HL Deb 28 January 1999 vol 596 cc1210-26

8.46 p.m.

House again in Committee on Schedule 5.

[Amendment No. 246 not moved.]

Lord Goodhart moved Amendment No. 247:

Page 63, line 45, leave out ("may") and insert ("shall").

The noble Lord said: Amendment No. 247 and the other amendments in the same group, Amendments Nos. 248, 259, 260 and 277 to 279, require publication of the advice given by the consultative panel and the Director-General of Fair Trading in relation to Parts I, II and IV of the new Schedule 4 to the Courts and Legal Services Act 1990. There is no equivalent provision in relation to Part III because that is covered by Amendment No. 267 which leaves out that part altogether.

The respective roles of the panel and the Director-General of Fair Trading are important and should be transparent. It should therefore, I believe, be a requirement, not just a power, that the advice they have given should be published. I beg to move.

The Lord Chancellor

These amendments provide that the consultative panel and the Director-General of Fair Trading shall, rather than may, publish the advice that they give to the Lord Chancellor under the new Schedule 4 to the Courts and Legal Services Act 1990. I believe that the amendment would make little difference in practice since such advice must be sent to the authorised body concerned and would be made available to anyone else who wanted it. The 1990 Act gave my advisory committee and the director-general a discretion to publish, but the advice is referred to in their respective annual reports and would in practice be available to those wanting to see it. I am, however, happy to accept these amendments. They are Amendments Nos. 247, 248, 259, 260, 277 and 279.

There is an oddity in this series of amendments in that they do not amend Part III of Schedule 4, presumably because noble Lords who tabled the amendments are opposed to the provisions in Part III. Nevertheless, I think that Schedule 4 should be internally consistent and if these amendments are made I shall seek to amend Part III, accordingly, on Report.

Another oddity relates to Amendment No. 278. That amendment would delete lines 42 and 43 already amended by an earlier amendment tabled by noble Lords. It is an odd amendment, not because it contradicts an earlier amendment, but because it refers only to the advice given by the Director-General of Fair Trading and only in relation to the revocation of designation as an authorised body. I trust that that particular amendment will be withdrawn on the basis that I accept all the others in the grouping.

Lord Goodhart

I am most grateful for the concession made by the noble and learned Lord the Lord Chancellor. It is absolutely right that the schedule should be consistent internally and that similar amendments should be made to Part III. The fact that my name has been put to Amendment No. 278 is due to the mass of amendments that emerged from, in this case, the Bar Council. I did my best to look through them to make sure that they were correct, but I obviously failed to notice this one. I am entirely happy not to move it.

On Question, amendment agreed to.

[Amendments Nos. 248 to 251 not moved.]

Lord Goodhart moved Amendment No. 252:

Page 65, line 1, leave out ("the applicant applies to him in writing,") and insert ("he refuses the application,").

The noble Lord said: Amendment No. 252 is the first of a series of amendments. I wish also to speak to Amendments Nos. 265, 272 and 286. The first three amendments require reasons to be given by the Lord Chancellor whenever he refuses an application for designation under Part I, refuses application for a change of rules under Part II, or imposes a change in rules under Part III. Under the Bill, reasons have to be given only if requested in writing.

It is, however, important that reasons should be given automatically. A body adversely affected by a decision should be told the reasons immediately so that it can, for example, if necessary, take action by way of application for a judicial review. The general principle is that quasi-judicial decisions should contain reasons. I believe that the Lord Chancellor's powers are, effectively, quasi-judicial. In that case, it is desirable that the Lord Chancellor should observe good practice, which is to publish reasons with a decision, especially where a party may suffer adversely. When an application is being approved there may be no necessity to give a reason.

Amendment No. 286 is in a slightly different position. Under Part IV there is no provision for notice to be given at all to a body whose designation is to be revoked. The amendment requires notice of reasons to be given to the relevant body on request. If it seems appropriate that a reason should be given, at least if requested, and to bring it into line with the other amendments, notice of reason should be given automatically. I beg to move.

The Lord Chancellor

I am happy to agree to the purpose of these amendments in principle. Of course, it is right that reasons should be given for decisions. The existing provisions in the Bill allow for the Lord Chancellor to notify the applicant body of the reasons for his decision (on becoming an authorised body, and altering a rule of conduct or qualification regulation) if the applicant applies to the Lord Chancellor in writing. In the case of the call-in power, the authorised body can likewise obtain the Lord Chancellor's reasons by applying to him in writing.

The first three amendments would make it mandatory for the Lord Chancellor to supply his reasons if the application for designation or a proposed rule change was refused. The last would enable a formerly authorised body to apply for reasons for the making of an Order in Council revoking its designation.

