GENERAL COUNCIL OF THE BAR: SUBSCRIPTIONS (Hansard, 28 January 1999)

HL Deb 28 January 1999 vol 596 cc1229-44 1229

§ (" .—(1) It is hereby declared that, notwithstanding any rule of law to the contrary, it shall be lawful for the General Council of the Bar (in this section referred to as "the Council") to make rules or regulations (in this section referred to as "subscription regulations") requiring any person who acts or intends to act as a barrister to pay to the Council such subscription as the Council may require.

§ (2) A person who has been called to the Bar by an Inn of Court shall, if he would not otherwise be taken to be acting as a barrister, be taken for the purposes of this section to be so acting if he is (with or without others)—

(a) supplying or offering to supply legal services to the public or a section of the public;
(b) whilst acting in the course of any employment, supplying legal services—

(i) to his employer,
(ii) to another employee of his employer,
(iii) where his employer is an association, to any member of that association, or
(iv) where his employer is supplying or offering to supply services to the public or a section of the public, to any customer or client of his employer;

(c) exercising or seeking to exercise any right of audience granted by the Council;
(d) employed as an advocate within the meaning of section 31A(3) of the Courts and Legal Services Act 1990.

§ (3) Without prejudice to the generality of the foregoing, but subject to section 31A of the Courts and Legal Services Act 1990, subscription regulations may—

(a) impose different requirements—

(i) for persons who have been called to the Bar for different periods of time, or
(ii) for persons seeking to act as barristers in different modes or forms of practice;

(b) provide that failure to pay the whole or any part of any subscription required to be paid by a person who acts or intends to act as a barrister shall—

(i) constitute professional misconduct, and
(ii) entitle the Council to take such steps as it thinks appropriate with a view to that person being disbarred, or temporarily suspended from practice, by order of an Inn of Court.

§ (4) Where a person who acts or intends to act as a barrister has failed to pay the whole or any part of any subscription required to be paid by him in accordance with subscription regulations the unpaid part thereof shall be recoverable by the Council by action in the County Court as if the same were a debt owing by that person to the Council.").

§ The noble Lord said: The noble and learned Lord the Lord Chancellor said at the beginning of his reply to the previous amendment that he detected the footprints of the Bar Council all over it. The noble and learned Lord may note exactly the same footprints on this amendment. He would be absolutely right, but the amendment is none the worse for that. The purpose of the amendment is to put the Bar Council on the same footing as the Law Society and the Council of Licensed Conveyancers. The Law Society can require anyone who wishes to conduct litigation or advocacy as a solicitor to pay a fee for the issue of a practising certificate under Section 11 of the Solicitors Act 1974. The fee is not confined to a sum that covers the 1230 administrative cost of issuing the certificate. Section 11 specifically provides that it can be used for the general purposes of the society. Under Section 14 of the Administration of Justice Act 1985 the Council of Licensed Conveyancers is entitled to charge fees for the issue of an annual licence to practise. I am not sure about ILEX which is not a statutory body, but it may well have power to charge an annual fee to members by way of a contract between itself and those members.

§ The Bar Council cannot under the present law charge fees. About 10 per cent. of barristers in independent practice do not pay the fees requested by the Bar Council. The reason why that body is unable to charge fees is purely historic. Entry to the Bar was governed by the Inns of Court long before the Bar Council existed. The Inns rather than the Bar Council were the bodies who provided qualifications for entry and for a long time were responsible for the discipline of members of the Bar. Certainly for a very long time the Law Society—I am not sure about its early history—has had statutory responsibility for admission to the roll of solicitors, the issue of practising certificates and the discipline of members of the profession. Those are all public functions.

§ For members of the Bar, the equivalent functions have now very largely passed from the Inns of Court to the Bar Council. Although the Inns formally call members to the Bar, rules about the education and training needed to qualify for practice are made by the Bar Council. The Bar Council is responsible through its professional conduct committee for the discipline of barristers and making and altering the Bar's code of conduct. The Bar Council can and does require any barrister in independent practice to pay a premium for professional negligence insurance to the Bar's own mutual insurance company, of which I was for some years a director. None of that money goes back to the Bar Council.

§ The Bar Council, like the Law Society, is an authorised body under the Courts and Legal Services Act. As such an authorised body, it has public functions. For the performance of those functions it requires money. The Bar Council performs some trade union functions on behalf of the Bar, as does the Law Society on behalf of the solicitors' branch of the profession. That is not inconsistent with a requirement of the payment of fees as a condition of the right to practise.

