HL Deb 28 January 1999 vol 596 cc1175-93

(" .—(1) A person who (whether expressly or by implication) describes himself as a legal executive is guilty of an offence unless he is a Fellow of the Institute of Legal Executives who has in force a current practice certificate issued by that Institute.

(2) A person guilty of an offence under this section shall be liable on summary conviction to a fine not exceeding level 4 on the standard scale.").

The noble Lord said: My new clause will ensure that a person can describe himself as a legal executive only if he is a fellow of the Institute of Legal Executives with a current practising certificate in force. It is important to ensure that consumers are not misled by self-descriptions of those who offer legal services. In recent years the term "legal executive" has come to bear the meaning of a fellow of the Institute of Legal Executives and to imply that the person concerned is subject to the qualification and regulation that that involves. It is appropriate, therefore, to ensure that the public is not misled by other, less well qualified individuals assuming the same title.

With this amendment is grouped Amendment No. 291, to which I shall briefly speak. Schedule 6 to the Bill amends the provisions of the Solicitors Act 1974 and the Courts and Legal Services Act 1990 in respect of rights of audience and rights to conduct litigation. The amendment proposed here to Section 63 of the Courts and Legal Services Act 1990, would extend to legal executives the professional privilege conferred on other authorised practitioners. It makes clear that communications made by or to legal executives, whether they are employed in solicitors' firms, departments or otherwise, are subject to the same rules of privilege as apply to communications made by or to other authorised practitioners. I beg to move.

Lord Clinton-Davis

When the noble Lord, Lord Kingsland, comes to make his observations on the response of my noble and learned friend the Lord Chancellor perhaps he will indicate what the institute of Legal Executives does to ensure high standards among its members. I am sure that my ignorance in this matter is my fault. What disciplinary code if any does that body have? How vigilant and disciplined is it in exercising any such code that may exist? This is critical in terms of the criteria relating to membership that the noble Lord demands.

Viscount Bledisloe

Perhaps the noble Lord can also deal with the following point. I understand that this amendment would prevent a person from describing himself as a non-practising legal executive. A solicitor who does not have a practising certificate can say that he is a non-practising solicitor. Can one say that one is a non-practising legal executive?

Lord Thomas of Gresford

The Institute of Legal Executives is an excellent body that does a great deal of work in training and ensuring the highest standards of those who work in solicitors' firms. There should be no suggestion, even in a question, that there is anything less than proper in the way that that institute carries out its work. I support this amendment.

Lord Clinton-Davis

I am sorry that the noble Lord implies that I am being unduly critical. I raise the question because I simply do not know the answer. Similar situations arose in relation to insurance brokers as a consequence of which the then government introduced the Insurance Brokers Registration Act, for which I was responsible. I genuinely want to know the situation. If an individual had been practising as a legal executive for a long period of time would he be required to undertake a course of whatever it might be in order to become a member of that body when that had not been imposed on him before? I believe that these factors should be weighed in the balance in deciding whether or not this is a good proposition.

Lord Kingsland

As I understand it, the structure of the institute and the way in which it manages itself, conducts examinations and investigates breaches of conduct are similar to the other two legal professions. I am not sufficiently knowledgeable about the way in which the system has worked over the past 20 years to say whether it has worked as well as the solicitors' profession or the Bar Council or otherwise. I am certainly prepared to provide the noble Lord with further information, but I cannot do that at the Dispatch Box now.

There is no doubt that a number of people who offer legal services and who describe themselves as legal executives have not taken the appropriate examinations and are not subject to the discipline of the institute. The amendment seeks to provide some quality assurance against that misrepresentation.

Lord Woolf

Perhaps I can assist noble Lords marginally on this subject. I must disclose that I am a vice-president of the body. Rights of audience were required as a result of a recommendation of ACLEC. It was considered and approved by the designated judges and followed as a consequence of that. I ask the noble Lord, Lord Clinton-Davis, to bear in mind that it is unlikely that that procedure would have been followed unless those different bodies were satisfied on the kind of matter that he raises.

Lord Clinton-Davis

I am sure that I shall have a flow of correspondence from the body, having made those intemperate remarks or raised those questions.

Lord Hacking

I am a little puzzled by the amendment. In the Courts and Legal Services Act 1990—the Bill does not propose to alter the section—Section 70 says: If any person does any act in the purported exercise of a right of audience, or right to conduct litigation, in relation to any proceedings or contemplated proceedings when he is not entitled to exercise that right he shall be guilty of an offence". There is already protection for the public in the statute; namely, that any persons who have a right either of audience or to conduct litigation may do so.

We have the authorised body and the functions of the authorised body of the Institute of Legal Executives. If, for example, the Institute of Legal Executives gives a right to its junior members—those who have not become fellows—to appear in front of a master of the High Court or the like, it seems that nobody would be misled and that that would be entirely in order. I wonder whether the noble Lord who has tabled the amendment would address that point.

Lord Kingsland

I am not sure that I follow. Section 70 of which Act?

Lord Hacking

The Courts and Legal Services Act. That Act already makes it an offence to exercise a right of audience or a right to conduct litigation when you do not have that right.