The amendment will not make any practical difference. In practice, applicant authorised bodies and authorised bodies would always be given reasons when their application was unsuccessful. The same would apply under the call-in procedure. I agree that the reasons for the Lord Chancellor's decision should be made available to the body which it affects. That is what happens now and what would happen under the new provisions with or without the amendment. I do, however, believe that administrative decisions should be supported by stated reasons. I am therefore willing to take the issue away and consider how the Bill can be strengthened in the way proposed. On that basis I invite the noble Lord to withdraw the amendment.

Lord Goodhart: In view of what the noble and learned Lord the Lord Chancellor has just said, I am happy to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 253 not moved.]

Lord Kingsland moved Amendment No. 254:

Page 65, line 15, after ("conduct") insert ("which relates to the grant of a right of audience or a right to conduct litigation").

The noble Lord said: Telegraphically, this amendment is designed to ensure that alterations to rules of conduct only require approval by the Lord Chancellor if they relate to the grant of rights of audience or the right to conduct litigation. The Law Society and the Bar Council are both extremely keen that this amendment is passed. It is important to make clear that the provisions of Schedule 5 are not designed to provide a requirement on the Lord Chancellor to approve changes to rules of conduct generally, but only where the rules apply to rights of audience and rights to conduct litigation. I beg to move.

The Minister of State, Cabinet Office (Lord Falconer of Thoroton)

I have sympathy with the intention behind these amendments. The point has been mentioned to me previously. The noble Lord wishes to restrict the statutory approval procedure to qualification regulations and rules of conduct which relate to rights of audience and rights to conduct litigation. So does the Lord Chancellor. The noble Lord also wishes to restrict the Lord Chancellor's call-in power, although it is true to say that in other amendments he would oppose the power altogether, to qualification regulations and rules of conduct which relate to rights of audience and rights to conduct litigation. So does the Lord Chancellor. However, in relation to the call-in power, I should make it clear that the Lord Chancellor would go further than the amendment. He has already said that he will look further at how the call-in power may be restricted, not to rules and regulations related to rights of audience and rights to conduct litigation, but to those which are "unreasonably" restrictive of rights of audience and rights to conduct litigation. This was a point raised by the Select Committee on Delegated Powers and Deregulation and, as I have indicated, the Lord Chancellor is already considering how its concern can be met.

Perhaps I may turn to the point raised by the amendment: that the provision be restricted to rights-of-audience type rules and not to all rules. Qualification regulations and rules of conduct—the phrase used in the Bill—are already defined in Sections 27 and 28 of the Courts and Legal Services Act 1990 by reference to rights of audience and rights to conduct litigation. The definition in Section 27 of that Act, for example, is as follows: 'Rules of conduct', in relation to an authorised body, means rules of conduct (however they may be described) as to the conduct required of members of that body in exercising any right of audience granted by it". Section 119, the definition section of the 1990 Act, relies on the definitions found in Sections 27 and 28. So only those rules and regulations which relate to the grant or the exercise of a right of audience or a right to conduct litigation are subject to the statutory approval procedure. That is the position now; it will remain the position under the existing—that is, amended—provisions in the Bill.

I do not think that the amendments are sufficiently wide in referring only to the "grant" of a right. That in my view is too restrictive. The Bill, like the 1990 Act, covers not only rules governing the grant of rights but also their exercise.

To sum up, the amendments are unnecessary to meet the point so clearly put by the noble Lord. They do not go far enough in relation to the call-in power. The Lord Chancellor has already indicated that he will seek to deal with that. In any event, even if they were in the target area, they are drafted too restrictively because they do not refer to "exercise". In the circumstances, with the greatest respect, I invite the noble Lord to withdraw the amendment.

9 p.m.

Lord Kingsland

In thanking the noble and learned Lord for his reply, I look forward keenly to seeing the fresh draft that he will no doubt table at Report stage. I counted at least two bonus points in his reply which I gratefully accept. In those circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Goodhart moved Amendment No. 255:

Page 65, line 16, at end insert ("and the designated judges (acting, in the event of disagreement, by majority)").

The noble Lord said: This is the first in a group of amendments which seek to retain the judicial veto on applications for changes of rules under Part II of the new Schedule 4. The principle has already been discussed. I do not propose to go into it again. However, there is a special feature in connection with Part II. Part II is the only part of the schedule in relation to which there is no parliamentary control. That was true under the 1990 Act—the old version of Schedule 4—but it is equally true under the revised version.