§ The Bar Council has been and will increasingly be handicapped by the fact that it cannot compel payment of charges from its members for the public services that it provides. It is anomalous that it cannot require payment of its own charges, while it can require payment of premiums to its insurance company. It is anomalous that it cannot require payment of fees when the Law Society and the Council for Licensed Conveyancers can. I believe that the time has come to remedy those anomalies and to give the Bar Council power to charge fees for members wishing to exercise rights of litigation or rights of audience. I beg to move.

§ Lord Hacking
I wish to support this amendment. As a member of the Bar for some 15 years, who always paid his dues to the Bar Council, and as a solicitor of 1231 the Supreme Court for the ensuing years of my 35 years of practice, I have been under statutory obligation, but nonetheless I have been willing to pay the fees.
The position has greatly changed since I was called to the Bar in 1963 when the Inns of Court exercised all sorts of jurisdiction over discipline, education and so forth. The Bar Council is now in a position almost akin to the Law Society. The only question I would raise is whether it is necessary. If it is necessary to put such a matter into the statute, clearly it is right that the Bar Council should have the right to collect fees for the public services that it provides in education, training and so forth.

§ Lord Goodhart
Before the noble Lord sits down, I should add that the Bar Council, as I understand it, has been advised that it has no power to charge fees, to take disciplinary proceedings or to take any other action against members who do not pay its charges.

§ The Lord Chancellor
Your Lordships have heard the eloquent speeches made by the Bar Council's many able advocates in this House and outside it, in which they have protested how unreasonable, how unconscionable, how unconstitutional it is for the Government to have dared to promote legislation interfering with rights of audience, and how this threatens the fragile independence of the Bar and risks tumbling our entire constitutional settlement around our ears. We had 60 minutes' worth of it when the noble and learned Lord, Lord Ackner, opposed that Clause 31 stand part of the Bill.
At least, that is the argument when the Bar thinks that its privileges arising from its rights of audience are under threat. How interesting it is to see the position when the boot is on the other foot. The delicate subject of how the Bar can force its recalcitrant members to pay their subscriptions is one on which, as a Member of the Government, far less as Lord Chancellor, I would hardly dared to have ventured an opinion, but for this amendment. This question is apparently not so intimately connected with the Bar's traditions of independence and self-regulation that it would not benefit from parliamentary intervention.
The reason such an amendment is desired is that in 1990 the noble and learned Lord, Lord Nolan, sitting in the Bar Disciplinary Tribunal, decided that Bar rules purporting to make the non-payment of subscriptions a matter of misconduct were ultra vires and unenforceable. Subsequently, the noble and learned Lord the Lord Chancellor and the designated judges refused an application under the 1990 Act to approve changes in the Bar's rules designed to re-introduce compulsory subscriptions. They did so on the grounds that the Bar Council had no power to make or enforce such rules. That explains the reference in the amendment to, notwithstanding any rule of law to the contrary". As has already been pointed out, the Law Society is in effect already able to levy compulsory subscriptions by charging for the practising certificate which all practising solicitors must obtain. Therefore I do not 1232 consider that it is necessarily objectionable in principle for the Bar Council also to be able to levy compulsory subscriptions on practising barristers.
There are, however, difficulties. Both the Bar Council and the Law Society are hybrid bodies which combine regulatory functions with—they may not like the description—trade union functions. As the Committee will recall, the enforcement of trade union closed shops is contrary to the right of freedom of association which is enshrined in the European Convention on Human Rights, newly incorporated, as the noble Lord, Lord Goodhart, was kind enough to recall, into our domestic law under a Bill which I had the privilege of introducing and carrying through this House. Compulsory adherence to a state regulatory body subject to public law is, however, permissible.
Although the Bar Council exercises certain statutory regulatory functions in respect of rights of audience under the Courts and Legal Services Act 1990, it is not a statutory body and its other functions are not statutory. In that it differs from the Law Society, which is the statutory regulatory body for the solicitors' profession, under the provisions of the Solicitors Act 1974.
Another difference between the two bodies is that while all practising solicitors are subject to regulation by the Law Society and must obtain and pay for practising certificates from the society, it is possible for them to opt out of membership of the society and out of its trade union functions. Some solicitors do this as a matter of principle or for their own reasons, even though membership is free to solicitors with a current practising certificate. No such option is available to barristers under the amendment which has been moved.
The fee which the Law Society can charge for a practising certificate is a statutory fee determined under Section 11 of the Solicitors Act by the Master of the Rolls with the concurrence of the Lord Chancellor and Lord Chief Justice. I do not think that the Bar Council has proposed any similar mechanism in relation to its own fees.
There must also be other questions about the Bar Council's suitability to receive a compulsory levy from all banisters. As presently constituted, the Bar Council is, for example, very unrepresentative of employed barristers who make up a significant proportion of the profession as a whole. Some Members of the Committee may have read recently in the Lawyer the comments of Susan Ward, the chairman of the Bar Association for Commerce, Finance and Industry, when asked about this amendment. She said: BACFI doesn't have a problem with compulsory subscriptions, providing the Bar Council stops using subscription income to fund campaigns to denigrate employed and non-practising barristers, and starts looking after our interests". I have some sympathy with her. I would need some persuasion that the Bar Council does a good job, or even seriously attempts to do a good job, of representing the many barristers who are not in private practice.
As drafted, the amendment would appear to require former barristers who have become solicitors, and those barristers who are regarded by the Bar as non-practising barristers and who can only provide those services 1233 which any member of the public can provide, to pay subscriptions to the Bar Council. I am moved to wonder what service they are to receive in return for their subscriptions.
To sum up, while I do not reject the principle of compulsory subscriptions to the Bar, I believe that all these difficulties and questions would need to be resolved before your Lordships would agree to an amendment of the kind that has been moved.
On a more encouraging note, my department is already discussing the issue with the Bar Council and I certainly undertake to consider it further and to consult interested parties and my colleagues in government. I hope that it will be possible to resolve the issue during the passage of the Bill through Parliament. However, I cannot undertake to return to the House on Report with a government amendment. I hope that on that basis the noble Lord will agree to withdraw the amendment.

