HL Deb 14 July 1999 vol 604 cc442-53

70A That this House do disagree with the Commons in their Amendment No. 70.

Lord Ackner

My Lords, I beg to move that this House do disagree with the Commons in their Amendment No. 70.

So much in life is conditioned by sheer chance. At tea time on 28th January, I had the good fortune to move the Motion that Clause 31 should not stand part of the Bill. The earlier amendments, which were somewhat similar, had come on shortly before midnight and enthusiasm to take any definite step was clearly not in evidence.

Clause 31, which I successfully moved should not stand part of the Bill, has been reinstated by an amendment in the Commons. Therefore, I am seeking to repeat the success that I achieved in this regard on 28th January.

I was going to suggest that it is right that the Commons be asked to think again. But that is not an accurate way to put it. I really want the Commons to think for the first time because they have not been given the material upon which to exercise their judgment.

The first matter to consider in respect of the rights of employed advocates is what the present position would be if my original amendment had stood. What is the status quo? One would have thought that that was something that the Government might have pointed out in the process of attacking the amendment, which was successful on 28th January. I shall start by doing that now.

We all know that the solicitor in private practice has managed to achieve unfettered rights of audience provided that he passes the necessary requirements laid down by the Law Society and which have been approved. What has caused considerable concern is the position of the employed solicitor. That was dealt with in February 1997. The position is not that the employed solicitor has no rights of audience. He has different rights of audience from his colleague in private practice.

I refer to a letter which the then Lord Chancellor, the noble and learned Lord, Lord Mackay, wrote to my noble and learned friend Lord Nicholls of Birkenhead, a Lord of Appeal in Ordinary, who was then the chairman of the Lord Chancellor's Advisory Committee on Legal Education and Conduct. The material parts read as follows: The designated judges and I have now reached our decision on the remaining part of the Law Society's application for rights of audience for solicitors, that is that part which relates to employed solicitors". He went on to say that, we have decided to approve the application as amended, subject to further restrictions and a proviso. As you know, the Law Society submitted a supplementary application in July 1995 which limited the cases in which employed solicitors could appear in the higher courts as the sole or senior advocate. We have concluded that it would be right to extend those categories. The effect of our decision will be that an employed solicitor appearing as an advocate with a leader will be able to appear in all cases in which a solicitor advocate can now appear. However, an employed solicitor may not appear as the sole or senior advocate in the following proceedings: criminal proceedings which have been committed for trial to the Crown Court. or any subsequent appeal. (Plea and Directions Hearings and other preliminary proceedings are not included in this restriction)". And in regard to the civil situation: in the higher courts in any hearing which is intended to dispose in whole or in part of the merits of the case, and on behalf of a local authority in a hearing of an application in care proceedings, or any subsequent appeal". The noble and learned Lord, Lord Mackay, concluded with the comment: We consider that our decision will further the statutory objective of widening the choice of persons providing legal services while maintaining the proper and efficient administration of justice". When the press notice was issued on 26th February this was to be found: The Lord Chancellor commented: 'I am very pleased with this decision, which marks a further widening of legal representatives who can appear before the courts. The senior judges and I are satisfied that employed solicitors have in place sufficient qualification and training regulations, and codes of conduct, to ensure that the proper and efficient administration of justice will be maintained. While the decision will take time to make an impact, it marks a continuation of the sensible policies of reform which were initiated in the Courts and Legal Services Act 1990'". So it looks on the face of it as if the noble and learned Lord the Lord Chancellor was content with the compromise that had been reached, in which in substance the employed solicitor in the type of case to which I have drawn attention had to have a leader; he could not do it on his own. It was no doubt contemplated that in due course, with sufficient experience of being led, he would, like any other junior, develop into a leader himself.

