that ban on those internal documents which would prove the innocence of this man and his company. His instructions were to urge the judge to do that. One of the Ministers, the only Minister who was not a member of the Bar—the other three all were, and two of them were Queen's Counsel—objected to signing the document because he could see perfectly plainly that the documents would be of use to the defence. He requested that that objection should be conveyed to the judge. What did Scott find? First, he found that there was no justification for those certificates. Secondly, he found that the judge had never been told—because prosecuting counsel had never been told—of the Minister's objection to signing the certificate. Thirdly, 1167 he found that the law that he was told to uphold in court based on the civil law was entirely unapplicable to a criminal case. Fourthly, he found that lawyers in the departments concerned took the course of holding back documents rather than applying their minds to whether or not they would help the defence. Finally, he found that government lawyers altered witness statements in order to fit in with the departmental policy.
Could there be any more condemnatory example of what happens when lawyers act for the Government, and when even trained barristers are in political positions? Luckily, counsel for the Crown, Mr Moses, behaved as one hopes independent counsel would do. When he saw that there was a possible miscarriage of justice ahead of him, he, totally on his own initiative, decided that these documents should of course be released to the defence. On his own initiative he asked the judge to go back on his ruling that the intelligence documents should not be allowed to be revealed, and after consultation with the Attorney-General, and having told him of his views, brought the whole prosecution to an end.
I have taken up time in referring to that case. It was only because there was an independent prosecutor, independent of the departments concerned and independent of the Government, and a defence barrister who was prepared to maintain the pressure on the prosecution, that there was not a fundamental miscarriage of justice. Anyone who has read the Scott Report will see that if the four lawyers in that case had been government employed lawyers, there would have been no possibility whatever of that company and that managing director being acquitted. Indeed in a case that preceded that one concerning much the same situation, the barristers were not sufficiently independent. They gave the advice that the defendant should plead guilty. Some form of plea bargaining was arrived at and it was only after the Scott Report that that case was returned to the Court of Appeal, the plea was set aside and a miscarriage of justice which had taken place was set right.
That is all I say in support of the noble and learned Lord, Lord Ackner. A state prosecutor and a state defender are both made possible under this Bill, supervised by members of the executive, the Attorney-General and the Lord Chancellor. That surely raises a somewhat menacing matter of principle worthy of further consideration and worthy of consideration by the Committee.
§ Baroness Thornton
I have just witnessed the Committee taking its gloves off. I have witnessed what one might perhaps call a bit of noble mud wrestling. I believe that the noble Lord, Lord Hutchinson, and I inhabit different planets. It is simply not accurate to say that the legal profession is held in such high esteem. I wish that that were the case. It is true that members of the legal profession are held in higher esteem than politicians and journalists, but that probably is not saying much! The reasons for that are several. One reason is that not many ordinary people have access to the law. A second reason is that people believe that 1168 vested interests and restrictive practices are involved which do not make the law accessible to ordinary people.
I have listened to the debates on rights of audience that have taken place today and which took place late into the night on Tuesday. I confess that I am not convinced by the arguments that I have heard against change. I do not expect that my noble and learned friend Lord Falconer will have any problem in addressing the points that have been made. However, there are times in political life when people plainly do not agree with each other, and do not agree about the way forward. I believe this is one such occasion. When this happens, we need to consider democratic legitimacy. The Government have democratic legitimacy on their side on this occasion.
An irresistible thought keeps popping into my mind, and has done throughout this debate when Members of the Committee talk about maintaining standards and the protection of independence, both of which are issues of enormous importance and are the essence of the Bill. It occurs to me that one hears such remarks from some quarter whenever there is a proposal to make a procedure more democratic or to make it accountable or to ensure competition or, as in the case we are discussing, to remove restrictions and outmoded rules which no longer have a place in modern society.
In this case, we are largely talking about unfinished business. While I hated and deprecated many of the activities of the previous government and campaigned and worked against them, I also recognised that from time to time, particularly under the leadership of the then Prime Minister, the noble Baroness, Lady Thatcher, they did go in for "busting" restrictive practices of various sorts. Despite the gallant efforts of the then noble and learned Lord the Lord Chancellor, they failed to bust this particular restrictive practice in any significant manner. The Government now seek reforms that are long overdue.
It does not reflect well on the legal establishment, which sees itself, with justification, as a world-class industry. It is a question of confidence. I hope that the legal establishment will have the confidence to modernise and to shed the remnants of practices that date back many years and were designed to meet the problems of an earlier time. I urge my noble and learned friend the Lord Chancellor to resist this amendment.