§ 10.15 p.m.

§ Lord Goodhart
I am grateful to the noble and learned Lord the Lord Chancellor. The Bar Council was seeking a change in the law by primary legislation to which, as I have pointed out on several occasions today, it has no objection. At this time of night I shall not seek to attempt to reply to the various points made by the noble and learned Lord, although there are replies to be made to a number of them. Having regard to his comment about the possibility of further action being taken before the Bill is enacted and takes it final form, I beg leave to withdraw the amendment.

§ Amendment, by leave, withdrawn.

§ Clause 37 agreed to.

§ Schedule 6 [Rights of audience and rights to conduct litigation: amendments]:

§ Lord Falconer of Thoroton moved Amendment No. 290A:

§ Page 72, line 34, leave out from ("for") to end of line 37 and insert ("the words from ", the Lord Chief Justice" to the end substitute "approves any regulation such as is mentioned in subsection (1), the requirement of the concurrence of the Lord Chief Justice and the Master of the Rolls imposed by that subsection shall not apply.'").

§ The noble and learned Lord said: These amendments are minor drafting amendments to Schedule 6. The first two are made at the request of my noble and learned friend the Master of the Rolls who I am glad to see in his place. They are somewhat technical in nature, and concern rules of the Law Society which require concurrence by certain members of the judiciary under the Solicitors Act 1974. Most of these rules will also require approval under the Courts and Legal Services Act 1990.

§ Clearly it is not in anyone's interest that the same rule should have to be approved twice under two different Acts, and so the principle which applies is that when a rule has been approved under the 1990 Act it is deemed also to have been concurred to under the 1974 Act. This principle is currently enacted in Sections 2(4) and 31(3) of the Solicitors Act, as amended by the Courts and Legal Services Act.

1234

§ Section 2 of the Solicitors Act relates to education and training rules for solicitors. These require the concurrence of the Lord Chancellor, the Lord Chief Justice and the Master of the Rolls, which is deemed to have been given if the rule has been approved under the 1990 Act. Section 31 relates to practice rules, which require the concurrence only of the Master of the Rolls; this, too, is deemed to have been given if the rule has been approved under the 1990 Act.

§ Schedule 6 updates these provisions to reflect the fact that under the provisions of the Courts and Legal Services Act, as amended by this Bill, rules will be approved by the Lord Chancellor alone, after considering the advice of the designated judges, and not by the Lord Chancellor and designated judges acting together. Schedule 6 currently provides that in these circumstances the Lord Chief Justice and Master of the Rolls, or the Master of the Rolls alone, according to the type of rule, will be deemed to have concurred to the rule.

§ My noble and learned friend Lord Woolf suggested at the Second Reading debate that he would prefer not to be deemed to concur to a rule if he has not actually done so. That seems eminently sensible. Accordingly, Amendments Nos. 290A and 290B provide that where a rule has been approved under the 1990 Act, the requirement for concurrence under the 1974 Act shall not apply.

§ The last of this group of amendments, Amendment No. 291A, is another technical amendment which will correct the definition of a "right to conduct litigation" in Section 119 of the 1990 Act. That right is currently defined as the right:

"(a) to exercise all or any of the functions of issuing a writ or otherwise commencing proceedings before any court; and
(b) to perform any ancillary functions in relation to proceedings (such as entering appearances to actions)".