That is to be compared with the observation of the noble and learned Lord, Lord Falconer, some years later, on 26th January 1999, when, referring to the restrictions, he said: Those restrictions on employed banisters and solicitors are unjustified. They are the worst kind of restrictive practice—designed simply to protect the work and incomes of privately practising barristers, with no shred of benefit to the public".—[Official Report, 26/1/99; col. 997.] I hate criticising any colleague who is not present in the House, but the noble and learned Lord has sought to go, when I assumed that he would be present. No doubt the noble and learned Lord the Lord Chancellor can seek to justify what was, in my respectful submission, a quite monstrous attack on the profession, a profession which has not sought to support what I am putting forward, which kept right out of the arena on this subject, because it knew from past experience that the matter would be treated as a trade union dispute between the two branches of the profession, which it is not. I say it is not, based upon the following further observations.

My noble and learned friend Lord Steyn, a Lord of Appeal in Ordinary, wrote an article based on the 1998 Kalisher memorial lecture, delivered on 13th October 1998. It was published on 8th July 1999. The material parts read as follows: But in my view the proposed granting of full rights of audience to lawyers working for the Crown Prosecution Service (CPS) would be a mistake. I make no criticism of the CPS or of the dedicated lawyers who work for the CPS. The point is an institutional one. On grounds of constitutionalism it would he a mistake to grant such rights to State employees; prosecution in the Crown Court by members of an independent bar places a brake on the executive. It is no answer to say that CPS lawyers already prosecute in the magistrates courts. The important cases where tensions between the liberty of the citizen and the interest of the executive arise are heard in the Crown Court. It is an illusion to believe that CPS lawyers work in the same culture of independence as banisters in private practice. Inevitably, CPS lawyers have to display a loyalty to the organisation which employs them and that imposes direct and indirect pressures on them. Failure to fit into the corporate culture of the CPS may result in dismissal or denial of promotion. That is one of the reasons why after careful investigation ACLEC [the advisory committee] by a majority advised against the conferment of full rights of audience on lawyers working for the state. The advice given by ACLEC in June 1995 was not based on protecting any interests of the Bar. The majority was, amongst other things, concerned about 'the reality of the likely pressures on CPS employers' and about 'the extent to which, without the requirement of an independent advocate, those pressures might make it more difficult for the individual advocate to adopt a position contrary to the possible wishes and assumptions of the CPS as his or her employer'. While there has been much criticism in the press directed at the advice of ACLEC, not a single journalist has ever even in passing reported the true ground of our advice. On constitutional grounds I regard it as undesirable for State employees to he given rights of audience in the higher courts". By contrast, I refer to a part of a letter written by Professor Zander to The Times on 18th December last year. He wrote: In the Crown Court study I conducted for the Runcirnan Royal Commission on Criminal Justice during 1993, we asked respondents to bring to the attention of the Commission any matter of concern. The main general concern identified by prosecuting banisters was disagreements and undue pressure from the CPS on individual cases. At present, such disagreements and pressure are deals with by discussion between the banister and the CPS representative. If the CPS has and exercises full rights of audience, that created tension between differing views would be lost. The decision as to how to handle the case, whether to accept a plea in itself on what charges, etc. would be handled by the CPS alone. In my view that will result in a regrettable deterioration of decision making in serious criminal cases. The loss will be in the quality of that elusive concept, justice". Professor Zander is not known for his support to the Bar nor for any affection for the status quo.

There have been many supporting views of that approach. I shall not take up the time of the House in referring to more than one; that by Lord Benson in his commission's report at paragraph 18.43 to 18.45. It says: In one significant aspect the arrangements serve what many of us regard as an important public purpose by ensuring that in the Crown Court the case for the prosecution is put by an advocate who is independent both of the police and the prosecuting authority … we think that the effect of the present arrangements on prosecuting work should not be disturbed. It provides in every case an advocate from the available range of private practising banisters who is seen by the court, the accused and the public at large, to be independent of the police and the prosecuting authorities; one who, by the nature of his training and daily practice, is more likely to be able to bring the essential quality of detachment and balance to bear on the problem in the individual case. These are considerations that we regard as crucial, not only to the actual conduct of a jury trial, but also the proper administration of justice in general, including the institution or continuance of criminal proceedings, the acceptance of proposed pleas of guilty and the proper handling of evidential problems". Is that an example of what the noble and learned Lord, Lord Falconer of Thoroton, who has again left the Chamber, meant by the worst kind of restrictive practice? Is it a restrictive practice designed simply to protect the work and income of private practitioners? Can it be said that that practice contains no sired of benefit to the public? Of course it cannot.