§ 6 p.m.
§ Lord Wigoder
For many years I used to begin a speech with the words, "Members of the jury, it is my task to follow the powerful observations of my learned friend Mr. Hutchinson". Perhaps I may begin these few observations in that same way.
When I was first at the Bar, I went to a set of chambers where one of the senior members was a very junior Treasury counsel at the Old Bailey. He rapidly rose, and eventually became the senior Treasury counsel and acquired great reputation. He taught all those in his Chambers the rudiments of good prosecuting: the role of the prosecutor as a minister of justice pursuing the fair administration of justice.
1169 I went out into the wide world and, for many years, conducted a largely prosecution practice. I came across prosecuting solicitors who, in total defiance of the evidence, asked me to press for a conviction. I came across prosecuting solicitors who were appalled when I said that of course we must hand over to the defence information that the police had acquired that would be of assistance to the defence and would not be used by the prosecution. I came across prosecuting solicitors who regarded every conviction as a win and every acquittal as a defeat. I discovered that some offices had league tables on the walls containing the names of prosecuting solicitors and the barristers they had instructed, and whether they had scored convictions or had failed in certain cases. In recent times I have come across cases where prosecuting solicitors have told me that, on applying for a change of job to another prosecuting solicitor organisation, they have been asked many questions about their conviction ratio as though it were a qualification for promotion or a successful transfer.
I make those observations subject to two qualifications. First, I am speaking of a time many years ago—I shall not answer any questions as to exactly how many years ago. Secondly, I do not want to exaggerate the position. Of course one came across many prosecuting solicitors who behaved in a totally exemplary way, and who could be trusted beyond any question to exercise the rights of audience that are being given to them under this clause of the Bill in a way that would have been wholly admirable. On the other hand, I must concede that there were some members of the Bar who, when prosecuting, did not uphold the kind of standards that they should have done. Whether that was through ignorance or through a subconscious desire to please a person who would obviously be the source of much future work, I do not know. But at least those kinds of cases were dealt with by the type of machinery that I indicated in an earlier intervention.
Without seeking to exaggerate—and I do not for one moment categorise all prosecuting solicitors as incompetent or unfair—I was left in no doubt that if, as a whole, those prosecuting solicitors had been given rights of audience in our senior courts, the result would have been a lowering of the general standards of the prosecution advocate. I accept that that is not the end of the matter. There could be training facilities for such people and standards could be enforced. I shall return to that point shortly. That was the position as I found it, and as I believe it largely still is. I must stress that I want to be totally fair. The Crown Prosecution Service is now led by a man of the highest possible standards as Director of Public Prosecutions. I have no doubt that he will do his best to co-operate if the circumstances set out in the Bill become law.
It is my wish to be realistic. I accept that there is such a thing as parliamentary arithmetic. I accept that the noble and learned Lord the Lord Chancellor has for some time—as has been made clear in a number of his observations—been deeply committed to the principles that are set out in Clause 31. Throughout this Committee 1170 stage, the noble and learned Lord has made a series of major, generous concessions unequalled by any Government Minister in conducting a Bill in this House.
§ Lord Wigoder
My Lords, having said that, I must add that I do not think any advocacy of mine will persuade the noble and learned Lord to make a similar major concession when he rises to reply to the noble and learned Lord, Lord Ackner. Therefore, perhaps I may look for a moment to the future and to what will happen if this clause stands part of the Bill. The crucial matter is one of standards of advocacy among prosecuting solicitors who are being given rights of audience.
I come now to the second half of the observations that I was seduced into making earlier by the words of the noble and learned Lord, Lord Woolf. I shall certainly not repeat them at this juncture. In all probability the question of maintaining high standards among those who are newly granted rights of audience is crucial if we are to move forward in the way in which the noble and learned Lord is anxious that we should.
I asked the noble and learned Lord a number of questions earlier about not only the code and the disciplinary body but the actual machinery on the ground that will detect breaches of the code and see that they are remedied. The noble and learned Lord said that he would rather not deal with that matter this afternoon, and I fully understand his reasons. I should be grateful for an indication from him that at some stage during the Bill's passage, possibly when we consider Clause 36 if that is thought appropriate, he may be able to give us a clear indication as to how he sees the future in this respect and how the safeguards are to be maintained in order that prosecutions can retain, if possible, the standard that they have always had in this country.