§ Paragraph 10(3) of Schedule 6 amends that definition to reflect the fact that it is possible to have rights which one cannot exercise. The relevant part of the new definition would therefore provide that a right to conduct litigation is the right to issue a writ or otherwise commence proceedings before any court. However, the Civil Procedure Rules 1999, which will come into force on 26th April this year, will abolish the commencement of proceedings by writ. This amendment therefore deletes that part of the definition to reflect the new state of affairs which will prevail by the time this Bill is passed, if Parliament chooses to pass it. I beg to move.

§ Lord Woolf
I merely wish to record my gratitude to the noble and learned Lord and the noble and learned Lord the Lord Chancellor for being so responsive to my sensitivities.

§ On Question, amendment agreed to.

§ Lord Falconer of Thoroton moved Amendment No. 290B:

§ Page 72, leave out lines 40 to 42 and insert ("the words from "Master of the Rolls" to the end substitute "Lord Chancellor approves any rule such as is mentioned in subsection (1), the requirement of the concurrence of the Master of the Rolls imposed by that subsection shall not apply."").

1235

§ On Question, amendment agreed to.

§ [Amendment No. 291 not moved.]

§ Lord Falconer of Thoroton moved Amendment No. 291A:

§ Page 73, line 46, leave out ("a writ or otherwise commence").

§ On Question, amendment agreed to.

§ Schedule 6, as amended, agreed to.

§ Clause 38 [Permission to appeal]:

§ Lord Kingsland moved Amendment No. 292:

§ Page 21, line 16, after ("that") insert (", except in cases relating to the civil rights and safety of the person,").

§ The noble Lord said: In moving this amendment, I shall speak also to Amendment No. 294. The Opposition support in principle the introduction of an extension of the requirement for leave to appeal to discourage unmeritorious appeals which take up too much time of the courts and add to the costs of litigation, including for the ultimately successful party.

§ The success rate of appeals, particularly in the Court of Appeal, is significantly higher in circumstances where leave to appeal is currently required. Also, the present rules on leave to appeal are rather complex and difficult for the Court Service, let alone the parties, to understand. But there should be exceptions to the requirement for leave to appeal because, inevitably, that adds an extra step and takes time, especially if leave is not immediately given by the trial judge and a separate application must be made at a later stage to that judge or a more senior judge.

§ The only exception to the universal requirement of leave to appeal on the face of the Bill is in relation to criminal cases. But the liberty and safety of individuals and their ability to exercise their civil rights, such as freedom of movement and freedom of expression, are issues in many civil cases such as those involving asylum seekers, domestic violence or harassment injunctions. The universal requirement for leave to appeal may also not comply with the European Convention on Human Rights.

§ I accept that it is not appropriate in primary legislation to include in great detail all the specific categories of case for which an automatic right to appeal should be permitted. But at least the basic principles should be enshrined therein.

§ Amendment No. 294 would enable a party wishing to appeal a decision who was refused permission to appeal by the first instance judge to renew the appeal before the Court of Appeal. In many cases, the parties, especially those involved in lower value claims or litigants in person, will need a little time to reflect on the outcome of the trial and the first instance judgment before deciding whether an appeal is merited. Frequently it is simply not practical to apply to the trial judge after the event, especially on circuit where the judge may not be at that court until some weeks or even some months later. There will also be a few cases where the first instance judge may be reluctant or unwilling to give permission for an appeal, even when this would be the right course of action, because it could be seen to reflect adversely on his abilities.

1236

§ A very important function of the Court of Appeal is to take an overview of the justice system and decide points of principle and resolve test cases. If the automatic right to appeal is to be significantly restricted it is vital that decisions granting permission to appeal should not remain the province only of the first instance judges. Losing parties should have the right to appeal for leave directly to the Court of Appeal. I beg to move.

§ Lord Goodhart
Two of the amendments in this group are in my name, Amendments No. 293 and 295. Speaking first to Amendment No. 293, there should clearly be an absolute right of appeal against the deprivation of liberty. I have to assume that the absence therefore of any reference to an automatic right of appeal where there has been a committal to prison for contempt of court is an oversight. If not, that is a point that should certainly be re-considered urgently.
Amendment No.295 raises a different point which is somewhat akin to that raised in Amendment No.294. It is that there should always be someone other than the judge who decided the case who can give leave to appeal. The judge who decided the case should of course be entitled to give leave but, if he or she refuses it, there must be some other judge to whom a further application for leave can be made. I remember one judge, now dead—indeed he was a former head of my chambers—who never suffered the slightest doubt about the correctness of his decisions. It was therefore very difficult to extract from him leave to appeal in cases where leave was needed, but counsel in such a case could always go to the Court of Appeal to get leave. It is surely wrong that one person should both make the decision and then have the sole power to decide whether leave to appeal from that decision should be given.