The reason that there is no parliamentary control is reasonably apparent. It is that if a rule change put forward by an authorised body meets with no objection by the Lord Chancellor or any of the designated judges, why should it need to be made by a statutory instrument? Rule changes could have a radical effect on rights of audience—for example, by widely extending them as a result of changes in the rules of an existing authorised body—which could have virtually the same effect as admitting a new authorised body. That being so, it seems to me that there is a case for retaining here a degree of judicial control in lieu of parliamentary control and extending to Part II the same principle that we seek to extend to the other parts; that is, that the approval should require the joint action of the Lord Chancellor and at least two of the designated judges. I beg to move.

The Lord Chancellor

As the noble Lord indicated, we have a feeling of déjà vu in our discussion of this group of amendments. They are essentially the same as the amendments grouped with Amendment No. 245. They are similarly intended to reinstate the veto of the designated judges or the decisions taken under Schedule 4 to the 1990 Act which will be substituted by Schedule 5 to the Bill.

As the noble Lord said, the difference is that these amendments relate to Part II of the schedule rather than Part I. Part II deals with the procedure for approving alterations in the rules of authorised bodies.

As before, the amendments would not restore the individual vetoes of each judge. They would require decisions to be taken jointly by them and the Lord Chancellor, and in the event of a difference of opinion, by a majority of the designated judges and the Lord Chancellor. That would mean that the Lord Chancellor could act only if at least two of the four judges agreed with him.

The issues of principle are the same in relation to Part I as Part II. I do not repeat the arguments. I do not accept that constitutionally rights of audience are a matter for the judiciary to determine. On the contrary, they are a matter for Parliament to determine. They are statutory rights under the 1990 Act in exactly the same way as rights to conduct litigation, and they are properly subject ultimately to parliamentary control.

The power that is given to the Lord Chancellor by Part II of the schedule is that of agreeing, or not agreeing, to proposals initiated by the authorised bodies to alter those of their rules which relate to rights of audience or rights to conduct litigation. Part II importantly does not give the Lord Chancellor the power to initiate such changes himself. That is an important point. Most applications to alter the rules in practice are routine and uncontroversial. But they still take a substantial time to process under the complex procedures of the 1990 Act. Part II will enable me to approve simple changes quickly after consultation with the designated judges. But more complex or controversial changes will be referred to the new legal services consultative panel and the Director-General of Fair Trading for advice before a decision is taken.

As I have already said, the designated judges will retain a powerful role in advising me on the exercise of the powers in the new Schedule 4 to the Act. I repeat that it is unlikely that we will disagree about many or any applications made under the Act. However, I agree with the noble and learned Lords the Lord Chief Justice and the Master of the Rolls that the current system does not work. Responsibility for making changes and taking decisions should lie with the Lord Chancellor as a Minister accountable to Parliament. I hope that in the circumstances the noble Lord will agree to withdraw the amendment.

Lord Goodhart

Naturally, I am disappointed with the noble and learned Lord's reply. While I agree that parliamentary control is appropriate, there is under Part II no question of any parliamentary control. That is why the position is somewhat different. Obviously, I have no intention of pressing the amendment tonight and I beg leave to withdraw it.

Amendment, by leave, withdrawn.

[Amendments Nos. 256 to 258 not moved.]

Lord Goodhart moved Amendments Nos. 259 and 260:

Page 66, line 31, leave out ("may") and insert ("shall").

Page 66, line 45, leave out ("may") and insert ("shall").

On Question, amendments agreed to.

[Amendments Nos. 261 and 262 not moved.]

Lord Goodhart moved Amendment No. 263:

Page 67, line 36, at end insert— ("( ) The Lord Chancellor shall not refuse the application unless he has sought the advice of the Consultative Panel.").

The noble Lord said: The amendment relates to Part II, the approval by the Lord Chancellor of rule changes sought by authorised bodies. On such an application, the Lord Chancellor may ask advice from a consultative panel, but does not have to do so. Paragraph 10 allows the Lord Chancellor to act without consulting the panel after seeking and considering advice from designated judges.

If the rule changes are straightforward and uncontroversial, and the Lord Chancellor proposes to approve them, I see no need for the panel to consider them. However, I believe that it would be inappropriate for the Lord Chancellor to reject an application without consulting the panel. The authorised body would have a justifiable grievance if he did so. The amendment would prevent that. I beg to move.

Lord Falconer of Thoroton

I accept in principle the purpose of the amendment. The noble Lord is right in saying that the purpose of not consulting would be in an uncontroversial application. If the Lord Chancellor is to refuse an application it is appropriate that he should consult the consultative panel. He would do so in practice and there is no reason why that should not be put on the face of the Bill. I ask the noble Lord to withdraw the amendment on the basis that we will come back with another one because we are unsure of the drafting.

Lord Goodhart

In those circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 264 to 266 not moved.]

Lord Goodhart moved Amendment No. 267:

Page 68, line 1, leave out from beginning to end of line 43 on page 69.