Lord Kingsland

As I understand it, my amendment concerns misrepresentation of the title, and not an exercise of the right of audience. It is a misrepresentation of the title "legal executive".

Lord Hacking

What effect does that have?

Lord Kingsland

With great respect, I am not sure that I understand the noble Lord's question. If someone misrepresents himself as a legal executive, properly examined and accredited by the institute, he will be committing a criminal offence if the noble and learned Lord the Lord Chancellor accepts the amendment.

6.45 p.m.

The Lord Chancellor

The purpose of Amendment No. 243 is to protect the title of "legal executive". The effect will be that it is an offence for anyone who is not a fellow of the Institute of Legal Executives (ILEX) to describe himself, whether expressly or by implication, as a legal executive.

My response is that the offence which the amendment would create is unnecessary. If anyone uses the title of legal executive to imply that they have a right of audience as a fellow of ILEX or, in the future—and as proposed by the Bill—a right to conduct litigation as a fellow of ILEX, then that person could be found guilty of an offence under Section 70 of the Courts and Legal Services Act 1990. Section 70(1) provides that: If any person does any act in the purported exercise of a right of audience, or right to conduct litigation, in relation to any proceedings or contemplated proceedings when he is not entitled to exercise that right he shall be guilty of an offence. It is an offence publishable on summary conviction by up to six months' imprisonment, and on indictment by up to two years' imprisonment.

Fellows of ILEX may also administer the oath, the institute having been prescribed for that purpose under Section 113 of the Courts and Legal Services Act 1990. It is an offence at common law to administer the oath without authority.

I agree with noble Lords to this extent. I, too, was very pleased when the Institute of Legal Executives finally became an authorised body for the purposes of granting rights of audience to its suitably qualified fellows, on 23rd April 1998. When the designated judges and I gave our approval to the application in October 1997, I wrote to the then president of the institute congratulating ILEX on being the first new body to be authorised under the 1990 Act to grant rights of audience. I said that: Fellows of the institute already play an important role in the legal process, and the success of this application will ensure an even greater contribution in the future. But does it follow from that respect, that the title of legal executive should be protected in this way?

This amendment would make it a criminal offence for anyone to describe himself as a legal executive who is not a fellow of ILEX with a current practising certificate. That, I think, is going too far. The Institute of Legal Executives was formed in 1963 as the successor body to the Institute of Solicitors' Managing Clerks' Association. It has various classes of membership, of which fellowship is the most experienced, but out of a total of 23,000 members, only about 6,000 are fellows. The other 17,000 or so are members of the institute, and may now style themselves, quite properly, and regard themselves as "legal executives". This amendment would force them to change their title, or to be liable to a criminal charge. It is generally understood that the term "legal executive" is of sufficiently broad usage, perfectly properly, to cover those, particularly in solicitor's offices, who work in a legal capacity, but who do not derive their authority or status from statute, like solicitors, or from the common law, like barristers. So long as no one is being misled, I do no not believe that there is a problem.

I consider that there is already sufficient protection for the restricted activities of fellows of the Institute of Legal Executives. I do not believe that an additional criminal offence of the kind proposed is necessary.

The purpose of the second amendment is to extend legal professional privilege to legal services provided by fellows of ILEX. However, it is questionable that it will have that effect. The Institute of Legal Executives is already an authorised body for the purposes of granting rights of audience to its suitably qualified fellows. Clause 34 provides that the institute should be authorised for the purposes of granting rights to conduct litigation to suitably qualified fellows, that is to say, once appropriate rules have been approved.

Legal professional privilege in respect of advocacy and litigation services provided by an authorised advocate or authorised litigator is already ensured by Section 63 of the 1990 Act. Section 63 applies to any communication to or by a person who is not a barrister or solicitor at any time when that person is for these purposes, providing advocacy or litigation services as an authorised advocate or authorised litigator". Subsection (2) states: Any such communication shall in any legal proceedings be privileged from disclosure in like manner as if the person in question had at all material times been acting as his client's solicitor". So any communication with a legal executive in his capacity as an authorised advocate or authorised litigator would be privileged from disclosure "in like manner" as if he were a solicitor. The nature of the solicitor's or a barrister's legal professional privilege is not defined in statute; it derives from common law.

The noble Lord, Lord Kingsland, has sought to add this new provision to Schedule 6 to the Bill. But that schedule deals only with rights of audience and rights to conduct litigation. As I have just explained, these are already covered by Section 63 of the 1990 Act. In any event, therefore, it appears to me that the amendment would not fit into Schedule 6.

I remain unclear, as I think do other noble Lords, what the amendment would mean and what it is intended to cover. If it is intended to cover anything other than advocacy and litigation, it must be the giving of legal advice. But I am satisfied that a court would say that privilege applied exactly as it would with a solicitor, so the amendment is almost certainly unnecessary. Apart from anything else it would seem odd indeed to give statutory protection to the legal professional privilege of legal executives alone while that of barristers and solicitors, and I believe of legal executives too, is protected at common law.

For those reasons I invite the noble Lord to withdraw the amendment.