§ Lord Woolf?
Perhaps I may say just a few words about the provisions of Clause 38. As the Committee will appreciate, the provisions of this part of the Bill are largely derived from the Bowman Report. The purpose of the Bowman Report was to ensure that the Court of Appeal could provide a service in the interests of justice which met the needs of litigants more efficiently and effectively than it does at present.
The present amendment deals with Clause 38. I would draw attention to the fact that this is to be subject to the rules of court. As the Committee will again be aware, there is a Rules Committee, of which I have to confess I am chairman, which looks at these matters with great independence and care. In practice that committee is best able to judge what restrictions should be made with regard to the general requirement of leave to appeal.
In principle I am not concerned about the amendments which are proposed except for Amendment No. 292. If the noble Lord, Lord Kingsland, would forgive me for doing so, I would suggest that the wording he is proposing there is dangerously wide. Some litigants would say that whenever they come to court they are exercising their civil rights. Safety of the person is also a worrying requirement. Some would say that every Factories Act case involves the safety of the person. It seems to me that that proposal would drive the proverbial coach and horses through what is being 1237 proposed. I would urge that, rather than put that restriction on the Rules Committee, your Lordships should have confidence that it would of course protect such things as the liberty of the subject, which I think is probably what the amendment is designed to protect.

§ 10.30 p.m.

§ Lord Falconer of Thoroton
There are four amendments in this group and they all relate to Clause 38. As the noble and learned Lord, Lord Woolf, said, the purpose of Clause 38 is to introduce a rule-making power which can be used to provide that permission must be granted before an appeal can proceed in the county courts, the High Court or the Civil Division of the Court of Appeal. Perhaps I can deal with each amendment shortly.
First, Amendment No. 292 purports to make an exception for the rule-making power to apply to," cases relating to the civil rights and safety of the person". The noble and learned Lord, Lord Woolf, made the point much more eloquently than I could about the extraordinary width and therefore the propensity for confusion that comes from the proposed amendment. It would give rise to difficulties for both practitioners and judges in establishing whether or not leave would be required. Sir Jeffrey Bowman, whose review team the noble and learned Lord, Lord Woolf, referred to in his short remarks—the exact words include, examine the workings of the Court of Appeal and whose report forms the basis for Clause 38, recommended that there should be a leave requirement for virtually all cases, in part because of the propensity for confusion and difficulty among practitioners as to which cases do and which cases do not require leave. Also, if we included such a provision—again for the reasons indicated by the noble and learned Lord—such an amendment would seriously detract from the aim of Clause 38 because it would bring in so many cases.
The purpose of a requirement for permission is to provide a filter to ensure that only those cases where there are justifiable reasons for questioning the first instance decision are able to proceed to an appeal. Weak appeals not only take up valuable court time, but also delay a litigant from receiving the benefit of any judgment to which he or she is entitled. The fact that a case falls into a specific category does not in itself guarantee that the appeal is a meritorious one. That is why it is vital to introduce a rule-making power which will allow a requirement for permission to appeal to be introduced at all levels of the court system. I should make it clear that I believe that there are certain restricted circumstances where it is important for a right of appeal to be automatic.
Amendment No. 293 deals with the position in relation to appeals against orders of committal for contempt of court. In a consultation paper which the Lord Chancellor issued on extending the requirement for permission to appeal to the Court of Appeal, he proposed that there should continue to be an automatic right of appeal in cases where the liberty of the individual was at stake—this was also referred to by the noble and learned Lord. Following 1238 the consultation exercise, rules were introduced on 1st January of this year to provide that permission would be required for all appeals to the Court of Appeal, with the exception of appeals against the making of a committal order, against a refusal to grant habeas corpus or against an order for secure accommodation under Section 25 of the Children Act 1989—all provisions which relate to the liberty of the subject.
In the consultation paper which the Lord Chancellor issued on the proposals before the Committee, he indicated that the requirement for permission to appeal should be extended to cover all types of cases in the High Court and county courts, with the exception of appeals in cases involving the loss of an appellant's liberty. However, there may well be other areas which it would be advisable to exempt from requiring permission to appeal. I understand the concern, for example, that in some interlocutory orders a requirement for permission may result in unnecessary delay because in the time it takes for a judge to hear the application for permission, he or she might just as easily consider the substantive appeal.
In my view, the listing of such exceptions is best suited to Rules of Court rather than to an Act of Parliament. It is for that reason that I resist the amendment tabled by the noble Lords, Lord Goodhart and Lord Thomas of Gresford. The effect of the amendment has already been achieved within the Court of Appeal through the Rules of Court. It is the Lord Chancellor's intention to replicate the situation in the lower courts. Provisions describing when permission is required have hitherto been dealt with by rule, and I see no reason why that should not continue to be the case.
I turn to Amendment No. 294. I entirely agree the principle that where a court which has made a first instance decision refuses an application for permission to appeal that decision, it should be possible for a litigant to renew his application to a higher level of judge. However, the appropriate venue for consideration of that application is the tier of court which will actually hear the appeal if the application is successful. Under the proposed reforms, this will not necessarily be the Court of Appeal.
The effect of the proposed reforms to the jurisdiction of the Court of Appeal will be that some appeals previously determined by that court will be determined by the lower courts. That reflects the need for proportionality in our appellate system.
As the noble and learned Lord has said, these proposals came about following the Bowman Review, which was commissioned by the noble and learned the Lord Chancellor's predecessor—who I see in his place—against the background of an increasing number of applications and appeals and consequent delays in the hearing of appeals. The review team concluded that the Court of Appeal was being asked to deal with cases which were not sufficiently weighty or complex to require the attention of the country's most senior judiciary. The noble and learned Lord the Lord Chancellor therefore sought to include proposals in the Bill to enable him to draw away from the Court of Appeal those cases which do not need to be heard there.
I shall give an example. Currently, virtually all appeals from a circuit judge lie to the Court of Appeal. If an application for permission made to the court of first 1239 instance were to be refused, it would be renewable to the Court of Appeal. Under the new system, cases in the new fast track, heard at first instance by a circuit judge, would be appealable to a High Court judge. In these circumstances, where an application for permission is refused by the court of first instance, any renewed application would fall to be considered by the appellate court, that is, the High Court.
The effect of Amendment No. 294 would be to require every application for leave to appeal which is refused at level one, to be renewed to the Court of Appeal, which obviously is not in line with the proposals in relation to the new appeal system.
I should stress, however, that provisions are included in the Bill which will ensure that those cases which do merit the consideration of the Court of Appeal are able to reach that court. That might be by way of a second appeal to that court under Clause 39.
Finally, I turn to Amendment No. 295, which I think I have already dealt with. This amendment provides that rules made in pursuance of subsection (3)(b) may not provide that permission may be given only by the court which made the decision or order from which permission to appeal is sought. Once the principle is accepted that if leave is refused at tier one the application can be renewed to tier two, the point made in Amendment No. 295 is dealt with.
In those circumstances, I believe that every one of the points raised is adequately dealt with under the existing system. I therefore ask the noble Lord to withdraw the amendment.