The noble Lord said: The amendment relates to the same point. It proposes to leave out Part III altogether. In order to avoid having to go through the issue again, it might be convenient to deal with further amendments which seek to leave in Part III but require the consent of two of the designated judges. The same principle applies to Part IV.

The principle has been discussed at length. The power of the Lord Chancellor under Part III to enforce rule changes on authorised bodies has undoubtedly aroused more objections than any other part of the Bill. It has been attacked in particular by the noble and learned Lord, Lord Steyn, in a public lecture and Mr. Sydney Kentridge in an opinion referred to by the noble and learned Lord, Lord Ackner.

When those two people speak it is wise to listen. Neither is in any sense a professional trade unionist. Both are people of strong liberal commitment, both coming from the Republic of South Africa. During the apartheid era, the South African legal profession and judiciary had a relatively good record. They displayed a high degree of independence. It could not prevent the enactment of unjust laws but at least it ensured that those charged with breaches of the laws were given a fair trial. As Mr. Kentridge pointed out, one of the South African Government's objectives was to obtain control over the legal profession, to impose their will on it and to get rid of its inconvenient independence, and they were unable to do that.

I am not suggesting that the present Lord Chancellor would in any way abuse his powers under Part III. That is not a mere conventional statement. On these Benches we recognise fully his achievement in introducing the Human Rights Act and taking it through your Lordships' House. That illustrates his profound personal commitment to human rights. But in giving himself powers which he would exercise benevolently, he is also giving his unknown and unpredictable successors powers which they could exercise malignly.

The Lord Chancellor has moved some way from the original proposal by accepting that rule changes can be made only by order approved by affirmative resolution, which was not the position originally in the White Paper. But I do not believe that that is enough. I have already expressed doubts as to whether even the affirmative resolution procedure is an adequately effective safeguard. That power, if wrongly exercised, could do very grave damage to the independence of the legal profession.

I am not an absolutist on this issue. Amendment No. 271 allows the Lord Chancellor to make an order for rule changes if two or more of the designated judges approve. If the Lord Chancellor were minded to accept that amendment, I should not seek to press this one. But I do not believe that the Lord Chancellor should have power, even if that power must be endorsed by statutory instrument, to enforce rule changes of authorised professional bodies even if not a single one of the designated judges agrees with it. If that happens, either the Lord Chancellor should back down or he should impose rule changes by primary legislation. I have never suggested for a moment that that would not be an appropriate course.

I turn now to amendments dealing with Part IV on this issue; that is, Amendments Nos. 275, 276 and 280 to 284 inclusive. They give the Lord Chancellor power to revoke designation as an authorised body. Paragraph 25(2) in Schedule 5 provides when that designation can be revoked. Under paragraph 25(2)(a) or (b), there is obviously no problem where the revocation is agreed by the body whose designation is being revoked. But the Lord Chancellor has a power to recommend revocation under paragraph 25(2)(c) where he is satisfied, that the circumstances at the time when he is considering whether to make the recommendation are such that, had that body then been applying to become an authorised body, its application would have failed". In theory, that power can be exercised so as to revoke the designation of the Bar Council or the Law Society. That would happen only if a dictatorship assumed power, and no statute or constitution can give an ultimate protection against a violent dictatorship. But that illustrates the width of the power.

Furthermore, the test for revocation is the Lord Chancellor's belief that had the body in question been applying to become an authorised body, that application would have failed. That is a very unsatisfactory test because Part I, which provides for approval, contains no criteria for granting the application. Therefore, the test is doubly subjective.

The Lord Chancellor's satisfaction that the relevant circumstances exist is necessarily subjective, as is his decision as to why the application would have failed in the absence of any identifiable criteria. For the reasons which I have already stated, I do not believe that the need for approval by Order in Council, by the affirmative resolution procedure, is, in relation to powers of such outstanding constitutional importance, a sufficient safeguard.

Revocation of the rights of an existing body has a far more serious effect on the administration of justice than the extension of rights to a new body. I believe that the consent of at least two of the designated judges is necessary before an Order in Council, under Part IV, can be made. Once again, if not, then the Lord Chancellor should have to enact primary legislation.

9.15 p.m.

The Lord Chancellor

I certainly agree that when Mr. Sidney Kentridge Q.C. or the noble and learned Lord, Lord Steyn, speak, it is wise to listen but it is not obligatory to agree with them.

I recognise that Part III of the new Schedule 4 is highly controversial. But the power is not unfettered either in its scope or in its exercise. It relates only to those rules and regulations which govern rights of audience or rights to conduct litigation. I accept that it should be used only to remove undue restrictions on the exercise of those rights. I have already said that I will bring forward an amendment to this effect. The exercise of the power is subject to an extensive consultation procedure and then to approval by both Houses under the affirmative procedure.