Lord Kingsland

I am grateful to the noble and learned Lord for a full reply upon which I shall reflect. In those circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 35 agreed to.

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

Lord Lloyd of Berwick moved Amendment No. 244:

Page 63, line 10, at end insert— ("(2) Every person exercising functions in connection with that Schedule shall act compatibly with the principle that a strong, independent and self-regulating legal profession should be preserved."").

The noble and learned Lord said: I can be brief in moving the amendment because most of the ground was covered as long ago as the first day of Committee stage in respect of Amendment No. 1. On that occasion the noble and learned Lord the Lord Chancellor said, and has said on many occasions during Committee, that he was in favour of a strong, independent and self-regulating legal profession. I hope, therefore, that the amendment will prove completely uncontroversial.

On the previous occasion, the noble and learned Lord pointed out that while the amendment was an admirable statement of an admirable principle, it was not particularly relevant in the context of Part I of the Bill. On reflection, I respectfully agree with his view on that.

It is all the more important that it should be included in Part III of the Bill, especially in relation to Schedule 5 where it could be highly relevant in relation to, for example, the powers to be exercised in giving advice to the consultative panel, to paragraph 2 of the amended Schedule 4, and in many other places. That is why the amendment covers every person exercising functions in connection with the amended Schedule 4 and not just the Lord Chancellor.

The only objection to the amendment may be that it is so obvious that it does not need stating. However, as the Committee will remember, that was not the view of the Lord Chief Justice on Second Reading. History is full of examples, as we all know, of matters which seem obvious today but which somehow seem to be overlooked, forgotten or eroded by tomorrow. In the view of the Lord Chief Justice, with which I respectfully agree, certain fundamental principles should be stated on the face of the Bill; and this is one of them. Indeed, the substance of the amendment is taken from the very language which the Lord Chief Justice used at Second Reading. I hope that the amendment will be accepted. I beg to move.

The Lord Chancellor

I am grateful to the noble and learned Lord for moving the amendment. As I have often said, I believe—and believe passionately—in a strong, independent and self-regulating legal profession. The noble and learned Lord the Lord Chief Justice, Lord Bingham of Cornhill, in our Second Reading debate suggested that an amendment such as this, stating a general principle, would prove reassuring to some noble Lords. The noble and learned Lord, Lord Lloyd, moved a similar amendment to Part I of the Bill earlier in our proceedings in Committee.

I said then that I would consider whether a suitable amendment could be made to Clause 36 of the Bill, to emphasise the obligation which binds all advocates and litigators to act with proper independence. I continue to hope to be able to move such an amendment on Report.

I am more hesitant about this particular amendment. It could not, for example, prevent a Lord Chancellor from ever exercising the power to call in and alter professional rules, subject to parliamentary approval, since that is an explicit statutory power conferred by the Bill. Any Lord Chancellor's exercise of that power would be reviewable by the courts. Therefore I do not see how the amendment would help a judge to decide such a case.

I should also point out that in exercising any functions under the provisions of Schedule 5 to the Bill or, more exactly, under the new Schedule 4 which it will insert into the Courts and Legal Services Act 1990, all those concerned are already subject to the statutory objective and the general principle set out in Section 17 of the 1990 Act which I have no doubt the noble and learned Lord, Lord Mackay of Clashfern, well recalls. The statutory objective is, the development of legal services in England and Wales (and in particular the development of advocacy, litigation, conveyancing and probate services) by making provision for new or better ways of providing such services and a wider choice of persons providing them, while maintaining the proper and efficient administration of justice". The general principle is that the question of whether a person should be granted a right of audience, or be granted a right to conduct litigation, should be determined only by reference to four factors. Those are set out in Section 17(3) of the 1990 Act. They are whether he is qualified appropriately for the court or proceedings concerned; whether he belongs to a professional or other body with effective rules of conduct; whether, in the case of advocacy, those rules require an advocate not to withhold his services on the grounds that the nature of the case is objectionable, or that the conduct, opinions or beliefs of the prospective client are unacceptable, or because of the source of any financial support which may properly be given to the client; and, finally, whether the rules of conduct concerned are appropriate in the interests of the proper and efficient administration of justice.

On revisiting these provisions, they appear to me to be both well founded and comprehensive. I am committed to the maintenance of high standards that we have come to expect from our legal profession and the maintenance of the independence of the legal profession from improper pressures from whatever quarter, including, most particularly, the Executive. The powers given to the Lord Chancellor by the Bill are strictly circumscribed. I have made it absolutely plain that the more controversial of them are subject to parliamentary scrutiny and approval.

I hope that the noble and learned Lord, Lord Lloyd of Berwick, will be satisfied by those assurances and by the changes I propose to make on Report to Clause 36 and on that basis that he will agree to withdraw the amendment.

7 p.m.

Lord Donaldson of Lymington

I would have preferred to have spoken before the noble and learned Lord the Lord Chancellor, but he bounced to his feet with that joie de vivre for which he is so noted and I am not. Therefore, I rise to speak now.