§ Lord Goodhart
Before the noble Lord, Lord Kingsland, replies, perhaps I may say that I am a little disappointed that it is not on the face of the Bill that there will be an automatic right of appeal in non-criminal proceedings which involve the liberty of the subject. However, I do not propose to press the amendment further. In saying that, I have regard to the fact that I strongly suspect that any change in the rules, which deprived anybody of existing rights in such a case to make an appeal could well be contrary to the European Convention.

§ Lord Kingsland
I give the noble and learned Lord at least five out of 10 for his spirited response. I thank him very much indeed for the way he replied. I should like to reflect on what he said and perhaps come back on Report with some renewed amendments which will seek to reflect more accurately the underlying philosophy which he explained so well. In those circumstances, I beg leave to withdraw the amendment.

§ Amendment, by leave, withdrawn.

§ [Amendments Nos. 293 to 295 not moved.]

§ Clause 38 agreed to.

§ Clause 39 [Second appeals]:

§ Lord Phillips of Sudbury moved Amendment No. 295A:

§ Page 22, line 5, leave out from ("and") to ("no") in line 6 and insert ("if that first appeal is unsuccessful,").

1240

§ The noble Lord said: My noble friend Lord Meston has asked that I say a few words in his stead as he was unfortunately taken ill this afternoon. In moving this amendment, I should point out that I shall speak also to Amendment No. 295B. My noble friend's amendment deals with the situation of a second appeal, which is being made by the party who won at first instance. Clause 39, as drawn, makes no distinction between the appellant for whom it is the first appeal and the appellant for whom it is the second appeal; namely, the appellant who won at first instance and wishes to appeal against the success of his opponent in the first appeal and, on the other hand, the party who failed at first instance, failed on appeal and then seeks a second appeal. We believe that there is reason and justice in making a distinction between the two cases. It is for that purpose that Amendment No. 295A proposes to insert the words, if that first appeal is unsuccessful".