I have to say that I cannot agree with the noble Lord, Lord Goodhart, that approval by both Houses under the affirmative procedure is insufficient either in practice or in constitution. Because of the requirement for affirmative approval the possibility of some maverick Lord Chancellor of the future suddenly taking it into his head to re-write the rules of the legal profession and being subject to no control cannot be substantiated.

We have had this argument already. I will be as brief as I can. There are several lines of argument advanced against this power. One is an absolutist position: that it is constitutionally wrong for the Executive and the legislature to have a power of this nature over the legal profession. In this view rights of audience in particular are and have been a matter for the judiciary where these exclusive rights of audience were delegated or conferred by the judiciary on the Bar at some remote period of history, a transaction of which unfortunately no written record survives.

My noble and learned friend Lord Falconer demonstrated at Second Reading, I would suggest conclusively, that the argument that Parliament and the Executive simply have voluntarily abstained from intervening in rights of audience is simply inaccurate. Parliament has often legislated on the subject, not least in the Courts and Legal Services Act 1990 itself. Since that Act all rights of audience have been placed on a statutory basis, including those of the Bar.

Lord Goodhart

I am most grateful to the noble and learned Lord the Lord Chancellor for giving way. This argument I am afraid is once again getting repetitive because I have made it clear before and must make it clear again that I have never objected to the power of Parliament to change these rules by primary legislation. The real question here is the adequacy of secondary legislation.

The Lord Chancellor

That is the real question so far as concerns the noble Lord, but the noble Lord must appreciate that we disagree on this matter. There is not much virtue in disagreeing again. That itself would be repetitious, but the noble Lord must also appreciate that I am not merely addressing him; I am addressing the whole Chamber in Committee and there is a wider public interested in these matters.

What I was explaining was that barristers do not exercise these rights of audience, derived in some curious way from the judiciary. What they exercise are statutory rights which have been granted to them by the Bar Council, which is a body authorised for that purpose under an Act of Parliament, the 1990 Courts and Legal Services Act. The Act also imposes a statutory procedure for approving changes in these rights. It is simply untrue that rights of audience have historically been the exclusive reserve of the judiciary in which the legislature and the Executive have uniformly abstained from intervening.

The fact is that extensions of rights of audience have often taken place as a result of government legislation as the judiciary have either failed to see the need for such extensions or have thought that they lacked the power to bring them about. For example, Section 2 of the Trials for Felony Act as long ago as 1836 allowed barristers and attorneys rights of audience in magistrates' courts following a judicial decision that they had no entitlement to appear there. Parliament struck down the view of the judges; Parliament is sovereign.

In 1846 Parliament legislated again to enable barristers to appear in the Court of Common Pleas which had been traditionally reserved to the Serjeants at Law. When the Crown Court was established in 1971 the Courts Act enabled the Lord Chancellor to direct that solicitors should be able to appear in any description of proceedings that he might specify. Rights of audience in the county courts were dealt with in the County Courts Act 1984 and, before that, in the Acts of 1959 and 1934.

The "authorised bodies", including the Bar Council, are so called because they are authorised to grant those rights under the 1990 Act. Their rules and regulations relating to those rights are not made through powers delegated by the judiciary through the Inns of Court; they are made under statutory authority and subject to a statutory approval procedure.

At the time the 1990 Act was passed, the Bar and the Law Society of course already had rules in place—this addresses the next point of the noble Lord, Lord Goodhart. These were deemed to be approved for the purposes of the Act, but were made subject to a procedure under which they could be challenged and would fall if not upheld unanimously by the designated judges and the Lord Chancellor. It cannot be in the public interest for a single judge to have such power.

I therefore already have an individual veto over a large part—if not the majority—of the rules and regulations of the Bar Council and the Law Society. I could, for example, strike down the Bar's rules about employed lawyers, if I wished, and I would not need the approval of Parliament or the designated judges to do so. Of course, I would not dream of doing so.

Why, then, have I proposed to take this new power? There are two reasons. First, my existing power is only to strike down rules, and not to replace them. We all believe that lawyers should be subject to rules and regulations, in the public interest, and it would be inappropriate for me to remove rules merely to leave an unregulated vacuum. Secondly, my existing power does not allow me to revisit rules which have been approved, but which have proved to be unacceptably restrictive in practice or have become outmoded. The new power I propose will also have the advantage of much greater scrutiny over the actions of the Lord Chancellor. He will no longer be able to strike down or alter any rules unless Parliament has approved. I emphasise this point. The revocation power only relates to bodies authorised by Order in Council. The Bar and the Law Society are authorised by statute—the 1990 Act—and therefore the revocation power has no application.