I read in The Times on Monday that the noble and learned Lord the Lord Chancellor had defused a potential conflict with senior judges over the powers which the Bill would confer upon him. The basis of that happy forecast was a leak that he would give a fair wind in principle to an earlier amendment which reflects the wording of this amendment. He has taken it back to redraft and one cannot know what the tenor will be until we see it. However, I wish briefly to outline the basis for my continuing anxieties, whatever may be in the redraft.

I agree with the noble and learned Lord that any change in the general terms of the clause suggested by the amendment would have no effect whatever on the powers to force changes in the rules of the profession which are expressly dealt with elsewhere. However, I wish to take the Committee back to first principles. Our unwritten constitution provides for three branches of government: the legislative branch, which consists of the two Houses of Parliament; the executive branch, which consists of the Government of the day; and the judicial branch, which consists not only of the judges but also the members of the legal profession.

I say that because in the context of the administration of justice the solicitors expressly, and barristers and legal executives impliedly, are officers of the court who are as much involved in the administration of justice as are the judges themselves. Any changes in the qualifications of those three professions, or in the rules of professional conduct, have the potential for affecting that status as officers of the court. It may be improved; but its effectiveness may also be reduced.

The authority of the legislative branch is supreme. There is no problem about that. However, it is generally accepted that it is of cardinal constitutional importance that the powers of the three branches should be kept separate and distinct. That creates a problem for the Lord Chancellor who is not only a very senior member of the executive branch but is the titular head of the judicial branch.

At a press conference on 25th June, the noble and learned Lord the Lord Chancellor appeared to deny that the arrangements contained in Schedule 5 created any problem. He said that as, traditionally, questions as to the rights of audience have been for the judiciary, he saw nothing wrong in he himself, acting as head of the judiciary, deciding in consultation with the designated judges. Of course, the operative word is "consultation", which has a chameleon-like character, as we all know. Any transfer of power from the Lord Chancellor and the designated judges, that power being exercised jointly by the five of them, to the Lord Chancellor alone is, in my view, a major constitutional change.

In that context, we must never forget that some future holders of the office may bear little resemblance in their attitudes and actions to the present holder or his recent predecessors. It must be remembered that there are no formal qualifications for appointment to the office of Lord Chancellor. The appointee need have no judicial experience. He does not have to be even eligible for judicial appointment. He need have no legal knowledge whatever. Indeed, as regards formal qualifications, he could be the hereditary plumber of whom we heard a lot in a different context earlier in the Session.

What matters above all is that he does not have the independence of the rest of the judiciary, which is based upon political impartiality and security of tenure. By contrast, he is necessarily political, politically powerful, and holds office only for so long as he enjoys the Prime Minister's confidence. Let me stress again that I am not talking about the present Lord Chancellor. But any constitutional change must look to the future and to the extent to which there could be abuses of power.

No doubt it will be said that to some extent the Lord Chancellor's freedom of action will be restrained by the purpose clause in whatever form it may emerge. But, as I have said, I agree with the noble and learned Lord the Lord Chancellor that in this particular context of professional conduct and qualifications it would not operate. He says that there will be control by Parliament and by the courts. I agree that those are the only two candidates.

However, in the context of secondary legislation, which is what would be involved as regards Parliament, the powers of this House are somewhat limited. We must look to the future. We do not know what the powers of this House will be in, say, five years' time and in relation to such legislation. And the judiciary themselves would have considerable problems if a complaint were made to them about an abuse of power in this context by the Lord Chancellor. I say that because I assume that the challenge would come, possibly from the Bar Council or the Law Society, in the form of an application for judicial review. No doubt there would be a good deal of political steam in both directions and it would be impossible to get the great British public, or even the non-legal chattering classes, to understand that judicial review in this context was concerned solely with vires and not with the merits of the proposed change.

There would be an even further difficulty from the point of view of the courts—of course, they would try to get over it—in that it would be said, whether or not on behalf of the Lord Chancellor, by those who wished to uphold the Lord Chancellor's decision that the judges had already advised against it, as I assume would have been the case, and that therefore they were being judges in their own cause.

I accept that Schedule 4 in its procedural detail is clumsy, slow and far too wide-ranging. When I was Master of the Rolls I suggested, but not in detail, that there ought to be a fast-track procedure so that the more detailed changes to rules and so forth which did not involve public interest went straight through. I agree that there needs to be an extensive reforming, but major changes in the professional qualifications and rules of conduct should require not only the compliance of the Lord Chancellor but that of at least two of the designated judges. If the Lord Chancellor and two of the four designated judges agree, there is a majority. While I might disagree with the decision, I would accept it with content. But unless we keep that safeguard—we do not keep it because at the moment it requires unanimity, which I think probably is a mistake—and the situation in which the Lord Chancellor cannot make such changes without the concurrence of at least two of the designated judges, I believe that we are making a very dangerous change in the constitutional arrangements.

Lord Woolf

I am afraid it seems to be a failing not only of the Master of the Rolls who is still in office but also of those who have in the past been distinguished holders of the office that they do not jump to their feet as quickly as they should. In my case, I did not do so because having heard the wise words of my noble and learned friend Lord Lloyd of Berwick, I thought that there could be only one outcome, having regard to the history of this Committee when dealing with earlier provisions. I urge the noble and learned Lord the Lord Chancellor to reconsider his position in relation to the proposed amendment.