What I have brought before the House has been suppressed by the Government in this Chamber and in the Commons. That is why I have respectfully submitted that the other place be asked to think—and think for the first time.

Moved, That this House do disagree with the Commons in their Amendment No. 70—(Lord Ackner.)

10 p.m.

Baroness Crawley

My Lords, I hope that the House agrees with the Commons in their Amendment No. 70. I reiterate the conviction that I expressed back in the long dark nights of January when we last rehearsed the arguments on what was then Clause 31, that employed lawyers should not be stopped because of their employed status from exercising their rights of audience. The obstacles restricting the rights of employed lawyers represent an injustice that cannot be allowed to continue in a modern, reformed legal service. Despite what we have heard from the noble and learned Lord, Lord Ackner, those obstacles also represent more than a hint of protectionism.

It is always instructive to hear from the noble and learned Lord, Lord Ackner, but he treads a somewhat lonely path in his continued insistence that any extension of employees' rights of audience should be opposed, particularly in the light of the fact that my noble and learned friend the Lord Chancellor has insisted on many occasions that the highest standards of qualification and training will prevail under the reforms.

Earlier this evening the noble Lord, Lord Thomas of Gresford, was insistent in his view that the legal profession is very competitive. If that is so and if the proper standards are put in place and safeguarded, there is nothing of substance to fear from the amendment. I ask the noble and learned Lord, Lord Ackner, not to pursue his objection.

Lord Borrie

My Lords, in the early part of his speech the noble and learned Lord, Lord Ackner, referred to the 1997 extension of the rights of employed lawyers to appear in certain cases in certain circumstances. Of course, everything that the noble and learned Lord said was accurate, as one might expect. He did not say, although one might infer it because he referred to the legislation from which this emanated as being that of 1990, that there had been many years in between in which there had been a to-ing and fro-ing between the different organisations involved—the Law Society and ACLEC and so on. It took all those years to get what the noble and learned Lord seemed to think was a "fair compromise". I should perhaps describe it somewhat differently as a fudge. It reduced the real possibilities of choice of the litigant with which we ought to be concerned.

The litigants in the cases of which I am thinking in civil matters are companies, firms which may have lawyers in their employ in their legal department. Under the 1997 dispensation—the situation was even worse before that—irrespective of his wishes, the employer could not use one of his employed lawyers to represent the company in court. I sought to put forward my view at the earlier stages of the Bill. To my mind, companies which employ lawyers should have a complete choice. They should determine, on the best advice available, whether to use an independent barrister, or, let us say, an independent QC to lead one of his own in-house lawyers as a junior; whether to use employed staff to appear only in interlocutory proceedings and perhaps use an independent practitioner at trial proceedings, and so on.

I keep emphasising the word "choice". The noble and learned Lord was keen to have a code—a list of insistent provisions that all employed lawyers appearing in court must, above all, be concerned with their duty to the court. I have worked with employed lawyers in both the public and private sectors. I took the view that to assert without evidence that an employed lawyer was incapable of giving independent advice or of representing his client with all due integrity to the court, and of giving advice that his employer may not wish to hear, was nonsensical. An employed lawyer knows, as does his employer, that he is being paid to give of his best. That includes giving advice that the employer may not particularly wish to hear.

I must not speak for too long but I should like to comment in relation to the Crown Prosecution Service. The noble and learned Lord, Lord Ackner, dealt with that in the latter part of his speech. I find it difficult to draw a complete dividing line between those trials—and for good or ill, there may be more in future than in the past—which are settled and determined in the magistrates' court and those which are settled in the Crown Court. The noble and learned Lord, Lord Ackner, seemed to imply that there is some rigid division whereby Crown Prosecution Service employees are assumed to be perfectly ethical and to have complete integrity and all the rest of it to ensure a proper trial in those courts. But should the trial happen to be in the Crown Court, those selfsame employees are "incapable" of having the integrity and the ethical standards that we all want to see.