§ Perhaps I may move on to Amendment No. 295B. It is designed to mitigate what we think is perhaps an unnecessary rigor in requiring as the alternative test to be satisfied, if there is to be a second appeal, the requirement that some "special reason" should be relevant to the case. We believe that it would be adequate if the test were that "there is sufficient reason". It is simply a question of finding a fair balance between the need, on the one hand, to control second appeals and, on the other, not to be too harsh in allowing that prospect. I beg to move.

§ Lord Clinton-Davis
When I observed the term "special reason", my mind went right back to special reasons in relation to suspensions of licences or disqualifications in driving cases. There is a risk that a new body of jurisprudence could be collected around this term. I am not totally convinced that the word "sufficient" is right, but I invite my noble and learned friend to give consideration to a suitable substitute for "special reason". I really do have some anxiety about that term.
That was the point I was proposing to make in debating the Question of whether Clause 39 should stand part of the Bill. Therefore, provided that my noble and learned friend is as flexible as he has shown himself to be throughout most of our proceedings on the Bill—leaving aside some of my amendments which he has rejected and where he has shown a degree of inflexibility—I do not think that I need to revisit such matters at this point. Nevertheless, I await with interest to hear what either of my noble and learned friends have to say in response.

§ Lord Kingsland
I am speaking to Amendment No. 296, which is included in this group. My amendment would enable the Court of Appeal to be the final arbiter as to whether an appeal in a particular case should exceptionally be permitted to lie to more than one level of court. Clause 39 would limit appeals to one bite of the cherry only, unless the case fell in on the exceptions outlined in either paragraph (a) or (b); that is to say, either the appeal would raise an important point of principle or practice, or there is some other special reason for the appeal to be made. This would mean that generally, even where leave to appeal is granted, an appeal from a district judge would only be heard by a circuit judge and an appeal from a High Court master would lie only to a High Court 1241 judge. In both cases there would be no second appeal to the High Court in the first instance or to the Court of Appeal in the second instance.
While in many cases one level of appeal is certainly sufficient, the most appropriate judge to hear that appeal may not always be the next, most senior, in the system. That will particularly be the case following the introduction of the civil justice reforms this spring, because the district judges in the county courts will be responsible for the case management and trials of the lower value claims to be allocated under the new fast track. Circuit judges are likely to have limited experience of the day-to-day operation of the very new civil procedure rules. Therefore restricting a party's right of appeal to a district judge's decision—perhaps on such a vital matter as to whether the claim might be struck out to a circuit judge, who may be primarily a criminal law specialist—and preventing any further appeal either to the High Court or the Court of Appeal could lead to substantial injustice.
One of the important tasks of the Court of Appeal is to take an overview of the justice system and to decide test cases and other cases which clarify or expand the law. It is the Court of Appeal therefore that is best placed to take decisions on key issues arising from the implementation of the civil justice reforms. Therefore parties should have the right to invite the Court of Appeal to decide whether their case should be restricted to only one level of appeal, and which court should hear that appeal.

§ 10.45 p.m.

§ Lord Woolf
The statements which have been made by Members of the Committee with regard to Clause 39 are ones with which I have considerable sympathy and understanding. Indeed with regard to the use of the word "special" I must, on behalf of the Bowman Committee, of which I was a member, plead guilty because we recommended that the word "special" should be inserted.
I am afraid it may be too long a time since I myself had the responsibility of urging special reasons before a magistrates' court. But the word "exceptional" appeared in a recent Act of Parliament, the Crime (Sentences) Act 1997, which provided that in certain circumstances an individual could be subjected to life sentences unless there were exceptional circumstances. At the end of last year the noble and learned Lord the Lord Chief Justice had to deal with that phrase. The fears that have been expressed tonight were certainly confirmed by the judgment in that case. It is interesting to note that the noble and learned Lord the Lord Chief Justice used the word "special" in substitution for "exceptional" in describing, as far as he could, what was meant by "exceptional". That seems to me to underline the danger referred to.
It is always difficult to decide what is the appropriate reason. The Court of Appeal judges have given some consideration to this matter and what we would offer to the Committee as a suitable substitute is the word "compelling". With regard to the whole purpose of the second appeal provision in Clause 39, the position at 1242 present is that if a case is decided by a district judge, one has two rights of appeal. One has first of all a right of appeal to a Court of Appeal judge, which is a rehearing—the whole case is tried over again in other words—and then one can go to the Court of Appeal.
The reason for Clause 39 is to limit the cases which can come to the Court of Appeal to the ones which my noble friend Lord Kingsland had in mind—to which he referred—that is, ones where the Court of Appeal could exercise its function of first of all dealing with important points of principle and practice and also acting as a safety valve so as to ensure that no compelling injustice, as I would say, was done. I hope that in considering whether to accept the proposed amendments, the noble and learned Lord the Lord Chancellor will take into account those considerations.