I recognise its limitations as pointed out by my noble and learned friend Lord Donaldson of Lymington as to what it would achieve. However, I suggest that it would be an important signpost. Today, when construing legislation, such signposts can be extremely effective, particularly in relation to applications for judicial review.

As in the case of my noble and learned friend Lord Donaldson, I too accept, and hope, that there will probably never be a time when reliance will have to be placed on that clause. However, fundamental changes of a significant nature are involved. I do not regard the present situation, having experienced it for a limited time, as satisfactory. There must he change. But I suggest, as did the noble and learned Lord the Lord Chief Justice, that a signpost as proposed by this amendment would be of value.

Lord Lloyd of Berwick

I thank the noble and learned Lord the Lord Chancellor for his response although I confess that I had hoped that he might, even at this stage, have been able to accept the broad principle which lies behind the amendment. It simply adds to, and does not provide a substitute for, the objectives already set out in Section 17 of the 1990 Act.

At present, the noble and learned Lord regards those objectives as comprehensive. I am not sure that I agree with him about that. Perhaps, between now and Report stage, he may reconsider that point. In any event, I look forward to receiving his fresh proposals. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

7.15 p.m.

Lord Kingsland moved Amendment No. 245:

Page 63, line 19, leave out from ("writing") to first ("to") in line 20 and insert— ("(a) for him").

The noble Lord said: This group of amendments seeks to replace the proposed powers of the Lord Chancellor to approve professional bodies for the grant of rights of audience and the amendments to professional bodies' rules with a requirement that the approval be granted by the Lord Chancellor and the four designated judges. However, rather than unanimity, it is proposed that a simple majority should be required for the approval of the designation and the amendments. The existing provisions provide only an advisory role for the judges.

This set of amendments deals only with amendments to Part I, II, and IV of the schedule. That is because a later amendment seeks to have Part III of the schedule removed altogether from the Bill. If the subsequent amendment is unsuccessful, then it would be appropriate for similar amendments to be made to Part III.

The codes of both professional bodies stress that both barristers and solicitors owe their primary duty to the court and impose duties of honesty and openness on the court. The Bar's code is a synthesis of judicial decisions and rulings of the profession on appropriate conduct. The code for solicitors mirrors it.

It must be appropriate for the most senior judges to have more than a mere advisory role in relation to the future form of those codes. When the proposals which led to the existing Schedule 4 to the Courts and Legal Services Act were being debated by this House, as I know the Committee is aware, great concern was expressed about the implications of a Cabinet Minister having the final decision on the rules of an independent profession.

The resulting compromise was probably over-complex and, indeed, resulted in long delays in approving rule changes. I suppose that some of those delays were inevitable in the context of very complex applications. Others were perhaps less explicable. It is probably true to say that none of the participants in the procedure has always acted as speedily as possible. So the proposals to speed up the procedure are very welcome.

However, the removal of any power from the judges is most unwelcome. It means that the judges will lose any final influence over the rules governing the conduct of advocates before them. We shall doubtless be told that the noble and learned Lord the Lord Chancellor will consult the judges in every case and will take their advice very seriously. But the fact remains that their advice is not binding.

Some of the difficulties with the existing system lie in the need to secure unanimity among the designated judges. That may well have proved to be too restrictive. But that is not a reason to write out the judges altogether. We believe that a majority decision is an appropriate approach.

In their Second Reading speeches, the noble and learned Lords the Lord Chief Justice and the Master of the Rolls indicated that they did not share these concerns and were content for the noble and learned Lord the Lord Chancellor to take those powers. They were also candid enough to indicate that their views were not shared by the overwhelming majority of their colleagues.

In my submission, the proposals fly in the face of the doctrine of the separation of powers which is a fundamental basis of our constitution. Parliament is the legislature; and the administration of justice is for the judges. The two should be kept quite separate. A statutory scheme in the 1990 Act ensured that the judges remained in control both of the exercise of rights of audience and of rights to conduct litigation in the courts.

The Government's proposals in the consultation paper, and in this Bill, mark a total change in the position. The judges would no longer be in a position to decide who could and in what circumstances exercise rights of audience and rights to conduct litigation. That power would be given solely to the Executive in the person of the noble and learned Lord the Lord Chancellor—as a Minister and not as a judge. The judges would be reduced to the role of former consultees whose advice could be ignored as the Executive might choose.

That is not acceptable on constitutional grounds. If the United Kingdom had a written constitution, the separation of powers would be enshrined in it, as it is in the constitution of the United States of America. To an American lawyer, it would be a matter of astonishment that the Executive might seek to arrogate to itself the sole power to decide who could speak in the courts or who could conduct litigation in them.

Therefore, we share the view of the majority of judges that it is dangerous for power, fettered only by a duty to consult and the very loose provisions applying to judicial review, to be placed in the hands of one government Minister, however distinguished, eminent and honourable the present holder of that office may be. I beg to move.