It seems to me again that it should be a matter of choice. In this case, the Crown Prosecution Service is surely sufficiently well managed to know when it wishes to engage its own lawyers and to give them experience in the different kinds of courts, whereas at the moment it can never give them experience in the Crown Court. In other cases it may decide that it needs someone from the independent Bar, either as a leader, or perhaps as the sole prosecutor. Let us have a little more choice and let employed lawyers give of their full quality and qualifications—assuming, of course, they do have the correct qualifications; without them they could not appear—and let us accept the Commons view on this matter.

Lord Goodhart

My Lords, we are unable to agree with the noble and learned Lord, Lord Ackner. In saying that, I have to say that some of my noble friends strongly agree with him. Indeed one of them is sitting immediately behind me and I think that your Lordships will shortly have the benefit of his views. All of my noble friends who agree with the noble and learned Lord are lawyers with long experience of criminal cases whose views must be listened to with great respect.

But the view of my party, as was made clear in the other place, and indeed my own view, is that the Crown Prosecution Service—it is the Crown Prosecution Service that this amendment is really about—should have rights of audience. We have to remember the background to the CPS. It was introduced because the old police solicitor was seen—and I think rightly seen—as too closely connected with the investigation of crime. The CPS was introduced to be a body independent of the police and the investigation process. That is what it should be and what I believe it is.

We all know that the CPS has been through difficult times, but I do not believe that the standards of integrity of employees of the CPS are less high than those of lawyers in independent practice. Of course there are pressures on members of the CPS, but equally there are pressures on barristers in private practice who are instructed by the CPS. Those pressures may in some ways be even greater. If an independent barrister does not do what the CPS wants, he can be cut off by the CPS without any remedy—that can be extremely damaging to his practice—whereas a CPS employee has full rights under the employment legislation to protect his position. Therefore I do not think that it is right to talk of pressures being on one side only.

I believe that the right to appear as an advocate in the Crown Court will attract more candidates of high quality to the CPS, particularly from those who are already advocates in independent practice. They will simply not transfer to the CPS if they are to be condemned to silence in the Crown Court. I believe that interchange between the CPS and the independent profession is particularly valuable. But it will not happen if those in independent practice lose their rights of audience when they join the CPS and those in the CPS have no experience of advocacy in the Crown Court.

The arguments in favour of allowing the CPS to have rights of audience are, I believe, quite different from the arguments that we on these Benches raised earlier against the setting up of a public defender system with rights of audience. Indeed, giving the CPS greater rights of audience I believe strengthens the view that defence should remain independent of the state. We do not think that adverse consequences will follow from giving the CPS rights of audience. That must, of course, be phased in over time. It is not appropriate that the present CPS staff with limited experience of advocacy in the Crown Court should immediately take over the prosecution of difficult cases. I certainly hope that there will always be a role for independent prosecutors in cases brought by the CPS. But that, I believe, is something that should be left to the discretion of the Director of Public Prosecutions.

Lord Hacking

My Lords, your Lordships have heard quite a lot of argument relating to employed lawyers with the CPS and I certainly do not intend to repeat that here. I regret, when the noble and learned Lord moved his Amendment No. 70A, that he made no reference to Clause 37 of the Bill which sets out a clear duty on all advocates providing advocacy services. Clause 37 states that they have, a duty to the court to act with independence in the interests of justice". I had subsequent correspondence with the noble and learned Lord after some amendments that I moved which were designed to give comfort to those who might be concerned about employed lawyers appearing in court. My noble and learned friend, in my view quite rightly, said it was unnecessary to use the protective mechanisms that I was proposing because the duty was so clearly set out as a statutory duty in Clause 37.