§ Lord Falconer of Thoroton
Clause 39 enshrines the principle put forward by Sir Jeffery Bowman's review team: that, broadly, there should be only one level of appeal. It also enshrines the principle outlined in the Bowman Review that there should be some exceptions to that. It encapsulates the exceptions as being: unless the appeal would raise an important point of principle or practice; or, that there is some other special reason for the appeal to be made.
These three amendments seek to amend the circumstances in which there may be a second appeal. The first, tabled by the noble Lord, Lord Meston, but argued very effectively by the noble Lord, Lord Phillips, suggests that a matter should only be limited to one level of appeal where the first appeal upholds the decision of the court of first instance. The effect of the amendment would be that if it overturned the decision of the first court, the matter would be free from the restriction of one appeal only.
With great respect, we are not attracted to that suggestion. We do not believe that our justice system should be predicated on the assumption that the decisions of the lower courts are wrong. When an application for permission to appeal is granted, the assumption should be that the Appeal Court has rightly confirmed or corrected the decision of the first instance court. Where a flawed decision at first instance is clearly put right on appeal, a further appeal would not be appropriate. Therefore, an overturned decision should not in itself provide a statutory exemption to the principle of one level of appeal. I accept that provision needs to be made for those cases where, for example, it would appear that an appeal court has reached an incorrect decision.
The second suggested amendment, Amendment No. 295B, deals with the word "special". It is proposed that the word "special" in sub-paragraph (b) should be replaced with the word "sufficient". The noble and learned Lord, Lord Woolf, has indicated that he also has concerns over the use of the word "special". He suggests that we use the word "compelling".
At the present time, the Lord Chancellor is attracted to the substitution of the word "special" with the word "compelling". He considers that it provides an appropriate indication of the circumstances in which 1243 there should be a further appeal. It would ensure that, where the individual circumstances of a case merit the consideration of the Court of Appeal in the way described, it will be possible for it to proceed further, regardless of whether the Appeal Court has overturned or upheld the first instance decision. In my view, that addresses the concerns reflected in Amendment No. 295A.
The effect of Amendment No. 296 is to provide that, where a party wishes to appeal a case that has already been through one appeal, he is able to apply to the Court of Appeal for that court to decide whether or not the appeal would raise an important point of principle or practice, or whether there is some other special reason for the appeal to be made.
It has always been my intention that, where a party seeks permission for a second appeal, the application should be made to the Court of Appeal. I intended that that should be provided for by use of the rule-making power set out in Clause 38(3)(b). The Lord Chancellor is, however, prepared to consider whether there might be a case for specifying that in primary legislation.
In conclusion, I urge the Committee to resist Amendment No. 295A, moved by the noble Lord, Lord Phillips. However, if the noble Lord is willing to withdraw Amendment No. 295B, the Lord Chancellor will undertake to return to him on this point when we report back to the House. Similarly, if the noble Lord, Lord Kingsland, is willing to withdraw his amendment, the Lord Chancellor will consider whether he can put forward an amendment which will achieve its aim. On that optimistic note, I ask the noble Lord to withdraw the amendment.

§ Lord Phillips of Sudbury
I am grateful to the noble and learned Lord and am perfectly content for the matter to proceed on that basis. I thus beg leave to withdraw this amendment and shall not move Amendment No. 295B.

§ Amendment, by leave, withdrawn.

§ [Amendments Nos. 295B and 296 not moved.]

§ Clause 39 agreed to.

§ Clause 40 [Power to prescribe alternative destination]:

§ Lord Mackay of Clashfern moved Amendment No. 296A:

§ Page 22, leave out lines 33 and 34 and insert—

("(c) the President of the Family Division, and
(d) the Vice-Chancellor.").

§ The noble and learned Lord said: This is a minor drafting amendment. I beg to move.

§ The Lord Chancellor
This amendment is grouped with Amendment No. 297, but the noble and learned Lord has spoken only to Amendment No. 296A.
I am grateful to him for proposing the amendment. It simply seeks to ensure that the correct order of precedence of the Heads of Division is reflected in Clause 40. That is in accordance with the order of 1244 precedence set out in Section 13 of the Supreme Court Act 1981. I am happy, without saying more, to accept the amendment.

§ On Question, amendment agreed to.

§ Clause 40, as amended, agreed to.

§ Clauses 41 to 43 agreed to.

§ Lord Mackay of Clashfern moved Amendment No. 297:

§ After Clause 43, insert the following new clause

§ ("Vice-President of the Queen's Bench Division