Lord Lloyd of Berwick

I rise to support the amendment. Much of what I intended to say has already been said by my noble and learned friend Lord Donaldson of Lymington in relation to the previous amendment. The key amendment in this group is Amendment No. 250. The question which that amendment raises is: who is to make the final decision? Is it to be the Lord Chancellor acting alone, possibly in the teeth of the advice which he has received from the consultative panel and the distinguished judges or is it to be a majority of the designated judges, including, for this purpose, the Lord Chancellor himself?

I have understood all along the need to replace ACLEC, which has been explained so patiently and so clearly by the noble and learned Lord the Lord Chancellor. I can see also that the process of reform should not be able to be held up by a single designated judge who may happen to disagree with some proposal for reform. That argument surely could not apply where the majority of the designated judges disagree with the proposal, still less where all the designated judges disagree with the proposal. At the moment—and I do not expect to be persuaded by the noble and learned Lord the Lord Chancellor on this but I may be—I can see no justification whatever for excluding the designated judges altogether from the decision and confining them to the role of being consulted or being entitled to be consulted.

One needs perhaps to remind oneself, although we all know, who these designated judges are. They are the Lord Chief Justice, the Master of the Rolls, the President of the Family Division and the Vice Chancellor. These are the judges who are in daily touch with the actual administration of justice in the courts. Of course the noble and learned Lord the Lord Chancellor consults widely, and indeed the history of this Bill shows just how widely he has consulted, but he does not have the same day-to-day experience of sitting and listening to cases in court. It is for that reason that these four designated judges should, in my opinion, be part of the actual decision and not simply confined to their role as persons to be consulted.

No doubt the noble and learned Lord the Lord Chancellor will say, as indeed he has said and would say, that he would be very slow to disagree with the unanimous view of the designated judges. But that does not really meet the point of principle that the decision should not be his alone. He may also say that his decision could be reviewed by way of judicial review but, as he knows better than anyone, judicial review is not a suitable instrument for arriving at this sort of decision. It is a blunt instrument not suitable for the fine tuning of decisions in this field.

"Fine tuning" is a phrase which is not my own. It is a phrase which is used in the response of the council of the Inns of Court to the Lord Chancellor's consultative paper. In paragraph 6 it says: We understand why it may be considered wrong that a single designated judge, however eminent, should have a power to veto changes to the grant of exercise of rights of audience approved by the Lord Chancellor and the other three designated judges, but we do not understand why it should be necessary to go to the opposite extreme". That is what we are doing, going to the opposite extreme and relegating the judges to the role of consultees only. The council of the Inns of Court then referred to an opinion of Mr. Sydney Kentridge QC. Mr. Kentridge, in an opinion which again was forwarded to the noble and learned Lord the Lord Chancellor, says that the effect of these proposals is to bring about what he calls a constitutional revolution. Mr. Kentridge is not a man who wastes words. He chooses his words very carefully indeed.

Perhaps, for the benefit of the Committee, I may quote one sentence from Mr. Kentridge's opinion. He says, The persuasiveness of those reasons"— that is to say, the reasons for extending rights of audience, which for my part I have no difficulty with— provides no ground for reducing the rights and powers of the judicial arm of the constitution and transferring them to the executive". I do not overlook the fact that the noble and learned Lord the Lord Chancellor is in one sense the head of the judiciary, but in that role he has never previously had the powers which he now seeks to obtain, and the proposed new powers will be exercised in his ministerial capacity.

I am aware that the noble and learned Lord the Lord Chief Justice, in the Second Reading debate, did not see any great difficulty in reducing the role of the designated judges to that of consultees, to use that not very attractive word, but he did accept that in that respect he was not speaking for the majority of judges, many of whom he said—and the passage has already been quoted by the noble and learned Lord—felt strongly, even passionately, that this is a power which ought not to be given to the Lord Chancellor. I am no longer a judge, but if I were asked whether I felt passionately about this I would probably say no, not passionately; but I do feel very strongly about it.

Lord Donaldson of Lymington

I shall not repeat what I said earlier. I am passionately in favour of the amendment. I rise only because I thought that something that my noble and learned friend Lord Lloyd of Berwick said might mislead non-lawyers in the Chamber. He said that judicial review is not a suitable vehicle for fine-tuning ministerial decisions. That is not the distinction. The real distinction is that it is not a vehicle for considering the merits of decisions, and unless one can show on Wednesbury grounds, which is most unlikely, that the proposal of the successor Lord Chancellor—let me stress that—was so lunatic that it bordered on the irrational and therefore was ultra vires it is difficult to see what power the courts would have.

Lord Goodhart

I rise also to support this amendment, to which I have put my name. As has been pointed out, Parts I, II and IV of the new Schedule 4 cover the same ground as Parts I, II and III of the old schedule. Part I relates to the designation of authorised bodies, Part II to the approval of rule changes made by authorised bodies, and Part IV to the power to revoke designation of authorised bodies. The new Part III contains an entirely new power for the Lord Chancellor to impose rule changes on various bodies. That deserves an entirely separate debate because it raises the question whether that part should exist at all. That issue is raised by a separate and subsequent amendment which is not part of this group.