Finally, there remains a deeper question. Is it the view of the Government that they expect such entrenched hostility from the legal profession, such opposition to any moves to widen rights of audience, that they envisage the Lord Chancellor having to use his exceptional fall-back power regularly? The answer to that question is, "Certainly not". I and my department have excellent relations with the legal profession which we are confident will continue. I believe that most of the Bar have now accepted, perhaps with some reluctance, that rights of audience in the higher courts will be extended to Crown prosecutors and those who are wise among them will not be in the least encouraged by tonight's aberrant vote in which the Liberal Democrat Benches opposite did not participate.

I think that it is generally accepted that it is right, in the public interest, that rights of audience in the higher courts will be extended to Crown prosecutors, to other employed lawyers and to solicitors, provided that they meet the necessary requirements. I look forward to the Bar making proposals to grant rights to conduct litigation to employed barristers. I hope that the mindset among some of the Bar resisting any form of modernisation will shortly become a part of a rather unbelievable past.

The record of inactivity over the past decade, since the 1990 Act was passed, in my firm view demands action, and now. This backstop power, which I hope that neither I nor any successor Lord Chancellor will ever have to exercise, will spur the authorised bodies into sensible action in the public interest if they know that the Lord Chancellor will, in the last resort, and only with Parliament's approval, ensure that Parliament's will is carried into effect in matters which relate to what are inherently restricted practices and can be justified only by reference to the public interest. I repeat that Parliament, not the judiciary, is the ultimate judge of the public interest. I hope on that basis that the noble Lord will agree to withdraw his amendment.

9.30 p.m.

Lord Goodhart

I do not think that the Lord Chancellor will have expected me to listen to his statement on this group of amendments with much enthusiasm. Nevertheless, it is inappropriate this evening to take the matter further. Therefore, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 268 and 269 not moved.]

Lord Archer of Sandwell moved Amendment No. 270:

Page 69, line 36, after ("shall") insert (", if he is satisfied that any qualification, regulation or rule of conduct is unduly restrictive of rights of audience or of a right to conduct litigation.").

The noble and learned Lord said: At the risk of being tiresome, this amendment was grouped with the amendment in the name of the noble Lord, Lord Goodhart, which he has not moved, Amendment No. 268.

It may be that I am the only Member of the Committee who is not now crystal clear about the position we have arrived at in the course of the last few debates. Of course I assume, for the purpose of this amendment, that changes in the rights of audience and particularly in enforcing rule changes will be made by the Lord Chancellor with no participation in the decision-making by the designated judges. I say that I assume it; as to whether I approve of it, I remain something of a Hamlet, and I shall watch this space at subsequent stages.

We have had some incursions into legal history. At Second Reading my noble and learned friend Lord Falconer pointed out that there were historical precedents for changes to the rights of audience which were not initiated by the senior judiciary. My noble and learned friend the Lord Chancellor has just repeated them. The examples they gave were of interventions by Parliament, which is not what this Bill originally proposed. Incursions into legal history are always fascinating yet it is always perhaps a little dangerous to reduce them to single sentences as that may mean an over-simplification. Certainly, in the late 16th century, when the present structure relating to rights of audience was developed, it was the judges who sought to restrict the rights of audience in the superior common law courts to those who, by their studies, had made themselves competent. Perhaps it is fair to say that the subject seems to have been regarded less as a constitutional issue than as a matter of consumer protection.

However, my noble and learned friends are right: there have been times when the legislature has felt a need to intervene. I seem to remember that in the late 14th century, Alice Perrers, the mistress of Edward III, became so notorious for intervening in court, particularly in favour of her friends and presumably of her paying acquaintances, that in 1376 Parliament passed an Act forbidding women to practise in the law courts. So the precedents go back a long way.

However, as I ventured to say, those precedents were about interventions by Parliament. That is not what is proposed in the Bill; indeed, the Bill proposes that the intervention shall be by my noble and learned friend alone. Perhaps it is not totally irrelevant to point out again that the Delegated Powers and Deregulation Committee, of which the noble Lord, Lord Goodhart, and I are privileged to be members, suggested that we should consider two restrictions on the power of the Lord Chancellor to alter rights of representation under Schedule 5.

It suggested, first, that there should be some precondition stated by Parliament on the face of the Bill so that the Lord Chancellor might alter the provisions only if a case had been made out for the changes. In Amendment No. 270 I have tried to follow as far as possible the actual wording of the committee. I know there was an earlier debate about that, but I would be most grateful to know the reactions of my noble and learned friend about interposing some such statement at this stage. As I understand it, it would make it possible for decisions of the Lord Chancellor to be the subject of judicial review. That does not seem to me to be the end of civilisation as we know it. For the moment, therefore, I propose to move my amendment.