§ Lord Goodhart
The question of the rights of audience of CPS employees is an extremely difficult issue on which different views have been held strongly by individuals among my noble friends. The Committee has heard some of them expressed today—however, all on one side.
I must explain that the view taken by my party in this House is that those who have participated in the debate in this Committee will report back to our colleagues before the Report stage and the party will then decide how to recommend its members to vote. It follows that no decision has yet been taken on how we should vote on the issue and so I do not intend to express views of my own which would at this time be purely personal.
I hope that the noble and learned Lord and my noble friend Lord Hutchinson will not divide the Committee today on Clause 31 because it is preferable to defer the vote to the Report stage. If we vote today, then we have recommended our members to abstain, recognising that some may feel it impossible to do so.
§ 6.15 p.m.
§ The Lord Chancellor
I well recognise that the noble and learned Lord, Lord Ackner, and the noble Lord, Lord Hutchinson of Lullington, have deeply held convictions on the subject, as do others. However, it is also the fact that the arguments that we have heard now for almost one hour on the Question that Clause 31 do not stand part of the Bill have been fully canvassed in our debates on previous specific amendments.
I also have to say, as gently as I can, that the noble and learned Lord, Lord Ackner, took 20 minutes to develop his arguments in Committee. That hand was fully dealt. The noble Lord, Lord Hutchinson, dealt his even more fully at 22 minutes. I propose to be brief, in recognition that we have a long night ahead of us and there are many other amendments dealing with different but also important issues. I do not propose to enter upon battles of long ago, however much that might contribute on the part of the noble and learned Lord, Lord Mackay of Clashfern, to a sense of déjà vu. I rather suspect that he would prefer to be spared that experience. Therefore, I shall not embark on those battles of long ago.
Clause 31 inserts a new Section 31 A into the Courts and Legal Services Act 1990. It would have the effect of invalidating any contract rules or qualification rules of professional bodies which restrict employed lawyers from undertaking advocacy work where their counterparts in private practice are not similarly restricted. As barristers, employed barristers have theoretical rights of audience in all courts, but in practice they may not exercise many of those rights because they are prevented from doing so by the Bar's code of conduct which prevents employed barristers from appearing in the higher courts.
Similarly, the current rules of the Law Society in the terms approved in 1997 by my noble and learned predecessor and by the designated judges prevent an employed solicitor from appearing as the sole or senior advocate in substantive proceedings in the higher courts. They can appear only if led. That means that solicitor Crown prosecutors who have obtained the Law Society's higher courts criminal qualification are nevertheless unable to appear on their own in substantive trials in the Crown Court. In my view, that is to endorse a restrictive practice.
The noble and learned Lord, Lord Ackner, submitted to the Committee that the 1990 Act was not intended to allow employed lawyers to exercise rights of audience and not intended to allow CPS lawyers to prosecute. I imagine that it must have slipped his memory that in our proceedings on the 1990 Act the noble Lord, Lord Hutchinson of Lullington, moved an amendment to prevent Crown prosecutors exercising rights of audience in the higher courts. That amendment was defeated.
In truth, the 1990 Act was an enabling Act. It created a procedure for extending rights of audience. But that procedure has failed sufficiently to extend these rights to employed lawyers. That is one of the important reasons the Bill has been brought forward.
1172 The Government do not believe that this discrimination against employed advocates is justified. The provision is designed to give full and exercisable rights of audience to employed advocates, including Crown prosecutors and other lawyers in the Crown service.
I have to say, with the greatest respect to the noble Lord, Lord Hutchinson, which he knows is sincerely felt, I regard the proposition as exorbitant that only the Bar can bring integrity to the prosecution process. I believe that that proposition would be rejected by the overwhelming majority of people in this country. I also have to say that it is insulting to employed lawyers as a class.
I ally myself with the noble and learned Lord, Lord Bingham of Cornhill, the Lord Chief Justice of England and Wales, who said this on Second Reading (at cols. 1125 to 1126 of Hansard for 14th January):Six years' experience as one of the designated judges—I have perhaps longer experience in this matter than anyone except the noble and learned Lord, Lord Mackay, and I am not far behind him—persuades me that the existing regime is unsatisfactory. I see no satisfactory alternative other than that proposed. While others disagree—and, I must make it plain, disagree very strongly, even passionately—I do not agree that Crown prosecutors, members of a service led by a very distinguished advocate answerable to an Attorney-General who has made clear his belief in the independence of the prosecuting function, would be likely to exhibit in the higher courts vices of which no complaint is made in the lower".I add to those words of the noble and learned Lord that I cannot agree with the central argument that employed lawyers are incapable of exercising their duty ethically. The Crown Prosecution Service was set up precisely to provide a barrier between the investigators—that is to say, the police—and prosecutors. No one suggests that CPS barristers should not carry out cases in magistrates' courts, where they do, without any complaint against their ethical standards and where 97 per cent. of criminal cases in this country begin and end.