The most significant difference between the new schedule and the old schedule in relation to the three parts which appear in both of them is, as has been pointed out, that the veto of the designated judges is entirely removed even if they are unanimously opposed to the proposal of the Lord Chancellor. The purpose of the amendments in this group is to restore a modified judicial veto in Part I of Schedule 3. The subsequent parts are dealt with in subsequent groups of amendments. The 1990 Act was undoubtedly too rigid in allowing only one of the four designated judges to veto an application for designation as an authorised body. That is certainly now widely recognised. The amendments in this group modify that by requiring the Lord Chancellor to get only two judges on his side, not all four of them, in order to allow the proposal to go through. Why is a judicial veto needed at all? There are, after all, two other safeguards: first, judicial review; and, secondly, the need for an Order in Council by affirmative procedure in relation to Parts I and IV.

Judicial review, I believe, is not an adequate safeguard, for the reasons just pointed out by the noble and learned Lord, Lord Donaldson of Lymington. It requires judges to find that the Lord Chancellor has been acting irrationally; what is known in the trade as Wednesbury unreasonableness. As the noble and learned Lord pointed out, that is a very high border to surmount. Secondly, the affirmative procedure for Orders in Council is itself of limited value. A Government with a large majority in the other place can carry a vote there and in your Lordships' Chamber. The convention of not rejecting secondary legislation makes it difficult to resist any such Order in Council. It is possible that if a future Lord Chancellor introduced an order over the objection of all four of the designated judges, your Lordships' House might think that the constitutional significance of the Order in Council was sufficient to enable the House to override the convention. But that is unlikely and at best speculative.

There are major constitutional reasons why the modified judicial veto should be retained. The independence of the judiciary and the separation of powers is of the highest constitutional importance and is becoming rapidly more so because of the powers of the judiciary to decide devolution issues and issues that come under the Human Rights Act. Historically, of course, judges have always had control over rights of audience. Solicitors have been given rights of audience in the lower courts by various statutes. Rights of audience are now codified in the 1990 Act. Control over who has rights to conduct litigation and rights of audience is, to a considerable extent, control over the legal process itself.

The doctrine of the separation of powers as recognised in England and Wales does not lead to immunity from parliamentary legislation; but if the Lord Chancellor proposes to extend rights of audience and to litigate to members of new authorised bodies—that is the power under Part I—over the objection of three out of the four most senior judges, then only primary legislation will be the proper way to do that.

7.30 p.m.

Lord Clinton-Davis

With the greatest respect to the extraordinarily distinguished legal personalities who have spoken in this debate—I am certainly not one of them; I was a humble high street solicitor—too much is being made of this.

It is argued by my noble and learned friend that present procedures are too complex, too difficult and lead to unnecessary delay. I am persuaded that those points have not been taken into account sufficiently or at all by those who have argued in favour of this amendment. We have to be practical about this. It is not as though my noble and learned friend will go into the arena refusing to consult—it does not matter whether it is he or his successors—and acting in a totally arbitrary way. What has been the case in the past is that these procedures have been extremely arcane and we ought to avoid that situation in the future.

It was incumbent on those who sought to support the amendment to give some credit to the arguments set out in the Notes on Clauses, which I hope they read; I hope they are worthy of some mention. But unless I misheard the situation in the enthralling atmosphere affecting this debate, which imposes certain rest periods for some of us, I did not hear the arguments being adduced address those matters at all.

The proposal made by my noble and learned friend is worthy of more profound consideration. Of course I shall listen carefully to what he has to say in response to this debate. I do not know whether or not he supports me; I suspect he might. At all events, while I listen with great care to legal luminaries who have spoken so far, I am not persuaded to support the amendment.

Lord Goodhart

Before the noble Lord sits down, since he raised the issue of increased complexity and delay, can he say why there should be any more complexity and delay in requiring the designated judges to consent to the proposal when under the new schedule the Lord Chancellor has to seek their advice?

Lord Clinton-Davis

While I understand that point, it does not fully address what I was saying. I shall listen to my noble and learned friend whom I am sure will offer some wise words on this issue.

Lord Hacking

There is another reason why my noble and learned friend should resist this amendment. He is answerable to Parliament. Whether it is primary or secondary legislation, he is still answerable to Parliament. It is for Parliament to decide such basic issues as the freedom to have rights of audience and whether or not a monopoly is exercised by certain bodies. This is a parliamentary matter; it is not simply a judicial matter.

The Lord Chancellor

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

I want to start with a proposition of principle; that is, the principle that rights of audience in the Queen's courts are not ultimately to be decided upon by the designated judges or even by a majority of them, but by Parliament. The notion that it is appropriate for the judiciary, by any means, to be empowered to grant work licences to advocates is outmoded and out of place in a modern Britain. In our democracy the framework of rights of audience in Her Majesty's courts should be settled by Parliament, not the judges.

Much has been made of the proposition that on judicial review of the decision of a Lord Chancellor in this regard, the court would not substitute its view of the merits for that of the Lord Chancellor. That is correct of course unless the court was of the view, having regard to the objectives of the Bill, that the decision of the Lord Chancellor was irrational. But the merits of rights of audience issues are for Parliament where the real issue is whether what are prima facie restrictive practices are nonetheless justifiable in the public interest. What is justifiable in the public interest is for decision by Parliament, not by the judges.