As to the second recommendation of the Committee—namely, that the matter should be subject to parliamentary control by the affirmative resolution procedure—my noble and learned friend has said repeatedly during the course of our debates that that will be the case and that that is what he proposes. Therefore, I can spare noble Lords an intervention at a later stage by saying now that I do not propose to move Amendment No. 273 in due course. For the moment, I beg to move Amendment No. 270.

The Lord Chancellor

The noble Lords, Lord Goodhart and Lord Thomas of Gresford, have not moved their Amendment No. 268. However, as I would have expected, my noble and learned friend Lord Archer of Sandwell has stuck to his amendment to the last, and moved it. I should remind my noble and learned friend that I clearly stated my position in relation to the matter when making my opening speech to this Chamber at the outset of our considerations on the Bill in Committee. Of course, in practice the call-in power, if it is used at all, will only be used to remove restrictive rules. Therefore, I am content in principle to accept a limitation of the type that these amendments would impose, as indeed I have already said. However, I shall need to consider precisely how the amendment should be drafted. I hope that I shall be able to return to the matter on Report with an amendment. In the meantime, I should be grateful if my noble and learned friend would withdraw his amendment.

Lord Archer of Sandwell

My noble and learned friend cannot say fairer than that. However, I wanted to ensure that what he said earlier applied particularly to this provision. For the moment I am content and, therefore, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 271 to 273 not moved.]

Lord Goodhart moved Amendment No. 274:

Page 69, line 43, at end insert— ("( ) When an order under this paragraph is laid before either House of Parliament there shall be laid with it copies of all representations made under paragraphs 18 and 21 and advice given under paragraphs 19, 20 and 22.").

The noble Lord said: I shall speak shortly to this amendment. If the Lord Chancellor makes an order imposing rule changes under Part III of the schedule, the amendment would require him to lay before Parliament the representations received by him from the body whose rules are to be changed and the advice received from the consultative panel, the Director-General of Fair Trading and the designated judges.

The Lord Chancellor has already accepted that the advice from the consultative panel and the Director-General of Fair Trading should be published, but, when considering an Order in Council in this case, it seems to me that it would be appropriate for Parliament to have before it all the material which is relevant to considering whether an order should be adopted. What I believe requires to be added to the advice of the consultative panel and the Director-General of Fair Trading are the representations made by the body whose rules are to be changed and the advice given by the designated judges. That is clearly information which Parliament ought to have before it when considering whether to approve the order.

Amendment No. 285 has the same effect as Amendment No. 274 in relation to Part IV which gives the Lord Chancellor the power to revoke the designation of an authorised body. I beg to move.

The Lord Chancellor

I already indicated my position in principle in relation to this in response to a question directly put to me earlier in these proceedings by the noble and learned Lord, Lord Lloyd of Berwick. He asked whether I would be willing, where my decision departed from the advice of the designated judges, to publish both their advice and my reasons for not accepting it. I said that so far as I was concerned, in principle I would be happy to do so.

The representations in question—that is to say, those covered by these amendments—are from the authorised body and the advice is from the legal services consultative panel and the Director-General of Fair Trading. I certainly have no objection in principle, and indeed would support, any of these being laid with the draft resolutions. However, despite the comments of the noble and learned Lord, Lord Lloyd of Berwick, I have to express some reserve in relation to the position of the designated judges until I can ascertain collegiately what the position of the designated judges is.

There is no provision on the face of the Bill for the advice of the judges to be published, although nothing whatsoever prevents them from publishing their advice if they wish to do so. Under the 1990 Act the designated judges are of course joint decision makers, and there is provision for the applicant to obtain the reasons given by each of the designated judges, as well as the Lord Chancellor, in reaching his decision under the 1990 Act. These amendments would require their advice to me to be published. Whereas I have no objections whatsoever to that in principle—as I have already indicated in my response to the noble and learned Lord, Lord Lloyd of Berwick—it is a novel step for the judges' advice to the Lord Chancellor to be published, and one which I would wish to discuss with them, as it were collegiately, before coming to a settled view, although for my part I wish to make it absolutely plain that I would be content for the judges to be treated in exactly the same way as the consultative panel and the Director-General of Fair Trading.

The value in the judges' advice of course rests in their experience and independence. All I say is that I wish to take time to consider with the judges collegiately how to proceed in relation to that part of the amendment. In the meantime on that basis I should be grateful if the noble Lord will withdraw these amendments.

Lord Goodhart

On that basis I am happy to withdraw the amendment. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 275 and 276 not moved.]