I emphasise that this clause does not mean that the authorised bodies should not be able to regulate those of their members who are employed lawyers. Of course they will continue to be subject to qualification regulations and rules of conduct, in the same way as their colleagues in private practice. But what is unacceptable is the current situation in which rules prevent qualified advocates from exercising rights of audience simply because they are employed.
I commend Clause 31 and believe that it should stand part of the Bill.
§ Lord Ackner
After being chided for taking so long in moving my amendment, I shall take little time now in closing. I raise two points only. I was fully aware—and Hansard will show—that the noble Lord, Lord Hutchinson, sought to move in Committee or at some other stage of the 1990 Act, there and then, that employed lawyers in the CPS should not have rights of audience. What my noble and learned friend the then Lord Chancellor did was to say: "No, this will be dealt with by the committee that I have set up and their advice and the reaction of the presiding judges and myself". In other words, he was not going to prejudice whatever the decision should be. In the part which I read out, he accepted that there was room for debate on either side.
1173 My final point is a reference to the Lord Chief Justice. It is sad that the Lord Chief Justice is out of step with his judges. The noble and learned Lord the Lord Chancellor has made no reference at any stage to the lengthy responses put in on behalf of the High Court judges, the Court of Appeal judges and the Inns Committee. They have all strongly said that, in their view, the Lord Chancellor should follow what was done in the 1989 proceedings.
This is a very serious and important point. I am sorry that the members of the Liberal Democrat Party have not yet made up their minds but in suggesting to me that I should not divide the House they have overlooked that I cannot come back on this amendment. As a result of any withdrawal, I cannot next time round invite the House again to take out this clause from the Bill. In those circumstances, as it is now or never, I feel it is only right to divide the House.
§ 6.21 p.m.
§ On Question, Whether Clause 31, as amended, shall stand part of the Bill?
§ Their Lordships divided: Contents, 77; Not-Contents, 88.1174
|Division No. 1|
|Acton, L.||Irvine of Lairg, L. [Lord Chancellor.]|
|Amos, B.||Jay of Paddington, B. [Lord Privy Seal.]|
|Archer of Sandwell, L.||Jenkins of Putney, L.|
|Bach, L.||Laming, L.|
|Berkeley, L.||Lovell-Davis, L.|
|Blackstone, B.||McIntosh of Haringey, L. [Teller.]|
|Brookman, L.||Mackay of Clashfern, L.|
|Bruce of Donington, L.||Mackenzie of Framwellgate, L.|
|Carter, L. [Teller.]||Milner of Leeds, L.|
|Christopher, L.||Molloy, L.|
|Clarke of Hampstead, L.||Monckton of Brenchley, V.|
|Clinton-Davis, L.||Monkswell, L.|
|Cocks of Hartcliffe, L.||Montague of Oxford, L.|
|Morris of Castle Morris, L.|
|Crawley, B.||Nicol, B.|
|Currie of Marylebone, L.||Pitkeathley, B.|
|David, B.||Puttnam, L.|
|Desai, L.||Ramsay of Cartvale, B.|
|Dubs, L.||Rendell of Babergh, B.|
|Evans of Watford, L.||Sainsbury of Turville, L.|
|Falconer of Thoroton, L.||Sawyer, L.|
|Farrington of Ribbleton, B.||Sewel, L.|
|Gallacher, L.||Shepherd, L.|
|Gilbert, L.||Shore of Stepney, L.|
|Goudie, B.||Simon, V.|
|Gould of Potternewton, B.||Smith of Gilmorehill, B.|
|Graham of Edmonton, L.||Stoddart of Swindon, L.|
|Hacking, L.||Strabolgi, L.|
|Hanworth, V.||Symons of Vernham Dean, B.|
|Hardie, L.||Thornton, B.|
|Harris of Haringey, L.||Trefgarne, L.|
|Hayman, B.||Turner of Camden, B.|
|Hilton of Eggardon, B.||Uddin, B.|
|Hollis of Heigham, B.||Walker of Doncaster, L.|
|Hoyle, L.||Whitty, L.|
|Hughes of Woodside, L.||Williams of Elvel, L.|