I listened with great care to the noble and learned Lord, Lord Ackner. He made some omissions—not only the omissions pointed out by my noble friend Lord Borrie but also he did not refer to the position of employed barristers. There was some compromise after the Courts and Legal Services Act reached the statute book concerning my side of the profession but the position of employed barristers—and there are many who are employed as barristers and not as solicitors—was not addressed at all. It has not been addressed; it is only now being addressed in the Bill.

After your Lordships had passed the Bill and sent it to another place, I had the opportunity of talking to an employed barrister. He gave an account of how he had been in private practice in chambers in Manchester for 10 years or more. He subsequently accepted an in-house legal position with a publishing company. As with all publishing companies, emergencies arise—injunctive relief and so forth is needed—and he had to go very quickly to an open court in the High Court in order to represent his client. Although the employed barrister had been dealing with the problem for only a few hours in his office, he pointed out the sheer inefficiency of the necessity to brief an outside barrister to appear in the High Court. Instructions had to be given orally, first of all over the telephone and then as he and the barrister walked to court together. In those circumstances, there was no way in which the barrister could be properly briefed to appear efficiently and well for the client.

That is an example of how we should be looking at the problem. We should be looking at the interests of justice and at the interests of the efficient conduct of justice. In the circumstances I have outlined to you, a barrister with 10 years' experience in the High Court and with a detailed knowledge of the particular case was, under the present rules, prevented from presenting his client's case to the judge. I dare say that the judge would have much preferred to have had someone with a knowledge of the case in front of him, rather than the badly-briefed barrister. The barrister did not have the knowledge because there was no time for it to be imparted to him.

This is a very important amendment—it is certainly considered important outside the House—because it affects all employed lawyers, whether they be solicitors or barristers. I hope that the noble and learned Lord will not press his Motion.

Lord Wigoder

My Lords, I had not intended to intervene in this debate. I have been persuaded to do so by an observation of the noble Lord, Lord Borrie. If I may paraphrase his remarks, he said that there was no reason why a prosecuting lawyer who was employed by the CPS would not exercise precisely the same high standards as a prosecutor who was member of the independent Bar. I entirely agree with what he said.

My problem is that there may occasionally be those who fall short of those high standards, whether they be members of the independent legal profession or those employed by the CPS. If they are members of the Bar, the noble and learned Lord the Lord Chancellor will know the many informal pieces of machinery that exist by which those standards can be enforced. His colleagues at the independent Bar will recognise what has happened. The matter will inevitably come to the head of his Chambers. If it goes any further, it will come to the leader of his circuit. If it goes further than that, it may well come to the presiding judge, to his Inn, or to the Bar Council. There are innumerable informal ways in which it can be made clear that an independent barrister who falls short of the proper standards is dealt with speedily and efficiently.

I should very much welcome some indication from the noble and learned Lord the Lord Chancellor that, where similar behaviour takes place—as it is bound to do occasionally—on the part of someone who is an employed barrister, there will be adequate machinery to ensure that it is recognised and is dealt with the same efficiency.

Lord Kingsland

My Lords, so far as concerns the Crown Prosecution Service, I wholly endorse everything that the noble and learned Lord, Lord Ackner, has said about the appropriateness of its employees taking cases in the Crown Court.

However, I recognise that at this stage of the passage of the Bill through Parliament I am faced with a situation where the Liberal Front Bench is opposed to the Motion. I have to confess that some members of the Opposition are also opposed to it. I refer, for example, to the noble and learned Lord, Lord Mayhew of Twysden, who is a supporter of the Government's line on the Crown Prosecution Service. Although I hope that I do not do him any injustice, I think that would also be true, were he present, of the noble and learned Lord, Lord Mackay of Clashfern. In those circumstances, it is therefore the Opposition's position that they will not support this Motion if the noble and learned Lord, Lord Ackner, presses it to a vote.

The Lord Chancellor

My Lords, with the leave of the House, I shall speak to Amendments Nos. 70 to 78 at the same time as responding to the noble and learned Lord's Motion numbered 70A.