Lord Kingsland moved Amendment No. 277:

Page 70, line 33, leave out ("may") and insert ("shall").

On Question, amendment agreed to.

[Amendment No. 278 not moved.]

Lord Kingsland moved Amendment No. 279:

Page 70, line 42, leave out ("may") and insert ("shall").

On Question, amendment agreed to.

[Amendments Nos. 280 to 286 not moved.]

Schedule 5, as amended, agreed to.

Clause 36 [Overriding duties of advocates and litigators]:

9.45 p.m.

Lord Kingsland moved Amendment No. 287:

Page 20, line 40, at end insert— ("(2B) An act—

  1. (a) which is intended by the person committing it to bring about a breach of the duty imposed by subsection (2A)(a); or
  2. (b) which the person committing it ought reasonably to appreciate is likely to bring about such a breach,
shall be punishable as a contempt of the court concerned.'"').

The noble Lord said: This amendment seeks to strengthen the provisions of the clause by providing a sanction against those who procure a breach of it.

The Government's recognition of the duties of advocates and litigators to the court and to their codes of conduct is welcome. But this clause is simply declaratory. It provides no sanction whatsoever for inducing a breach of it. The advocate or litigator himself may be liable to professional disciplinary penalties, but those who are not members of the regulatory professions are not subject to disciplinary rules at all.

There is an obvious danger that employers may seek to put their employees under pressure to act in breach of their duties to the court or to their codes of conduct. That would certainly be a breach of Clause 36, but there is no sanction for that breach. Given the duty to the court, the sensible solution would appear to be to make the breach of this clause a contempt of court and allow the court to impose its own sanctions.

Often, the fault will lie not with the lawyer, who may be acting perfectly properly and be placed in an impossible position by his employer, but with the employer who created the situation. It is crucial that the person actually procuring the breach should be held liable for it. I beg to move.

Lord Falconer of Thoroton

As I read these amendments, they are aimed at someone who induces the lawyer to act in breach of his duty under Clause 36. Therefore the provision would impose on a secondary party a liability for contempt of court.

We have carefully considered the amendments and believe, for reasons that I shall outline, that they are neither appropriate nor necessary. They would in effect be imposing a liability for contempt which would not necessarily attach to the advocate or litigator himself; that is, the notional primary party. That is because, while it might constitute a contempt for a lawyer to act in a way which breached his duty to the court in the interests of justice, it would not necessarily be a contempt of court by the lawyer to act in a way that breached Clause 36. It would be a matter for the court to decide in each case. The courts are in fact very slow to penalise lawyers for what may simply be an error of judgment(as the cases on wasted costs orders have shown).

Lay members of the public—such as employers or clients—have to rely on the advocate or the litigator to explain where the interests of justice lie in relation to a particular action. It is for the lawyer to explain whether any proposed course of action would breach his, the lawyer's, duty to the court. Since the new sections inserted by Clause 36 go on to state that the lawyer's duties override any other obligation, it must follow that either the lawyer has to refuse to follow the instructions or cease to continue acting in the case. If, however, the lawyer were to give way, and do something that was in breach of his duty to the court—the effect of the provision in Clause 36 is that it overrides everything else—then he, the lawyer, is to blame. He cannot turn round and blame his client. On the basis of that analysis, the amendment is misfocused and unnecessary. In effect, the lawyer must be able to resist. If he does not, it is the lawyer who is to blame and not the secondary party. Yet the effect of the amendments is to make the secondary party liable for contempt.

Less importantly, the amendment is also technically misconceived. It refers to a person who "ought reasonably to appreciate" that it is likely to bring about a breach of duty. But he is by definition a person who may well not know that his act will have that effect and he could only remain in ignorance through his lawyer's failure to enlighten him. That, again, would be the fault of the lawyer, yet this amendment creates a new offence for someone else.

As a matter of principle, I do not think it is acceptable to have an offence of this kind which consists of bringing about conduct by another person which is not in itself necessarily either a criminal offence or a contempt. Procuring or abetting a non-criminal action, or attempting to do so, should not be a crime.

I should reassure the Committee that, of course, cases in which a client or employer or anyone else attempts to interfere improperly in the processes of justice can already be punished as a contempt. They do not need a provision such as the one put forward by the amendment. Moreover, in the most serious cases, it may be appropriate to bring proceedings for perverting the course of justice or for attempting or conspiring to do so.

I hope that in the light of my explanation the noble Lord will agree to withdraw his amendment.

Lord Kingsland

I am partially reassured by what the noble Lord said. I shall read his remarks carefully in Hansard. In those circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 288 not moved.]

Clause 36 agreed to.

Lord Kingsland moved Amendment No. 289:

After Clause 36, insert the following new clause—