|Hunt of Kings Heath, L.||Williams of Mostyn, L.|
|Winston, L.||Young of Old Scone, B.|
|Abinger, L.||Lane, L.|
|Ackner, L. [Teller.]||Leigh, L.|
|Alton of Liverpool, L.||Liverpool, E.|
|Anelay of St. Johns, B.||Luke, L.|
|Annaly, L.||McConnell, L.|
|Attlee, E.||Mancroft, L.|
|Banbury of Southam, L.||Marlesford, L.|
|Beaumont of Whitley, L.||Massereene and Ferrard, V.|
|Belhaven and Stenton, L.||Miller of Hendon, B.|
|Bell, L.||Milverton, L.|
|Biffen, L.||Mountevans, L.|
|Blaker, L.||Morris, L.|
|Blatch, B.||Nelson, E.|
|Bridgeman, V.||Newall, L.|
|Brightman, L.||Norton, L.|
|Brougham and Vaux, L.||Norton of Louth, L.|
|Buckinghamshire, E.||Perry of Southwark, B.|
|Byford, B.||Plummer of St. Marylebone, L.|
|Cadman, L.||Rankeillour, L.|
|Campbell of Alloway, L.||Rennell, L.|
|Carnock, L.||Renton, L.|
|Clark of Kempston, L.||Roberts of Conwy, L.|
|Cope of Berkeley, L.||Rotherwick, L.|
|Cross, V.||Seccombe, B.|
|Denham, L.||Sempill, L.|
|Denton of Wakefield, B.||Shaw of Northstead, L.|
|Dixon-Smith, L.||Simon of Glaisdale, L.|
|Dudley, E.||Skelmersdale, L.|
|Feldman, L.||Stanley of Alderley, L.|
|Ferrers, E.||Sudeley, L.|
|Geddes, L.||Swinfen, L.|
|Gisborough, L.||Tebbit, L.|
|Halsbury, E.||Tenby, V.|
|Henley, L. [Teller.]||Teviot, L.|
|Higgins, L.||Thomas of Gresford, L.|
|Hooper, B.||Trenchard, V.|
|Howe, E.||Vivian, L.|
|Hutchinson of Lullington, L.||Weatherill, L.|
|Hylton-Foster, B.||Westbury, L.|
|Jenkin of Roding, L.||Wharton, B.|
|Kingsland, L.||Wilberforce, L.|
|Kitchener, E.||Willoughby de Broke, L.|
|Knutsford, V.||Wise, L.|
|Lamont of Lerwick, L.||Young, B.|
§ Resolved in the negative, and Clause 31, as amended, disagreed to accordingly.
§ 6.31 p.m.
§ Clause 32 [Employees of Legal Services Commission]:
§ [Amendment No. 241 not moved.]
§ The Lord Chancellor moved Amendment No. 241A:
§ Page 19, line 32, leave out from beginning to ("they") in line 39 and insert ("the body which fall within subsection (2) shall not have effect in relation to him.
§ (2) Rules of a body fall within this subsection if they are—
- (a) rules of conduct prohibiting or limiting the exercise of the right on behalf of members of the public by members of the body who are employees, or
- (b) rules of any other description prohibiting or limiting the provision of legal services to members of the public by such members of the body.
§ The noble and learned Lord said: Amendment No. 241A to Clause 32 is essentially a drafting amendment 1175 to correct an oversight in the current version of the clause. The clause provides that lawyers employed by the legal services commission may exercise their rights of audience or to conduct litigation on behalf of members of the public notwithstanding any professional rules that may otherwise prevent them from so doing. However, the clause fails to provide for advocates and litigators employed by the commission to be able to offer other legal services to the public. The short explanation is that lawyers do many things other than appear in court and conduct litigation; they give advice, attend interviews at police stations, draft documents and the like.
Lawyers employed by the legal services commission should be able to carry out these activities as necessary but at present they may be prevented by rules such as those in the Bar's code of conduct which permit employed barristers to offer legal services only to their employers and not to clients of their employers. The amendment will therefore ensure that such rules do not limit the provision of legal services by lawyers employed by the commission. I commend the amendment to the Committee.
§ On Question, amendment agreed to.
§ Clause 32, as amended, agreed to.
§ Clauses 33 and 34 agreed to.
§ [Amendment No. 242 not moved.]
§ Lord Kingsland moved Amendment No. 243:
§ After Clause 34, insert the following new clause—