Clause 32 of the Bill will leave intact the principle that lawyers' rights of audience are governed by the rules and regulations imposed by the authorised bodies which grant those rights. But there are some rules and regulations which simply have to be recognised for what they are—restrictive practices, such as those which prevent employed barristers and solicitors from appearing in the higher courts simply because of their status as employees.

Amendment No. 70 reinstates the principle enshrined in what was originally introduced as Clause 31 of the Bill. I am disappointed to say that that clause was rejected by those who clearly believe that discrimination against employed lawyers can be justified.

This is an increasingly anachronistic and isolated attitude. In the other place, the Opposition Front Bench spokesman, the honourable Member for Surrey Heath, welcomed the long-awaited removal of the bar on employed lawyers appearing in court on behalf of their employers. So, in the light of the remarks of the noble Lord, Lord Kingsland, I must congratulate him on a consistency of approach in this House.

Lord Kingsland

My Lords, just to make it absolutely clear to the noble and learned Lord, my remarks referred solely to the Crown Prosecution Service. So far as other employed lawyers are concerned, the Opposition accepts the Government's position.

The Lord Chancellor

My Lords, the Law Society actively supports Amendment No. 70 and, significantly, the Bar Council does not oppose it. The Bar Council's view is that any extension of employees' rights of audience should be in the context of a competitive market in advocacy services, subject to safeguards in the public interest.

That raises an important point. It is in the public interest to have a competitive market for advocacy services only if we are able to maintain standards. I have no desire to see badly trained or incompetent advocates let loose in the higher courts, and I will work with professional bodies to ensure that that does not happen. Any changes in the qualification requirements will be subject to my approval. I will not tolerate anything that jeopardises the current high standards of advocacy.

Concerns have been expressed about the Law Society's new higher court qualifications. The relevant rules of the Law Society were amended in November last year with the unanimous approval of the designated judges and myself acting on the advice of ACLEC and the Director-General of Fair Trading. The amended rules, which came into effect in April this year, are simpler and establish a new route to qualification, but they are no less exacting.

If an employed lawyer, whether barrister or solicitor, has met the high qualification standards required by his professional body, then I do not see how it can be regarded as against the public interest for him to be able to exercise full rights of audience. At present we have the absurd position where an employed barrister, however senior, can exercise absolutely no rights of audience whatever in the higher courts. Even the Director of Public Prosecutions, Mr David Calvert-Smith QC, a barrister of 30 years standing, lost his rights of audience on the day he was appointed as the Director of Public Prosecutions, as did his predecessor, Dame Barbara Mills.

Employed solicitors are scarcely in a better position. An employed solicitor advocate can only appear in substantive proceedings in the higher courts led by a barrister or, theoretically, by a solicitor-advocate, in private practice.

The Government simply do not believe that the professional bodies should be free to apply discriminatory rules of this kind, and reinserting this clause will prevent them from doing so. It provides that rules which limit the rights of audience of employed advocates are not binding on them if they do not also apply to their colleagues in private practice.

The clause will enable Crown prosecutors to prosecute in the Crown Court, and all other employed lawyers to appear as advocates in the higher courts provided that they have met the qualification criteria which apply to them.

Once qualified, employed lawyers will, of course, continue to be regulated by their professional bodies. But we need to ensure that this regulation is in the public interest. It should not be designed to promote the interests of the lawyers in private practice over those of all other lawyers.

The Government do not intend that the professional bodies should have to apply the same regulations in every respect to employed advocates as those which they apply to advocates in private practice. Clearly, they should be allowed to provide for the differences between them. It would not be appropriate, for example, for employed barristers to have to work from Chambers, as barristers in private practice have to do. But employed advocates should not be prevented by their employed status from exercising their rights of audience. Amendment No. 70 is designed to stop this abuse.

I appreciate that some noble Lords are concerned that the independence of employed lawyers cannot be guaranteed. But, like all other advocates, they will be subject to the duties in Clause 37 of this Bill, which are put on a statutory basis for the first time. These are the duty to the court to act with independence in the interests of justice and the duty to obey rules of conduct. These duties override any other obligations that the employed lawyer may have, including those to his employer.

