AMENDMENT TO COMMONS AMENDMENT No. 80 (Hansard, 14 July 1999)

§ Lord Mishcon
My Lords, after I had put down my Amendment No. 81 A, the noble and learned Lord the Lord Chancellor, with his usual courtesy, wrote to me with the assurances which, again with his usual courtesy, he has repeated this evening. The Law Society is most grateful to him for his attitude in this matter and for those assurances; and, if I may say so, so humbly am I. In those circumstances, I shall not move Amendment No. 81 A.

§ Lord Hunt of Wirral
My Lords, I welcome very much indeed the words of the noble and learned Lord the Lord Chancellor. Perhaps I may also add that all members of the Law Society will very much appreciate his words about Michael Mathews which will find a supportive echo right across the profession and across the country. I greatly applaud the way in which the noble and learned Lord has approached the whole issue. I hope that it will be possible to find a list of those activities which are clearly in the public interest. That was the purpose of the amendment. The resolve of the noble and learned Lord the Lord Chancellor to do just that is very comforting indeed.

§ Lord Hacking
My Lords, I was consulted both by the Law Society and the Bar Council on this issue. I know that my friends in the Law Society, including the president, are very pleased with the final result of these discussions. As a former member of the Bar who always paid his dues and as a present solicitor of the High Court who continues to pay his dues to his society, I know that both sides of the profession are most grateful to the noble and learned Lord for these measures.

§ Lord Phillips of Sudbury
My Lords, I am sorry if I am going to be the fly in the ointment on this; group of amendments. I have only today had the assurance of the Law Society that it supports the amendment in my name. The first point one must recollect is that one is not proceeding here from a fresh sheet, so to speak, as one is with the Bar, where these powers are new; one is proceeding from the position where for a long time the Law Society has had the power and right to charge practising certificate fees. That is to be found in Section 11 of the Solicitors Act 1974. The provisions of Section 11 are very different from those contained in Amendment No. 81 because they give the Lord 461 Chancellor, the Master of the Rolls and the Lord Chief Justice a joint voice in setting practising fees. All three must agree or there is no agreement at all.
Furthermore, Section 11 as it stands gives the Master of the Rolls, as judicial overseer of the solicitors' branch of my profession, the initiative in setting fees which he can exercise only with the concurrence of the Lord Chancellor and the Lord Chief Justice. That, I believe, is a better balance than the one now proposed in Amendment No. 81, which not only gives the Lord Chancellor the initiative but reduces the role of the Master of the Rolls to that of a mere consultee, along with that of the Law Society.
My amendment would, too modestly some may think, leave the initiative with the Lord Chancellor, but would require him to obtain the agreement of the Master of the Rolls to any proposals he may make under the new clause by way of restricting the right and power of the Law Society as to how it expends practising certificate fees. I believe that this is a particularly desirable change to make to the clause as contained in Commons Amendment No. 81, because in this case the power to be given to the Lord Chancellor is a very political one, allowing him to control the Law Society in the expenditure of practising fees, so as to be confined to regulation, education and training of solicitors—highly uncontentious—and such other purposes as the Lord Chancellor considers appropriate".
As the noble and learned Lord the Lord Chancellor made clear in his letter of 2nd July to the noble Lord, Lord Mishcon, one objective of this change is to prevent the Law Society using practising fees for what he called in the letter "trade union activities". Yet, as he acknowledged by accepting that there will now be an 18-month negotiation period with the Law Society, which will seek to provide a definition of just what that means, "trade union activities" is a wonderfully vague and unclear phrase.
Furthermore, the noble and learned Lord insists on negotiating during this period, having secured the power, under Commons Amendment No. 81, to enforce his will if negotiations break down or reach no happy conclusion. It is precisely because a political Lord Chancellor will be tempted at moments of controversial activity by the Law Society, such as there has been in the Law Society's recent advertising campaign to oppose certain aspects of the Bill, that I believe the exercise of his initiative under the subsection needs my amendment. For the very threat of the exercise of the power given exclusively to the Lord Chancellor under Commons Amendment No. 81 will have its effect. Further, it could—maybe in certain cases it is bound to—give rise to litigation. Matters of legal aid, legal procedure, legal fees and court organisation could all be described as trade union activities; they are all certainly matters which give rise to conflict of interest on the part of solicitors, because there is absolutely no doubt that any of those subjects, and many more, including many subjects of law reform generally, will involve solicitors in their own capacity as solicitors, just as much—in some cases, much less, however—as they will involve the interests of their clients and justice generally.
462 One has only to consider the debate tonight, when the noble and learned Lord the Lord Chancellor made soft but clear charges of trade unionism against some of those who spoke in favour of the public defender system, to realise that to try to define just what is and is not permissible under this new aegis is impossible. That is why I propose the amendment. It will be too easy for a Lord Chancellor stung by a campaign against his government's policy to ignore his own conflicted position, because of course he is both senior judge and Cabinet Minister, and seek to stifle that opposition by exercise of the powers given in Commons Amendment No. 81.
I hasten to say that nothing I have said is in any way directed at the noble and learned Lord the Lord Chancellor himself, but in cases such as this one must look to the principles and the possibilities. It would be imprudent in the extreme to allow the amendment to proceed, when the present arrangements, vesting initiative and most influence in the Master of the Rolls, would seem to me to be much more appropriate and better for all concerned.

§ Lord Mishcon
My Lords, before the noble Lord sits down, will he indicate to the House whether he is speaking for himself or whether the views he expresses are those of his party, as he is sitting on the Front Bench?

§ Lord Phillips of Sudbury
My Lords, I hope I can safely say that I am speaking for my party as well as myself.

§ Lord Goodhart
My Lords, I rise briefly to deal with Amendment No. 80.1 speak as the only barrister in current practice who has spoken in this brief debate. This is something which deals with a long-standing grievance of the Bar Council which has had to face the free rider problem of those who receive the benefits provided by the Bar Council without having to pay anything towards them.
I hope that the Lord Chancellor, in considering what further costs might be allowed to be paid out of the Bar's practising certificate fees, will give consideration to the administration of the free representation unit and also the administration of the undertakings that have been given by a considerable number of members of the Bar of all levels of seniority who volunteered to work pro bono.

§ Lord Kingsland
My Lords, I rise to endorse the remarks of the noble Lord, Lord Goodhart, and also to support the remarks made by the noble and learned Lord the Lord Chancellor about Mr. Brennan QC.