Under the Bill's proposals the designated judges will retain a powerful role in advising me on the exercise of the powers in the new Schedule 4 to the 1990 Act. Judging by my experience thus far, it is in the highest degree unlikely that we will disagree about applications under the Act and it is by far the most probable that we would agree about all. But ultimately I agree with the noble and learned Lord the Lord Chief Justice—the most senior of the designated judges, whether or not he be in a minority so far of the judges as a whole—when he said at Second Reading, the final power of decision in these matters should rest with the Lord Chancellor. In the last analysis, it is he alone who is answerable to Parliament and to the public for the exercise of these powers".—[Official Report, 14/12/98; col. 1126.] That was a point made by the noble Lord, Lord Hacking, but I have made it absolutely plain that under this Bill I would make any exercise of these powers by the Lord Chancellor subject to the approval of Parliament.

I am fortified in that view by the knowledge that my noble and learned friend the Master of the Rolls, who is in his place—the second most senior of the designated judges—also agrees with the noble and learned Lord the Lord Chief Justice. He made this quite clear at Second Reading when he said: it is part of the responsibility of the Lord Chancellor in our constitutional framework and he must take that responsibility".— [Official Report, 14/12/98; cols. 1153–1154.] In my first Mansion House speech on 23rd July 1997, I said that I wanted to address, first, the separation of powers upon which our constitution rests; and what exactly that in my view entails for the relationship between Government and the judiciary". I continued: It was widely perceived by the public that, under the last Government, relations between the higher judiciary and the Government had sunk to an all time low. The public know, or sense, what the separation of powers is about. They are unhappy if the Government are attacking the judiciary and if the judiciary seem to be hitting back in return. They then feel that all is not well with the state of the nation. I am clear that the Lord Chancellor is at a critical cusp in the separation of powers. I personally regard it as of the first importance that the judges' views whether proposed changes by the Government to the law will work, or any views the judiciary may have of damage they, the judiciary, apprehend to the system from legislative proposals that the Government are minded to bring forward, should be able to be made known effectively to government at a stage when policy is still being formulated and not settled. It is essential that Government be able to speak to the judiciary and the judiciary to Government. I regard the Lord Chancellor as the primary medium for that interchange". I believe that that would be the credo of any Lord Chancellor.

Those of your Lordships who are concerned that a Lord Chancellor might wield his powers in an attempt to damage the freedom and independence of the legal profession should bear in mind that he would be able to exercise his power to alter the rules of an authorised body, or to revoke the designation of an authorised body, only with the express sanction of both Houses of Parliament. Ultimately, it is Parliament that is the guardian of our liberties—and without Parliament, we are all lost.

Parliament will be well placed to fulfil this role in relation to Part I of the schedule, as no Order in Council may be made in this regard unless approved by both Houses. I trust, therefore, that noble Lords who have proposed the amendment will agree to withdraw it.

Lord Lloyd of Berwick

Before the noble and learned Lord sits down, is he willing to undertake that in a case where, however unlikely, he finds himself rejecting the advice of the designated judges, he would either publish the effect or substance of that advice or at least let the world know that that is what he is doing?

The Lord Chancellor

I would certainly always ensure—indeed, there is provision in the Bill in that regard—that the advice which I did not accept was published and that my reasons for not accepting that advice were published.

Lord Donaldson of Lymington

I believe that the Lord Chancellor may be mistaken when he says that there is provision for the judges' advice to be published. We corresponded on this matter a few weeks ago. When I asked why there was no power for the judges to publish their advice, the answer that I received from the Lord Chancellor, which I entirely accepted, was that they had inherent power to publish their advice and, although he did not put it quite in these terms, if they disagreed sufficiently, no power on earth would stop them publishing.

7.45 p.m.

Lord Goodhart

I heard with great interest what the noble and learned Lord the Lord Chancellor said. However, he emphasised the right of Parliament to alter the rules of rights of audience; there is no question about that. That is something that Parliament has done many times, starting, I think, in the last century and most recently in 1990. The question surely is: how should that power be exercised? Is it adequate that that power can be exercised by secondary legislation? I am suggesting no challenge whatever to the right of Parliament to alter by primary legislation the rules of rights of audience. That is the question that has to be decided here.

The Lord Chancellor

I have made it perfectly plain that I regard the affirmative resolution procedure as adequate.

Lord Kingsland

I disagree with the noble and learned Lord the Lord Chancellor about the basis upon which he has promoted this part of the Bill. Democracy is a necessary, but not a sufficient, condition to guarantee freedom in our country. It is not just Parliament approving laws; it is judges interpreting the exercise of the laws and, where necessary, constraining the Executive in implementing the laws—equally an essential component of freedom. It is the operation of those two factors, freely side by side, which makes for a free society. After all, the doctrine of the sovereignty of Parliament is a doctrine of the courts.

I shall reflect on what the noble and learned Lord has said. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Farrington of Ribbleton

I beg to move that the House be resumed. In moving this Motion, I suggest that the Committee stage begin again not before 8.45 p.m.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.