I do not accept that an experienced advocate loses his independence of mind just because he receives a salary rather than a brief fee any more, I might add, than the noble and learned Lord, Lord Ackner, lost his independence of mind—we see that he has not—on relinquishing, I am sure, abundant brief fees for a judicial salary.

As your Lordships will have noticed, there are some drafting differences between Amendment No. 70 and the original Clause 31. They are designed to clarify the clause in two ways: first, to make clear that Amendment No. 70 applies to all employed lawyers and not solely to those employed principally as advocates; and, secondly, to ensure that the clause is not interpreted as enabling an employed advocate to offer his or her services direct to the public or to clients of his or her employers, as distinct from the employers themselves. It is not my intention to authorise that development by means of Amendment No. 70.

Failure to re-insert this clause in the Bill would strike at the heart of the Government's proposals on rights of audience. It would leave in place the restrictions which have been put, quite unjustifiably, on employed lawyers. The time for restrictive practices of this kind has long gone. Amendments Nos. 71, 72, 76 and 77 are consequential upon the insertion of this new clause.

I turn to Amendments Nos. 73 to 75 which concern employees of the Legal Services Commission. Clause 33 invalidates any rule of conduct that would prevent advocates or litigators employed by the commission from providing their services to members of the public purely on account of their employed status. Amendment No. 73 extends Clause 33 to cover, in addition to employees of the commission, employees of, any body established and maintained by the Legal Services Commission under its powers in Clauses 7(3)(d), 14(20) and 15(3)(d). Amendment No. 75 enables barristers employed by the commission, or bodies established and maintained by it, to provide services directly to the public without the need to receive instructions through a solicitor. Amendment No. 74 is a minor drafting change to clarify the clause.

The purpose of the final amendment in this group, Amendment No. 78, is to enable a barrister employed in a solicitor's firm to provide legal services, including advocacy, direct to his or her employer's clients in the same way as an employed solicitor may. I said at Committee stage in this House that the Government would table an amendment to this effect. At present, barristers employed by firms of solicitors are deemed to be "non-practising". This means that they may offer limited legal services to members of the public but they have no rights of audience in any court under the Bar's rules, no matter how well qualified they are or how many years they may have spent previously as barristers in private practice.

The Government regard that as a restriction that cannot be tolerated. A barrister who would have full rights of audience if he were in private practice should have full rights of audience if he works for a solicitor. He should be able to offer his services as an advocate in the same way as a solicitor advocate employed in the same firm. Barristers employed by solicitors will continue to be regulated by the Bar Council. It will be the responsibility of the Bar Council and the Law Society to ensure that the rules concerning these barristers, such as the disciplinary jurisdiction, do not conflict. I do not believe that this will cause any difficulties in practice.

This is an important group of amendments which is at the very core of the Government's policy on rights of audience. I hope that the noble and learned Lord, who has not gained support for his Amendment No. 70A around the Chamber, will agree to withdraw it.

10.30 p.m.

Lord Ackner

My Lords, it is no surprise to me that the Bar and Bar Council have not supported the amendment. To have done so would have given immediate hostage to fortune, because it would have been said, as did the noble and learned Lord, that these restrictions are the worst kind of restrictive practice—designed simply to protect the work and incomes of privately practising barristers, with no shred of benefit to the public".— [Official Report, 26/1/99; col. 997.] For that reason, I drew the attention of the House to the views of the noble and learned Lord of Appeal in Ordinary, Lord Steyn. I drew the House's attention to the view of Professor Zander and the views of the Benson Commission. None of those fall within the trade union attack and accordingly show the independent source of the report.

I do not propose to take up more time of the House. I am grateful for having been listened to with such tolerance. But I submit that the strength of the views I have quoted fully justify the amendment I have proposed, although taking a realistic view I see no purpose in moving the amendment to a Division of the House. Therefore I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.